Torts Intentional Torts 1) A tort is a civil wrong committed by one person against another; and torts can and

usually do arise outside of any agreement between the parties. 2) An event or occurrence caused by or arising from an action or an omission of one party (the actor), which cause injury to a) The human body b) Property c) Economic interest 3) In circumstances where the law considers the event to require compensation ($) from the actor. 4) Intentional Torts ones where the defendant desires to bring about a particular result. The main intentional torts are: i) Battery ii) Assault iii) False Imprisonment iv) Infliction of emotional distress 5) Mistake Doctrine - in intentional torts it is no defense that the defendant mistakes, even reasonably, the identity of the property or person he acts against. Intent 1) Meaning of Intent Each individual tort has a different definition of intent. All intentional torts have in common is that Defendant must have intended to bring about some sort of physical or mental effect upon another person. a) No intent to Harm The intentional torts generally are not defined in such a way as to require D to have intended to harm the plaintiff. i) Example: D points a water gun a P, making it seem like a robbery, when in fact it is a practical joke. If D has intended to put P in fear of imminent harmful bodily contact, the intent for assault is present, even though D intended no harm to P. b) Substantial Certainty: If D knows with substantial certainty that a particular effect will occur as a result of her action, she is deemed to have intended that result. i) Example: D pulls a chair out from under P as she is sitting down. If D knew with substantial certainty that P would hit the ground, D meets the intent requirement for battery, even if he did not desire that she do so. (Garret v. Daley) ii) High Likelihood But if it is merely highly likely, not substantially certain, that the bad consequences will occur; then the act is not an intentional tort. Reckless by D is not enough. c) Act distinguished from consequences Distinguish D s act from the consequences of the act. The act must be intentional or substantially certain, but the consequences need not be. i) Example D intends to tap P lightly on the chin to annoy him. If P has a glass jaw, which is broken by the light blow, D has still intended to cause the contact, and the intentional tort of battery has taken place, even though the consequences broken jaw were not intended. 2) Transferred Intent If D held the necessary intent with respect to person a, he will be held to have committed an intentional tort against any other person who happens to be injured. a) Example: D shoots at A, and accidentally hits B. D is liable to B for the intentional tort of battery. 3) Intentional torts require that the defendant intentionally commit the elements that define the tort. Just engaging in the acts does not suffice unless the actor intended for the elements of the tort to occur.

a) An in advertent result of an action is not intentional. b) Courts are very strict in requiring proof of certainty. c) Infancy and or ignorance are not a valid defense in tort law. But, it is possible to argue that the child lacked the capacity to perform the alleged intent. d) In contrast to criminal law, insanity is not a defense to intentional torts. 4) Garret V. Daley (kid pulling chair out from under woman case) a) Issue of intent b) Rule: A battery would be established if the boy knew with substantial certainty that the plaintiff would attempt to sit down where the chair had been. c) Intentional Torts require that the defendant intentionally commit the elements that define the tort. i) In this case, Children are not usually excused from liability for intentional torts. The Trial judge after remand found the child knew with substantial certainty that the woman would sit where the chair had been. 5) Although infancy does not excuse children from intentional torts, it is possible to argue that children that a young child lacked the capacity to form the alleged intent. 6) Williams v. Kearbey (boy shoots several people at a junior high school) a) Rule: (1) Insanity does not preclude a finding that a defendant acted intentionally. An insane person who shoots and kills another is civilly liable in damages to those injured by his tort. (2) American courts have unanimously chosen to impose liability on an insane person rather than leaving the loss on the innocent victim. b) Insanity is not a defense to intentional torts. 7) Intent does not equal Motive. a) D s Intentional Conduct is not necessarily a D who has a bad motive or who is conscious he is committing a legal wrong. b) Neither good will nor beliefs that your actions are lawful excuses the unlawful touching of someone else against their will.

Battery 1) Elements of the Tort a) An intentional act; b) Contact with the person of another; c) Which is unwanted or not consented to; d) Resulting in either harmful or offensive; and e) Is unprivileged. (1) TORT IS VIEWED FROM THE ACTOR S POINT OF VIEW OR POINT OF REFERENCE!

2) Leichtman v. WLW Jacor (cigar smoke blown in guys face)

a) The standard that is employed to measure offensive contact is i) Contact which is offensive to a reasonable sense of personal dignity is offensive contact. b) Legal definition of offensive disagreeable or nauseating or painful because of outrage to taste and sensibilities or affronting insultingness.

c) Within this case under Ohio law, tobacco smoke was ruled to have the physical properties capable of making contact. A person can commit a battery by intentionally directing tobacco at another. 2) Bohrmann v. Maine Yankee ( Students exposed to radiation at chemical plant) a) Rule: To recover, plaintiffs must demonstrate that defendant intentionally exposed plaintiff to radiation without their consent, and that such intentional conduct on the part of D caused them damages. 3) Transferred Intent An act designed to cause bodily injury to a particular person is actionable as a battery not only by the person intended by the actor to be injured but also by another who is in fact so injured. 4) Restatement definition of a Battery a) An actor is subject to liability to another for battery is i) He acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such contact and ii) A harmful contact with the person of the other directly or indirectly results. iii) Or an offensive contact with the person of the other directly or indirectly results. 5) Intent to Harm is not required, just has to have intent to commit the act that resulted in the harm. 6) The contact need only be offensive and no minimal physical harm required. a) A life partner s assurances that it was safe to have unprotected sex, despite being diagnosed HIV positive, constituted at least an offensive if not harmful contact sufficient to establish battery even in the absence of evidence that the plaintiff had contracted the virus. Assault 1) Elements of an assault a) The threat or use of force b) On another that causes that person c) To have a reasonable apprehension or imminent harmful or offensive contact. 2) Definition a) The act of putting another person in reasonable fear or apprehension of an immediate battery. b) By means of an act amounting to an attempt or threat to commit battery. 3) Lay v. Kremer a) Assault defined in case intentional, unlawful offer of injury to another by force, or force unlawfully directed toward another under such circumstances as to create a fear of imminent peril, coupled with apparent present ability to effectuate the attempt. b) The man s enraged appearance, two handed shove, as well as his abusive language is evidence that his intent was to be offensive. c) Rule: While mere words do not constitute an assault, the words coupled with an appearance of rage and with a just completed shove could constitute an assault. 4) Castro v Local Health and Human Services a) Rule: With respect to verbal threats, words not accompanied by circumstances inducing a reasonable apprehension of bodily harm, such as movements of drawing back a fist, aiming a blow, or the show of a weapon, do not constitute an assault. b) Restatement definition of assault: Where defendant s act intentionally cause the plaintiff reasonable apprehension of an immediate harmful or offensive contact. (1) Does not require the apprehension to be reasonable.

c) It mostly whether the ordinary person would be in apprehension of harmful or offensive contact. 5) The difference between assault and battery is with battery the intent is in the defendant s hands, but with assault, the victim must only have the apprehension of intent from the defendant to do harm.

Transferred Intent 1) Altieri v. Colasso (Throwing of a Rock) a) It is not essential that the precise injury which was done be the one intended. i) The intent would transfer from the one who was to be injured to the one who was in fact injured. b) Rule: This also applies to assault. Where one intends merely an assault, if bodily injury results to one other than the person whom the actor intended to put in apprehension of bodily harm, it is battery actionably by the injured person. 2) Doctrine of transferred intent a) If A intends to commit battery against B but instead only assaults B and/or C, the intent to commit battery constitutes the necessary intent to assault B and/or C. 3) Mistake Doctrine a) Under the mistake doctrine in intentional torts it is no defense that the defendant mistakes, even reasonably, the identity of the property or person he acts against.

False Imprisonment 1) False Imprisonment a) Where D unlawfully acts to intentionally cause confinement or restraint of the victim within a bounded area. (transferred intent is applicable) b) The victim must be confined within a bounded area in all directions. The bounded area can be, however, very large area or even an entire city. 2) The confinement may be accomplished a) Physical barriers b) Force or threat of immediate force against the victim, victim s family or person in immediate presence, and victim s property. c) Omission where the defendant has a legal duty to act d) Improper assertion of legal authority. 3) False Arrest Improper assertion of legal authority and unlawful restrain of victim a) Victim must submit to the arrest b) Arrest improper if the actor imposing confinement is not privileged under the circumstances. 4) Common law False imprisonment requires that the victim be conscious of the confinement at the time of imprisonment. 5) Restatements Would find liability for false imprisonment, even when the victim is not aware of the confinement, if the victim is harmed by the confinement. 6) Dupler v. Seubert (fired from job and forced to stay in office) a) False imprisonment is the intentional, unlawful, and unconsented restraint by one person of the physical liberty of another. b) False imprisonment i) He acts intending to confine the other or a third person within boundaries fixed by the actor and,

ii) His act directly or indirectly results in such a confinement of the other iii) The other is conscious of the confinement or is harmed by it. 7) Maniaci v. Marquette University (Student unlawfully restrained) a) Rule: One who instigates or participates in the unlawful confinement of another is subject to liability to the other for false imprisonment and in order for this to apply to an arrest; it must be a false arrest, made with legal authority. The type of tort that the concept of false imprisonment encompasses did not take place. There was not an unlawful restraint of freedom. She was arrested by legal process. The tort was also not malicious prosecution. 1) Four elements originally were requisite to a cause of action for malicious prosecution: a) A criminal proceeding instituted or continued by the defendant against the plaintiff b) Termination of the proceeding in favor of the accused. c) Absence of probable cause for the proceeding d) Malice or a primary purpose other than that of bringing the offender to justice. 2) Malicious Prosecution only occurs when a plaintiff is arrested or confined without a warrant or legal authority. The tort is clearly not that of false arrest. So no action for Malicious Prosecution.

Malicious Prosecution 1) Malicious Prosecution a) The institution of wrongful criminal proceedings against another, resulting in damage to the plaintiff. b) Restatement Definition i) A private person who initiates or procures the institution of criminal proceedings against another who is not guilty of the offense charged is subject to liability for malicious prosecution if (1) He initiates or procures the proceedings without probable cause and primarily for a purpose other than that of bringing an offender to justice and (2) The proceedings have terminated in favor of the accused. c) Suits based on malicious prosecution require an absence of probable cause. 2) Malice was replaced with purpose in tort law.

Abuse of Process 1) Abuse of process One who uses a legal process against another to accomplish a purpose for which it is not designed is liable to the other for the pecuniary loss caused thereby. Misusing or misapplying process justified in itself for an end other than that which it was designed to accomplish. Malice is not required. a) It is apparent that the real controversy has not been tried, there was error in law in which both plaintiff and defendants participated in together. Therefore, decision reversed and remanded and the plaintiff is required to amend her complaint. 1) Distinguishing Malicious Prosecution from abuse of process a) Abuse of Process does not require the favorable termination of the litigation complained of by the plaintiff. The abuse of process can be filed immediately. The abuse of process focuses on the misuse of subpoenas, attachments of other legal processed within the litigation. b) Liability for the abuse of process exists only when the defendant overtly misuses a process once a proceeding has begun and set forth evidence demonstrating the misapplication of the legal process.

Intentional Infliction of Emotional Distress 1) Elements needed for tort of intentional infliction of emotional distress a) The defendant intended to inflict emotional distress or knew or should have known that emotional distress was the likely result of his conduct b) The conduct was extreme and outrageous and utterly intolerable in a civilized community c) The defendant s conduct was the cause of the plaintiff s distress d) The plaintiff s emotional distress was so severe in nature that no reasonable person could be expected to endure it. i) Recklessness generally defined as acting with desire or substantial certainty the elements of the tort will occur. When the defendant acts with a deliberate disregard of a high degree of probability that severe mental distress will occur. (Variant of negligence). ii) Extreme and Outrageous conduct (1) Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. 2) Intentional infliction of emotional distress RESTATEMENTS a) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm. b) Where such conduct is directed at a third person, the actor is subject to liability is he intentionally or recklessly causes severe emotional distress. i) To a member of such person s immediate family who is present at the time, whether or not such distress results in bodily harm, or ii) To any person who is present at the time, is such distress result in bodily harm. 1) Rulon-miller v. IBM Corporation a) The court affirmed the lower court s decision to charge IBM for inflicting emotional distress. IBM tried to limit their employees freedom after work on who she could date. b) Rule: The general rule is that this tort, in essence, requires the defendant s conduct to be so extreme and outrageous as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community. c) Vulnerability of victim i) If the defendant is prewarned that the victim of his or her conduct is vulnerable or hypersensitive, this knowledge in conjunction with the defendant s conduct may be sufficient to characterize it as extreme and outrageous. 2) Hustler v. Falwell a) Issue: whether a public figure can recover damages for emotional harm caused by a publication of an ad parody offensive to him, and repugnant to most. b) Rule: Public figures must prove malice in addition to the usual elements to recover for intentional infliction of emotional distress caused by publication. i) New York Malice Plaintiff prove the defendant communicated with knowledge that the statement was false or with reckless disregard as to whether or not it is true. Defenses to Intentional Torts 1) Self Defense An actor is privileged to use reasonable force, not intended or likely to cause death or serious bodily harm, to defend himself against unprivileged harmful or offensive contact or other bodily harm which he reasonably believes that another is about to inflict intentionally upon him

2) 3) 4)

5)

a) Self defense is privileged under the conditions stated in subsection (1) Although the actor correctly or reasonably believes that he can avoid the necessity of so defending himself, (1) By retreating or otherwise giving up a right or privilege or (2) By complying with a command with which the actor is under no duty to comply or which the other is not privileged to enforce by the means threatened. b) An actor is privileged to defend himself against another by force intended or likely to cause death or serious bodily harm, when he reasonably believes that i) The other is about to inflict upon him an intentional contact or other bodily harm, and that ii) He is thereby put in peril of death or serious bodily harm or ravishment, which can safely be prevented only by the immediate use of such force. c) Must be in response to an immediate threat. Under Restatement Formulation of Self-defense Privilege the actor may use reasonable force that is reasonably perceived by the actor as necessary to protect from the threat of immediate force. A sincere but unreasonable belief that force is necessary will not constitute a defense. Defense of others: Should Good Samaritans be encouraged to intervene? a) A privilege exists that allows the reasonable force to protect a third party: i) Under the traditional rule, the actor is only privileged to intervene to defend another when the person he is defending is, in fact, privileged. (1) The restatement would protect the good Samaritan who makes a reasonable mistake and intervenes on behalf of someone who in fact does not have the right of selfdefense. Defense of Property a) A person may generally use reasonable force to defend her property, both land and chattels. i) Warning required first The owner must first make a verbal demand that the intruder stop, unless it reasonably appears that violence or harm will occur immediately, or that the request to stop will be useless.

ii) Restatements (1) An actor is privileged to use reasonable force, not intended or likely to cause death or serious bodily harm. To prevent or terminate another s intrusion upon the actor s land or chattels, if (a) The intrusion is not privileged or the other intentionally or negligently causes the actor to believe that it is not privileged, and (b) The actor reasonably believes that the intrusion can be prevented or terminated only by the force used, and (c) The actor has first requested the other to desist and the other has disregarded the request, or the actor reasonably believes that a request will be useless or that substantial harm will be done before it can be made. (2) An exception exists for merchants who are generally provided a privilege to use reasonable force against possible shoplifters and other thieves even if the alleged perpetrator is innocent. 6) Vincent v. Lake Erie Transport (Boat at dock which resulted in damage) a) Rule: where one prudently and advisedly avails itself of the plaintiff s property for the purpose of preserving its own more valuable property, then plaintiffs are entitled to compensation for the injury done.

7) Private necessity privilege permits one to enter the premises of another without permission in an emergency situation when such entry is reasonably necessary to avoid serious harm. The privilege is incomplete since the actor must still compensate the victim for the property. 8) Public necessity privilege the defense of public necessity allows the appropriation of property to avoid a greater harm to the public. Unlike private necessity, the defendant under the common law privilege is not required to compensate the innocent victim. 9) Intentional infliction of personal injury or death 1. Courts do not favor the killing of a small number of people for to save the lives of a larger group. Intentional interference with contractual and economic relations 1) Calbom v. Knudtzon (Interference and induced a breach of a attorney client relationship) a) Rule: The fundamental premise of the tort that a person has a right to pursue his valid contractual and business expectancies unmolested by the wrongful and officious intermeddling of a third party. i) One who without the privilege to do so, induces or otherwise purposely causes a third person not to, (1) Perform a contract with another, or (2) Enter into or continue a business relation with another is liable to the other for the harm caused thereby. ii) Elements (1) The existence of a valid contractual relationship or business expectancy; (2) Knowledge of the relationship or expectancy on the part of the interferor; (3) The intentional interference inducing or causing a breach or termination of the relationship or expectancy (4) Resultant damage to the party whose relationship or expectancy has been disrupted. iii) Court held that the defendant s interference was malicious, intentional and without justification. 2) Intentional interference with performance of contract by a third person a) Must be intentional b) Must be improper c) Interfere with the performance of a contract between another and a third party d) By inducement or causation of the third to not perform the contract. e) Is liable to the other for the pecuniary loss resulting. 3) Intentional interference with prospective contractual relation a) One who intentionally and improperly interferes with another s prospective contractual relation, i) Interference consists of (1) Inducing or otherwise causing a third person not to enter into or continue the prospective relation or (2) Preventing the other from acquiring or continuing the prospective relation. 4) Factors in determining whether interference is improper a) The nature of the actor s conduct b) The actor s motive c) The interests of the other with which the actor s conduct interferes d) The interests sought to be advanced by the actor e) The social interests in protecting the freedom of action of the actor and the contractual interests of the other

f) The proximity or remoteness of the actor s conduct to the interference and g) The relations between the parties 5) Advice as proper or improper interference a) One who intentionally causes a third person not to perform a contract or not to enter into a perspective contractual relation with another does not interfere improperly with the other s contractual relation, by giving the third person i) Truthful information ii) Honest advice within the scope of a request for the advice. 6) Elements a) Intentional interference with contract b) Intentional interference with economic relations i) Valid contract or valid economic expectancy ii) Knowledge iii) Intent by the defendant to interfere with the contract or economic expectancy iv) Interference caused by the defendant v) Damage to the plaintiff (1) Punishment goes to the third party who interfered. 7) Lowell v. Mother s Cake and Cookie (Selling of a company contingent on the continuing business with respondent; however, intentionally interfered with the consummation of this agreement by informing the prospective purchasers that the delivery contract would be terminated if the company was sold to a third person). a) Rule: one who unjustifiably or without privilege interferes with an advantageous business relationship to another s damage may be held liable thereof. i) Intentional interference with prospective economic advantage constitutes actionable wrong if it results in damages to the plaintiff, and the defendant s conduct is not excused by the legally recognized privilege or justification. ii) Rule: One who, without a privilege to do so, induces or otherwise purposely causes a third person not to enter into or continue a business relation with another is liable to the other for the harm caused thereby. (1) The question on the issue of privilege is whether the actor s conduct was fair and reasonable under the circumstances. b) In determining whether there is a privilege to act: i) The nature of the actor s conduct ii) The nature of the expectancy with which his conduct interferes iii) The relations between the parties iv) The interest sought to be advanced by the actor and v) The social interests in protecting the expectancy on the one hand and the actor s freedom of action on the other hand. 8) Texaco v. Pennzoil (Awards Pennzoil damages for Texaco s tortuous interference with a contract between Pennzoil and the Getty Entities). a) Issue: whether the evidence supports the jury s finding that there was a binding contract between the Getty entities and Pennzoil, and that Texaco knowingly induced a breach of such contract. i) The court found that a contract was formed based on the intentions of both parties. ii) By the elements of intentional interference of contractual relations

(1) The court found in this instance that knowledge requirement is satisfied if the party interfering has some knowledge. The knowledge does not have to be accurate. (2) The court held that there was sufficient evidence of a valid contract and that the third party interfered with said contract. b) Was there interference? i) Pennzoil and Getty had an agreement even though it was not drafted. ii) In order to have intentional interference of contractual relations (1) 1) defendant must have knowledge of the contract (2) 2) that D actively induced breach of the alleged contract (3) 3) the alleged contract was valid and capable of being interfered with (a) Need not have full knowledge of the terms, just general knowledge of agreements existence. 9) Environmental Planning and information council (Boycott of editorial newspaper) a) Common Law The court of this state have recognized that an unjustified, or unprivileged, intentional interference with the prospective economic advantage of another may subject the actor to liability in tort, even when that interference does not take the form of inducing a breach of contract. b) Rule: Whether an intentional interference by a third party is justifiable depends upon a balancing of the importance, social and private, of the objective advanced by the interference against the importance of the interest interfered with , considering all circumstances including the nature of the actor s conduct and the relationship between the parties. a. Issue it this action justified? i. Rule: an unjustified or unprivileged, intentional interference with the prospective economic advantage of another may subject the actor to liability in tort, even when that interference does not take the form of inducing a breach of contract. ii. TEST Whether an intentional interference by a third party is justifiable depends upon a balancing of the importance, social and private, of the objective advanced by the interference against the importance of the interest interfered with, considering all circumstances including the nature of the actor s conduct and the relationship between the parties. iii. Reasoning While states have broad power to regulate economic activity, we do not find a comparable right to prohibit peaceful political activity such as that found in the boycott in this case. b. Significance Test for this type of case See Reasoning! You have the right to shop at a particular establishment. c) Defendant s activities constitute a politically motivated boycott designed to force governmental and economic change.

Negligence Overview 2. Negligence is conduct which creates an unreasonable risk of foreseeable harm to others. a. The risk of foreseeable harm to others is unreasonable so that it is negligent if the magnitude or level of risk created outweighs the utility or social value of the conduct creating it. 2. Negligence

3.

4. 5. 6. 7. 8.

a. Duty owed by D to P b. D breached the duty c. D s conduct was the cause-in-fact d. D s conduct was the proximate cause e. Damages/ injury Duty Whether the defendant has an obligation to the plaintiff to conform to a minimum standard of reasonable conduct. In order to know if there is a duty owed, the harm must be foreseeable. Standard of conduct the minimum required conduct, usually a reasonable person standard. Breach of Duty requires that the plaintiff prove that the defendant failed to conform to the requisite standard. Cause in fact whether the defendant s wrongful conduct was a but-for cause of the plaintiff s injury. Proximate cause whether the damage is sufficiently foreseeable or whether other policy considerations should preclude defendant s liability. Damage losses that are compensable or injury.

9. Pitre v. Employers liability a. Pitre, who died of injuries received when he was struck in the head by the hand of a fair patron winding up to pitch a baseball at a concession stand. b. Fault is determined by asking the question: How would a reasonably prudent individual have acted or what precautions would he have taken under the same or similar circumstances? i. Negligence requires that the risk be both foreseeable and unreasonable 1. However, failure to take every precaution against all foreseeable injury to another does not necessarily constitute negligence. c. Ordinary care requires only that precautions be taken against occurrences that can and should be foreseen; it does not require that one anticipate unusual and improbable, though entirely possible happenings. d. Holding the risk of foreseeable harm to others, and the probability of an accident of this nature occurring is outweighed by the utility of purpose for which the enterprise was conducted. i. The defendant was not negligent.

10. Defining a reasonable person a. Must be a person of normal or average intelligence. b. Must have average perception , memory, and knowledge c. Similar or all of the elements in (b) that the actor has or had d. The physical characteristics of the actor 1. Primary factors to consider in ascertaining whether the person s conduct lacks reasonable care a. Foreseeable likelihood that the person s conduct will result in harm b. the foreseeable severity of any harm that may ensue c. the burden of precautions to eliminate the risk of harm.

2. United States Fidelity v. Guaranty Company (Boat with holds case) a. Man walked into a hold that was dark and fell through the hatch and fell to his death. b. Issue whether the owner of the boat is liable for the death of the worker by negligence. c. Rule Negligence formula balancing the usefulness to the ship of the dangerous condition and the burden involved in curing it against the probability and severity of the harm it poses. f. Hand Rule: i. B = burden of the precaution needed to avoid an accident. ii. L = amount of loss if the accident occurs iii. P = probability the accident will occur if the precautions required are taken. 1. Ship owner is negligent if B < PL, that is, if the burden of precautions was less than the harm if the accident occurred multiplied by the probability that it would occur. The higher P and L are, and the lower B is, the likelier is a finding of negligence. g. Issue - Whether it was a place where the ship owner should have expected the worker to be when the accident occurred? h. Using the Hand Rule: i. L is large because of the 25 foot drop, which is the loss if the accident occurs. ii. B, the burden of precautions, there was various ways the ship owner could have prevented the accident so B is moderate to possibly small. iii. P is small because it is unlikely anyone would walk into a room they were not supposed to be in especially when it is dark and the possibility of falling. 1. Holding The ship owner was non negligent 2. The court ruled that the jury s finding was reasonable.

3. Custom is not a defense to negligence. a. Although a custom can be found by the jury to be unreasonable and therefore negligent. 4. The only problem with the hand rule is assigning quantitative values to P,B, and L.

Standard of Conduct 1. Reasonableness in the Context of Circumstance a. Courts allow the jury to consider, in its determination of the defendant s reasonableness, evidence that the defendant was acting under emergency circumstances. i. Restatements second of torts 1. In determining whether the conduct is negligent toward another, the fact that the actor is confronted with a sudden emergency which requires a rapid decision is a factor in determining the reasonable character of his choice of action. 2. The fact that the actor is not negligent after the emergency has arisen does not preclude his liability for his tortuous conduct which has produced the emergency.

3. The court reasoned a person in such an emergency situation cannot reasonably be held to the same accuracy of judgement or conduct as one who has had full opportunity to reflect even though it later appears that the actor made the wrong decision. ii. Even courts that accept the emergency charge find it inappropriate where the emergency should have been anticipated. iii. It does not obliterate the reasonable man standard or serve to excuse one from fault, but rather explains to the jury the standard by which to judge the person s behavior in consideration of the emergency. b. There is no sudden emergency in intentional torts. 2. Anticipated emergencies last sentence a. Court found that the maxim that one is not bound to anticipate another s negligence is at odds with the duties placed upon drivers to exercise due care to avoid colliding with any pedestrians.

3. Breunig v. American family insurance company a. (Truck was hit by woman driving the car who suffered a mental aberration) b. Issue Whether the woman had such foreknowledge of her susceptibility to such a mental aberration, delusion or hallucination as to make her negligent in driving a car at all under such conditions. c. Insanity is generally not a defense in tort cases. d. The court felt that it is unjust to hold a man responsible for his conduct which he is incapable of avoiding and which incapability was unknown to him prior to the accident. e. Held that since the mental aberrations were not constant, the jury could infer she had knowledge of her condition and the likelihood of a hallucination just as one who has knowledge of a heart condition knows the possibility of an attack. i. She had knowledge and was negligent.

4. Neumann v. Shlansky a. Issue The issue is the standard of care which must be exercised by an 11-year-old infant defendant when he is playing golf. b. General Rule If the actor is a child, the standard of conduct to which he must conform to avoid being negligent is that of a reasonable person of like age, intelligence and experience under the like circumstances. i. There is an exception to the general rules for infants who engage in adult activities. c. Child engaging in adult activity. An exception to the rule may arise where the child engages in an activity which is normally undertaken only by adults, and for which adult qualifications are required. As in the case on one entering upon a professional activity which requires special skill , he may be held to the standard of adult skill, knowledge and competence, and no allowance may be made for his immaturity. d. The court holds that golf involves special factors which when considered together in the abstract and in conjunction with the fact situation in the particular case require that this infant be held to the standard of the reasonable man on the golf course. 5. The lower the intelligence or age of the child the harder to establish negligence.

6. In applying the adult standard to children, the activity must not only require adult qualifications, but also be normally undertaken only by adults. 7. The Supreme Court later held that the adult standard would apply when the activity engaged in was inherently dangerous. 8. The court held that an adult standard of care applied to a minor handling a gun because the public has a right to expect a single, adult standard of care from individuals who handle guns.

9. Melville v. Southward a. The court held that an orthopedic surgeons familiarity with the podiatric standard of care for the surgery in question and the post-operative care and treatment of the patient rendered the orthopedic surgeons opinion testimony inadmissible. i. In a medical malpractice case, the burden is on the plaintiff to establish a prima facie case of negligence. ii. The standard of care in a medical malpractice action is measured by whether a reasonably careful physician of the same school of medicine as the defendant would have acted in the same manner as did the defendant in treating and caring for the plaintiff. b. There are two schools of thought when it comes to the testimonies of physicians. i. One line of cases places emphasis on whether witness specialty is substantially identical to the standard for the defendant s practice. ii. The court held that the plaintiff failed to establish an evidentiary foundation that the doctor, by reason of his knowledge, skill, experience, training, or education, was so substantially familiar with the standard of care for podiatric surgery as to render his opinion testimony as well-informed as that of a podiatrist. 10. Standard of conduct for professionals a. Unless he represents that he has greater or less skill or knowledge, one who undertakes to render services in the practice of a profession or trade is required to exercise the skill and knowledge normally possessed by members of that profession or trade in a good standing in similar communities.

11. Cobbs v. Grant a. When a doctor obtains consent of the patient to perform one type of treatment and subsequently performs a substantially different treatment for which consent was not obtained, there is a clear case of battery. i. This theory should be reversed for circumstances when a doctor performs an operation to which the patient has not consented. b. Rule: A physician violates his duty to his patient and subjects himself to liability if he withholds any facts which are necessary to form the basis of an intelligent consent by the patient to the proposed treatment. c. There must be a causal relationship between the physician s failure to inform and the injury to the plaintiff. Such causal connection arises only if it is established that had revelation been made consent to treatment would not have been given. d. Such a disclosure need only be made is the procedure is simple and the danger remote and commonly appreciated to be remote.

12. Physician Rule treat the duty to inform like any other medical malpractice claim. The medical profession in the community determines when a competent physician should inform the patient. 13. Patient Rule Allows jurors to determine when the reasonable physician should inform regardless of current medical practice. 14. If a patient would have accepted the treatment even if the risk had been disclosed, the doctor s failure to properly inform made no difference.

Rules of Law 1. Akins v. Glens Falls City school district a. Court defines the scope of the duty owed by a proprietor of a baseball field to the spectators attending its game. b. Issue whether such an owner, having provided protective screening for the area behind home plate, is liable in negligence for the injuries sustained by a spectator as a result of being struck by a foul ball while standing in a an unscreened section of the field. c. Court held that the proprietor of a ball park need only provide screening for the area of the field behind home plate where the danger of being struck by a ball is the greatest. d. Rules of law in most cases juries must determine what is reasonable under the circumstances to determine negligence. i. Restatement of torts the standard of conduct of a reasonable man may be 1. Established by judicial decision which is what occurred in this case, where the judge declared what conduct was reasonable to establish negligence.

Negligence Per Se 1. Wawanesa Mutual Insurance Co. v. Matlock a. Kid buy two packs of cigarettes and gives one pack to an underage kid. They walk to a telephone pole company where the underage kid drops a lit bud down into the stack of poles starting a fire. b. The court held that there was no valid evidence to hold the older kid liable for the accident. c. Rule The doctrine of negligence per se does not apply even though a statute has been violated if the plaintiff was not in the class of persons designed to be protected or the type of harm which occurred was not one which the statute was designed to prevent. Mere but-for causation is simply not enough. The statute must be designed to protect against the kind of harm which occurred. d. The statute used to convict the kid who bought the cigarettes has nothing to do with fire suppression.

2. Stachniewicz v. Mar-Cam Corporation

a. Issue whether violation of a liquor control regulation constitutes negligence as a matter of law. (Bar fight not stopped by the owner). b. Rule - A violation of a statute or regulation constitutes negligence as a matter of law when the violation results in injury to a member of the class of persons intended to be protected by the legislature and when the harm is of the kind which the statute or regulation was enacted to prevent. c. The court ruled that the injury that the plaintiff incurred was the type of injury intended to be prevented by the statute and the plaintiff falls within the class of persons for which the statute intended to protect thus the owner of the bar was negligent per se by not abiding by the statute and stopping the conduct that ensued which led to the plaintiffs injuries.

1. In the previous case instead of using the conduct of which a reasonable person would have used the judge simply adopted the conduct required by the criminal law or regulation to determine the proper conduct that the defendant should have followed. a. Restatement of torts i. The court may adopt as the standard of conduct of a reasonable man the requirements of a legislative enactment or an administrative regulation whole purpose is found exclusively or in part 1. To protect a class of persons which includes the one whose interest is invaded 2. To protect the particular interest which is invaded 3. To protect that interest against the kind of harm which was resulted 4. To protect that interest against the particular hazard from which the harm results. 2. Negligence per se is generally not applied in lieu of the child standard. 3. Courts do not automatically conclude that compliance with a criminal statute or regulation means the defendant has acted reasonably.

1. No intent No tort 2. Parents are not liable for the torts committed by their child merely because of the child or parent relationship. 3. If the facts do not say that a gun was shown or pointed at him, then do not read that in the question. 4. Consent of a plaintiff is a complete defense. 5. There has to be intent of blowing the smoke in the face of someone.

Cause in Fact 1. East Texas Theatres v. Rutledge a. Woman hit in the head with a bottle thrown from the top balcony of a movie theatre by some unidentified person.

b. Court held there is no evidence or law to support the finding that the failure of the defendant to remove rowdy persons from its premises was a proximate cause of the plaintiff s injuries. 2. Proximate cause (two elements) a. There must be cause in fact ( a cause which produces an event and without which the event would not have occurred; and b. Foreseeability 3. The reason for the court s decision is that it cannot be said that if the defendant movie theatre removed the rowdy persons from the premises, the bottle thrower would not have thrown the bottle. 4. There is a clear lack of proof that the bottle would not have been thrown but for the failure of the defendant to remove rowdy persons from the premises. a. Plaintiffs took nothing because you cannot presume that the bottle thrower would have been stopped by the removal of the rowdy persons.

5.

But for Test a. The plaintiff must prove by a preponderance of the evidence that but for the defendant s conduct, the plaintiff would not have been harmed. b. Where the negligence of the defendant greatly multiplies the chances of accident to the plaintiff, and is of a character naturally leading to its occurrence, the mere possibility that it might have happened without the negligence is not sufficient to break the chain of cause and effect between the negligence and the injury.

6. Multiple Causes a. When multiple causes combine to produce a plaintiff s harm, each cause may be considered a but for cause as long as the harm would not have happened without it. 7. Restatement of torts but for a. Restatements uses substantial factor instead of but for b. The actor s negligent conduct is not a substantial factor in bringing about harm to another is the harm would have been sustained even is the actor had not been negligent.

8. Anderson v. Minneapolis railroad a. Two fires, one started by the railroad and the other of no specific origin, burned down the plaintiff s house. b. Court adopted joint and several liability. i. Restatement of torts 1. If two forces are actively operating, one because of the actor s negligence, the other not because of any misconduct on his part, and each of itself is sufficient to bring about harm to another, the actor s negligence may be wound to be a substantial factor in bringing it about. 2. If a fire set by the engine of one railroad company unites with a fire set by the engine of another company, there is joint and several liability, even though either fire would have destroyed plaintiff's property. But if the doctrine of the Cook Case is applied, and one of the fires is of unknown origin, there is no liability.

9. Northington v. Marin a. Multiple tortfeasors who concurrently cause an indivisible injury are jointly and severally liable; each can be held liable for the entire injury. b. When one defendant in concurrent cause cases wants to relieve himself from liability the burden of proof shifts to him to prove his action had no cause to the injury. c. A tortfeasor who cannot prove the extent to which the harm resulted from other concurrent causes is liable for the entire harm. d. Where the conduct of two or more actors is tortious, and it is proved that harm has been caused to the plaintiff by only one of them, but there is uncertainty as to which one has caused it, the burden is upon each such actor to prove that he has not caused the harm. 10. Substantial factor a. Bottom of 209 is great hypo i. If defendant A is careless with fire on one side of a plaintiff s house, and defendant B is careless with fire on the other side of the house, and both fires merge to destroy it then each defendant may be considered a substantial factor in causing the damage and thus be held liable. While the conduct of neither A nor B may be considered a but for cause of the damage, since with respect to each fire individually the damage would have occurred without it, it would seem unfair to exonerate both defendants in such a case. b. Restatements of torts on substantial factor i. The restatement uses the substantial factor test for both: The actor s negligent conduct is a legal cause of harm to another if 1. His conduct is a substantial factor in bringing about the harm a. The actor s negligent conduct is not a substantial factor in bringing about harm to another if the harm would have been sustained even if the actor had not been negligent. b. If two forces are actively operating, one because of the actor s negligence, the other not because of any misconduct on his part, and each of itself is sufficient to bring about harm to another, the actor s negligence may be found to be a substantial factor in bringing it about. c. In essence the substantial factor test produces a different result from the but for test in cases of simultaneous causes, but not in cases of nearly simultaneous causes.

11. Herskovits v. Group health cooperative of Puget sound a. Issue Whether a patient with less than a 50 percent chance of survival, has a cause of action against the hospital and its employees if they are negligent in diagnosing a lung cancer which reduces his chances of survival by 14 percent. b. This was a policy decision at best. i. The court held that medical testimony of a reduction of chance of survival from 39 percent to 25 percent is sufficient evidence to allow the proximate cause issue to go to the jury. ii. Basically after you do the harm you cannot justify it by saying oh, he would have died anyway.

iii. We answer in the affirmative. To decide otherwise would be a blanket release from liability for doctors and hospitals any time there was less than a 50 percent chance of survival, regardless of how flagrant the negligence.

12. Summers v. Tice a. Two men shot toward the plaintiff when quail hunting. Not sure which shot caused the injury. b. Issue of fact here: Whether the judgment against both defendants may stand. c. Court ruled each defendant is liable for the whole damage whether they are deemed to be acting in concert or independently. d. Judgment against both shooters was affirmed. i. The court here shifted the burden of proof of causation onto the defendants to prove which one was responsible. ii. Defendants must have performed similar tortuous acts and at the same time. e. Restatement of torts i. Where the conduct of two or more actors is tortuous, and it is proved that harm has been caused to the plaintiff by only one of them, but there is uncertainty as to which one has caused it, the burden is upon each such actor to prove that he has not caused the harm. 13. Sindell v. Abbot Laboratories a. Women brought class actions against drug companies seeking to recover for injuries sustained as result of administration of drug DES to their mothers during pregnancy. b. Held although specific manufacturer of drug DES, which was administered to plaintiff's mother during pregnancy causing plaintiff's injuries, could not be identified, plaintiff could hold the manufacturers of the drug which was produced from an identical formula liable for her injuries upon a showing that the manufacturers produced a substantial percentage of the drug in question, with each manufacturer being held liable for the proportion of the judgment represented by its share of the drug market unless it demonstrated that it could not have made the product which caused plaintiff's injuries. c. During the period defendants marketed DES, they knew or should have known that it was a carcinogenic substance, that there was a grave danger after varying periods of latency it would cause cancerous and precancerous growths in the daughters of the mothers who took it, and that it was ineffective to prevent miscarriage. d. Nevertheless, defendants continued to advertise and market the drug as a miscarriage preventative. They failed to test DES for efficacy and safety; the tests performed by others, upon which they relied, indicated that it was not safe or effective. In violation of the authorization of the Food and Drug Administration, defendants marketed DES on an unlimited basis rather than as an experimental drug, and they failed to warn of its potential danger. e. General Rule i. The imposition of liability depends upon a showing by the plaintiff that his or her injuries were caused by the act of the defendant or by an instrumentality under the defendant s control. The rule applies whether the injury resulted from an accidental event. f. Alternative Liability theory

i. Holds that if a party cannot identify which of two or more defendants caused an injury, the burden may shift to the defendants to show that they were not responsible for the harm. g. The problem in this case is the companies are not joined as defendants i. Any of these companies could have manufactured the injury-producing drug. h. The most persuasive reason for finding plaintiff states a cause of action is that advanced in Summers v. Tice. As between an innocent plaintiff and negligent defendants, the latter should bear the cost of the injury. i. Under the rule adopted in this case, each manufacturer s liability for an injury would be approximately equivalent to the damage caused by the DES it manufactured.

14. The Market Share answer to causation a. Holds members of an industry liable for a plaintiff s harm in proportion to the share of the market they represent. i. Can only be used where a plaintiff has shown due diligence in trying to ascertain which specific manufacturer caused the plaintiff s harm. 15. It is merely a windfall for a producer to escape liability solely because it manufactured a more identifiable pill, or sold only to certain drugstores. These fortuities in no way diminish the culpability of a defendant for marketing the product, which is the basis of liability here.

16. Ayers v. Township of Jackson a. Claim asserted by 339 residents of Jackson County against the Municipality. b. Well water was contaminated by pollutants leaching into the aquifer. c. Jury found that the township had created a nuisance and that it was the proximate cause of the contamination of the plaintiffs water supply. i. Most difficult problem for plaintiffs to overcome in toxic tort litigation is the burden of proving causation. 1. This is due to the long latency period of illnesses caused by toxic chemicals. d. The testimony of plaintiffs experts has persuasively established the relationship between defendant s wrongful conduct and the contamination of plaintiffs wells. e. Issue Whether the proof of an unquantified enhanced risk of illness or a need for medical surveillance is sufficient to justify compensation under the tort claims act. i. The compensability of the enhanced risk claim depends upon the likelihood of an event that has not yet occurred and may never occur. ii. On the other hand, denial of the enhanced risk claim may mean that some of these plaintiffs will be unable to obtain compensation for their injury. 1. The court declines the claims for unquantified enhanced risk claims, they give the decision to the legislature. 2. However, the court does recognize the claims for reimbursement for the specific dollar costs of periodic examinations that are medically necessary notwithstanding the fact that the extent of plaintiffs impaired health is unquantified. 3. In my own words, the court has chosen to recognize the medical examinations that are medically necessary and quantifiable. But they

refuse to recognize claims for illnesses that may or may not occur in the future due to the latency period. 17. Toxic cases have causation problems because they include proving that they were actually exposed to a particular toxic substance, that the defendant is responsible for the plaintiff s contact with that substance and that the toxic substance has in fact caused their injury.

Duty and proximate cause 1. Even when the defendant s negligence is the actual but for cause of the plaintiff s injury, courts may find that the injury is too remotely connected to the defendant s wrongdoing to fairly impose responsibility on the defendant.

2. Proximate cause a. But for causation b. Foreseeability 3. Proximate Cause a. Two essential elements: i. There must be cause in fact a cause which produces an event and without which the event would not have occurred; ii. And foresee ability. 4. An essential element of the plaintiff s cause of action for negligence is that there be some reasonable connection between the act or omission of the defendant and the damage which the plaintiff has suffered.

1. Palsgraph v. Long Island Railroad Company a. Two men running to catch a train and the one jumps on the train while the other is hanging off the train while the conductor is pulling and one of the employees of the railroad company is pushing the man. While this is going on the man drops a box of fireworks on the tracks where they explode. When the explosion occurs the scales at the other end of the platform fall on a woman many feet away. The woman sues the railroad company for negligence and compensation for her injuries. b. The majority argued that the injuries incurred by the plaintiff were not foreseeable and out of the zone of danger. c. The dissenting opinion argues that we owe a duty of care to everyone and that she was in the realm of care owed by the railroad. i. However the majority is the accepted view for our classes purpose. The injury must be foreseeable. It was not foreseeable that helping the man get on the train would cause an explosion on the tracks hurting a woman many feet away. It is more aptly characterized as a freak accident. ii. Can argue both sided of this, but on the test make your argument convincing and use the magic words such as foreseeable and zone of danger. d. Majority here by concession, there was nothing in the situation to suggest to the most cautious mind that the parcel wrapped in newspaper would spread wreckage through

the station. If the guard had thrown it down knowingly and willfully, he would not have threatened the plaintiff s safety, so far as appearances could warn him. His conduct would not have involved, even then, an unreasonable probability of invasion of her bodily security. Liability can be no greater where the act is inadvertent.

2. Duty versus Proximate cause a. Both elements in negligence limit the defendant s responsibility for unreasonable conduct that caused the potential plaintiff injury. b. Duty focuses on to whom the defendant owes an obligation to conform to a prescribed standard of reasonable conduct. c. Proximate or legal cause limits the type and kind of harm the defendant can be liable for.

3. Duty and foreseeability a. The majority in Palsgraph framed the foreseeability requirement in light of the presence or absence of duty. i. Defendant owes a duty to refrain from negligent conduct only to foreseeable victims. Thus in order to establish this duty, the plaintiff must show that the plaintiff was in the foreseeable zone of danger. 4. Restatement of torts a. An actor ordinarily has a duty to exercise reasonable care when the actor s conduct creates a risk of physical harm. b. In exceptional cases, when an articulated countervailing principle or policy warrants limiting or denying liability in a particular class of cases, a court may decide that the defendant has no duty or that the ordinary duty of care requires modification. 5. (The decision to limit foreseeability or to extend it by the courts is mostly due to policy reasons and or to prevent unfair outcomes). a. The plaintiff must be within the zone of Risk.

6. Overseas Tankship v. Morts Dock (Wagon Mound Case) a. Proximate cause should limit the defendant s liability to the kinds of types of consequences that were reasonably foreseeable. b. Wagon mount now required that the Type of harm suffered be foreseeable as well under the proximate cause element of negligence. 7. Wagon mound II a. Found the resulting fire was a foreseeable risk from the oil spill. b. The foreseeability required need not be great when the manifested risk would be significant, and there was no justification to incur the risk. c. The court concluded that where it is clear that the reasonable man would have realized or foreseen or prevented the risk, then it must follow the defendant is liable. 8. The two wagon mound cases emphasize the leeway enjoyed by courts determining proximate cause by manipulating what is determined to be foreseeable.

9. The type of harm suffered be foreseeable, but the precise manner and extent of the harm need not be foreseeable. a. The foreseeablility test is limited by the additional requirement that there be no superseding intervening force that caused the plaintiff s harm. 10. An injury is foreseeable as long as the chain of causation was not broken.

Thomas v. United States Soccer Federation 1. Where, as here, an intentional or criminal act of a third person intervenes between the defendant s conduct and the plaintiff injury, liability will turn upon whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant s negligence. 2. The extent or seize of the harm is not required to be foreseeable, only the type. 3. An intervening force is one that joins with the defendant s conduct to cause the injury. Such a force, whether it be human, animal, mechanical, or natural is considered intervening because it occurs after the defendant s conduct. An intervening force will only act to cut off proximate cause if it is characterized as superseding. Superseding intervening forces are those forces which are extraordinarily unexpected. 4. Criminal acts are often characterized as extraordinarily unforeseeable and hence superseding. 5. Courts test for intervening forces is if the intervening act and the injury resulting therefrom are of such a character that the author of the primary negligence should have reasonably anticipated them in light of the attendant circumstances. 6. The criminal conduct of a third party is generally a superseding cause that extinguished liability except when such criminal conduct is a foreseeable result of the prior negligence. 7. Independent intervening forces a. Forces which are not stimulated by the defendant s negligence, while dependent forces are so stimulated by the defendant. 8. Dependant intervening forces a. More often foreseeable, ultimately the determinative issue is whether or not the intervening force is extraordinarily unexpected.

Bigbee v. Pacific Telephone 1. Was the risk that a car might crash into the phone booth and injure plaintiff reasonably foreseeable in this case. a. Where a telephone booth, which is difficult to exit, is placed 15 feet from such a thoroughfare, the risk that it might be struck by a car veering off the street, thereby causing injury to a person trapped within, cannot be said to be unforeseeable as a matter of law. 2. Foreseeability of consequences is generally required to find liability. Courts, however, make an exception and do not require that the type of personal injury suffered by a victim be foreseeable. Rather, the defendant takes his plaintiff as he finds him. Steinhauser v. Hertz

1. Car accident was the precipitating cause of her serious mental illness. 2. Egg shell Plaintiff Rule a. If the defendant is responsible for injuring a victim, courts will generally hold
defendant responsible for even highly unusual medical complications that result because the victim is extremely frail or otherwise vulnerable. i. If the plaintiff s egg-shell skull splatters instead of merely suffering a scratch like a normal skull as a result of a minor impact, the defendant is nevertheless still held as the proximate cause of the catastrophic injury. ii. Although a defendant is liable for the full extent of the harm suffered by an eggshell plaintiff, the damages award may be adjusted to reflect a plaintiff s preexisting condition.

Res IpsaLoquitar

1. Krebs v. Morgan a. Kid flies threw the air and crashes into sculptures but plaintiff did not see and cannot prove how this accident occurred. b. This information was not only unknown to plaintiff but was peculiarly within the knowledge of the defendant. c. Inference that defendant may have been negligent is permitted when the following three conditions exist: i. The cause of the accident is known ii. The accident-producing instrumentality is under the exclusive control of the defendant iii. The instrumentality is unlikely to do harm without negligence on the part of the person in control. d. Person is in control of their body. For this accident to occurthere is an inference of negligence. 2. The doctrine of res ipsaloquitar means the thing speaks for itself a. Allows the jury to infer from circumstantial evidence that the defendant was negligent. It is ordinarily used where the plaintiff is unable to make specific allegations as to how the defendant was negligent. b. In order to obtain a jury instruction i. Must demonstrate 1. That the accident is of such a nature that it does not usually occur in the absence of negligence. 2. That the instrumentality causing the injury was within the defendant s exclusive control. (simply require negligence can be attributed to the defendant.) 3. The plaintiff is not at fault. 3. Restatement a. It may be inferred that harm suffered by the plaintiff is caused by negligence of the defendant when

i. The event is of a kind which ordinarily does not occur in the absence of negligence ii. Other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence iii. And the indicated negligence is within the scope of the defendant s duty to the plaintiff. 4. Courts held that if specific acts of negligence are alleged, or if there is direct evidence of the precise cause of the accident, the doctrine of res ipsa loquitur is not applicable.

5. Ybarra v. Spangard a. Damages for personal injuries alleged to have been inflicted on plaintiff by defendants during the course of a surgical operation b. Prior to the surgery he did not have any pain in his shoulder but after had pain in his shoulder. c. Without the doctrine a patient who received permanent injuries of a serious character, obviously the result of someone s negligence, would be entirely unable to recover unless the doctors and nurses in attendance voluntarily chose to disclose the identity of the negligent person and the facts establishing liability. d. It is manifestly unreasonable for them to insist that he identify any one of them as the person who did the alleged negligent act. e. Court refers to the instrumentalities as including the unconscious body of the plaintiff. f. Held that where the plaintiff receives unusual injuries while unconscious and in the course of medical treatment, all those defendants who had any control over his body or the instrumentalities which might have caused the injuries may properly be called upon to meet the inference of negligence by giving an explanation of their conduct. i. This is a minority opinion, and each defendant had the burden of persuading the jury that, as compared with the other defendants, he or she was blameless. 6. The doctrine of res ipsa loquitur is not available to fix responsibility when any one of a number of defendants might have been responsibility when any one of a number of defendants might have been responsible for plaintiff s injury, although the doctrine can be used to fix responsibility against multiple defendants when they had joint control of the instrumentality causing injury. 7. When the plaintiff receives different treatments by different entities at different times the plaintiff fails to demonstrate joint or exclusive control on the part of the defendants. a. This is different from the Ybarra case because it was several doctors at one hospital as opposed to two hospitals here. 8. Ybarra rule a. In the type of case we have here, where an unconscious or helpless patient suffers an admitted mishap not reasonably foreseeable and unrelated to the scope of the surgery, those who had custody of the patient, and who owed him a duty of care as to medical treatment, or not to furnish a defective instrument for use in such treatment can be called to account for their default. They must prove their nonculpability, or else risk liability for the injuries suffered.

Limitations on Duty

Failure to Act 1. Ayers v. Hicks a. Boy falls down an escalator in a department store and gets his fingers caught in the place where it disappears in to the floor. b. Charges of negligence c. Rule One is not bound to guard against a happening which there is no reason to anticipate or expext. i. Issue whether it may, nevertheless, be held liable for an aggravation of such injury, and, if so, under what circumstances. ii. General rule 1. There is no duty to go to the rescue of a person who in peril. iii. Rule under some circumstances, moral and humanitarian considerations may require one to render assistance to another who has been injured, even though the injury was not due to negligence on his part and may have been caused by the negligence of the injured person. Failure to render assistance in such a situation may constitute actionable negligence if the injury is aggravated through lack of due care. d. In this case, the plaintiff was an invitee and he received his initial injury in using an instrumentality provided by the defendant and under its control; this is a sufficient relationship to impose a duty upon the defendant. The defendant cannot be charged with its anticipation or prevention but only with failure to exercise reasonable care to avoid aggravation. i. The jury should have been limited and restricted in assessing the damages to the injuries that were the proximate result of the defendant s actionable negligence. 2. There is generally no duty to act a. An omission or nonfeasance will not ordinarily lead to tort liability. Common law judicial policy limits the duty in this way to act reasonably. 3. Exceptions to the general no duty rule a. When a special relationship exists between the parties b. When the defendant or an instrument under her control, has created the peril c. When the defendant voluntarily undertakes to act and puts the plaintiff in a worse position. 4. Restatement of torts a. A common carrier is under a duty to its passengers to take reasonable action i. To protect them against unreasonable risk of physical harm ii. To give them first aid after it knows or has reason to know that they are ill or injured, and to care for them until they can be cared for by others. b. An innkeeper is under a similar duty to his guests c. A possessor of land who holds it open to the public is under a similar duty to members of the public who enter in response to his invitation. d. One who is required by law to take or who voluntarily takes the custody of another under circumstances such as to deprive the other of his normal opportunities for protection is under a similar duty to the other.

5. If the actor knows or has reason to know that b his conduct, whether tortuous or innocent, he has caused such bodily harm to another as to make him helpless and in danger of further herm, the actor is under a duty to exercise reasonable care to prevent such further harm. a. Reflects the type of basic decency and human thoughtfulness which is generally characteristic of our people.

6. Miller v. Arnal a. Verdict in favor of the appellee in an action alleging that the appellee willfully, negligently, and unreasonably terminated a rescue effort to assist the appellant. i. Issue- whether certain jury instructions were properly refused by the trial court. We find no error. ii. Mountain hiking Miller had frost bite and did not want to make the descent. He and another stayed behind. iii. Appellant contends that he was put in a worse position by appellee s termination of a rescue attempt by its own ski patrol and the jury should have been allowed to compensate him for his loss of the chance of being rescued. 1. The statute the court uses involves reliance. It holds reliance is a necessary element for recovery against a volunteer, and that the element of reliance bespeaks a voluntary choice of conduct by the person harmed. It infers that the person exercising it can decide between available alternatives. iv. The actor may normally abandon his efforts at any time unless, by giving the aid, he has put the other in a worse position than he was in before the actor attempted to aid him. 1. His motives in discontinuing the services are immaterial. b. There is no evidence that appellant relied on any rescue undertaking by appellee in the sense that he chose rescue by the ski patrol over any other available alternative. i. The evidence shows that the county s rescue efforts were not delayed, discouraged, or prevented by any act of appellee s. 7. Where a person does choose to give aid, a duty arises to avoid putting the victim in a worse position. A defendant may put a victim in a worse position by harming the victim directly, preventing aid from another source, or inducing the victim to rely detrimentally on the defendant s aid. 8. Restatement 1. One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if a. His failure to exercise such care increases the risk of such harm, b. Or the harm is suffered because of the other s reliance upon the undertaking.

Most states have enacted good Samaritan statutes, which exempt rescuers from liability for ordinary negligence.

10) Wells v. Hickman a) Wells filed a complaint for the wrongful death of her son at the hands of Hickman s son. b) Hickman beat the Wells boy to death in the woods. c) Hickman is a crazy kid who has hurt animals and has talked of suicide, but has played with the Wells boy with no incident many times before. i) The critical issue in this case is foreseeability. Whether Hickman knew or with due care should have known that Hickman would injure Wells. (1) Rules (a) A plaintiff can only recover damages if he establishes that the defendant breached the duty owed to the plaintiff which proximately caused the plaintiffs injuries. (b) The state court in this case has not recognized the exception to the general rule that parents are not liable for the tortuous acts of their minor children. (i) That exception is at issue in the present case, and we now recognize parental failure to control as a viable cause of action. (c) Restatement (i) A parent is under a duty to exercise reasonable care so to control his minor child as to prevent it from intentionally harming others or from so conducting itself as to create an unreasonable risk of bodily harm to them, if the parent 1. Knows or has reason to know that he has the ability to control his child, and 2. Knows or should know of the necessity and opportunity for exercising such control. ii) The parent must know or should have known that the child had a habit of engaging in the particular act or course of conduct which led to the plaintiff s injury. d) Nevertheless, we cannot conclude based upon Hickman s cruelty to animals and comment about committing suicide, that is was reasonably foreseeable he would kill a neighborhood friend. The boys have played together without incident. e) Holding i) A cause of action may occur for parental negligence in the failure to control may be maintained in Indiana, but there is no duty in this case. A duty may be imposed upon a parent for her failure to control her child when the parent knows or should know that the child has engaged in a particular act or course of conduct and it is reasonably foreseeable that this conduct would lead to the plaintiff s injuries. 11) Parents under common law are not automatically liable for their children s tortuous acts, although, can be held negligent in their supervision of their children. a) Mere knowledge by the parent of a child s mischievous and reckless, heedless or vicious disposition is not of itself sufficient to impose liability with respect to torts of a child. b) No parental liability exists without notice of a specific type of harmful conduct and an opportunity to interfere with it.

12) Tarasoff Case a) Poddar killed Tarasoff i) Tarasoff s parents allege that two months prior to the killing of their daughter, Poddar confided his intention to kill Tarasoff to a psychologist employed by the hospital at the University they attended. ii) No one warned plaintiffs of tarasoff s peril

(1) The therapist cannot escape liability simply because Tatiana herself was not their patient. When a therapist determines, or pursuant to the standards of his profession should determine, that his patient presents a serious danger of violence to another, he incurs an obligation to use reasonable care to protect the intended victim against such danger. iii) To establish duty we need foreseeability iv) Defendant owes a duty of care to all persons who are foreseeably endangered by his conduct, with respect to all risks which make the conduct unreasonably dangerous. (1) However, when the avoidance of foreseeable harm requires a defendant to control the conduct of another person, or to warn of such conduct, the common law has traditionally imposed liability only if the defendant bears some special relationship to the dangerous person or to the potential victim. b) Rule i) In general, one person owed no duty to control the conduct of another nor to warn those endangered by such conduct. (1) Exception (a) There is an exception to this rule and that is if the defendant stands in some special relationship to either the person whose conduct needs to be controlled or in a relationship to the foreseeable victim of that conduct. c) In the present case, a duty of care may arise from either i) A special relation between the actor and the third person which imposes a duty upon the actor to control the third person s conduct, or ii) A special relation between the actor and the other which gives to the other a right of protection. d) The risk that unnecessary warnings may be given is a reasonable price to pay for the lives of possible victims that may be saved. i) Must also take into consideration the protection of patient s privacy. e) A physician may not reveal the confidence entrusted to him in the course of medical attendance unless he is required to do so by law or unless it becomes necessary in order to protect the welfare of the individual or of the community. i) The protective privilege ends where the public peril begins. 13) The court held there is a cause of action against therapist and the regents that employ him for breach of duty to exercise reasonable care to protect Tatiana.

14) Impact of Tarasoff a) Ordinarily there is no obligation to control the acts of a third person. b) The case has most jurisdictions holding that a therapist has an obligation to act to protect their patients potential victims. i) Discussed next is how this duty is limited to only readily identifiable victims. ii) And how the California code limits the obligation of therapists to warn only when the patient makes a serious threat of physical violence against a reasonable identifiable victim.

15) Davidson v. City of Westminister a) Yolanda Davidson was stabbed four times while in a public Laundromat. On three earlier occasions women had been stabbed at the same or nearby Laundromats. The evening before

Yolanda s stabbing, two police officers had the Laundromat under surveillance when another stabbing occurred. b) Yolanda seeks to recover for the city and the officers on the basis of causes of action for failure to protect, and failure to warn. i) The causes of action in negligence allege that special relationships existed between Yolanda and the officers as well as between the assailant and the officers, each of which imposed a duty of care on the officers. ii) Issue we examine the relationship between the officers and the assailant and between Yolanda and the officers to decide whether sufficient factors are present to justify the imposition of a duty to warn or otherwise protect Yolanda. (1) Rule same rules as stated above in this case. (a) One owes no duty to control the conduct of another, nor to warn those endangered by such conduct. Such a duty may arise, however, (i) If 1. A special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person s conduct, or 2. A special relation exists between the actor and the other which gives the other a right to protection. (b) A person s mere proximity to an assailant, even with knowledge of his assaultive tendencies or status as a felon, does not establish a relation imposing a duty to control the assailant s conduct. (i) Thus, the court found no special relationship between the potential assailant and the officers. iii) Here the police were in no way responsible for the presence of either the assailant or the victim in the Laundromat. iv) The peril to Yolanda was not created by the officers. She was unaware of their presence and did not rely on them for protection. Their conduct did not change the risk which would have existed in their absence: there is simply no reason to speculate that anyone Yolanda or Blackmun, victim or assailant -- would have acted differently had the officers not placed the Laundromat under surveillance. v) Under such circumstances the recognition of a cause of action against police defendants, based on a duty to warn; would raise difficult problems of causation and public policy. 16) Generally police officers have no duty to the public. i) Some courts however are rejecting the majority rule that there is no special relationship between the police and the public. 17) Exceptions to the no duty rule a) Despite the general view held above, police are subject to the standard exceptions to the noduty rule discussed previously. i) This exception is as follows (1) That police must act reasonably once they undertake to give assistance or protection. ii) But courts are still split in finding that police owe a duty to the public. 18) It also may be concluded that the police are protected from liability by governmental immunity. a) Supervisory responsibility over other police officers can lead to civil and criminal liability if the supervising officers unreasonably fail to intervene.

Mental Distress 1) Thing v. La Chusa

a) Issue presented is whether the Court of appeals correctly held that a mother who did not witness an accident in which an automobile struck and injured her child may recover damages from the negligent driver for the emotional distress she suffered when she arrived at the accident scene. i) Rule (1) A plaintiff may recover damages for emotional distress caused by observing the negligently inflicted injury of a third person if, but only if, said plaintiff: (a) Is closely related to the injury victim (b) Is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim; and (c) As a result suffers serious emotional distress reaction beyond that which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstances. b) The undisputed facts establish that plaintiff was not present at the scene of the accident in which her son was injured. She did not observe defendant s conduct and was not aware that her son was being injured. She could not, therefore, establish a right to recover for the emotional distress she suffered when she subsequently learned of the accident and observed its consequences. 2) Zone of danger rule a) A slight majority of courts today limit recovery for negligently inflicted mental distress only to plaintiffs who either actually suffered impact or were in the zone of physical risk of impact. b) Dillon rule this is a minority rule but still used i) Whether the defendant should be held liable for a bystander s mental distress (1) Whether the plaintiff was present at the scene of the accident (2) Whether the plaintiff s distress was caused by the sensory and contemporaneous observance of the accident, and (3) Whether the plaintiff has a close relationship with the victim. T 3) Some say the Dillon rule is approaching the majority. 4) The requirement that the plaintiff have direct, contemporaneous sensory perception may be satisfied by non-visual perception of the accident. a) Ex. The plaintiff was sitting in his car while his wife unloaded groceries form the bask seat. i) Although the husband did not see the collision, he nonetheless heard and perceived it and was allowed to recover. 5) Dillon s close relationship requirement a) Most jurisdictions using the Dillon rule as including married spouses, parents, children, and siblings. 6) Some states require physical manifestations of the mental distress some do not. a) Those following the zone of danger rule and those following the Dillon rule require that the mental distress be evidenced by physical manifestations.

7) Potter v. Firestone Tire and Rubber Co. a) Toxic exposure case brought by four landowners adjacent to a landfill. i) While none of the landowners currently suffer from any cancerous or precancerous condition, each faces an enhanced by unquantified risk of developing cancer in the future due to the exposure.

ii) Toxic chemicals have contaminated the plaintiff s water wells from the dumping of hazardous waste. iii) Issue whether pursuant to California precedent emotional distress engendered by the fear of developing cancer in the future as a result of a toxic exposure is a recoverable item of dangerous in a negligence action. (1) Damages are recoverable when they are a derivative of a claim for serious physical injuries. (2) Conclude that we lack the appropriate factual record for resolving whether impairment to the immune system or cellular damage constitutes a physical injury for which parasitic damages for emotional distress ought to be available. iv) The court concludes that emotional distress caused by the fear of cancer that is not a probable should generally not be compensable in a negligence action (1) For these reasons: (a) We recognize that all of us are exposed to carcinogens every day. (b) A second policy concern that weighs in the more likely than not threshold is the unduly detrimental impact that unrestricted fear liability would have in the health care field. (c) Third policy concern allowing recovery to all victims who have a fear of cancer may work to the detriment of those who sustain actual physical injury and those who ultimately develop cancer as a result of toxic exposure. (d) Fourth reason to establish a sufficiently definite and predictable threshold for recovery to permit consistent application form case to case. (2) Unless an express exception to this general rule is recognized, in the absence of a present physical injury or illness, damages for fear of cancer may be recovered only if the plaintiff pleads and proves that (a) As a result of the defendant s negligent breach of duty owed to the plaintiff, the plaintiff is exposed to a toxic substance which threatens cancer; and (b) The plaintiff s fear stems from a knowledge corroborated by reliable medical or scientific opinion, that it is more likely than not that the plaintiff will develop the cancer in the future due to toxic exposure. b) Under this rule, a plaintiff must do more than simply establish knowledge of a toxic ingestion or exposure and a significant increased risk of cancer. The plaintiff must further show that based upon reliable medical or scientific opinion, the plaintiff harbors a serious fear that the toxic ingestion or exposure was of such magnitude and proportion as to likely result in the feared cancer.