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Negligence I. Duty a. General standard i. Reasonable care to protect against foreseeable risks of actor conduct. Why?

Consider A Fair DEAL 1. Allocation of loss 2. Fairness 3. Deterrence 4. Economic burden on class of Ds v. class of Ps. 5. Admin concerns 6. Legis consideration: Will duty gibe or contra? ii. Manufacturers owe duty if 1) thing is dangerous if negligently made, 2) thing conceivably used by other than buyer (MacPherson) b. Limited duties & exceptions i. No duty to rescue. UNLESS 1. D caused harm/risk. 2. D started to help P. VOLUNTARY ASSUMPTN of RISK a. If voluntary assumption of duty, cant leave P worse off. b. Gotta act rsnbly c. Good Sam laws (MAJ) protect rescuer against liability for garden variety neg. 3. D&P have special relationship a. Implicit/explicit co-reliance (Farwell and co-venture) 4. Gratuitous promise to rescue/help ii. Land occupier (plurality=tricho; some=Rowland) 1. Activity = Regular duty. 2. Defect of premises => triggers limited duties 3. Trichotomy a. Invitee = Rsnble care. Would need actual or constructive knowledge of danger. b. Licensee = No willful, gross neg. or must warn if had actual knowledge of danger. P gotta show actual knowledge of danger. (Many trich-using jdxns mush with invitee) c. Trespasser = No willful act or gross neg. 4. Children (pp. 286-7) a. Attractive nuisance. Largely gave way to b. Rst 339: Occupier owes trespassing kid duty when: i. Has rsn to know kid likely to trespass ii. Has rsn to know of unrsnbl risk of death/serious harm to kids iii. Kids dont discover condition/risk iv. Burden to fix harm light vs. kid harm risk v. Occupier doesnt rsnbly care to fix 5. Rowland standard (p. 289) a. Status not determinative. Consider probability of injury to others and rsnble action in light of. b. Trending acceptance. Used in CALIF. c. Need to balance: i. Frsblty of harm to P

Degree certain that P harmed Connection btwn Ds conduct and injury Moral blame of Ds conduct Policy of preventing future harm Extent of burden to D and consequences to community of similar duties vii. Avail, cost and prevalence of insurance 6. Landlords a. Not generally liable where tenants/guests hurt by defect/danger on leased premises. B/c land has passed to tenant. b. But held liable where: i. Concealed danger known ii. Risk to those outside premises iii. Premises leased for public admissn iv. Risk in common area controlled by landlord v. Landlord breaches agree to repair iii. Emo harm 1. Generally: Emo harm duty owed where P suffered phys injury. 2. No phys harm? Majority jdxns: Need show some zone of danger impact. a. Near-miss: Fear of ones own well-being b/c proximity to accident. i. Must have SERIOUS emo harm. Jdxns split on whether expert needed. b. Bystander: Fear for others well-being in their ACTUAL injury. (Mom sees kid hit by car.) i. Many jdxns require (1) zone-of-danger + (2) close relative + (3) serious emo harm + (4) serious phsy harm to 3d party (Clohessy) ii. CALIF., under Thing, follows. But (4) not needed. 3. Fear of future harm/disease a. Need prove actual exposure to harm, not speculation (Majca HIV case) b. If show early detection, most jdxns allow recovery for preventative costs, but not compensate for future harm/loss iv. Responsibility for conduct of others (usually b/c main D not reachable) 1. Duty owed where special rltnshp between D and main actor or P + foreseeable harm/risk a. Risk/harm foreseeability: Maj. say pro shouldve known risk. Min say need actual knowledge. b. Victim: Maj. say P need be rsnbly identifiable (Tarasoff) (specificish). Min say merely foreseeable victim (generalish). 2. Rec. letter writer owe duty not to misrepresent facts describing ex-employee. (Randi) 3. Criminal acts of 3d party a. Land occupiers: Heightened foreseeability requirement. Varying tests. i. Specific harm: D shouldve known would occur ii. Prior Similar Incidents 1. What is similar? 2. Allows occupier a freebie occurrence iii. Totality of circumstances

ii. iii. iv. v. vi.

c. Vicarious liability i. Employer liable for employee conduct if act was in scope of employment 1. Whos in charge? Look for a. Control over method/mode of work b. Kind of work and whether supervised c. Skill needed d. Who supplies instruments/tools/space e. Length of time for work f. Pay method time or by job? ii. Does not apply to independent contractor 1. Except in inherently dangerous acts 2. Except for acts considered non-delegable a. Statute/contract designation i. Ex., Common carrier duty to passengers ii. Ex., city to keep streets repair iii. Ex., Biz to keep premises safe iv. Ex., landlord to maintain common areas iii. Employer remains directly liable for own conduct, methods, policies, etc. II. Breach a. Standard of care. If duty owed, how should D have acted? i. General standard of REASONABLE CARE 1. Act reasonably when act carries foreseeable risk of harm 2. Objective. Acts of standard person ii. Exceptions/Alts/Issues 1. Phys handicap: RPP with like disability 2. Emergencies: RPP under circumstances

iv. Balancing test: Foreseeabilty v. Burden (CALIF.). Basically a breach analysis. b. Public agencies i. Generally not liable for harm resulting from fail to protect ii. Unless spec. reltnshp present. Created by: 1. Assumption, by promise/action, of affirmative duty to act 2. Knowledge that inaction could -> harm 3. Direct contact between agents and injured party promised protection 4. Injured party justfbly relied on promise of affirm. undertaking iii. Orders of protection usually sufficient to create such relationship c. Alcohol providers i. Generally, duty to 3d party where sell to minor. ii. Generally, duty to 3d party where sell to visibly intox person iii. Generally, victim of drunk act can try sue provider, but drunk cannot. Must show seller knew drunk was drunk. iv. Social hosts: Not liable to drinker. Generally not liable to 3d party unless takes affirm action to create foreseeable risk (e.g., friend gives drunk keys and puts in car vs. friend doesnt have to physically stop key-bearing drunk)

a. Note: A jury instrux merely to draw notice to particular circumstances 3. Mentals a. Majority: Too bad. Duty = RPP b. Minority: Maybe, if sudden onset of mentals 4. Children: RPP-similar child a. Except in adult activity b. Except in inherently dangerous acts 5. Individs with superior skills: RPP+ b. Breach analysis i. B<PL: Weigh burden of protection against likelihood of harm and severity of harm. 1. Evaluate possible alternatives to safeguard a. Safe alt? b. Feasible? c. Effective? d. Cost? e. Utility? 2. If possible, Ps should note other risks caused by act/condition, as long as it was foreseeable and would be reduced by the suggested untaken precaution ii. Custom Not conclusive: only gives some idea of what rsnble looks like. 1. P can try show breach by deviation 2. D can try show not breach b/c following custom 3. Professional Standard of Care Exception (Meds, lawyers, etc.) a. Where custom clear re: practice & no room for judgment, Experts needed to show violation of custom. Ds held to K&S normally possessed by avg. practitioner. Deviation from custom = breach. b. If judgment call (i.e., no firmly established do X, then D merely held to what practitioner with avg. KSA wouldve done. c. Informed Consent i. Consider prof. custom, if exists. Need expert. ii. Or is it lay std? (This = maj.) iii. Some jdxn require P testify re: causation. Maj. consider only what RPP wouldve done with info if had it. iii. Statute VIOLATION PER SE 1. Majority: Violation => presumption of breach a. Does statute speak directly to civil liability? If not, not necssly a bar. b. P needs be in statutes protected class c. Harm must be type statute foresaw 2. Excuses can be offered a. Incapacity b. No knowledge of occasion for compliance c. Inability after rsnble effort to comply d. Emergency not of own making e. Complying involved greater risks f. Minority: viol was rsnble under circumstances 3. Minority: Merely evidence of negligence. Also rare: No excuses allowed, so viol = strict liability 4. Minor violation: Not per se neg for children. But can be relevant if RPP-child wouldnt have violated statute 5. Violation itself is matter of fact for jury to decide

iv. Proof 1. P wants to show constructive knowledge 2. Circumstantial evidence can get suit past D.V. 3. R.I.L.: circum evid allowing rebuttable inference of general negligence. a. Needs: i. Accident uncommon w/o negligence ii. Cause of accident under D control 1. Actual exclusive control v. Right of control 2. Ybarra not really followed outside med context iii. P appears not to have contribd to accident iv. Minority add: D has better access to accident info than P b. D must negate R.I.L. elements. But effort to show it acts rsnbly can also show that something went wrong. c. If P has specific theory of breach, it could trump R.I.L. effort. Majority: Let P try both. Minority: Pick either specific or R.I.L. III. Causation a. But for i. P must show by preponderance of evid that D act harmed. MORE LIKELY THAN NOT. (Ingersoll v. Liberty Bank) ii. Dont have to eliminate all possible causes. But P will certainly try. b. Substantial Factor: Same as But for. Merely to help with concurrent cause(s) i. If mult contribs to harm ii. (Zuchowicz: Danocrine case) Cardozo/Traynor school 1. If neg act has been deemed wrong b/c it increases risk of harm and that act happens, then Sufficient to support jury finding of causation. 2. Here, D gotta show that act not but for and that wrongful conduct was not substantial factor c. Single, Indivisible injury from mult acts/Ds i. Some say each tortfeasor J&S liable, assuming accident with multiple, rapidsuccession acts with no proof re: which damaged/degree (Fugere) ii. Others say Ds shouldnt e forced to pay more than his fair share iii. Others still use some hybrid, where D pays his share, then proportionate amount of others who cannot pay. iv. Others: J&S for econ damages, but not for P&S v. Ds carry burden of proving that harm separable d. Alternative Liability: Multiple actors, cant pin harm specifically. (Summers v. Tice) i. Gotta have all Ds in court ii. Only 1 couldve caused injury. P cant determine who. iii. Not concerted actions iv. Some jdxns require Ds to have better access than P to info re: who done it e. Market Share Liability: Too many/Unreachable Ds to get all in court. i. Need substantial portion of market in court ii. Need reasonable time period iii. All Ds must be negligent (of course) iv. National market share determination (NY, Calif.) v. Smaller market v. Exculpation by Ds allowed (Calif.) v. Not allowed (NY) vi. Several liability ONLY. vii. Under Hymowitz, liability according to overall culpability, measured by amount of risk each D created to public at large

IV. Scope a. b. c. d.

viii. Under Collins, liability according to proportion of risk Ds created to P ix. Under Martin, liability equal, but Ds can seek to show their share is not equal

Any unforeseeable Ps? Any unforeseeable harm? Any unforeseeable intervenors? (Palsgraf) i. Cardozo sez: Look for foreseeable risk to foreseeable person. Narrowed duty, broad consequences. ii. Andrews dissents: Broad duty, narrowed consequences via time/space/intervening forces, etc. (See: Juisti hotel fire alarm and collapsed lung) iii. BOTH ARE RIGHT! Theres no set way to make determination. All about presentation. 1. P draws straightest line from negligent act to injury, avoiding any weird stuff as best can. 2. D draws Family Circus line all over neighborhood to show what all happened in freak accident. e. Intervening forces i. Freakishness doesnt auto-mean unforeseen accident ii. Need only that abstractual harm was rsnbly foreseen iii. Intervening act not necessarily exculpate wrongdoer, unless intervening act could not be rsnbly foreseen (as in McClenahan and ignition key) iv. Criminal intervention usually severs initial actors liability, UNLESS criminal intervention could be rsnbly foreseen (Price v. BKA: Bush mask) v. Shifting Responsibility Theory (a la McLaughlin v. Mine Safety Appliances hot box burn baby): If intervening act so egregiously neg as to be unforeseeable, liability shifts to intervenor away from initial actor. vi. As in Bigbee, only general character of event/harm must be foreseeable, not specific nature/manner of occurrence 1. If likelihood that 3d party may act in X manner is the hazard which makes 1st party negligent, such X doesnt protect 1st from liability vii. Medical Complications Exception: Unless subsequent medical mistake is extraegregious and weird, initial actor retains full liability viii. Eggshell P: Get your victims as you find em. 1. Extent of harm caused need not be foreseeable, as long as some harm is foreseeable 2. D will try argue exacerbation of Ps problem wouldve happened w/o negligent act 3. Exacerbation of pre-existing mental condition is w/n scope as long as D caused physical harm and aggravated the pre-existing mental condition ix. Rescuers 1. Danger invites rescue. Rescue = foreseeable. Sears v. Morrison: If person negligently manages self and rescuer contributes non-neggntly to harm (to self or to neg actor), rescuer off hook. 2. Rescuer must be acting in face of imminent danger f. Scope Foreseeability v. Breach Foreseeability i. Breach: Considering the position of the D at the time of the neg. Thinking about what should have been done at the time, if you were in the shoes of the D, what would have been rsble? Balancing, untaken precautions, etc.

V. Damages VI. Defenses a. Contributory: If P neg., no recovery. Old doctrine. Practically non-existent. b. Comparative Fault: If P neg., adjust recovery according to proportion i. Pure: Neg. P recovers something from D. If 99%, gets 1% from D. ii. Modified: Neg. P recovers only if D at least half (some jdxns OK with 50-50) c. Assumption of Risk: D sez P knew what he was getting into, either via expressly agreed-to waiver or implied acknowledgment due to activity involved (or otherwise). i. Express (Wavier of Liability Can waive even negligent activity) 1. Tunkl Factors: Is wavier vs. pubpol? a. Biz of type suitable for public regulation? b. Biz in service of important public need? c. Biz serve anybody who seeks service or anybody within certain stds? d. D have decisive advantage in bargain power? e. D use std adhesion K and not allow pay extra for waiver (i.e., negot)? f. P under control of D as a result of transxn and therefore subject to risk of carelessness? 2. Waiver superseded by gross neg/intentional misconduct ii. Implied 1. Elements of old rule a. knowledge of risk b. appreciation of nature/character/extent of risk c. voluntary exposure to risk 2. Maj. abolition of Implied Assumption Theory. Instead: a. Express/wavier b. No/limited duty (e.g., baseball spectators) (In CALIF: Primary assumption of risk) i. P enters relationship with D ii. P knows/expects D cannot offer protection vs. certain risks iii. (Cheong v. Atablin: Ski buddies collide) iv. No defense vs. reckless/intentional c. Comparative Fault (In CALIF: Secondary assumption of risk) i. CF focuses on P conduct ii. Implied AR focus(ed) on Ps subjective understanding of risk 3. Rescuer Rule a. Emerg. personnel barred from sue 3d parties whose neg. created need for emerg. personnel, who then are injured in course of duties (Emerg. personnel said to have assumed risk of their jobs) b. Some CTs modifying: Emerg personnel injured in line of duty b/c it put him in Place X but was not involved in act related to emergency (harmed while climbing up fire ladder vs. slipping on slick floor in another part of same building after fire out) Products Liability (Strict)

ii. Scope: Hindsight. What was the upshot of the negligence? Was this type of harm foreseeable? Now we know what did happen, should D have been able to foresee?

I. Generally

a. Manufacturer/supplier may be liable to any person who without fault sustains an injury caused by a defect in the design or manufacture of the product if the injury might have been reasonably anticipated. Character of the product, not the conduct of the defendant. Duty to make the product reasonably fit for its intended use. Foreseeability of the risk of harm plays no role. Causation may be shown directly, or circumstantially, such as by expert testimony. Contributory negligence/fault is almost universally regarded as no defense. BUT assumption of risk and comparative negligence/fault may be applied to reduce plaintiff's recovery. b. Elements (Greenman v. Yuba Power Prods) i. P injured while using prod ii. Used properly iii. Defect in design/marketing/warning iv. P was unaware of defect c. Rst (2d) Torts 402A i. Liability to all in distribution chain ii. Product must be unreasonably dangerous (beyond expectations of ordinary consumer) due to defect. iii. Only applicable to physical harm II. Manufacturing Defect a. Departure from design specs b. Defect can be inferred w/sufficient circums. evid and where harm wouldnt normally occur w/o defect (Ducko v. Chrysler) III. Design Defect a. Consumer Expectations Test i. Unreasonably dangerous product design causes MLTN harm during a foreseeable use ii. ultimate consumer who does not contemplate danger from use iii. Dont need expert to show design flaw. In fact, cant use expert. iv. Might need expert to show causation and/or if P and product are specialized v. P need prove 1. D made/sold prod 2. Prod unchanged from sale and/or any change foreseeable 3. Prod used in rsnbly foreseeable way 4. Prod didnt perform as ordinary consumer would expect 5. P was harmed 6. Prod design was substantial factor in causing harm vi. Applicability Issues 1. Open/obvious danger 2. Child vs. Adult perspective re: expectations (Floyd v. Bic) b. Risk-Utility Test i. Prod defect where magnitude of preventable danger > utility of prods design ii. Consider design alternatives/costs/likelihood of danger/custom/etc. iii. Experts required to show defective design (as opposed to only for causation as in manuf. design) c. Which Test Applies? i. C.E. barred where relatively complex factors, i.e., where answer of defect turns on assessments of feasibility/risk/utility (trade-offs) ii. But complexity doesnt preclude. iii. P need experts to explain design flaw? Then R-U a must.

iv. Calif: Allows either test depending on circumstances. (Soule v. GM) 1. Prod failure allows inference that prod design performed below commonly accepted min stds of its ordinary consumers, OR 2. P alleges design caused harm. Burden shifts to D to prove that benefits of prod design outweigh the risks of the design IV. Warning/Info Defect a. Product considered defective where unreasonably dangerous w/o effective warning and no adequate warning provided b. Duty: Maker needed have knowledge that prod rsnbly dangerous when used in foreseeable way i. Warn how safely use ii. Warn of dangers of foreseeable misuse of prod c. Warning adequacy (breach) i. Explicitness ii. Comprehensibility iii. Conspicuousness iv. Clarity v. Proper means d. Causation: i. Heeding Presumption 1. CTs presumption that P would have read/heeded adequate warning 2. Ds burden to prove otherwise; tries offer contrary evidence ii. Need expert testimony e. Learned intermediary: If intermediary (also bulk supplier) warned and doesnt pass warning on to P, then manufacturer not liable f. State of the art defense: Where risk scientifically unknowable at time of manufacture, D not liable i. Calif: D has burden to prove. Most other jxn have it different. g. Rx drugs: Calif allows strict liability only for manufacturing defect

Intentional Torts IT v. Neg: It allows for punitive damages. But many insurance policies dont cover IT. Workers can use IT to get at on-job injuries (assuming elements met); negligence acts generally barred by WorkersComp. I. Intent a. Direct i. D had purpose of producing X ii. D knew to substantial certainty that X would ensue from his conduct b. Transferred i. Same elements ii. Applying same intended tort to different victim (e.g., intent to batter X but battered Y) iii. Applying different tort to different victim (e.g., intent to assault X but battered Y via same conduct)

iv. Does not apply to IIED c. Threshold i. Maj.: Need show intent to commit harmful/offensive contact (White v. Muniz) ii. Other: Need show intent to commit act, and act resulted in contact objectively seen as harmful/offensive II. Assault: D causes the apprehension of offensive/harmful contact a. Elements i. Intentional ii. Overt act/attempt iii. With force/violence iv. Carrying threat of immediate physical injury (no significant delay) v. That causes reasonable apprehension of objectively offensive/harmful contact 1. Ps apprehension at issue 2. Not necessary that P actually be in immediate harm, just that P fear he is (i.e., jokers not so easily off hook) (Vetter v. Morgan)(Rst) b. Threat of future harm actionable as IIED, if at all III. Battery: Carrying out the assault (either on intended party or 3d party via transferred intent) a. Elements: i. Intentional ii. Objectively offensive/harmful bodily contact (contact to something attached suffices) (Offensive to rsnble sense of personal dignity (Leichtman v. WLW) b. Employer-based battery i. Needs knowledge that process/procedure = dangerous ii. Needs know w/substantial certainty that worker exposure to p/p will cause harm iii. Nevertheless continues to require worker to work under p/p IV. IIED a. Elements i. Conduct exceeding all bounds decent societys expectations of behavior ii. Causes mental distress of a very serious kind iii. D acts with 1. Intent to cause emo distress, or 2. Reckless indifference to likelihood that emo distress will result b. Phys harm not needed to bring claim c. Extreme/outrageous i. R-A sez its per community standards (Not in Brandon v. Richardson Co., which like Rst 46, cmt d, used civilized community standard but she said so) ii. Relationship matters 1. D knowledge that P in position of vulnerability? 2. Abuse of power/D in position of authority? (also, any legit reason for acts?) V. False imprisonment a. Keeping somebody in place X vs. their wishes via any means (threat, candy, whatever) b. Elements i. Willful detention ii. W/o consent (all needed: P thinks cannot leave; if way to escape not confined) iii. Without legal authority c. Shopkeeper privilege: rsble blf P stole + rsbly conducted search VI. Trespass Land/Chattels


a. Land b. Chattel: D took Ps property (Chattel v. Conversion: Chattel = intent to damage/unpermitted use/removal; Conversion = stealing permanently.) Defenses a. Consent i. Fights 1. In fight, Rst says, both consent and therefore cannot recover 2. Others say no: Fights illegal, and cant consent to illegal. So case on. 3. Party can withdraw from fight and use as defense a. Must clearly withdraw b. Other pty has to know of withdrawal ii. Capacity/Effectiveness 1. Adults can consent to all kinds of conduct unless D has reason know consenter has some kind of abnormality (temp. or permanent) precluding ability to properly consent 2. Econ coercion/fraud/duress/threat invalidates consent b. Self-Defense/Defense of Others/Property i. Actual Necessity (vs. apparent necessity): To prevent harm D believes is nigh ii. Reasonable Force: Proportionate to perceived harm iii. Factors weighed via RPP iv. W/Property: Cant use lethal to protect property by itself (i.e., vacant property) c. Necessity i. D acted under rsnbl belief of imminent danger of phys injury to P ii. Effort to prevent such danger (e.g., via confinement) lasts only as long as necessary to get P to proper lawful authorities iii. D must use least restrictive means of preventing the imminent danger iv. P can still recover appropriate damages(?)