Torts Outline Test Taking: write objectively (argue for both sides!!!

); issue spot; knowledge of the rules; application of rules to facts; reach a conclusion. Use IRAC format be sure to mention exceptions or defense. y y Tort: civil wrong for which the law provides a remedy Policy Reasons for Torts: o Deter wrongful conduct o Encourage socially responsible behavior o Restore injured parties to their original condition by compensating them for their injury 3 Bases of Tort Law o 1) intentional most serious tort because the actor intended the harmful act or conduct o 2) Negligence o 3) Strict Liability Torts: regardless of where there is fault, there is still liability. -Conduct that is neither intentional nor negligent but that subjects the actor to strict liability (liable regardless of fault) because of public policy EX: ultrahazardous activities Two ways to prove intent: o Purpose or desire to accomplish a particular results o OR o Knowledge that the result is substantially certain to occur  HIGH PROBABILITY, MORE LIKELY THAN NOT. ARE NOT ENOUGH o Mental illness does NOT negate intent Two kinds: of transferred intent: o Intent can transfer from person to person, as where A intends to hit B, misses, and hits C by mistake o Intent can transfer from tort to tort: at least in some circumstances  Usually restricted to battery and assault  Transferred intent must transfer from person to person; not dog to person, etc.

Intentional Torts FITT CAB o False Imprisonment o lntentional Infliction of Emotional Distress o Trespass to Land o Trespass to Chattel o Conversion o Assault o Battery BATTERY : Protect Personal Dignity o Intentional infliction of harmful or offensive contact on another o Elements: FALL 2011 TORTS I

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[Intent: purpose or desire to accomplish the result OR knowledge that the result is substantially certain to occur] An actor commits battery if he ACTS INTENDING: y To cause a harmful or offensive contact to a person OR y To cause imminent apprehension of such contact AND harmful or offensive contact actually results o Need not intend to cause harm y Harmful or Offensive Contact actually occurs o Includes contacts with things connected to the body (clothing, cane) when done in an offensive manner. (Reasonable standard) o Do not have to physically touch person (Carousel Case: Plate) ****Must be contact which is unwarranted by the social usages prevalent at the time and place which it is inflicted (offensive if reasonable person under circ. Would consider it offensive) [Defendant acted; Act done with intent to cause a harmful or offensive contact, the harmful or offensive contact occurs]

ASSAULT: Deter Retaliation o Intentional infliction of APPREHENSION of harmful contact  Don t have to make contact, just prove anticipation/apprehension  Apprehension - refers to anticipation ( expects harmful contact)  Fear - the way he feels about such conduct o Elements:  The defendant ACTED;  The act was done with the INTENT to cause apprehension of imminent harmful or offensive contact; y P must be aware of imminent result (not sleeping or too young- Holloway) y If attacked from behind or while asleep, there is no apprehension. So, no assault- just battery.  The defendant had the ability to inflict the contact y Not FUTURE HARM  APPREHENSION of harmful contact results. y P must actually feel threatened! y Apprehension must be reasonable, objective test-same as offensive o Words alone DO NOT constitute an assault: need words + apprehension of harm; there must be immediacy of assault (telephone threats do no count!) o Intent can be transferred from tort to tort; can use intent of a battery in an assault case! o Policy Reasons for assault: to deter retaliation; to keep people from harmful or offensive acts; protection from mental disturbance FALSE IMPRISONMENT: protect individual liberty. o Intentional confinement within specific boundaries o Elements:  D acts intending to confine P; y D must be substantially certainty that P would be confined  The D acts directly or indirectly results in such a confinement of P; y Must be a physical confinement; no mental y Must be unlawful, no privilege. FALL 2011 TORTS I

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Especially, if the P asks to leave! (Teichmiller: hospital em ee- if you don t ask to leave there is no confinement)  P is conscious of the confinement or is harmed by it Bounded area:  freedom must be restricted, not mere inconvenience  bounded area can be large, even an entire city Escape:  reasonable means of escape stops liability  escape is unreasonable if: the victim is unaware of it, it requires the victim to be heroic, or endure excessive embarrassment or discomfort Confinement may be accomplished by:  physical barriers, or  force or threat of force against victim or victim s family, others in presence, or property (hostage situations) defendant s omission when defendant has a legal duty to act  Ex: A invites B on boat and promises to bring A ashore when requested, B s failure to do so is false imprisonment improper assertion of legal authority  Ex: false arrest by a fake cop PRIVILEGE: a shop keeper has a privilege to apprehend shoplifters for an amount of time until it can be indicated whether the person shoplifted; o As long as:  the suspicion and the manner of detention were reasonable, and  the duration that the person was confined has to be reasonable. y y Policy REASONS for false imprisonment: freedom from depravation of liberty

Trespass to Land: protecting exclusive ownership of property o Intentional unlawful entry (Intent to ENTER, not to trespass) o Applies to all real estate:  The house  The trees  Anything that is attached to the property permanently o Two types:  1. When a person actually enters the land  2. When intangible particles enter land [newer rule] o 1. Trespass to Land by a Tangible:  Elements y Irrespective of harm, intentionally: y enters another person s land, or causes a thing or third person to do so, or y remains on the land, or y fails to remove from the land a thing which he is under a duty to remove  Intent to harm is not necessary!!!!  No actual damage needed!!!  Mistake to ownership does not negate intent element (even if you think its your land and you go on it, its still a trespass if its someone else s)  The trespasser does not even have to know he is crossing into someone else s property to be liable  Policy Reasons: the interest in protecting exclusive ownership of property FALL 2011 TORTS I

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Airspace y Plaintiff owns space above and below his land to a reasonable degree, and if D substantially interferes with P s use and enjoyment of his land, he can be held liable  Nuisance: when a person interferes with a Ps enjoyment of land o 2. Trespass to land by an intangible invasion:  an invasion affecting an interest in the exclusive possession of his property;  an intentional doing of the act which results in the invasion;  reasonable foreseeability that the act done could result in an invasion of plaintiffs possessory interest; AND  and substantial damage to the res [property] actual harm ****These new elements broadened the amount of trespass to land cases that can be brought because loosened intent and the intangibility of what enters the property***  y Trespass to Chattels: Intentional interference with a person s use of their personal property o POLICY REASONS: guard exclusive possession of personal property (movable prop.) o Elements:  1. Intentionally [same intent as land; can take something without realizing its not yours; the intent is satisfied by just intending to take the item]  2. Dispossessing another of the chattel; or  3. Using or intermeddling [interfering with] a chattel in the possession of another y Chattel is impaired in its condition, quality, value, or the possessor is deprived of the use of the chattel for an extended period of time y Chattel need not be harmed, but P MUST PROVE ACTUAL DAMAGES, as in they have to have known about it! CONVERSION o Policy Reasons: to have exclusive ownership of your property o An intentional interference with P s possession or ownership of personal property that is so substantial that D should be required to pay property s full value Restatement (Second) of Torts 222A(1) o D must pay full price of the chattel; regardless of the chattel s condition o Conversion is committed 4 ways:  Acquiring possession  Transfer to a 3rd party (Bergeron: Fuel in hanger.)  Withholding good  Destruction o Factors [not elements] that determine when something is a conversion v. a trespass to chattels: y A suit can be both y In determining the seriousness of the interference and the justice of requiring that actor to pay the full value, the following factors are important: o The extent and duration of the actors exercise of dominion or control; o The actors intent to assert a right in fact inconsistent with the others right of control [you know the other person has control over something and you still try to exercise dominion over the thing knowing that it doesn t belong to you];  A mistake does not prevent liability  punitives can be collected if the act was malicious o The actors good faith; FALL 2011 TORTS I

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o The extent and duration of the resulting interference with the other right of control; o The harm done to the chattel;  Physical damage is not necessary o The inconvenience and expense caused to the other. y INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS o Intentional or reckless infliction, by extreme and outrageous conduct, of severe emotional or mental distress o Elements:  The conduct must be intentional OR reckless;  The conduct must be outrageous and extreme;  There must be a causal connection between the wrongful conduct and the emotional distress;  The emotional distress must be severe. y Extreme and Outrageous Conduct: o 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. o No reasonable person could be expected to endure it o Generally the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actors and lead him to exclaim OUTRAGEOUS! Severe emotional distress results: o The law intervenes only where the distress inflicted is so severe that no reasonable man could be expected to endure it. Intentional v. Reckless o Intentional: purpose or desire to cause emotional distress  knew to a substantial certainty that emotional distress would occur o Reckless: knew to a high probability that emotional distress would occur  NOTE: NOT SUBSTANTIAL CERTAINTY. Factors to look at if the emotion distress was extreme & outrageous: o The defendant is in a real or apparent position of power or authority over the plaintiff o The defendant know that s the plaintiff is particularly susceptible to emotional distress Evidence that shows severe emotional distress: o Unable to carry on normal activities; o Psychological therapy and counseling; o Hospitalization; o Physical manifestation of emotional distress.

DEFENSES TO INTENTIONAL TORTS y CDDNRS y Consent y Defense of Others y Defense of Property FIELD

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y y y 

Necessity Recovery of Property Self Defense

Affirmative defense: o An affirmative defense is defendants assertion of facts and argument that , if true, will defeat the plaintiffs claim even if all the allegations in the complaint are true o The defendant has the burden of proof of affirmative defenses Prima Facie case o To state a prima facie case in a complaint a party must allege facts that if proven are legally sufficient to establish a claim  Must satisfy all elements of the claim CONSENT o Can be expressed or implied  Implied- manifested by actions  Expressed- actual words of consent y Church Case: Withdrew membership but continued going. One is not necessarily prioritized over the other. Actions usu. speak louder. o Courts have ruled that plaintiffs must have sufficient mental capabilities to consent to tortuous invasion interests. For example, minors, intoxicated persons, and mentally handicapped people cannot effectively give consent. Law of Torts 98 at 224. o If P is unable of giving consent, then consent cannot be obtained  but, consent can be implied as a matter of law if: (Doctor s Privilege) y immediate action is necessary to save P s life y there is no indication that P would not consent if able, and y a reasonable person would consent in the circumstances o D cannot exceed scope of consent nor can consent be based on fraud  Ex: Participation in a game does not manifest consent to contacts which are prohibited by rules or usages of the game. y (Cincinnati Bengals Case: Consent only to contacts within the game.) SELF DEFENSE o An actor is privileged to use (1) 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 (2) when he reasonably believes that another is about to inflict intentionally upon him. Reinstatement (Second) of Torts 63(1) o Only for protection, not retaliation; harm must be imminent o use only reasonable force  Can be deadly force if reasonable and proportional  Can be used if D reasonably believes there is a threat of death or SBI o Does not have to be an actual threat of harm o Words are not enough to give reason to use self-defense o The harm must be imminent no right to retaliate when no longer threatened

DEFENSE OF OTHERS o Person may use reasonable force to defend another from attack o Privileged to use reasonable force even if mistaken, if that mistake is reasonable FIELD FALL 2011 TORTS I y

 NOTE: Mistake allowed for this defense. o a person may defend another person in the same manner, under the same conditions, as the person being harmed would be able to defend himself in self defense y DEFENSE OF PROPERTY o a person may use reasonable force to protect property when she reasonably believes that the force is necessary to prevent the intrusion. Restatement (Second) of Torts 77 o the use of force must be proportional to the threatened interest o 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 o If D s mistake is about whether force is necessary, D is protected by a reasonable mistake o Can use deadly force to protect property, but only if the intruder is likely to cause death or serious bodily harm to you or someone you are supposed to protect.  owner may use a mechanical device to protect his property only if he would be privileged to use a similar degree of force if he were present and acting himself y Case with Automatic Shotgun: Deadly force blowing off someone s leg is not okay when not present at all. y Texas Statute ---You can use deadly force: When and to the degree he reasonable believes the deadly force is necessary y To prevent the other imminent commission of arson, burglary, robbery, aggravated robbery, or theft in the night time

RECOVERY OF PROPERTY o Property Owner wrongfully dispossessed of property may use reasonable force to recover property immediately after dispossession o Hot pursuit must act w/o reasonable delay o Deadly force may never be used o Shopkeeper s Privilege - when a store owner or security guard detains a shopper suspected of shoplifting and both the suspicion and manner of detention were reasonable  merchant can lose privilege if excessive force is used or if detains shopper for an excessive amount of time o If the property is already gone, the owner must sue to get the loss, rather than use self help; there are exceptions to this rule y you can peacefully enter another s land and attempt to get the property to which you are entitled y landlords may peacefully take property from a tenant, without fearing a trespass to land y NECESSITY o D has privilege to harm the property interest of P where this is necessary in order to prevent great harm to third persons or to the defendant themselves o Public Necessity  Absolute privilege  Necessary to prevent harm to the community or to many people [public disaster]  No compensation has to be paid by the person who did the damage  The interest to society outweighs private property rights FIELD FALL 2011 TORTS I y

 No damages need to be paid if it s a genuine public necessity o Private Necessity  Privileged to commit an act that would otherwise be a trespass to the chattel of another or a conversion of it, if it is or is reasonably believed to be reasonable and necessary to protect the person or property of the actor  QUALIFIED privilege  Necessary to prevent harm to the private individual  D will have to pay for actual damages caused subject to liability for any harm caused  The owner of the property that might be injured may not resist NEGLIGENCE ELEMENTS OF NEGLIGLENCE: 1. Legal DUTY of reasonable care for the protection of others [reasonably prudent person test] i. Held to the standard of what a reasonable prudent person would so under the same or similar circumstances 2. BREACH- defendant failed to use reasonable care 3. CAUSATION- close casual connection between the breach and the damages i. 4 must first prove CAUSE IN FACT (the negligent conduct brought about the 4 injury) a. BUT, FOR TEST But for the D actions, the 4 would not have been injured ii. Then must use PROXIMATE CAUSE the casual connection between the negligent conduct of the D and 4 injury was close enough that the D should be held liable 4. DAMAGES - 4 must suffer actual injury, nominal damages are not awarded REASONABLY PRUDENT PERSON STANDARD: y Objective standard y Did D behave reasonably under the same or similar circumstances? y generally include the physical characteristics o Physical disability - What a reasonable person with that physical disability would have done. o Elderly- Generally the same as an adult, could be different if they are the plaintiff, but usu. duty will only be affected by physical disability rather than age. o People with mental illnesses are held to the standard of a reasonably prudent person, still. unless one can prove an absence of warning that a person is subject to such an event. (Crazy woman driving her car- had warning). Mental illness must be to extent to affect ability to understand the duty to act as an RPP under the circumstances. y Intoxication is not a defense REASONABLY PRUDENT CHILD STANDARD: y A child is held to a level of conduct of a reasonable person of that age, intelligence, and experience y If a child is engaging in adult or inherently dangerous activities [IE driving] , they will be held to an adult standard

WARNINGS y It is less likely that the defendant will be held negligent if he gave warnings of the danger FIELD FALL 2011 TORTS I

Failure to warn itself could be negligence if D knew of the danger, the warning could have easily been given, and he did not give warning.

SECOND ELEMENT OF NEGLIGENCE: HOW TO SHOW A BREACH OF DUTY: 1. Justice Hand Formula to show if D breached a duty [calculation of RISK]: y Liability depends on whether B < L x P y B = burden of precaution, the cost of precaution to prevent the damages. y L = liability, the severity of the loss y P = probability of the loss occurring o RSTMT: Factors in determining if a person s conduct lacks care:  Foreseeable likelihood harm will occur  Foreseeable severity of harm  Burden of precautions to reduce or eliminate the harm 2. CUSTOM: Does not necessarily equal reasonable. y Courts generally allow evidence (expert testimony) as to custom for the purpose of showing presence or absence of reasonable care, but the evidence is generally not controlling (just relevant) y The D still has to live up to the standard of care of a reasonably prudent person y Court may create a custom for an industry o There is a duty to keep up with technology as duty is an evolving concept (receiving sets on ship) (requiring blood to be tested for HIV)

The Professional: o If D has a higher degree of knowledge, skill or experience than the reasonable person, D must use that higher level o Most of the time one has to use expert testimony to determine the standard of care for a particular profession because the lay jury will not know what the standard is  [IE doctors held to the standard of what a reasonably prudent doctor would do with the same or similar circumstances] o Malpractice: a.) negligent treatment b.) lack of informed consent  Objective standard - Conduct is judged by the reasonable prudent person in the profession  The professional will not normally be held to guarantee that a successful result will occur  If there are differing schools of thought within a profession, D must be judged by reference to the belief of the school he follows  If D holds himself out to be a specialist in a certain niche in his profession, he will be held to the standard of that specialty  A beginner to the profession will be held to the same standard as any other member of the profession o 3 Standards of Care:  NOTE: sometimes even a universal disregard will not excuse omission of imperative precaution (Helling glaucoma) 1. Strict Locaility Rule doctor must exercise the care prevailing in the locaility where he practiced FALL 2011 TORTS I

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2. Similar Community in Similar Circumstances- must jurisdictions use now aggregate all similar communities 3. National Standard what most specialists are held to accreditation like ABA or AMA. a. Preferred as now there is greater means of transportation and communication available, would have to ship patient out or call another dr. in. o Informed Consent Professionals must provide adequate disclosure  Patient Centered: what the reasonable, prudent patient want to hear?  EX: Canterbury v. Spence  Doctor required to divulge all risk that when a reasonable person, in what the physician knows or should have known to be the patient position, would be likely to attach significance to the risk in deciding whether or not to forego the proposed therapy.  Two exceptions: y 1. The patient is unconscious doctor must proceed if harm from failure to treat is imminent and outweighs risk of treatment. y 2. When the doctor releasing a risk would cause the patient to react in a bad way. o IE patient becomes distraught or has psychological damage.  Doctor Centered: what would the reasonable doctor disclose? 3. Negligence Per Se y "Negligence per se" literally means negligence in itself. In a jurisdiction whose rule is that violation of a relevant statute gives rise to a conclusive presumption of negligence, it is "negligence per se" if the defendant violated that statute. o Courts use statute as standard of care instead of RPP y P must be a member of the class of people whom the statute was designed to protect: o Two part test to establish this:  (1) whether the statute is designed to protect a person similar to the P in this case;  (2) risk of injury that is similar to that suffered by the P. y Vesely v. Sager: Bartender and patron o The fact that D complied with all statutes does not mean that D was not negligent - The court may conclude that a reasonable person would take precautions beyond those required by statute y EXCEPTIONS: Restatement (second) of Torts 288A: Violations of a statute may be excused by necessity or emergency, or by reason of incapacity, just as is the case with various forms of common law negligence. o Safer to not follow State o Incapacitated individual (age, physical) o Necessary to not follow y The court is always free to find that the statutory violation was excused, as long as the statute itself does not permit excuses o Reasons for excuse:  D was reasonably unaware of the factual circumstances that made the statute applicable FIELD FALL 2011 TORTS I

D made a reasonable and diligent attempt to comply The violation was due to the confusing way the requirements of the statute were presented to the public  Compliance would have involved a greater risk of harm Proof of Negligence: o P bears the burden of proof and must prove by a preponderance of the evidence (more probable than not -- >50%) that D was negligent o 2 types of burdens:  Production-- P has to come up with the evidence so that a jury can infer D was negligent; either: y Direct Evidence o Eyeball witness o Judge will admit direct evidence y Circumstantial Evidence o Creates inference o Judge chooses whether to admit or not  Persuasion--P must convince the jury by a preponderance of the evidence that his injuries are due to D s negligence o Licensing - Licenses don t matter: Not civilly liable. Brown v. Shyne  Court argues that skill and care is what determines the standard  The licensing statute does not impose negligence per se because does not require additional amount of skill/knowledge  You have to see if that person acted reasonable in their profession or in the case of driving, a reasonable driver.  If not, you can establish a breach of duty based on their skills  

o The judge will decide if reasonable people could differ as to what the facts of the case are; if they could not, he will grant summary judgment or direct a verdict  In a negligence case, the jury will decide: y what really happened y whether D breached duty to P in a way that proximately caused P s injuries o Conclusive Pres. Of Negligence: Duty and breach o Conc. Pres. Of N, with exceptions: Judge o Rebuttable Presumption of N: Jury o Prima Facie Case of Negligence o Simply some evidence of negligence 4. Res Ipsa Loquiter- inference establishing breach (negligence) y the thing speaks for itself o (1) It may be inferred that harm suffered by the P is caused by negligence of the defendant when  (a) the event is of a kind which ordinarily does not occur in the absence of the negligence;  (b) other responsible causes, including the conduct of the plaintiff and third parties are sufficiently eliminated by evidence; and  (c) the indicated negligence is within the scope of the defendants duty to the plaintiff exclusive control y If all three are met; Res Ipsa Loquiter applies! o Hotel Case: Chair falling from window drg. Parade FIELD FALL 2011 TORTS I

o School district: Lunch meat on the floor. o (2) It is the function of the court to determine whether the inference may be reasonably drawn by the jury, or whether is must be necessarily drawn as a matter of law o (3) It is the function of the jury to determine whether the inference is to be drawn in any case whether different conclusions may be reasonably reached. ---RESTATEMENT (SECOND) of TORTS 328D y Requirements: o No direct evidence of D s conduct no eyewitness account  Burden shifting- plaintiff s burden of proof shifts to defendant who has to prove by a preponderance of the evidence that he was not negligent. o Accident would not happen without negligence o Defendant was in exclusive control  multiple defendants: In some cases, D does not have to have exclusive control (example: surgeon team; the whole team working under 1 doctor towards a common cause; the whole team was acting as 1; so RIL could apply; boss responsible under vicarious liability) y P just has to show that one of the defendants was in control y Ybarra v. Spangfield- patient in for appendectomy, had shoulder pain post-op. RIL applied. o *Respondeat Superior* -- enc. finger- pointing o Exclusive control: Closed environment, uncon. Patient o Defendant had a duty to the P o Accident was not due to P s conduct (no contributory negligence) What s the different bw Res Ipsa and strict liability? o Strict liability does not need to prove a breach of duty. RIL proves breach of duty.

REVIEW: 4 WAYS TO SHOW A BREACH OF DUTY 1. Justice Hand Formula (B < P*L) 2. Custom- (Court may create custom.) 3. Negligence Per Se- violation of statute (not license statutes) 4. Res Ipsa Loquiter (In & of Itself) THIRD ELEMENT OF NEGLIGENCE: CAUSATION y Two elements of causation: o 1. Cause in Fact: the negligent conduct brought about the P s injury  But, for test *Note: Substantial Factor Test if > 1 TF. o 2. Proximate Cause: the causal connection between the negligent conduct of the defendant and the plaintiff s injury was close enough that the defendant should be held liable o BOTH MUST BE MET FOR CAUSATION. y CAUSE IN FACT: o But- For Test: but, for the negligent conduct of the Defendant the P would not have been injured (Start w/ But-For Test.) FIELD FALL 2011 TORTS I

 Slip Cases: y Dapp (Doormat- Could not point to what actually caused fall) y Emro Mktg. Grp. (Gas station Ice: circumstantial evidence un- rebutted By positive evidence is sufficient to survive summary judgment) o In situations where the But, For test doesn t work (IE multiple causes of the injury) use:  Substantial factor test: for MULTIPLE causes of injury y If two tortfeasors equally caused an indivisible injury tort then you can impose JOINT/SEVERAL LIABILITY it means that Defendant A and Defendant B are both liable for the whole amount; and each individually responsible for the whole amount. y Use substantial factor test when multiple causes are operating any one of which would be sufficient to cause the injury to the plaintiff ( Concurrent negligence ) y The D s negligence was a substantial factor in causing P s injury o Divisible injury: Appropriation damages: D has to pay damages equal to the amount of damages D caused. o IF indivisible then Joint/Several Liability y MINGLING FIRE CASE: where D s fire could have burned down the land or another fire started by an unknown source operating at the same time. o Proof of Cause in Fact:  Loss of chance (Lost Opportunity Doctrine) - If P s chance of survival was diminished due to D s negligence, D will be held liable for the percentage of loss suffered by the P (IE dropping from 60% chance of survival to 20%) y NOT APPLICABLE IN NON- DEATH CASES. y Loss of opportunity is jurisdiction specific; 3 types; all < P.O.E. o 1. Can recover for the exact percentage loss of opportunity o 2. Cannot recover for loss of opportunity unless the decedent had a greater than 50% chance of survival o 3. No loss of opportunity  Formal Names: y Proportional: Appl. If only a slight chance; DAS ltd. To: percent of chance loss (*) total damages. y Substantial Possibility: Needs to be a substantial possibility that D s negligence caused injury; Full DAS available. y Pure: Applicable if only a slight decrease in chance that he would not have suffered an injury had the defendant not been negligent; Full DAS Possible. y Allows the P to recover even if it was more likely than not that the P would have suffered injury anyway usually restrained to medical malpractice and doctor s negligence reducing a patients likelihood of survival  For Injuries in Probability: must prove preponderance of evidence; y Daubert: Limb defects usu.: 1/ 1000; if risk is doubled (1/500) there is cause in fact. y Post Hoc Ergo Propter Hoc o Just because A precedes B does not mean that A causes B  Daubert Test to allow Expert Testimony to show cause in fact: (EVIDENCE?) FALL 2011 TORTS I

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y (1) The judge must determine whether the expert s testimony reflect scientific knowledge y (2) Must ensure that the testimony is relevant to the task at hand o there must be a fit between the expert testimony and the issue at hand o Circumstantial evidence will not prove cause in fact. o BEFORE Daubert Court used the Frye Test [evidence is admissible if the expert testimony is inside the consensus of the accepted doctrines that are generally accepted] y PROXIMATE CAUSE: negligence of D was close enough to hold D liable. o Two historical ways to establish Proximate Cause:  1. Direct Cause Test Defendant held liable for direct and immediate causes of his actions (no longer used, really)  2. Foreseeability defendant held liable for actions that were foreseeable at the time o The proximate cause requirement is a policy determination that a defendant should not automatically be liable for all the consequences, no matter how improbable or far reaching, of his act o The proximate cause requirement usually means that D will only be liable for the (unreasonable) consequences that are a natural sequence of events flowing from the D s action and are reasonably foreseeable o There may be more than one proximate cause (like there may be more than one but for cause)  Palsgraf v. Long Island R.R. Co. - Plaintiff must be in the Zone of Foreseeability for the defendant to be held liable, only liable for accidents a reasonable person could have foreseen will not be liable to an unforeseen plaintiff o Defendant s Liability:  Hindsight bias will not allow recovery in all cases. y (Morts Dock: just because now it is known fire can start on water; it was not at the time. Thus, it was not foreseeable.)  Once P suffers any foreseeable impact or injury, even if relatively minor, D is liable for any additional unforeseen physical consequences  EXCEPTION TO FORESEEABILITY: Eggshell Skull Rule: Defendant takes plaintiff as he finds him (tough luck) y Defendant is liable for all consequences, even aggravating preexisting illnesses and conditions, despite lack of foreseeability o The Defendant will only have to pay damages for the aggravation of the pre-existing condition, not the whole condition itself y Most courts have included psychological injuries if there has been some physical impact y Once the situation stabilizes and returns to normal, proximate cause ends o Stoleson: If government had been more careful then she may not have suffered from hypochondria; DAS could be limited if she had hypochondria and it could be proven hypochondria would have caused these problems anyway.  Rescue Doctrine: permits injured rescuer to sue the party who caused the danger that required rescue. y It is always reasonably foreseeable that someone would try to rescue someone. Note: Waffle House Case. FIELD FALL 2011 TORTS I

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To have the status of a rescuer: o Defendant was negligent to person rescued and that negligence caused the peril/appearance to person rescued o The peril has to be imminent. o A reasonably prudent person would have to conclude that such peril existed. o The rescuer has to act with REASONABLE care; if not, contributory negligent.  Foreseeability: foreseeability is judged by a Reasonably Prudent Person standard y As long as the harm suffered by P is of the same general sort that made D s conduct negligent, it is irrelevant that the harm occurred in an unusual manner TYPE OF HARM FORESEEABLE, not precise injury or extent. y If P is a member of a class to which there was a general foreseeability of harm, the fact that injury to the particular plaintiff was not especially foreseeable is irrelevant y If UNFORSEEABLE = NO PROXIMATE CAUSE y Foreseeability and the Extent of Harm: o Intervening Cause: A force which takes effect after D s negligence, and which contributes to that negligence in producing P s injury  An intervening act will NOT interrupt the causal chain if the intervening act is the normal or foreseeable consequence of defendant s negligence y Markham Air Rifle Co.: manuf. shipping loaded guns; reasonably foreseeable a customer would pick up gun and shoot it- PC established  If it is an intervening cause, the defendant is still liable  The negligence of third persons may be an intervening force that is sufficiently foreseeable that it will not relieve D of liability, especially if tortious rather than criminal. y Derdiarian: Highway construction co. was negligent when it failed to take proper precaution-- harm that resulted (car hitting worker) was exactly type of harm the negligence established in the first place. y Criminal and Tortious intervening acts may be declared superseding or merely intervening. More likely criminal will be held to be superceding. o Note: RR co. w/ detectives on board to protect thieves from stealing cider: held to be intervening instead of SS b/c of detectives on board, could be inferred that thievery was foreseeable. o Also Note: RR. Co. was negligent in creating risk that there may be a fire. Intervening cause of someone striking match if negligent: IV// if purposeful: SS o Superseding Cause: Intervening cause that is so extraordinary, independent, or far removed that it prevents D from being negligent, and breaks the casual chain. FALL 2011 TORTS I y

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 Superseding = Stops liability.  Extraordinary act of nature is likely to be superseding  Superseding events are not foreseeable! o Aggravation of D s injury by Medical Treatment:  If D negligently injures P, who then undergoes medical treatment, D will be held liable for anything that happens to P as the result of negligence in the medical treatment y Reasonably foreseeable that the doctor s treatment might cause more injury (so D responsible) y Exception: Some results of attempted medical treatment are so gross and unusual that they are superseding o JOINT TORTFEASORS AND PROXIMATE CAUSE  Joint and Several Liability: if more than one person is a proximate cause of the P s harm, and the harm is INDIVISIBLE, all defendants are liable for the FULL AMOUNT of harm. y If one D rich and one D poor, one D can end up paying the whole amount of damages = deep pockets rule. y Current trend: to cut back, or even completely eliminate, joint and several liability. This is mainly due to the rise of comparative negligence as a replacement for contributory negligence. y Policy Reason: Don t let negligent defendant s avoid liability just because someone else was negligent too.  Pure Several Liability: a defendant is only liable for his share of the total responsibility. Apportionment. y IE one guy breaks his arm, and the other breaks his leg; these are divisible and several. y Market Share Liability: NOTE BURDEN SHIFT o P has to join all Ds that hold a substantial share of the market of the product that has caused the negligent harm o The burden then shifts to the defendants to exonerate themselves as plaintiff is unsure which caused harm. o If the D is unable to show it did not make the product that caused the injury, the D is liable for the Ds damages according to its percentage of the market share sold of that product.  Need Consistency amongst product o Defendants are better equipped to bear the cost of injury (Policy) o NOT JOINTLY LIABLE MORE APPORTIONMENT.  Pure Joint Liability: each D is liable up the full amount of damages.  Theories of Joint Liability (used when P having difficulty establishing which defendant proximately caused the harm) y 1. Acting in Concert: two or more defendants have acted in concert, each will be liable for injuries directly caused by the other. Apportionment will not take place. o acting in concert means acting together, with at least a tacit [unspoken] understanding of a common goal of purpose no formal agreement is required o IE racing cars. Both cars are liable for the injuries of third persons, no matter who directly caused the damages. FALL 2011 TORTS I

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o Plaintiff can identify actual harm- doer but will go after 3P. y 2. Enterprise Liability : usu. small groups. o Requirements:  1. Joint awareness of Risk  2. Joint capacity to control the risk o Policy Rational: deter bad behavior from not only individuals but large groups o A way to assign liability when a P doesn t know specifically who caused the harm o Imposes liability on all members of the group of possible defendants (2or>)  IE blasting cap case: P unable to ID who made the blasting caps that the kids got a hold of. Proved that the D s knew that kids getting a hold of these was a problem, and had group meetings to avoid govt. interference. Under Enterprise Liability, held the whole blasting cap industry responsible. y 3. Alternative Mistake/ Alternative Liability: NOTE BURDEN SHIFT o A number of tortfeasors cause the negligent harm; the court shifts the burden to the defendants to establish who caused the injury o Alternative Liability holds both defendants liable unless one or more can exonerate themselves- similar to respondeat superior in medical malpractice as you want finger pointing. o Not applied when chance of one defendant being the harm-doer is extremely minute. Ex: whole class shooting over someone s head; this would not apply. o In effect, the court feels its better for the Ds to fight it out than the innocent plaintiff, and the court cannot exonerate one D on its own, because then the other D s will be able to weasel out.  Three areas where Joint and Several Liability is Common: y 1. Tortfeasors acting in concert- common goal. y 2. Tortfeasors failed to perform a common duty- enterprise. y 3. Tortfeasors acted independently to cause the same harm- alternative.  Contributory v. Comparative Negligence: y Contributory: ALL OR NOTHING any fault by the P - P does NOT recover. COMPLETE BAR * SEE BELOW. y Comparative: (New Rule) P negligent conduct reduces amount of damages received; does NOT completely bar recovery LIMIT DAS * SEE BELOW.  Indemnity v. Contribution y They are mutually exclusive remedies y Contribution: if two Ds are jointly and severally liable for an indivisible injury, one D may usually obtain partial reimbursement from the other D. o Before comparative fault, the tortfeasors shared pro rata (total/#) o with comparative fault, shares are based on the relative percentages of fault (apportionment.) o LIMITS  No intentional torts.  The contribution defendant must in fact be liable to the original plaintiff FALL 2011 TORTS I

 A non-immune tortfeasor cannot collect contribution from an immune tortfeasor y Indemnity: Sometimes the courts will not merely order 2 joint and severally liable defendants to split cost, but will instead completely shift the responsibility from one D to other. This is the doctrine of indemnity a 100% shifting of liability, as opposed to the sharing involved in contribution o Three contexts in which indemnity often applies:  By a contract between two parties  If D1 is vicariously liable for D2 s conduct, D2 will be required to indemnify D1 (Em er/ Em ee)  A retailer is held strictly liable for selling a defective product-causing injury and will get indemnity from others further up the distribution chain, including the manufacturer. o Note: rule applies for FULL reimbursement regardless of rules such as contributory negligence. DAMAGES Nominal Damages: no actual harm. Not used in negligence because actual harm has to be proven y Compensatory Damages: to make plaintiff whole again, to restore the plaintiff to the position the plaintiff was in before the tort occurred. y Punitive Damages: an additional sum, over and above the compensation of the plaintiff, awarded in order to punish the defendant and to deter defendant and others from engaging in similar tortuous conduct. y Pecuniary Damages: compensate the victim for the economic consequences of the injury y Non Pecuniary Damages: compensate victim for physical and emotional consequences of the injury (pain and suffering, which includes loss of enjoyment of life) ---------------------------------------------------------------------------------------------------------------------------------y Personal Injury Damages: o 1. Economic Losses (aka: Special, Non-pecuniary); Past and Future. Compensatory o 2. Non-economic losses (aka: General, Pecuniary); Past and Future. o 3. Loss of Consortium o (4.) Collateral Source Rule y 1. Economic Losses caused by Physical Injury y Past Economic Loss: o Two part:  Lost Wages  Medical Expenses o Wages, benefits, work expectancy up to the time of trial o Capable of Precise Calculation and Proof o Court will want to see calculations y Future Economic Loss: o More speculative- must ask:  How long would P have worked without the accident?  How long will P live?  Will P ever return to work? y

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o must predict what plaintiff would have earned but for the loss, and what plaintiff will have to pay for treatment because of the accident o Must also predict how long the losses can be expected to continue o Issues of inflation and interest potential on award.  Some courts say they even each other out  Some courts say they have to be calculated. o If compensating victim for future work; have to keep in mind if he could work minimum wage for the rest of his life and compensate for that. 2. Non-Economic Losses: Pain and Suffering o No mathematical formula that can precisely calculate (left up to the jury) o Majority jurisdictions: allow a per dium argument for pain and suffering ($ for everyday suffering) o Pain: physical manifestation of hurt o Suffering: the mental manifestation; no ability to play basketball  Loss of Enjoyment of Life (ongoing suffering): the injured person has to be cognitively aware in order to get these damages. (if in a coma and never wake up, no LEL damages; wake up from time to time = compensated for time awake) y McDougald v. Garber- woman in coma-- must be awake to have pain and suffering. any spark of consciousness is enough to allow recovery. o Policy: Foolish to hold D accountable for something P is not aware. y 50/50 split: some courts say Loss of enjoyment of life is a part of suffering; while others say it s a separate category the jury needs to compensate the plaintiff for. o Mitigation: P will not recover for losses that the P could have avoided by taking reasonable precautions (IE getting surgery) AFTER the incident  For personal injury, P may have to obtain medical care to treat and cause the injuries  Whether the P has to undergo a major operation depends on the danger from the operation and the chances for a cure. FACTORS TO CONSIDER: y Cost of surgery y Likelihood of Recovery y Complications of Surgery  P cannot do anything to prolong the injury  NOTE: religion may be a defense to seeking medical care; most jurisdictions hold religion to be reasonable. Therefore, EGGSHELL PLAINTIFF APPLIES. 3. Loss of Consortium *In detail below o Derivative Claim: based on the claim of another; usually a spouse of the injured bringing this claim.  Compensating for the loss of society and services of another o Still debating: if children can bring suits against defendants who killed their parents

(4.) Collateral Source Rule: if injured party gets payments from source independent from the tortfeasor, those amounts are not deducted from award. o IE: Insurance Companies, Pensions, Continued Wages, Disability Payments o Collateral Source: Source not from D s side of the litigation o Joint TF who settled is not a collateral source o Traditionally, you don t tell the jury that the P had a collateral source pay for injuries FALL 2011 TORTS I

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o Does not result in double recovery for the same injury b/c often damages provide for reimbursement of the insurer if the insured recovers damages for the loss o Result of the collateral source rule: place the loss on the defendant and the defendant s liability insurer, instead of on the plaintiff and plaintiff s insurance o Subrogation: the insurance company pays the plaintiff for that injury, then if the insurer has a right to subrogation, the plaintiff has to reimburse the insurance company for paying for their injuries; the insurance company may become a party to the suit and the defendant has to pay the insurance company. Punitive Damages: (Sturm, Ruger, & Co. v. Day) o Rule for punitive Damages: In order to recover, the P must prove that the conduct by the D was outrageous, if D has malice it will satisfy the rule or a reckless indifference to the rights of the plaintiff  No bright-line ratio that punitive damages award cannot exceed , BUT single digit multiplier are more likely to satisfy due process (Supreme Court)  Punitives are to punish the defendant, NOT reward the plaintiff  It is only required to be a reasonable ratio between compensatory and punitive damages but punitives are fact intensive, so in some cases punitives with double multiplier will be okay, o Policy: deterrence of the conduct by all defendants and punishment to this Defendant (gun case; the gun-maker knew gun was defective, didn t fix it, and continued to market) o What courts should consider in determining amount of punitive damages:  If defendant knew of conduct/possible injury and choose to continue  disparity between actual harm and size of punitive award  how outrageous was the conduct  if defendant profited from the choice y SPECIFIC FACTORS: o Financial condition of the entity and potential effect o Amount of plaintiff s litigation expense o Seriousness of harm inflicted o Total punishment from all other sources o Reaction (conduct and attitude) upon discovery of misconduct o Awareness of hazard (degree and excessiveness) o Profitability of misconduct o Duration of misconduct and cover-up o Tort Reform: has put a cap on punitive damages  Higher burden of proof when want punitive damages y Moves from preponderance - clear and convincing  Usually need unanimous verdicts for punitive damages cases  Bifurcated trials: 1 trial on guilt; 1 trial on damages  Jury instructions specifying factors  Admissibility of prior awards  In Texas, Exemplary damages awarded may not exceed an amount equal to the greater of: y Two times the amount of economic damages plus an amount equal to any noneconomic damages found by the jury, not to exceed $750K, or y $200K Limitations on Duty (No duty to Rescue) FALL 2011 TORTS I

o You do not have a legal duty to rescue someone, even if you see that person is in peril, unless you have a special relationship with that person. If, you do decide to rescue, you must use reasonable efforts to help that person. o Misfeasance v. Nonfeasance  Misfeasance: Defendant is responsible for making the Plaintiff s situation worse; (The Real Don Steal radio show) creating a risk; unreasonable risk? F seeable? Entertainment and increased revenue are not excuses for risk: unreasonable Foreseeable youths would disregard safety in their quest to win: f seeable.  Nonfeasance: the Defendant has withheld a benefit (IE not saving someone, limited to where a special relationship exists) Yania v. Bigan (trench, Yania knew of risk as grown adult moral obligation does not mean legal obl.) o Exceptions to the No Duty Rule  1. Defendants Negligence Places the Plaintiff in a position of peril y When this happens, the D owes a duty to the P and anyone who might try to rescue P (Day v. Waffle House; glass in food, hit by car) y One who rescues or attempts to rescue a person from a dangerous situation and incurs injury by virtue of the rescue or attempt, may recover from the party whose negligence caused the party or another to be put in the dangerous situation.  2. Voluntarily Assumed Duties (Goldberg- School District- Crossguard) y If you take on the duty of rescuing someone, after that you owe them a duty of reasonable care o Gov t does not owe general public a duty, only special group o Can be discontinued as long as enough time is given. o Once volunteer duty- must be performed in a non-negligent way y There are some states that have statutes that require you to rescue someone in danger!  3. Special Relationships y Relationship where either: a) actor has a duty to control 3P s conduct/b) other has right to protection y With these come the responsibility of rescue: o Employer/employee; parent/child; husband/wife; engaged in a common conquest o Doctor/Patient/3P: (Tarasoff)  When a therapist determines, while following professional standards, 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 dangers.  Therapist need only to exercise the reasonable knowledge, skill, and care of an individual in his profession under similar circumstances  The duty is to prevent foreseeable dangers, so the doctor can be incorrect as long as he is reasonable. Negligent Infliction of Emotional Distress o P experience Emotional distress as a result of the injuries that D causes; emotional distress later manifests in physical injuries (wants to collect for physical injuries even though not directly caused by Ds actions) FIELD FALL 2011 TORTS I

o Controversial right now. o TESTS FOR NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS  Impact Rule (1) have to be physically harmed by the negligence of the defendant, (2) and have to be a close relative. EX: your mom is about to get run over and you get bumped by the car then you can recover, if you have a physical manifestation from the emotional distress.  Zone of Danger [MAJORITY RULE]: (1) the P must be in the zone of danger and (2) basically right next to the V (could have been impacted), (3) and have to be a close relative. (IE: The P is right next to the mom, but doesn t have to get hit by anything, and suffers physical manifestations of emotional distress [ie: has a heart attack])  Dillon Test: FACTORS (1) you only have to be near the scene, or can come closely after it happens (2) , not directly in the zone of danger, be (3) closely related to the V, and (4) sensory and contemporaneous saw the accident You come closely after your mom gets hit and see her lying there dead, you have physical manifestations, you can likely recover under this.  Thing Test: ELEMENTS have to be at the scene, but not in the zone of danger (1) physically present and aware of injury, (2) be closely related, and (3)suffer severe emotional distress (not abnormal but more than disinterested witness) You are physically present when the accident happens, but don t have to be in the zone of danger, and see your mom get hit by the car. NOTE: Some jurisdictions have statute s that require people to rescue others in danger PREMISES LIABILITY: DUTIES TO OWNERS/OCCUPIERS OF LAND y Categories of entrants: o Invitee: highest duty of care one who comes upon the land BY INVITATION (EXPRESS OR IMPLIED) for business or monetary benefit to the owner [giving a benefit to the owner]; can be a mutual benefit, but must benefit owner.  Owed a duty of reasonable care- owner needs to check to ensure that premises in safe condition AND warn about hidden or concealed dangers. There is a duty to discover such dangers. o Licensee: comes upon the land with the consent of the land owner; social guests [no benefit to the owner]  (LTD DUTY) Duty to warn: only a duty to warn of KNOWN AND (HIDDEN) concealed/dangerous conditions on the land not if obvious hole. o Trespasser: their presence is not consented to  NO DUTY but No wanton or willful injury: only duty not to cause them willful injury o If the home owner doesn t know about the danger then he doesn t have a duty to warn trespassers or licensees BUT for an invitee there could be liability if the home owner had a duty to inspect the premises and discover dangers. WILSON RULE: if service so minor when on land, there is really not an invitee relationship. ECONOMIC TEST If invitation is for/relates to: o personal pleasure, convenience, or benefit of person enjoying privilege LICENSEE FALL 2011 TORTS I

y y

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o business of the one who gives it for the mutual advantage of a business nature for both parties INVITEE More Modern Trends; ~50% of jurisdictions changed to one of these: o Jones: [majority]: owe a duty of reasonable care to licensee and invitee o Hansen: [minority]: owe a duty of reasonable care to licensees, invitees and trespassers.

WRONGFUL DEATH AND SURVIVAL STATUTES: can have both (different times) --To ensure TF pay for the consequences of their actions, and to deter fatal conduct y Wrongful Death Would decedent have had a cause of action? (AFTER DEATH) o Creates a new case Case within a case. o Derivative cause of action (based on the injury of another): must show that decedent would have had a case had he lived. o Death caused by the tortuous act of another. o Brought by that person s next of kin (wife, child, usually defined by statute who can bring this suit)  Damages y Pecuniary: Loss of Support from decedent, portion Plaintiff would have received of decedent s earnings y Non- Pecuniary: (loss of consortium: damages for loss of society and services) o Rebuttable presumption parents are entitles to loss of society damages (Bullard- child hurt in auto accident) o Before you were able to receive income from the child, now the cost of raising them (college, car, etc.) is subtracted from damages. y Survival Action: -- Did decedent have a cause of action? (BEFORE DEATH) o The decedent s cause of action remains after their death o Not a derivative cause of action not a new case. o Brought by the estate: for damages the decedent suffered before their death (ONLY from time of injury until death)  Damages for loss of earnings, medical expenses, personal property  Pain and suffering y Limited to the amount of time from INJURY to DEATH (1 day, 10 days, 3 months, etc y A Plaintiff can bring both, but will NOT be compensated if the times overlap (no double recovery!) DEFENSES *Affirmative defenses that must be plead by the DEFENDANT- not in PF case by Plaintiff y 1. Contributory and Comparative Negligence Obj. viewpoint o Contributory Negligence: if Plaintiff was also negligent in bringing about situation then barred from recovery.  Theories: y Clean hands: punishment to plaintiff for contribution y Encourage optimal care on both parties y Plaintiff s negligence is intervening cause  Exceptions FALL 2011 TORTS I

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No defense to intentional or reckless conduct Some statutes bar defense Last Clear Chance: he who has the last chance to avoid the injury, and could do so by reasonable care, is liable for the injury o Usually only applies when defendant actually knew of plaintiff s danger in time to avoid the accident. o Plaintiff falls asleep on the side of the road. Defendant was driving and saw plaintiff s car in the street but continued fiddling with the radio. Defendant claims that the plaintiff was contributory negligent. BUT LCC says defendant should have avoided the situation. o Comparative Negligence: aggregation of damages between plaintiff and defendant (establish percentage of fault of both parties.)  Two forms: *LOOK AT CHART ON PPT* y Pure Comparative Negligence: plaintiff can recover whatever percentage that defendant is negligence (1% up to 99%) y Modified [MAJORITY]: Plaintiff must be less negligent (< 50%) than the defendant (>=50%) o If P is 40% at fault; he will recover 60% from defendant (the percentage of the Ps negligence is subtracted from the damages award; $1 mil verdict, the plaintiff gets $600,000 o If 50/50 Two approaches:  West Virginia: tie goes to defendant  Texas: tie goes to plaintiff y y y y 2. Seat Belt/ Helmet Defense(Comb. w/ comparative) o By not wearing a seatbelt/ helmet the plaintiff contributed to their injuries, this can either be:  1. Add % of comparative negligence onto Ps negligent percentage y IE plaintiff 30% at fault + 5% for not wearing seatbelt  2. A factor when considering the Ps comparative negligence  Policy: Encourages people to protect their own safety. y Sykes Case: ATV and Drunk with no helmet, knew he should wear a helmet. 3. Assumption of the Risk- Subjective Viewpoint o Expressed  Elements: y Expressly assumed the risk y There must not be a disadvantage in bargaining power y Doesn t violate public policy y Not excusing intentional harm or willful or wanton injury  Exculpatory Clauses: usually enforceable for regular negligence; (IE I excuse my stock broker [Wolf v. Ford]) y BUT CANNOT disclaim if: o gross negligence or wanton or willful injury, or intentional harm o Implied Elements: LOOK UP IN BOOK. FALL 2011 TORTS I

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y Actual knowledge of the particular risk y Appreciation of risk magnitude y Voluntarily take risk, must have a choice  Primary: assumption of risk arises when the plaintiff impliedly assumes those risks that are INHERENT in the activity y Amusement park ride: Plaintiff knew it was dangerous by watching others, the name, and the ride in and of itself was inherently risky as that was what it was designed to be. y He understood and knew the risk of the ride, therefore no duty on the part of the amusement park. y Complete Bar no duty = no negligence.  Usually Primary AOR occurs at sporting events as a spectator.  Secondary: affirmative defense to breach of duty y Arises when the plaintiff knowingly encounters a risk created by the defendant s negligence; mostly been merged into comparative negligence. y Now a limit on DAS 4. Statute s of Limitations and Repose o Both operate to bar claim after a specified period of time o Statute of Limitations:  Statute of Limitations begins when the injury should have been discovered (Nelson v. Krusen child with defect was not discovered til much later) or when cause of action is complete (Garcia v. TX Instrcarrying bottles of acid)  Policy Reasons for SoL: the claim has become stale y Loss of evidence over time; and, y The need eventually to put disputes to rest o Repose:  Usually for contractors or builders, after a certain amount of time the company cannot be accountable for negligence claims against the building  Usu. much longer than SOL, ex: construction company is only liable for any negligence within ten years of when it began building  Repose starts running when the contractor begins negligently constructing the building; NOT when accident occurs.  Policy Reasons: puts disputes to rest after a certain time; designed to place an outer limit on the responsibility of a party for a particular act.

IMMUNITY y Unlike defenses, immunity relieves liability in ALL CASES- complete defense y Immunity due to status, not fairness or justice y Spousal Immunity: o Spouses are immune from suits from each other, came from old times when property really was joint o On its way out, spouses can now sue each other y Parental Immunity: o Policy Reasons: Preservation of parental authority; breaks up harmony in the home o Has been abolished in many jurisdictions FIELD FALL 2011 TORTS I

o Immunity is retained in general for alleged acts of ordinary negligence which involve a reasonable exercise of parental authority the exercise of ordinary parental discretion with respect to provisions for the care and necessity of the child o Two approaches:  1. Any reasonable exercise of parental authority/parental discretion is immune y Policy: undue judicial interference with parental discretion  2. Reasonable Parent Standard: compare parents act to what a reasonably prudent parent would have acted in the situation (jury question) y If outside reasonable scope, then there is liability: Court found that a child born alive does have a cause of action against its mother for negligence that caused the injury when in utero. o Mother must react as others in regard to the F and use due care. Governmental Immunity 518/519 Federal Torts Claims Act Exceptions: a/b/h/i/j/k o Most government suits are not allowed because it is up to the executive function to determine what is unreasonable and what is reasonable o If the courts had this power it would not be good! o The government is also sovereign, and their authority is the source of law and rights and cannot be taken away o This does not mean immunity against persons within the government, such as someone specifically does something tortious within the government o Now there are statutes that determine the extent of government liability o Federal and state tort claims require careful reading and research by the attorney in order to determine not only the scope of the waiver and what suits are permitted, but also to learn the required procedure for making a claim against the government

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