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TORTS Short Outline Fall 2011

Table of Contents
INTENTIONAL TORTS ........................................................................................................................................ 1 DEFENSES TO INTENTIONAL TORTS ............................................................................................................ 4 NEGLIGENCE ......................................................................................................................................................... 5 DUTY (NEGLIGENCE FORMULA) .................................................................................................................... 6 BREACH and PROOF of NEGLGIENCE ....................................................................................................... 11 ACTUAL AND PROXIMATE CAUSE .............................................................................................................. 12 RESPONDEAT SUPERIOR & JOINT TORTFEASORS ............................................................................... 18 AFFIRMATIVE & LIMITED DUTIES ............................................................................................................. 19 DEFENSES TO NEGLIGENCE .......................................................................................................................... 22 STRICT LIABILITY Liability Without Showing of Fault .................................................................... 24 (STRICT) PRODUCTS LIABILITY ................................................................................................................. 26 DEFAMATION .................................................................................................................................................... 29

PRIMA FACIE CASE - Brown v. Kendall 1. Act that is voluntary 2. Intent: purpose (Ranson v. Kittner, Vosberg) or substantial certainty (Garratt) a. Subst. Certainty: (a) reasonable person test; (b) not substantially different b. Transferred Intent (Talmadge v. Smith) 3. Causation: act was substantial factor in bringing about harm. Indirect ok (Garratt) BATTERY 1. (a) bodily contact/touching that is (b) intentionally imposed upon that is (c) harmful or offensive (i.e. unconsented to) R2T 13, 18 (offensive contact) p 34 a. need not be aware (Sleeping Beauty) b. indirect contact counts (Garratt) if its an instrumentality under s control 2. Interest: complete immunity of physical person from physical interference; inviolability of body 3. Extended Liability: is on the hook for all harms causally related (Vosberg) (see prox. cause) 4. Defenses: consent (crowded world, express, implied), or self defense ASSAULT 1. (a) Apprehension (rational expectation of contact) of an (b) imminent bodily contact that is (c) intentionally imposed

TORTS Short Outline Fall 2011 a. Apprehension: must expect contact (no fear needed) (I de S et Ux) b. Iminent: must be reasonable in believing has present ability to effectuate (W. Union) i. Words Alone Dont Count ii. Words can Negate Assault (if it werent Assize Time - Tuberville v Savage) c. Bodily contact: need not be direct (Garratt) 2. Interest: being free from imminent apprehensions of unwanted physical contact. FALSE IMPRISONMENT 1. An (a) intentional act that directly or indirectly results in (b) the confinement of another and (c) the is aware of or harmed by the confinement a. Reasonable Means of Escape: not physically dangerous, no coercion (Hardy v Labelle) i. Hardy: woman never asked to leave, cop did not coerce her b. Reasonable Belief: must be reasonable in believing she cant escape c. Seizing Property: holding chattel hostage sufficient to compel confinement (Bonkowski) d. Desire to Clear Name: insufficient as compulsion (Hardy) e. Conscious / Harm: drunk Weisberg in circus cage no F.I. unless harmed or aware. 2. Interest: protects interest in freedom from unwanted physical confinement 3. Extended Liability: if results in harm, then yes. 4. Defenses: (a) consent (Hardy), (b) reasonable, temporary detention to investigate (Bonkowski) a. Must be: short no coercion reasonable b. Can be off premises (Bonkowski) (Montgomery Ward) c. : only way to prevent loss/shoplifting, too small crime, cops wont help IIED 1. Conduct that is (a) intentional and (b) extreme and outrageous that (c) causes (d) s severe emotional distress a. Intent: objective standard. Recklessness falls short of subs. certainty (Harris); there is no transferred intent (Taylor v. Vallelunga) unless is aware a familial witness is there b. Extreme/Outrageous: speech act! Only threats have succeeded. i. Threats: Siliznoff (but distantnot assault) ii. Insults: Slocum (you stink to me), Harris (stutter bully), Phelps c. Severe: "Distress so severe that no reasonable person could be expected to endure it" i. Physical Outgrowths Help: Siliznoff vomiting (hold over from old rule) 1. Harris didnt visit doctor many times, so questionable severity ii. Reasonable Person Standard: no liability for specific sensitivities Harris

TORTS Short Outline Fall 2011 iii. Toughening of Mental Hide (distrust) R2T 46 com. D: "The rough edges of our society" are still rough: thus, "plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language." Interest: Freedom from severe emotional distress, protects emotional well-being. IN PRACTICEit only means freedom from threats to bodily harm, though not imminent. Common Carriers & Burials: higher standards (insults might suffice) are held for CCs, Innkeepers, etc. can be liable for interference with burials Parasitic Damages: Pain & Suffering are more easily recovered if attached to other tort Defenses: 1st Amendment privilege (Snyder v. Phelps) a. Public v. Private Individuals (Status Distinction) not argued in Phelps b. Public v. Private Speech: (Subject Matter) we cant protect subjectively productive speech, but all speech. (Phelps) : over-deterrence: too many false claims; under-deterrence: is undercompensated TRESPASS TO LAND 1. An (a) act or omission that was (b) intended (Serota) and resulted in (c) s/t or s/o entering or remaining on land without consent. NO HARM NEEDED. (Dougherty v. Stepp) a. Act: must be voluntary (i.e. if youre forced onto land under duress, no liability) b. Intent: intent to act in a way that turns out be trespassory (Serota) (Weisberg driving over Tomatoes after Hurricane fells log) c. Enter/Remain: (a) entry onto land by s/t or s/o; (b) failure to remove object (status shift) (c) failure to leave when invitation expires (status shift) (d) particles, gasses & airspace count 2. Interest: Protects right to property, to exclude others from occupying or using property. 3. Extent of Liability: liable for all consequences (Serota) 4. Damages: Can recover for NOMINAL DAMAGES (Dougherty weeds trampled by chains) TRESPASS TO CHATTEL 1. Any (a) intentional interference with (b) someones use or possession of a chattel that is (c) harmful in some way. a. Intent: transferred intent counts and mistake no excuse (Ranson) b. Harmful: Chattel must be harmed (Szybiak no harm to dog) OR (Ranson v. Kittner) c. Harm in Recovery: person must be harmed in trying to recover chattel (finger broken while trying to recover laptop) d. Deprivation of Use: must be for a substantial period of time


3. 4. 5.


TORTS Short Outline Fall 2011 2. Interest: Protects our Possessory interests in exclusive rights to our moveable property.


GENERAL 1. Burden of Proof: if alleges a privilege, has burden of proof 2. Factual Disputes over Privileges: Jury Decides I. CONSENT 1. Express Consent: a speech act. Outward, verbal manifestation of consent. We are not mind-readers. a. Specificity: consent must be specific to intrusion (Mohr v. Williams) b. Fraud: consent induced by fraud is invalid (De May v. Roberts) 2. Implied Consent: consent can be implied provided objective manifestations a. Outward actions, taken in light of the circumstances (OBrien v. Cunard) b. Inaction: generally not considered consent except special circumstances: i. Silent Kiss on Park Bench (context) OK ii. Weisberg punching in rows NO CONSENT (probably) 1. Standing ground in Hockey Fight (not leaving) NO CONSENT (Overall v. Kadella) WE CAN HOLD OUR GROUND. Hypo. 3. Imposed Consent: Consent is imposed when are either (a) unable to consent; or (b) necessary to live our lives a. Inability to Consent [Emergency Consent]: lacks capacity to consent, law permits if: i. is incapacitated ii. Immediate Action necessary to save life or limb iii. No indication that would decline (medical bracelet saying no blood) iv. Reasonabl person wouldve consented (Mohr v. Williams) b. CROWDED WORLD: consent necessary for ordinary, customary contacts necessary to common intercourse of life. (Wallace v. Rosen) i. : Social imperatives forces implied consent upon us in circumstances where there might've been a technical battery (Wallace) 4. Informed Consent: See Med Mal. 5. Exceptions (Invalid Consent): a. Exceeding Scope: if s/o consents to an act, if exceeds scope, will be liable (Mohr) b. Athletic Consent: Athlete impliedly assents to those contacts permitted in the rules

TORTS Short Outline Fall 2011 i. EXCEEDING RULES: entitled to remedy when 's conduct exceeded bounds of rules (Hackbart v. Bengals) Illegality: (Hart v. Geysel) i. CONSENT INVALID (Majority): Tossing case out will deter others like this who might be hurt (by denying compensation). BUT it legitimizes the illegal act by allowing the law to recognize consent to something that is illegal. ii. CONSENT VALID (Minority): Not allowing consent might also deter others by showing that consent is invalid. However, this permits plaintiff (fighter) to benefit from participation in an illegal act. In Pari Delicto Fraud: if full truth isnt presented, consent is invalid (De May) i. LIMIT: fraudulent inducement is ok. Law school/Prof/Dunk Tank (102 n4) Coercion/Duress: invalid Drunk: consent can be invalid if too drunk to express rational will (103 n8)


d. e. f.

II. NECESSITY 1. Private Necessity: Excuses violations of others interests (i.e. land/chattels) to prevent harm to one's personal property is ok if is (a) exercising reasonable care and (b) theres no less harmful way. a. Indemnification: is held responsible for value of goods taken (Vincent v. Lake Eerie) b. Wrong to Interfere w/ Necessity: wrong to interfere w/ s/os exercise of necessity privilege (Ploof v. Putnam) c. : Encourage people to make economically efficient choices (boat costs more than a dock) but force reimbursement as consequence of making that value decision 2. Public Necessity: Interference with land or chattels to prevent harm to the greater community (or a person) is privileged. a. Preventing Greater Harm to Others: Vincent v. Lake Eerie recognized that no reimbursement wouldve been required if they were rescuing seamen III. RECAPTURE CHATTELS 1. General: right to recapture chattels if reasonable 2. Shoplifters: See Trespass 2 Chattels above 3. Entry onto Land: can enter land to repossess if reasonable

GENERAL 1. How 2 Start: Can prove created an unreasonable risk that resulted in s harm? Judge determines if proof sufficient. Then Jury decides reasonability. 2. Negligence Proceeds in Court: a. must make reasonable showing of s careless risk creation (Brown v. Kendall)

TORTS Short Outline Fall 2011 b. Judge: decides if s proof meets requirements (causation, duty) c. Jury: decides about reasonability of s conduct 3. Characterizing Fault: a. An ordinary, reasonable person under the circumstances would recognize that an instrument so potentially harm-causing as a water pipe would need to be installed with such a degree of care to be able to withstand numerous weather conditions, including a mere frost. 4. Prima Facie Case a. A DUTY on part of the to conform to specific standard of conduct to protect against an unreasonable risk of harm b. A BREACH by the in failing to conform to that standard of conduct c. CAUSATION: s breach is the actual and proximate cause of s inury d. HARM


PRE - BPL 1. Burden on Society: reasonable conduct that has low probability of harm should not incur liability, else burden on society too great (Lubitz v. Wells) 2. Likelihood of Harm: time, type of instrument, location all matter (Lubitz) 3. Foreseeability: always possible to do more to prevent harm (pipes bursting), but is only responsible to do what a reasonable, prudent person would have done in those circumstances (Blyth v. Birmingham) a. Pipes Bursting after Extreme Frost (Blyth) b. Grabbing Steering Wheel 2nd Time (Pipher v. Parsell) c. NO FORESEEABILITY if seizure never happened before: (Cohn v. Petty note) 4. Cost of Prevention: duty may turn on whether benefit to society is great, and how great costs of prevention are: a. Low cost of locks on RR turntable attractive nuisance: (Krayenbuhl) b. Cost of erecting strong pylons/guardrails too high (Davison v. Snohomish) BPL and BEYOND 1. Negligence Formula: IF Burden to the [AND SOCIETY] < (F)likelihood x G gravity ---> THEN THERE IS A DUTY TO NOT BE NEGLIGENT. a. Burden: of precaution: costs, responsibilities, sacrifices, not only of but also likesituated s. How our lives would have to change in the community b. Foreseeability / Likelihood that risks of harm that were created are at least SOMEWHAT foreseeable [matter of degree] c. Gravity: how serious is the potential, foreseeable harm? d. BALANCING: The higher the gravity, the lower the foreseeability needs to be, and vice versa. 2. U.S. v Carroll Towing: Bargee absent from ship for 22 hours; barge negligently tied drifts away and rams into another ship. B/c bargee was not on board, there was no assistance

TORTS Short Outline Fall 2011 when it started sinking. Held: while barge bargees prison, unreasonable to be away for 22 hours. STANDARD OF CARE 1. General: has duty to conform to a specific standard of conduct to protect against unreasonable risk of injury. Breach = failure to live up to that standard. a. Jury Q: What is the standard of care? Reasonable care under the circumstances. 2. Reasonable Person Standard: Reasonable person under like circumstances (Vaughan v. Menlove) a. OBJECTIVE STANDARD. Care to someones best judgment doesnt count. b. : to judge by subjective standard is too variable; could encourage fraud & deception; promotes due care by all; promotes RECIPROCITY and PARITY so we can predictably gauge behavior of those around us. 3. Children: judged against child of like: 1. Age, 2. intelligence, 3. Experience (maturity & training) unless they're engaging in an adult-like activity (see Robinson v. Lindsay) a. Age Standards: i. 0-6 years old irrebuttable inability to be negligent ii. 7-13 rebuttable inability to be negligent iii. 14-21 rebuttable ability to be negligent b. : we adjust standard b/c (a) kids are less sophisticated in calculating risk; and (b) we want kids to be kids c. : b/c we require a greater degree of care when adults are around kids (i.e. driving in a school zone, Adult can't blame the child for behaving in a way that is appropriate for a child but not an adult.), we similarly raise the degree of care required for children when they are undertaking adult-like activities. i. Activities Undertaken by Adults: Dellwo motorboats ii. Role of Community Customs: Purtle v. Shelton hunting not adult 4. Emergency: in the event of an unforeseen emergency not caused by , will be held to the standard of a "reasonable person under like [emergency] circumstances," with like circumstances being "emergency". a. Lower Degree of care: is not required to exercise judgment that would be expected in normal circumstances. (Cordas v. Peerless) 5. Physical and Mental Characteristics: interpreted through under the circumstances a. Permanent Disabilities: what a reasonable person with that disability would do (Robertson v. State of Louisiana) b. Temporary Disabilities: If didnt know about the disability, NOT liable, otherwise yes (Hypo: drives after taking drug that Dr. not disclose side effects)

TORTS Short Outline Fall 2011 c. Mental Disabilities: Generally no lowering of standard (Vaughan v. Menlove) unless unable to appreciate risk (Lynch v. Rosenthal: no cont.neg. for handicapped Man arm in machine) 6. Professional Standards: objective standard of an "ordinary member of the profession" of like (a) Learning (b) skill and (c) ability. a. NOT Average: Otherwise of profession would be negligent b. Subjective Experience / Training Irrelevant: what matters is the reasonable expectation of the profession (Heath v. Swift) c. Good Faith Professional Errors OK if Lawyers: (Hodges v. Carter) otherwise, liability if: i. Want of degree of knowledge & skill ordinarily possessed by similar profs. ii. Omission to use reasonable care and diligence iii. Failure to exercise in "due care" his best judgment in applying his skill 7. Custom: Custom Reasonability. Compliance with custom = evidence of LACK of negligence, but not dispositive (TJ Hooper); Departure from custom = evidence of negligence but not dispositive (Vaughan v. Menlove) a. Compliance with Custom: helps juries determine whether is negligent, but not dispositive. Still subject to reasonable standard. Trimarco v. Klein: J/. b. Custom that Lags: custom often lags behind reasonable care (TJ Hooper) c. Departure from Custom: not dispositive (Vaughan) 8. Statutory & Rule of Law Violation: Statues & judge-made rules that apply to the facts of a case can be used to show that a violation of such rules constitutes negligence. It may be (a) negligence as a matter of law, (b) a rebuttable presumption of negligence, or (c) a mere inference. a. APPLICABILITY OF STATUTE: for facts to apply, following five criteria must be met i. s conduct violated statute: 1. Osborne v. McMasters - Poison ii. is member of the class the statute is intended to protect 1. Stachniewicz v. Mar Cam. Statute = no, Regulation = yes (boisterous) 2. Chiropractor, Brown v Shyne, p 229 no licence. License statute not designed to protect people iii. the hazard that caused injury was type legislature intended to protect against 1. Ney v. Yellow Cab key statute intended to prevent thefts? 2. Gorris v. Scott - Sheep overboard no liability 3. Moore v Myers (224n8) anti-pit bull statute, girl runs away hit by car. J/

TORTS Short Outline Fall 2011 iv. It is appropriate to impose tort liability 1. Perry v. SN not appropriate if (a) theres no existing common law duty; (b) inappropriate to impose civil liability from criminal statute (crime against state v. against person) 2. Clinkscales v. Carver (213 n 1) - Statute providing for criminal liability does not automatically create a civil liability. v. Violation of statute proximately caused the injury 1. Ney v. Yellow - cabbie still had duty to prevent harm even tho thief was intervening harm b. WEIGHT OF STATUTE / RULE OF LAW i. Negligence Per Se: Helling v. Carey Glaucoma; B&OR v. Goodman (stop, look, get out, listen rule by L. Hand, overruled by Cardozo) 1. Disfavored: unrealistic & impractical, rigid when fact-dependent; jury should determine ii. Rebuttable Presumption of Negligence (MAJORITY) 1. Martin v. Herzog Buggy Driver negligent unless excused 2. Valid excuses = (a) incapacity; (b) lacks knowledge or constructive knowledge of need for compliance; (c) unable to comply even after reasonable diligence; (d) emergency; (e) compliance would cause greater risk than violation. 3. Zeni v. Anderson statute provided excuse: walking in specific spot when practicable iii. Mere Inference (MINORITY) 1. 232 n4 - mere inference that jury can use as they see fit. 9. Medical Malpractice a. BATTERY i. Violation of informed consent is battery in Pennsylvania. Intentional touching that results in a harmful or offensive contact that is unconsented to. 1. De May, Mohr v. Williams b. INFORMED CONSENT: In order for a be a Co-partner (RECIPROCITY) with the doctor in making decisions, we need to know what the risks inherent in the decisions are to be. Whether standard is the (a) MAJORITY "reasonable patient" objective standard (Canterbury v. Spence); (b) the MINORITY subjective patient standard (Scott v. Bradford); or (c) the reasonable physician standard (196 n3). i. ELEMENTS: Dr. has (a) a duty to inform patient of all material risks/ alternatives; (b) failure to disclose mustve caused injury; (c) harm 1. Canterbury v. Spence: majority approach: REASONABLE PATIENT STANDARD (what a patient would say = material) majority

TORTS Short Outline Fall 2011 2. Scott v Bradford: minority approach: SUBJECTIVE PATIENT what would THIS PATIENT want to know (in Oklahoma) 3. Causation: evaluated in same way as material risks. 4. Expert Witnesses: needed to prove material risks (maybe) 5. DEFENSE/PRIVILEGE: "where full disclosure would alarm an emotionally upset or apprehensive patient." (Scott v. Bradford) & Roman Catholic Hypo ii. Fiduciary Duty 1. a Dr. has a duty, based on what a reasonable person under the circumstances would want to know, to inform a patient of all economic, research or other interests that the Dr. might have prior to receiving consent to a given therapy. (Moore v. Univ. Calif. Selling samples of s liver for genetic research) c. NEGLIGENCE: Doctors are held to the prevailing industry custom as a standard of care (Boyce v Brown ankle), but no longer restricted to their city or region (Morrison v. MacNamara urethral smear). Moving towards a NATIONAL standard of medical care. i. TEST: Boyce v. Brown 1. Prevailing industry custom is the standard of care that must be applied 2. Negligent act must be recognized as s/t forbidden, or omission must be something that is required 3. Standard of Med. Community must be shown by Expert evidence 4. Negligence never presumed, but must be proven 5. Deviation from standard of care must be shown by Expert evidence 6. Testimnoy that another Dr. wouldve done s/t different is insufficient. ii. Expert Testimony: Expert testimony must show a deviation from the medical standard, and not what an expert personally would have done. (Boyce v. Brown) iii. Natl v Local v Similar Community: 1. Majority: "similar community" (balances need to avoid evaluating a GP in a rural area by same standards as a specialist in an urban teaching hospital; also helps plaintiff access expert testimony). 2. Minority: national (DC, Morrison) or purely local 3. : "Strict Locality Rule" is bad: discourages rural Drs. (who have nationally-certified education) from being held to the same standard as urban Drs and thus may serve to foster substandard care. Also reduces availability of Dr. Expert Witnesses. a. : if rural Docs held to natl standard, will not stay in rural areas.

TORTS Short Outline Fall 2011 iv. Negligence Per Se: rare but possible (Helling v. Carey) v. 3rd Party: May be liable to 3rd parties if harm caused by Dr's Negligence (202 n 6) (Doc polio vaccine doesnt tell parents they can contract it). d. RES IPSA LOQUITUR i. Doctors & Nurses in hospitals can be held to RIL when "acting collectively" and in a "highly integrated system of activities. (Ybarra v. Spangard) 1. Problem: unconscious, cant prove exclusive control 2. Strict Liability? Too draconian. 3. : Burden shift Drs. Have J&S Liability


Burden on : must adduce enough evidence to show (a) what happened and (b) that acted unreasonably (carrying the Brown v. Kendall burden) a. 1st: must convince judge that there is sufficient evidence to go to jury (production) b. 2nd: must convince jury that evidence weighs in her favor (burden of persuasion) c. 3rd: judge must agree with jury (no JNOV etc.) Direct Evidence 1. Always best. MIGHT bar from using other evidence (or RIL) (DISSENT in McDougald v. Perry: car cradle coming loose) Circumstantial Evidence 1. Inferences of Breach: Ripe (Goddard) vs. Blackened (Anjou) Banana Peel. a. Goodard is inadequate, where Anjou is sufficient. 2. Actual vs. Constructive knowledge: duty imposed if enough evidence to show had sufficient time to discover hazard a. Joye no proof of how long peel on floor; no constructive notice b. Ortega self service milk + unknown duration = sufficient to support inference 3. Conditions Leading to Increased Foreseeability of Harm a. Jasko/Terazzo operating methods (wax paper + tile floor + standing) such that harm is highly foreseeable b. H.E. Butt/Grapes insufficient evidence b/c took precautions 4. ? (A move away from Brown v. Kendall)? - What links Banana Cases to Res Ipsa Loq.df d. Forcing Mouth of Open: Ortega Employer has greater knowledge i. Anti-Burden Shift: Forcing s to prove no negligence (244n2) upsets Brown v. Kendall balance.


TORTS Short Outline Fall 2011 Res Ipsa Loquitur: creates a strong inference of negligence, but in most cases it does not necessarily result in a directed verdict for . (Sullivan v. Crabtree Truck Brake Failure). Nevertheless, burden shifts to to prove absence or rebut. makes out a P.F. Case!!! 1. ELEMENTS a. Instrumentality under Exclusive Ctrl of b. Inference of Negligence: injury doesnt normally happen w/o negligence i. Expert Testimony: helps determine if these things normally happen without negligene 1. R2T 328 comm. D makes distinction between "Normal Accidents" and "Abnormal Accidents" (McDougald tire hitting windshield) 2. Normal: happens in ordinary course of things 3. Abnormal: negligence is likely 2. THREE OPTIONS a. Rebuttable presumption of negligence (Byrne v. Boadle, Ybarra) b. Inference of negligence. (Sullivan v. Crabtree truck loses control, bad breaks?) c. RIL Negligence as a matter of law (Trains colliding on the same track - 266 n3) d. Drug Seeking Elderly Consuming Diabetes Drugs (266 n2): depends on what information can be provided: 3. BURDEN SHIFTING a. Byrne v. Boadle when no evidence of the manner in which the was negligent (i.e. how was negligent), but there is an inference that the injury would not have occurred without some negligence, the BURDEN SHIFTS to the to prove absence of negligence. 4. APPROPRIATE WHEN AFFIRMATIVE EVIDENCE OF NEGLIGENCE AVAILABLE? a. Dissent in McDougald theres affirmative evidence of negligence 5. RIL FAILURE a. Larson v. St. Francis Hotel couch not under exclusive contrl of 6. HIGHLY INTEGRATED ACTIVITIES / ACTING IN COLLECTIVE a. Ybarra v. Spangard burden shift to help unconscious P 7. INDEPENDENT ACTION a. Wauwatosa Turkey Salad 9 moms, 9 turkeys, no collective action. 8. ACTING IN CONCERT a. Bierczynski v. Rogers NOTE: 2 drag racers. 1 person crashes into . When 2 or more individuals are wrongdoers acting in concert and their actions injure a third party, all may be liable for concurrent negligence. 9. CHINA RULE a. All in building Liable for injuries unless they can prove they are not at home when injury happened. Rebuttable presumption + joint & several liability.




TORTS Short Outline Fall 2011 1. But For Test: For to be liable for negligence, the must establish that but for the 's fault-laden risk-creation the , more probably than not (50% +1) would not have been injured. a. Perkins v. Texas RR: fails but-for test despite s negligent speed b/c couldnt prove that the car wouldve crossed the tracks had the train not been speeding b. Lifesaver Hypo: no liability b/c no causal linkage man disappears below surface and never comes up for air, thus boat not liable for negligently failing to have lifesaver 2. Proof of Causation (50%+1) a. Inference from Multiple Factors: Reynolds v. Texas Pac.Ry.Co: narrow, dark stairs + no handrail + yelling + rushing = sufficient inference that s negligence caused injury. i. SPECULATIVE ALTERANTIVES cannot defeat this proof. b. Mere Possibility Probability: i. Gentry v. Douglas Ranch - the chance that the man stepped on poorly maintained stairs insufficient proof to prove caused gun to discharge. As matter of law ii. Kramer Service v. Wilkins - cancer from falling glass. Best can do is 1:100 chance < 50% chance. Possibility Probability. 3. Substantial Factor: a. Concurrent But For Causes: Hill v. Edmond Truck + bad driving = both liable b. Combined Indep Causes: Anderson v. Minneapolis RR: each fire is independently capable of causing injury when combine, both are J&S liable 4. Proof Issues & Alternative Liability a. Single Cause, Concurrent Actors: Summers v. Tice: 2 shooters, 1 bullet, 1 injury Burden Shift to s to prove which one wasnt liable. J&S liability. i. : this burden shift is ok b/c (a) both shooters are careless, and (b) wrong to deny injury to (fairness) 5. Industry Wide Liability a. Joint Control of the Risk: Hall v. Dupont blasting cap manufacturers acted in concert, delegated some aspects to industry association 6. Market Share Liability a. RULE: despite the fact that cant identify either the specific or probable cause of her injuryas long as she can join a "substantial share" of the market that created the harmful product, manufacturer may be liable for its percentage of the DES market at the time of the 's exposure. Thus, each defendant pays each plaintiff the damages its culpable conduct has inflicted proportional to its share of the market. (depending on jurisdiction). (Sindell v. Abbott Labs) i. Distinctions from RIL & Industry Wide: no exclusive control and no collective action ii. California: Joint & Several; Must have "substantial Share" of market


TORTS Short Outline Fall 2011 iii. NY: No Joint & Several - just Several (responsible for their "share" of the national market) iv. Minority: explicitly don't follow Sindell, requiring to show proof of cause v. - Friendly Deviations: 's cannot exculpate themselves; 1 can join others; must prove their own market share (not ); Joint & Several vi. - Friendly Deviations: 1 can join others not named; may not get 100% if some 's can prove innocence; no joint & several, just several. nd b. 2 Generation DES: NY doesnt support 2nd gen DES cases Proximate Cause issue. (Enright v. Eli Lily) PROXIMATE CAUSE 1. General: Proximate or legal cause adds to the requirement that the s culpable conduct be the actual, but-for cause of the plaintiff's injury and will preclude recovery when the causal relationship between the defendant's conduct and the plaintiff's injury does not justify imposing tort liability on . Proximate Cause = "Scope of Liability" 2. Remoteness: sometimes liability limited by remoteness of negligence to harm a. Temporal (Time), Spatial (Ryan) and Interventions of others (Ryan, human/nonhuman) 3. EX POST Direct & Natural Causation: Limitations based on Remoteness a. Spatial Remoteness + Intervening Causes: Ryan v. NY RR: fire-starter only liable for immediate consequences (1st adjacent house). Law limits liability b/c of spatial remoteness (distance) and b/c of wind/fire/water (intervening natural causes) i. Kansas: liability far stronger where crops are at stake vs. NY ii. Insurance: holding liable would make them insurers and s need to be incentivized to insure themselves. b. Direct & Natural (Unbroken Seqence): In re Polemis: liable for consequences that are directly traceable back to original harm-causing injury (some harm was foreseeable, thats all that mattered). i. Andrews Dissent: once there is an act of negligence to SOMEONE -- then as long as there is a direct causal link ("Direct & natural") that is unbroken by remoteness (Unbroken, Natural Sequence) -- there is liability 4. EX ANTE Foreseeability Test: limitation based on foreseeability of: a. Plaintiff: If 's risk creation does not create a foreseeable risk of injury to the P or class of Ps, then no liability. i. Palsgraf: RR owed duty not to avoid foreseeable risk to her; this act did not create a foreseeable risk of injury to her. ThusNO DUTY. ii. Shrimp 1: Woman fed bad shrimp, pukes. 2 slips on vomit. No duty to 2

TORTS Short Outline Fall 2011 b. Type of Harm / Scope of Risk: If the type of damage is not foreseeable within the scope of 's risk creation (environmental damage is foreseeable, but exploding oil is not), the 's liability may be limited. i. Statutory Violations: think of cows on ship w/o pens. Scope of the Risk ii. WM 1: Liability must be proportional to the risk created. Accountability must be for the "probable" consequences of an act, not the remotely foreseeable ones. Slight foreseeability = no foreseeability. iii. Shrimp 2: Woman slips on her own vomit. Unforeseeable type of harm. c. Extent of Harm: is liable for the full Extent of the harm (Bartolone, Polemis) even if unforeseeable, provided the harm is the direct consequence (Polemis) of 's negligence. i. Bartolone: Extent of liability based on s subjective issues. d. Manner of Harm: Unforeseeable manner of harm will not limit liability, if the plaintiff is foreseeable as is the general "type" of harm envisioned by the negligent risk-creation. i. Why? we don't care how the negligent act (the instrumentality that ultimately creates the harm) finally accomplishes its negligent end. ii. Train Hypo: Train conductor drives too fast on a track where he knows/should know there are passengers that cross. In screeching to a halt, it backs up along the track and hits the very same class of people that the "negligent" prevention was trying to protect. 5. Intervening & Superseding Causes a. GENERAL: is liable for the negligent acts of 3rd persons where the negligence was a foreseeable risk created by the s conduct, unless the 3rd person's act as too remote. b. BURDEN OF PROOF: rests with to prove intervening actor = superseding c. TWO METHODS OF ANALYSIS: mirror Prox Cause. i. Foreseeability: Q of fact for jury 1. if "highly extraordinary" (R2T 435) no negligence as matter of law. ii. Causally Independent/Remote: (Direct & Natural) model d. FORESEEABILITY i. NO LIABILITY for Highly unforeseeable act: Yun v. Ford: unforeseeable that person would unreasonably run across 4 lanes of highway. Matter of law. 1. Dissent: best to let comparative negligence settle the score ii. LIABILITY for foreseeable acts: Felix v. Deridarian: car crash was foreseeable, site mgr. shouldve erected barriers & moved boiling liquid to other place, even though epileptic driver was cause of harm. e. CAUSAL INDEPENDENCE i. Intentional Intervening Acts: Duerr: if lit match intentionally, is superseding cause b/c although act couldve been avoided, it wasnt


TORTS Short Outline Fall 2011 1. Yun v. Ford: daughters negligence in failing to get cradle repaired quieted earlier negligence by installer/manufacturer f. ACTS OF GOD i. Can analyze this under foreseeability model -- i.e. Blyth or Amory v. Golden. g. CRIMINAL ACTS i. R3T 34 - General rule "intervening acts that are unforeseeable, unusual or highly culpable may be outside the "scope of the risk". I.e. if it's a criminal act, it's more likely to be seen as unforeseeable. But cf. Ney v. Yellow Cab h. SOCIAL HOST LIABILITY i. Liability if: 1. knows the individual is intoxicated, (virtual scienter) 2. knows the individual is going to drive, and 3. continues to serve alcohol.... ii. Kelley v. Gwinnel: [NJ] it is reasonably foreseeable that s/o might be injured if host knows driver is drunk and going to drive; thus host should not be exempted from liability as a matter of law. iii. : (a) Hard for hosts to assess drunkenness (not their job) (b) Host can't exercise complete dominion over the alcohol like a bar (c) Not clear what responsibilities are imposed on host if drunkard won't stop, and (d) NO COST SPREADING.b/c social hosts don't get insurance for this type of stuff. iv. Majority: no liability for social hosts, unless guest is a minor, despite high degree of foreseeability. SUICIDE i. Fuller v. Price: Because 's suicide is "no longer a voluntary act" it is NOT a superseding cause and is still liable for the car crash that caused his mental damages leading to his suicide. ii. Liability if: succumbs to an "irresistible impulse" but not if can control


6. Particularized Foreseeability a. Standard of Foreseeability based on: i. 's particular knowledge or "special reason to know" that s/t is a risk (more than constructive knowledge) ii. The risk is posed to a particular or identifiable class of plaintiffs iii. The would suffer a particular type of harm b. J.S. v. R.T.H.: Wife's particularized foreseeability is sufficient to support that her omission was a proximate cause of the injuries of the girls. c. : Want to avoid imposing broad duty (unfair, contra. stable marriage value) while protecting society from threats of harm. 7. Policy Considerations

TORTS Short Outline Fall 2011 a. Proximate Cause as Liability Limiting Doctrine: Determines, somewhat arbitrarily, when the line should be drawn determining when a negligent actor should or should not be held responsible for harm. This includes issues such as: i. judicial stability / predictability ii. fairness b. Role of Judge and Jury: The above cases are all decided as a matter of law (with the exception of Andrews in Palsgraf). One consideration is whether these causation determinations should go to the jury--who can also decide on issues of proximate cause i. Thus - Questions of proportionality, culpability, and common sense can be used to determine the final outcome. c. Insurance: Proximate Cause STABILITY is necessary to predictability of insurance rates. 8. R2K 433-45 a. The Restatement utilizes the substantial factor requirement to encompass both actual cause-in-fact and causation in the popular sense, in which there always lurks the b. idea of responsibility. c. Combines both ex post and ex ante approaches. NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS 1. Independent Duty a. Direct Impact: Horse Poop Case, Victorian RW Commissioners v Coultas: must be physical contact to for NIED recovery (or parasitic NIED Pain & Suffering damages) 2. Bystander & Derivative Actions [Fear of Harm 2 Oneself or Another] a. Physical Sequelli Test: Majority must prove (a) objective physical injury; (b) resulting from severe emotional distress that is (c) proximately caused (ex post/ante) i. Daley v. LaCroix [-friendly] [skepticism remains in majority jurisdictions] woman wins b/c suffered verifiable injury / headaches. ii. Molien (476n2) Direct Victim. Man recovers when Dr. negligently diagnoses wife with syphilis b. Zone of Danger: Majority no recovery unless possible risk of injury to i. Anaya (Cited in Thing) [-friendly] [arbitrary limits to 's recovery: majority] c. Dillon Rule [Minority]: [ friendly-er ]


TORTS Short Outline Fall 2011 i. the higher the "foreseeability" by that hurting s/o will result in NIED to s/o else, the greater the change for recovery. Depends on 3 factors: 1. Proximity (near the scene) 2. "sensory and contemporaneous observation" 3. 3Closeness of Relationship to d. Thing v La Chusa Rule: Constricted Dillon Rule [-friendly] i. Constricted Dillon Rule: foreseeability requirement constrained by 4 requirements: 1. is closely related to the victim of the injury (Family only) 2. is present at the time of AND is aware of injury-producing event and the fact that event is causing injury. 3. suffers serious emotional distress 4. the emotional distress is a proximate cause of the harm. 3. Wrongful Death, Birth, Life a. Wrongful Death Decedents i. Statutory COA. But must be decedent. (Endresz) NY Mom can sue for physical injury of miscarriage and NIED but no action for Wrongful Death. ii. Majority: can recover for miscarriage caused by s negligence b. Wrongful Birth Parents i. Parent's claim damages due to the negligently caused birth of an unhealthy child. (Berman v. Allen) Parents can recover for emotional distress of wrongful birth + special damages but no NIED for child because a "life with serious defects is more valuable than non-existence" ii. Pre Roe: Policy issue. No Proximate Cause b/c birth illegal. Gleitman c. Wrongful Life Child i. Infant plaintiff who likely would've been terminated but for the Dr's negligence may recover special damages for the extraordinary medical expenses he will incur, but may not recover general damages for emotional distress or for an impaired childhood. (Procanik)


RESPONDEAT SUPERIOR 1. Employers: -employer may be responsible for negligent and possibly intentional torts of employees as long as act w/in scope of employment. a. TEST: (a) Doesnt work on his own time (b) doesnt work in his own way (c) is under direction from employer (Murrel v. Goertz Newspaper IC slapping woman)

TORTS Short Outline Fall 2011 2. Indep. Contractors: No liabilyt for indep. Contractors (murrel v. Goertz). Same test. Also (Rylands v. Fletcher) i. Policy: Risk is allocated to contractor as responsible for his own enterprise. JOINT & SEVERAL LIABILITY 1. Sindell: J&S = all liable for 100% of the injuries collectively; whoever is solvent pays 100% and then sues the remaining s. 2. Hill v. Edmunds: Both parties 100% responsible 3. DES Offshoots: Several liability = only pay what % is allocated to you in court.


AFFIRATIVE DUTIES by ACTS or OMMISSIONS 1. No Duty to Rescue a. Cardozos Misgivings: " A rule so divorced from morals was sure to breed misgivings." b. Yania v. Bigan: Goading s/o to jump into a quarry, even though person was a licensee, not liable. 2. No Duty to Regulate Conduct: a. Hegel v. Langsam No duty on part of the university to regulate conduct of (even though she ended up getting into heaps of trouble. Not liable for omission to act. 3. Starts an Undertaking a. Voluntary Undertaking that is Relied On DUTY! i. 438 n. 11 and 13: Marsalis v LaSalle - Voluntary promise to keep a cat indoorsbut it escapes. Creates a quasi-contractual situation that is dealt with in TORT LAW. ii. Crossing Guard HYPO: on the hook if mom knows he's always there and relies on him; not on the hook if mom never knew he was there 4. Innocently Caused some Harm or Risk a. 437 n 8 - Innocent Injury by Defendant: man runs over cow. DUTY to move cow or alert drivers to its presence in the road 5. Has Special Relationship with Victim or Perpetrator a. Tarasoff: Psychologist who knows or should've known of a 3rd party patient's intent to injure a specific individual has a duty to warn the foreseeable victim in breach of 's patient/Dr confidentiality expectations. Policy: confidentiality over safety? 6. Has Power of Control over 3rd Party Harm Causer a. J.S. v. R.T.H.: affirmative duty can be imposed if has a special relationship to the harm-creator that enables them to exercise some control over them-->failure to do so = breach of such a duty. b. Barmore IF father had known, wouldve had duty to warn/prevent harm. c. Kelly v Gwinnel: social host can control drunk driver (ish)

TORTS Short Outline Fall 2011 7. Has Power over Instrumentality of Harm a. L.S. Ayres Finger in Escalator: Both an injury resulting from 's use of [a] an instrumentality under the control of the , such as an escalator, [b] as well as being an invitee, can give rise to a legal duty to render such aid as may be necessary to save life or prevent serious aggravation of injuries. 8. Rescue Doctrine a. Rescue is Always Foreseeable Result of Negligent Risk Creation i. Elements (McCoy v. Suzuki) 1. must be negligent to person rescued and such negligence caused the appearance of peril 2. Peril or appearance of peril was imminent 3. Reasonable person would've concluded that peril existed 4. Rescuer acted with reasonable care in carrying out the rescue ii. Wagner v. Int'l RW : Danger invites Rescue Cardozo OWNERS & OCCUPIERS 1. Trespassers: enter or remain on land without permission of owner. a. Discovered Trespassers: Duties Owed: (a) to abstain from willful or wanton misconduct; (b) to refrain from entrapment (bear trap hypo) b. Undiscovered Trespassers: Duty: (a) to exercise reasonable care to avoid injuring them (Sheehan v. St. Paul RR Foot caught) (b) i.e. exercise ordinary care if you see them heading towards injury (warning) (c) no willful/wanton injury i. HYPO: bear trap. Trespasser walking towards it. DUTY to use care to stop him. c. UK Common Humanity: new duty to use common humanity. Hard to manage. d. Exceptions: i. FREQUENT Trespassers: a well defined path: has duty to anticipate trespassers and use reasonable care in their protection ii. TOLERATED Intruders: Hines v. RR 's continued toleration amounts to "permission" to use land---turning into a quasi-licensee. iii. ATTRACTIVE Nuisance: Krayenbuhl: duty if (a) kids nearby / likely 2 trespass, (b) there is risk of injury; (c) kids wont realize risk; (d) burden of eliminating is slight compared to risk of harm. 2. Licensees: Advantage = value neutral. S/o who enters land by permission and for their own purposes. Companionship, entertainment, or diversion). a. DUTY OWED: i. Duty to Warn of KNOWN Hidden Latent (Passive) Dangers (Majority) Minority = no duty (California pre Rowland). Turns on whether has actua knowledge of Latent Danger.


TORTS Short Outline Fall 2011 1. Barmore v. Elmore: duty voided b/c 10 years had passed since last "incident"; thus could not have had active knowledge and thus no duty to warn. Latent harms = cracked handle, crazy son 2. HOWEVER: R2T 342 uses a "reason to know" standard that is far more liberal than the actual knowledge test. Might've made Barmore reverse. ii. Duty of no Willful or Wanton Conduct Producing an Injury iii. Duty of Ordinary Care for "ACTIVE" Harms 1. IF engages in negligent "active" behavior on his landthe rules of owners & occupiers do not protect b. PERMISSION: Status Changes if licensee goes outside of space permitted by scope of permission. (Temporal, Spatial, Purpose) i. Spatial: Old Eli outside area of permission when peeing. ii. Time: stays too long. iii. Purpose changes: Whelan v. Van Natta: man getting box for kid after buying cigarettes changes from invitee to licensee, when the "purpose for which the land is held open" changes. c. Own Purposes: advantage is value-neutral (i.e. neither benefit nor detriment to either party) (Barmore, masonic lodge) d. TYPES of Licensees: i. Bare PIRG/ Canvasser ii. Ordinary social guest (higher duty) 3. Invitees: Benefit to . Enters by permission for land-owners purposes a. DUTIES OWED: i. Reasonable Care under the Circumstances (Ordinary negligence standard) 1. May be actual or constructive knowledge 2. Duty to keep the premises safe (inspect) 3. Duty extends to "improving" the land if needed 4. Rowland: duty to exercise "reasonable care" breached when woman went to bathroom although knew the handle on the sink was cracked. Campbell v. Weathers: man in cigar shop; toilet might've been outside of space but here was treated as public b.c. it induced buyers to come in and was treated as such by employees and customers

4. Rowlands Dissolution of Categories a. DUTIES OWED: normal negligence standard. Ordinary care under the circumstances b. CONTROVERSY: protects trespassers


TORTS Short Outline Fall 2011 c. Rowland might be more palatable when looked at more narrowly, that there is only a duty when (A) knows that there's an unreasonable risk of harmAND (B) is aware that a person on the premises is about to come in contact with it. d. 2 CATEGORY MERGER: Just merging licensees & invitees e. : Rules are arbitrary and unjust; Distinctions are indeterminate between categories (status changes as an example); It might be far more foreseeable that harm will come to a licensee than an invitee, but licensees might be barred

CONTRIBUTORY NEGLIGENCE 1. Rule: If you negligently contribute to your injury in any way, you cannot recover. (Butterfield v Forrester) 2. Purpose: a. Penal: denied recovery as punishment for his own negligence b. Incentives: we want the and the to both exercise due care. c. Clean Hands: should come into court with "clean hands" (like K law) d. Proximate Cause is Hard to Pin Down: Intervening causes prox c. more remote e. : corrective justice ('s negligence stops 's negligence) 3. Jury Comp Neg: Precursor to contributory negligence damage award left to jury 4. Burden of Proof: must make out P.F. case for s negligence 5. Ways Courts Mitigated Harshness: 1. Last Clear Chance; 2. Allowing Jury to Decide (helped if was just "a little" negligence); 3. Shifting Burden of Proof to the LAST CLEAR CHANCE 1. Rule: if the had the opportunity to avoid the accident after the opportunity was no longer available to the , the is the one who should bear the loss. (Davies v. Mann Poor Donkey!) 2. Purpose: way to mitigate harshness of Contrib. Neg. COMPARATIVE & MODIFIED COMPARATIVE NEGLIGENCE 1. Rule: Comparative Neg. reduces the s recovery by the percentage of responsibility for the injury attributable to the plaintiff. 2. Origins: Admiralty Law & Louisiana Civil Law (Carroll Towing) 3. Four Different Regimes: a. Pure- 12 Jurisdictions [Very friendly] b. Modified: 50% or less - 20 Jurisdictions [ Friendly] -- Remnants of "punition" c. Modified: 49% or less - 12 Jurisdictions ["Fault"] + TN + keeps "fault" but reduces harshness i. McIntyre v. Balentine, TN: Drunk Truck Drivers on Rd- Transition to Comparative Negligence TN 49%. ALSO no J&S Liability. d. Slight Comp Neg - 1 Jurisdiction [Retains "Fault" and -favorable] 4. Informing Jury: most courts inform jury of consequences of a split result

TORTS Short Outline Fall 2011 5. Joint & Several Liability: apportionment of fault is akin to apportionment of damages. Would be inconsistent (unjust) for each to be fully liable after allocating only a portion of the fault to him/her. (McIntyre) a. Jurisdiction Split: Some say no J&S, others say J&S stands ASSUMPTION OF RISK 1. Elements: a. Actual Knowledge (not constructive knowledge) b. Appreciates Magnitude (Scope) of Risk c. Voluntarily encountered (Rush v. Commercial not forced to find other bathroom) 2. Express: explicitly stated. (Seigneur) a. Consent must be validly and voluntarily acquired b. Exceptions: (a) cant contravene public policy (unequal bargain power) (Seigneur) (b) doesnt exculpate willful/wanton/gross negligence; (c) cant be an activity of public interest c. Scope of Consent = specific to activity (woman on big motorbike) 3. Implied Old (Rush v. Commercial) 4. Implied Primary, Post Blackburn a. NO DUTY: didn't act negligently (Steeplechase) (Baseball game w/ seats) (Train) b. Dangerous Jobs: fall into hole of reasonable AOR 5. Implied Secondary: owes duty of care (and has acted negligently), but encounters risk anyway. 6. Implied - Secondary - Reasonable a. was negligent; not neg [Rescue Doctrine / Rush ] 7. Implied - Secondary - Unreasonable a. was negligent; also careless [Comp. Neg. Reigns / Blackburn hat hypo] 8. Blackburn Merger in COMPARATIVE NEGLIGENCE (adopted by R3T) a. Implied - Secondary - Uneasonable Comparative negligence analysis. b. Implied - Secondary - Reasonable AOR Defense Abolished: treated within general doctrine of "negligence". Because is not negligent, can recover even if risk was assumed. Why? Because assumed reasonably. 9. : Blackburn analysis too simplistic. Many jobs are dangerous and reasonable, yet AOR will still serve as complete defense. 10. Seatbelt / Helmet Defense: duty to mitigate (like K law). Courts wont impose ex ante precaution requirements on their own, but legislatures do. STATUTES OF LIMITATION & REPOSE 1. Statute of Limitation: Limits the time during which a cause of action can be Brought. 2. Statute of Repose: Limits potential liability by limiting time during which a COA can arise.

TORTS Short Outline Fall 2011 3. Purpose? (A) Evidentiary challenges (Holocaust); (B) Intervening Causes; (C) Quiet wrongs incentive to act in a timely fashion 4. Accrual: a. Majority: Starts when plaintiff becomes "aware"; or when "actual injury" occurs. (in Teeters, when woman got pregnant = injury). Tempered by constructive notice b. Minority: When negligent act occurs 5. Equitable Tolling: Minors and FRAUD/CONCEALMENT: Statutes tolled 6. Time of Discovery Rule: helps ameliorate/ mitigate harshness of statutes.

STRICT LIABILITY Liability Without Showing of Fault

GENERAL 1. Defined: Plaintiff is able to proceed in holding liable for harms in court even though cannot prove the was negligent 2. Focus on the THING: Inevitability of Harm ("ultra hazardous") - R1K and Rylands 1 3. Focus on the PLACE: Thing out of Place (abnormally dangerous) - R2K 520 and Rylands 2 4. Strict vs. Absolute: a. Strict: defenses are possible, liability is not complete, there are s/t outside of 's control b. Absolute: is insurer against all, no matter what ANIMALS 1. Farm Animals: Owners responsible for their animals. Not for wild naturally occurring ones a. COMMON LAW SL: SL for all damage resulting from keeping animals. (UK rule) i. Inability to control animal. Inevitability of harm. b. EXCEPTIONS: Dogs (community standard); Cattle 2 Market; American West (Pastoral customs) c. FENCING OUT: Liable if your animal breaks through s/os fence d. FENCING IN: Liable if your animal escapes YOUR fence and does harm. e. NEGLIGENCE: Negligently maintained your fence. 2. Wild Animal Possession a. Common Law Rules: i. Wild Animal: SL if injury to anyone ii. Domestic Animals: SL only if knows or reason to know dangerous. SCIENTER. 3. Domestic Animals a. U.S. Law: Scienter: If knows or has reason to know of this SPECIFIC animal's dangerous propensities - STRICT LIABILITY i. Often becomes a Q of Fact for jury as tries to prove SCIENTER.


TORTS Short Outline Fall 2011 b. R2T 23 Test: Whether the animal has a "dangerous propensity/tendencies abnormal to the animal's class/category" c. Warnings: may excuse owner, unless waived or not sufficient. ABNORMALLY DANGEROUS ACTIVITIES 1. Rylands 1 Blackburn: Anything that might do mischief. Inevitability of harm 2. Rylands 2 - House of Lords: "non-natural" activity (or use of land) only (elements D+E of R2K 520) a. Lords Rule: Non-Natural Use (Thing out of Place): If landowner carries out anything that would be considered a NON-NATURAL USE [i.e. place/action division] of the land, and the ACTION is NOT NATURALLY OCCURRING the will be held strictly liable b. Cyanamid: Living near Railway: also a non-natural use of landwhere dangerous! c. Forster v. Preston. Mink farming is non-natural use. Helps in defense. 3. R2K 520 and Balloons: a. 7 Factor R2T 520 Test: i. (a) High Degree of Risk: of risk of harm to person, land or chattel ii. (b) Likelihood & Magnitude of Harm: likelihood that harm will be great iii. (c) **No Control: inability to eliminate Risk by exercise of reasonable care iv. (d) Not Common: extent that activity is not a matter of common usage v. (e) Thing out of Place: Inappropriateness of activity to place carried out vi. (f) Community: extent to which activity's value to the COMMUNITY is outweighed by its dangerous attributes b. Guille v. Swan: strictly liable for balloon in garden, people came to rescue & trampled vegetables. Although risk of harm great, probability high clincher was inability to control it. Could not be prevented by exercise of due care. +++ "C" in R2K 4. Community & Control: a. Miller v. Civil Construction Guns inherently dangerous, too! But able to control them. 5. Can Risk be Eliminated with Due Care? a. American Cyanamid: activity = shipping. Risk can be eliminated with due care. b. Over Deterrence: risk that SL will over-deter valuable activities 6. What is the risk of Overdeterrence? a. Siegler v. Kuhlman (cited in Cyanamid): now trucks shipping gas in WA are subject to SL DEFENSES / LIMITATIONS 1. Plaintiff Assumes Control: Foster v. Preston knew blasting coming -- leveling of playing field, Cyanamid 2. Scope of Risk Foster v. Preston Minks + Reciprocity (minks also abnormal)

TORTS Short Outline Fall 2011 3. Acts of 3rd Parties Watson v. Kentucky RR (Duerr) -- think back to Negligence 4. Acts of God Golden v. Amory 5. Cont. / Comp Neg / AOR: Sandy v. Bushy -- COLT ATTACK! a. Sandy Rule: No Comp Neg. unless voluntarily & unnecessarily getting in harms way b. MAJORITY: Comp. Neg permitted. Why? because why should we permit contributory negligence as a defense when the defendant has in-fact been at fault.and then NOT permit the defense when the defendant isn't at fault? c. Minority: No comparative negligence: Why? Apples to oranges d. 6. Statues Saying OK! 743 n 5 Excuses s/t that would otherwise have SL apply


DEVELOPING THEORIES 1. Negligence: difficult for to prove. Manufacturing flaw, inspection, design, warn, quality a. MacPherson v Buick: PRIVITY gone, once prevented recovery, now no longer. Negligently manufactured wheel. can recover. 2. Warranty: hybrid tort/K combo. Breach of warranty is absolute liability. a. Express Warranty: Baxter v Ford: Tort remedy for glass in eye even w/o proof of neg. b. Implied Warranty: Henningsen v. Bloomfield once put into S.O.C. implied warranty that product is fit for consumer use. 3. Strict Liability a. Disappearance of Warranties, Privity, Negligence: Greenman v. Yuba. i. To Hold MANUF Liable, P need only prove: 1. Manuf. Knows object will be used w/o inspection 2. Object has defects 3. Cause injury to person ii. : Too hard for to prove negligence. Easing burden of proof for PRIMA FACIE CASE 1. Defect: must prove product was defective. (Greenman) a. MANUFACTURING: deviated from intended design b. DESIGN: No RAD Risk/Utility, RAD+Risk Utility, Consumer Expectations or Negligence c. FAILURE TO WARN: (a) risks known/knowable (b) risks presented substantial dangers (c) ordinary consumer wouldnt recognize the risk; (d) warning was inadequate; (e) product used in intended way 2. Control: defect existed when product left factory 3. Cause: direct & proximate cause 4. Business Seller: not a casual seller.

TORTS Short Outline Fall 2011 Note: identifying defect is sufficient for s case to proceed. No need to show negligence. MANUFACTURING DEFECTS 1. Defined: when the product departs from intended design even though all possible care was exercised in the preparation and marketing of the product a. Rix v General Motors-Truck was bad when came off assembly line (hose) i. Design defect also alleged: too heavy, shouldve had backup system b. Cronin: Bread truck hasp was manufactured poorly. i. Proof? Product was defective (deviated from intended design) c. NO NEGLIGENCE probably no jurisdiction uses neg. standard for manuf. defect DESIGN DEFECTS 1. Defined: exists when a defect is inherent in the design of the product itself. a. s success wipes out Product Line: If a design defect challenge succeeds, the manufacturer cannot continue to sell the product 2. Risk Utility Test: product is defective if, on balance, the benefits of the challenged design outweigh the risk of danger inherent in the current design. 7-point test. a. Majority -friendly: require to present R.A.D. b. Minority -friendly: do not require to present R.A.D. NJ Obrien, CA c. OBrien v. Muskin: did not have to show R.A.D. to slippery pool. 3. Consumer Expectations Test (minority test): product is defective if it fails to live up to an ordinary consumers expectations of the products safety when used in an intended or reasonably foreseeable manner. a. Barker v. Lull: forklift case. can choose whether to use this or R.A.D. 4. Negligence Test: Michigan Very friendly a. Prentis v. Yale: forklift Any design defect is a failure to exercise reasonable care in adoption of a safe plan or design. 5. Drugs: Utility is high so SL often not applied to pharmaceuticals in design cases. 6. Unavoidably Unsafe: incapable of being made safer than it is. Not an automatic free pass but helps in the Risk/Utility analysis to tip product in favor of the . Major Diff. btw. Neg & SPL: (A) Focus on Product v. Manufacturer; (B) Burden of Proof on much higher in Negligence (must prove RAD and more). WARNING DEFECT: FAILURE TO WARN 1. Defined: products that carry inherent, non-obvious dangers which could be mitigated through adequate warnings to the user. 2. Elements: a. Potential risks were known or knowable with SOTA knowledge at that time b. Ordinary consumers would not expect those risks

TORTS Short Outline Fall 2011 c. Manuf. Failed to provide adequate warning of risks d. Product used in a proper or reasonably foreseeable way e. Lack of warnings: caused harm Friendly (minority): knowledge of defect is imputed to even if SOTA didnt permit knowledge at time a. OBrien NJ knowledge of defect imputed to manufacturer at time of production Friendly (Majority): not liable for problems not knowable by SOTA at the time of manufacture a. Anderson v Owens Corning Fiberglass Corp-CA (cancer from asbestos) must prove that the did not adequately warn of a particular risk that was known or knowable in light of the scientific knowledge of the time. Adequacy of Warning: may be a jury Q whether was specific or adequately placed a. Pilot Light note: Man uses adhesive that warns not to use near open flame. Pilot light ignites it. Sues. Court says: jury question whether the warning was specific enough! b. OBrien: small warning insufficient on side of pool Allergies: cost/benefit test. Must be either (a) high risk to small %, or (b) large enough % of users to worry about. Open Obvious Dangers: no duty to warn




6. 7.

DEFENSES 1. Assumption of Risk / Comp Negligence: s misuse (unforeseeable misuse), failure to read may help the , but often requires a high standard a. CN APPLICABLE: easy for jury to weigh comparative fault b. CN INAPPLICABLE: undermines theory of SPL comparing fault to SL doesnt work (see Sandy v. Bushy in SL regime) c. AOR Too Friendly? d. AOR May Dissolve when COMP NEG USED: i. Daly v. GM: CA Car accident / door latch / drunk. Comp Neg adopted, but in doing so, CA abolishes AOR and replaces with % fault allocation. 1. More Equitable to All! (including Manufacturer) 2. Misuse: if s use is unreasonable and unforeseeable, can use as defense a. Ford Motor v. Matthews (Tractor), MI: s foreseeable misuse of a product will not exempt a product manufacturer from liability if the product is in fact defective, particularly if 's misuse arises in reliance on a specific safety mechanism that is allegedly defective; however, manuf. may not be liable for unreasonable misuse. b. Using Chainsaw to cut Toenails 3. Open & Obvious Danger: danger may be so obvious that theres no need to WARN. PROOF

TORTS Short Outline Fall 2011 May use RIL-like inference of negligence Circumstantial evidence might be sufficient (b/c product is harmed in injury) to infer defect: Friedman v. GM: Circumstantial evidence regarding the accident itself, as well as the state of the product after an accident, can be sufficient to result in a preponderance of the evidence for a jury to infer a defect in a product.

COMMON LAW 1. Interest: Dignitary interest in upholding one's own [accurate] reputation (dignity, honor, and value of it), preventing the lowering of one's reputation. 2. Elements: a. A defamatory utterance (DEFAMING) i. On its face? Matter of law. ii. In Context? X, a butcher, sells pork Belli (FBA had been taken) Jury Q 1. Extrinsic Facts caused s/o to believe a specific meaning (Inducement) 2. The specific meaning conveyed by the understanding (Innuendo) 3. Special damages (must prove harm) if required (Slander) iii. Injurious of Reputation: respect, good will, confidence in 1. Need not be among "right minded persons"; (Grant v. Readers Digest) 2. 'a core/sizeable group of people' (audience) (Grant v. Readers Digest) who would think the worse of the plaintiff b. "Publishing" the utterance to a 3rd party (PUBLICATION) i. Must be to at least one 3rd Party and understood (Economopolous) ii. Must be understood in the context in which it was intended (Belli) iii. Must be published Intentionally (894 n5) or recklessly [FAULT] 1. I.e. if someone eavesdrops, no liability c. "of and concerning" the plaintiff (COLLOQUIUM) i. No need to Name: (Neiman Marcus, Killian, Bindrim) ii. Officials in Public Capacity: In order to be "defamed" an individual must be associated with a defamatory imputation for a reason beyond his/her public capacity or responsibility (Sullivan v. NY Times) iii. Class-Wide Defamation - (Neiman Marcus) 1. Small enough that defaming reasonably Refers to s 2. Numerical Approach: 25 or less 3. Intensity of Suspicion approach 3. Pre-Sullivan Defense: Only Truth! (827 JUSTIFICATION) Burden on to prove. Statement is presumed defamatory. Killian v. Doubleday


TORTS Short Outline Fall 2011 SLANDER v. LIBEL Libel = Eyes (print, TV) Slander = Ears (not republicized). Must PROVE Slander Damages unless Slander Per Se b/c damage more fleeting o Shor v. Billingsley: Telecast that didnt follow script is libel. Statues modified it later. SLANDER: SPECIAL DAMAGES 1. Special Damages needed for SLANDER = injuries affecting the reputation that are actionable (Terwilliger, fornicator) - emotional responses don't count. a. loss of marriage b. loss of hospitable gratuitous entertainment c. preventing a servant or bailiff from getting a place d. loss of customers e. prevented from receiving gratuitously what he otherwise would f. shame / shunning / social opprobrium g. Pecuniary damages SLANDER v. SLANDER PER SE 1. Slander: must prove harm 2. Slander Per Se: damages presumed (like libel) a. Accusing of a major crime: b. Accusing of having an STD or other Loathesome Disease c. Accusing of Something Likely to Affect 's Business, Trade or Profession d. Accusing of infidelity or sexual misconduct in WOMEN

PRIVILEGES 1. Conditional Privilege: Viable reasons (inter-familial, letters of rec 2. FAIR COMMENT: must be opinion and a matter of public concern ACTUAL MALICE 1. Standard: A false statement made intentionally or in reckless disregard of the truth. ['s relationship to the statement uttered] a. Does not suffice for statement to be made negligently b. TIMES v. SULLIVAN STANDARDS 1. Rule: That a public official, suing for libel, has to prove that the factual falsehood was made with actual malice (i.e. that the statement was uttered knowing that it was false, or with reckless disregard of the truth of the utterance) a. Protects Factual Falsehoods: Requires a showing of actual malice even if factual falsehoods are uttered

TORTS Short Outline Fall 2011 b. Public Officials: Must be of "elevated importance" or "such apparent importance" that the public has an independent interest in the qualifications and performance of the person who holds such office. (914 n3) Tucker v. Kilgore c. Public Figures & Celebrities: Sullivan extends to more public figures (football coach of GA State; Army General) d. Matter of Public or General Interest: Actual Malice Standard applies to matters of "public interest" or "general interest" (915 n 5) 1st Amendment Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. Kalven Paradox Dissent: Technique that helps to endlessly manufacture defamation. Lets plaintiff pick and choose between those statements that are true and similar to (for likenesses) and false (for defamatory content). Bindrim v. Mitchell: TEST: Whether a reasonable person, reading the book, would understand that the fictional character therein pictured was the plaintiff acting as described.
Belli v. Orlando Daily News, 865; Where statement is capable of 2 meanings (1 defamatory, 1 not) jury decides Grant v Reader's Digest, 869; Liability for harm to reputation not determined by majority (right mindedness) Kilian v Doubleday, 872; When truth pled as affirmative defense, truth must be specific to allegations made Neiman-Marcus, 876; CLASS DEFAMATION: small groups + most defamed = libel; big group = COA fails as MOL. Shor v Billingsley, 887; Libel/Slander distinction based on aggravation & enduring nature of defamatory medium Terwilliger v. Wands, 889; Unless can prove Slander Per Se, must prove special damages as prox. cause of slander. loses. Economopoulos v A.G. 893 for harm to reputation, there must be an audience, understand slander General + Utterance Pleading Reputation (to groups in general) Truth as Defense (rests with to prove truth) Colloquium + Class Defamation Libel v Slander Special Damages Related to Reputation Publication