Tort Law partially fills gaps in our current system by compensating people who wouldnt otherwise receive reimbursement

for medical expenses and wage losses. Goals of the torts system: - compensation - avoid violence - corrective justice place the parties in the position that they were in - deterrent Hammontree v. Jenner, (1971) Strict liability is not proper for this case. Such instructions make prior knowledge unnecessary and incorporate any person who shall have any unforeseen emergency while driving (heart attack, stroke, etc) and cause any damage to another person/property. There is control. If the driver had known about the seizures (stopped taking meds) he would have had control and it would be different. Strict Liability: the party that causes the injury is liable for the injuries they cause regardless of fault; It is an automatic responsibility (without having to prove negligence) for damages due to possession and/or use of equipment, materials or possessions which are inherently dangerous, such as explosives, wild animals, poisonous snakes or assault weapons. Negligence: an individual is liable for injuries they cause only if they do not meet the appropriate standard of care; person must be at fault to be liable. Do not have to know what you are doing or mean to cause injury. It is enough if you should have known. We are a system of NEGLIGENCE, not strict liability. Negligence is the fault system. As a society, we think that you should not have to pay unless you are at fault. Strict Liability you will always get something- that is not the case with negligence. Strict liability will have more suits, but each negligence suit individually costs more money. Liability to corporations foreseeability does not matter. If a product is put on the market and the company knows that people are going to be using it, they are liable for anything that occurs as a result. Hold corporations liable because the scope of people affected can be very large. It is also assumed that they have insurance and therefore can afford to pay compensation. THE LITIGATION PROCESS: 1. Aggrieved party initiates the claim. Consult and retain an attorney who will most likely try to get a settlement. If this fails, a complaint must be filed stating the facts and the relief sought. They will allege that the defendants actions were negligent. 2. Determine if a jury is necessary. If the facts are not disputed, only a judge is necessary to apply the law. If the truth is unknown, a jury will be summoned to act as fact finders. 3. Defendant will retain an attorney who will then: - Defendant may make a motion to dismiss (demurrer) which states that even if the facts are true, there is no sound legal theory upon which the plaintiff is entitled to seek relief. - If motion denied, that in effect states that the plaintiff has legal grounds and will recover damages unless the defendant proves that the claims are not true. - Defendant may plead answer. By doing this, the defendant denies some/all of the allegations of fact and possibly adds some new facts that will defeat the plaintiffs case. Sometimes this is reserved for trial, but other times this can be easily decided by evidence of fact. If defendant can do this, they can make a motion for summary judgment and have the case dismissed. This is usually moved for at the end of discovery. 4. Discovery: Plaintiff has burden of proof. (Preponderance of evidence 51%) Two components: - provide enough evidence that the jury could rationally find on their behalf - persuade the jury that their version is correct

5. If defendant does not feel enough evidence has been provided, they may make a motion for a directed verdict, or what is now judgment as a matter of law. This asks the judge to recognize that the evidence is so lacking, that no jury could reasonably find in the plaintiffs favor. Failed to present a prima facie casea case that can even stand alone. 6. If the defense has evidence, after presenting it they may again request a judgment as a matter of law on the grounds that their refutation was so powerful, no reasonable jury could decide for the plaintiff. If this is denied, the judge may reserve decision. To reserve decision means to delay in making a decision until seeing how a jury is reacting. If the jury reacts as the judge would have, there is no need to make judgment. If the jury rules for the Plaintiff, but the judge thinks there should have been a direct verdict, the judge can now dismiss the case. This system is advantageous because if an appellate court thinks that the jurys decision should stand, they can overturn the judges decision and let it stand. If both decisions are not made and an appellate court disagrees, an entirely new trial will be necessary. 7. Closing Arguments then occur, during which both sides summarize the case and try to persuade the jury. 8. The judge then charges the jury and gives them instructions on the burdens of proof and the legal rules that should be applied. 9. If defendant loses, they may again move for a judgment as a matter of law (judgment n.o.v. non obstante veredicto). When there is conflicting evidence, a judge may feel as though the jury was persuaded by some other factor, such as the severity of injury. This may lead to a new trial to see if a second jury reacts the same way. It is also possible for a jury to persuade the court. Two juries had awards of $20,000+ while the court thought only $5,000 was merited. After the second jury, the court allowed the decision to stand. 10. After reaching a conclusion, the judge will enter judgment in favor of the successful party. The trial judge tries the case and the appellate court tries the judge. 11. Collecting judgments is very difficult. Judgments are not self executing. Many times wages may be garnished or property seized, but unless used against parties with many assets, this is not worth the effort. You cannot recover funds from parties who do not have them or whose assets are protected by the law. Attorneys fees: It was feared in the US that if the loser had to pay attorneys fees for their opponents, people would be too fearful of entering a court in close cases. This also presents problems for the poor and in many cases, attorneys are only paid by the contingent fee system they get a percentage of what you get and they get nothing if you lose. Common law provides that you may sue only once for harm suffered, and that there is a statute of limitations during which you may do so. Only two percent of all claims ever go to trial and far fewer are appealed. (We will read appellate cases. There are few, but they are very important and shape the evolution of the law.) Tort cases reach litigation more often than contracts. This is because there is no mutual incentive to settle. No prior relationship, etc What kind of plaintiffs: 1. adults for themselves 2. parents on behalf of minor 3. infant born alive may sue for pre-birth harm 4. estates of deceased for pain and suffering, lost wages, etc 5. family sues for wrongful death

PARTIES AND VICARIOUS LIABILITY Death during cases In the past if either the plaintiff or defendant died, the lawsuit was terminated. This is not the case anymore. survival statutes allow the estate of the deceased to bring suit for any harm which the deceased could have if alive wrongful death statutes allow beneficiaries to recover for the pecuniary loss that the death caused Respondeat Superior - let the master answer is similar to strict liability. Employer does not have to be negligent or at fault, only the employee does. Christensen v. Swenson, (1994) Under the doctrine of respondeat superior, employers are vicariously liable for torts committed by employees while acting within the scope of their employment. This must be submitted to a jury to decide unless it is so clear that reasonable minds cannot differ. Three helpful criteria: Employees conduct must be of the general kind the employee is hired to perform Employees conduct must occur substantially within the hours and ordinary spatial boundaries of the employment Employees conduct must be motivated, at least in part, by the purpose of serving the employers interest. Economically based reasons for vicarious liability (according to Schwartz) incentive to shrewdly select employees and supervise them incentive to discipline employees who commit negligence incentive to consider alternatives to employee efforts employer is the one with the money Vicarious liability for intentional misconduct. If the employee acts from purely personal motivesin no way connected with the employers interestsor if the conduct is unprovoked, highly unusual, and quite outrageous it is considered outside the scope of employment. Courts may also find that while the incident did not occur in the scope of employment, that the employer should have taken more care while screening employees. This is negligent hiring. Indemnity: Vicarious liability includes that the person held liable may recover indemnity from the person whose negligence created the liability. Roessler v. Novak, (2003) An apparent agency requires all three of the following elements: a representation by the principal a reliance on that representation by a third party a change in position by the third party in reliance on the representation It isnt based on the agents behavior, only on the principals behavior. Estoppel: Hospitals may be held responsible for independent contractors if they act with the apparent authority of the hospital. Criteria for nondelegable duty: if there is a monopoly the severity/consequences/dangers the number of people affected

Maloney v. Rath is a case involving brake failure. It was ruled that the car owner should be held liable for the negligence of the garage mechanic even though it was a reputable mechanic and there was no reason to suspect that the job had been badly done. The court stressed two statutory requirements that brakes be in working order. Responsibility for proper maintenance rests with the person who owns and operates the vehicle. That person may seek indemnity from the mechanic themselves. HISTORICAL DEVELOPMENT OF FAULT LIABILITY Brown v. Kendall, (1850) dog fight This case requires that the plaintiff illustrate: that the intention was unlawful, OR that the defendant was in fault Ordinary care is the kind and degree of care which prudent and cautious men would use, such as required by the exigency of the case and is necessary to guard against probable danger. THE STANDARD OF CARE Adams v. Bullock, (1919) One is not responsible for prediction an extraordinary care, only usual care. * Would have been smarter to argue that defendant could have posted signs. Braun case: The defendant strung electric wires 25 feet above a vacant lot with insulation that was expected to last 3 years. The wires were never inspected. Fifteen years later a building was being built and a worker lifted the wire to climb underneath and was electrocuted. The lower court dismissed the complaint, but the appellate court reversed and remanded for trial. They stated that due to all the new construction in the area, this accident was reasonably to be anticipated and that the company hanging the wires should have noticed changes in the locality and inspected the wires. United States v. Carroll Towing Co., (1947) Learned Hand Formula: 1. Probability of the barge breaking away 2. Gravity of the resulting injury if she does 3. Burden of adequate precautions (Burden) < (Probability)(Liability) If the cost of prevention exceeds the benefit in accident avoidance, society would be better of (in economic terms) to forgo accident prevention. A rational profit-maximizing enterprise will pay tort judgments to victims rather than incur the cost of avoiding liability. A REASONABLE PERSON Bethel v. New York City Transit Authority, (1996) The duty to exercise the highest degree of care was adopted at the age of steam railroads, which were dangerous. Now public transportation is just as safe as private modes of travel. The reasonable person standard is flexible and takes into account the perceivable risk and gravity of harm to others and any special relationship of dependency between the victim and the actor. * Currently, only airlines have to follow the higher standard of care. Wood v. Groh Defendants 15-year-old son takes fathers gun from a locked cabinet, loads it, and shoots plaintiff. The charge was originally ordinary negligence and the jury found for the defendant.

Plaintiff appealed on the grounds that the judge should have charged that the defendant owed the highest degree of care in safekeeping the handgun. . The standards of the laws are standards of general application. The law does not consider varieties of temperament, intellect, or education. In society there is a certain average of conduct, a sacrifice of individual peculiarities that is necessary to the general welfare. How can you truly measure the abilities of a defendant? Cannot prove a specific standard of care. When a man has a distinct defect that all can recognize it as making certain precautions impossible, he will not be held answerable for not taking them. Ex: blind man It can be viewed as a deterrent to the people looking after the mentally illyou cannot deter the impaired because they are unaware of their actions or consequences anyway. Gender The difference between giving a reasonable man standard and not offering a reasonable woman standard. Some people argue that the standard is biased. Children Some statutes make parents vicariously liable for malicious mischief committed by their children, but parents are rarely vicariously liable for their children. They may, however, be liable for their own negligence in permitting children to do something beyond their ability or in failing to exercise control over a dangerous child. This means that plaintiffs must often sue a child directly. Traditionally, children must exercise the same care that a reasonable child of their age, intelligence, and experience would exercise. Children very young are held to be unable to comprehend risk sufficiently to be held negligent. When children engage in adult activities, courts apply adult standards. THE ROLES OF THE JUDGE AND JURY Baltimore & Ohio Railroad Co. v. Goodman, (1927) train case Plaintiff did not use reasonable care and does not get damages. This is generally a question for a jury, but not when reasonable people cannot disagree. The Court has seen cases like this and is in the best position to decide. Pokora v. Wabash Railway Co., (1934) Goodman should be limited. A drive should not necessarily be responsible for getting out of his car and looking for a train. This is a question for the jury to determine. Andrews v. United Airlines, Inc. (1994)falling overhead Both parties agree that as a common carrier, United Airlines has a duty to use the utmost care towards its passengers. However, the airline is not an insurer of its passengers' safety and must only exercise what can reasonably be done with the practical operation of its business. The jury must determine whether more than a warning is necessary. THE ROLE OF THE CUSTOM Trimarco v. Klein, (1982) Custom does not set the standard of care. It is relevant and may set the bar for what is reasonable. It is definitely for the jury to decide what the reasonable standard is.

If you can prove you adhered to prevailing custom it alerts the court to 3 main points: 1. if industry adheres to one way of doing something, court may be wary of plaintiffs assertion that there are safer ways to do that thing 2. even if the plaintiff can show a feasible alternative, the fact that it is not in use anywhere may suggest that the defendant was unaware of the possibility 3. a custom that involves large fixed costs may warn the court of the social impact of a jury or court decisions that determines the custom to be unreasonable. Levine v. Russell Blaine Co.: Plaintiff cut hand on rough rope while operating a dumbwaiter. Infection led to her arm being amputated. The court held that if she could show that the purpose of the custom of using smooth rope was to avoid such injuries, it was admissible. THE ROLE OF STATUTES Martin v. Herzog, (1920) The unexcused omission of the statutory signals is negligence. There is an admitted violation of a statute intended for the protection of travelers. Jurors have no power by which to relax the duty that one traveler owes under the statute to another. 3 Approaches to violation of a statute: 1. negligence per se (if you violate it, you are negligent) 2. some evidence of negligence (requires a degree of negligence) 3. prima facie (evidence established by plaintiff, no evidence by defense) According to Second Restatement, four requirements to answer the question of whether the statute was designed to protect what happened to you: 1. protect class of persons which includes the one whose interest is invaded 2. protect the particular interest which is being invaded 3. protect the interest against the kind of harm which has resulted 4. protect that interest against the particular hazard from which the harm results Tedla v. Ellman, (1939) walkers on highway This is a safety statute, in that it regulates the flow of traffic. The difference between this and Martin v. Herzog are the difference in status as a safety standard. When the unusual occurs, following the rule may defeat the purpose of the rule. Custom v. Statutory Violations: Plaintiff was hit by police van and was held contributorily negligent for j-walking. She argued that her behavior was reasonable because it was the common practice of pedestrians at that location. Court disagreed and stated that there is no basis to excuse violations of the law just because such violations are common practice. Statutory Purpose: Platz v. City of Cohoes (1882): Plaintiffs violated statute that you cannot ride on Sunday, and while riding the sustained injuries due to a negligent obstruction in the road. There is no defense that plaintiffs were violating a statue and therefore negligent. The violation of the statute is not the reason that plaintiffs were injured. The statute was designed to promote public order, not safety. De Haen v. Rockwood Sprinkler Co. (1932): A radiator on a construction project fell and killed a man below. The court found liability to the general contractor because a statute requiring a barrier around the hoistway was violated. Though the statute was violated, the purpose of the statute was to protect workmen from falling, not to prevent this accident.

. Licensing statutes are not used to set standards of care. The lack of a license is irrelevant to the tort claim either way negligence must be shown. There is a statute in New York that provides that any action for personal injuries against someone not authorized to practice medicine (a person practicing medicine without a license) shall be deemed prima facie evidence of negligence. PROOF OF NEGLIGENCE Plaintiffs burden of proving that the defendants conduct fell below the standard of reasonable care. real evidence documentary evidence such as broken bottles, pictures, video, etc. direct evidence eyewitnesses circumstantial evidence one thing leads you to believe that another is true Direct evidence is actual notice. Circumstantial evidence is constructive notice. Negri v. Stop and Shop, Inc., (1985) Ito create liability, a situation must be present for a sufficient length of time before the incident to permit defendant from discovering and remedying the situation. Gordon v. American Museum of Natural History, (1986) To qualify for constructive notice, the defect must be visible and apparent and exist for a sufficient length of time to permit the defendants employees to find and remedy the danger. There is no evidence presented that this in fact occurred. business mode of operation rule. The key issue in this is NOTICE is something reasonably foreseeable?? Byrne v. Boadle, (1863) barrel of flour It is wrong to say that you cannot presume negligence from an accident. If passing along and injured by something falling on you, the accident alone should be prima facie evidence of negligent. The plaintiff is not bound to show that negligence occurred, but if is up to the defendant to prove any facts inconsistent with negligence. McDougald v. Perry, (1998) The plaintiff is not required to eliminate with certainty all of possible causes, merely evidence form which reasonable people can say that it is more likely that there was negligence involved. Res Ipsa Loquitur: Three conditions of res ipsa: 1. kind of accident which does not normally occur in the absence of negligence 2. caused by something in exclusive control of defendant 3. could not have been due to any voluntary action or contribution by plaintiff Three procedural consequences of res ipsa: 1. jury is instructed to draw inference of negligence 2. jury must find defendant negligent unless there is plausible rebutting (burden of production) 3. jury must find defendant negligent unless persuaded that he was not (presumption of negligence) The main point of res ipsa is to give a plaintiff access to a jury when they otherwise could not. Helton v. Forest Park Baptist Church (1979):

Child went to daycare and suffered a serious eye injury. Res ipsa was inapplicable because the instrumentality producing the injury or damage was unknown or was not in the exclusive control of the defendant. Ybarra v. Spangard, (1944) In medical malpractice, when patient suffers from injury to part of his body not even being worked on, the result is a presumption of negligence. Inouye v. Black (1965) Man in hospital has steel wire placed in his neck and it shatters, requiring additional surgery. Defendant claims that the wire was checked and properly implanted. A grant of nonsuit was affirmed, due to the fact that there were several possible causes for the incident and the doctors negligence was not the only possibility. Firemans Fund v. Knobbe (1977) A hotels fire insurer sued four guests to recover payments it made as a result of a fire that started in their room. They had all been smoking shortly before the fire broke out. Plaintiff was unable to prove which defendant was negligent and south to invoke res ipsa. The court granted defendants summery judgment and warned of the danger of extending Ybarra. MEDICAL MALPRACTICE Custom is more important that in other torts and it sets the standard. Helling v. Carey glaucoma Courts must say what is required, regardless of customs and universal disregard. Sheeley v. Memorial Hospital, (1998) In medical malpractice cases, expert testimony is essential, due to the complicated facts and knowledge that a jury must understand. Strict locality rule was established for sparsely populated communities. Similar locality rule is a somewhat expanded version. Problem with these rules is that they legitimize a low standard of care in small communities. Welsh v. Bulger (1997) Defendant was not legally qualified to perform cesarean sections. One became necessary during a delivery and the baby died when nobody could perform the procedure. The hospital can be negligent for failing to require that a qualified surgeon be available during defendants deliveries. Conspiracy of Silence: It is difficult to find local expert testimony for reasons unrelated to the merits of the case. Physicians who criticize colleagues can face expulsion from the local medical society or face retaliation from a shared malpractice policy. States v. Lourdes Hospital, (2003) After three elements of res ipsa are proven, the jury infers negligence from the mere fact of occurrence. In his case, defendant contends that res ipsa only lies in everyday experience and that it cannot be proven that is injury could not occur without negligence. We conclude that expert testimony may be used to help the jury bridge the gap between common knowledge and specialized knowledge. Matthies v. Mastromonaco, (1999)non-consent This is a breach of a professional responsibility and a deviation form a standard of care. A physician must describe alternatives and the material risks. The test is whether a reasonable patient in her position would have considered the risk material. Earlier consent can be withdrawn while there is still time to adopt an alternate course of action. The withdrawal puts parties at their original position.

It has been held that a surgeons personal characteristics and experience are not relevant to the issue of informed consent, yet may be relevant for misrepresentation. DUTY REQUIREMENTS Need to show that there is an obligation to use reasonable care. Good Samaritan story from the bible A man injured on a road and people kept walking past and not helping. Finally a Good Samaritan stopped and helped him. TORTS NO DUTY FOR BABY ON TRACK AFFIRMATIVE OBLIGATION TO ACT Harper v. Herman, (1993) social host on boat Generally, special relationships exist when one party is deprived of normal opportunities to protect himself. This is not the case. There is no evidence that plaintiff could not protect himself and defendant had no power or plaintiff, nor did he receive financial gain. Factors that establish duty: In custody Special relationships Creation of peril / Inherent danger If an actor knows that his conduct, whether tortuous or innocent, is causing such bodily harm to another to render him helpless, the actor is under a duty to exercise reasonable care to prevent further harm. The knowledge of danger alone does not create a special relationship. However, causing the risk or assuming a duty, does. Farwell v. Keaton, (1976) There are factual circumstances which might create a duty and that must be decided by a jury. There is a legal duty of every person to avoid any affirmative acts which would make a situation worse. If someone attempts to aid another, they have voluntarily entered into a relationship and are charged with responsibility. The fact that the two of them were companions on a social venture creates a special relationship. If you begin to help and then decide to stop, you are liable if: 1. you fail to exercise reasonable care while the person is in your charge 2. by stopping aid the person is in a worse position than before If one makes a promise and in reliance of that promise others are put at greater risk, a duty exists (sheriff released prisoner) Moch case: H.R. Moch Co. v. Rensselear Water Co. (1928) With respect to public contracts, Courts often find that the public is often unable to sue utilities or water companies. This is omission, not commission. A nonfeasance, not a misfeasance. They feel a better test is whether the actions launched an instrument of harm or stopped where inaction is merely a refusal to become an instrument for good. Argue holding of benefit, or breaking contract? Tarasoff v. Regents of the University of California, (1976) Most important consideration in establishing duty is foreseeability. When avoidance of foreseeable harm requires the control of another person, or warning of conduct, there is only liability if there is a special relationship with the dangerous person or the potential victim. The doctor/patient relationship qualifies for this. This relationship may support affirmative duties for

the benefit of a third person. This duty should not be constricted to cases in which there is a special relationship to both parties. Reisner v. Regents of U of Cali, 1995: The day after a 12-year-old received a blood transfusion, the doctor discovered it was contaminated with HIV. He continued to treat her, but never told her about the situation. Three years later she became intimate with plaintiff and two years later the doctor told her about the HIV and she died a month later. Plaintiff was tested and is HIV infected. Court held that doctor had a duty to the plaintiff despite that lack of physician-patient relationship. Pate v. Threlkel, 1995: Surgeon operated on patient and should have known that her adult children would contract the genetically transferable carcinoma. The court ruled there was a duty to the children to be told and treated early because the physician knew of the existence of the third parties. This was not held in Hawkins because the existence or identity of the third party was unknown. Foreseeability alone does not create a duty, UHR v. East Greenbush Central School District, (1999) When a statute is silent with regards to whether it can be regulated by private enforcement, there is a three-part test to apply (Sheehy v. Big Flats): 1. whether plaintiff is of class for whose benefit statute was enacted 2. whether recognition of private act would promote legislative purpose 3. whether creation of such a right would be consistent with legislative scheme Sherrice Iverson: Las Vegas murder by man and his friend knew but just waited outside. This incident prompted many states that witnesses must report crimes with three exceptions: 1. relative or victim or offender 2. reasonable mistake of fact 3. reasonable fear of safety or that of their family POLICY BASIS FOR INVOKING NO DUTY Strauss v. Belle Realty, Co. (1985) In determining duty of utilities, courts have declined to extend duty to noncustomers. Palka v. Servicemaster Management Services, 1994: A nurse was injured when a fan in a patients room fell. Defendant had contract with hospital to perform maintenance and was found to have a duty to the nurse. Reynolds v. Hicks, (1998) underage nephew at wedding The statute allows parents to give alcohol to a minor who may then hurt a third person. Obviously the point of the statute is not to protect third parties. The purpose is to protect minors from their own injuries. Burkhart v. Harrod (1988): Do not recognize negligence for a third person by an intoxicated person against a social host. Hansen v. Friend (1992): Social host can be held liable to a minor for injuries minor sustained by intoxication Gilger v. Hernandez, 2000:

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No duty on a social host to protect guests from another guest. It is a duty that is incapable of performance under the usual circumstances.

Dram Shop Acts: Impose liability on commercial enterprises for harm resulting from intoxication when they serve people to the point of intoxication or when they are already intoxicated. Once that is proven, it is the bars burden to prove that the intoxication did not cause the harm. Vince v. Wilson, (1989) Negligent entrustment arises out of the combined negligence of both parties. Defendant attempts to convince court to apply limited recovery stating that negligent entrustment only applies if the defendant still owns or controls the entrusted instrument. Peterson v. Halsted, 1992: Court refused to impose a duty to a co-signer because there are too many variables in financing arrangements. It was also emphasized that the accident occurred three years after the cosigning. Osborn v. Hertz Corp. 1988: Court ruled that a car rental did not have a duty to investigate the driving record of a sober customer with a valid drivers license. DUTY OF LANDOWNERS AND OCCUPIERS Traditional View Carter v. Kinney, (1995) bible group Three classes of plaintiffs: 1. Trespasser until you gain permission. 2. Licensee until possessor gives reason to believe land has been made safe for you. 3. Invitee when there is the expectation that you provide material benefit from the visit or the property is open to the public. Social guests are licensees because the guest is expected to take the premises as the owner does. The precautions that are taken for the owners own safety and that of his family should be adequate for a social guest. Duty to trespassers: to warn where one knows that people constantly intrude and may encounter a hidden danger when owner fails to exercise reasonable care for a known trespasser not to willfully or wantonly harm trespassers Open and Obvious Dangers: Some courts say there is no duty since the danger is apparent. Others say it should discourage dangerous conditions. Heins v. Webster County, (1996) visit hospital England abolished the common-law distinction between invitee and licensee in 1957 because reasonable people do not vary their conduct depending upon the status of a visitor. People argue FOR the classifications because they are predictable and allow landowners to guard against risks. The classifications should not be able to shield those who are otherwise liable. Factors to now be considered:

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1. 2. 3. 4. 5. 6. 7.

foreseeability / possibility of harm purpose entrant is on property time, manner, and circumstances the use expected by premises reasonableness of inspection, repair, or warning opportunity and ease of repair or warning burden of owner to provide protection

Landlord / Tenant: The traditional rules of liability held a landlord only liable for hidden dangers they knew of that the tenant did not, property leased for public use, common areas under the landlords control, and premises negligently repaired by the landlord. The liability of landlords is increased. A landlord must act as a reasonable person under all circumstances. Posecai v. Wal-Mart Stores, Inc., (1999) Business owners do have a duty to implement reasonable measures to protect patrons from criminal acts which are foreseeable. Four approaches:

1.
about to occur

specific harm rule: no duty unless owner is aware of a specific harm

2.

prior similar incidents: foreseeability is established by evidence of prior crimes. This has arbitrary results because there are different standards as to how many crimes are required for the standard. 3. totality of circumstances: most common approach nature, condition, and location of the land, as well as prior incidents. It places a greater burden on owners, yet is criticized as being too broad. 4. balancing test: balances foreseeability of harm against burden of imposing a duty. INTRAFAMILY DUTIES Common law barred spouses from suing one another but courts have eliminated the immunity from tort liability. Parent-Child Suits: Claims for intentional harm are almost always permitted now. The controversial issue is parentchild injuries involving negligence. Broadbent v. Broadbent, (1995) child swimming Doctrine of parental immunity is American, unknown in English common law. Recently the state has intervened to protect children. There is a reasonable parent standard. Under Goller standard parental immunity is abrogated except: 1. where negligence involves exercise of parental authority 2. involves an exercise of parental discretion re: food, clothing, housing, medical and dental services, and other care Policy Support: Primary justifications for immunity are: 1. suing would disturb domestic tranquility 2. create a danger of fraud and collusion 3. deplete family resources 4. benefit parent if child predeceases 5. interfere with parental care, discipline and control

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Cases regarding fetus: One case allowed a person born alive to sue the mother for not using reasonable care for the fetus because the breach could foreseeably cause serious harm to the unborn child. Another case disagreed, stating that there is no unique relationship between a pregnant woman and the fetus she carries. Religious exception: A duty to a child is a stronger obligation than the parents freedom to rely on spiritual care. GOVERNMENTAL ENTITIES Sovereign immunity is based on the precept that the king can do no wrong. After WWII, immunity became the exception, not the rule. Two themes of different treatment for public entities: 1. officials make policy choices, balancing costs and benefits for public or political gain 2. much governmental activity is in the affirmative duty sphere protecting the public from risk created by others Riss v. City of New York, (1968) CAN sue govt in their proprietary capacity, such as hospitals, etc. CANNOT sue govt in public use capacity, such as highways, etc. The amount of protection provided is limited by resources and considered a legislative-executive decision as to how to deploy the resources. To hold the municipality accountable, would determine how the resources should be allocated without a predictable limit. Cuffy v. City of New York, 1987: The court recognized an exception to the no tort duty for police protection in the case of special relationship. 1. assumption by municipality through promises of an affirmative duty 2. knowledge on the part of municipality that inaction could lead to harm 3. some form of direct contact between municipalitys agents and injured party 4. partys justifiable reliance on municipalitys undertaking Cuffy was denied recovery because there was no direct contact or reliance on police promise. Lauer v. City of New York, (2000) medical examiner Distinction between: Discretionary: conduct involving exercise of reasoned judgment may NOT result in liability Ministerial: conduct involving adherence to a governing rule, CAN result in employer liability NONPHYSICAL HARM Common law distinguishes between only physical or emotional harm. Falzone v. Busch, (1965) There is a relationship between emotional disturbance and physical injury. When one is injured trying to avoid a hazard, he recovers for consequence of fright. Court can prevent flood of litigation, and that is not a reason to deny relief. Zone-of-danger test near proximity that could cause immediate harm Gammon v. Osteopathic Hospital of Maine, (1987) dads leg A defendant is bound to foresee psychic harm only when is could reasonably be expected to befall an ordinary person. People with recently deceased family are very sensitive and there is a high probability that emotional distress will result from mishandling of the body. Portee v. Jaffee, (1980) Four factors:

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1. 2. 3. 4.

death or serious injury caused by negligence marital or intimate familial relationship observation at scene of accident resulting severe emotional distress

Many states do not have the multi-factor test for bystander recovery as in Dillon and Portee. (Ex: New York cannot draw lines limiting such action. Extended to immediate family who were also in the zone of danger.) Some states go beyond and allow claims caused by observing a relative at scene of accident shortly after occurrence and before change in condition or location. Elden v. Sheldon, 1988: NO relief for co-habitants if not married, due to policy reasons. 1. state has strong interest in marriage 2. burden to analyze relationship Johnson v. Jamaica Hospital, (1984) There is no cause of action stated. Plaintiffs have not alleged that they were in the zone of danger or that their injuries resulted from observation of injury caused by the hospitals negligence. Harm caused to a baby during birth Can pay the mother because she is not a bystandershe is part of the situation. NEGLIGENT INTERFERENCE WITH CONSORTIUM In 1970s the liability to one spouse for the injury of another is traced back. Virtually all states recognize the loss of consortium for both spouses. No claim will lie against a negligent spouse for depriving the other spouse consortium for negligent driving. Awards go to: Woman whose husband suffered brain damage Woman whose husband is spastic quadriplegic Some states extend past physical injuries. It is the fact finders job to determine the legitimacy, nature, and extent of damages. Loss of companionship for parents and children: One case ruled no action for parents for injured child, only in the case of death. Other cases have had large damages awarded. WRONGFUL BIRTH AND WRONGFUL LIFE Spurred by new technological developments in contraception, abortion, genetic counseling, etc. Emerson v. Magendantz, (1997) tubal ligation Majority of jurisdictions use a limited recovery remedy. They frequently grant compensation to the plaintiffs for medical expenses and sometimes emotional distress. Public policy would preclude granting rearing costs to parents who decided to keep and raise a healthy child, assuming that the joy of raising a child outweighs the expenses. However, in this case the child is not healthy, and beyond normal rearing costs should be permitted. If one is born with a condition that will shorten life, they cannot get a wrongful life claim, as it is impossible to compare life with a disability to nonexistence. Economic damages can be awarded when an illness is not life shortening but it likely to cause one to incur extraordinary medical expenses. CAUSATION

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CAUSE IN FACT This requirement is generally called the but-for. In many cases, X does not have to be the only cause, so long as it is a sufficient cause. Sometimes a person can act negligently, but even had they exercised reasonable care, the incident would have occurred.

Tests for causation: But-for rule: -traditional way to determine cause in fact -but for the Ds negligent act, the person would not have been injured -have to show a connection between Ds negligent act and the Ps injury; if it would have happened anyway, there is no causation -criticism of the but-for rule: -cant know for sure -multiple sufficient cause - two fires, set independently but negligently, arrive simultaneously at a house and burn it down, either fire could have burned down the house independently but-for rule deems neither party to be a but for cause, so neither are liable Substantial factor rule: -D is a cause of the Ps injury if the actions were a substantial factor in causing the harm Stubbs v. City of Rochester Defendant argues that all of possible causes must be ruled out. The rule is not intended to be so inflexible. It just must be established with reasonable certainty that the direct cause of injury was drinking the water. The facts are such that they should be submitted to a jury. Zuchowicz v. United States, (1998) Defendant argues that the expert testimony should not have been admitted. The relevant factors: 1. theory tested according to scientific method 2. subjected to peer review and publication 3. known or potential rate of error 4. whether the theory is generally accepted The act was deemed wrong because it increased the chance of illness and since that did happen, a strong causal link exists. If a negligent act increases the risk of an accident which actually occurs, it is the defendants burden to provide evidence to negate causation. LOST OPPORTUNITY CASES Negligence failed to prevent an unfavorable outcome. Alberts v. Schultz, (1999) Percentage probability of loss is usually applicable. Need to prove preponderance of the evidence. Most courts do not extend proportional liability to cases where a greater than 50% likelihood of loss occurred. Applied for incorrect diagnosis, inappropriate treatment, failure to provide timely treatment. JOINT AND SEVERAL LIABILITY When two or more tort-feasors act concurrently or in concert to produce a single injury, they may be held jointly or severally liable. Originally you could collect everything from one party. Recently, the defendants obtain contribution from each other in proportion to their fault in the accident.

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At least dozen states abolished the doctrine, so each defendant is only responsible for his share. A dozen states have abolished the doctrine in cases where defendant is less than 50% at fault. Few states have retained it for economic damages but abolished it for other damages. Some states have abolished it when plaintiff is partially at fault. Summers v. Tice, (1948) quail hunters When it is unclear which defendant caused the harm, it is the defendants burden to prove who caused injury. They are the wrongdoers and they are in a better position to determine who is at fault. Both defendants are jointly and severally liable for the entire loss, as to hold otherwise would mean to exonerate them both. alternative liability (causation) shifts the burden on the defendants to determine who caused injury. This is limited to cases with few defendants, because the probability of guilt diminishes as more defendants are included and they makes the burden unfair. market share theory the defendants are not in a better position to determine who actually caused harm and they pay damages proportionate to their share of the market. Hymowitz v. Eli Lilly & Co., (1989) dangerous miscarriage pills Identity of specific manufacturer is unknown. All manufacturers produced a defective product, all manufacturers will be held liable for injuries in proportion with the manufacturers market share of the product at the time of injury. PROXIMATE CAUSE Defendants argue that they their negligence was not the legal cause because an unexpected occurrence contributed to the harm or its severity. UNEXPECTED HARM Benn v. Thomas, (1994) heart attack and car accident Ordinary person would not have died from accident, but due to coronary disease, deceased suffered heart attack and passed away. thin-skull rule states that the negligent act is the proximate cause of injury, regardless of a preexisting condition. Defendant is liable for unforeseen extent of injury and unforeseen nature of the injury. Emotional Distress: Third Restatement holds that plaintiff may recover for all harm, even if above and beyond that which a reasonable person would suffer. Secondary Harm: If person requires medical attention and through negligent treatment is harmed more, defendant is still liable for all harm. In Re An Arbitration Between Polemis and Another Furness If the defendant is negligent, but the result is unforeseeable, the negligence is still the proximate cause of the harm. The directness test a negligent defendant is responsible for all the direct consequences of their negligence, whether the damages are foreseeable or not. Foreseeability is the test of negligence. Once it is proven that defendant is negligent, they are responsible for all damages. Overseas Tankship Ltd. v. Morts Dock & Engineering, (1961) wagon mound Defendant is only liable for reasonably foreseeable consequences. Owners of Wagon Mound are not liable. You can apply Hand Formula or Polemis Test.

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thin-skull rule still applies. The injury is still foreseeable, even if the extent is not. However, if the risk is of disease in water, and instead one drowns, the defendant is not liable. (See Darby v. Nal Trust, p. 413) SUPERSEDING CAUSES Doe v. Manheimer, (1989) Plaintiff was meter reader and was raped by assailant on the sidewalk. It was a high crime neighborhood and a rape had taken place nearby. Plaintiff argues that vegetation served as a shield. The harm was not within the scope of the negligence and the harm must be within the same general type of the negligence. UNEXPECTED VICTIM Palsgraf v. Long Island Railroad, (1928) Duty of care is only owed to plaintiffs within a reasonably foreseeable zone of danger. Defendant did not know about fireworks and could not have known that plaintiff was at risk. Fact patterns: Rescue: Danger invites rescue and defendant is liable for rescuers injury. However, in kidney case, court found that the act was deliberate, not emergent, and therefore defendant was not liable. Time: Tort limitations are generally long. Distance: Liability was imposed for accidents miles away due to breaking traffic lights. Fire: Liable for immediate fire, but not for when nature and circumstances cause it to spread. DEFENSES PLAINTIFFS FAULT CONTRIBUTORY NEGLIGENCE Historically, contributory negligence barred plaintiff from recovery. Burden used to be on plaintiff to show not contributory, but now burden is on defendant. Only defense in cases of negligence. If defendant was reckless, the defense would have to be contributory recklessness Last Clear Chance though plaintiff was negligent in causing his own harm, defendant had the last chance to prevent harm. Is in effect when plaintiff is in helpless peril Refusal to impute contributory negligence COMPARATIVE NEGLIGENCE pure plaintiff can recover for % of damages not her fault and defendant can recover % of damages from plaintiff modified - plaintiff can only recover if her fault is not as great as defendants or plaintiff can only recover if no greater than defendants Uniform Comparative Fault Act (1981) Any contributory fault chargeable to the claimant diminishes proportionately the amount awarded, but does not bar recovery Percentage of the total fault of all the parties AVOIDABLE CONSEQUENCES Courts generally refused to award damages for complications that could have been avoided by following medical advice. Plaintiff is allowed to refuse treatment for religious purposes

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ASSUMPTION OF RISK EXPRESS AGREEMENTS Dalury v. S-K-I, Ltd., (1995) A skiers assumption of risk does not remove the resorts duty to warn of or correct dangers. An agreement will be upheld if it is: 1. freely and fairly made 2. between parties of equal bargaining power 3. does not interfere with social interest Plaintiff is a business invitee and cannot be responsible for risks that he cannot control. (See page 472 for other examples) Tunkl Factors: an agreement is invalid if it exhibits some or all of the following: 1. concerns a business of a type generally through suitable for public regulation 2. party seeking exculpation is engaged in performing a service of great importance to society 3. party holds itself out as willing to perform this service for any member of the public who seeks it 4. party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks the services 5. in exercising superior bargaining power, makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence 6. person or property of the purchaser is placed under the control of the seller subject to the risk of carelessness be the seller or sellers agents IMPLIED ASSUMPTION OF RISK Murphy v. Steeplechase Amusement Co., (1929) Plaintiff accepted the dangers as they were obvious and necessary. If the danger was obscure or unobserved it may be different, but this injury was common. Recreational sports: take into account the risks inherent in the game, the use of protective equipment, etc. Courts may be lenient to avoid chilling participation in recreational sports. There is a common-sense distinction between excessively harmful conduct and routine rough-andtumble of sports. STRICT LIABILITY Dont have to prove fault escaping material blasting ultra-hazardous materials Fletcher v. Rylands, (1866) Beginning of strict liability. Defendant brought water onto his property and must be responsible for it. When one uses his land for a non-natural use that is dangerous, such as artificially accumulating water whose escape could cause damage to neighbors, he is strictly liable for any damages that may result to anothers property thereby Sullivan v. Dunham, (1900) Blasting with dynamite results in defendant being responsible under strict liability. First Restatement: ultra-hazardous was defined as involving a risk that cannot be eliminated by the exercise of utmost care and is not a matter of common usage. *plaintiff centered

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Second Restatement: reframed by providing that one who carries on an abnormally dangerous activity is subject to liability for harmresulting from the activity, although he has exercised the utmost care to prevent the harm; six factors to determine if an activity if abnormally dangerous: 1. existence of a high degree of risk of some harm to the person, land or chattels 2. likelihood that the harm that results from it will be great 3. inability to eliminate the risk by the exercise of reasonable care 4. extent to which the activity is not a matter of common usage 5. inappropriateness of the activity to the place where it is carried on 6. extent to which its value to the community is outweighed by its dangerous attributes *sounds a little like BPL and negligence Third Restatement: returns to a two element test, but retains the abnormally dangerous language; first element modified to require a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors; observes that locational appropriateness and value to the community may have some bearing as well Indiana Harbor Belt Railroad v. American Cyanamid Co., (1990) Strict liability is not imposed against the manufacturer of toxic materials for accidents occurring during transportation. PRODUCTS LIABILITY Play between negligence and strict liability MacPherson v. Buick Motor Co., (1916) Even when a product does not come directly from the manufacturer, there is a duty to the user of the product. Escola v. Coca Cola Bottling Co. of Fresno, (1944) Res ipsa loquitur may be applied if P can show hat the condition of the product did not change after it left Ds hands, the P exercised due care, and the accident would not have occurred without negligence. can use negligence, strict liability, or warranty for products liability -warranties: needed privity, and there are time restrictions courts decided they wanted something better than negligence, and warranty wasnt good enough; moved to strict liability Restatement Second: one who sell a product in a defective condition unreasonably dangerous is subject to liability if: 1. seller is engaged in the business of selling such a product 2. it is expected to and does reach the consumer without substantial change in the condition The Rule above applies even if: 1. the seller has exercised all possible care 2. the consumer has not bought the product from or entered into any contractual relationship with the seller consumer expectation test: determined by whether the product was dangerous beyond what the ordinary consumer would expect Restatement Third: Section 1 provides that One engaged in the business of selling products who sells a defective product is subject to liability for harm caused by the defect. Section 2 provides three types of defects: 1. manufacturing defect: product departs from its intended design

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2.

defect in design: foreseeable risks could have been reduced or avoided by the adoption of a reasonable alternative design (replaces the consumer expectation test) 3. inadequate instructions DESIGN DEFECTS Soule v. General Motors, (1994) The standard is the risk benefit test (excessive preventable danger test) that the risk of danger in the design outweighs the benefits of the design. Camacho v. Honda Motor Co., (1988) The risk-utility test is appropriate even when the danger is obvious and the product is used as intended. DEFENSES General Motors Co. v. Sanchez, (1999)car pinning A consumer has no duty to discover a defect or guard against it. INTENTIONAL HARM Intent can be inferred from knowledge. Garratt v. Dailey, (1955) pull out chair The intent necessary or the commission of a battery is present when the person acts, knowing with substantial certainty, that the harmful contact will occur. Ds intent to cause a harmful bodily contact is inferred from his knowledge that the contact would occur. Assault: a physical act of threatening nature; designed to protect a persons emotional tranquility Battery: actual touching of person; designed to protect interest in physical body and integrity These torts cause apprehension and must do so. A person must be aware of the threatening act before it is terminated. Picard v. Barry Pontiac-Buick, (1995) Assault requires an act which puts a person in reasonable fear of imminent bodily harm. Grasping an object in a persons hand may qualify as battery. False Imprisonment requires an actual or legal intent to restrain. This is by: 7. actual or apparent physical barriers 8. physical force 9. threats of physical force 10. duress 11. asserted legal authority Lopez v. Winchells Donut House, (1984) One who submits to an interrogation out of a concern for protecting his reputation has not been falsely imprisoned. A shoplifting suspect may be detained in a reasonable manner for a reasonable time for investigation.

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Negligence: Duty o

general duty to avoid harm to others affirmative duties rescue o o o contracts relationship affirmative act standard of care failure to live up cause in fact proximate cause

Breach Causation Injury

Defenses: Assumption of risk (express / implied) Contributory negligence Strict liability: Rylands 519/520 ultra hazardous Blasting Products liability Defenses: Contributory negligence Assumption of risk Intentional tort: Assault Battery False imprisonment Intentional infliction of emotional distress act intent causation injury

manufacturer design defect

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Defenses: Consent privilege Products liability: Res ipsa (negligence) (escola, macpherson) Strict liability Warranty (page 556) Are parents liable? No. not unless they were negligent in not monitoring him. Not liable for intentional torts or negligent torts.

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