MBE Subjects I_Torts Outline

8/12/2019 MBE Subjects I_Torts Outline

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TORTS

Checklist for every torts question:

Who is the plaintiff?

Who is the defendant/who are the defendants? Who are the responsible parties?

What is the plaintiff’s injury or injuries?

What legal theory/theories can the plaintiff assert?

Make sure that it is a torts question

I. INTENTIONAL TORTS

A. Elements of Intentional Torts !"# $ %&

' Voluntary Act

a (efinition:

EXAMPLE: $f )o* pushes (irk into +riscilla and +riscilla sues (irk, there is no liability for an intentionaltort because (irk did not engage in any voluntary act

EXAMPLE: (ina, during a sudden epileptic sei-ure, hits +oinde.ter While (ina did not intend the har*,there is also no liability because there was no voluntary act by (ina

Intent

a 0or *ost intentional torts, intent is established if the defendant either:

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1 Causation

a

b +ro.i*ate cause in intentional torts:

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4 Harm

a Varies based on the ind of intentional tort.

b !ays to establish harm in intentional torts:

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5 "o Pri#ile$e or %efense

H&P'THETICAL

(ell sees his archrival +ratt walking across the street %lthough (ell thinks it’s unlikely he can throw

a stone that far, (ell picks up a nearby stone and throws it at +ratt 6as (ell acted withpurpose/intent such that he *ay be found liable for tortious conduct?

H&P'THETICAL

(arla, due to boredo*, decides to shoot her 77 gun into a passing co**uter train 8he doesn’twant to hurt anyone, but knows that the trains at that hour will be packed with passengers 8heshoots her gun at a full passenger car passing by her, hitting +la. 6as (arla acted with intent suchthat she *ay be found liable for tortious conduct?

H&P'THETICAL

8i.9year9old 7rian (ailey pulls a chair out fro* where he knows Mrs arrett is sitting $f 7rian knew



that it was substantially certain that this would cause Mrs arrett to fall to the ground, has he actedwith intent?

H&P'THETICAL

(elbert is late for his )orts class Without looking where he is going, he runs out of the library andcollides with +arker 6as (elbert acted with intent?

(. (attery !"# $ 7&

' % battery arises where:

a 2le*ents:

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)o establish intent, plaintiff has to show either:



a

b

c 7e sure to distinguish intent fro* *otive

EXAMPLE: +ete co*es into bar review and sits ne.t to (awn and says ;*y neck is killing *e< (awnsays that he has decided to learn how to beco*e a chiropractor and offers to help +ete refuses but(awn grabs his neck and pulls Whether +ete feels better or not, it is a battery and (awn had intent

d Transferred Intent

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EXAMPLE: (orkus throw a rock at 3avier, but the rock *isses 3avier and hits +o*pador instead+o*pador sues (orkus, and (orkus would be liable because he intended to co**it a battery on3avier

e Incom)etency

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EXAMPLE: (olores shoots +atty because she thinks +atty is 6itler (olores is liable for battery notwithstanding her insane delusion because she had purpose to cause contact

1 )he har*ful or offensive contact ele*ent is satisfied if:

EXAMPLE: +unching %rnold 8chwar-enegger would be enough to constitute battery, even if he is not injured

a %ny contact that would be offensive to a reasonable person is enough for battery

EXAMPLE: +rissy hates to be touched and believes that when people touch her, they are trying to passalien beings into her body (ale taps her on the shoulder and asks her for the ti*e +rissy freaks out andsues (ale for battery (ale was trying to touch her, but it was not har*ful or offensive to a reasonableperson

!'& $f defendant knows the particular susceptibility of the plaintiff:



b $t is sufficient for a battery if defendant causes a contact with so*ething close to plaintiff

EXAMPLE: Workers at a workplace found the coffee to be increasingly unpleasant )hey hid ca*erasand found out that a colleague was urinating into the coffee urn )his would be battery

c =nlike assault, plaintiff need not be aware of the contact

EXAMPLE: $f +atsy falls asleep and while she is asleep, 7arney kisses her on the forehead +atsy findsout the ne.t day and sues for battery 8he would be able to recover

4 +rivileges and (efenses

a

C. Assault !"# $ C&

' %n assault arises where:

a 2le*ents:

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)o prove intent, defendant *ust:

a

b

c )ransferred intent often arises with:



EXAMPLE: (une wants to scare +i*, so she throws a knife towards +i* but it ends up stabbing hi* inhis leg (une intended to co**it assault but there is also a clai* for battery $ntent for assault satisfiesintent for battery

EXAMPLE: 7eavis has been harassing (onny at school (onny decides that he wants to end this so he

will scare 7eavis into not picking on hi* (onny finds his father’s loaded =-i and brings it to school withthe intent si*ply to scare 7eavis (onny accidentally pulls the trigger just as +recious co*es walking outand gets hit in the right ar* 7eavis can sue for assault +recious can bring an action for battery

1 >easonable apprehension:

E*am)le: 8app worked at a clock repair store Mrs 6ill co*es into the store and finds 8app drunk Mrs 6illinquires about getting her clock fi.ed 8app reaches toward Mrs 6ill and asks to pet her and fi. her clock8he sues for assault $ssue was about how wide the counter was because it deter*ined whether Mrs 6illcould have a reasonable apprehension of a battery

4 $**inence:

EXAMPLE: $f (racula says he will co*e back to*orrow to suck your blood, it is not an assault

5 #ook for ele*ents that negate intent

@ou often have assault and battery together

EXAMPLE: )hrowing a water balloon at so*eone creates the reasonable apprehension of a battery !assault&and then being struck by the balloon is the actual battery

a @ou can have one without the other

EXAMPLE: 7attery without assault:

EXAMPLE: 8leeping plaintiff is never in apprehension but suffered a battery

EXAMPLE: %ssault without battery:

EXAMPLE: Aear9*iss case

B Words alone rarely create an assault

EXAMPLE: +arker is walking down a deserted alley and heard a voice saying that they have a gun pointed athis head )his is enough for an assault even though it was co**itted by words

Must be an intentional threat of an i**inent battery

EXAMPLE: (o* and +at are studying together for the bar e.a* (o* notices that +at has put together



checklists and diagra*s for herself and wants to borrow it +at says no, (o* gets *ad and grabs her cat andholds it over the balcony, threatening to drop the cat unless +at gives hi* her outlines +at sues (o* forassault )his is not an assault or battery

%. +alse Im)risonment !"# $ (&

' 0alse i*prison*ent arises where:

a 2le*ents:

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(efendant has the requisite intent for false i*prison*ent if he:

a

b

c Motive is irrelevant

EXAMPLE: )arget e*ployees are e.cited for their holiday party %fter the store closes, they will go out %t D p*, without checking to see if anyone is in the changing roo*s, so*eone locks up the store and+atina gets locked in all night and sues for false i*prison*ent 8he would lose because she could notprove intent





b $f the plaintiff is not aware that she is being confined:

EXAMPLE: $f during a lecture, all of the doors in the roo* were locked but students did not try to leave,there is no false i*prison*ent $f one person tries and cannot get out, there is a false i*prison*entclai*

EXAMPLE: $f a baby is locked in a roo*, the baby probably does not know of the confine*ent $f therewas so*e sort of physical har*, there would be a clai* "therwise, no false i*prison*ent

H&P'THETICAL

(elbert quickly locks +rofessor #ongwinded’s classroo* door during a )orts class, unlocking theroo* an hour later at the end of class 2very student is so engrossed in the lecture that nobody triesto leave the roo* during the class $s (elbert liable for false i*prison*ent?

0alse arrest:

E. Intentional Infliction of Emotional %istress !"# $ 2&

' $ntentional infliction of e*otional distress arises where:

a 2le*ents:

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Mental 8tate:

(efendant *ust act with intent to cause severe *ental distress or be reckless in creating the risk of e*otionaldistress

a $ntentional:

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b >ecklessness:

EXAMPLE: (ora had an ongoing feud with +avala (ora calls +avala, disguises her voice and says ;thisis eneral 6ospital @our child has just been rushed to the e*ergency roo*< +avala suffers severee*otional distress (ora has the intent for $$2( $t was her goal to cause e*otional distress and knew itwas virtually certain

EXAMPLE: (ora is at the hospital and walks by the desk where people check in and overhears adiscussion and thinks that one of the nurses is saying that +avala’s child has been rushed to thee*ergency roo* (ora calls +avala )his would suffice for $$2( because it would be a for* ofrecklessness

c Ao transferred intent doctrine, but:

EXAMPLE: (on stabs +aul’s father in front of +aul $f (on knows that +aul is there and knows that his victi*is +aul’s father and +aul suffers e*otional distress, +aul could recover against (on for $$2( not because oftransferred intent, but because (on was reckless



1 )he ele*ent of e.tre*e and outrageous conduct is satisfied if:

a "ffensive or insulting language is generally not considered outrageous

EXAMPLE: (elilah, in front of everyone, says that +aula’s dress is cheap and ugly +aula is hu*iliatedand has a heart attack fro* e*barrass*ent and sues for $$2( +aula would lose

7 EXCEPTI'",:

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EXAMPLE: (ratt knows that +on is superstitious and releases black cats onto his property andsends hi* shattered *irrors )his would generally be tolerated, but since (ratt acted to e.ploit+on’s susceptibility, it would be considered $$2(

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4 Causation issue that *ight arise:

5 8evere e*otional distress

a +laintiff does not have to prove:

b +laintiff si*ply has to prove:



+. Tres)ass to Land !"# $ 0&

' )respass to land is:

a 2le*ents:

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)o establish intent, plaintiff needs to show that:

a

b

EXAMPLE: $rene is driving around and gets lost in an unknown area 8he sees (ennis standing on thesidewalk $rene pulls over and asks (ennis for directions to the freeway entrance (ennis says to takehis dirt road to the end, and *ake a left +roperty doesn’t belong to (ennis, but to +rince who hashidden ca*eras 0inds $rene and sues her for trespass +rince will recover because $rene intended toenter that land and (ennis intended to get $rene to enter the land

c Mistake is not a defense as to a trespass action

1 When a person is trespassing, they are liable for the full e.tent of their har*

EXAMPLE: $rene is driving carefully across the dirt road, hits a pothole and loses control 8he hits an a-aleabush worth E'5,FFF 8he is liable for this destruction because it occurred while she was trespassing

4 2ntry:

EXAMPLE: (arla fires a gun across +entiu*’s property )his constitutes trespass because the bullet crossedthe property of the plaintiff



5 +laintiff ’s land:

a

EXAMPLE: (arla thinks she is crop dusting her own land but the pesticide lands on "wen’s land 6ehas leased the property to )o* )o* can bring a trespass to land action because he is in possession ofthe land $f per*anent da*age occurred, the owner would have a clai*

>e*edies

a )hree types of re*edies in tort:

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b )respass to land:

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-. Tres)ass to Chattels !"# $ &

' )respass to chattels arises where:

a 2le*ents:

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$ntent is satisfied when:

EXAMPLE: (ale is leaving a restaurant and takes a blue deni* #evi’s jacket, believing it is his but it is really+aul’s )his is sufficient to create intent for trespass to chattels

1 Conduct giving rise to trespass to chattels:

4 6ar*:

EXAMPLE: Geeping the jacket for five *inutes is not significant enough Geeping the jacket for a week wouldbe and +aul would likely be able to recover the rental value of the jacket

EXAMPLE: +a* and (e.tra are at +a*’s apart*ent )hey are playing a ga*e where every ti*e;foreseeability< co*es up, they do a shot of tequila "nce they finish the first bottle, +a* says she will go tothe store to get *ore +a*’s dog is in the backyard and +a* tells (e.tra not to let the dog in the house ortouch the dog +a* co*es back to find (e.tra holding the dog and sues for trespass to chattels $f the dog isnot har*ed, there is no case



a >e*edies:

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H. Con#ersion !"# $ 6&

' Conversion arises where:

a 2le*ents:

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$ntent:

EXAMPLE: (ale takes +aul’s jacket and loses it 8ued for conversion $s liable 6ad the purpose to e.ercisedo*inion and control over the jacket and by losing it, there is a serious and substantial interference (alewould have to pay fair *arket value

1 7ona fide purchaser for valueEXAMPLE: Cruella steals +rissy’s Ming vase worth E',FFF,FFF Cruella sells the vase to (rake, who paysfair *arket value +rissy can sue Cruella for conversion $f +rissy cannot find Cruella, (rake is a converter aswell and can be sued 2ither has to pay E',FFF,FFF to +rissy or return the vase

4 >e*edies and da*ages

a )ypical re*edy is forced sale:



b >eplevin:

)>28+%88 )" C6%))2#8 C"AH2>8$"A

$ntentional tort $ntentional tort

Co**itted by intentionally dispossessing or

inter*eddling with a chattel in the

possession of another

Co**itted by intentionally e.ercising do*inion or

control over a chattel and seriously interfering with

the rights of the owner

(efendant is liable for da*age or di*inished

value of chattel

(efendant is liable for the full value of the chattel

at the ti*e of the conversion

I. %efenses and Pri#ile$es to Intentional Torts !"# $ $&

>e*e*ber +"+C%A8

Privilege

'thers

Property

Consent

Authority

"ecessity

,elf9defense

' Consent

a $f the plaintiff does consent:

b +laintiff can *anifest consent e.pressly, by i*plication, or as a *atter of law

!'& E*)ress consent e.ists where:

EXAMPLE: +rofessor is concerned about his weight and needs to stop eating )winkies )ells classthat if they see hi* eating a )winkie, do whatever it takes to stop hi* 8tudent grabs his ar* andpulls the )winkie away, professor sues for battery Would lose, gave e.press consent

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!a& #i*itation:

!& $*plied consent arises where:

EXAMPLE: 3 plays pickup basketball (uring the ga*e, an opposing player trips hi* and causeshi* to injure his leg 2ven if done intentionally, 3 had i*pliedly consented by agreeing to play

!a& #i*itation:

!b& 8tandard is:

EXAMPLE: +olly is in line for a vaccination but does not know this "ffers her ar* andreceives an injection +olly sues for battery, but there was i*plied consent >easonable tobelieve consent had been given

c Mistake can vitiate consent when:

EXAMPLE: (ale is about to beco*e inti*ate with +enny when +enny asks if he has herpes (ale,

knowing he does, lies and denies it and then sleeps with +enny +enny gets herpes and sues (ale Willnot be dee*ed to have consented

$f +enny is a prostitute and they engage in se.ual relations and (ale pays +enny with a counterfeit bill,there is still consent because the counterfeit bill is a collateral *atter

H&P'THETICAL

7illy Club asks 6i*a )oh*a if he can hit her with his new baseball bat 6i*a responds, ;8ureIyoucan’t swing that foa* bat hard enough to hurt *e anyway< 7illy, knowing that the bat is, in fact,*ade of wood, swings and hits 6i*a Can 7illy clai* the defense of consent for the battery?

,elf%efense



a %rises where:

!'& (efendant only need be reasonable and *ust respond with proportionate force

b "nce the threat is over:

EXAMPLE: (onna and +aula e.changed harsh words +aula says ;wait until the ne.t ti*e $ see youalone $ a* going to teach you a lesson< (onna is alone in a parking lot that night when she sees +aulawalking towards her with so*ething in her hand (onna picks up a stone and throws it and hits +aula,causing injury +aula sues for battery (onna intended contact but argues self9defense based on theearlier threat 2ven if +aula was only carrying a fishing pole as an apology gift, if (onna believed shewas threatened, she can respond accordingly

c )he force used *ust be proportionate to the threat:

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!& >etreat:

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!b&

H&P'THETICAL

(ylan sees +ercy approaching hi* in a bar, with a baseball bat poised to strike hi* 7elieving that+ercy intends to hurt hi*, (ylan wrestles +ercy to the ground $s (ylan still privileged to defendhi*self if it turns out that +ercy was not actually intending to hurt (ylan?

1 %efense of 'thers



a

EXAMPLE: $gor overheard the threat that +aula *ade to (onna (onna is in the parking lot when $gorsees +aula walking towards (onna $gor picks up a stone, throws it and hits +aula +aula sues for

battery $gor could successfully assert defense of others because he reasonably believed that (onnawas at risk of i**inent har* and responded with proportionate force

4 %efense of Pro)erty

a

b % defendant *ay never use deadly force to protect personal or real property

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c "ne *ay use reasonable force to eject a trespasser fro* personal property after asking the* to leave

d >ecapture of chattels:

EXAMPLE: (ale took +aul’s jacket +aul saw it and asked for it back (ale takes off with the jacket +aulcan chase (ale and use reasonable force to get it back

5 "ecessity

a

b +ublic necessity:

EXAMPLE: 2arthquake starts a fire in the city and to stop the fire, (evilla dyna*ites +a.ton’s ho*e tostop the spread of the fire +a.ton sues for conversion and trespass to land +a.ton would lose )hegreater good was trying to stop the fire

!'& Could raise 0ifth %*end*ent takings issues



c +rivate necessity:

EXAMPLE: (e*ora is out on the water in a s*all boat loaded down with i*portant cargo when a stor*arrives (e*ora takes her boat and ties it to +rince’s dock notwithstanding the ;Ao )respassing< signs(e*ora could assert this defense

!'& (efendant will be liable for any har* caused during the e.ercise of the privilege

H&P'THETICAL

(ev is boating on a lake when his *otor boat springs a leak Concerned that he will sink and drown,(ev *otors to the nearest dock, which belong to +aulo (ev ties his boat to +aulo’s dock and walksacross +aulo’s land in search of help )he boat da*ages the dock while *oored there $s (ev liableto +aulo for trespass? for the da*age to the dock?

Authority

a Arrest

!'& 0elony:

!& Misde*eanor:

!1& +rivate individuals:

b ,ho)ee)er/s Pri#ile$e

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EXAMPLE: (rug Co has an undercover detective who sees +a.ton shopping on a hot day in along heavy coat 6e believes he saw +a.ton put so*ething into the pocket of the coat rabs and

detains hi* until the police deter*ine that he did not take anything (epends on length and *annerof detain*ent

c %isci)line

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BAR EXAM APPLICATION

Juestion '

(avid’s neighbor, Kack, is a *usician and practices with his tru*pet every day, late into the night "ne day, (avid sawKack at the local grocery store 0rustrated by the a*ount of noise co*ing fro* Kack’s house every night, (avidapproached Kack fro* behind and yelled, ;$f you don’t stop playing the tru*pet, one day $ a* going to kill you<

=nknown to (avid, Kack was wearing the earplugs he wore to perfor* live and did not even know that (avid wasspeaking to hi*

(is*ayed by Kack’s apparent indifference, (avid telephoned Kack and repeated the threat Kack was shocked todiscover his neighbor disliked his *usic, and quickly apologi-ed )hat night Kack went to bed early and did not practicehis tru*pet

$n a cause of action against (avid for assault, Kack will

%& prevail, if the reason he refrained fro* practicing his tru*pet was fear of retribution fro* (avid

7& prevail, because he was upset by the telephone call and (avid should reasonably have known that he wouldbe

C& not prevail, because he was unaware of (avid’s state*ents in the store

(& not prevail, because (avid said ;one day $ a* going to kill you<




Juestion

#arry, the owner of a s*all bookstore, is very concerned about a recent wave of shoplifters wearing sweatshirts withlarge pockets and sneaking books out in the pockets

)wo days after the *ost recent shoplifting incident, on a particularly war* day, )i* entered #arry’s bookstore wearing a

sweatshirt si*ilar to those worn by the shoplifters #arry noticed )i*’s sweatshirt and watched hi* spend over an hourslowly *oving through the various book stacks 2.pecting the worst, #arry *oved a large heavy book cart in front of thefront door, and called the police station to report a shoplifter

)i* eventually *oved to the cash register to pay for his selection of books %fter paying for his books, )i* discoveredhis e.it was blocked by the book cart 8hortly thereafter, the police arrived and asked )i* to e*pty his pockets )i* didnot have anything in his sweatshirt pockets

)i*’s cause of action for false i*prison*ent will

%& fail, because the shopkeeper’s privilege will prevent the cause of action

7& fail, because )i* was not har*ed by the confine*ent

C& succeed, because )i* was aware of the confine*ent

(& succeed, because )i* was not in fact a shoplifter

II. NEGLIGENCE

A. Introduction

' 0ra*e the ele*ents as follows

a (uty:

b 8tandard of Care:

c 7reach of (uty:

d Cause in 0act:



e +ro.i*ate Cause:

f (a*ages:

g (efenses

=se headings on a negligence questionIseparate out the ele*ents "n an essay, use the factsand engage in analysis

(. %uty !"# $$ %&

' eneral duty rule:

a (uty is a significant issue where there is:

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=nforeseeable +laintiffs

a $n the fa*ous +alsgraf case, Kustice Cardo-o articulated the rule that:

EXAMPLE: (rudge is driving negligently, ju*ps the curve and collides into the back of a parked car )heparked car contained e.plosives, and a huge e.plosion occurred )hree blocks away, +olyanna waswalking down the street and was hit by a piece of falling glass fro* the e.plosion 8he sues (rudge fornegligence and will lose because she is not a foreseeable plaintiff

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b >escuers:

H&P'THETICAL

(ella negligently fails to *aintain a stool in her ice crea* parlor 3ena, a custo*er, sits on the stooland falls on to the ground because of the disrepair of the stool +arker runs across the ice crea*parlor to help 3ena, but slides on the ice crea* 3ena dropped when she fell, breaking his ankle(oes (ella owe 3ena a duty? +arker?

1 Aonfeasance:

a Misfeasance:

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EXAMPLE: (ebo is driving and because he is not paying attention, fails to stop at a stop sign"wes a duty to plaintiff )his was *isfeasance, created an affir*ative risk of har*

b Aonfeasance begins with the assu*ption that there is no duty at all

!'& (uty to rescue or aid

EXAMPLE: (iablo is walking on the railroad tracks when he hears the sound of a baby crying 6eknows a train is co*ing and watches it kill the baby )he parents of the baby sue (iablo fornegligence (iablo owes no duty

!a& EXCEPTI'",:

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EXAMPLE: (e.ter is driving across a narrow bridge and is driving on the wrong side ofthe center line +olly tries to avoid hi* and drives off the bridge (e.ter has a duty

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EXAMPLE: (elilah is on a deserted beach and sees a car fly over a bridge into the

water (elilah has no obligation to rescue, but if she undertakes to act she cannot thenswi* away

a& 8o*e jurisdictions say you are only liable if you leave the defendant in a worseposition

b& ood 8a*aritan statutes:

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EXAMPLE: +alatin calls (ina saying that he has chest pains (ina says she will take hi*to the 2> "n her way over to his house, (ina runs into friends and goes with the*instead of +alatin 8he owes hi* a duty because she said she would co*e to his aid

4&

EXAMPLE: $f (iablo was the father of the baby on the railroad tracks, he would have aduty to rescue it

Co**on carrier/passenger $nnkeeper/guest Captain/passenger or sea*an (rinkingbuddies

H&P'THETICAL

(arla, an e.pert swi**er, is sunbathing on a deserted beach when suddenly +aulo’s car drives off abridge and into the water $s (arla liable if she ignores +aulo’s plight and continues sunbathing?What if she starts bringing +aulo back to shore, then abandons the rescue because she spots a rarefish she wants to inspect?



H&P'THETICAL

(ino, a driver for Mauvehound 7us #ines, sees that a passenger is having difficulty breathing (oes(ino have a duty to co*e to the passenger’s aid? (o the other passengers?

!& %uty to control third )arties

EXAMPLE: (elberto and )ina are strangers sitting ne.t to each other at a bar )hey start chattingand )ina says her husband is going to co*e by and pick her up 8he says she is going to kill hi*when he does )ina leaves and shoots her husband 6usband sues (elberto for not warning hi*

!a& )here is no duty to control the conduct of a third person as to prevent hi* fro* causingphysical har* to another

!7& EXCEPTI'":

EXAMPLE: % prison has a dangerous cri*inal locked away and the cri*inal escapes )heprison has a duty to warn people in the neighborhood

EXAMPLE: % *other knows that her son always tries to kill babysitters when she leaves hi*with the* 8he *ust warn the babysitter

EXAMPLE: +sychotherapist e.ercises enough control that when they know of the patient’sdangerous propensity, there is a duty to warn the party that *ight be in danger

!c& +roviders of alcohol

'& )raditional rule:

& (ra* 8hop %cts:



!d& Aegligent entrust*ent:

EXAMPLE: 0ather gives son a gun to play with $f son shoots a third party, the father can besued

!1& (uty to +rotect:

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!7& EXCEPTI'",:

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H&P'THETICAL

)enant +a.ton is robbed at gunpoint by a stranger while in the laundry roo* of his apart*entbuilding owned by (rucilla %nother tenant was robbed in the laundry roo* last *onth Can +a.tonproceed with a negligence action against (rucilla?

4 When the defendant is a govern*ental entity, the question of whether the defendant owes a duty to theplaintiff will depend on the function the govern*ent is fulfilling that gives rise to the cause of action

a +roprietary function:

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b (iscretionary activity:

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c Ministerial function:

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EXAMPLE: +arlu is injured at an intersection when she it hit by a car 8he sues the city, saying thereshould have been stop sign City will probably win )he decision of where to place the stop sign is a

judg*ent decision on the part of the city

EXAMPLE: $f the stop sign was installed incorrectly, +arlu would be able to recover against the city

!& +ublic duty doctrine:

When a govern*ent agency !eg, police, fire depart*ent& is sued for failing to provide an adequateresponse, courts will find no duty

!%& EXCEPTI'",:'&

&

d $f the defendant is a utility:

5 $f the plaintiff’s injury is not personal injury or property da*age, duty issues arise

a Emotional %istress

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EXAMPLE: (ell is speeding and driving negligently 6e collides with and injures +uka, breaking herleg in five places +uka cannot work, has a lot of *edical bills and her car is destroyed 8he is ingreat pain and will walk with a li*p for the rest of her life +uka can recover for pain and suffering

!& %irect Actions:

!a& $n *ost jurisdictions, to recover for e*otional distress the plaintiff *ust:

'&

&

EXAMPLE: +avi is standing on the sidewalk waiting to cross the street (ab ju*ps thecurb, al*ost gets run over but ju*ps away +avi has a heart attack because he wasal*ost run over % duty is owed because +avi was in the -one of danger

1& EXCEPTI'",:

a&

b&

!b& $n a *inority of jurisdictions, if defendant has a pree.isting duty to plaintiff, plaintiff *ayrecover for negligent infliction of e*otional distress

!1& (ystander Actions:

!a& Many jurisdictions require the bystander to have been in the -one of danger !6owever, *ostcourts have now adopted so*e version of the bystander liability rule % plaintiff *ay recoverfor negligent infliction of e*otional distress under a bystander theory if he !'& was located nearthe scene of an accidentL !& suffered severe e*otional distressL and !1& had a closerelationship with the victi*&

EXAMPLE: Mo* and (ad go out for a walk with Kunior (ad and Kunior are holding hands



and crossing the street, Mo* stopped to tie her shoe % negligently driven car runs over andseverely injures Kunior (ad ju*ps out of the way Mo* watches the events Mo* and (adboth have heart attacks and sue the driver for A$2( =nder M72, only (ad can recoverbecause he was in the -one of danger Would have direct and bystander action Mo* cannotrecover

!b& 8o*e jurisdictions allow plaintiffs outside the -one of danger but on the scene of the injury torecover for e*otional distress

b !ron$ful Conce)tion0 !ron$ful (irth0 !ron$ful Life

"n the M72, this is usually a wrong answer due to the jurisdictional splits

EXAMPLE: 3ena goes to see (r (estructo for a*niocentesis and (r co**its *alpractice andpunctures the fetus’ lung Child is born with a collapsed lung Child can sue (r because negligence iswhy he has a collapsed lung

!'& Wrongful conception applies where the injury is:

!a& (a*ages typically involve:

!& Wrongful birth is:

!a& Wrongful birth clai*s generally ste* fro*:

!b& (a*ages:

!1& Wrongful life is:

#and +ossessor #iability

23%M )$+



a Plaintiffs on the land

!'& In#itees

!a& %n invitee is:

EXAMPLE: 8hoppers in a store or patrons in a *useu*

!b& (efendant has a duty to e.ercise reasonable care to prevent injuries to invitees caused byactivities conducted on his land

!& Licensees

!a& % licensee is:

H&P'THETICAL

(elbert invites his class*ate +aco to dinner at his ho*e +aco is injured when his hand is cut on apiece of broken tile in (elbert’s bathroo* $s +aco a licensee or an invitee?

!b& #and possessors *ust warn licensees of:

!1& Tres)assers

!a& )respassers are:

!b& "nly obligation on the land possessor is:



!4& 8tatus can be debatable and can change

EXAMPLE: % (ean is having an open house for students of her law school When +arton trips overa sprinkler head covered by grass and breaks his ankle, he sues (ean 6e is probably an inviteebecause he was there to confer a benefit on (ean )here is a duty, but has (ean been reasonable?

+arton starts wandering around the house and ends up cutting hi*self on a piece of broken *arble

Ao longer an invitee Could he have reasonably believed that he had i*plied consent to be in thatpart of the house? $f a licensee, (ean had a duty to warn $f a trespasser, no duty to warn

!5& "ther duties owed by land possessors

!a& %ctivities on the land:

!b& "nly for an invitee does a land owner have a duty to search out dangers on the property

!c& $f there are known or frequent trespassers:

EXAMPLE: (abya knows of trespassers $f she builds a crocodile pit and hides it, she *ustput up a warning of the dangers $f there is naturally occurring quicksand, she does not need towarn

!& child Tres)assers 1Attracti#e "uisance %octrine2

!a& $f the conditions apply, even though there is a trespassing child, the child will be treated like an

invitee

!b& 0ive factors:

'&

&

1&

4&

5&



EXAMPLE: 8i.9year9old +ablo is trespassing on (evin’s land (evin is building a newbarn so there is scaffolding and construction +ablo starts walking around when one ofthe boards cracks, he falls and breaks his back +ablo sues (evin Court will apply thefactors

!B& Minority approach:

b Plaintiffs not on the land 1but ad3acent to it2

!'& %rtificial condition on the land:

!& Aatural condition on the land:

EXAMPLE: (esiree builds a fau. 2iffel )ower on her property "n a windy day, a piece of thetower breaks loose and hits +ierre on the head +ierre sues (esiree 8he owes hi* a duty ofreasonable care

$f +ierre is blinded by a naturally occurring quicksand pit, he is not owed a duty

c Landlords and Tenants

!'& #andlords are not liable unless:

!a&

!b&

!c&

!d&

C. ,tandard of Care !"# $$ 7&

' 4easonably Prudent Person 5nder the ,ame or ,imilar Circumstances



a "bjective standard of care:

b Must deter*ine what circu*stances are relevant

EXAMPLE: 1F9year9old (olores has lived her entire life in A@C 8he has never driven a car (oloresaccepts a job in #%, takes the driving test and passes "n her first day as a licensed driver, she collideswith +inky and +inky sues )he fact that it is her first day is irrelevant

!'& (efendant *ust rise up to the level of the average person in the co**unity

!& We do not consider:

!1& We do take into account:

!a&

!b&

EXAMPLE: (elbert is notified that his child was injured and taken to the hospital 6e ju*psinto his car and speeds to the hospital and ends up injuring +la. Kury will consider whether(elbert acted reasonably when rushing to attend to his injured child

EXAMPLE: $f (orkus is driving while distracted and has to veer his car into +o*pador’sKaguar in order to avoid hitting a child, he cannot clai* e*ergency because he created thesituation

c %nalysis of the breach is:

0ailure to act as a reasonably prudent person:

!'&

!&

!1&

EXAMPLE: (unco is a trolley co*pany and decides to build one using uninsulated wires +utnick is



walking across the bridge carrying a *etal pole and the pole *akes contact with the wires,shocking hi* Must use above considerations to deter*ine whether standard of care was *et

!4& Custo* evidence

!a& (eviation favors plaintiff

!b& Co*pliance favors defendant

EXAMPLE: +laintiff could put on evidence that *ost trolley lines insulate their wires )his is

helpful evidence in proving negligence if it is well9established custo* designed to preventshocks fro* the uninsulated wires

Children

a )he reasonable person standard specifically takes account of age when defendant is a *inor

b Majority of jurisdictions:

!'& 8ubjective:

!& "bjective:

c Minority of jurisdictions:

( EXCEPTI'":

EXAMPLE: ''9year9old (arla is driving her parents’ car and collides and injures +ava, when +ava sues(arla, because she was driving a car which is an adult activity and an inherently dangerous activity,(arla does not get the child standard and will be held to the standard of the reasonably prudent person

1 ,tatutory and "e$li$ence Per Se

a % statute that provides for civil liability supersedes the co**on law of torts

EXAMPLE: $f a state legislature passes a law that says ;anyone who is injured in an auto*obile accidentand was not wearing their seatbelt cannot recover in tort,< a plaintiff cannot recover in a negligenceaction if she was not wearing a seatbelt



b Aegligence per se:

!'& When deter*ining whether the statute should apply, a judge considers:

!a&

!b&

EXAMPLE: #egislature in the state of +anic passes a law that says ;anyone driving aftersundown without headlights is guilty of an infraction punishable by up to a E',FFF fine< )his is acri*inal law (ana is driving after dusk without headlights and cannot see )rachsel crossing thestreet and she runs over and injures hi* )rachsel sues (ana in negligence and would preferthat the judge use the statute to set the standard of care because it li*its the jury role

!& $n a *ajority of jurisdictions, this *eans that an une.cused violation conclusively establishes thatdefendant breached his duty to plaintiff

!1& Minority jurisdictions regard a qualifying violation of statute by defendant as either raising arebuttable presu*ption or as pri*a facie evidence that defendant’s conduct breached the duty toplaintiff

c When the statute does not apply

!'& 8tatute will not be used to set the standard of care but the case proceeds under reasonable andprudent person standard of care

EXAMPLE: 8tate of Koy passes a statute that requires all railroads to construct secure fencesbetween their property and neighboring property, failure to do so results in a fine up to E',FFF(unn railroad constructs a fli*sy fence between their land and +ierre’s >ailroad workers *ow thelawn ne.t to the fence, and on the other side of the fence is +ierre’s cow Cow knocks the fenceover and eats herself to death on the cut grass 8tatute is not designed to protect cows fro*overeating and will not apply

!& 8ituations in which the statute standard will not apply:

!a&

!b&

EXAMPLE: (iva injures +avarotti in a collision +avarotti wants to show that (iva was drivingwith an e.pired license and use the statute as a standard of care Court will require +avarottito show that (iva was driving unreasonably



4 Professionals

a 0or lawyers, doctors, accountants and architects, courts will defer to the profession:

b Medical Malpractice:

!'&

!a& 8pecialists:

!b& eneral practitioners:

EXAMPLE: (r (o-e is an anesthesiologist and ad*inisters anesthesia to +edric %fter twohours, +edric gets up and then falls and suffers injury 8ues (r for *edical *alpractice2vidence shows other anesthesiologists allow patients to rest for four hours, not two hoursafter anesthesia )his evidence shows deviation fro* custo*, (r will lose

$f (r can shows that two hours are custo*ary, +edric loses since (r has co*plied withcusto*

c #ack of infor*ed consent:

!'&

!& )raditionally, doctors *ust divulge those risks that are custo*arily divulged

!1& 8tandard of *ateriality:

H&P'THETICAL

+e.ta decides to let (r (ial perfor* a nose job for cos*etic reasons %lthough (r (ial does nothing



wrong in the surgery, +e.ta loses her sense of s*ell as a result of the surgery #osing sense of s*ellis an inherent risk of the surgery +e.ta sues (r (ial for *alpractice, clai*ing that he should havedivulged the risk (octors in good standing do not custo*arily divulge this risk, although it is a*aterial risk of nose jobs Was (r (ial obligated to divulge this risk in a professional rule

jurisdiction? $n a patient rule jurisdiction?

d >ules for *edical *alpractice apply to architects, accountants and lawyers

!'& $n order to prevail in a legal *alpractice action, plaintiff *ust show:

%. (reach of %uty !"# $$ C&

' +laintiff’s burden:

Kust the happening of a bad result doesn’t establish any sort of unreasonable conduct on the part of thedefendant

a $dentify specific alleged unreasonable conduct

!'& $f you cannot, there are special hurdles to deal with

1 )wo types of evidence to show breach of duty

a (irect evidence:

b Circu*stantial evidence:

EXAMPLE: 0ather bakes a cherry pie and leaves it in the kitchen to cool %n hour later, a large chunk is*issing 6e sees his daughter’s )9shirt, lips and teeth covered in red )his is circu*stantial evidencethat daughter ate the cherry pie

!'& 8lip9and9fall cases



!a& 0or plaintiff to recover:

EXAMPLE: +ru is shopping at a *arket when she falls on grapes and breaks her leg "nlyproof is the injury Ao evidence fro* which the jury can find unreasonable conduct on the part

of the *arket $f the grapes are blackened, she will get to the jury because the condition of thegrapes are circu*stantial evidence that the grapes were there long enough that the *arketshould have discovered the* and re*edied the condition

!& Res ipsa loquitur !;the thing speaks for itself<&

!a&

!b& +laintiff needs to show:

'&

&

1&

EXAMPLE: +ar* is watching (unCo’s livestock auction when a steer falls through theceiling and into his lap 8ues (unCo for negligence, (unCo says that there is no proof ofnegligence on their part =nder res ipsa loquitur , jury can infer breach of duty if +ar* canprove his portion

!c& 2.clusive control is not required any*ore:

EXAMPLE: )ra. goes to B9'' and buys chewing tobacco *anufactured by (ru*7eat When

he opens the tin, he finds a deco*posed hu*an toe )ra. sues (ru*7eat for negligence 6ecannot show what (ru*7eat did wrong, but can assert res ipsa loquitur

!d& Can be used in the conte.t of *edical *alpractice

'& Co**on Gnowledge 2.ception:



!e& Multiple defendants:

'&

&

EXAMPLE: +laintiff goes in for an appendecto*y and co*es out suffering an injury to hisright shoulder 8everal people worked on plaintiff while unconscious +robably the resultof *edical *alpractice, but couldn’t show who or what injured hi*

EXAMPLE: +laintiff walking down the street past an apart*ent building and gets hit inthe head by a flowerpot 6e cannot sue all 1F tenants of the building because they arenot acting as a group

!f& Kury can draw an inference of a breach of duty

!g& "nly applies in the conte.t of the tort of negligence and only to proving the ele*ent of breachof duty

H&P'THETICAL

+ashra is injured when a side of beef falls fro* the sky and hits her on the head %ll +ashra canshow is that she was walking by (unCo’s Meat 8torage Warehouse when this occurred Can +ashra*aintain an action against (unCo?

E. Causeinfact 1Actual Cause2 !"# $$ (&

'

EXAMPLE: Kurisdiction has a law that all *otorists *ust honk horns when they are driving on curvy roads toalert onco*ing traffic $f (wee-el is driving in violation of that statute, he would be negligent per se when hecollides into and injures 6arve 0acts show that 6arve is driving his brand new car with a state of the artsound syste* and he is playing Metallica as loud as possible 2ven though 6arve *ight be able to establishthe duty owed to hi* was breached, he *ight lost his negligence clai* because to establish causation, thegeneral test if ;but for< 7ut for (wee-el’s failure to honk, *ore likely than not, 6arve would not have beeninjured $t is likely that 6arve would not have heard the honk anyway Ao causal link

a +laintiff only has to show:





c %lternative liability theory !8u**ers v )ice&

EXAMPLE: )ice and 8i*onson are hunting when they hear a rattling of the bush )hey both shoot in thedirection of the bush and end up shooting 8u**ers "nly one of the two hunters is responsible for thehar* but 8u**ers cannot show who it is Cannot use but for or substantial factor test

!'& 0actors for application:

!a&

!b&

!c&

!&

d Market share liability:

!'&

!& Court uses several liability:

EXAMPLE: Co*pany % had 'F of relevant *arket, will pay 'F of the plaintiff’s da*ages unlessit can show that it could not have *ade the product that caused the plaintiff’s har*

+. Pro*imate 1Le$al2 Cause !"# $$ 2&

' =nforeseeable e.tent of har*:

a

EXAMPLE: (ella is driving negligently and collides with and totals +o*padour’s Kaguar (efendant says*ost people drive old )oyotas worth E'5,FFF 8he will pay E'5,FFF, not E'FF,FFF suffered )his will nothold

b 2ggshell 8kull >ule:



EXAMPLE: $f +orter had a predisposition for brittle bone disease and (uane collides with hi* Aor*allyE'FF worth of har*, but +orter suffers E'FF,FFF worth of har* (uane is on the hook for the full e.tentof the injury

=nforeseeable type of har*

a =se a rule of foreseeability or the risk rule:

EXAMPLE: (o* negligently leaves a jar of rat poison ne.t to the stove with all of the other spices+rissy is using the stove and the heat fro* the stove interacts with the rat poison in a way that the jarheats up and beco*es a *issile 8*ashes into chandelier, breaking it and causing EF,FFF worth ofda*age (o*’s lawyer could argue that even though (o* owed a duty to +rissy, and that he actedunreasonably, this is not the foreseeable type of injury )he foreseeable injury would be ingesting the ratpoison

1 =nforeseeable *anner of har*

a ,u)ersedin$ Cause:

b Cul)ability:

EXAMPLE: (ora negligently fails to provide adequate locks on the front door of the apart*ent building +avis injured when he is *ugged in the laundry roo* 8ues (ora clai*ing she owed hi* a duty 2ven thoughthere was intervening cri*inal conduct, it will not be superseding because the har* was foreseeable basedon the risk of the defendant

EXAMPLE: (unCo is a construction co*pany $n violation of statute, they have a worksite that does nothave a barricade or flaggers to control traffic in the area +robably negligent per se because +arker, aworker, is injured by a car that ends up on the worksite )he facts show that the car is being driven by3ena, who is the e.9wife of +arker 8he intentionally runs hi* over )ype of har* you can foresee is acar driving onto the site, injuring the worker (unCo would successfully argue that they were not thepro.i*ate cause because 3ena is a superseding cause

EXAMPLE: +arker is taken to the hospital, goes into surgery and because (octor co**its *alpractice,he suffers an e.tra E'FF,FFF worth of har* (octor is liable, both (unCo and 3ena are both causes9in9fact Will be liable as pro.i*ate cause

c 8ubsequent negligent conduct is generally not so unforeseeable that it cuts off liability

!'&

EXAMPLE: $f (octor decides to intentionally chop of +arker’s leg when he is in surgery following







d %voidable Consequences >ule !to be discussed in *ore detail under ;(efenses<&:

1 +unitive (a*ages

a Aever recoverable just for negligent conduct (efendant has to be *ore culpable than negligent

!'&

b "ften called e.e*plary da*ages

!'&

c Wealth of defendant is highly relevant

!'&

!&




Juestion 1

0rank received a new snow*obile for Christ*as )he first week of Kanuary, a snow stor* drops a foot of new snow inthe *ountains 0rank decides to take his new snow*obile out for a spin 6e is *oving *uch too fast when he co*esover a rise and sees another snow*obile directly in front of hi* 6e swerves to avoid the other snow*obile but loses

control 6is snow*obile crashes into the other snow*obile 0ortunately, 6ans, the driver of the other snow*obile, is notinjured, but his snow*obile has been rendered inoperable 0rank’s snow*obile still runs, so he goes for help while6ans stays behind with his da*aged snow*obile While 6ans waits for 0rank to return, a large branch of a nearby treesnaps under the weight of the heavy, new snow )he branch falls and hits 6ans, causing 6ans to break his collar9boneand left ar*

$f 6ans sues 0rank for these injuries, 0rank’s best defense would be

%& that he was not negligent

7& that 6ans was negligent in standing near a tree with snow9laden branches

C& that the falling tree branch was an intervening and superseding force

(& that his negligent conduct was not the actual cause of 6ans’s injuries




Juestion 4

$n order to facilitate street cleaning, the Metropolis city council passed an ordinance barring *otori-ed vehicles fro*driving through the city center fro* 5 a* to a* on )uesdays "ne )uesday, the defendant, who is a resident ofanother city, was speeding through the Metropolis city center at 5:1F a*, when he hit a pedestrian )he defendant did

not know about the ordinance )he pedestrian has sued the defendant on a negligence cause of actionWhat is the *ost likely result?

%& )he pedestrian will prevail, because the defendant violated the ordinance by driving through the city center at5:1F a* on a )uesday

7& )he pedestrian will prevail, because the defendant failed to act reasonably under the circu*stances

C& )he pedestrian will not prevail, because the defendant did not know about the ordinance

(& )he pedestrian will not prevail because the local ordinance will not establish the standard of care



H. %efenses to "e$li$ence !"# $$ &

' Contributory "e$li$ence and Com)arati#e +ault

a (efendant has the burden of proof to show that:

b )he deter*ination the legal effect of the plaintiff’s contributory negligence depends on the jurisdiction

!'&

!a& =nder contributory negligence:

EXAMPLE: $f +erfection was dee*ed ' at fault and (iablo DD of fault and +erfection sues(iablo, under contributory negligence, the fact that +erfection was ' at fault would barrecovery

!b& Co*parative fault reduces the plaintiff’s recovery

'& +ure co*parative fault:

EXAMPLE: $f plaintiff is F at fault and suffers E'FF,FFF worth of da*ages, plaintiff willrecover EF,FFF fro* negligent defendant

& Modified co*parative fault:

EXAMPLE: $f plaintiff is F at fault, they will be barred fro* recovery $f plaintiff is 4F at

fault, the plaintiff would recover F of her da*ages

!c& )he last clear chance doctrine is generally going to be the wrong answer

c Co*parative 0ault:



Assum)tion of 4is

a 2.press assu*ption of the risk arises where:

!'& Hoid against public policy when dealing with a necessity

H&P'THETICAL

%s a condition of entry to ski at (un’s 8ki #odge, Mary signs a waiver stating that she will relieve (unof negligence liability Marion (un, in a *o*ent of spite, sprays down a section of snow to *ake iticy while perfor*ing her duties as a slope groo*er, notwithstanding her supervisor’s repeatedwarnings to her not to do so Mary slips on the ice and breaks her leg 6as she assu*ed the risk ofher injury?

b +laintiff *ay also i*pliedly assu*e the risk

!'& +laintiff is barred fro* recovery or recovery is reduced under the assu*ption of the risk doctrine ifdefendant establishes that:

!a&

!b&

!c&

EXAMPLE: +lato gets in the car with (ickens (ickens s*ells of alcohol and there is tequila inthe car (ickens crashes the car and +lato is injured (ickens can argue that +lato elected toget into a car with a drunk driver and assu*ed the risk

c %ssu*ption of the risk is a subjective focus while contributory negligence and co*parative fault is anobjective focus

EXAMPLE: 7oth (ickens and +lato are into.icated )his would be relevant to +lato’s assu*ption of therisk )here would be no assu*ption of the risk, but there would be co*parative fault



d +rofessional rescuers !0irefighter >ule&:

EXAMPLE: (orkus is s*oking in bed and falls asleep and his house catches on fire 0rancine 0irefighter

suffers s*oke inhalation when fighting the fire and sues (orkus for negligence =nder the rule, she willnot be allowed to recover because she assu*ed the risk since it is part of her job

e +ri*ary assu*ption of the risk:

EXAMPLE: +a.ton decides to play basketball and gets tripped and injured by (uncan $f +a.ton sues(uncan, under pri*ary assu*ption of the risk, courts would say that an inherent risk is that anotherplayer *ight be negligent $n agreeing to play, you have relieved (uncan of the duty to be non9negligent

1 %voidable consequences:

a

EXAMPLE: (rew negligently injures +olly, causing E'F,FFF worth of da*ages but +olly refuses to seek*edical help and her da*ages go fro* E'F,FFF to E'FF,FFF, (rew can say he does not owe the e.traEDF,FFF

b "ften arises where:




Juestion 5

Crossing a busy street at night, a walker failed to look before crossing and failed to use a clearly *arked crosswalk 5Ffeet away )he place where the walker crossed should have been brightly lit, but it was dark )he local county, wherethe walker was crossing, negligently failed to replace a street light despite several notifications fro* local citi-ens While

crossing, the walker was struck by a driver, who was e.ceeding the speed li*it)he walker sued the driver and the county in the state of 3, where the accident occurred )he state of 3 has a pureco*parative negligence statute and provides both for joint and several liability of joint tortfeasors and for contributiona*ong joint tortfeasors based upon co*parative fault

)he jury has deter*ined that the walker suffered EFF,FFF in da*ages $t also deter*ined that the walker was 4Fpercent at fault, the county was 'F percent at fault, and the driver was 5F percent at fault

What is the a*ount of da*ages for which the county is liable?

%& Aothing, because the walker was *ore negligent than the county

7& EF,FFF, because the county was 'F percent negligent

C& E'F,FFF, but the county can collect E'FF,FFF fro* the driver if it pays the entire a*ount

(& E'F,FFF, but the county can collect EF,FFF fro* the driver if it pays the entire a*ount




Juestion

"ne winter *orning, Kan needed to get to the airport, so she called a cab (ue to the ice on the roads, traffic was terribleWith less than an hour before her flight, Kan offered Carl the cab driver an additional E5F if he would ;find so*e way tospeed up and get her to the airport< Carl began to weave in and out of traffic Carl lost control of the cab and crashed into

another car (an, a pedestrian, saw the accident and atte*pted to help %s (an was atte*pting to help Carl out of the cab,(an slipped and broke his leg

(id Carl owe (an a duty of care?

%& @es, (an, as a rescuer was owed an independent duty of care

7& @es, because it was foreseeable that (an could be injured

C& Ao, because (an assu*ed the risk of injury when he atte*pted the rescue

(& Ao, because (an’s negligence will bar his clai*

III. STRICT LIABILITY

A. %efinition !"# $$$ %&

(. Cate$ories !"# $$$ 7&

' Possession of animals

a Wild %ni*al >ule:

EXAMPLE: (a*ian has a pet tiger 6as always been gentle, but +a.ton is visiting and the tiger bites offhis hand Ao *atter how unforeseeable, (a*ian is liable

b (o*estic +et >ule:

Abnormally dan$erous acti#ities

a %n activity is abnor*ally dangerous when:



EXAMPLE: 7lasting or dyna*ite, crop dusting, transporting to.ic waste, fu*igating

b Plaintiff can reco#er 6hen:

!'& Pro*imate cause issue:

EXAMPLE: Ae*o is blasting and the noise freaks out the *inks on +ierre’s *ink far* to the pointthat the *other *inks start to eat their kittens +ierre is upset and sues Ae*o and says strictliability %lthough Ae*o was blasting, this is dangerous because it causes debris and destruction,not because it causes *inks to eat their kittens Aot abnor*ally dangerous +ierre can only recover

upon proof of fault

H&P'THETICAL

(inah Mite, an e.plosives dealer, accidentally drops a pallet of bo.es containing e.plosives on+atella, breaking her leg and pinning her to the ground %ccident investigators on the scene later thatday are injured when one of the destabili-ed e.plosives detonates $s (inah potentially subject tostrict liability for +atella’s injury? 0or the accident investigators?

C. %efenses !"# $$$ C&

' Contributory "e$li$ence

a M72 >ule:

EXCEPTI'":



EXAMPLE: +ar* is driving on the highway and he is listening to the radio when he sees a sign that says;(anger: 7lastingI)urn off your radio< that (ynaco had posted +ar* did not turn off his radio )here isan e.plosion and he sues (ynaco in strict liability )hey can assert a defense that he knew of thedanger $f +ar* were speeding and did not see the sign, he gets full recovery

IV. PRODUCTS LIABILITY

)his is not the na*e of a tort, but an area of tort liability where the plaintiff is injured due to product relatedhar* #egal theories: negligence, breach of warranty, strict products liability

A. ,trict Products Liability in Tort !"# $H %&

' 0ocus is on:

)here are eight ele*ents of strict products liability

a Pro)er )laintiff

!'&

EXAMPLE: %rlene buys a chainsaw *anufactured by (iceCo %rlene lends it to her neighbor 7rian6e lends it to +lacido +lacido suffers injury due to a defect %s a user, +lacido can sue (iceCo instrict products liability $f his wife is injured as a bystander, she can sue (iceCo as well

b Pro)er %efendant

!'&

!a& )his includes:

!b& )his does not include:

A")2



EXAMPLE: $f (uncan sells a chainsaw at a garage sale and +lacido is injured, (uncan cannotbe sued

c Pro)er Conte*t for ,trict Products Liability

!'&

!& When there is both a service and a product:

EXAMPLE: +rudence goes into defendant’s beauty salon and wants a per* Halente chooses aper* *anufactured by (unCo and applies it to +rudence +rudence goes bald and sues Halente instrict liability Court says that the product predo*inates and Halente can be a proper defendant instrict products liability (ifferent fro* a dentist using a defective needle to ad*inister Aovocain

d %efect

!'& %l*ost all jurisdictions i*pose strict liability where a product is ;in a defective conditionunreasonably dangerous<

!a& 0or*ulations of liability occur under three categories of defects:

'& Manufacturin$ %efect

a&

EXAMPLE: )oe in the chewing tobacco

b& +laintiff *ust show that:

& %esi$n defects

a&

EXAMPLE: 0ord +into (ue to the place*ent of the gas tank, it would e.plode upon



*inor collision 0ord designed the car this way, but it was still faulty

b& "rdinary Consu*er 2.pectation )est:



EXAMPLE: +laintiff is injured when he is at his workplace using safety goggles )hegoggles only protect the front, but not the side +laintiff is welding and a piece of*etal flies into his eye 8ues for a design defect, saying that it should haveprotected the side +laintiff loses under this approach "rdinary consu*er would note.pect side protection

c& >isk9=tility 7alancing )est:

i& % product’s design is usually defective under this test if:

EXAMPLE: (eath )rap Motors decides to *arket a car called the 8tallion(esigned to be lightweight and fuel efficient and places the gas tank in alocation, encased in light *etal +on buys a 8tallion and is driving when he isrear9ended at 5 *ph 8tallion e.plodes and +on is severely injured +roperdefendant, plaintiff, product >isk9utility balancingI*ust show risk of placinggas tank outweighs utility and that there is so*e reasonable alternative design

d& 8o*e products are e.e*pt fro* being found defective in design under strictproducts liability under Co**ent G:

EXAMPLE,: Haccines, prescription drugs

1& Absence of !arnin$s

a& % plaintiff is asserting either:

i&

b.

b.

EXAMPLE: (unCo *anufactures rat poison and it puts on the product askull and crossbones and it says ;(angerIGeep "ut of >each of Children<Child thinks it is pirate food, eats it and dies Warning could be *ade better



ii&

b.

b.

EXAMPLE: >at +robe $nc *akes an ")C weight loss *edication calledWeight9"ff +lashawn is shopping at )arget, buys it, uses it and suffers astroke )here is a risk of stroke in people with high blood pressure who use thisproduct Can sue >at +robe and )arget if he can show that >at +robe knew orshould have known that there was this risk

e Causein+act

!'&

f Pro*imate Cause

!'&

EXAMPLE: Manufacturer *i.es gasoline and kerosene and sells to a phar*acy +har*acydiscovers the *i.ture and calls the *anufacturer and alerts the* +ar*ette co*es in and buys the*i.ture 8he is injured and sues the *anufacturer )he phar*acy’s act is superseding cause

!& #earned $nter*ediary (octrine:

g %ama$es

!'& May be recovered when:

!& Where the har* is only to the product itself:



H&P'THETICAL

(unCo sells a defective truck to +aco 7ecause of the defect, one *orning, +aco cannot get thetruck to start and thus is unable to *ake his scheduled deliveries, causing hi* to lose E'F,FFF May+aco pursue a strict product liability action?

h defenses

!'& Misuse

!a&

EXAMPLE: +arva stands on a chair *anufactured by (unCo to reach a pot in her kitchen)he chair collapses under her While sitting is the intended use of a chair, it is foreseeable thata person would stand on a chair, and thus, there is no *isuse

EXAMPLE: +laintiff contracts a rash after Kello wrestling and sues Wrestling in Kello is not theintended use of the product, Misuse, product not defective, no recovery

!& Alteration

!a&

!1& Assum)tion of the 4is

!a&

EXAMPLE: (u*ont *anufactures a )H +an is watching )H and it is the final *o*ents of thefinal episode of %*erican $dol +an sees that the )H is s*oking and sparking, but refuses toturn it off )H e.plodes and burns a carpet and the sofa +an sues, (u*ont can assertassu*ption of risk $f he did not see the s*oke and sparks, no assu*ption of risk



(. Product Liability on a "e$li$ence Theory !"# $H 7&

' %ny foreseeable plaintiff is entitled to bring an action

%naly-e the conduct of each defendant and ask whether it was reasonable

a (ifferentiate fro* strict products liability, which considers the product rather than the person

1 Res ipsa loquitur takes the place of a *anufacturing defect in negligence theory

4 Aegligence defenses apply

C. Products Liability on a !arranty Theory !"# $H C&

' %n e*)ress 6arranty e.ists where:

EXAMPLE: %t a garage sale, (u*a tells 3aviera that the knife she is buying is rust9proof $t ends up rusting andher husband is injured 6e can sue (u*a for breach of e.press warranty

%n im)lied 6arranty

a Warranty of Merchantability

!'&

!& )here are privity and notice require*ents

!1& Can be disclai*ed

1 Where the har* is to the product itself, the only clai* a plaintiff can pursue is a clai* for breach of warranty




Juestion B

%9"ne 7icycles has been *aking the best bicycles around for three generations Mitchell, the grandson of the founderof %9"ne, takes great pride in the quality of %9"ne’s bicycles Mitchell personally supervises the asse*bly line eighthours a day to ensure quality, so that he can *aintain his reputation in the industry (espite Mitchell’s careful

inspections, Mitchell is unaware that the bicycle seats that he gets fro* 7ike Co*ponents =nli*ited are havingproble*s )hey fall off when anyone over '5F pounds sits on the* %9"ne sells its bicycles through the retailer, 7ikeMart, a*ong others +hister buys an %9"ne bike fro* his local 7ike Mart +hister takes the bike out for a spin, and ashe *akes his first turn onto a busy street, the seat falls off +hister falls in front of onco*ing traffic and is severelyinjured +hister sues 7ike Mart and %9"ne in strict product liability

Which of the following is true?

%& +hister cannot recover against 7ike Mart, because it sold the bike e.actly as it received it

7& +hister should not prevail against %9"ne, because it e.ercised due care and the faulty bike seat was 7ikeCo*ponents’ fault

C& +hister should prevail against %9"ne, regardless of whether %9"ne or 7ike Co*ponents introduced the defect

(& +hister should not prevail against 7ike Mart but should prevail against %9"ne, because %9"ne *anufacturedthe bicycle




Juestion

Marlin owns a ranch on which he takes care of ani*als that have been retired fro* show business >anch residentsinclude a lion, a tiger, and two brown bears Marlin atte*pts to provide the appropriate habitat for each type of ani*al,*uch like a -oo "ne day, to his dis*ay, he discovers that the brown bears have so*ehow *anaged to escape Marlin

i**ediately begins telephoning the owners of the properties adjoining his ranch to warn the* about the escaped bears)he first neighbor he calls is +otter, who owns a ranch directly to the west of Marlin’s +otter keeps bees on his land toproduce honey 6is beehives are so*e distance fro* his house but visible fro* his kitchen window While +otter isspeaking to Marlin, he chances to look out the window just in ti*e to see two bears flattening his pri-ed beehives %ftera slight pause, he says, ;=h, Marlin, $ know where your bears are<

$f +otter sues Marlin for the da*age to his beehives caused by the bears, he will *ost likely

%& prevail, but only if +otter did not provoke the bears in any way

7& prevail, if Marlin failed to e.ercise the appropriate standard of care in confining the bears

C& prevail under a theory of strict liability

(& prevail if he can de*onstrate that he was not negligent in the *aintenance of his beehives

V. NUISANCE

A. Ty)es of "uisance !"# H %&

' Public "uisance

a % public nuisance is:

b )ypically brought by a govern*ent actor such as an %ttorney eneral

!'& )o recover da*ages in an individual action for a public nuisance:

EXAMPLE: (isney is going to place a billboard on a country street )he sign has bright lights andplays the song ;$t’s a 8*all World< over and over Creates a huge traffic proble* )his would be apublic nuisance

EXAMPLE: +anda runs a nursing ho*e and those who live there cannot sleep due to the constant*usic

Pri#ate "uisance

a % private nuisance is:



b Mental state:

EXAMPLE: (unCo owns a feedlot in the desert that s*ells "n certain days, the wind will blow the s*elltowards a housing co**unity that was constructed nearby +etasha, who lives there, is revolted andasks (unCo to do so*ething about it $f (unCo doesn’t shut down the feedlot, they are engaging inintentional conduct

c )here are five factors to consider when deter*ining whether a nuisance is a substantial andunreasonable interference

!'&

!&

!1&

!4&

!5&

EXAMPLE: (unCo’s feedlot was there first 6ow valued is their activity? Where else can they go,how can they *ini*i-e the har*? 6ow significant is the injury?

1 >e*edies

a $njunction

!'& )o get an injunction, the plaintiff *ust persuade a judge that:

!a&

!b&

!& % judge *ust do a balancing of the equities to deter*ine whether the plaintiff is entitled to equitable



relief

VI. DEFAMATION

A. 0or a defa*ation action: !"# H$ %&

(. $n analy-ing an action for defa*ation, one *ust check for: !"# H$ %&

' %efamatory messa$e

a % *essage is defa*atory if it:

EXAMPLE: %ccusing so*eone of a heinous cri*e or of cheating on an e.a*

b )he state*ent *ust be one which can be believed to be truthful and reputation9har*ing

!'&

!&

EXAMPLE: #aw school paper says that the food in the student center has gone fro* bad to worse)his is opinion and cannot be defa*atory $f it says that it believes that week9old vegetables areused in the food, even though it is couched in opinion language, it can be proven true or false

c Must be defa*atory in the eyes of a reputable group

EXAMPLE: $f the Aa-i party paper publishes an article that says +russia thinks that 6itler was a horribleperson and +russia is a proud neo9Aa-i, the court will not uphold this as defa*ation

Pleadin$ )roblems

a Where the plaintiff is not na*ed, they *ust allege that it is of or concerning her

EXAMPLE: #aw school paper publishes an article saying that the fe*ale torts professor has beenarrested for bank robbery +rofessor +adding can sue that it is of and concerning her because she is theonly fe*ale torts professor and people will associate her with the state*ent

b % large group cannot be defa*ed

EXAMPLE: %rticle is published saying that today’s lawyers are unethical, greedy swine, there can be nodefa*ation clai*

!'& $n a s*all group, every *e*ber can bring a clai*

EXAMPLE: $f an article says that one of the surviving 7eatles has been arrested for dealing crack



cocaine, +aul and >ingo can both bring an action for defa*ation

c 8o*e state*ents *ay not be defa*atory on its face

EXAMPLE: %c*e #aw 8chool dean is *arrying Kane (oe )his is not defa*atory on its face, but otherfacts *ay *ake it so, such as the dean already being *arried

1 Publication

a +ublication *eans:

b +laintiff *ust show:

H&P'THETICAL

(ina sends a sealed letter to +aykta, accusing her of plotting a *urder )he letter is opened by+aykta’s new, very nosy roo**ate )he following week, (ina sends a postcard to +aykta containingthe sa*e accusation Will +aykta be successful in a defa*ation action for the letter? for the postcard?

c >epublication >ule:

4 Ty)e of defamation and dama$es

a Libel definition:

!'& >eputational har* is presu*ed and da*ages do not have to be proved



b ,lander definition:

!'& 0or plaintiffs to recover for defa*ation:

!a& E*ce)tions are called slander per se:

'&

&

1&

4&

5 Common la6 Pri#ile$es

a Truth

!'& 6istorically:

!& )oday:



b Absolute Pri#ile$e

!'&

!& Conte.ts in which absolute privilege applies:

!a&

!b&

!c&

!d&

EXAMPLE: Congress*an (oofus stands up on the floor of the legislature and says ;people,like *y opponent in *y last race, who are child *olesters should be in jail< %bsolute privilegeapplies, no liability

EXAMPLE: "n cross9e.a*ination of a witness, attorney asks the witness if they are still a*e*ber of the Aa-i party %bsolute privilege applies, no liability

!1& +rivilege ends if so*eone repeats the defa*atory state*ent in a non9privileged situation

c 7ualified Pri#ile$e

!'& (efendant loses an otherwise available qualified privilege if:

!a&

!b&

!c&

!& ives greater leeway to speech, but qualified because they can be lost

EXAMPLE: $f 3 gets a call about a job reference for student %, but 3 gives a horriblereco**endation because he is thinking of student 7 % sues 3 for defa*ation Jualified privilegeapplies because the infor*ation is of interest to a third person, but the privilege is lost if 3 isnegligent or reckless as to the truth of the infor*ation or if the infor*ation is published



Constitutional Issues

a +rior to 'D4, there was no 0irst %*end*ent issue defa*ation and defa*ation was a strict liability tort

b 8ince A@ )i*es v 8ullivan, four questions are considered:

!'&

!&

!1&

!4&

c +ublic official:

H&P'THETICAL

)he (aily falsely states in an article that Mayor +acher has been e*be--ling funds )hey basedthis on a source they had used before, who had proved to be reliable Will +acher be able torecover for defa*ation?

d +ublic figure:

!'& %ll purpose public figures:



!& #i*ited public figures:

e +rivate figure:

!'& +ublic concern:

!a& +resu*ed or punitive da*ages:

!& +rivate concern:

VII. INVASION OF PRIVACY

A. Intrusion into ,eclusion !"# H$$ %&

'

a (oes not require any publication of infor*ation

b $nvasion *ust be done in a way that is:

EXAMPLE: 2avesdropping, wiretapping, stalking 8o*ething visible in public is not a ground forintrusion



(a*ages recoverable for invasion of seclusion include:

(. Commercial A))ro)riation of Identity or Lieness !"# H$$ 7&

'

a )he wrongful use of plaintiff’s identity or likeness *ust be used:

EXAMPLE: (uncan is the editor of 8ports )oday *aga-ine Wants to publish an article about baseballstar +aco and sends a writer to interview hi* )akes a picture in which +aco is holding a can of (reksoda (rek uses the picture to start an ad ca*paign +aco sues 8ports )oday and (rek +aco will loseagainst 8ports )oday but will win his suit against (rek

C. Public %isclosure of Pri#ate True +acts !"# H$$ C&

' +laintiff *ust prove four ele*ents:

a

b

c

d

#ook for the passage of ti*e

1 Aeed so*e sort of publication or disse*ination of infor*ation

4 $njunction *ight be possible since the infor*ation is truthful

a Aot granted to enjoin defa*atory speech since it is false

5 Constitutional issues:



a

H&P'THETICAL

+aul, a highly respected Washington lawyer, is 6$H9positive "nly a few fa*ily *e*bers know of his

condition $n an effort to bring 6$H9positive individuals to the public’s attention, his brother sends ane9*ail to all of +aul’s colleagues revealing his 6$H status (oes +aul have a cause of action againsthis brother?

%. Portrayal in a +alse Li$ht !"# H$$ (&

'

EXAMPLE: 8tating falsely that so*eone has cancer or is poor

+laintiff has to show:

a

b

c

d

!'& +arallel to defa*ation rules




Juestion D

erry and Marcia were both trial attorneys, speciali-ing in cri*inal defense 7oth erry and Marcia attended the annualconference of the country’s largest association of cri*inal defense attorneys )he conference is held at different siteseach year, and attorneys gather to discuss the latest develop*ents in cri*inal law %lthough erry and Marcia have

never *et, they are fa*iliar with one another professionally %t a reception held during the conference, erryapproached Marcia erry said, ;Marcia, $’ve ad*ired your work for so*e ti*e $’* opening an office in your state+erhaps we could pool our resources and beco*e the *ost powerful attorneys in the state< Marcia replied, ;$ will neverwork with you @ou’re an unethical low9life< 8everal other lawyers who happened to be nearby overheard Marcia’sreply

Will erry succeed in a defa*ation suit against Marcia?

%& Ao, because there was no publication

7& Ao, because only Marcia and erry were parties to the conversation

C& @es, if Marcia knew the co**ent would be overheard

(& @es, if it was reasonably foreseeable that the co**ent would be overheard by so*eone




Juestion 'F

)he otha* (aily )attler, a tabloid newspaper, reported that (aniel Meld, a billionaire real estate developer and casino*ogul who was considering running for +resident, had recently been treated for chronic alcoholis* in an inpatient clinicaffiliated with otha*’s largest hospital $n fact, Meld had undergone a series of cos*etic procedures in order to

enhance his chances of winning his party’s no*ination and, ulti*ately, the presidency )wo days after the story broke,8enator Kohn 7lutarsky, the highest ranking elected official in Meld’s party, while engaged in a filibuster began readingthe lead stories fro* newspapers all across the nation, including the Meld article fro* the )attler 7lutarsky is anoutspoken supporter of Meld’s *ain rival for the party’s no*ination

What is the likely result if Meld sues 7lutarsky for defa*ation?

%& 7lutarsky will win, if he reasonably relied on the newspaper article

7& 7lutarsky will win, because he was privileged to *ake the state*ents

C& Meld will win, if can prove actual *alice

(& Meld will win, because the state*ent was slander per se

VIII. WRONGFUL INSTITUTION OF LEGAL PROCEEDINGS

A. Malicious Prosecution !"# H$$$ %&

' Malicious prosecution arises when:

EXAMPLE: (ilbert is angry with e.9girlfriend +etunia 6e reads about a bank robbery, calls the police andtells the* that +etunia did it $f she is tried and acquitted, she can bring an action against (ilbert for *aliciousprosecution

(. !ron$ful Institution of Ci#il Proceedin$s !"# H$$$ 7&

'

C. Abuse of Process !"# H$$$ C&

' %buse of process e.ists where:



EXAMPLE: (i* attaches a piece of real property that belongs to +ushta Clai*s he does it in order topreserve it in order to pay off a judg*ent )he real reason he does it is that he knows so*eone else wants tobuy it, so he wants to pull it off the *arket

IX. ECONOMIC TORTS

A. Intentional Misre)resentation 1+raud2 !"# $3 %&

' +laintiff *ust prove four ele*ents:

a

b

c

d

enerally an affir*ative assertion of fact or an act of conceal*ent

a 0ailure to disclose infor*ation is not a basis unless:

!'&

!&

!1&

!4&

!5&





1 Mental state:

a

b 8cienter is present when:

EXAMPLE: (inah tells +orter that the corn that she is selling hi* is rade % when it is rade 7 +ortersues for fraud Clearly she intended hi* to rely, but if (inah accidentally looked at the wrong invoice, hewould lose his fraud clai* because there is no scienter 8he *ight be negligent

(. "e$li$ent Misre)resentation !"# $3 7&

' eneral rule:

EXAMPLE: (unCo deals with dangerous che*icals and starts a che*ical fire )o prevent har* tobusinesses in the area, they notify plaintiff to evacuate +laintiff loses E'M in business because they had tobe shut down +laintiff sues (unCo and loses $f the fire had da*aged plaintiff’s building, then they would beentitled to recover for econo*ic losses that flow fro* that

% EXCEPTI'":

EXAMPLE: % lawyer prepares a contract for a client and drafts it negligently so that the client loses E'Mand the client sues for *alpractice, the lawyer cannot avoid liability because it is purely an econo*icloss )here is a fiduciary duty

%ccounting fir* does its job negligently and *isstates the value of the co*pany that hires the accountingfir* $f the hiring co*pany suffers har* as a result, they can recover

Who beyond a party who is in privity of contract can recover?

a

EXAMPLE: $f 3ero. hires (eloitte to do an audit because 3ero. wants to get a E'FM loan to fund a newproduct line (eloitte is negligent and overstates the value of 3ero. 0irst Aational 7ank, who lends3ero. E'FM, wants to sue (eloitte when 3ero. goes bankrupt 7ecause (eloitte knew they wereauditing to benefit the banks in town and they could see the reliance, a duty is owed



b $n the conte.t of lawyer/client relationships:

C. Interference 6ith Contractual 4elations !"# $3 C&

' )wo ele*ents:

a

b

EXAMPLE: (inCo approaches 3avier Co and says that they want a kind of widget )hey knew that3avier has a contract with +ortie Co to sell all of their widgets (inCo says they will pay 3avier 1 ti*esthe a*ount +ortie is paying and 3avier agrees +ortie will win if they sue (inCo

%. Interference 6ith Pros)ecti#e Economic Ad#anta$e !"# $3 (&

' )his tort protects the probable ;e.pectancy< interests of future contractual relations of a party

+laintiff can prevail only by showing that the defendant:

a

b

H&P'THETICAL

(eena really wants to get a job as an associate at a large Washington law fir* 0ro* a friend of hersat the fir*, (eena learns that her *ain co*petitor for the job is +aul Concerned that +aul will beather out for the job, (eena starts a ru*or that +aul is unreliable and lied about being ad*itted to thebar +aul does not get the job Will he have a cause of action against (eena for interference with

prospective advantage?



E. In3urious +alsehood 1Trade %is)ara$ement2 !"# $3 2&

' +laintiff *ust prove:

a

b

c

d

EXAMPLE: "wner of Music Co*pany, "wen, is approached by Connie who asks if they have the 7arryManilow/#ady aga duets "wen says no and Connie asks if +arker >ecords does "wen knows thatthey do, but does not want to give the* business and says no $f +arker finds out, they could recover forinjurious falsehood

X. MISCELLANEOUS TORT CONCEPTS

A. Vicarious Liability !"# 3 %&

' Em)loyer8Em)loyee 1Respondeat Superior 2

a

EXAMPLE: Hinny is driving a van for (o*ino’s (rives negligently and collides with +alethia Hinny isnegligent in scope of e*ploy*ent and +alethia can sue (o*ino’s 7y virtue of being an e*ployer, theyare vicariously liable

b 2*ployers can seek inde*nity fro* e*ployee but rarely do so

c 2*ployers can be directly liable if they are negligent in hiring

EXAMPLE: $f (o*ino’s hired Hinny when they knew that he was a bad driver or failed to do adequatebackground checks, they will be directly liable

d $ntentional torts co**itted by an e*ployee:





4 #oss of Consortiu*:

a

EXAMPLE: (eirdre is driving negligently and she hits and severely injures +oinde.ter 6e is in greatpain, is in the hospital for si. *onths and then dies fro* the injuries 6e has a wife and *inor child"nce +oinde.ter has died, the estate can continue his clai* through a survival statute 6is wife canbring an action for loss of consortiu* for the si. *onths he was in the hospital "nce he dies, his wifeand child can both bring a clai* for wrongful death, suing for own injuries suffered

Documents

MBE Subjects I_Torts Outline