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Intentional Torts I. Common Law a. Case of the Thorns i. Recall: P brought a writ of trespass against D, who had cut thorns from his hedge on his own land that lay beside P’s land of five acres. The thorns fell upon P’s land and D removed them as soon as he could, which constitutes the trespass onto P’s land. (Remember the time – in 1466, land was the only thing of value, presence was enough to be an injury.) ii. Lesson: If you injure someone, you’re liable no matter if it is intended. Absolute Liability . iii. Side note: avoidance is not an issue in Thorns (“if it could have been avoided”) – this is dicta. b. Dryller v. Schottum (Hypo) i. D did not shoot P on purpose (he tripped) – could he have avoided it? But avoidance is not the issue on Thorns, it is dicta. How persuasive is dicta? Sometimes very persuasive. c. Stuk v. Leever (Hypo) i. 1 st case suggesting strict liability is not what torts is all about ii. Difference between trespass and trespass on the case (action on the case) – trespass on the case is a different case. II. Liability based on fault – does fault matter in tort? a. Weaver v. Ward i. “Although it is agreed that if men tilt or turney in the presence of the Kind, or if two masters of defense playing their prizes kill one another, that this shall be no felony, since these acts are not committed with a felonious mind. However, this is not the case in trespass, which tends only to give damages according to hurt or loss. No man shall be excused of a trespass except if it may be judged entirely without his fault.” ii. There may be no criminal activity because of the absence of the felonious mind, but D is still liable in trespass unless it is utterly not his fault. iii. For D to be without fault, you have to find some1 else to be responsible (either P or a 3 rd party). iv. The precedents don’t apply here b/c it is not a crim case, it is a civil case, & D is not utterly without fault. v. In this case, there’s a suggestion that fault matters. Tort law moved from absolute liability to the possibility that if you weren’t at fault, you wouldn’t have to pay. vi. To be utterly without fault, it has to be inevitable, and the Ct gives 2 examples: (1) if someone grabs your arm & hits another person; (2) if P had run into the shot. vii. D has to demonstrate fault or lack thereof.


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Intentional Torts I. Common Law a. Case of the Thornsi. Recall: P brought a writ of trespass against D, who had cut thorns from his hedge on his own land that lay beside Ps land of five acres. The thorns fell upon Ps land and D removed them as soon as he could, which constitutes the trespass onto Ps land. (Remember the time in 1466, land was the only thing of value, presence was enough to be an injury.) ii. Lesson: If you injure someone, youre liable no matter if it is intended. Absolute Liability. iii. Side note: avoidance is not an issue in Thorns (if it could have been avoided) this is dicta.


b. Dryller v. Schottum (Hypo) i. D did not shoot P on purpose (he tripped) could he have avoided it? But avoidance is not the issue on Thorns, it is dicta. How persuasive is dicta? Sometimes very persuasive. c. Stuk v. Leever (Hypo) i. 1st case suggesting strict liability is not what torts is all about ii. Difference between trespass and trespass on the case (action on the case) trespass on the case is a different case. Liability based on fault does fault matter in tort? a. Weaver v. Wardi. Although it is agreed that if men tilt or turney in the presence of the Kind, or if two masters of defense playing their prizes kill one another, that this shall be no felony, since these acts are not committed with a felonious mind. However, this is not the case in trespass, which tends only to give damages according to hurt or loss. No man shall be excused of a trespass except if it may be judged entirely without his fault. ii. There may be no criminal activity because of the absence of the felonious mind, but D is still liable in trespass unless it is utterly not his fault. iii. For D to be without fault, you have to find some1 else to be responsible (either P or a 3rd party). iv. The precedents dont apply here b/c it is not a crim case, it is a civil case, & D is not utterly without fault. v. In this case, theres a suggestion that fault matters. Tort law moved from absolute liability to the possibility that if you werent at fault, you wouldnt have to pay. vi. To be utterly without fault, it has to be inevitable, and the Ct gives 2 examples: (1) if someone grabs your arm & hits another person; (2) if P had run into the shot. vii. D has to demonstrate fault or lack thereof.

b. Brown v. Kendall - ** leading case in how we do personal injury law, major transition in the law i. Recall: Two dogs owned by P and D were fighting. D tried to separate them with a stick. Indoing so, he backed up toward P and in raising his stick over his shoulder, hit P in the eye and injured him. Action of trespass for assault and battery. ii. The trial ct said D had the burden of proving extraordinary care (The controversy between the parties: whether it was necessary or proper for D to interfere in the fight; whether the interference, if called for, was in proper manner, and what degree of care was exercised by each party on the occasion.) iii. But we cant tell how the jury decided because the burden had been on D when it should have been on P. Burden to show carelessness is on P. iv. Liability must be based upon legal fault.


Battery a. Cole v. Turner i. Recall: the reasoning/rule is that the least touching of another in anger is a battery. Battery assumes a contact. ii. Restatement (Second) of Torts extremely influential b. Battery: Harmful Contact: i. Intent to cause harmful or offensive contact with a person ii. Harmful or offensive contact 1. Injury is not an element of intent. Battery liable for unintended or unforeseen injuries.

2. Contact with a person can be satisfied with something so connected as to be part of the person (Fisher v. Carrousel) c. Intent: i. Purpose to cause the prohibited result, or ii. Substantial certainty that the prohibited result will occur 1. [For battery, the prohibited result is the harmful or offensive touching, not the particular injury.] iii. Neither a good faith mistake (Ranson v. Kitner) nor mental illness (insanity) (McGuire v. Almy) eliminate intent iv. Transferred Doctrine of Intent: the intent for any of the 5 original torts can be substituted for intent for any 5 original accomplished [tort to tort, person to person, different tort to different person] Intent a. Garratt v. Dailey i. Recall: D, age 5 years 9 months, was visiting with Ps sister, an adult, and P in the back yard ofPs home. P contends that, as she began to sit down on a lawn chair, D deliberately pulled it out from under her. D alleges no intent to cause harmful or offensive contact.


ii. Issue: what level of knowledge that an act will cause harm constitutes intent. iii. Holding: Volitional act if you are substantially certain that harmful touching will occur, then this constitutes intent. (Side note: the touching can be direct or indirect, either is sufficient.) iv. The case is remanded the 2nd time around, P wins, since D knew with substantial certainty that P would hit the ground. The substantial certainty is in regard to the touching. v. Lesson: Intention, in any tort (this happens to be a battery) generally, can be either (1) purpose or (2) substantial certainty of the result. vi. Hypo: what if the child was 3.5 yrs old? In Fromenthal v. Clark, 2 yrs old was too young to form intent. At what age is a child capable of forming substantial certainty? vii. Hypo: What if a 3.5 yr old was mad at the babysitter and bit her, giving her an infection? 1. This is a purpose case he bit her on purpose. Not the same as substantial certainty. b. Ranson v. Kitner i. Recall: Appellants were hunting wolves and mistakenly killed appellees dog. ii. Ps complaint in trespass. Ds affirmative defense: that it was a good faith mistake, lacking intent. But there is no intent necessary for trespass. iii. Issue: Whether a good faith mistake means that there isnt intent necessary for trespass. iv. Intent in this case is for the trespass, by shooting. v. This was not a cause of action for battery because battery is harmful/offensive contact to a person. vi. Does making a mistake mean no intent? 1. Intent is different from motive. Intent has to do with the action. 2. He intended to pull the trigger, even though is motive was to kill a wolf, not a dog 3. A good faith mistake doesnt get you out of intent. c. McGuire v. Almy i. Recall: Insane person struck nurse and caused injury. Issue: Whether an insane person is liable for tort assault and battery. ii. Tort law if someone gets hurt, there ought to be a way to make them whole. iii. A person is liable for injuries that are not intended or not foreseeable, but injury is not an element in intentional tort, there is no need to prove an injury. d. Fisher v. Carrousel Motor Hotel i. Recall: employee of D snatched a plate from Ps hand and shouted that Negroes could not be served in this club. P sues for assault and battery.


ii. Issue: Whether there must be an actual touching of the person to constitute a battery; and Whether P was entitled to compensatory damages for mental suffering (even though no physical injury). Holding: Yes and Yes (invasion of a persons dignity). iii. Lesson: this case illuminates that the idea of person is broadened broadens the 2nd element of battery: Harmful/offensive contact to a person or customarily an extension of the person. Assault a. Elements: i. Intent to cause apprehension of imminent contact ii. Reasonable apprehension (this is based on the physical facts) of imminent contact. 1. Reasonable apprehension requires: a. Apparent present ability to accomplish contact b. Threat must be present & unconditional [illegality exception crime] 2. Words alone do not constitute an assault. Future threats do not constitute. 3. Usually a conditional threat is not an assault unless its a crime (i.e. Im going to hit you if you dont give me your $ is committing a crime, but Im going to hit you if you dont leave the room is different, since theres a condition you can perform to avoid battery.) b. I de S et Ux v. W de S i. Cause of action for trespass Ps claim for trespass by assault on the wife (D struck with his hatchet but did not hit her when she stuck her head out the window to tell him the tavern was closed). D says hes not liable since no harm was done. ii. Issue: Whether actually doing physical injury to the person is a necessary element of trespass (necessary for the recovery of trespass for assault). Holding: No, it is not necessary to do physical harm in order to warrant trespass for assault. iii. In modern terms: The judge said no harm, no trespass. Other Judge then says that P wins as a matter of law although he did no harm, he still made an assault upon the wife, and for an assault, you recover damages. iv. HYPO: W de S steps forward, slams the end of the axe into the door (knocking) & yells bitch with no intent to hurt or scare her (not knowing she was there). Is he nevertheless liable for assault? 1. If there is no intent, 1 of the elements of assault is missing But this is a still a trespass (since he steps forward onto the steps and keeps knocking). 2. So the Doctrine of Transferred Intent comes in here: If you intend to accomplish 1 of the 5 original torts and accomplish another, the intent for the 1 you did transfers to the other (Only for these 5: battery, assault, false imprisonment, trespass to land, trespass to chattels). 3. So W de S is liable for assault, since the intent from trespass transfers to assault. c. Western Union Telegraph v. Hill i. Recall: If you come back here and let me love you and pet you, I will fix your clock. P sues for damages for assault on his wife. Jury decides in favor of P, but the decision is reversed. There was no imminent apprehension in this case (facts show that D could not reach the wife). ii. Issue: Are these facts sufficient could he reach over the desk and thus touch her? The ct here says that What it does take to constitute an assault is an unlawful attempt to commit a battery, incomplete by reason of some intervening cause. This is wrong! d. Spivey v. Battaglia i. P and D worked together. At lunch, D, knowing P was shy and intending to tease her, gave her a friendly unsolicited hug, after which she suffered pain and paralyzation on her face. P brought suit for (1) negligence and (2) assault and battery. (Note there is no intent in negligence).


ii. D says hes a batterer and thus has intent the statute ran, so he should be home free. But the ct got something wrong: 1. Battery is an intent to cause harmful or offensive contact but the ct says that this is not what D intended. But the teasing could be argued as offensive, because she was shy and he knew it. 2. The 1 thing the ct got wrong: harmful contact was the only aspect they focused on, not offensive contact. e. Talmage v. Smith i. Recall: D took a stick and threw it at a boy on top of his shed, and instead it hit P, causing him to lose sight in one eye. ii. The jury ruled in favor of P. They were given these instructions: if you intend to hit A and hit B, then youre liable for Bs injury. D appeals and says these instructions are wrong. iii. Are these instructions correct that if a person intends to hit one person but hits another is liable for the injury? D had purpose. Remember the purpose of torts: (1) if someone if hurt, they should get recompensed, (2) want to influence how ppl in society should behave. 1. The ct here is focusing on recompense. 2. If you intend a harmful/offensive contact, and there is one, it doesnt matter who you hurt, even if its a person you didnt intend to hurt. 3. Doctrine of Transferred Intent. False Imprisonment (see also False Imprisonment Hypos in notes) a. Elements: i. Intent to restrain ii. Restraint 1. Restraint can be direct or indirect; words alone are insufficient (moral persuasion is not restraint) 2. Threat of future action is not enough. 3. Restraint must be unlawful no legal justification (this is not actually an element. It is something D has to plead and prove, not P) b. Defenses for which D has the burden of persuasion: i. Justification ii. Reasonable avenue of escape c. Awareness: i. In some jurisdictions (i.e. NY), P must be aware of restraint. ii. In some jurisdictions, P can recover even if unaware of restraint. iii. In some jurisdictions, the unaware P may recover only if suffered physical injury from false imprisonment. d. Big Town Nursing Home v. Newman i. Recall: P was locked up in nursing home for 51 days, tried numerous times to escape and was restrained against his will. Lost 30 lbs. ii. D claims insufficient facts/evidence for the findings of liability and amt of damages. Ct finds ample evidence. P was held against his will. D intended to restrain him. iii. Issue: should exemplary damages be available in this type of case? iv. Liability is established in this case. e. Hardy v. LaBelles i. P was hired as a sales clerk and was accused of stealing jewelry. Was led into the office where she was confronted with managers and maybe a cop, and asked to take a lie detector test. P claims false imprisonment based on the situation and the words of moral obligation. ii. Issue: whether P was falsely imprisoned, when there were no threats of force. iii. Words alone may be sufficient, if they amt to duress. But here the ct said they did not.


iv. Moral persuasion is not enough. P argues the context in which she arrived held her. But if you have a reasonable way to escape, then you are not restrained. f. Whittaker v. Sandford i. Recall: religious sect case. P & kids wanted out, D was the leader and offered her a ride back to the U.S. on his yacht, but then wouldnt give her a boat to transport her to land. ii. Issue: whether she was physically restrained If failure to provide transportation is physical restraint. Yes - there is no reasonable avenue of escape. g. Enright v. Groves i. Recall: P was convicted under the leash law. But the ct found it clear that this was not why she was arrested. She was arrested for not producing her license (the officer grabbed her arm and arrested her). There is no statute or case law that requires a citizen to produce a license on demand (unless driving). ii. Rule: When a claim of false arrest is made, a defense that the arrest was done because of an unrelated conviction is not acceptable. iii. Also, the fact that he was a police officer constitutes restraint, not just moral persuasion. An officers uniform can be enough (Doctrine of Apparent Authority). Intentional Affliction of Emotional Distress a modern tort a. Elements: i. Intent to cause emotional distress in an individual ii. Outrageous conduct iii. Severe emotional distress iv. Causal connection between the conduct and the distress 1. Outrageous and Severe are fact-laden issues 2. Presence is required in many jurisdictions (i.e. in Taylor, Ds didnt know she was there) b. State Rubbish Collectors v. Siliznoff i. Siliznoff signed the notes, but didnt pay State Rubbish asserts a contract. Siliznoff counterclaimed with the affirmative defense (he has the burden to persuade) that he signed the noted because of duress. 1. If D can prove duress, that is an affirmative defense to $ for the note. 2. Counterclaim: P (D above) sues for assault. D (P above) would deny no assault occurred. 3. There was no assault here this was a future threat. No false imprisonment only moral persuasion. So Judge Traynor invents a tort Intentional Infliction of Emotional Distress: must have intent to create (& succeed in creating) severe and emotional distress, and the conduct must be severe and outrageous. 4. Words alone are unlikely to be sufficient. c. Slocum v. Food Fair Store of FL i. Ds employee: If you want to know the price, youll have to find out the best way you can, you stink to me. P alleges the insult caused an ensuing heart attack and aggravation of a pre-existing heart disease. ii. There are no facts here from which a reasonable person could intend severe emotional distress. d. Harris v. Jones i. Recall: Speech impediment. Ps boss, D, verbally and physically mimicked his impediment, causing heightened nervousness and a worsening in the stutter. ii. There was no causal connection in the case that the conduct was outrageous enough to cause severe emotional distress. iii. P, on these facts, did not show severe emotional distress. Facts matter. e. Taylor v. Vallelunga

i. Recall: P witnessed her father being beaten up by D (the beating caused him bodily injury). Sheii. alleges that as she suffered severe fright and emotional distress as a result, and seeks damages for the distress. There was no physical disability or injury that resulted from the mental distress. Issue: What kind of intent must be alleged in order for a bystander to recover from intentional infliction of emotional distress? Can someone watching, but whose presence is unknown, recover? This case is about the intent of the actor. P should have pled that D had the intent to beat up dad and thus cause emotional distress to his family. Transferred intent doesnt work here because this is not one of the 5 original torts. Most states require that: (1) the action be directed at the individual; (2) P is present, conduct must be in the presence of P.

iii.iv. v.




Trespass to Land a. Dougherty v. Stepp i. The law infers some damage to every intentional and unauthorized entry (even if no harm is actually done). b. Herrin v. Sutherland i. Although D wasnt standing on Ps property while duck hunting, he repeatedly shot at ducks in flight over Ps land. ii. Issue: Is the air above your land your land in the sense that if someone unauthorized is on it, is it a trespass? Yes. Air above land is subject to trespass. c. Rogers v. Board of Road Comrs i. D had permission to be on Ps land had authorized entry. So if you have authorized entry to go on someones land, its not a trespass Can it become a trespass? Yes. ii. After the license has ended, it is a trespass. A continuing trespass, because authorization has expired. iii. Ps husband died because of an unremoved post of the snow fence. But recovery does not depend on the foreseeability of the injury (this is negligence, which was dismissed because of governmental immunity) the recovery is based on the trespass. Trespass to Chattels a. Compuserve v. Cyber Promotions i. Trespass to chattels (which had been dead) now matters in the internet age. ii. Hypo: Pace wants to maintain trespass to chattels to a drug prescription co. who continuously emails via Paces server. Can they? Yes, probably. It could be argued that Paces chattel (the server) has been compromised/stolen by someone who floods it. Consent i. Sometimes Ps burden ii. Can be contextual iii. Conduct can constitute consent iv. Custom can determine consent v. Rules can influence consent vi. Emergency can create consent vii. Consent may be informed deceit can be by omission b. OBrien v. Cunard i. Recall: immigrant receiving immunization. She held up her arm to be vaccinated. But sues the physician for assault and negligently vaccinating her. ii. Lesson: ** Consent need not be verbal, it can be contextual. P holding her arm up was sufficient consent. c. Hackbart v. Cincinnati Bengals i. Bengals offensive back, Clark, hit P when the game was not in play. P sues for battery. Did P consent here? The trial ct said he consented to what goes on in the game.

ii. Custom is the issue it is customary in the game that these penalties happen its in the rules. So if the same hit happened while the game was going on, P would have been said to have consented. But hitting someone after the whistle was blown is not customary. iii. Reversed and remanded opportunity to argue lack of consent, based on custom. d. Mohr v. Williams i. Recall: P went in for surgery on right ear and came out with surgery done on left ear. ii. Was the medical procedure justified as a matter of law? Consent or emergency would absolve liability, but there was neither in this case. The trial ct is justified in saying this was a battery. iii. The fact that the battery is helpful does not make it not a battery. e. De May v. Roberts i. D, Ps physician, brought some random unmarried male to help him deliver Ps baby. P sues D for assault (battery unauthorized offensive touching). ii. Consent not based upon full disclosure (deceit by omission). Consent based upon deceit is not consent. XI. Defense of Property a. Katko v. Briney i. D appeals because of the judges instructions to the jury you may not protect against trespass with a spring gun. ii. This was a question of privilege you dont have privilege with respect to setting up a spring gun to protect against trespassers. XII. Recovery of Property a. Merchant privilege i. reasonable suspicion and investigation ii. Immediate vicinity rule in some jurisdictions b. Bonkowski v. Arlans Department Store i. P sues for false arrest after being called back from the parking lot, accused of stealing. D searched her bag. ii. Issue: If a merchant reasonably believes someone stole items, does he have a privilege to detain that person for a reasonable investigation of the facts? Yes. iii. The trick is figuring out if the facts are reasonable and the vicinity is immediate applying the law to the facts in question. iv. A merchant has a privilege to detain a customer that the merchant reasonably believes has stolen, for a reasonable amt of time, in their immediate vicinity. XIII. Necessity the equity approach a. Vincent v. Lake Erie Transp. i. Precedent: Ploof v. Putnam no trespass because necessity is a privilege necessity constitutes a privilege. ii. There are choices in these cases the trespasser (person in peril) chooses what is and what isnt a necessity. The law has worked it out in a way thats equitable. XIV. Justification a. Sindle v. NYC Transit Authority i. Last day of school, kids vandalize, bus driver takes them to police station. P sues for being falsely imprisoned. ii. Issue: whether justification should be permitted as an affirmative defense. Yes. iii. A school bus driver has the duty to take reasonable measures for the safety and protection of both the student and the custody of public property.

Negligence Elements: o Duty o Breach [negligence] o Causation o Injury General: Negligence is when Ds conduct imposes an unreasonable risk upon another, which results in injury to that other. Mental state is irrelevant. Reasonable person standard: The care a person of ordinary prudence would take under the circumstances. Deciding Reasonableness: Judge sets boundaries [negligence or not as a matter of law]; Jury decides if the conduct is within boundaries [matter of fact]. Decider uses cost/benefit analysis i. Consequence must be foreseeable for conduct to be unreasonable. 1. Foreseeable means not probable 2. Foreseeability = likelihood of consequence sufficient for reasonable person to act or forebear. ii. In most cases, the jury decides what is fair and reasonable

Consequence must be foreseeable for conduct to be unreasonable Unreasonable = not probable Foreseeability = likelihood of consequence sufficient for a reasonable person to act or forebear.

Lubitz v. Wells Wells left a golf club lying in his yard. His son used it and injured P. Ct held that the father could not be held liable for failure to remove the club from the yard. Standard: What the judge believes a reasonable jury would find. These facts, as a matter of law, do not constitute negligence. When an object is not obviously and intrinsically dangerous, D cannot be held liable for an injury that occurs from his child using it. Blyth v. Birmingham Waterworks D installed water mains 25 yrs ago which sprung a leak b/c of severe frost flooded Ps home. D acted as a reasonably and prudent person when first installing the mains The damage was not foreseeable. [Judge was wrong in denying a motion for a directed verdict (giving it to a jury)] Gulf Refining Co. v. Williams P opened the drum of gasoline for the first time and was burned from fire, caused by condition of unrepair in the bung cap, which Ds employee knew. Failure to repair is negligence This was foreseeable. Foreseeability is a jury question. Need sufficient info that the injury was foreseeable by D. Not that D thought it more likely than not to explode (foreseeability is not the same as legal probability) [Comes out differently than Blyth, as a matter of law] Chicago, B. & Q.R. v. Krayenbuhl child played on an unlocked turntable (located near a local path used by the public) and was injured. Is the turntable condition one that a reasonable person may maintain under the circumstances? No. Risk-benefit analysis: weigh the danger to others v. the benefit of the utility Standard: Take into acct the type and location, purpose used, probability of injury, precautions necessary to prevent injury, and how these precautions affect the benefits of the premises.

The public good necessitates the use of the RR and thus dangers are usually acceptable because of its utility. However, when precautions can be taken to lessen the risk and the expense would not be too extreme, it is necessary that the owner take those precautions. Restatement 291 When act is one which a reasonable man would recognize as involving risk to others, the risk if unreasonable when the risk outweigh the utility of the act or the manner in which the act is done. Davison v. Snohomish County Ps crossed a bridge and drove through the railing. Claim for negligence is the insufficiency of railing to prevent the car from skidding off. As a matter of law, D was not negligent. Not reasonable because the county would run out of $ and wouldnt be able to build roads Compare with Bartlett v. Northern Pacific RR Co same facts. Davison decision is outdated, times have changed. Question of risk-benefit analysis is a jury question. United States v. Carroll Towing Co. Ds negligently shifted a barges mooring lines, causing her to break free of the pier. She drifted against a tanker, & sank with her cargo of US flour. Is the failure to have the bargee on the barge unreasonable under the circumstances? It is negligent not to have the bargee during daytime hrs. Burden < injury x probability = liability [This is what the fact-finder does for a cost-benefit analysis. Facts matter.]

The reasonable person standard for negligence Objective standard This standard is objective intelligence or lack thereof is not a factor (Vaughan v. Menlove) The knowledge imputed to a reasonable person is a matter of law for the judge Custom can influence, but not be determinate, of what a reasonable person of ordinary prudence would do under the circumstances. Emergency is a circumstance that can avoid liability. Physical disability is considered. A childs age, maturity, experience, intelligence considered except when engaged in inherently dangerous activity/adult liability. There are jurisdictional differences on this issue.

Vaughan v. Menlove D build a hay rick at the boundary of his land and was told that it could ignite. The rick ignited and spread to Ps cottages. P was not very intelligent. Issue: Does the standard of care reflect this mans intelligence? Do you take into consideration Ds level of intelligence? No. P still has to be recompensed. Objective standard subjective is too hard. Instructions ruled improper b/c of subjectivity Delair v. McAdoo D was driving alongside P when his tire blew out and swerved into P. Witnesses state his tire was worn through to the fabric. How do we know the tires are bad? Because the jury said so. Whether determining the condition of the tires and the reasonableness are questions of fact for the jury to decide? Yes. The condition of the tires and reasonableness are jury questions. 1. Matter of law (judge decides what it is a reasonable person should know) v. matter of fact. The law is imposing a duty here certain levels of knowledge are attributed to you. What you didnt know as a driver is not an excuse. Lack of knowledge that you should have does not modify the standard. Trimarco v. Klein P is a tenant. When getting out of his tub he was severely cut by the glass from the sliding door. It had earlier started to become customary for landlords to install shatterproof materials for bathroom enclosures. Does the custom of the industry in the absence of a rule make it a jury question? Yes, custom makes a jury question of what a reasonable person would do under the circumstances.

Custom is relevant but does not determine what a reasonable person would do relevant but not controlling*** - it is a jury question. Custom influences what our objective standard is. Cordas v. Peerless Transportation Co. thief entered chauffeurs car and held him at gunpoint. Chauffeur jammed the breaks and jumped out. Cab mounted the sidewalk and slightly injured Ps. Judge makes the dismissal as a matter of law. Emergency excuses liability. Roberts v. State of Louisiana P was injured after blind operator of a concession stand at the post office building bumped into him. The physical characteristic here changes the standard (remember, not modified for mental condition, from Menlove). Whether Bursons precautions were the same the reasonable man would take if he were blind. As a matter of law, this conduct was not negligence. Robinson v. Lindsay Ps thumb severed when riding on innertube pulled by Ds snowmobile which was driven by a 13 yr old. The instruction to the jury is at issue. When its an instruction at issue, it is a law question. Instruction: that it is the duty of a child to exercise the same care that a reasonably careful child of the same care that a reasonably careful child of the same age, intelligence, maturity, training, and experience would exercise under the same or similar circumstances. Notice the different standard for children The child instruction does not apply when the child is engages in an inherently dangerous activity. Breunig v. American Family Ins. Co. Erma Veith was subject to insane delusion and crashed into Ps truck. The normal rule is still applicable when a sudden mental illness takes over. Most cts do not make any allowance for the mental illness of D D is still judged by the standard of the reasonable person. Here D had sufficient warning, so the jury verdict was appropriate. What we learn from these cases about the reasonable person standard: It is an objective standard Intelligence does not modify the standard Lack of knowledge that you should have does not modify the standard Sudden mental illness does not modify the standard Physical different does modify the standard Child could modify (but not in an inherently dangerous act) Custom influences the standard Hypo: To what standard is a person w/ Alzheimers held? If theres a physical difference, youre entitled to a different standard, but not if theres a mental one. But in Alzheimers there is a physical difference in the brain. It is not clear which, as a matter of fact, this person would meet.

The professional standard of care Objective: care exercised by reasonable professional of ordinary prudence under the circumstances. Best judgment exception to liability (re-read notes 2, 3, 4 p. 175-176) Standard in similar community (locality v. national compromise) (note 2, p. 184-185) Medical Malpractice: failure to give informed consent o Informed consent: What must be told? What a reasonable person would want to know. What causation must be proved? Reasonable patient.

Legal malpractice: case within a case requirement for prima facie; P has to show that the lawyers screw up caused the loss of the case.

Heath v. Swift Wings, Inc. pilot and family and friend were all killed in a plane crash. What a prudent pilot would do under the circumstances need expert witness to determine the norm The standard is objective the knowledge, training, and skill of an ordinary member of the profession in good standing. [Specialists are held to an even higher standard.] Hodges v. Carter legal malpractice; Ds are attorneys who followed the custom, prevalent in NY for 2 decades, of mailing the process to the Commissioner of the insurance companies. P instituted the action alleging that Ds were negligent in prosecuting said actions in that they failed to have process properly served and also failed to procure issuance although they had 60 days. Can a lawyer in good faith who uses his best judgment use this as a defense? Yes, best judgment is a defense to professional liability. Attorney is not liable when he acts in good faith and in an honest belief that his acts and advice are well founded and in the best interest of his client. Legal Malpractice there are 2 cases before the same jury: (1) P has to show that the lawyer made a mistake which a lawyer of reasonable prudence would not have made, And (2) the case the lawyer screwed up would have been successful. Boyce v. Brown medical malpractice. Mrs. Boyce had ankle surgery, years later went back to the dr in pain, who did not x-ray her. She went to another dr who x-rayed her and found necrosis in the bone. The dr who testified did not conclusively say that the failure to x-ray was a deviation from a proper standard of care. In the absence of expert testimony stating the standard of care, P cannot win. It is going too far to say that failure to take an x-ray of Ps ankle at the time was so far a departure from ordinary medical standards that even laymen would understand it to be gross negligence. Ct did not allow jury to try the case b/c there was not enough evidence contrary to Ds practices. In medical malpractice cases, you need expert testimony. Morrison v. MacNamara P fainted and struck his head while standing during a procedure at a nationally certified medical lab in DC. An expert from MI testified that the national standard of care requires that the patient sit or lie down during the test. Ds med expert from DC testified that they always administered the test to the patient standing. ii. Which standard of good medical practice, local or national, is applicable to a nationally certified medical lab. iii. Locality rule v. national rule But even a quick look tells us that whatever relevance the locality rule had to the practice of medicine in remote rural communities, it has no relevance to medical practice in DC. iv. This is a minority view. Majority: Most jurisdictions go by a blend of locality & national in a similar community, under similar circumstances. Scott v. Bradford after a hysterectomy, P experienced problems and went through 3 surgeries to fix the problem. She claimed that D failed to advise her of all the risks involved. This is a prospective case. v. Jury must determine the duty: 1. tell a patient what a reasonable dr would disclose; or 2. what a reasonable patient would want to know this is what the jury decides vi. Negligence case the issue has to do with the propriety of consent. vii. Causation: this ct held that P has to prove not that a reasonable patient would do something else, but that this patient would. But this subjective and a minority. viii. Majority: Usually it is that a reasonable patient would do something else objective standard.

Failure of informed consent: 1. D gained consent without adequate info (what a reasonable patient would want to know) 2. If informed, no consent (of a reasonable person) 3. Injury

Statutory Standards statutes as the source of the duty of care in negligence Criminal statutes can create a duty applicable in civil cases. Criminal statute might not create standard of care even if injured person is in class to be protected and injury is of a kind to be protected against. Whether a statute creates a duty applicable in civil cases is a question of law for the court ix. What is the legislative intent? x. Is the person injured in the class of people intended to be protected? xi. Is the injury of the kind intended to be protected against? [Enabling statutes can create civil actions unknown to common law.] Not all criminal statutes create a duty of care applicable in civil cases. The effect of a statutory duty of care varies in various jurisdictions. Effect of statutory standard varies with jurisdiction. o Sets duty as a matter of law (negligence per se) o Creates rebuttable presumption of negligence (issue of excuse) 2 versions: 1. P burden of persuasion on no excuse 2. D burden of persuasion on excuse Evidence of negligence

Osborne v. McMasters P died from the use of poison sold without a label by Ds clerk. The statute is conclusive. No jury determination, since the statute fixes the legal duty. Negligence per se = judge instructs the jury that the statute says X. If D did not do X the jury must find him negligent. But this does not necessarily mean D is liable. For liability, also must prove duty, breach, cause, injury. This statute is a criminal statute. Does not create a civil action. A standard of care can come from a statute. The standard sets the duty. Stachniewisc v. Mar-Cam Corp. customers in a bar are subject to a fight started by drunk Native Americans. P was found unconscious outside, not knowing what caused his injuries. xii. Complaint: bar owner didnt comply with the statute and regulation xiii. Reversed and remanded because the regulation creates a duty. The statute does not set a civil duty cant find negligence from serving a drunk. But the regulation sets a duty. xiv. The jury must find that is was negligence. The jury must now only determine cause what is it that caused the injury (since P was unconscious and did not know). Causation is why the case was remanded, and whether D breached the duty. xv. Hypo does the statute protect employees at the bar? RULE: A violation of a statute or regulation constitutes negligence as a matter of law when the violation results in injury to a member of the class of person intended to be protected by the legislation when the harm is of the kind which the statute or regulation was enacted to prevent. P was in the class of people intended to be protected by the statute mandating bars not to serve those who are visibly intoxicated. Statute must apply to facts There can only be negligence per se when the statute was intended to guard against the type of injury which occurred and the person is within the group of ppl the statute is meant to protect

Ney v. Yellow Cab Co. P charged that D negligently left its cab on the street with the engine running. A thief stole the cab and damaged Ps car in its flight. Issue: legislative intent is the key as to whether the standard in the statute sets forth a civil case. xvi. Whether the writers of the legislation intended to protect this P against this type of occurrence. xvii. D argues that the statute is a traffic violation, not an antitheft measure. xviii. P argues that the statute is a safety measure for the benefit of the public. xix. The ct decides as a matter of law (by looking at legislative intent) whether the standard of a statute applies. Ct decides here that negligence is a given, so negligence isnt for the jury. Criminal act in violation of a statute The intervention of a criminal act does not necessarily interrupt the relation of cause and effect between the negligence and the injury. If the criminal act might reasonably have been foreseen at the time of the negligence, the causal chain is not broken. Perry v. S.N. and S.N. kids abused at a daycare. Ds somewhat knew and didnt report it (Texas Family Code). xx. Failure of notice problem with notice. Should a standard in a criminal case apply here, in a civil case. xxi. Problem with holding a person who fails to report suspected abuse civilly liable for the enormous damages the abuser inflicts. xxii. Ct says there is no common law cause of action you dont have a duty to step in and solve a problem. Ct says there is no statute cause of action either here. Failure to act does not mean that there is a civil liability. No liability b/c (1) language of the statute does not give specific notice as to when there is cause to do something (report the abuse) and (2) there is no proximate causal relationship between Ds failure to act and the injury that resulted. Contributory Negligence per se Martin v. Herzog P and husband were hit by Ds car coming from the opposite direction. D did not keep to the center of the driveway, but Ps husband (now dead) drove without lights (night). xxiii. Affirmative defense of contributory negligence was a complete defense at this time. xxiv. As a matter of law, a reasonable jury must conclude that the failure to have lights contributed to the accident. D wins. xxv. At issue is whether the activity was negligent. Clearly the activity of the buggy driver (dead husband) is negligent. Zeni v. Anderson P was walking to work on a well-used snow path with her back to oncoming traffic instead of using the sidewalk (supposedly safer to walk on the path). D hit P with her car. Witness reported that the windshield was clouded. P ends up winning statute provides a legislatively mandated excuse. xxvi. D says Ps failure to use the sidewalk constituted contributory negligence because it violated the statute. xxvii. Issue: Whether conditions can excuse a person from complying with statutory duties. xxviii. Under negligence per se, if a party violates a statutory duty, that party is strictly liable. Another possibility jury may or may not determine if that party was negligent. xxix. If a party has violated a statutory duty, that party has claimed the burden of going forward. rebuttable presumption as to why she was not adhering to the statute. xxx. P showed sufficient excuse to violate the statute and therefore no contributory negligence Possibilities of applying a statute for negligence Negligence per se jury gets no instruction regarding whether D was negligent

Rebuttal Presumption of negligence (A) excuse given for not following statute, therefore burden of proof is shifted to D. D must show that there is enough evidence for judge to decide, as a matter of law, that there is an excuse. P still has burden of persuasion. Rebuttal Presumption of negligence (B) Burden of production and persuasion shifted to D. D must show enough evidence of excuse as to have it not be a matter of law and must persuade the jury that the excuse is enough to mitigate the necessity of following the statute. Evidence of negligence Statute creates a standard of care that the jury may but need not adopt. Statute violation merely established prima facie case.

Categories of proof Burden of production must produce enough evidence for a prima facie case and if there is not enough evidence, the case will be dismissed as a matter of law. If you can prove the burden of production you get to go to the jury. Burden of persuasion if you cant persuade the jury then you lose.

Proving a negligent act: circumstantial evidence How much circumstantial evidence is needed to establish that D had notice of the condition creating a hazard? Proving Negligence: Direct & Circumstantial o Direct = equal to the proposition you are trying to prove o Circumstantial = requires an inference to be equal to the proposition o Most cases are a combo Res Ipsa Loquitur Requirements: o Event would not normally occur without negligence o Evidence sufficient to eliminate plaintiff or 3rd person negligence P has to show duty and breach for a prima facie case. To avoid dismissal, a reasonable jury must fairly conclude duty and breach.

Banana Slip and Fall Cases Goddard v. Boston & Maine R.R. Co. P fell on a banana skin lying on Ds platform. There were many passengers. The banana could have been dropped 30 seconds or 1 hr before, who knows. No notice. Anjou v. Boston Elevated Railway Co. P slipped on a black, dry, gritty, trampled banana peel as she was led down the stairs by one of the employees. Directed verdict for P. It is clear that D had notice as a matter of law. Joye v. Great Atlantic and Pacific Tea Co. P fell and slipped on a banana in A&P. No evidence that A&P put the banana on the floor or had actual notice of it. Condition of banana could be new or old. The floor may not have been swept for as long as 35 min. Insufficient circumstantial evidence P won originally but the Ct of Appeals reverses. Ortega v. Kmart Corp. P was shopping at Kmart when he slipped on a puddle of milk. He did not know how old the milk was and could not present evidence showing how long it was on the floor. P claimed that because the evidence showed D has not inspected the premises in a reasonable period of time prior to the accident, the jury could infer that the puddle was on the floor long enough for Ds employees to have discovered and remedied it. This is sufficient evidence for a jury to find notice. When a dangerous condition has existed for long enough for a reasonably prudent person to have discovered it is a question of fact for the jury.

Jasko v. F.W. Woolworth Co. Ds sold pizza on wax paper to customers who stand and eat; P slipped on a piece of pizza P did not have to show notice of the piece of pizza on the floor because the dangerous condition was caused by the method of sale. Res Ipsa Loquitur the thing speaks for itself Elements: - No direct evidence of Ds conduct - Event would normally not occur without their being negligence - The event that caused the injury was in the control of D at the time of the injury - Causes other than D evidence (P or 3rd party) eliminated by evidence. Byrne v. Boadle P was walking on a public street past Ds shop when a barrel of flour fell on him from a window. No evidence. Res ipsa loquitur (the thing speaks for itself) the mere fact of the accident having occurred is evidence of negligence. McDougald v. Perry P was driving behind a tractor-trailer driven by D. As D drove over some RR tracks, the 130-lb spare tire came out of its cradle underneath the trailer and hit Ps windshield. The tire escaping would not have occurred but for a failure of reasonable care by the person or entity in control of the truck application of res ipsa loquitur approved. An injury standing alone ordinarily does not indicate negligence. The doctrine of res ipsa loquitur simply recognizes that in rare instances an injury may permit an inference of negligence if coupled with a sufficient showing of its immediate, precipitating cause. Restatement 328D have to look at the type of event and the basis of the conclusion to properly analyze this. Larson v. St. Francis Hotel P was struck by a heavy arm chair when stepping out from under the marquee of the D hotel. It is a reasonable inference that the chair came from some portion of the hotel. But a hotel does not have exclusive control P could not eliminate the negligence of guests. This is not the modern rule. Modern cases tend to focus more on the Restatement 328(d)(1)(b) language other responsible causes, including the conduct of the P and 3rd persons, are sufficiently eliminated by the evidence rather than strictly on the traditional exclusive control language. Ybarra v. Spangard res doctrine was extended to allow a patient in a medical malpractice case to bring a res action against his surgeon, the nurses, the anesthesiologist, and the hospital after the patient suffered permanent nerve damage to his shoulder during an appendectomy. P cant show exclusive control. Ds contend that there is no showing that the act of any particular D was the cause. But if we accept this contention, there will rarely be any compensation for patients injured while unconscious. The number of those in whose care the patient is placed is not a good reason for denying him all reasonable opportunity to recover for negligent harm. Exclusive control does not apply in a hospital with an unconscious patient. P is permitted to sue multiple Ds b/c his condition would not have occurred without negligence on their parts and it is the burden of Ds to show that it was not his/her negligence causing the injury. Sullivan v. Crabtree Ps son was killed as a passenger in a truck driven by D that swerved off the highway. Inference of negligence in this case is enough to go to the jury. 3 possibilities: 1. Inference of negligence enough to go to the jury a. Most jurisdictions follow this res ipsa is circumstantial. As a result, there are no jury instructions on res ipsa. b. Res ipsa only happens when P cannot identify negligence.

2. Presumption of negligence shifts the burden of production to D. If D cant produce evidence, then P wins on the issue of negligence as a matter of law. 3. Burden of persuasion (for the jury) P has the burden to persuade the jury that its more likely than not that D was negligent. Shifts burden to D. The Cause-in-Fact Element of Negligence But for approach to relationship between negligence and injury. Level of proof necessary for prima facie case: possible Level of proof to prevail: more likely than not Substantial factor articulation of cause-in-fact Concurrent causes: neither alone would cause injury either alone would cause injury Burden shifting when P is unable to identify one of more of multiple Ds (Summers v. Tice) Perkins v. Texas & New Orleans Railway Ps husband died in the collision of a car with an oncoming train. The train was traveling 37 mph when it should have been going 25. No question that D was negligent. P failed to discharge the burden of proving that Ds negligence was a cause in fact of the death. Cause in fact negligence is a cause in fact of the harm to another if it was a substantial factor in bringing about that harm. Whether the excessive speed of the train was the cause in fact/substantial factor of the fatal collision. Although negligence is clear, if the train was actually going 25mph thered still be the same result no causation; no but-for relationship. Reynolds v. Texas & Pacific Railway P hastened down unlighted steps at the train station and fell. Whether Ds failure to light the stairway was a cause in fact. Yes. Where Ds negligence greatly multiplies the chances of the accident and naturally leads to it, the possibility that it might have happened without the negligence is not enough to break the chain of cause and effect between negligence and injury. xxxi. Showing that your causation is possible makes this enough to get to the jury. 1. Satisfies the burden of production 2. Possible that this negligence caused the injury Gentry v. Douglas Hereford Ranch, Inc. D Bacon went to the car to get his rifle and stumbled and accidentally shot Ps wife. P contends that Bacon had been negligent in his handling of the rifle and that the ranch company and cattle company had been negligent in maintaining the deck stairs in a dangerous condition, and that their combined negligence caused the death. Whether P proved cause-in-fact that his wifes death would not have occurred but for the failure of D to maintain the steps for a reasonable jury to find. No P failed to prove cause-in-fact because Bacon has no idea what caused his fall. P failed to prove causation. No question of negligence here, but the failure is the failure to prove that negligence caused the injury. Kramer Service v. Wilkins P was a guest in D hotel and received a cut from a piece of glass that fell from a broken transom that D should have had notice of. P developed a skin cancer at the pt of the injury. Whether there is a causal connection that can be proven between the injury and the cancer. Appellant (hotel) requested an instruction to the effect that the cancer should not be taken into consideration by the jury, but this instruction was refused. Affirmed as to liability, reversed and remanded on the issue of damages. No causal connection can be proven between the injury and the cancer. Herskovits v. Group Health Cooperative Ds were negligent in failing to diagnose P on cancer. Such negligence was the proximate cause of reducing his changes of survival by 14%. P cannot prove that timely diagnosis would have allowed him to live a normal life expectancy.

xxxii. Injury is loss of chance to survive, caused by Ds negligence. xxxiii. Whether the medical testimony of a reduction of chance of survival in this case is sufficient evidence to allow the proximate cause issue to go to the jury. Yes. xxxiv. The ct allows the case to go to the jury as long as the P shows some reduction in the chance of survival. Concurrent Causes D may not claim that she is not the actual cause of Ps injuries merely because some other persons negligence also contributed to the injury If either one of the acts of negligence could have caused the injury then both parties are negligent. - If the injury could not have occurred without both acts of negligence, both parties are held liable. Hill v. Edwards Owner of a tractor truck left it parked without lights in the middle of the road on a stormy night. P was the passenger of the car which collided with the truck from the rear. Even if the drivers negligence was a cause, should the owner of the trucks negligence be taken into acct as well? Yes. Where separate acts of negligence combine to produce directly a single injury each tortfeasor is responsible for the entire result, even though his act alone might now have caused it. Each tortfeasor is a cause-in-fact cause, but neither is a But-For cause. Determining which party caused the harm In joint and several liability, P can sue several Ds 1. Vicarious liability P can sue both the employer and employee 2. Concurrent causes (Hill v. Edwards; Anderson) 3. Acting in concert Anderson v. Minneapolis, St. P. & S. St. M. R.R. A forest fire (set by the engine) caused by the negligence of D swept over a large area, merged with another fire of unknown origin, and the combined fire burned Ps property. The But-For test doesnt work here this is a substantial factor case either fire alone would have caused the injury, so either Ds are negligent. D should be held liable. Summers v. Tice P and 2 Ds were members of a hunting party. Both Ds fired negligently, at the same time, and P was struck in the eye by a shot from 1 gun. Whether the judgment against both Ds can stand, even though only 1 D is responsible for the damage? Yes. No causation to prove here. Like Ybarra unfair to make P prove causation. Ct switches the burden of persuasion on causation to Ds. Sindell v. Abbott Labs Ps mom took DES while pregnant, resulting in Ps cancer. DES was marketed by the Ds, 5 drug companies, along with approx. 195 other companies. P cannot identify the manufacturer of the drug her mom took. Whether a modification of the rule in Summers is warranted that there is only 1 manufacturer responsible for the pills Ps mom took, but she names several to recover. Yes, where all Ds produced a drug from an identical formula and the manufacturer of DES which caused Ps injuries cannot be identified through no fault of P, a modification is warranted. P argues that the Ds she names produced 90% of the DES marketed. If this is so, then there is a corresponding likelihood that this comparative handful manufactured the DES which caused P injuries, and only a 10% likelihood that the offending produced would escape liability. If you can join the manufacturers of a substantial share of the market, each D is liable according to market share. D can get out of liability via burden of persuasion that it is not Ds drug. Public policy: better to have D bear the cost than P. If the ct required P to identify which company produced the drug, she would be precluded from recovery.

Bierczynski v. Rogers Ds were engaged in a speed contest. Only 1 D hit another car. D Bierczynski remained in the proper lane at all times. Verdicts were entered in favor of Ps against both Ds jointly since both were negligent and both constituted proximate cause. Biercyznski appealed. Issue: whether he can be held jointly responsible even though not involved in the accident? Yes he was acting in concert with other D.

Limiting Cause-in-Fact Liability Proximate Cause Issue: Is the relationship between the negligent act and the injury so attenuated or tenuous that liability should not attach even though the negligent act is a cause-in-fact of the injury? Proximate Cause 3 tests to limit liability o Immediate (liability) v. remote (no liability) Ryan o Direct (liability) v. indirect (no liability) Polemis o Foreseeable (liability) v. unforeseeable (no liability) Wagon Mound 3 circumstances in which the problem arises: o Extent of injury o Type of injury o Person injured Who should normally decide liability should be limited despite proof of cause-in-fact? Cardozos duty approach says its a question of law for the ct. Andrews cause approach says question of fact for the jury, subject to normal rule regarding directed verdicts. What about when a later negligent act intervenes between negligence of a D and Ps injury?

Atlantic Coast Line Railway v. Daniels P shows that before his injury some other person committed a wrongful act and that his injury would not have occurred without that wrongful act. xxxv. Question does not exist without cause-in-fact. xxxvi. Are the circumstances such that as a matter of policy we decide D should not be held liable? Assuming there is a cause in fact relationship, should the particular D be liable? xxxvii. Proximate cause limits liability. Unforeseeable consequences Ryan v. New York Central RR D set fire to its woodshed, either through carelessness or insufficient condition of an engine, which contained a lot of wood. Ps house, located 130 ft from the shed, caught fire and was destroyed. A number of other houses were also burned. Judge at the Circuit Ct nonsuited P. P appeals. Ct of Appeals of NY affirms. Issue: Whether the fire to Ps land is a proximate damage or remote damage? Remote damage Ds not liable for remote damages (remote v. immediate damages) That the fire spread and other buildings be burned is not a necessary or usual result. The result depends on accidental circumstance (i.e. wind, degree of heat, material of structures, etc.) over which the parties have no control. Pre-existing condition Egg Shell Skull Theory - Bartolone v. Jeckovich (schizophrenic body-builder case) P was involved in a 4-car collision and sustained minor injuries, but suffered a psychotic breakdown. P contends that the accident aggravated a pre-existing paranoid schizophrenia which has disabled him. Jury returned a verdict for P. Ct set aside the verdict stating that there was no basis that the breakdown could be attributed to a minor accident. Supreme Ct of NY reverses and reinstates the jury verdict. xxxviii. Eggshell Skull theory D is responsible for whatever happens as a result. xxxix. This case extends this to mental illness as well as physical preconditions did the collision trigger the condition? Applies equally to mental and physical.

Direct Causation view - In re Arbitration Polemis argument between extent and type of damage While discharging a heavy plank fell into the hold of the ship in which the petrol was stored and caused an explosion which destroyed the Respondents vessel. Owners allege that the loss of the ship was due to the negligence of the charterers servants. Charterers claims that damages were too remote. Arbitrator considers that damages are not too remote. D appeals. D claims that there is no way to have foreseen the explosion the most they could have foreseen was a nick in the boat. The ct doesnt agree. There is liability for damage that is the direct result, even if not foreseeable. Foreseeability approach - Wagon Mound I same jurisdiction as Polemis (Commonwealth) Sydney, Australia The Wagon Mound discharged oil while docked. The oil was carried to the dock of P (Mort) . 2 days later cotton debris in the oil caught fire when P dropped molten metal into the water and Ps wharf was destroyed along with 2 ships docked beside it (see Wagon Mound II for the owners of the 2 ships as Ps) xl. Ct reversed Polemis xli. Importance is the type of damage, not the extent the type that could be anticipated would be injury to the water, not the burning of the dock. Wagon Mound II no difference in law between I & II, only difference in facts Difference here: Ps here didnt drop the molten metal and start the fire. Mort couldnt call attn to this because of risk of being charged with contributory negligence. xlii. The test is foreseeability Ps lawyer claims the risk was foreseeable (rather than the damage). The chief engineer should have understood the risk of discharging oil. xliii. Standard: What would be foreseeable to a chief engineer docked in Sydney. Unforeseeable Plaintiff - Palsgraf v. Long Island RR 2 men tried to jump onto a moving train. 1 was able to. The other looked like he was about to fall. 1 guard reached from the train to pull him in, another pushed from behind. The small newspaper-covered package (fireworks) he was holding fell upon the rails, exploded, and the explosion threw down scales at the other end of the platform, many feet away. The scales struck P. Judgment for P, D appealed. Reversed. Issue: Who ought to decide whether negligence was done to P? Chief Justice Cardozos perspective: Duty 1. Cause-in-fact is not the issue 2. This case should not have gone to the jury no such thing as negligence in the air 3. P is an unforeseeable P, thus there is no duty on the part of the RR. So the jury should not have gotten this case. Question here is one of duty, and duty is missing Dissent Judge Andrews perspective: Causation 4. This is a case on causation, not duty. 5. The jury ought to have answered this question policy question Should this negligent actor be liable? This is a proximate cause question, not a duty question. When talking about proximate cause, the magic word is foreseeability. Generally, the jury decides whether the fact is or is not foreseeable. Superseding causes effect of the intervening cause Yun v. Ford Motor Co. the dissent is the law in this case the Supreme Ct of NJ adopts the dissent and reverses later Driving on the GSP late at night, Yun and Chang (Yuns dad) pulled over after the spare tire and part of the support bracket fell off the van. Chang ran across the rain-slicked highway to retrieve the parts and was struck and killed crossing back.

Question in this case: Whether the defect in the spare tire bracket assembly proximately caused Changs injuries? No. Whether Changs conduct was reasonably foreseeable versus highly extraordinary, thereby breaking the chain of causation? No, not reasonably foreseeable. Dissent is law in NJ: reverse, questions of proximate cause should be left to the jury. Issue: Question of superseding cause. Is the intervention one that supersedes so that the original negligent party is no longer liable? Is the intervening cause superseding?

Limiting Original Cause-In-Fact Liability: Superseding Cause Intervening/Foreseeable Cause Foreseeable intervening acts are not superseding causes; unforeseeable intervening acts are superseding and relieve the earlier tortfeasor of liability. Generally speaking, negligent intervening acts are foreseeable; intentional or criminal acts are not. Rescue doctrine Rescuer can maintain an action against a tortfeasor who puts another in danger if the rescuer can establish: o Negligence (or product defect) of D caused the peril (or appearance of peril) to the person needing rescue o The peril to the person was imminent o Reasonable person would conclude the person was in peril o Rescuer acted reasonably in attempting to rescue o Ds tort was the proximate cause of the rescuers injury Firefighters Exception professional rescuers cannot use the rescue doctrine unless the tortfeasor intentionally exposed the rescuer to risk. Restatement 3d & some jurisdictions apply the rescue doctrine when peril is to property.

Derdiarian v. Felix Contracting D excavated a work site in the street. P was sealing a gas main. D James Dickens suffered an epileptic seizure, lost consciousness, and crashed into the work site. The car hit P and threw him in the air and was splattered with boiling hot liquid enamel and caught on fire. Expert testimony usual method of safeguarding the site would have been to erect a barrier and have flagsmen. P alleged that D Felix negligently failed to keep the excavation site safe. D argues that Ps injuries were caused by D Dickens negligence and Ps own negligence. Judgment for P, D appeals. Affirmed. Whether the intervening act is a superseding cause. No. That D could not anticipate the exact manner of the accident or the exact extent of injuries does not preclude liability as a matter of law where the general risk and character of injuries are foreseeable. Watson v. Kentucky & Indiana Bridge & RR Through Ds negligence a tank car of gas derailed. Gas ran into the street. Duerr struck a match which caused an explosion, injuring P, a bystander. Duerr testified that he struck the match to light a cigar. Other witnesses testified that he deliberately threw the match on the ground with the intent to light the gas on fire. The consequence of the gas coming into contact with fire and causing an explosion is foreseeable. But if the act was done maliciously, D could not have foreseen or deemed it probable that someone would maliciously do such an act. Distinction between an action that is negligent and an action that is criminal. An intentional criminal act is not foreseeable and thus superseding. (see note 1 p. 329) McCoy v. American Suzuki Motor Corp. P stopped to assist at an auto accident where a Suzuki overturned. After the driver and car were removed, the policeman left and P was struck while walking to his car. P sued Suzuki for the defective car which caused the accident in the first place. Suzuki moved for summary judgment asserting the rescue doctr doesnt apply for product liability actions and that P cant prove that Suzuki proximately cause his injuries.

Does the rescue doct apply in product liab cases? Yes. Must P show prox causation under resc doctr? Yes. Did Suzuki prox cause Ps injuries? Jury decision. Issue of whether Suzukis negligence is the prox cause of Ps injuries McCoy has the burden (If he didnt have to show it, hed automatically win). Importance of the rescue doctrine for this decision. Maltman too remote as a matter of law (failure to take drivers license away from person who caused the accident is too remote). Petition of Kinsman Transit Co. I Kinsman owned the boat Shivas which broke loose from the dock and drifted downstream, taking another boat with it floating down the Buffalo River. Calls to the bridge went unanswered because there was nobody there to raise the bridge. Flooded property owners sue Kinsman, Continental dock, and the City for negligence. Owners of the upland property recovered from Ds at trial. 2nd circuit said that the proximate cause will extend to any cause that is direct so long as the damage if of the same general sort that is risked, even if damage is other and greater than expected. Ct took language from Polemis (direct) and Wagon Mound (general sort risked) Foreseeability idea Wagon Mound Mort loses because his injury was entirely different Is Kinsmans negligence the proximate cause of the damaged property? Or is the failure to raise the bridge superseding? This ct says the property injury is the result of the proximate causes of all Ds because it is direct. If you were representing Kinsman, what would you argue? Citys negligence is a superseding cause. From ideas in Watson, you would say that if someone has been on the bridge like they were supposed to, this wouldnt have happened. Petition of Kinsman Transit Co. II Boat with wheat sues for loss of grain and extra cost of moving the grain, sued same Ds. 2nd Circuit says consequences are too tenuous, havent established proximate cause because they are too remote. Kelly v. Gwinnell minority opinion; ct expanding the reach of tort law. Gwinnell spent an hr or 2 drinking at Zaks home. He was visibly drunk when he left. He got into a car accident with P on the way home. Whether the social host is liable to the victim of car accident when enabling an adult guest to become drunk and drive. To deter drunk driving drunk driving is intolerable. Policy clearly based on drunk driving. Specifically the duty is limited to serving alcohol to a person who will be driving Making a judgment on a duty as a matter of law. Ct is creating a duty (generally this is the Legislatures job), in accord with the states policy. State law prohibits licensees to serve drunks so the ct rationalizes that this is along the same lines. Depends upon the social host serving an already intoxicated guest who is to drive. This is a minority opinion. Dissent: social host cant tell who a drunk is while licensees are experts in determining who is drunk; guests can serve themselves; licensees have insurance; unclear to go how far to go to prevent drunks from driving; Legislative matter is there a difference between interpreting a statute & making policy, which is what this ct is doing dissent disagrees attack on the majoritys claim that this is in accord w/ state policy. Enright v. Eli Lilly & Co. Karen Enrights grandma ingested DES during pregnancy, her mother developed reproductive abnormalities, which caused Karens cerebral palsy. Slippery slope problem once you start, where can you stop? If you can prove cause-in-fact, where do you stop? Is the grandmothers ingesting DES a proximate cause of Karens disability? No, the child of the person can recover, but the grandchild cannot. SEE KINSMAN HYPOS

Affirmative Defenses & the Rise of a Comparative Fault System*** (see chart below) Contributory negligence originally a complete defense (still is in 4 states) o D has the burden to plead, produce, & persuade Comparative regimes not predominate: o Pure (12 states) o P can recover if not more than 50% at fault (12 states) o P can recover only if less that 50% at fault (20 states) Express assumption of risk is a complete defense Implied assumption of risk was originally a complete defense (some comparative states retain as a defense; some merge into comparative). Elements: o Actual knowledge of risk o Actual appreciation of the magnitude of risk o Voluntarily assumes the risk Independent Ds can cause an indivisible harm P may, but need not, join all potential Ds in a suit Ds can counterclaim against P. D can implead others and cross-claim against them for contribution (these cases require special verdicts). Should Ds liability be limited to % of fault? Damages: o Nominal liability, but damages are nominal o Compensatory compensate for injury What constitutes compensatory? 2 kinds: (1) special (i.e. money out of pocket, past & future medical expenses); (2) general (i.e. disfigurement, disablement) o Pain and suffering (past and future) are most argued about o Punitive/exemplary nothing to do with injury, but to punish

Complete Defense - Butterfield v. Forrester D put a pole across the road while repairing his house, P, coming from a pub, was riding hard. Witness said that if he had not been riding so fast he would have seen and avoided falling. Defense is contributory negligence. D has the burden to produce evidence with respect to contributory negligence. If the jury is persuaded that P is at fault, even just 50%, D wins the case this was the effect of contributory negligence, it is a complete defense. Hypo if it had been something valuable in the middle of the road, D probably would have brought the action and the guy riding the horse would plead contributory negligence. Last clear chance can nullify defense - Davies v. Mann P allowed his ass to graze on a public highway. D ran over the ass. Witness stated that he came down at a smartish pace. Same case as Butterfield negligence on Ds part and on Ps part. Then why isnt contributory negligence a complete defense here? Why does D lose? Because of the doctrine of last clear chance. Last clear chance whoever sues first. Last clear change was a way to ameliorate the harshness of contributory negligence. Makes sense in Davies. Assumption of risk Seigneur v. National Fitness Institute, Inc. P signed a K that contained a clause stating NFI was not responsible for injuries. P was injured while being evaluated and tried to sue. D pleads an express assumption of risk. The exculpatory clause unambiguously excused NFIs negligence. Ps bargaining power was not grossly disproportionate to that of D even though the K was an adhesion K, this does not display disproportionate bargaining power. There were other gyms she could join and the service is not essential. Not against public policy.

*Express assumption of risk is a complete defense. Rush v. Commercial Realty Co. Ps were tenants, D was the landlord. D provided a detached bathroom for tenants use. Mrs. Rush fell through the bathroom floor. D claimed an assumption of risk an implied assumption of risk (different from the NFI assumption, which was express assumption) D has to plead, carry evidence, and persuade that: (1) P had actual knowledge of the risk 1. Subjective test did this P have knowledge of the risk. (2) Risk has to be taken voluntarily voluntarily assumed (3) P has to know of the magnitude of the risk. P won in this case because D failed to prove that she voluntarily assumed the risk. She did not have a choice. Assumption of risk v. Contributory negligence: Implied assumption of risk has some intention, involves a situation with intention (not just a person being careless) McIntyre v. Balentine P and D were involved in a car accident resulting in severe injuries to P. P entered the highway from a truck stop, D rear-ended him. Both had consumed alcohol that evening. In Tennessee at the time contributory negligence was a complete defense. Jury found them equally at fault. P wanted an instruction that said he should be awarded half of the damages he would have gotten. This is a prospective ruling. This P loses, but from here on, contributory negligence will not be a complete defense. Became a 49% jurisdiction. Pure comparative state: - P can recover even if hes most at fault for the accident. - Result is to reduce the importance of fault in the system Less than equally at fault (49%): - This makes fault an issue (rather than equal fault) Blackburn v. Dorta since the decision in Hoffman v. Jones, contributory negligence no longer completely bars Ps recovery but is to be considered in apportioning damages according to the principles of comparative negligence. Assumption of risk evaluated by the jury in terms of how much it contributed to the results in FL (like many states) Some states say its still a complete defense because of its intentional character Express assumption is still a complete defense in states like FL

Joint Tortfeasors & Vicarious LiabilityActing in Concert Bierczynski v. Rogers (repeat from VII) - Ds were engaged in a speed contest. Only 1 D hit another car. D Bierczynski remained in the proper lane at all times. Verdicts were entered in favor of Ps against both Ds jointly since both were negligent and both constituted proximate cause. Comparative Fault Who bears the risk of an absent defendant? - No joint and strict several liability P - Joint and several liability remaining Ds - Uniform comparative fault remaining D and P SEE HYPOS

Coney v. J.L.G. Industries Jasper died while operating hydraulic work platform manufactured by D. Action based on strict products liability. D argues contributory negligence. Doctrine of comparative negligence did not eliminate joint and several liability. Holding: (1) Comparative fault is applicable to strict product liability actions; (2) comparative fault does not eliminate joint and several liability; (3) retention of joint and several liability does not deny D equal protection of the law. Even where P is partially at fault, his culpability does not equal that of D b/c his breach of duty was to himself and no one else, and Ds breach endangered someone else. Bartlett v. New Mexico Welding Supply car accident involving 3 cars, one driver is unknown. Ct will not apply joint and several liability and force D to pay for actions of other D. Ct does not maintain joint & several liability once you switch from comparative, joint and several liability doesnt work. When one D is not able to be found, the other D should not be forced to pay, the cost falls on P. D should only have to pay 30% of damages because he was only 30% responsible for the injury. D will not be forced to pay the 70% for which the unknown party is responsible. Same thing if P suffers the consequences of 1 judgment-proof D and now there are 2 Ds & 1 is judgmentproof, there is no difference. Bundt v. Embro Action by 5 Ps, who were passengers in one or the other of 2 cars that collided. Action against the drivers and the contractor who negligently obstructed the view of a stop sign. Ds moved to interpose a defense of discharge and satisfaction Ps had already recovered against the State of NY, so this judgment had been satisfied. Holding: P can only recover what the damages are one time. Cant have double recovery for a single injury. Knell v. Feltman Knells car crashed into a cab owned by D. Knells passenger, Mrs. Langland, was seriously injured. Langland only sued Feltman, and not Knell. Feltman filed a cross-claim against Knell. Ct found both Knell and Feltman to have been negligent, so Knell owed Feltman half the damages. Knell argues that he should not have to contribute because he had not been sued as a joint tortfeasor by Langlands. Rule is that a joint tortfeasor can sue for contribution (except in IN). Contribution only matters in jurisdictions where there is joint and several liability. [An intentional tortfeasor cannot sue for contribution.] Vicarious Liability A is liable for Bs acts as a result of the relationship between A and B, even if A is not at fault (a type of strict liability) Respondeat Splendor doctrine if an employee commits a tort during the scope of his employment his employer will (jointly with the employee) be liable. Applies to all torts, including intentional and strict liability. - Acts necessary to the comfort, convenience, health, and welfare of the employee while at work, though strictly persona and not acts of service, do not take the employee out of the scope of employment. Going-and-Coming Rule employee is outside the scope of his employment when engaged in his ordinary commute to and from his place of work. (Employer wouldnt be held liable under Respondeat Splendor) Foreseeability test It is foreseeable if the risk of the danger to the other relied on or is related to the employees work. Something is foreseeable if in the context of the particular enterprise an employees conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employers business. Bussard v. Minimed D company hired a pest control company to eliminate fleas. Hernandez, an employee, arrived the next day, got a headache as the day progressed, and had to go home. Her supervisor asked if she was

well enough to drive, she said yes. On her way home she rear-ended P. P sued both Hernandez and Minimed in vicarious liability under the doctrine of respondeat splendor. Minimed contended that the going-and coming rule meant that Hernandez was not within the scope of her employment during her drive home. Lower ct agreed and granted summary judgment, P appealed. There are exceptions to the Going-and-Coming rule 1 exceptions applied when an employee endangers others with a risk arising from or related to work. Foreseeability test to determine whether such dangers are related to work that an employee might not be fit to drive after breathing lingering pesticides for several hrs is foreseeable. OShea v. Welch D was an Osco store manager driving from Osco District Office to deliver football tickets to other managers. He made a spur of the moment decision to pull into a service station for an estimate and struck Ps car. P sued Welch and Osco for vicarious liability. The district ct granted summary judgment for Osco since no reasonable jury could find that the stop at the service station was within the scope of his employment. Holding: Whether Welchs turn into the service station was within the scope of his employment? This is for the jury to decide, it is a mixed question of fact and law. Factors determining whether an employee has embarked on a slight or substantial deviation: (1) employees intent; (2) nature, time, and place of deviation; (3) time consumed in the deviation; (4) the work for which the employee was hired; (5) incidental acts reasonably expected by employer; (6) freedom allowed the employee in performing his job responsibilities. Independent Contractors Although hired by employers, are not under employers immediate control and may do work in the manner which employer more or less decides. If D employee is negligent in his own dealings within the K, this can give rise to liability, Murrell v. Goertz Goertz was making collections for the delivery of D newspaper when he got into a fight with P, resulting in injuries requiring med treatment for P. Ct found that D was an independent contractor and had no direct contract or duty to D employer, therefore employer is not liable Goertz not under the supervision, dominion, and control of D. SEE NOTE 3, P. 669 Joint Enterprise requirements: (1) An agreement, express or implied, among members of a group (2) A common purpose to be carried out by the group (3) A community of pecuniary interest in that purpose, among the members (4) An equal right to a voice in the direction of the enterprise, which gives an equal right of control. Popejoy v. Steinle Williams wife Connie got into an accident with P and was killed on her way to purchase a calf for their daughter. P couldnt reopen the wifes estate, so P tried to sue her husbands estate, premised on the theory that William and Connie were engaged in a joint venture and Connies trip was a business trip. P has the burden of showing that joint enterprise existed. Ct found that only the daughter had an actual pecuniary or financial interest in the profits of the sale of the calf. Connies trip was a family undertaking. No joint venture. Shuck v. Means A car owned by Hertz, leased by George Codling, and driven by Means crashed with a car in which P was passenger. Holding: The statute makes the owner liable if the car is being driven with his or her express of implied consent or knowledge, and we cannot read into it the restriction that the particular driver must be known by and his driving consented to by the owner. Because Hertz gave Codling the car, the permission for Means to drive the car was implicit.

Expanding Tort Liability by Finding a New Duty Contracts the source of duty the law would enforce MacPherson finds duty in the law liability without contract privity Tort law develops and expands as new duty is found law expansion of duty is by judges finding the nature of duty (proximate cause is a jury exercise in determining the extent of duty in individual situations) Failure to Aid: Law, generally, imposes no duty to aid. xliv. Policy behind no duty rule: no notice, no easy endpoint xlv. Exceptions to no duty rule: various competing policy considerations; special relationships (Restatement)

Misfeasance v. Nonfeasance misfeasance is an affirmative act which harms or endangers a P and nonfeasance is a mere passive failure to act. Nonfeasance at common law, there is usually no duty to come to the aid of another in distress, except where there is a contract, which then lies a breach of K, not a tort action. Winterbottom v. Wright D was a manufacturer and repairer of mail coaches and contracted with Postmaster General to keep the coaches in a safe and secure condition. D did not comply with his promise and P, a mail coach driver, was seriously injured when one of the coached broke down. But P cannot win because there is no privity of K between P and D. If P can sue then every passenger or even any person passing along the road who was injured by the breach might bring a similar action. There is a class of cases in which the law permits a K to be turned into a tort, but unless there has been some public duty undertaken or public nuisances committees, they are all cases in which an action might have been maintained upon the K. MacPherson v. Buick Motor Co. D is a manufacturer of cars who sold a car to a retail dealer, who then sold it to P. While P was driving he was injured due to deficiencies in the wheel. The obligation to inspect must vary with the nature of the thing to be inspected, the more probable the danger the greater the need of caution. Creates a new duty on manufacturer to inspect things that may be inherently dangerous because if they are not created properly, they can cause peril of life or limb. There is a duty to the 3rd party purchaser because the manufacturer is aware that the item will or could be purchased by that person. There is no privity of K because P is foreseeable. H.R. Moch Co. v. Rensselaer Water Co. D entered into K with the city to supply city with water and water to the residents at a reasonable price. Fire started and spread to Ps warehouse b/c there was not adequate water and pressure. Cannot extend a duty of care to everyone who might potentially be benefited by the K between the city and the water company. Policy reasons: If this case were to be decided for P, the price of utilities would increase drastically due to a chain of similar suits that would follow. Majority rule regarding utilities. State of Louisiana ex rel Guste v. M/V Testbank A ship collided with another ship, containers holding PCP were damages and 12 tons of PCP were released into the Mississippi River Gulf. Coast guard had to close the outlet to navigation for 3 weeks and all fishing, shrimping, and related activities were suspended for 400 miles. Guste (P) contended that he could recover his economic loss caused by Testbanks shipping accident even though he suffered no physical property damage. The commercial oystermen, shrimpers, crabbers, and fisherman were permitted to recover b/c they had been making commercial use of the waters. *Pure economic loss without physical damage to a proprietary interest cannot be compensated.* People who lost money as a result of not being able to travel the waterway for a period in which it was shut down are not entitled to recover.

Failure to Act There is no affirmative duty to help someone Failure to act does not create a tort Special relationships that create a duty: 1. A common carrier with its passengers i.e. a commercial bus 2. Innkeeper with guests 3. A business or other possessor of land that holds its premises open to the public with those who are lawfully on the premises 4. Employer with its employees 5. A school with its students 6. Landlord with its tenants 7. A custodian with those in its custody, if the custodian is required by law or voluntarily takes custody of the other and has a superior ability to protect the other (i.e. parent/child; jailor/prisoner) 8. If peril is due to Ds conduct (whether that conduct is negligent or not) Hegel v. Langsam Ps daughter student at D university, where she began using drugs and associating with criminals and had gone absent from her dorm. There is no requirement of law placing the duty upon the university or its employees to regulate the private life of their students. Students are deemed to have sufficient maturity to regulate their own behavior and associations. Duarte v. California Ps daughter was raped and murdered in her dorm at U of CA. Although there had been a series of rapes by 3rd parties, D took no precautions to prevent against the danger. It is the nature of the university as landlord that creates the duty. Reasonable care to protect patrons from 3rd parties. Landlord has a duty to invitees. Moreover, the dangers were foreseeable by the university because of the past history. Competing Policy Exceptions that create a duty J.S. and M.S. v. R.T.H. 2 young girls, 12 & 15, were sexually abused by their 64 yr old neighbor for over 1 yr while caring for his horses. Girls parents brought action against the man and his wife, contending that the wifes negligence rendered her liable since she knew or should have known of her husbands propensities. Wife argues that she owes no duty and alleged negligence was not the proximate cause. A duty should be imposed on the wife and her negligence could be found to have proximately caused injuries. The scope of duty is determined under the totality of the circumstances and must be reasonable under those circumstances. When a defendants actions are relatively easy to correct and the harm sought to be prevented is serious, it is fair to impose a duty. Child abuse is so serious that it outweighs marital relationships. In this case, the neighbors relationship had been close. The wife knew that the young girls were coming over every day for considerable amts of time alone with her husband. She should have known and there were actions she could have taken. When a spouse has knowledge or reason to know of likelihood of his or her spouse engaging in sexually abusive behavior, spouse has a duty to take reasonable steps to prevent or warn of the harm. Breach of such a duty constitutes a proximate cause of the