Richard's Torts Outline- Augustine Adams

8/20/2019 Richard's Torts Outline- Augustine Adams

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a. t the time of the trespass& the P4s interest in the land must be either actual possession orthe right to immediate possession

i. ? ctual@ possession: The person actuall% in possession ma% bring an action fortrespass because an% possession is a legal possession as against a trespasser. Evena wrongful occupier (adverse possessor) ma% maintain a trespass action against awrongful intruder

ii. ?Right to "mmediate@ possession: "f no one is in actual possession& the personwho has the rig't to immediate possession ma% maintain the action. ?"mmediate@means the holder of some present possessor% estate& as contrasted with a futureinterest

e. 5ausation:a. "nvasion must be caused b% the D4s intentional act or some force set in motion thereb%

b. Trespasser I% liable for harm to person or propert% caused to the owner& even if the harmwas !OT foreseeable

i. E;: confrontation with the trespasser caused owner to have a heart attack !Ba erv. Shy# iv

f. Even if it is a mistakea. >istake is #7T a defense

b. Even if %ou think %ou are on %our own land but actuall% are on someone else4s& it is a

trespassg. #o need for actual damages

a. Entitled for nominal damages 7#L0 in trespass casesi. :,O tenant oversta%s lease& then a rd part% comes in and trespass. Tenant still

has right to assert possessor% interest. (even though %ou are illegall% s-uatting onthe land)

ii. :,O shoot across land& and accidentall% hits owner (onl% intending totrespass). Transferred intent %ou can hold for batter%.

'. Does it alwa%s make sense9 $hoot a dog and hit a person9 Trespass onchattel.

;. II" &I$" %,*

a. "ntentional or reckless (some states) conducta. Types o( Intent :

i. D intended to bring about the distressii. D knew with substantial certaint% distress will occur !"aylor, $aw %ather beaten, D

didn*t now $he wa$ there'. 8aven4t re-uired that %ou intend the conse-uence,more intend the

contact.iii. D recklessl% disregarded the possibilit% that distress would result

b. "ntent 5 ##7T transfer i. Transfer is limited to old trespass: assault& batter%& trespass on land& false

imprisonment& trespass to chattel

b. E;treme or outrageous conduct/actiona. 7b1ective standard b. >ere insults generall% #7T enough !Slocu# v. ood air Store$ o% 2c. ust show a causal relationship !0arri$, $tuttering proble# b. "f P alread% had distress before D4s conduct& no casual relationship

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c. Egg $hell Rule: take %our P as %ou find himd. $evere emotional distress (can argue both wa%s if the distress is severe enough)

a. #ormal person standard (not a h%persensitive person& unless D is aware) b. Two $tandards:

i. Restatement 2 do not need ph%sical manifestation of harm'. Difficult to determine damages (value)*. Difficult to prove (e;pert testimon%)

. 5ourts are not well3e-uipped to deal with this kind of harm

. 6loodgates of litigation,don4t want to make a tort out of ever% action.(1uries decide)

ii. 5 2 >ost 1urisdictions allow %ou to recover for emotional distress alone& D7 #7T re-uire P to show that the distress resulted in bodil% harm

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c. Reasonable person in the P4s condition would consentd. Life3threatening emergenc%& immediate decision is necessar%

*. #on3emergencies don4t work ( Mohr, right ear to le%t ear )c. E;ceptions:

i. 6raudulent consent is invalid ( DeMay, #arried wo#an giving birth )ii. $ports are not a free for all ( 0ac bart, %ootball player )

'. =eneral customs of the game ok& but pla%ers do #7T consent to violence/harmoutside of the regular course of the game or after a pla% has ended

iii. 5onsent given under duress is invalidiv. 0ou cannot e;ceed scope of consent givenv. $ome people are unable to give consent (minors& insane people)

vi. !eneficial nature 2 if dr. operated in good faith& %ou ma% not have much recover% ( Mohr )d. urden o( ,roo(

i. >inorit%: D must prove consent as an affirmative defensea. !a1orit%: lack of consent is part of P4s prima facie case (not an affirmative defense)a. hat about illegal activities9 "s there tort liabilit%9 (deterrent effect&

polic%)

3. e(ense o( %el( &%el(- e(ense*a. $ule o( %el(-de(ense &$4!$ ) 2 almost alwa%s affirmative defense (onl% e;ception is police

officer as D)i. Reasonable force (to defend against threatened batter% from another)

ii. 6orce Proportional to level of threat'. 5onsiderations:

a. differences in age& weight& height& si+e& relative strength& if there is a gunused

*. To 1ustif% deadl% force& D must have reasonable apprehension of loss of life orgreat bodil% in1ur%

a. D has burden of proof that amount used was necessar%

iii. #o Retaliation 2 Privilege terminates when batter% is no longer imminentiv. Dut% to Retreat9

'. Restatement: D ma% use non3deadl% force rather than retreatingG not deadl% forceunless in home.

*. >"#7R"T0 rule: retreat rather than emplo% deadl% force& not if %ou have theslightest doubt that a retreat can be safel% made

. > F7R"T0 rule: %ou can stand %our ground and %ou don4t have to retreat& canrespond with reasonable force

. "n %our own home %ou do not have to retreatb. $easonable elie(9=ista@e

i. Privilege e;ists when D reasonabl% believes& even if mistake& that force is necessar%

against a batter% even if no actual necessit% (sub1ective)& must be actuall% reasonable(ob1ective).'. T8ERE67RE& reasonable mistake is ok& can still invoke privilege (as opposed to

trespass)c. Provocation

i. "nsults& verbal threats& and contemptuous language are insufficientd. mount of 6orce& must be proportionate

i. Privilege limited to use of force that appears reasonabl% necessar% for protection against a batter%

ii. "f D uses force be%ond that which is reasonable& then attacker has the privilege7


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'. if all criteria appl%& %ou pa% no damages (unless propert% was not going to bedamaged)

a. Default rule : Surroco standardG "f want damages& then the legislature can pass a law in an% given instance to allow compensation.

b. $ationale for damages rule:i. dverse incentive: if damages had to be paid& wouldn4t have

incentive to protect the public if it was too e;pensive. Let the fire burn down as man% houses& and individuals would pa%& not cit%.

ii. Distribution of costs or concentration of costs.iv. omplete ,rivilege : D that successfull% pleads the privilege of public necessit% does not

have to pa% an% damages at allc. ,rivate necessity &AI *

i. ctual or apparentii. "mminent threat of harm to a private interest

iii. Does not re-uire office or authorit%iv. Incomplete privilege

'. 0ou must pa% damages& even if not morall% accountable& but not tort or punitivedamages (if there is an intentional tort for trespass).

*. (3incent, $tea#$hip tied to doc during $tor# )

a. :,O dock owner thinks that his dock is incurring too much damage.5an he untie the boat himself9

i. $hipowner could tie up boat in the first place& but the dock ownerhas his own necessit% defense to protect his own propert%. ho

pa%s9ii. !est incentive to make the right decisions. Law can4t do ver% much

to influence behavior v. $easonable necessity (consider value of things involved)

vi. ct of =od

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DD F


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J. >entall% 8andicapped/"nsane ($ >E) !Breunig, delu$ional driver, %ly li e Bat#an

a. Polic%: 5ourts want to discourage people from using this as an e;cusei. That person caused the harm should be responsible/ caretakers

more carefulii. !


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iv. $tandard shown b% affirmative evidence (re-uires e;pert w/ onee;ception)

'. E;ception: grossl% apparent& even la% person wouldunderstand

v. E;pert must testif% to custom of doctors in that area (Localit% rule)'. 5 is dispositive,more than in the legal profession*. 5ould look at similar 1urisdictions& hold to that standard of

carea. Doctors don4t like to testif% against other doctors in

same hospital. rgue: Morri$on case& holds to #ational standard (used to

be because of urban3rural disparit%& doesn4t e;ist so muchan% more)

a. $pecialists more likel% to have a national standardof care

b. >ovement toward national standardc. 7r something like similar localit%

vi. ccess to technolog%99'. rgue: is a national standard of care for doctors in effect a

re-uirement that all doctors have the same or at least haveaccess to the same technolog%9

b. $pecialistsi. 8eld to a higher standard& when someone holds herself out as a

specialist in a certain portion of her professionii. E;: ophthalmologists and ta; law%ers

I. Dr. has Two Tortsa. 4ailure to disclose9lac@ o( in(ormed consent

i. Patient must show that the% were not informed'. "nforming standard

a. RP Doctor

b. Reasonable Patient (> F7R"T0)c. ctual Patient2what this person would have done

*. Patient must be told for "nformed 5onsent (what RP patientwould want to know to make reasonable decision& not whatRP Doctor would tell her)

a. Treatment b. vailable alternativesc. 5ollateral risks (side effects)d. >aterial Risks (8" & alcoholism& success rate& sue

rate& probabilit% of death or dismemberment)e. Personal interest of the doctor ( Moore, leu e#ia

idney). #o need to disclose "6:a. Risks are common knowledge

b. Disclosure would not be in the best interest of the patient

c. "t is an emergenc% and the patient can4t decide forhimself

. Patient must show that the% would not have consented, ausal onnection &t/o 6urisdictions*

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a. 7b1ective standard: reasonable person would haveconsented

b. $ub1ective standard: this person would haveconsented

I. The harm not warned of must have occurredii. >aterial v. "mportant

'. Doctor is onl% re-uired to inform of what is >aterial& notimportant

b. =alpracticei. Generally

'. Professionals must act with the level of skill and learningcommonl% possessed b% members of the profession in goodstanding.

a. #7T held that there would be a successful result& 1ust that someone acted without the re-uisiteminimum skill and competence

ii. $tandard'. E;pert testimon%

a. >ust establish both the standard course of conduct

in the profession& and that the D departed from it b. E;ception: when the conduct of the D is so

obviousl% negligent that a la% person could tell itwas malpractice (e;: leaving a 3inch surgical padinside the bod%)

*. $tandard of the communit%: 7!FE5T" Ea. Local standard (minorit%

b. #ational standard (growing)i. "ncreases standard of care

ii. Training is better iii. #ational certification

c. $imilar localit% (ma1orit%)i. #eed to protect small town Dr.4s from big

cit% standardsiii. Proving >alpractice ( Boyce, doctor doe$n*t 89ray %oot )

'. Reasonable care& skill& learning of RP doctor *. D must have done or not done something the standard

re-uires. $tandard of medical communit% affirmativel% proven. #egligence is never presumed

I. #egligence proved b% e;pert medical testimon%J. Testimon% of others that the% would have done differentl%

is not enoughiv. ustom

1. T'e /ay a certain activity is 'abitually carried out in a trade or community*. #7T D"$P7$"T" E 2 1ur% still gets to decide

a. E;ception: medical malpractice re-uires e;perts b. 5ustom is determinative in the medical field

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i.


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c. 7s not complying /9 statute caused t'e 'arm ($ey, cab leftrunning% thief gets away)

i. Discretionar% with the court'. 6actors:

a. 5ausal connection b. "mposed ruinous liabilit% disproportionate to

seriousness of conduct (disproportional re-uirementin legislatures e%es)

c. $tatute clearl% defines conduct2. o/ to apply t'e statute 3 Procedural Effects of a Statutory Standard of

Negligencea. !egligence per se &by itsel(* > as a matter o( la/

i. 'ere an une


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d. #o knowledge& unaware of the factualcircumstances

e. =reater risk in 5ompl%ingvii. Polic%

'. Protects DP and intent of legislaturec. "vidence o( !egligence

i. iolation o( t'e statute is 6ust evidence o( negligence (or 6ury toconsider

ii. Nuestion goes to the 1ur%G violation is merel% evidence ofnegligence

iii. 5ourt asks'. Anowledge of the dut%*. 5learl% defined dut%9

. $hould $trict Liabilit% appl%9

. Disproportionate result from imposing liabilit% !Perry,child abu$e

I. 5an pro;imate or direct causation be shown93. $"A

a. Determining if a breach took place:

i. Time (sufficient notice)>. onstructive !otice !K#art, #il on %loor

a. Did D have sufficient notice of problem to correct9 b. !urden of proof is on P to show D had constructive notice of the problem

and failed to fi;ii. Did D e;ercise reasonable care to reduce or eliminate the risk9

b. !urden of proof on D to show he did not breach dut%c. =ode o( operation rule

i. Dangerous conditions continuous or easil% foreseeable !?a$ o, pi@@a on %loor )ii. ctual or constructive notice is not re-uired

iii. "nherentl% dangerous

d. ircumstantial "videncei. 7ne or more inferences which can be said to reasonabl% arise from the facts

ii. Pa% attention to details 2 if good enough& and closel% tied enough& it might be enough todraw conclusion

iii. llows for an in(erence o( negligence'. !urden of proof shifts to D to show that he was not negligent*. Fur% determines whether there was negligence and liabilit%

e. ananasi. 8as the instrument been there for a reasonable period of time9

ii. "f the evidence has been there for a while& was there active notice to D9iii. "f not active notice& was there constructive notice (should have known)9

iv. "f there is neither constructive nor actual notice& there is not evidence of negligencev.

. $es Ipsa #o?uitur The thing speaks for itselfG ER0 R REi. Elements

1. !o direct evidence as to /'et'er /as negligent;. 'as exclusive control !St. ranci$, chair %all$ %ro# hotel window, no control

. !ot t'e type o( accident t'at /ould occur /9o negligence9 must 'ave beennegligent !Byrne, %alling barrel o% %lour

. , su((iciently eliminates ot'er possible causes &older rule*17


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a. A but for cause& #7T t'e but for cause b. Cmore li@ely t'an notD &51E*

*. C ut 4orD application ( Per in$, train at C #ph in$tead o% ; #ph )a. "f P was likel% in1ured 7#L0 because of D4s negligence& but for.

b. "f the person would have been in1ured an%wa%& no but for.i. Due care from the negligence would have had to prevent the in1ur%

from happening. !urden of Proof

a. D4s burden: Possibilit% (less than ICS) b. P4s burden: probabilit% (more than ICS)c. P has initial burden

. !7T8 causation in (act and causation in law ( ,roa1orit%: P will have to show I'S likelihood that he will bein1ured

ii. >inorit%: #ot $6e. D doesn4t have burden of proving a difference causef. Possibilit% harm would have happened w/o D doesn4t defeat $6

!1eynold$, %at wo#an on $tair$I. #oss o( 'ance doctrine >edical >isdiagnoses

a. "f a doctor misdiagnoses the patient4s condition& thus dela%ing treatment&and can be shown statisticall% that this dela% caused the patient4s chance of survival to be reduced& is the doctor liable9

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i. $ome 1urisdictions: Dr. can be liable& even if the patient wouldhave died with proper diagnosis !0er$ ovit$, doctor didn*tdiagno$e patient early enough )

ii. "ncreased risk without actual damage'. hen damage has not %et occurred& traditionall% the dr. is

not liable. b. here loss of chance is found& onl% a portion of the full damages is

awardedJ. %cienti(ic "vidence !Daubert, bendectin $tudie$ were really litigation not

$cience, e+pert opiniona. 7ld test: 6r%e test& evidence would be admissible if it was based on a

scientific techni-ue generally accepted as reliable within the scientificcommunit%.

b. #E : $oundness of methodolog% test,derived b% scientific methodi. "s e;pert testimon% scientific knowledge9

ii. ere findings derived b% scientific method9iii. "s work product =ood science9iv. "s it testable9v. as it published in a reputable 1ournal9

vi. "s e;pert testimon% relevant to the task at hand9'. "t either caused P4s in1uries or more than doubled likelihood

of the defect (5 standard)*. does it logicall% advance the argument (?fit@ re-uirement)

. !asicall%& this is bringing in a ?but for@ standard wherethe% have to prove I'S more chance

c. $upposed to assist trier in fact (1ur% or 1udge)d. Litigation v. science

i. as stud% independent of litigation or before litigation9e. , must prove t'at t'e t'ing & endectin* more t'an doubled c'ances o(

birt' de(ects

i. #ow& sometimes class actions are used instead if causation is lessK. oncurrent auses9 %ubstantial or material element or (actor ( Fnder$on, %ire

#erged w/ un nown %ire )a. Either defendant4s negligence alone would have caused the in1ur%

i. #either a ?but for@ cause,would end that the P would have norecover% if no liabilit%

ii. Fust if ?substantial factor@ in causing the in1ur% b. as each part of the result to this e;tent& if so& liabilit%c. 7nl% applies when there are other causes

i. E;: if fire set b% two engines& both liable. "f fire set b% one engineand the other fire set b% unknown source& the engine is still liable.

d. Ends up in P7L"50i. 80P7: teenage driver& drives too fast where loose gravel& and goesup in face of a walker b%

'. 5ould be liable9 Teenager& parents& count%& pedestrian (all but for)

*. $ubstantial factor: teenager& other people might be aboutDETERR #5E of reckless behavior

a. Eliminates some minor cases (if fire reall% small)F. Alternative liability or ouble 4ault

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a. !oth breached dut%& even though onl% one caused harm (unknown whichone)& both are liable

b. here it cannot be proved which D caused harm& but both breached& bothliable (Su##er$, hunter$ $hoot #an )

c. lread% know that the% are negligent,this is different than res ipsad. !urden on Ds to figure out whose fault it was

M. =ar@et %'are / arket share liabilit% (hasn4t reall% e;panded be%ond DE$)

i. Each D liable for their share of the marketii. More li ely than not that P took medication manufactured b% one

of the D4s'. D4s who cannot meet the burden of proof that the% were not

liable& then the% must pa% damages in the market share(will be severall% liable)

*. >ight be more prudent to make a class actioniii. Polic%

'. 5ost spreading 3 D4s are better able to bear cost of in1uries*. "ncentive for D to be more careful

. !etter access to information

. D can prove not liable (she took green pill& D manufacturedred pill)

iv. 5onsider >arket share in'. #ation (decided in 5 )

a. ho was throwing out the most risk& what proportion to the public as a whole& and dividing up

*. state. communit%. pharmac%

b. Enterprise liabilit% ( 0all, entire bla$ting cap indu$try )i. cting in concert& safet% regulations were industr% wide

ii. ll before the court& usuall% small industr%c. Foint and $everal Liabilit%

i. P can split up the 'CCS between the Ds however he wants10. #iability (or imposition o( ris@ standards evolvement o( causation

a. 0barra 2 all not necessaril% negligent& we don4t know how man% causedharm& all liable

b. $ummers 2 one caused the harm& both liablec. $indell 2 all negligent& onl% one caused the harm& all liable

i. 5an4t use substantial factor test,pushing to impose liabilit% whereit hadn4t before

b. ausation in #a/9 ,ro


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c. Problem: could result in limitless liabilit%d. Polic% for direct causation:

i. ever%one should insure own propert%ii. 8as alread% been negligent& should bear the burden

e. :,O put grease on the bottom of the shoe& which led to a trip& drop andfire9

i. Directness doesn4t alwa%s tell %ou ver% much*. 6oreseeabilit% test >'& >*

a. I( t'e s'ould 'ave anticipated a particular ris@ at t'e time 'e acted)and 'e negligently (ailed to avert t'e ris@) 'e /ould be liable i( t'atris@ caused t'e ,7s 'arm

b. Egg shell skull test: take victim as %ou find him ( Bartolone )i. =enerall% onl% for pre3e;isting& ph%sical conditions after ph%sical

in1uriesii. "f negligentl% cause a foreseeable ph%sical in1ur%& then %ou are

liable for all conse-uences that flow from it& even if unforeseeable(e;tended later to mental results from ph%sical in1uries)

c. "f the result is foreseeable& despite the se-uence of events& there is usuall%is liabilit%

i. Liable for foreseeable& not unforeseeable harm ( WM>)ii. "rrelevant that the harm occurred in an unusual manner& 1ust of the

same general sortiii. E;3ante& look at whether this is something that %ou would e;pect

d. Language:i. Dut% language: didn4t have a dut% to because it was unforeseeable

ii. 5ausation language: regardless of whether there was negligence&that breach of dut% was not the pro;imate cause of the fire& becausethe fire was not foreseeable ( WM>)

. #atural and probable conse-uencesa. $houldn4t be liable for an entirel% different t%pe of accident9 5t. dismisses

this distinction ( 1yan ). $ubstantial factor

I. $cope of the risk (related to foreseeable)a.


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*un ("pare tire rescuer) ' 2 R6 harm b% fire to be liable (have to foresee t%pe of harm will happen)I. > * 2 R6 harm and !OPL & more of a balancing testJ. Polemis 2 Directness& if act is the direct result of the harm. !


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. 5riminal cts/ intentional torts usuall% cuts off liabilit%& unless the criminal actwas foreseeable or invited b% the person4s conduct (drop someone off at a risk%

place). $evers liabilit% for the first parties

I. #7 foreseeabilit%a. EH: intentional torts& acts of =od& crimes&

. $uicide is #7T necessaril% a superseding cause ! uller, doctor w/ $ei@ure$ a%tercar wrec

;viii. Foint and $everal Liabilit%'. Foint: P chooses how to divide damages*. $everal: D is onl% liable for the S of harm he caused

a. /o contribution: "f P chooses to go 'CCS against one& the D cannot goagainst other Ds

b. / contribution: "f P chooses to go 'CCS against one& D can go againstother Ds

c. #imited uty


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ii. "n control of harming agent !Fyre$, child get$ hand caught in $toree$calator

c. D has undertaken a rescuei. 0ou cannot leave a person in a worse position then %ou found him

ii. 8owever& if %ou give %our best effort& %ou won4t be liabled. 7ther e;ceptions

i. 5ollege does #7T have dut% to rescue student !0egel, >C yr. old indor#$, drug$

ii. ife4s dut% !?S and MS, $i$ter$ $e+ually abu$ed by neighbor whoowned hor$e$

'. $pouse must have actual knowledge or special reason toknow of a likelihood her spouse is engaging in se;ual

behavior *. gainst a particular person (cannot 1ust be general)

. Dut% to take reasonable steps to prevent or /arn

. Problem 2 it leaves the wife in a terrible position 2 we wantto protect marital relationships but we also want to protectchildren

iii. !OPL

iv. !alancing of 6actors'. #ature of underl%ing risk of harm& foreseeabilit%& severit%*. 7pportunit% and abilit% to e;ercise care to prevent harm

. 5omparative interests and relationships between parties

. 5onsideration of public polic% and fairness& societal interest ++ii. uty to arn !"ara$o%%, p$ycho $tal er tell$ Dr. he will ill girl, then doe$

'. D has a relationship with the potential tortfeasor/perpetrator (should have57#TR7L)

*. Doctor has a dut% if:a. Reasonabl% foreseeable

b. $erious threat of violence

c. "dentifiable victim. Polic% Problems:

a. 8ow much is re-uired on the dut% to warn9i. 5all the victim9

ii. 5all the police9 b. Doctor3patient privilege

i. arn: violate patient confidentialit%ii. #ot warn: keep patient confidentialit%

iii. Reporting might make it likel% that other ps%chos won4t come gethelp

'. E;. 8" diagnosis& some courts sa% that there is a dut% to

inform spouse& if the person will not tell*. Public polic%: more important to protect person from "D$than confidentialit% of relationship

. Rule for 5lerg% ripe for e;pansiona. #o dut% to reveal child abuse when made in confession

b. Dut% to turn over information gained b% other meansI. Rule for ttorne%s

a. Law%er > 0 turn over information he believes is necessar% toi. Prevent his client from committing a criminal act

ii. Establish a claim on behalf of the attorne%25


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'. Law%ers aren4t e;perts on predicting violence*. $anctit% of attorne%3client privilege& for sake of legal

profession b. "n past& Dut% e;tended onl% to serious ph%sical harmG now includes serious

financial matters (Enron)


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i. ttempt to limit e;pansiveness of Dillon but not go all the wa% back to ma%a

O/ners and Occupiers o( #and

7 E the dangers that are hidden&

unknowniii. Posting a sign does not suffice

c. E;ception 2 "f a ha+ard is natural as well as obvious (like snow& ice& etc.)&some 1urisdictions hold that the invitor owes no dut% to the invitee whoslips and falls

i. I( go some/'ere li@e t'e bac@ room to get somet'ing) become alicensee (entering into a premises for his own purpose) !Whelan

;. #icensees !Bar#ore, #entally ill $on $tab$ lodge #e#ber paying hi$ due$a. Definition

i. $ocial guest& on propert% w/ permission for his own purposes b. Dut%

i. to warn of 'idden) un@no/n dangersii. !o need to /arn o( obvious dangers

iii. Licensee takes premise of the host as 'e (inds t'emiv. !O +T: TO I!%," T

c. "ncludes tolerated trespasser who comes fre-uentl% enough that he becomes a licensee

. Trespassers !Sheehan, train run$ over #an*$ %oota. Definition

i. 7ne who enters on land w/o permission b.


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i. Distinctions& at least for invitee and licensee are abolishedii. Polic%: value of life and limb is not determined b% a categor%

b. #ew Dut%:i. ct reasonable under the circumstances

ii. Take into account the foreseeabilit% of the harmiii. 6actors affecting the status of the relationship

'. 5loseness of in1ur% and D4s acts*. >oral blame attached to D4s conduct

. Polic% of preventing future harm

. Prevalence and availabilit% of insuranceI. 5ost of insurance

c. Furisdictions are about half and half& new standard is still a minorit%d. >ost 1urisdictions have re1ected collapsing trespassers into the other

categoriesi. $till carve out special e;ceptions to trespassers

5. 'ildrena. 5ourts are reluctant to appl% same limited3dut% rules to child3trespassers

or licensees b. 8igher standard of care to children

i. Principall% polic% 2 societ% has interest in protecting children fromharm

c. 5hild licenseei. There ma% be obligation to warn of risk where no dut% w/ regard to

an adultd. Attractive !uisance octrine

i. hen a landlord sets a temptation in front of kids that he hasreason to believe will lead them to danger& he must use ordinar%care to protect them from harm

'. 7nl% for artificial structures& not natural*. 5ommon ha+ards don4t count (a canal& river& etc.)

e. Restatement 2 ? rtificial 5onditions 8ighl% Dangerous to Trespassing5hildren@

i. Elements'. #i@eli'ood o( trespass place where condition e;ists is one

owner knows children likel% to pass*. anger owner knows or should know condition is kind w/

unreasonable risk of death or serious in1ur%. 'ildren ignorant o( ris@ the children& because of %outh&

do not discover condition or reali+e risk of being in the areamade dangerous b% it

. +tility utilit% of maintaining risk in safe state and burden

of eliminating the danger are slight compared to the riskinvolvedI. #ac@ o( reasonable care owner fails to e;ercise

reasonable care to eliminate the danger or protect thechildren

ii. #7T essential child be lured b% thing that in1ures !


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a. #ast clear c'ance & Davie$, Don ey tied up in road )i. "f D has opportunit% to avoid the accident after the opportunit% is no longer available

to P& then D is the one who should bear the loss.a. 5ontributor% negligence doesn4t appl% here

b. D is particularl% blameworth% 2places him as a superseding causec. Last wrongdoer& but doesn4t alwa%s attribute bigger negligence

*. * categoriesa. 8elpless Plaintiffs

i. 5onscious D: last clear chance (railroad engineer& sees person onrailroad)

ii. "nattentive D: courts are split on L55 (engineer is distracted) b. "nattentive Plaintiffs

i. 5onscious D: L55 (gives P a break here)ii. "nattentive D: no L55

3. omparative !egligence &=a6ority*a. 5ompare P4s fault w/ D4s fault and reduce P4s damages according to his measure of fault

(adopted b% J states)i. Liabilit% assigned proportionall% to the negligence of P and D

b. s long as P4s negligence is less than D4s negligence& P ma% recover ( MS)

c. Two 6orms:i. ,ure 2 damages allocated based on S of each part%

'. P can recover MCS if he was 'CS negligent or P can recover 'CS even if he wasMCS negligent

*. ill not be barred from negligencea. Problem: assigning numbers& arbitrar% (who was more negligent)

ii. =odi(ied>. ?not as great as@ 33 MS rule (


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d. =ultiple 7s ( 5u$t need to now that the$e are


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i. Re-uirements:'. ctual knowledge of the risk (sub1ective standard& you need to know)*. ppreciate the magnitude of the risk

. oluntaril% assume the risk ii. 0ou can4t consent if %ou have no ot'er c'oice

c. ,rimary Assumption o( t'e ris@ i. 7ccurs when P accepts the risk before the allegedl% negligent event occurs/ 'ad no

duty in the first place assumption o( ris@ 1. Train e;ample 2 obviousl% %ou will be 1ostled against people in crowded train

( Blac burn $ay$ thi$ will be analy@ed under duty2. Ba$eball, or $ iing e+a#ple, a$$u#e the ri$ be%ore the negligence ha$ co#e to

pa$$ !D&"A nowd. %econdary Assumption o( t'e ris@

i. P assumes the risk after becoming aware of Ds negligence/ D has a dut% of care1. Reasonable (pure or strict): %ou reasonabl% assumed the risk after becoming

aware !O assumption o( ris@ a. P7L"50: These are things that public polic% wants to encourage& like a

person that runs into a burning building to save a child. That person has #7T assumed the risk and should be allowed to recover.

*.


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ii. "f not governed b% polic% then it is probabl% discretionar%'. EH: Deu$er & polic% on how to make arrest& no polic% on

how to terminate arrest (termination is discretionar%)iii. E E# "6 it was a RE LL0 ! D decision& if discretionar% then

govt. i$ i##uneiv. Two part test

'. ere the actions a matter of choice or matter of procedure9*. as the 1udgment the kind the discretionar% act intends to

shield9. 5onsider social& political& and economic factors

a. =inisteriali. n action prescribed b% the governmentG %ou are told to do it

ii. =overnment is not immune'. 5ongress can also waive immunit% in other areas

a. " A= look at if one of the parties is associated with the government& police officer c. %tate sovereign immunity

i. 11 t' amendment ma@es states immune in (ederal court1. %ome 'ave /aived tort immunity2. %ome 'ave abrogated sovereign immunity) but immunity (or core

governmental (unctionsi. Decided on a state3b%3state basis

ii. pplies to $tate gencies'. Prisons& hospitals& educational institutions& highwa% authorities

iii. =eneral principles: P7L"5E P7 ER '. #o dut% to protect the general public ( 1i$$, $tal er in ? where lye wa$ thrown in

%ace)*. ssuming protection for specific individuals& govt. #7T immune ( Delong, E>>

call )a. Reliance interest9 Dut% to undertake to protect the public9

b. :,O police stops a drunk driver& let him go& is the cit% liable9

i. Town could be held liable. Police D7 have a dut% if the% put a person in a position and e;pose them& then fail

to give protectiona. hen a relationship is created between police and an individual which

gives rise to a special dut%& the municipalit% loses its governmentalimmunit% and liabilit% ma% result

b. Particularl%:i. "nformers

ii.


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i. $hielded from liabilit% when'. appl%ing 1udicial or legislative functions*. Performing discretionar% functions

a. n individual4s own choices while in emplo% of the govt.ii. ,roprietary (private3like& banks& da% cares) 2#7 ">>>


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a. Like to reduce the predicted damages to the present valuei. Present value

ii. 6ederal "ncome Ta;'. >ost damages that a plaintiff recovers are not ta;able in a

federal s%stem on ?personal in1ur%@,EH5EPT punitivedamages

*. h%9a. Lump sum: highest ta; rate& complicated anal%sis as

to when the sum arrives b.


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ii. Double recover%: doesn4t generall% happeniii. "nefficient in terms of deterrence if the% know that the% in1ure

people that tend to be insured b. >ost insurance agencies have subrogation clauses& will assume their part

of the litigationi


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*. disparit% between the actual or potential harm suffered b% P (compensator%damages) and the punitive damage award ($ 5t. sa%s it should be in the singledigits)

a. to ' is acceptable as well& not ' I to ' b. $maller compensator% damages& might be greater ratio for punitive

damages. difference between the punitive damages awarded b% 1ur% and the civil penalties

authori+ed or imposed in comparable cases (compare cases)iii. 0ou can onl% punish for 5T< L damage that happened to P (even if D did bad stuff

around the nation)'. 5annot tell the earning potential of the companies until punitive damages trial

(not before)*. PR7!LE>: windfall 1udgments9

a. $tate statutes can set caps on punitive damages& or ratio cap b. >ight need clear and convincing evidencec. 6unds might be placed in different handsd. 6irst plaintiff might be the onl% person who could collect in punitive

damagesiv. 6or Punitive Damages in #egligence cases:

'. #eed to show reckless or willful& wanton behavior *. >ust be disregarding what he knew to be a substantial risk to P or others

I A$IO+% #IA I#IT:1. $espondeat %uperior

a. Liabilit% based on relationship of the parties

b. Process to look for w/ negligent tortsi. 4irst Emplo%ee needs to be negligent (emplo%er does not need to be negligent)

ii. "s the person an emplo%ee or an independent contractor 9 ( Murrell, paper delivery andbro en gla$$ )

'. "ndependent 5ontractor: R$ does not appl%a. $upervision/ control

b. E;tent of control the master is authori+ed to e;ercise over details of work(most important)

c. hether actor is engaged in distinct business or operation (different than business)

d. hether the kind of work actor is doing is customaril% performed with

emplo%er4s supervisione. ho supplies the tools and workplacef. Length of time of emplo%ment (longer indicates more emplo%ee)g. 8ow paidh. hether the task is part of the emplo%er4s businessi. Parties4 own beliefs about the nature of the relationship

*. Emplo%ee: R$ does appl%a. 7ne who follows procedure

. "


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a. 8ire someone to do something that is inherentl% dangerous& still liableunder R$

b. "llegal activit%& liablec. #on3delegable dut% (statute or regulation that re-uires %ou to do

something...i.e. safe workplace)i. :,O statute re-uiring %ou to drive a safe car& take car in to

replace breaks& the% don4t fi; them& then get into an accident.ho4s liable for the accident9

'. 0ou are liable,it is not a delegable dut% to drive a safe car."ncentive to choose a reall% good break companies to fi;

breaks.ii. :,O bishop who get a report of child abuse. Doesn4t know

what to do& thinks he should keep confidences (doesn4t know aboutreporting law). $omething bad happens to the children. $ue thechurch.

'. !ishop more like an emplo%ee. 5hurch would sa% that the%did ever%thing to ensure that the% could. ould likel% beliable.

. Rationale for divide:

a. "ndependent contractor has his own enterprise to internali+e costs(insurance within own realm) what enterprise we are talking about

b. "ndependent contractors are more likel% to be financiall% secure agentsthemselves& can generall% recover from them

i. Think there should be liabilit% on the emplo%ers: would makeemplo%ers be more pick% about who the% contract with& tr% to find

people who are financiall% secure (so that the% could indemnif%).iii. Emplo%ee acting w/in the scope o( 'is employmentH

'. oming and going rule 5ommuting is #7T w/in scope of emplo%ment (control&risk)

a. E;ceptions:

i. =etting to a meeting 67R emplo%mentii. Emplo%ee endangers others w/ risks related to or arising from work

'. 6oreseeabilit%9 ( Bu$$ard, pe$ticide at wor #a e$ wo#anlight9headed )

*. %lig't deviation rule : was emplo%ee on a frolic or a detour9 (4*Shea, droppingo%% tic et$, hit$ car )

a. Detour 2 Emplo%er liabilit% b. 6rolic 2 #o emplo%er liabilit%c. 5onsider

i. ct emplo%ee is emplo%ed to performii. 7ccurs substantiall% within the authori+ed time and space limits of

the 1obiii. >otive: actuated at least is some small part b% desire to benefitemplo%er

iv. "ntentional torts: if force is intentionall% used b% the servant& notunforeseeable

iv. Intentional Torts 2 emplo%er liable "6:'. #ot entirel% unforeseeable*. The tort was w/in the scope of emplo%ment/reasonabl% connected to emplo%ment

7R

38


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. "f the% authori+ed or ratified the act& were reckless in emplo%ing or retaining theemplo%ee& or the agent was in a managerial capacit% and acting w/in the scope ofhis emplo%ment

v. Emplo%er A!!OT insulate himself b% imposing strict rules or sa(ety training'. :,O emplo%ee of a gun seller& who was told to never sell to minors& did so.

Emplo%er liable9a. 0es . Emplo%er cannot insulate himself with rules or instruction. $till

within the scope of emplo%ment.2. :,O emplo%ee gets mad during shift& and hits someone. Emplo%er liable9

c. ,olicy (or $espondeat %uperiori. ontrol A business s'ould absorb t'e costs its underta@ings impose on anot'er

!Bu$$ard, wo#an getting $icii. T%pe of strict liabilit%

iii. Emplo%ers need incentive to avoid harm,presumption of control over their emplo%ees'. Rationale

a. !elief that there is something that the emplo%er could have done better&and this is hard to discover.

iv. "nterprise liability t'eory'. 5osts of doing business on the business

*. Protection for emplo%ees. Protection for victims (can recover more & deeper pockets)

a. ,roducts re(lect t'e loss o( society emplo%er bu%s insurance& then thecompan% raises prices& this is the real societal cost of making the product

b. Put costs on a person who could better spread t'e lossv. Indemni(ication emplo%er can go after emplo%ee afterwards

d. ,unitive amagesHi. Limited on emplo%ers

ii. 5an recover punitive damages onl% if the emplo%er authori+ed or ratified (praised) the actiii. >alice& recklessness& fraud indicating that the emplo%er is more involved

e. :,O law%er talking on the phone and got in an accident

i. $cope of emplo%ment9 Don4t separate personal and business.

%T$I T #IA I#IT:'. =enerall%

a. Liabilit% w/o fault 2 even w/o fault %ou still have to pa% b. Does not mean bsolute Liabilit% 3 There are still numerous defensesc. $trict liabilit% takes care of D! 2 still must prove 58d. 5ourt order D to pa% damages& although he neither negligentl% nor intentionall% actede. Polic% Problems:

i. Does it reall% work9'. "f even if %ou spend mone% to safeguard but something bad happens and %ou are

strictl% liable& wh% would %ou ever spend mone% to safeguard9f. !ig "ssue is not ?take care@ but rather ?weigh how much %ou want to participate@*. Two reas

a. Animalsi. Trespassing nimals

'. 7wner of animal likel% to roam and do damage is strictl% liable for trespass(cows)

ii. ild nimals'. $trict liabilit%*. Fust because it is kept as a pet does not mean it is domesticated (ferrets)

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iii. Domestic nimals'. 7ne !ite Rule

a. 7wner liable onl% if he knew or had reason to know his animal hadvicious propensities

*. Do anal%sis of how much the future harm would cost v. how much safeguardingthat harm costs

b. +ltra-'a8ardous9Abnormally angerous activitiesi. #atural v. #on3natural use of land ( 1yland$, re$ervoir and #ine$ )

'. "f %ou use %our land in a natural wa% not liable& if %ou use %our land in an non3natural wa% liable (F.5airns)

a. #on3natural use of the land: manmade& or artificial& #D about what theordinar% person uses the land for (non3conforming use9)

i. #ot efficient to make strict liabilit% for something that is e;pected&what the land is used for

ii. Reciprocal risks& both impose the same risks (e;3ante risk& whatwould the% have agreed to beforehand9)

*. ?#ormal@ or ?traditional@ would probabl% have been better words than naturalii. "f %ou bring something onto %our land and it escapes& %ou are strictl% liable (F.

!lackburn)

'. hen the case comes to the


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c. $ationalei. Economic efficienc%

'. hen an activit% might in1ure others& we want to encourage the ?right@ amount of it

a. This is for strict liabilit%& not negligence. b. Presumption that people can make an accurate assessment of due care

i. ,roblem /it' negligence sc'eme underinvestment& discountharm percentage 33usuall% onl% think about themselves& notsocietal harm

ii. ,roblem /it' %# tend to take precautions that aren4t rational&since the notion of getting sued is reall% great& take inefficient

precautions'. 4airness) reciprocity o( ris@) overdeterrance o( conduct)

etc.*. %pread losses

. People will onl% engage in the right or economicall% efficient amount of theactivit%

a. "ncentive $%stemi. Posner4s opinion ( F#erican 6yanide ): want to give incentives to

be safe in building 2use the Learned 8and theor% !QPL standard indetermining

'. ant the right standard of care*. >ight take too man% precautions from an efficienc%

standard b. %trict liability and negligent standards of care are t'e same.

i. oes !OT a((ect t'e activity level /'o do /e distribute t'e'arm to H

'. "nterprise liability residual costs loo@ at i( 'e s'ouldcontinue in t'e activity

ii. !


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i. #egligence: not liable& wouldn4t bereasonable to spend an e;tra KICC dollars toavoid *&CCC

ii. $trict liabilit%: no liable.. KICC dollar fence9 $87E under $trictLiabilit%

. #imitations to $trict Liabilit%a. 8arm has to be @ind that makes the thing dangerous33D"$P7$"T" E ! o$ter, #in itten$ illed

%ro# vibration$ b. cts of =od are not foreseeable& no $L,scope of the risk& most courts hold that an%thing that is

so unforeseeable& compan% will not be strictl% liable !Golden v. F#ory, hurricane that hit$,over%low$

c. ssumption of Risk !Sandy v. Bu$hey, didn*t a$$u#e the ri$ when entered the pa$ture and gotic ed by hor$e

i. ant Ps to take sociall% optimal care

,$O + T% #IA I#IT:1. %trict ,roducts #iability

a. e(inition t'e liability o( t'e manu(acturer) seller) or ot'er supplier o( c'attels) to one /it'/'om 'e is not in privity o( contract) /'o su((ers p'ysical 'arm caused by t'e c'attel.

b. 7ld rulei. Privit% in contract (Winterbotto#, #ail coach driver hurt but not party to contract $o no

recovery )ii. #onfeasance v. >isfeasance 2was the old rule/ privit% of A is necessar% to sue for

negligence'. >isfeasance: negligentl% perform& fail in performance of A (privit% of A is

abandoned as a limitation)*. #onfeasance: don4t perform at all (remed% is in contract)

c. E;pansion ( MacPher$on, car wheel #ade o% wood )i. >anufacturer ma% be held liable& not 1ust to those in privit% of contract

ii. Recover% e;tends to:'. 6oreseeablilit%,grounded in tort law& not in contract #egligence

a. Economic wa% o*. 5ar E;: driver& passenger& and even person on sidewalk likel% foreseeableG robber

stealing car is notiii. $ule "f nature of a thing such that there is reasonable certaint% of loss of life or limb

when negligentl% made& it is a thing of danger

'. Re-uires knowledge of danger be probable& not 1ust possibled. $easons for imposing $trict liabilit% (coke product h%po)i. E;pertise/ corporation (best information& safet%)

ii. #ot abnormall% dangerous/dangerousiii. $pread loss& insurance,to ever%one who benefits from the product (reflects true societal

cost)e. Limited warrant%

i. "t is not fair to limit a warrant% in a wa% that harms a consumer ( 0enning$on )f. $trict Products liabilit%

42


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i. 7ne who sells an% product in a defective condition unreasonabl% dangerous to consumersor user is sub1ect to liabilit% of ph%sical harm "6:

'. engaged in the business of selling that product*. reaches consumer w/o substantial change in the condition in which it was sold

ii. #o privit% of contract is necessar%2. arranties

a. "odern trend: looking at the ob1ective side of test& if a reasonable person would rel% on it, Ba+ter rule is limited toda% in terms ofreliance.

b. :,O ?saves %our life once& a warrant%.@ $pecific enough for awarrant%9

i. Probabl% notb. Implied

i. arrant% of >erchantabilit%1. 6it for intended us e& that %ou are bu%ing what %ou think it is& and will do what it

sa%s it will;. 0ennig$on, driving a car and $o#ething went wrong with the wheel, got badlyin5ured

a. $olution: the old cases were never about contract& but alwa%s grounded instrict liabilit% and torts,no notice& privit%

ii. udge Traynor7s Approac' strict liabilit%& because the costs of the in1uries should beabsorbed b% manufacturer,this is the ma1or approach toda%

1. >anufacturer gets profit2. Real societal costs

iii. $ationale for manufacturer strict liabilit%43


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1. Too difficult to prove negligence against manufacturer 2. "ncentive to make product safe3. $o that manufactures stand behind their products

. !etter position to protect against harm5. Time consuming process& e;pensive and wasteful;. $eller is representing to the public that the product is fit for useK. 5osts should be placed on a part% best able to determine the means to prevent an

accident3. e(enses

a. 5omparative negligencei. Recover% limited or possibl% barred if comparativel% negligent even in strict products

liabilit% ( Daly, drun driver car accident de%ective door )ii. $trict liabilit% is not absolute liabilit%

'. >anufacturer not responsible for in1ur% that results from an unforeseeable use ofits product

iii. >anufacturer still held strictl% liable for the portion of the damage not due to P b. ssumption of the risk

i. Does not necessaril% bar recover%c. >isuse

i. #ot a bar to recover% if it was foreseeable misuse and the product was defective ( ord Motor 6o. v. Matthew, $tarting tractor in gear while $tanding wa$ %ore$eeable )

%#I,,"$: %#O," A$G+="!T%• Pal$gra% & 5ardo+o opinion (unforeseeable plaintiffs)• Pure economic loss• Dut% of 5are,negligent infliction of emotional distress• Privit% of 5ontract (earl% on in products liabilit%)

T "O$I"% O4 +%TI "1. onse?uentialism

a. Evaluate the rightness or wrongness of an act based on its conse-uences,whether it further thegood& net societal utilit%

b.


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'. Libert%: people would agree that the% would have the most e;tensive freedomconsistent with like libert% with other people

b. Article Assumes what a person would do behind a veil of ignorance would be to ma;imi+e o/n/ell-being

i. !est %ou can do is maa%be discourages punitive damages9

Documents

Richard's Torts Outline- Augustine Adams