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Intentional TortsI. 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 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. 1st case suggesting strict liability is not what torts is all aboutii. 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. 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 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.

b. Brown v. Kendall - ** leading case in how we do personal injury law, major transition in the lawi. Recall: Two dogs owned by P and D were fighting. D tried to separate them with a stick. In

doing 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 can’t 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.III. Battery

a. Cole v. Turneri. 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 contact1. Injury is not an element of intent. Battery liable for unintended or unforeseen

injuries.

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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 occur1. [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 intentiv. 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]

IV. Intenta. Garratt v. Dailey

i. Recall: D, age 5 years 9 months, was visiting with P’s sister, an adult, and P in the back yard of P’s 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 appellee’s dog.ii. P’s complaint in trespass. D’s 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 isn’t 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 dog3. A good faith mistake doesn’t get you out of intent.

c. McGuire v. Almyi. 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 Hoteli. Recall: employee of D snatched a plate from P’s hand and shouted that “Negroes could

not be served in this club.” P sues for assault and battery.

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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 person’s 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.

V. Assaulta. Elements:

i. Intent to cause apprehension of imminent contactii. Reasonable apprehension (this is based on the physical facts) of imminent contact.

1. “Reasonable apprehension” requires:a. Apparent present ability to accomplish contactb. 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 it’s a crime (i.e. “I’m going to

hit you if you don’t give me your $” is committing a crime, but “I’m going to hit you if you don’t leave the room” is different, since there’s a condition you can perform to avoid battery.)

b. I de S et Ux v. W de Si. Cause of action for trespass – P’s 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 he’s 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. Battagliai. 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).

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ii. D says he’s 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. Smithi. 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 you’re liable for B’s 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 doesn’t matter who

you hurt, even if it’s a person you didn’t intend to hurt.3. Doctrine of Transferred Intent.

VI. False Imprisonment (see also False Imprisonment Hypos in notes)a. Elements:

i. Intent to restrainii. 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. Justificationii. 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. LaBelle’si. 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.

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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. Sandfordi. 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 wouldn’t 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 officer’s uniform can be enough (Doctrine of Apparent Authority).

VII. Intentional Affliction of Emotional Distress – a “modern” torta. Elements:

i. Intent to cause emotional distress in an individualii. Outrageous conduct

iii. Severe emotional distressiv. Causal connection between the conduct and the distress

1. “Outrageous” and “Severe” are fact-laden issues2. “Presence” is required in many jurisdictions (i.e. in Taylor, Ds didn’t know she

was there)b. State Rubbish Collectors v. Siliznoff

i. Siliznoff signed the notes, but didn’t 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. D’s employee: “If you want to know the price, you’ll 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. Jonesi. Recall: Speech impediment. P’s 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

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i. Recall: P witnessed her father being beaten up by D (the beating caused him bodily injury). She 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.

ii. 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?

iii. 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.

iv. Transferred intent doesn’t work here because this is not one of the 5 original torts.v. Most states require that: (1) the action be directed at the individual; (2) P is present, conduct must

be in the presence of P.VIII. Trespass to Land

a. Dougherty v. Steppi. 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 wasn’t standing on P’s property while duck hunting, he repeatedly shot at ducks in flight over P’s 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 Com’rsi. D had permission to be on P’s land – had authorized entry. So if you have authorized

entry to go on someone’s land, it’s 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. P’s 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.

IX. Trespass to Chattelsa. 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 Pace’s server. Can they? Yes, probably. It could be argued that Pace’s chattel (the server) has been compromised/stolen by someone who floods it.

X. Consenti. Sometimes P’s burden

ii. Can be contextualiii. Conduct can constitute consentiv. Custom can determine consentv. Rules can influence consent

vi. Emergency can create consentvii. Consent may be “informed” deceit can be by omission

b. O’Brien v. Cunardi. 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 – it’s 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.

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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, P’s physician, brought some random unmarried male to help him deliver P’s 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 Propertya. Katko v. Briney

i. D appeals because of the judge’s instructions to the jury – you may not protect against trespass with a spring gun.

ii. This was a question of privilege – you don’t have privilege with respect to setting up a spring gun to protect against trespassers.

XII. Recovery of Propertya. Merchant privilege

i. “reasonable” suspicion and investigationii. “Immediate vicinity” rule in some jurisdictions

b. Bonkowski v. Arlan’s Department Storei. 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 isn’t a necessity. The law has worked it out in a way that’s equitable.XIV. Justification

a. Sindle v. NYC Transit Authorityi. 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.

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Negligence Elements:

o Duty o Breach [negligence]o Causation o Injury

General : Negligence is when D’s 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 analysisi. Consequence must be foreseeable for conduct to be unreasonable.

1. Foreseeable means not probable2. 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 P’s 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 D’s 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 utilityStandard: 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.

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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 wouldn’t be able to build roadsCompare 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 barge’s 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 child’s 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 P’s cottages.P was not very intelligent.Issue: Does the standard of care reflect this man’s intelligence? Do you take into consideration D’s 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 didn’t 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.

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Cordas v. Peerless Transportation Co. – thief entered chauffeur’s 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 Burson’s 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 – P’s thumb severed when riding on innertube pulled by D’s snowmobile which was driven by a 13 yr old.The instruction to the jury is at issue. When it’s 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 childrenThe 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 P’s 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/ Alzheimer’s held?If there’s a physical difference, you’re entitled to a different standard, but not if there’s a mental one. But in Alzheimer’s 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 lawyer’s 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

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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 P’s 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 D’s 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. D’s 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; or2. 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)

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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 excuse2. D burden of persuasion on excuse

Evidence of negligence

Osborne v. McMasters – P died from the use of poison sold without a label by D’s 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 didn’t comply with the statute and regulationxiii. Reversed and remanded because the regulation creates a duty. The statute does not set a

civil duty – can’t 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 P’s 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.

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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 isn’t 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 didn’t 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 don’t 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 seMartin v. Herzog – P and husband were hit by D’s car coming from the opposite direction. D did not keep to the center of the driveway, but P’s 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 P’s 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.

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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 can’t 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 proveo Circumstantial = requires an inference to be equal to the propositiono Most cases are a combo

Res Ipsa Loquitur Requirements:o Event would not normally occur without negligenceo 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 CasesGoddard v. Boston & Maine R.R. Co. – P fell on a banana skin lying on D’s 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 pizzaP 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 itselfElements:- No direct evidence of D’s 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

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- Causes other than D evidence (P or 3rd party) eliminated by evidence.

Byrne v. Boadle – P was walking on a public street past D’s 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 P’s 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 can’t 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 can’t

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

it’s 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

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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 – P’s 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 D’s 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 there’d 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 D’s failure to light the stairway was a cause in fact. Yes. Where D’s 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 production2. 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 P’s 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 wife’s 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 D’s 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 P’s injuries merely because some other person’s 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.

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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 driver’s negligence was a cause, should the owner of the truck’s 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 harmIn joint and several liability, P can sue several Ds

1. Vicarious liability – P can sue both the employer and employee2. 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 P’s property.The But-For test doesn’t 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 – P’s mom took DES while pregnant, resulting in P’s 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 P’s 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 P’s 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 D’s 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

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o Immediate (liability) v. remote (no liability) – Ryano 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 injuryo Type of injuryo Person injured

Who should normally decide liability should be limited despite proof of cause-in-fact? Cardozo’s “duty” approach says it’s a question of law for the ct. Andrew’s “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 P’s 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 consequencesRyan 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. P’s 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 P’s 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 damageWhile 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 doesn’t agree.There is liability for damage that is the direct result, even if not foreseeable.

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Foreseeability approach - Wagon Mound I – same jurisdiction as Polemis (Commonwealth) – Sydney, AustraliaThe 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 P’s 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 Polemisxli. 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 factsDifference here: Ps here didn’t drop the molten metal and start the fire. Mort couldn’t call attn to this because of risk of being charged with contributory negligence.

xlii. The test is foreseeability – P’s 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 Cardozo’s perspective: Duty1. Cause-in-fact is not the issue2. 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 missingDissent – 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 causeYun v. Ford Motor Co. – the dissent is the law in this case the Supreme Ct of NJ adopts the dissent and reverses laterDriving on the GSP late at night, Yun and Chang (Yun’s 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 Chang’s injuries? No.Whether Chang’s 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.

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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 rescueo The peril to the person was imminento Reasonable person would conclude the person was in perilo Rescuer acted reasonably in attempting to rescueo D’s tort was the proximate cause of the rescuer’s injury

“Firefighter’s 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 P’s injuries were caused by D Dickens’ negligence and P’s 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 D’s 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 doesn’t apply for product liability actions and that P can’t 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 P’s injuries? Jury decision.

Issue of whether Suzuki’s negligence is the prox cause of P’s injuries – McCoy has the burden (If he didn’t have to show it, he’d 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.

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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 ideaWagon Mound – Mort loses because his injury was entirely differentIs Kinsman’s 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? City’s 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 wouldn’t 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, haven’t 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 Zak’s 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 drivingMaking a judgment on a duty as a matter of law. Ct is creating a duty (generally this is the Legislature’s job), in accord with the state’s policy. State law prohibits licensee’s 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 can’t 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 majority’s claim that this is in accord w/ state policy.

Enright v. Eli Lilly & Co. – Karen Enright’s grandma ingested DES during pregnancy, her mother developed reproductive abnormalities, which caused Karen’s 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 grandmother’s ingesting DES a proximate cause of Karen’s 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:

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o Actual knowledge of risko Actual appreciation of the magnitude of risko 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 D’s liability be limited to % of fault? Damages:

o Nominal – liability, but damages are nominalo 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 abouto 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 D’s part and on P’s part. Then why isn’t 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 riskSeigneur 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 NFI’s negligence. P’s 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.

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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 he’s 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 P’s 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 it’s 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 ConcertBierczynski 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 FaultWho 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 D’s 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.

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Ct does not maintain joint & several liability – once you switch from comparative, joint and several liability doesn’t 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 judgment-proof, 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. Can’t have double recovery for a single injury.

Knell v. Feltman – Knell’s car crashed into a cab owned by D. Knell’s 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 B’s 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 wouldn’t 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 employee’s work. Something is foreseeable if in the context of the particular enterprise an employee’s conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer’s 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.

O’Shea 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

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P’s 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 Welch’s 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) employee’s 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 employer’s 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 – William’s wife Connie got into an accident with P and was killed on her way to purchase a calf for their daughter. P couldn’t reopen the wife’s estate, so P tried to sue her husband’s estate, premised on the theory that William and Connie were engaged in a joint venture and Connie’s 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. Connie’s 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 endpointxlv. Exceptions to no duty rule: various competing policy considerations; special relationships

(Restatement)

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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 P’s 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 Testbank’s 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 tortSpecial relationships that create a duty:

1. A common carrier with its passengers – i.e. a commercial bus2. Innkeeper with guests3. A business or other possessor of land that holds its premises open to the public

with those who are lawfully on the premises4. Employer with its employees5. A school with its students6. Landlord with its tenants

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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 D’s conduct (whether that conduct is negligent or not)

Hegel v. Langsam – P’s 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 – P’s 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 dutyJ.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 wife’s negligence rendered her liable since she knew or should have known of her husband’s 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 defendant’s 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 injury.

Tarasoff v. Regents of the University of California – D psychiatrists at Regents University of California. D counseled an outpatient who told him he intended to kill Tatiana Tarasoff because she spurned his romantic advances. D psychiatrist told police, but Poddar was released soon after. The psychiatrists decided that no further action should be taken. Poddar killed Tatiana 2 months later.Issue: Whether the psychiatrists owed a duty to warn/exercise reasonable care to 3rd persons, even if there’s no special relationship. Yes. Before Tarasoff, there was a duty to warn when the dr had a special relationship to both the victim and the dangerous person. The ct here says that the duty should not be restricted to that situation. Public interest in protecting against violent assaults outweighs the interest in treating mental illness or patient confidentiality. [But later CA limited this rule to where there’s an identifiable victim – kind of went back to the old rule.]

Strict Liability Animals that stray – fencing out and in The owner of an animal that is likely to roam and do damage

is strictly liable for its trespasses.o Wild animals/domestic animals – “one bite” ruleo The owner is strictly liable for a non-domesticated animal who injures someone.

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o An owner is liable for injury by a domestic animal if the animal is known to have a propensity to be vicious.

“Abnormally dangerous activity” – Restatement 519 – one who carries out an abnormally dangerous activity is subject to strict liability even if he exercises the utmost care to prevent harm.

Rylands v. Fletcher (*** Important case in tort history***) – This case used the animal cases (i.e. horse or ox roaming and damaging land) as authority. Based on strict liability for roaming animals. D hired a contractor to build a reservoir on their property. P was working on coal mines underground near the reservoir. When the reservoir filled up, water broke through into abandoned mine shafts, then flooded P’s adjacent mines. D was not negligent because not aware of mine shafts.Not trespass because damages were not immediate. Not negligence because D was not negligent in hiring the contractors. But absolute duty applied. Judgment for P.RULE: “The person who for his own purpose brings into his lands and collects and keeps there any thing likely to do mischief if it escapes, must keep it at his peril, and if he does not then he is prima facie answerable for all the damage which is the natural consequence of its escape.”D used the land for a non-natural use; of the water had entered through natural use and then flooded P’s property, then no liability.

Abnormally Dangerous ActivityRestatement 520 – 6 factors for consideration in determining whether an activity is “abnormally dangerous.” 2 or more must be present:

1. High degree of risk – existence of high degree of risk of some harm to the person, land, or chattels of others

2. Risk of serious harm – likelihood that the harm that results from it will be great3. Inability to eliminate the risk – even if by use of reasonable care4. Not a matter of common usage – extent to which the matter is not of common usage5. Appropriateness – inappropriateness of the activity to the place where it is carried on6. Value – extent to which its value to the community is outweighed by its dangerous attributes

(Cost-benefit analysis)

Whether an activity is abnormally dangerous is a question for the judge, not the jury. Side note: if land is involved, it is easier to label it abnormally dangerous.

Miller v. Civil Constructors, Inc. – P received injuries when a stray bullet from D’s target practice area ricocheted during firearm practice in a nearby gravel pit caused him to fall from a truck.P alleges strict liability because injuries arose from “ultrahazardous” activity.Is the particular activity ultrahazardous? No.*More than 1 factor of Restatement 520 must be present.Here the risk of harm to persons or property can be virtually eliminated by the exercise of reasonable or even “utmost” care.The target practice is of some social utility to the community – cost-benefit analysis.

Indiana Harbor Belt RR v. American Cyanamid – D American Cyanamid is manufacturer of chemicals and shipped 20,000 gal. of acrylonitrile (toxic & flammable) onto a RR car. Missouri RR picked up the car and carried to P’s switching line. P employees noticed a leak. Nearby homes were evacuated and P was ordered to clean the soil and water – cost: almost $1mil.P claims that the transportation of the toxin through the Chicago metro area is an abnormally dangerous activity and D is strictly liable.But the ct points out that the spillage was not caused by the nature of the toxin – it was caused by someone’s carelessness to maintain or inspect the RR car.P doesn’t distinguish between manufacturer and shipper. “Abnormally dangerous” is about activities, not substances the relevant activity is transportation, not manufacturing and shipping.

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Lesson: If negligence will take care of the problem, strict liability is not necessary. The negligence regime is more likely to avoid the result in the future rather than strict liability.

Limitations on Strict Liability(Cannot use contributory negligence when the claim is strict liability. But you can use assumption of risk)Foster v. Preston Mill – P owned a mink farm. D blasted 2.25 miles away. P provided notice that the blasting was causing the mother mink to kill their kittens. Judgment for P. Reversed.Like the proximate cause slippery slope problem – some limits must be set. A dangerous enterprise must pay its way within reasonable limits, but that’s not to say it must bear responsibility for every extreme of harm it might cause.The thing that makes blasting ultrahazardous is the risk that property or persons may be injured. It’s not abnormally dangerous for causing minks to eat their young. Not abnormally dangerous for this type of risk.Restatement 519

Golden v. Amory – D owned a hydroelectric plant which constructed a dike. As a result of a hurricane, the river overflowed.Rule: Strict liability does not apply where the injury results from a major act of God which the owner has no reason to anticipate.

Sandy v. Bushey – P was kicked by D’s horse while P was in the field feeding his mare. Cannot be said P voluntarily put himself in a way to be injured because he had reason to be there (anyway, no defense of contributory negligence when the claim is strict liability because it excludes negligence as the basis of liability).D’s horse exhibited vicious tendencies before, so D is strictly liable for the keeping of a vicious animal.

The Developments of a Theory of Products Liability Causes of action: negligence, express warranty, implied warranty of merchantability, strict liability The rise and modification of strict liability

o Mfg. putting the defective product into commerce should, rather than innocent purchaser, bear the risk

o Restatement 2d, section 402A – single defect approacho Restatement 3d (draft) – Recognition of separate kinds of defect: manufacture, design, warning

Defect in Manufacture :(1) Defective when left manufacturer(2) Expectation of no change in product(3) Defect proximate cause of injury

Defect in Design :o P has the burden of persuasion to show reasonable alternative designo [Minority: D has the burden of persuasion to show no reasonable alternative.]

Defect in Warning :o P has the burden of persuasion on foreseeability of need to warno [Minority: D has the burden of persuasion to show need for warning not foreseeable.]

P misuse may be compared to strict liability in most jurisdictions – complete defense in others Foreseeable product misuse usually not compared or a complete defense

MacPherson v. Buick Motor (see above)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.Cardozo imposes a duty on manufacturers.Item can be inherently dangerous if it is negligently manufactured (SEE NOTE ON P. 721)[“Inherently dangerous” part dropped off as the law developed]

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Test: Whether the product was reasonably certain to place life and limb in danger when negligently made… If so, a negligence action may be brought against the manufacturer even without privity of K between manufacturer and purchaser.

WarrantyExpress Warranty – Under the circumstances where an ordinary person would be unable to discover a defect by usual and customary examination, and has relied upon the manufacturer’s representation, the manufacturer will be liable when the goods cause damage due to noncompliance with the representation.

Baxter v. Ford Motor – P purchased a Ford from the D dealer who had gotten the car from D Ford, who represented that the windshield was made of nonshatterable glass. Pebble struck the windshield, causing a piece of glass to hit P’s eye. P couldn’t sue in negligence b/c there is no negligence. Ford argues that you can’t have a K action for warranty if there’s no privity. The Ct ignores this and changes the rule.Mazetti v. Armour – warranty runs to the ultimate consumer, even without privity, if the problem is not discoverable by the consumer.SEE NOTE 5, P. 726

Henningson v. Bloomfield Motors – Mrs. H was badly injured when a steering defect caused her car to crash into a wall. The car was manufactured by Chrysler and sold to P by Bloomfield Motors. When Mr. H purchased the car he did not read the fine print on the back, which was a warranty clause that provides that the manufacturers gave no warranties other than replacing defective parts within a certain time frame.Trial ct dismissed negligent counts (b/c no proof of negligence) and the cause was submitted to jury solely on implied warranty of merchantability.No express warranties.This is also a K cause of action – this was a mass K used by enterprises with strong bargaining power and position, leaving the weaker party with no choice but to accept. The ct here is changing K law because it won’t honor this K.P wins because of implied warranty of merchantability, which warrants that an item is reasonably fit for the purpose for which it was manufactured (comes from the Sales Act). Implied warranty creates strict liability that grows out of contract. Sales Act’s way of ameliorating caveat emptor.When a manufacturer puts an item on the market, there is an implied warranty that it is reasonably suitable for use.

Strict LiabilityRestatement Third, Product Liability: A manufacturer is liable for defect if he sells or distributes a product and it causes harm. A product is defective if at the time of sale or distribution it contains a manufacturing defect, is defective in design, or is defective because of inadequate warnings or instructions.

Manufacture defectGreenman v. Yuba Power – P purchased a Shopsmith power tool. When using it, wood flew out and hit him in the head.10 months later P gave D written notice of claimed breaches of warranties. Judge Traynor rules that the notice requirement of section 1769 doesn’t apply to manufacturers because it comes from contracts.Implicit in the machine’s presence on the market was a representation that it would safely do the jobs for which it was built. It was sufficient to establish manufacturer liability b/c P was using the tool in the manner in which it was intended to be used and was injured as a result of its use. A manufacturer is strictly liable when he places an article on the market knowing it is to be used without inspection for defects, and those defects cause injury.Traynor gets around the 4 previous cases – he says this is different. Parties in privity are different from those in nonprivity. Notice makes no sense here – no privity, no bargaining. Traynor looks at the food cases and Civil Code 1732 as authority.

Policy:

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- Strict liability makes sure costs are born by manufacturers rather than injured persons helpless to defend themselves (this turns caveat emptor upside down).

- Proving negligence in these cases is difficult, if not impossible.- Law wants strong incentive for manufacturers to keep products safe.- The manufacturer is in a position to spread the risk (can buy insurance, can build the extra price into the

economy)

Restatement 402(A) (about dangerous defective products) almost instantaneously because law all over the countrySEE NOTES 1, 3, 10

Rix v. General Motors – defect in manufacture and design. P was injured when driving a car and being rear-ended by a truck, which was established as having fluids leak which were necessary to the breaking system. P sues GMC on theory of strict liability. P claimed the truck was defective when it came off D’s assembly line, and that D should have foreseen such problems and mandated a dual breaking system. D claimed the truck was altered after leaving its assembly lineAlthough the truck was 8 yrs old, the instructions given to the jury regarding possibility of finding of manufacturer defect b/c it is possible that the truck was defective coming off the assembly line.

Design DefectsNegligent Risk-Utility Analysis – must consider:

(1) Product utility(2) Likelihood product will cause serious injury(3) Availability of safer substitute(4) Mfg ability to make safer and maintain utility(5) User ability to avoid danger by exercise of care(6) User’s anticipated awareness of danger

Risk Utility (this is the minority):Adds a 7th factor to consider, whether the manufacturer can spread the riskSEE P. 752-752

Reasonable alternative design cases:Majority: Burden of persuasion of reasonable alternative design is on P (Prentis)Minority: Burden of persuasion is on D.The burden determines who wins when the jury can’t make up its mind – D wins in majority, P in minority.

Prentis v. Yale Mfg. – P was operating a fork lift with no seat for the operator. Battery was low, and P fell when the machine experienced a sudden power surge. P alleged a defect in design and had experts testify that the design failed to incorporate the “human factor” into the machine’s function because it did not provide a seat. How this product would be used should have been anticipated by D.A design defect should be held to a negligence standard.Different notion than Greenman – sellers are not insurers and absolutely liable for any and all injuries sustained by the use of their products.P has to establish that D failed to use reasonable care in designing a product against foreseeable and unreasonable risk.

O’Brien v. Muskin Corp. – P dove into a 3 foot pool from the garage. His hands hit the vinyl lined pool bottom, slid apart, and he struck his head on the bottom. P argues that D is strictly liable because it manufactured a defectively designed pool – because of the slippery quality of the pool liner and lack of adequate warning against diving.

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In manufacturing this product, do you have to take into acct the way ppl use it? Same issue as Prentis, but comes out differently.

Products Liability (Continued)

Anderson v. Owens-Corning – Minority opinion; Same jurisdiction as Greenman. P was exposed to asbestos while working in the vicinity of others installing insulation products aboard ships and suffered lung problems.Parties argued the admissibility of state of the art evidence in a failure to warn case. Evidence ended up being allowed.Holding: Knowledge is relevant to the imposition of liability for failure to warn.How can one warn of something unknowable?Here D has the burden on the issue of foreseeability to warn, but this is the minority. Most jurisdictions put that burden on P.

Warnings are not needed for obvious dangers that are generally known – i.e. you do not need to put a warning on a gun. There is a difference in the sophisticated user.

Adequacy of warnings is a jury issue

Learned Intermediary – Doctors serve as learned intermediaries. I.e. a manufacturer of a certain drug would not have to tell its users about the side effects because the doctor prescribes the drug. This defense probably doesn’t work anymore… (Note 11, p. 761)

Proof In most manufacturing defect cases, if P has no direct evidence of defect, he can carry the burden of production by evidence that negates other possible causes – in many jurisdictions.

Friedman v. General Motors – This is a case about facts. P alleged that he turned the ignition key in his 17 month old Oldsmobile while in “drive.” The car leaped forward and he couldn’t gain control. P and 3 family members were injured. Trial ct granted D’s motion for a directed verdict on the ground that P had not proved the vehicle was defective.Holding: P’s evidence is sufficient to overcome D’s motion for a directed verdict.For a prima facie case, P must identify the elements of a cause of action and produce evidence that a reasonable jury could find for P. Must prove the 3 elements of a mfg defect.How proof works: Judge must look at evidence as most favorable to P and determines if a reasonable jury could find, from the inferences most favorable to P.

DefensesDaly v. General Motors – Product misuse defense. Driver of an Opel car was thrown from his car in an accident because of an alleged defect of the door latch. There was evidence that he was intoxicated and did not use the shoulder harness or lock the door. He died. Experts testify that he would not have been killed had he remained in the car. D argues that the driver’s fault was proportional in the fault resulting from the injury. Judgment for D was reversed.A system of comparative fault should be extended to strict liability actions. D is still strictly liable but P’s conduct doesn’t escape liability. Driver’s estate’s recovery is diminished by a % of his comparative negligence.

In most jurisdictions it is a complete defense if P knows all the dangers and assumes the risk. Assumption of risk is a complete defense in strict liability jurisdictions.

Ford Motor v. Matthews – Matthews was killed as a result of being run over by his tractor. He was standing beside the tractor when he started it and it was in gear. The tractor was equipped with a starter safety switch

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designed to prevent it from starting in gear. Matthews shouldn’t have been standing next to the tractor, but the tractor shouldn’t have started in gear.Whether Matthews contributed to his own death so that Ford should not be held liable? No.Contributory negligence is not a defense here because the negligence was reasonably foreseeable by Ford.

Rule: The manufacturer is not liable for injuries resulting from abnormal or unintended use of his product if such use was not reasonably foreseeable. If the misuse is foreseeable then products misuse is not a defense.

Nuisance Private nuisance: non-trespassory invasion of another’s interest in the private use and enjoyment of land

(property – individual interest – root) Public nuisance: unreasonable interference with a right common to the public (criminal – community

interest – root)o Usually brought by governmental units on behalf of the publico Individual can have “standing” to bring on behalf of public – needs “special injury” (Harm

different from some kind suffered by others exercising the common right) Cannot be a nuisance solely by reason of location or activity that is lawful. Remedies for nuisance can be equitable (injunction or mandamus) and/or monetary Preserving a nuisance: Restatement section 826(B) – no nuisance or “buy” nuisance; Boomer approach

to permanent damage.

Philadelphia Electric v. Hercules, Inc. – relationship between Hercules and P PECO is that of a vendor and remote vendee of land. PECO had full opportunity to inspect the property beforehand. PA Department of Environmental Resources discovered resinous materials and directed PECO to eliminate them, costing P $400K.P does not fall into the category for which D should be liable in private nuisance. Recovery on this theory is not available to tenants & their invitees. D may be liable to others, i.e. neighbors. Neighbors don’t have the opportunity for caveat emptor – can’t inspect. D didn’t invade P’s land because P is the purchaser.P does not have standing to bring a public nuisance action. An individual can bring an action in public nuisance, but must show that his injury is different than the damage suffered by the general public, but that he is exercising the same right as the public (in this case, pure water). But P did not use the water itself and was not directly harmed by pollution of the water. The condition of the site was not the result of the pollution, it was the cause of it. So P can’t recover.

Trick to succeeding in an individual action for public nuisance: make the right to the public as broad as possible and the individual injury as narrow as possible.

Morgan v. High Penn Oil Co. – P owns land on which he had his home, restaurant, and trailer accommodations. D was next door and operated an oil refinery which omitted gas and odors several times a wk which invaded P’s land. D failed to end this after given notice.D correctly asserts that an oil refinery is legal and thus cannot be nuisance per se, but a private nuisance per accidens can be created/maintained without negligence. The invasion of P’s use and enjoyment of the land can be intentional or unintentional:

Person is subject to liability for intentional if conduct is unreasonable Person is subject to liability for unintentional if conduct is negligent, reckless, or ultrahazardous

Rule: A person who intentionally creates or maintains a private nuisance is liable for the resulting injury to others regardless of the degree of care or skill exercised to avoid such injury.Don’t need negligence to be a nuisance; Can be a nuisance when done intentionally.

Winget v. Winn-Dixie Stores – Ps complain the neighboring D supermarket is a nuisance.

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D’s operation (fans blowing on P’s property, lights shining) constitute a private nuisance. But damages can’t be based on a diminution of value of land – location is not a nuisance. D’s operation is the nuisance, its location is not. New trial.[Ps complain about the crowds of ppl and cars, as well as the trash trucks. However, it s natural there would be an increase in # of ppl visiting, and the store only operates on weekdays during daytime hrs. Nothing to indicate trash trucks were other than the usual and normal city operations.]HYPO: There is a drive-in theatre on the other side of the store and the floodlights of the store affect the movie screen. Can the theatre bring a public nuisance action? Yes, because of the common right to the public being freedom from light pollution. The drive-in has economic damage, which constitutes a special damage exercising a right common to the public.

Spur Industries v. Del Webb Development – Del Webb developed a community next to Spur Industries feedlots and then sues, claiming public nuisance.Del Webb has the standing to claim public nuisance since the common right is to live in a place with no smell and no flies. Del Webb’s injury is that he can’t sell this land and thus has the standing to bring a public nuisance action.Feedlots argue that there were there first and that since Del Webb came to the nuisance, he doesn’t have relief.Since this is a public nuisance action, the Ct rejects Spur’s “coming to the nuisance” defense. [Had it been private, the ct would have held differently.]But Del Webb has to indemnify Spur for the cost of moving act of equity by the Ct; Del Webb has to pay for the advantage.

In a majority of jurisdictions, “coming to the nuisance” is not a defense. But cts will take it into consideration when calculating damages.

Carpenter v. Double R Cattle Co. – Ps are homeowners living near D’s cattle feedlot – Ps allege that manure, pollution, odor, bugs, birds, dust, & noise constitute nuisance.Trial ct found that it wasn’t a nuisance. Ct of App reversed and claimed that the trial ct didn’t give good jury instructions on Restatement 826(b), which allows for a finding of nuisance even if the gravity of harm is outweighed by the utility of the conduct if the harm is serious and damages don’t cause the business to discontinue. We hold that the trial ct was not erroneous and find no nuisance.McNichols v. J.R. Simplot Co. should be viewed as Idaho law, that in a nuisance action seeking damages, the interests of the community (which would include the utility of the conduct) should be considered in determining nuisance. Idaho’s economy depends on benefits of agriculture, lumber, mining, industrial development. To eliminate the utility of conduct from the criteria to be considered in determining nuisance would place unreasonable burden on these industries.[There is a dissent who thinks otherwise.]RULE: If the nuisanced use is so much more important than what it’s doing to you, then it’s not a nuisance.Idaho doesn’t follow Restatement 826(b), but most states do because it provides an equitable alternative.

Boomer v. Atlantic Cement – Ps brought action for nuisance against neighboring cement plant, alleging injury to property from dirt, smoke, and vibrations. Nuisance was found after trial and temp damages allowed, but injunction was denied.Whether the injunction should be granted? Yes.Problem: there is a large disparity in the economic consequences of the nuisance and injunction.Supreme Ct rules that if permanent damages are attainable, operation of the plant can be enjoined until the amt is paid.

SEE NUISANCE HYPOS!!!

Common Law Defamation A communication that tends to damage P’s reputation in the popular sense

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Judge decides why words are defamatory (or not) on their face: why defamatory, words & publication to 3rd part = prima facie case

If words are ambiguous, the jury decides if defamatory Pleading & Proof: words, publication, inducement (context), colloquium (about P), innuendo

(defamatory meaning), special (pecuniary) damage.o Once special damage proven, damages for lost reputation are available

Truth of statement is a defense for which D bears the burden [falsehood not part of P’s prima facie case] of production and persuasion.

Libel (printed or written defamation) – Slander (defamation) – Slander per se (Whether P must show special damages is the issue)

Group libel – only if group is small enough so individuals are identifiable. Conditioned privilege for common interests (D burden) can be negated by malice (P burden)

In slander per se, you don’t have to prove special damages. Types: (1) Major crime with moral turpitude; (2) Loathsome disease; (3) Business, trade, profession, or office; (4) Serious sexual misconduct

- Publication must be to someone other than P- If the same person or newspaper says the same thing twice, there’s still only 1 cause of action- If you repeat a defamatory statement to someone else, (or a newspaper publishes it), you can be sued.

The newspaper can be sued.

SEE NOTE 2, P. 834 FOR DEFAMATION DEFINITION

Belli v. Orlando Daily Newspapers – A newspaper article listed the P, King of Torts, tricked the FL Bar Association into paying for his expensive clothing bills. This article could be construed as either defamatory or non-defamatory, so it is a jury question.Rule: Goes to the jury if it’s ambiguous. If it’s clearly defamatory or non-defamatory, then the judge decides as a matter of law (but most of the time it’s a jury question).

To make a prima facie case if the statement is defamatory on its face, P must plead and prove publication (that is was communicated to at least 1 other person).

To make a prima facie case if the statement is not defamatory on its face, P must pleas and prove the 6 elements of common law action for defamation: (1) Words – what was the statement? (2) Publication – communication to a 3rd party; (3) Inducement – extrinsic facts that demonstrate context that suggests words are defamatory; (4) Colloquium – words are about the plaintiff; (5) Innuendo – the defamatory meaning; (6) Special damages – damages that are pecuniary, not just damage to reputation alone.DEFENSE: Disproving 1 of these elements.

HYPO: Goldberg is suing a 2L for defamation. Words: “The bald guy’s evidence class is easy.” – This could be construed as either defamatory or non-defamatory, so Goldberg would have to prove the 6 elements:

- Words: proven- Publication: 2L said this to 1Ls during registration- Inducement: students here have a pride in academic vigor and don’t purposefully take easy classes- Colloquium: Goldberg has to prove it is about him (i.e. other professors are bald). He could do this with

facts: the 2L had his evidence class.- Innuendo: Students here don’t elect to take easy classes – innuendo is that he is not a good teacher- Special damages: 2 possibilities here (1) that students won’t take his classes and he’s get smaller

raises and won’t have classes to teach; (2) Statement was about his profession, which is slander per se.

Kilian v. Doubleday & Co. – D published stories by a war veteran that were not true and which implicated P in unlawful and cruel actions while a commanding officer during WWII at an injured soldiers hospital. D tries to

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use the defense of truth. But in order to support a defense of truth, it is necessary to prove that the story is substantially true. This wasn’t what happened here.Truth is a complete defense in common law defamation and is something D must plead and prove.The common law presumes a defamatory statement is false, so D has the burden of persuasion to show it’s true.

[Side Notes: Someone may be defamatory-proof because their reputation is so bad, or so good. This affects damages. But a lot of ppl sue in defamation for reasons other than money.]

Group Libel : Neiman-Marcus v. Lait – D published an article alleging that Neiman-Marcus’s female employees (saleswomen and models) were call girls, and salesmen were “fairies.” All of the models sued, 15 out of the 25 salesmen sued, and 30 out of the 382 saleswomen sued.Whether the individual members of each group can sue? Salesmen can, saleswomen can not.Rule: Where the group libeled is large, none can sue even though the language is inclusive. Where the group libeled is small, and each member is referred to, then any individual member can sue.This case modified that small group rule by allowing the salesmen to sue (not granting D’s motion to dismiss) even though the article says “most” (so only some of the salesmen are libeled)Ct granted the motion to dismiss the individual saleswomen. Group too large and no individual named. No reasonable person would conclude from the publication a reference to any individual saleswoman.

Note 6, p. 843 – no action for defamation of the deceased

Bindrim v. Mitchell – P ran a nude psychology class. D a novelist, registered in P’s class and signed a form which stated that she would not take photos, write an article, or disclose what goes on in the sessions. D published a novel based on the nude-therapy technique with a principal character using the technique.If a reasonable person would understand P is the person depicted, you’ve established the colloquium (that it’s about you). P does this through witnesses. This establishes a prima facie case for the jury.However, if fewer people know, damages will be less.

Shor v. Billingsley – D was on the radio and made a defamatory statement about P, but the statement was not in the script. All previous cases dealt with written scripts, so the difference is proof of special damages. But even though it is not from a script, it is nevertheless libel.That defamation by radio, in the absence of a script, lacks the measure of durability possessed by written libel, in no way lessens its capacity for harm.SEE NOTE 2, P. 852[Broadcasts today are slander, not libel.]

Terwilliger v. Wands – D circulated reports that P was sleeping with a woman whose husband was in jail. P claimed that he became ill and was unable to attend to business after hearing these reports (these were the only damages proven). But bad health and inability to attend business don’t cut it for special damages P must show the loss of reputation WITH pecuniary damage, which he did not do. (Note: pecuniary damage can be potential, i.e. future loss of business)

Libel per se and Libel per quod:At common law special damages were never required for Libel, so that all libel was libel per se. Sometimes there was an exception called libel per quod. Libel per quod is when a statement was not defamatory on its face and it was necessary to be aware of certain extrinsic or unstated facts in order to appreciate its defamatory implications – P has to prove those extrinsic facts.

Sindorf v. Jacron Sales – P resigned from Jacron, but kept some of the inventory and went to work for Tool Box Corp. An employee from Jacron called the Pres of Tool Box to see whether P started working for them before leaving Jacron. (Jacron and Toolbox, although competitors, had a close relationship) He had not, but during the

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phone convo, the employee told the president that some $ from sales and merchandise had not been accounted for and warned him to watch his stock carefully and other derogatory insinuations.Issue: Jacron enjoyed a conditional privilege to defame P (former employer to new employer about a former employee). But did Jacron lose this privilege by maliciously defaming P? This should be a jury question because reasonable minds would differ on the issue of malice. (If there’s no factual dispute, it would be a law question for the judge).What is conditional privilege and what can negate it? D has the burden of persuasion – the privilege must be pled and proven by D. P may show that the privilege is conditional, and that D made the statements with malice (ill-will).[That the info was volunteered is circumstantial evidence of malice – SEE NOTE 4, P. 930]NOTES P. 929-932

New York Times v. Sullivan – A number of civil rights leaders put an article in the NY Times, which contained statements that detailed the activities of the police in Alabama during the Civil Rights Movement. Sullivan was the Commissioner of Public Safety and in charge of police. The article was substantially true, but not in respect to some specifics. This case changed the common law of defamation. A public official plaintiff must plead and prove the statement was false and must prove actual malice (“knowledge or reckless disregard that the statement is untrue”). Benefit of political debate outweighs defamation. Rule also applies to “public figures.”

Fraudulent Misrepresentation Misrepresentation is a contract action minus privity. Torts allows for no privity. Elements of fraudulent misrepresentation: (1) Material Misrepresentation

a. False statement about an existing fact that speaker knows to be falseb. Covering up a defectc. An omission, or nondisclosure, if there is an imbalance of knowledged. An opinion or prediction that implies a fact can be a misrepresentation

(2) Scienter (Intent)a. Maker knows or believes that the matter is not how he represents it to beb. Does not have confidence in the accuracy of his representation that he states or implies (unsure)c. Knows that he does not have the basis for his representation

(3) Intent to cause Reliance on the statement(4) Reasonableness of reliance – justifiable reliance(5) Pecuniary Damages (lost money)

Swinton v. Whitinsville Savings Bank – D sold P a house knowing it was infested with termites (1942). P couldn’t tell from appearance that it was infested and it cost him to take care of it.Nondisclosure of a defect does not create liability for breach THIS CHANGES NEXT CASECaveat emptor – buyer beware.

Griffith v. Byers Constr. Co. – D developed a residential area which he knew or should have known would not sustain vegetation because of saline content of the soil. Ct rules the purchasers, who had purchased from a real estate company (and not D) could recover on the theory of fraud. Privity doesn’t matter (but the buyer must be within the class of ppl likely to rely).Rule: Jenkins v. McCormick: “Where a vendor has knowledge of a defect in property which is not within the fair and reasonable reach of the vendee and which he could not discover by exercise of reasonable diligence, the silence and failure of the vendor to disclose the defect in the property constitutes actionable fraudulent concealment.” See Restatement 551 as well.

The doctrine of privity is no defense if Ps are within a class of persons that the D intends to reach and expects will rely on his representation. One who makes a fraudulent misrepresentation or concealment is

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subject to liability for pecuniary loss to the persons whom he intends or has reason to expect to act or to refrain for action in reliance upon the misrepresentation or concealment.

Basis of LiabilityDerry v. Peek – Ds induced P to purchase stocks in their company. Ds believed they would have no problem getting approval to use steam power on their railway and so advertised it, making P buy the stocks. Ds had not yet obtained the actual permission and were later unable to obtain it for the whole railway. But misrepresentations must be fraudulent and require scienter (speaker knows statement is false; or speaker is unsure of truth; or speaker knows there’s no basis for his statement). Here the misrepresentation was not intentional. Ds honestly believed they’d have permission. So no fraudulent misrepresentation.

Elements for an action for Deceit (DIDN’T GO OVER THIS IN CLASS? This was in Dean’s Scholar)(1) Must be proof of fraud(2) Fraud is proved when a false misrepresentation has been made

a. Knowingly, orb. Without belief in its truth, orc. Recklessly, careless of whether it is true or false

(3) If fraud is proved, the motive of the person guilty of it is immaterial. It does not matter that there was no intention to cheat or injure the person to whom the statement is made.

Reliance : Williams v. Rank Buick – P went to Ds used car lot to buy a Chrysler with AC. Salesman told him the car had AC, and he took it out for a test drive for 1.5 hrs. P discovered after buying that the car only had ventilation and no AC.Issue: Whether the salesman’s statement could have been detected by ordinary observation. There is no liability when this is the case because of reliance. Did P reasonably rely? Ct looks at the intelligence and experience of the misled individual and the relationship between the parties to determine this. Here the ct decides that P was somewhat business savvy (owned his own business) and could read and write. P had ample opportunity to test the AC on his own. So the ct decides this was not even a jury question – P should have tested the AC as a matter of law.

Opinion : Vulcan Metals v. Simmons Mfg. – D sold P vacuums with misrepresentations on the quality of the vacuums (basically that they were the best). There were also misrepresentations that the vacuums had never been put on the market. 2nd Circuit ordered a new trial, but only for the misreps that the vacuums had never been put on the market (should be a jury question whether this was determinative of P’s decision to buy them). But D’s general “puffing” or “trade talk” are not sufficient to make a misrep cause of action. Here both P and D were experienced businesses – they stood “on equality.” P should have known this was only “trade talk.” What might constitute a fraudulent misrepresentation is when the buyer is inexperienced (i.e. from mfg. to customer).

Prediction and Future Acts : McElrath v. Electric Investment Co. – Ps entered into K with D, who promised that the Electric Traction Co would complete its electric RR and would run cars over from Minneapolis, that D would make Antlers Park an important summer resort for ppl living in Minneapolis, and that P would make no less than $1500 per yr with the help of D. The RR ended up not being built.Whether future intentions in this case constitute a cause of action for fraud? Only in regards to the RR because D intended to cause reliance and P’s reliance is justified (D had no control over the other promises and they had known uncertainty surrounding them so P couldn’t rely). Promise of future acts can in some circumstances be a misrep if the seller made them so that the buyer will rely and the buyer reasonably relies. Opinions and predictions can be the basis for misrepresentation.

Negligent Misrepresentation

International Products v. Erie R.R.

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Winter v. G.P. Putnam’s & Sons

Hanberry v. Hearst Corp.

Ultramares Corp v. Touche

Credit Alliance Corp. v. Arthur Anderson & Co.

*** Comparative Results: Plaintiff has $1,000,000 in damagesRecovery if: P’s fault = 80% P’s fault = 50% P’s fault = 49%Pure Comparative: $200,000 $500,000 $510,000Modified: P at fault less than ½ (49%)

0 0 $510,000

Modified: P at fault not more than ½ (50%)

0 $500,000 $510,000

*Critical difference between 49% and 50% states

Jury is being asked to make these very fine assessments. How jury instructions are handled matters a lot in a comparative state.

[Insurance companies prefer contributory negligence.]


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