Torts Outline



I.                  Intentional Torts

A.    A person acts with intent to produce a consequence if:

1.      the person has the purpose of producing that consequence; OR

2.      the person knows to a substantial certainty that the consequence will ensue from the person’s conduct

a.      Garrett v. Dailey (battery)- boy moves chair and plaintiff falls and breaks her hip, boy didn’t intend to break her hip, just to make her fall; if it was proved when he moved the chair that he knew with substantial certainty that the plaintiff would attempt to sit down where the chair had been a battery would be established

B.    Battery

1.      An actor commits battery if he acts intending:

a.      to cause a harmful or offensive contact to person of other or a third person OR

b.      to cause imminent apprehension of such contact AND

c.       harmful or offensive contact actually results

2.      Elements:

a.      a contact

b.      that is harmful or offensive, and

c.       that the defendant caused intentionally

3.      Essence of battery is an offense to dignity involved in unpermitted invasion of inviolability of person

4.      Not necessarily any physical harm done to body or actual physical injury

5.      Includes unpermitted and intentional contacts with things connected to the body (clothing, cane) when done in an offensive manner

a.      Fisher case- Fisher went to a luncheon, defendant took Fisher’s dinner plate and shouted he could not be served there, Fisher was humiliated, intentional grabbing of plaintiff’s plate constituted a battery, this was invasion of his person as would be an actual contact with the body

b.      can be an extension of the body (i.e. plate, cane, clothes, anything directly grasped by the hand)

6.      A bodily contact is offensive if it offends a reasonable sense of personal dignity

a.      must be contact which is unwarranted by the social usages prevalent at the time and place which it is inflicted

b.      since it involves dignity, it is not necessary that the plaintiff’s actual body be disturbed

c.       some things are so intimately connected with ones body as to be regarded as part of the person

d.      if an object remotely attached to someone’s body can accomplish the offense this object can be regarded in the same light

7.      You can have a battery and not be aware of it  (i.e. plaintiff is in a different room at the time defendant commits the battery)

8.      Generalized knowledge is not enough for intent (Shaw v. Brown & Williamson Tobacco Corp)

a. Corp. did not know with substantial certainty that second-hand smoke would touch any particular non-smoker

C.    Assault

1.      An actor is liable for assault if:

a.      he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such contact, AND

b.      the other is thereby put in such imminent apprehension

2.      Every battery does not include an assault

3.      Assault is all about awareness

4.      Need apparent ability for assault to occur, no assault when the defendant is too far away to do harm

5.      Victim must perceive harmful or offensive contact is about to happen

a.      if attacked from behind or while asleep there is no apprehension and no assault

6.      Defendant must desire or be substantially certain that actions will cause apprehension of immediate harm or offensive contact

7.      If A knows his gun is unloaded and points it at B, which causes apprehension, it is an assault even though A neither had the intent nor the ability to harm B

8.      Words alone do not constitute assault, need words with conduct

9.      Holloway v. Wachovia- defendant attempts to repossess plaintiffs car and points a gun, cant commit an assault on a sleeping baby because there is no apprehension (can commit a battery)

10. Vietnamese Fishermen v. Knights of KKK- group of KKK members attempted to intimidate local Vietnamese fisherman, a mile away from fishermen’s docks the KKK hung a figure in effigy and fired a cannon, fishermen were fearful but court found there was no assault because there must be an apparent ability and opportunity to carry out the threat immediately, no assault where the defendant is too far away to do harm

D.    Transferred Intent

1.      Actor shoots at A, hits B

2.      Actor shoots intending to miss A, but hits A

3.      Applies whenever both tort intended and resulting harm fall within trespassory torts (battery, assault, false imprisonment, trespass to land, trespass to chattels)

4.      Transferred intent does not work for conversion and intentional infliction of emotional distress

E.    False Imprisonment

1.      Liability for actor if:

a.      acts intending to confine the other or a third person within boundaries fixed by the actor;

b.      his acts directly or indirectly result in such a confinement

c.       the other is conscious of the confinement (awareness)

2.      Restraint includes more than physical barriers or physical force (boundary does not have to be 4 walls)

a.      threat of force- when person attempts to go beyond the area in which the actor intends to confine him

b.      duress- sufficient to make the consent given ineffective to bar the action (more than loss of job)

3.       Motive irrelevant for plaintiff’s prima facie case

4.      Protects an individual’s right to move freely from place to place as she sees fit

5.      Victim must be aware of confinement

6.      Bounded area:

a.      freedom must be restricted, not mere inconvenience

b.      not bounded if reasonable means of escape exists and plaintiff knows about it

c.       victim must be confined in an area bound in all directions

d.      no false imprisonment if plaintiff is free to proceed in some direction though it may not be the desired direction

e.      bounded area can be large, even an entire city

7.      Escape:

a.      the person confined must act or imply to leave

b.      reasonable means of escape preclude liability

c.       escape is not reasonable if it requires the victim to be heroic, endure excessive embarrassment or discomfort, or if the victim is unaware of this means of escape

8.      Confinement may be accomplished by:

a.      physical barriers, or

b.      force or threat of force against victim or victim’s family, others in presence, or property

c.       defendant’s omission when defendant has a legal duty to act

1.      A invites B on boat and promises to bring A ashore when requested, B’s failure to do so is false imprisonment

d.      improper assertion of legal authority

1.      false arrest by a fake cop

9.      Shopkeeper’s Privilege- when a store owner or security guard detains a shopper suspected of shoplifting and both the suspicion and manner of detention were reasonable

a.      defendant’s desire to protect property might serve as a valid defense to false imprisonment claim

b.      merchant can lose privilege if excessive force is used or if detains shopper for an excessive amount of time

10. Intent aspect- it is only necessary for the plaintiff to prove that the defendant had the purpose to confine him or her, or that the defendant was substantially certain that his conduct would cause confinement; motive is irrelevant

11. Teichmiller v. Rogers Memorial Hospital- plaintiff “imprisoned” in an office by two others blocking door, she did not ask to leave and was only detained for 3 minutes, she only speculated force would be used on her – no false imprisonment

F.     Trespass to Land

1.      Trespass- interfering with your right to exclusive possession

2.      One is subject to liability for trespass, irrespective of harm to a protected interest of the other, if he intentionally:

a.      enters land in the possession of the other, or causes a thing or third person to do so, or

b.      remains on the land, or

c.       fails to remove from the land a thing which he is under a duty to remove

3.      Mistake and good-faith does not negate intent

4.      Intent to harm not necessary

5.      Nominal damages inferred

6.      Plaintiff must demonstrate that the defendants invasion was tangible

7.      Courts allow property owners to protect the airspace above their land and the subsurface below their lad only to an extent that the landowner can make practical use of the space (“effective possession”)

a.      the old rule was, he who has the soil owns upward unto heaven and downward to perdition; with aircraft this rule is impractical

8.      Intent remains an element of a trespass to land action.  Plaintiff must prove that a defendant had the purpose to invade her possessory right in land, or that the defendant was substantially certain her action would do so.

9.      Not necessary that a defendant be aware that he is on another’s land for plaintiff to succeed, only necessary that the defendant enters the land in a volitional fashion

10. Damages can be nominal, actual, and substantial

a.      can always get nominal damages in a trespass case (plaintiff can take someone to court for just stepping on their land, vindication of rights)

b.      are able to get actual damages

c.       contemptuous damages- let the plaintiff recover but give him the lowest coin of the realm (a penny)

11. Airborne articles: nuisance v. trespass

a.      trespass- interfering with your right to exclusive possession

b.      nuisance- interest affected is use and enjoyment of land

1. Amphitheaters v. Portland Meadows- horse race track lighting shining on an outdoor movie theatre, need actual harm, light is only a nuisance

c.       in a trespass case involving airborne particles, plaintiff must show:

1.      an invasion affecting an interest in the exclusive possession of his property

2.      an intentional doing of the act which results in the invasion

3.      reasonable foreseeability that the act done could result in an invasion of plaintiff’s possessory interest

4.      substantial damages to the property

d.      must prove all elements (Bradley v. American Smelting- deposit of airborne particles from manufacturing plant on plaintiff’s property, conflict between industrial society and landowners, had all elements and therefore trespass occurred)

e.      must show actual and substantial damages with airborne particles

f.        accumulation of particles is trespass, actual harm needed to hold defendant liable; if particles dissipate it is a nuisance

G.    Trespass to Chattels

1.      Intentional interference with the right of possession of personal property

2.      Liability for intentionally intermeddling with chattel of another if:

a.      dispossession another of chattel

b.      chattel is impaired in its condition, quality, or value, OR

c.       possessor is deprived of the use of the chattel for a substantial period of time, OR

d.      bodily harm is caused to possessor

3.      Any one of these elements will result in a trespass to chattels case

4.      Conversions little brother

5.      Plaintiff must show actual damages; nominal damages won’t work

6.      Does not require bad faith

7.      Can interfere with possessory rights in two ways:

a.      intermeddling- directly damaging chattel (scratch briefcase)

b.      dispossession- dispossess plaintiff of a lawful right to possession (take briefcase for own use)

8.      The difference between trespass to land and trespass to chattels you have to show harm and actual damages

9.      Compuserve, Inc. v. Cyber Promotions- email solicitations blocking Compuserves system and decreasing value, damage sustained by plaintiff is sufficient for trespass to chattels

H.    Conversion

1.      Used when a defendant completely dispossesses the plaintiff of an interest in personal property

a.      a defendant need not physically damage a plaintiff’s property to convert it

b.      court have allowed a plaintiff to recover the full value of converted property even if the defendant has not damaged the property

2.      Intentional exercise

3.      Dominion or control over chattel

4.      Damages of full value of chattel (forced sale)

5.      Factors to determine serious of interference:

a.      the extent and duration of the actor’s exercise of dominion or control

b.      the actor’s intent to assert a right in fact inconsistent with the other’s right of control

c.       the actor’s good faith

d.      the extent and duration of the resulting interference with the other’s right of control

e.      the harm done to the chattel

f.        the inconvenience and expense caused to the other

6.      Conversion only to personal property, not real or intangibles

7.      Examples:

a.      A destroys B’s chattel – conversion

b.      A causes minor damage to B’s chattel- trespass to chattel

c.       A attempts to steal B’s chattel and is caught within minutes- conversion because of bad faith

d.      A mistakenly takes B’s chattel and returns within minutes – no conversion

e.      A mistakenly takes B’s chattel and accidentally loses it – conversion because permanent

8.      Purchasing stolen property, even if the purchaser was acting in good faith and was not aware the seller did not have title, constitutes conversion by both the seller and innocent buyer because both acts seriously interfere with the ownership of the rightful owner

9.      Wiseman v. Schaffer- imposter called for truck to be towed, was towed and then stolen, towing co. liable for conversion

10. Where intermeddling falls short of complete or substantial deprivation of possessory rights there is trespass to chattels

I.       Intentional Infliction of Emotional Distress

1.      One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm

2.      Elements:

a.      intentional or reckless conduct

b.      extreme and outrageous

c.       must be a causal connection between the wrongful conduct and the emotional distress

d.      emotional distress must be severe

3.      Conduct must be “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.  (Outrageous! Test)

4.      Liability does not extend to “ mere insults, indignities, threats, annoyances, petty oppressions, and other trivialities”

a.      we do want people to have a little bit of a thick skin

5.      Restatement intent: purpose of causing distress or actor knew that distress was substantially certain to be produced

6.      In addition to intentional conduct, tort includes “reckless” conduct

7.      Not a precise tort, very subjective; hurdles are high for plaintiff

8.      No transferred intent

9.      Hypothetical: guy working in office is fixated on the rapture, one time he is out of the office and his co-workers play a joke on him by arranging their clothes on chairs throughout the office and hiding (as if they have gone to heaven), guy comes back and is crushed because he believes the rapture has occurred and he is still on earth, introduces doubt for the rest of his life, difference of opinion on whether or not this is intentional infliction of emotional distress

10. Figueiredo-Torres v. Nickel- marriage counselor sleeping with the wife (abuse of position or relation by authority), made demoralizing statements to husband, was enough for intentional infliction of emotional distress

11. Caldor v. Bowden- Bowden was embarrassed at work because he was told he had stolen money, was handcuffed in front of the building, not intentional infliction of emotional distress because he was only upset and embarrassed and did not have a severely disabling emotional response that would hinder his day to day activities

12. Courts require a high degree of misconduct, one that frequently relates to the relationship of the parties


II.              Defenses to Intentional Torts

A.    Common law principle: violenti non fit injuria = to one who is willing, no wrong is done

1.      Affirmative defenses- says “yes, but”

2.      legal excuse

3.      purpose is to protect autonomy

B.    Consent

1.      Can consent be implied from the circumstances?

a.      express consent

b.      implied consent- immigrant inoculation to enter U.S., she offered her arm to the doctor and later claimed she did not want the shot (O’Brien v. Cunard Steamship Co.)

c.       Peterson v. Sorlien- Daughter sued parents for false imprisonment for the first three days she was in detox.  Court held that because she consented to the rest of the duration of the detox, her consent could be implied to the first three days. (note that the parent-child relationship in this case is exceptional)

2.      Does the complained of action go beyond what the plaintiff consented to?

a.      implied consent to conduct within rules does not imply consent to conduct outside rules

b.      Hackbart- football game, excessive contact not in rules, things can go beyond what is consented to when playing a game

3.      Consent and medical procedures

a.      ordinarily express consent is required

b.      without consent, procedure is battery even if successful

c.       exceptions to express consent

1.      patient is incapable of giving consent

2.      during operation, problem is found that is life threatening and urgent

d.      if a surgeon obtains a patients consent to an operation without informing him of the nature of the operation or the extent of the harm that is necessarily involved, the patients consent is held to be an “informed consent”

4.      Invalidating consent

a.      Is consent invalidated by fraud or misrepresentation?

b.      Is consent to illegal activity valid consent?

1.      prize fighting- majority says it is an illegal act so there is no consent but still liability, minority says it is an illegal act so there is binding consent and no liability

2.      A and B engage in a boxing match which is illegal because the required license has not been obtained.  Each is guilty of a breach of peace, but neither is liable to the other – Restatement.

5.      Consent under mistake, misrepresentation, or duress

a.      A consents to sexual intercourse with B, who knows that A is ignorant of the fact that B has a venereal disease, B is subject to liability to A for battery

b.      Person did not consent to have sex with someone who is HIV positive, only consented to sex

6.      Apparent consent

a.      Taking part in a game manifests a willingness to submit to such bodily contacts or restrictions or liberty as are permitted by its rules or usages.  Participation in such a game does not manifest consent to contacts which are prohibited by rules or usages of the game if such rules or usages are designed to protect the participants and not merely to secure the better playing of the game as a test of skill.

b.      A, member of a football team, tackles B, player on opposing team.  A’s conduct is within the rules of the game, A is not liable for B.

c.       A tackles B while A is “offsides”.  The tackle is made with no greater violence than would be permissible by rules and usages of football were he “onside”.  A has not subjected B to a violence greater than, or different from that permitted by the rules although he is guilty of a breach of a rule A is not liable for B.

d.      A, while tackling B, deliberately injures him.  A is subject to liability to B whether the tackle was or was not otherwise within the rules and usages of football.

C.    Self Defense

1.      An actor is privileged to use reasonable force, not intended or likely to cause death or serious bodily harm, to defend himself against unprivileged harmful or offensive contact or other bodily harm which he reasonably believes that another is about to inflict intentionally upon him.

2.      Privilege to use reasonable force to defend against immediate harm

3.      Must have a reasonable belief that force is necessary

4.      No right to retaliate when no longer threatened

5.      Amount of force generally is limited to that which is necessary or reasonable appears to be necessary

6.      No duty to retreat where use of force will not result in serious injury

a.      Restatement puts a duty to retreat before using force unless in ones home, majority of courts usually say there is no duty to retreat

b.      If you have an opportunity to flee, the restatement says flee; most jurisdictions say shoot the guy, you don’t have to flee

c.       You cannot shoot someone in the back running away, this is no longer self defense because the threat is over, must be an immediate threat

7.      Roberts v. American Employers Insurance Company- officer shot plaintiff (convicted crook with record )while making an unlawful arrest, officer reasonably believed he was in danger (knew of plaintiff’s past) and the force used was not excessive

a.    factors to look at: size, age, strength, reputation, aggressor, degree of physical harm reasonably feared, presence or absence of weapons

b.    need a reasonable belief, use reasonable force

8.      Defense of Others

a.    similar to privilege of self-defense

b.    reasonable mistake?

1.      limited privilege: intervenor steps into shoes of person he defends

2.      privileged to use reasonable force even if mistaken, if mistake is reasonable

c.     a person may defend a third person in the same manner, under the same conditions, as the person being defended would be able to do in self defense

d.    you can do anything for someone else you would reasonably do for yourself

D.    Defense of Property

1.      Privilege to defend property is limited to amount of force that is reasonably necessary

2.      No privilege to use force that is intended or likely to cause death or serious harm unless intrusion threatens death or serious bodily harm to occupiers of premises

3.      Must be “dwelling place”

4.      The use of force must be proportional to the threatened interest

5.      Property always has less value than life

6.      Use of a mechanical device

a.      the actor is privileged to employ deadly force by means of a mechanical device to the same extent to which he is otherwise privileged to use such force; a possessor of land cannot do indirectly and by a mechanical device, that which, were he present, he could not do immediately and in person

b.      Prosser: spring guns and other mankilling devices are not justifiable against a mere trespasser or petty thief; they are privileged only against those upon whom the landowner, if he were present in person, would be able to inflict injury of the same kind

c.       Vacant farmhouse will always lose

d.      Katko v. Briney-held liable for use of spring gun in boarded up house, shot a young boy, what if it had been a fireman or child?

7.      Owner dispossessed of property may use reasonable force to recover property immediately after dispossession

a.      fresh pursuit v. undue lapse of time

b.      force is limited to what is reasonable under the circumstances

8.      Merchant’s Privilege

a.      Restatement recognized privilege for merchant to detain for reasonable investigation a person whom merchant reasonably believes to have stolen merchandise

b.      Scope differs in various jurisdictions: how much force; what is a reasonable time for detention; what’s reasonable grounds to detain; does privilege extend beyond premises? (can hold for a good hour without a false imprisonment claim)

c.       Reasonable mistakes are allowed

d.      Fact-intensive

E.    Private Necessity

1.      Incomplete defense which provides privilege to interfere with another’s property rights to avoid greater harm (where the act is to benefit any person or protect any property from destruction or serious injury the defense is qualified), but

2.      Defendant acting out of private necessity must compensate plaintiff for damage done, but not guilty of trespass

3.      Qualified privilege because it still requires the defendant to compensate the property owner for any damage caused (subject to liability) but defendant is not guilty of trespass

4.      Restatement says you can trespass on property but not on another person.  You cannot swerve into a pedestrian to save yourself instead of swerving into oncoming traffic.  Cannot trespass on another person to save yourself.

5.      Ploof v. Putnam- servant unmoors plaintiff’s ship from his dock during a storm, plaintiff had qualified privilege to use the dock, found liable when the boat is destroyed and plaintiff is injured

6.      Vincent v. Lake Erie Transportation Co.- owner of dock suing owner of boat tied up to dock to unload and a storm came, they stayed tied to the dock during the storm causing damage to the dock, no trespass because the storm was an act of God, but defendants are liable for damage to dock

F.     Public Necessity

1.      One is privileged to commit an act which would otherwise be a trespass to a chattel or a conversion if the act is or is reasonably believed to be necessary for the purpose of avoiding a public disaster

2.      Provides privilege to destroy private property to protect community

3.      Unlike private necessity, this is a complete defense, absolute privilege- a defendant who successfully raises the privilege need not compensate the plaintiff for his loss

4.      In the absence of legislation providing compensation, those whose property is destroyed by an act of public necessity have no right to compensation

5.      United States v. Caltex- if the government uses your property they have to compensate you for it, but if they destroy if under public necessity you get nothing; Caltex destroyed their facilities for the government during the war with Japan, afterwards they were not compensated for anything

6.      Famous case- San Francisco fire- ordered a house burned to stop the spread of fire and guard the city, plaintiff could not recover


III.          Negligence – Standards of Care

A.    Elements of a negligence claim:

1.      a duty of due care- duty exists if the defendant’s conduct foreseeably creates unreasonable risks of harm

2.      breach of the duty- plaintiff must prove that the defendant failed to use reasonable care to avoid causing harm

3.      causation- plaintiff must first prove cause in fact (the negligent conduct brought about the plaintiff’s injury) and then prove proximate cause (the causal connection between the negligent conduct of the defendant and the plaintiff’s injury was close enough that the defendant should be held liable)

4.      damages- plaintiff must prove that actual injury resulted from the defendant’s conduct, nominal damages are not awarded for negligent conduct that does not cause injury

B.    Negligence seems to be blameworthy behavior that requires less in the way of intent, but is deemed blameworthy because a jury finds that the defendant’s behavior falls below the reasonable person standard of care.

C.    Defining the standard of care

1.      the standard of care measures the duty owed

2.      standard of care is the level of expected conduct that is required under the circumstances

3.      the most common standard is that of the reasonably prudent person, an objective standard

4.      did the defendant deviate from the standard?

D.    Reasonably prudent person

1.      negligence is the failure to use ordinary care, that is, failing to do that which a person of ordinary prudence would have done under the same or similar circumstances of doing that which a person of ordinary prudence would not have done under the same or similar circumstances

2.      because of objective standard, defendant can’t defend actions as the best that could be expected from a person with poor judgment of limited intelligence

3.      a defendant is expected to know things that a reasonably prudent person would know

4.      Vaughn v. Menlove- defendant made a chimney through a rick which bust into flames and destroyed the plaintiff’s cottages, defendant wanted to be judged to the limit of his intelligence (subjective standard), court disagreed and went with the prudent man approach, defendant held liable

E.    Applying the reasonable person standard

1.      The general duty is to act as a reasonable person.  The jury is asked to make an objective, rather than subjective determination.  The person who acts is not required to do his or her own best, but is required to act as a hypothetical reasonable person would act in similar circumstances.

2.      Three parts to the jury’s finding of negligenct:

a.      The first question is whether a duty exists at all

b.      The second question presumes the existence of a duty, and focuses on how the judge describes the duty to the jury

c.       Once the jury is told what the duty is, the just must apply the law to the facts to determine whether the defendant has breached that duty

F.     Child’s standard of care

1.      a child typically is judged by a child’s standard of care, which examines what “an ordinary prudent child of the same age, experience, intelligence, and capacity” would have done

2.      a child, however, is judged by an adult standard when engaged in adult activities for which adult qualifications are required or are inherently dangerous

3.      Daniel v. Evans- this case presents a child doing an adult activity, driving is an adult activity, therefore cant be held to a minor standard of care

G.    Elderly standard of care

1.      seniors are held to an ordinary adult standard of care, unless they are the plaintiff, and then the standard is affected more by physical disability, than just simply by age

2.      court may measure an elderly mans conduct against the standard of conduct of the ordinary person suffering from the same or similar infirmities of old age

3.      old age can be considered when it is the cause of physical infirmity

4.      mental infirmity is not considered

H.    Reasonably prudent woman

1.      some jurisdictions have adopted a “reasonable woman” standard for sexual harassment cases

2.      the standard remains objective, but becomes gender specific (conduct that a reasonable woman would consider sufficiently severe or pervasive)

I.       Physical disabilities

1.      the standard of care will reflect the defendant’s physical qualities

2.      a defendant with a physical disability is held to the standard of a reasonably prudent person with that disability

a.      a blind person’s conduct will be judged against a reasonable blind person under the same or similar circumstances

J.      Drunkenness, blackouts, seizures, and sudden mental illness

1.      just having a drink does not make a driver negligent, the drinking needs to have affected the driver’s behavior

2.      blackouts and seizures present questions concerning the level of notice to the sufferer of their condition before they get behind the wheel of a car

3.      sudden mental illness also presents a question of fact of whether the reasonable person with this mental illness would have continued to drive

K.    Mental deficiency and the standard of care

1.      Restatement (majority) position: mentally deficient persons are liable for torts, and are judged by the standard of a reasonable prudent person of ordinary intelligence and rationality

2.      Some jurisdictions consider whether mental disability suddenly incapacitated defendant from conforming conduct to that of a reasonable person

3.      Policy basis of holding a permanently insane person liable for his tort is:

a.      where one of the two innocent persons must suffer a loss it should be borne by the one who occasioned it

b.      to induce those interested in the estate of the insane person to restrain and control him

c.       the fear an insanity defense would lead to false claims of insanity and to avoid liability

4.      Bruenig v. American Family Insurance Co.- woman involved in an accident due to an insane delusion (saw a light and followed it, thought she could fly like Batman), court said there must be absence of notice of forewarning, did she have warning or knowledge that hallucinations would occur that would affect her driving?, if so then she is negligent

L.     Wealth

1.      wealth should not play a role in determining whether the actor is negligent

2.      if plaintiff alleges a claim for punitive damages, the wealth of defendant is relevant to the juries determination of the amount necessary to punish and deter

M.   Negligence- Custom

1.      Relationship between what is reasonable and what is customary

2.      Nothing guarantees that custom will set the standard at the right height

3.      Customs are not controlling, just relevant

4.      Evidence of custom and industry practice may be used as evidence of what a reasonably prudent person would do (sword and shield)

a.      sword- plaintiff can argue that the defendant fell short of custom

b.      shield- defendant uses custom as a shied to show ordinary care

5.      Custom is relevant as a “composite judgment” about the risks of situation and required precautions

6.      Evidence of custom and industry practice is relevant, but is not conclusive on establishing negligence

7.      No group of individuals and no industry or trade can be permitted by adopting careless and slipshod methods to save time, effort or money, to set its own uncontrolled standard at the expense of the rest of the community

a.      Court will then determine the standard

b.      T.J. Hooper- custom was not to have radios on tugs, the whole industry unduly lagged or fell behind, court had to impose a standard of care on the industry saying the tugs should have had the radios

8.      Custom can lag behind what a reasonably prudent person would do

9.      Medical standard of care

a.      plaintiff must prove physician’s conduct deviated from recognized (customary) medical practice

1.      Helling v. Cary- patient with glaucoma not given test because medical standard of care was not to test until the age of 40, defendants found negligent because reasonable prudence required the timely giving of the test to the plaintiff, court made a greater standard of care than the one imposed by the profession

b.      What is the proper standard of medical care?

1.      strict locality (if you are in New Bedford, New Bedford sets the standard)

2.      same or similar communities (majority view)

3.      national- accreditation involved

c.       informed consent

1.      do not have to show negligence

2.      majority test: what a reasonable physician (customarily) would disclose

3.      patient-centered standard, which includes both objective (Canterbury) and subjective tests, requires disclosure of material risks

4.      exceptions to disclosure are allowed

5.      plaintiff must show causation- must be a relationship between the damage caused and the lack of informed consent, exists when disclosure of risks incidental to treatment would have resulted in a decision against it

6.      patient centered approach: subjective- what would that particular patient want to know; objective- reasonable person

7.      doctor centered approach: what would a reasonable doctor disclose? Custom?

8.      exceptions: patient is unconscious, patient would not undergo treatment because they would be frightened

9.      Canterbury v. Spence- the causality issue (disclosure of risks incidental to treatment would have resulted in a decision against it) should be resolved on an objective basis in terms of what a prudent person in the patient’s position would have decided if suitable informed of all perils bearing significance

d.      Restatement- The standard is not that of a particular locality.  If there are only three physicians in a small town, and all three are highly competent, they cannot be permitted to set a standard of utter inferiority for a fourth who comes to town.  The standard is rather that of persons engaged in a similar practice in similar localities, considering geographical location, size, and the character of the community in general.

1.      Brune v. Belinkoff- anesthesiologist gave excessive dose to woman giving birth who then fell out of bed and injured herself, wanted to be held to the standard of care for specialist in New Bedford, court said one holding himself out as a specialist should be held to the standard of care and skill of the average member of the profession, no longer using strict locality

N.    Calculus of risk

1.      Where an act is one which a reasonable man would recognize as involving a risk of harm to another, the risk is unreasonable and the act is negligent if the risk is of such magnitude as to outweigh what the law regards as the utility of the act or of the particular manner in which it is done (probability of risk balanced against the utility- risk outweighs utility

a.      Burden of proof. Conduct is not negligent unless the magnitude of the risk involved so outweighs its utility as to make the risk unreasonable.  (accept some risk, just not unreasonable risk)

b.      Rinaldo v. McGovern- golfer misses the fairway and sends the ball soaring off the course onto an adjacent roadway and through plaintiffs windshield, court held that the mere fact that a golf ball did not travel in the intended direction does not establish a viable negligence claim, person injured must show the golfer failed to exercise proof by showing that the golfer aimed so inaccurately as to unreasonably increase the risk of harm, in this case the risk does not outweigh the utility

c.       Baseball games- no liability for foul balls, all a ballpark needs to do is provide some screened seating behind home plate that gives people an option for screened seating, if a ball leaves the ballpark and hits someone outside the ballpark there is liability

2.      In determining utility of conduct, certain factors are important (can you get the same utility but make it less dangerous?):

a.      the social value which the law attaches to the interest which is to be advanced or protected by the conduct

b.      the extent of the chance that this interest will be advanced by the particular course of conduct

c.       the extent of the chance that such interest can be adequately advanced or protected by another and less dangerous course of conduct

3.      In determining the magnitude of risk, these factors are important:

a.      the social value which the law attaches to the interests which are imperiled

b.      the extent of the chance that the actor’s conduct will cause an invasion of any interest of the other or of one of a class of which the other is a member

c.       the extent of the harm likely to be caused to the interests imperiled

d.      the number of persons whose interest are likely to be invaded if the risk takes effect in harm

4.      Custom will dictate care unless the costs to the actor are less than the risk of injury- the probability of injury multiplied by the extent of the expected injury- the actor’s conduct creates

5.      Hand formula: B < L x P

a.      B is burden

b.      L is injury

c.       P is probability

d.      United States v. Carroll Towing Co.- barge breaks loose because there was no attendant there to help guide it, damages other ship, apply the Hand formula- burden is the bargee at working hours ($8), probability  is the odds of something happening even if the bargee is there as opposed to when he is not there, loss is the value of the barge

O.    Negligence Per Se

1.      A tort concept whereby a legislatively imposed standard of conduct is adopted by the civil courts as defining the conduct of a reasonably prudent person.  The jury is not asked to judge whether the defendant acted as a reasonably prudent person would have acted under the same or similar circumstances; the statute itself states what a reasonably prudent person would have done.  If excuse is not raised, the only inquiry for the jury is whether the defendant violated the statute, and if so, whether this was a proximate cause of the accident.

2.      Statutory violations

a.      courts may use statutes, regulations, and ordinances to establish standard of care

b.      statute is used as shortcut to reasonable person standard; the specific duty outlined in the statute replaces the general common-law duty

c.       there is a different approach to licensing statutes and to minors and statutory violations (Brown v. Shyne)

d.      violation of statute is negligence per se, judges determines whether statute applies, jury never gets the question of negligence, jury only answers whether or not there was a violation and whether or not there was causation

e.      Chaffin v. Brame- motorist driving at night hits vehicle with no lights on, statute says it is negligent to drive an automobile along a public highway in the dark at such a speed that it cannot be stopped within the distance that objects can be seen in front of it,  statute not designed to require infallibility of the nocturnal motorist or preclude him from recovery, tension between looking at the facts of the case and the statute, statute does not apply to these circumstances, court goes with reasonably prudent person

f.        Martin v. Herzog- collision between buggy and automobile, buggy had no lights on it in violation of a statute, this is negligence in itself – admitted violation of a statute intended for the protection of travelers on the highway, there was negligence but it needs to be determined if there was a causal connection between the negligence and the injury, defendant who travels without lights is not to pay damages for his fault unless the absence of lights is the cause of the disaster (some evidence?)

g.      Brown v. Shyne- plaintiff employed defendant for chiropractic treatment, defendant had no license to practice but held himself out as being able to diagnose under the Public Health Law, plaintiff became paralyzed, in order to show that plaintiff has been injured by defendant’s breach of statutory duty, proof must be given that defendant did not exercise by qualified practitioners within the State and that such lack of skill and care caused the injury, failure to obtain a license by law gives rise to no remedy if it has caused no injury  (most jurisdictions hold that a licenses is an indicator of skill but to prove negligence the plaintiff must show lack of skill caused the injury or lack of license will not be enough)

3.      Threshold issues (test for violation of statute)

a.      Is plaintiff a member of the class of persons intended to be protected by the statute?

b.      Is the harm the kind that the statute was intended to protect against?

c.       Gorris v. Scott- sheep on ship cast overboard, object of the statute was to keep them in a pen to prevent disease, not to keep them from going overboard, statute doesn’t apply

4.      Appropriateness of adopting criminal standard

a.      courts do not have to accept criminal standard as a standard for civil liability; criminal statute must provide appropriate basis for tort liability

b.      factors to consider include:

1.      pre-existing common law duty?

2.      Does statute clearly define prohibited or required conduct?

3.      Direct or indirect relationship with harm?

c.       Osborne v. McMasters- drug-store clerk sold to plaintiff deadly poison without labeling it “Poison” as required by Penal Code statute (criminal), court borrows criminal statute for civil case, statute fixes the standard, plaintiff has to show he is a member of the protected class and has an injury according to the statute, drug-store clerk is liable

d.      Veseley v. Sager- vendor of alcoholic beverages provides drinks to a customer who as a result of intoxication injures a third person, Business and Professions Code provides that anyone who sells or furnishes an alcoholic beverage to an intoxicated person is guilty of a misdemeanor, statute was adopted to protect members of the general public from injuries to person from excessive use of liquor, purpose of the statute was a case like this, vendor is liable

5.      The court may adopt as the standard of conduct of a reasonable man the requirements of a statute whose purpose is found to be:

a.      to protect a class of persons which includes the one whose interest is invaded, and

b.      to protect the particular interest which is invaded, and

c.       to protect that interest against the kind of harm which has resulted, and

d.      to protect that interest against the particular hazard from which the harm results

6.      Effect of statutory violation

a.      negligence per se (majority)- statutory violation conclusive on whether defendant violated applicable standard of care

b.      rebuttable presumption- presumption may be rebutted by party violating statute

c.       some evidence- violation of statute provides some evidence of negligence

d.      the unexcused violation of a legislative enactment which is adopted by the court as defining the standard of conduct of a reasonable man is negligence in itself

e.      the unexcused violation of an enactment or regulation which is not so adopted may be relevant evidence bearing on the issue of negligent conduct

7.      Compliance with a legislative enactment or an administrative regulation does not prevent a finding of negligence where a reasonable man would take additional precautions. (use it as a sword but not necessarily as a shield)

8.      Excuse under Restatement

a.      excused violation is not negligence

b.      Restatement’s non-exclusive list includes:

1.      violation reasonable because of incapacity (heart attack)

2.      actor neither knew nor should have known of occasion to comply (rear lights out in car)

3.      unable after reasonable diligence to comply

4.      emergency

5.      compliance would involve a greater risk of harm (walking on wrong side of the road when a lot of traffic is on the other side)

6.      may also be able to argue custom as an excuse (everyone was speeding on the highway, if you slow down you will get hit)

7.      A statute provides that all drivers of vehicles shall keep to the right side of the highway.  While A is driving on the right side of the highway with reasonable care, a child darts out from the sidewalk into his path.  A turns to the left side of the highway to avoid hitting the child.  His car collides with that of B, who is injured.  A is not liable to B on the bases of a violation of the statute.  Emergency was not A’s fault.

                 9. Proof of Negligence

a.      interplay between judge and jury

1.      judge- appropriate to use the statute

2.      jury- violation

b.      Baltimore & Ohio R.R. v. Goodman- man gets run down at railroad grade crossing, rule is to stop and get out of your car if you can not be sure otherwise that a train is dangerously near, if a person does not get out of their car their behavior is unreasonable as a matter of law and negligent (controversial decision)

c.       Pokora v. Wabash Ry.- man driving across a railroad crossing is struck and injured, under Goodman he should be found negligent but this does not follow the “facts of life”, you cant require people to get out of their car and look at every railroad crossing, not reasonable, the court sets a new rule to use appropriate caution

d.      Wilkerson v. McCarthy- plaintiff injured when he fell in to a pit while at work, trial judge granted directed verdict, SC says there is enough evidence for workers comp. damages and this case should have been given to the jury to decide on negligence

9.      Res Ipsa Loquitur- the thing speaks for itself

a.      Rule of evidence that permits jury to infer negligence based on the accident itself where direct evidence is lacking

b.      Procedural impact of res ipsa: plaintiff eludes dispositive motions by defendant, gets case to jury

c.       Jury can then draw an inference of negligence based on certain circumstances

d.      Burden shifting- plaintiffs burden of proof gets shifted to defendant who has to prove by a preponderance of the evidence that defendant was not negligent

10. Res Ipsa Requirements

a.      Instrumentality causing injury must be under exclusive control of defendant

b.      Accident would not ordinarily occur without negligence

c.       Must not have been due to any voluntary action or contribution on part of the plaintiff

11. When you lack direct evidence you apply res ipsa, but you still need some evidence on exclusive control.  You have to show this act would not have happened without negligence.  Must have proof.

12. Res Ipsa: Type of Accident

a.      Event must be one that does not ordinarily occur unless someone has been negligent

b.      Examples of events that occur without negligence:

1.      falling down stairs

2.      tire blowing out

c.       Examples of events that don’t ordinarily occur without negligence:

1.      elevator falling

2.      boiler exploding

3.      derailing train

d.      Byrne v. Boadle- Plaintiff hit by a barrel of flour.  Defendant is a dealer in flour.  Plaintiff doesn’t know where barrel came from.  Defendant says plaintiff has to show actual affirmative negligence.  The negligence is that the barrel fell.  The defendant had exclusive control of the barrel.  Defendant must prove any facts inconsistent with negligence.

e.      Larson v. St. Francis Hotel- armchair falls out window of hotel, court says it would be impossible for hotel to have exclusive (complete) control over chairs, there is a possibility of several causes and therefore a problem in applying res ipsa

13. Procedural Impact at Trial

a.      Inference of negligence permitted by jury, not compelled, or

b.      Presumption of negligence: just must find negligence if defendant does not provide enough evidence to rebut presumption, or

c.       Shifts burden of proof: defendant must prove by preponderance of evidence that injury was not caused by defendant’s negligence

14. Res Ipsa and Multiple Defendants

a.      Typically res ipsa does not apply against multiple defendants because you can not have exclusive control

b.      Ybarra’s narrow exception: where plaintiff in course of medical treatment receives unusual injuries while unconscious, all defendants who had control over body or instrumentalities that may have caused the injuries may be required to explain their conduct

15. Negligence Per Se v. Res Ipsa

a.      Negligence per se

1.      statutory standard defines what reasonably prudent person would do

2.      procedural affect varies

3.      judge determines whether statute applies

4.      jury decides whether statute violated, causation, damages

b.      Res Ipsa

1.      rule of evidence prevents directed verdict despite plaintiff having no direct evidence of negligent conduct

2.      procedural effect varies

3.      judge determines if res ipsa applies

4.      jury decides negligence, causation, and damages


IV.           Cause in Fact

A.    Causation is the concept that focuses on the necessary link between the defendant’s conduct and the plaintiff’s injury.

B.    Elements of Causation

1.      Cause in fact

a.      Sine qua non or “but for” cause; substantial factor

b.      Examines the cause and effect relationship between tortious conduct and injury

c.       If harm would have occurred anyway, defendant’s negligence is not the cause in fact and it is over for the plaintiff.  Plaintiff must show that defendant’s negligence was not only capable of causing harm, but that the negligence actually caused the harm.

2.      Proximate cause

a.      determining whether liability will be cut off even though cause in fact has been established

b.      policy decision based on justice, fairness, or expediency

c.       if you do not have cause in fact you do not care about proximate cause, have to have “but for” for proximate cause

d.      cause in fact is too remote

e.      must have causation to win

C.    Post Hoc Ergo Propter Hoc

1.      After this, therefore because of this: a logical fallacy that because one event follows another chronologically it was caused by the first event

2.      Just because event B follows event A does not mean that A caused B

3.      A difference between possibility and probability

a.      going to have to show probability more likely than  not

D.    But-for Causation

1.      Lyons v. Midnight Sun Transportation Services- Plaintiff was killed when her van was struck by a truck driven by defendant.  Plaintiff pulled out of parking lot in front of defendant and the vehicles collided.  Jury found defendant was negligent but he was not held liable because his negligence was not a legal cause of the accident.  The cause of the accident was plaintiff pulling out of the parking lot. (must prove causation)

2.      Slip and fall case- even if the plaintiff can prove that the defendant negligently created a dangerous situation, the plaintiff must still prove that the dangerous condition caused the fall

a.      Dapp v. Larson- plaintiff fell down front steps of defendant’s residence, claimed plastic mat in front of house created a dangerous situation but could not prove this was the cause of the accident, summary judgment granted for defendant

b.      Williams v. Emro Marketing Company- plaintiff slipped and fell on ice on pavement at store and failed to present evidence that ice was the cause in fact of his fall, witness testified he helped plaintiff up from ice, no summary judgment

c.       To recover in a slip and fall case, the plaintiff must first show that the defendant was negligent.  This requires proof that a dangerous condition existed on the premises, that the defendant knew or should have known of the condition, and that the defendant failed to use reasonable care to correct it.  The plaintiff must then show that the dangerous condition created by the defendant’s negligence caused the fall.

E.    Concurrent Cause

1.      When separate acts of negligence combine to cause a single injury, each tortfeasor is responsible for the entire result

2.      Concurrent cause also includes conduct that combines to cause injury where either alone would have been sufficient

3.      Courts use “substantial factor” test when two or more causes combine to bring about a result

4.      Possibility of apportionment (Dillon)

a.      may be able to divide between two tortfeasors if you can figure it out

F.     Loss of chance/ Loss of opportunity

1.      The antithesis of proximate cause is the doctrine of lost opportunity

2.      Some jurisdictions allow for recovery for loss of chance or reduced chance of survival even though plaintiff can’t prove that it is more likely than not that defendant’s negligent conduct caused injury

3.      Some jurisdictions do not relax causation or recognize a cause of action (Texas)

a.      Weymers v. Khera- plaintiff was misdiagnosed repeatedly, she retained 10-15% kidney function, if it had been spotted earlier function would have been 30-40%, state does not recognize lost opportunity if death is not a result

4.      What do you do with damages?  Do you apportion them? Different jurisdictions take different approaches.

5.      Where doctrine is recognized, jurisdictions have taken three different approaches:

a.      pure lost chance: full recovery of damages even though more likely than not plaintiff would have suffered injury even if the defendant had not been negligent (100%)

b.      proportional approach: limits recovery to percentage of chance lost multiplied by total damages (20%)

c.       substantial possibility approach: allows full recovery where defendant’s negligence was less than loss of 50%, but was a “substantial possibility”

G.    Science and Proof of Causation

1.      Causation- more likely than not to have caused injury- can be proved by scientific evidence (expert testimony)

2.      Statistical evidence must show more than a doubling of relative risk

a.      need a risk factor of above 2

b.      “more likely than not” test of causation

3.      Daubert test:

a.      whether expert testimony is “good science” (peer review/publication; independent research)

b.      whether proffered testimony is relevant (fit between testimony and issue in case)

4.      Daubert v. Merrell Dow Pharmaceuticals- two minors brought suit against Merrell Dow claiming they suffered birth defects because their mothers had taken a drug prescribed for morning sickness to pregnant women; issue is whether or not certain expert scientific testimony is admissible to prove this drug caused plaintiff’s birth defects; good science is peer review and publication and independent research, none of the experts constitute good science in this case (experts needed to say that drug caused plaintiff’s injuries or drug more than doubled the likelihood of birth defects to prove causation- could  not say either of these- testimony inadmissible because there is no fit)


V.               Proximate Cause

A.    Proximate cause, or legal cause, addresses whether liability is to be imposed (cause in fact has already been established)

B.    Draws lines where liability stops

C.    Approaches to proximate cause

1.      Direct causation (Polemis):

a.      negligent conduct was proximate cause of the injury even though defendant could not have foreseen it

b.      if act was negligent and some damage could be anticipated, does not matter that actual damage caused was unexpected

c.       unforeseeability of damage immaterial as long as damage is “directly traceable” to the negligent act and not because of independent causes

d.      natural sequence of events (hindsight)

e.      Polemis- Owners of steamship claim to recover damages for the total loss of steamship by fire, beam fell into the hold of the ship and set a spark which caused an explosion

1.      the owners claim charterers are responsible for destruction; owners argue dropping beam into hold was a negligent act

2.      charterers argue that the danger was not foreseeable

3.      two tests: direct cause (liable if there is negligence) and foreseeability (consequences that could be expected)

4.      defendant was negligent

5.      Warrington: if there is negligence look to see if there is a direct consequence, because the act could cause some damage the defendant is liable for everything else that is a direct consequence

6.      Scrutton: determine whether there is negligence that would cause damage, the damage does not have to be the same kind you could foresee but has to be directly traceable to negligent act and not sue to an intervening cause

7.      lack of foreseeability is immaterial, the act itself was negligent and something bad could have happened, on the hook for anything

2.      Foreseeable risks (Wagon Mound): proximate cause is to be tested by the reasonable foreseeability of that type of risk

a.      Risk rule- go back to the duty and breach and try to determine the type of unreasonable risk of harm that the defendant has imposed on the plaintiff, in order to determine whether the harm the plaintiff has suffered is “within the risk”

b.      Restatement on risk rule: Defendant gives a large loaded handgun to a small child.  The child handles the gun and drops it.  The gun crushes the toe of D, and the impact causes it to go off.  The bullet strikes and wounds C.  Defendant liable for the wounding of C but not the crushed toe of D.- foreseeable risk is shooting someone, not dropping gun on a toe

c.       Wagon Mound- defendant’s ship leaks oil onto water, plaintiff is welding, spark catches cotton in water on fire, fire damages wharf and ship, plaintiff relies on Polemis case (some damage from spillage of oil on the use of the slips would be negligent so defendant is on the hook for some damage and can be responsible for all damage), court reject Polemis, foreseeable risk, what can be anticipated, defendant could not have known that spilt oil was capable of being set on fire on the water (capable of pollution)

d.      Limitation on liability- liable only for things a reasonable person could have foreseen of the consequent damages (foresight test)

e.      Problem with Polemis: can not assign blame based on the past, need to use reasonable person foresight

D.    Palsgraf

E.    Danger invites rescue 

1.      Rescue doctrine permits injured rescuer to sue the party who caused the danger that required rescue

2.      Considered foreseeable that a rescuer will come to aid of person affected by tortfeasor’s actions

3.      Disallows claim that rescuer assumed risk

F.     “Eggshell Skull” Plaintiffs

1.      Applies to personal injury cases

2.      Defendant takes plaintiff as he finds him (tough luck)

3.      Defendant is liable for aggravating preexisting illnesses and conditions despite lack of foreseeability (liability is limited to aggravation only)         

4.      Most courts have included psychological injuries if there has been some physical impact

5.      Companion principle- factfinder can adjust for possibility that preexisting condition would have resulted in harm to the plaintiff even without tort

a.      Stoleson- dynamite heart, worked at plant where there was nitroglycerin which caused her heart problems, Stoleson says hypochondria induced by her heart disease, eggshell plaintiff must prove causation, Stoleson could not prove causal connection between defendant’s negligence and her neurotic symptoms, need causation between the negligence and the illness, Stoleson was a hypochondriac, would have developed these symptoms anyway

b.      Litigation stress- policy concern, defendant not responsible because this would deny the defendant the right to defend the claim

G.    Intervening Cause

1.      Fact pattern: first the defendant will act negligently, the negligence creates a dangerous situation or places the plaintiff in a position of vulnerability, some other actor or force then comes into play to trigger the potential danger created by the defendant and to thereby cause injury to the plaintiff, this other actor or force is the intervening cause, if the intervening force is so extraordinary or so independent of the original negligent conduct it is a superseding cause and the defendant should be excused from liability

2.      When an intervening cause cuts off liability it’s a superseding cause

3.      An intervening act of third person will interrupt causal link if it’s extraordinary, or independent, or far removed from the defendant’s conduct (superseding)

4.      An intervening act will not interrupt the causal chain if the intervening act is the normal or foreseeable consequence of defendant’s negligence

5.      If it is an intervening cause the defendant is liable, if it is a superseding cause the defendant is not liable

6.      If a defendant’s negligent act causes a situation and people begin to run the defendant’s liable for injuries that result from the running because running is a foreseeable risk, “danger invites running”

7.      Herman v. Markham Air Rifle- customer in store shot plaintiff’s eye out with loaded air rifle, defendant (Markham) negligent in shipping loaded rifle, negligent act of pulling the trigger does not break the causation

8.      Derdiarian v. Felix Contracting Corp.- driver has epileptic seizure and careens his vehicle into a work site seriously injuring plaintiff, Felix creates an unsafe condition (safety measures inadequate) and therefore is negligent, the risk is someone driving into the work site, the precise manner (seizure) this happens does not matter

9.      Marshall v. Nugent- truck driver causes car to swerve off road, truck driver tells plaintiff to go up the road to warn traffic, plaintiff is hit by another car, truck driver is liable for the plaintiff being hit by the other car because the risks to the plaintiff were not over at the moment the primary risk of collision between the truck and the car was surmounted

10. McLaughlin v. Mine Safety Appliances- child burned by heat blocks, plaintiff sues manufacturer of heat blocks for inadequate warning, the fireman at the scene (who had training on the heat blocks) breaks the chain of causation (superseding cause not foreseeable by the defendant), defendant (manufacturer) not liable

H.    Intervening intentional acts

1.      an intervening cause that is negligent is not a superseding cause if foreseeable

2.      when an intervening act is intentionally tortious or criminal, it is more likely to be considered superseding

3.      negligent is not superseding, tortious or criminal is superseding

4.      Watson v. Kentucky & Indiana Bridge & R.Co.- gasoline leaked out bottom of railroad car, man (Duerr) threw match on gasoline which was ignited, injured plaintiff, facts should have gone to jury: if Duerr acted maliciously and wantonly the railroad is not liable, if Duerr carelessly dropped his match the railroad is liable; could not have been foreseen one would maliciously do such an act for an evil purpose, but could have been foreseeable if the match was dropped carelessly

I.       Intervening criminal acts

1.      criminal conduct no longer automatically interrupts causal link

2.      intervening criminal act is not superseding:

a.      defendant is under duty to protect plaintiff from criminal conduct

b.      defendant’s act destroys or defeats plaintiff’s protection from crime

c.       defendant places someone likely to commit crime in plaintiff’s path (e.g., security guard with criminal record)

3.      Brauer v. New York Central & H.R.R.Co.- collision between rail car and wagon, goods from wagon stolen by thieves after the accident (foreseeable), railroad company owes driver of the wagon for the stolen goods because the negligence which caused the collision resulted in a condition of the wagon driver in which he was not able to protect his property which resulted in its disappearance, criminal conduct of thieves was a superseding cause

4.      Watson and Brauer have different views on criminal acts.  Brauer says a criminal act can be foreseeable, and Watson says criminal act not foreseeable therefore it is superseding.

J.      Public policy

1.      Courts will draw lines based on fairness and public policy

2.      Some lines will narrow liability (New York’s fire rule) to prevent ruinous liability and make liability manageable

a.      lady leaves lantern on in barn, cow knocks the lantern over, fire burns down the whole city, lady is negligent but not liable for the damage of the whole city (under Polemis she would have been liable for the damage of the whole city)

3.      Other lines will broaden liability to ensure that plaintiff is compensated for loss

K.    Judge and Jury

1.      Duty is a law issue, and can be determined as a matter of law (dispositive motions, many cases arise from directed verdicts)

2.      Proximate cause ordinarily is a fact question and goes to a jury

3.      Proximate cause may be determined as a matter of law when defendant’s actions are too remote or liability cut off for policy reasons

L.     Summing Up

1.      Some aspects of causation are fairly clear and predictable (e.g., eggshell skull; rescue doctrine)

2.      Proximate cause has two general approaches: direct cause and the risk rule

3.      Be able to analyze fact patterns and present different approaches on causation, read Polemis and Wagon Mound very carefully


VI.           Multiple Tortfeasors

A.    Joint and Several Liability

1.      Each of several tortfeasors is liable jointly with the others for the amount of the judgment against them, and

2.      Each potentially is also individually liable for the full amount

3.      Plaintiff gets one stop shopping- they pick a defendant and that defendant is liable for the full amount

4.      Carolina, C. & O. Ry. v. Hill- defendants constructed railroad along a river opposite plaintiffs land which caused damage to his land, at the same time another company was removing lumber which defendants say also caused damage; the injuries could not be separated so defendant is on the hook for all damages, joint and several liability, if all defendants are found negligent, one of them can be held responsible for the entire judgment

5.      Examples:

a.      tortfeasors acting in concert

b.      defendants fail to perform a common duty owed to plaintiff

c.       defendants act independently to cause indivisible harm (cant tell who injured who)

d.      special relationship between the parties

B.    Concert of Action

1.      Defendant is liable for acting in concert with another by inducing or encouraging the tort (express agreement or planned action)

2.      Example: drivers involved in a race are liable to third party regardless of which driver directly caused the injury because there would not have been an action if not for the race (Bierczynski v. Rogers)

3.      Considered act of “concurrent negligence”

C.    Enterprise Liability

1.      Liability for “joint enterprise” despite lack of express agreement

2.      Plaintiffs must prove joint awareness of risk and joint capacity to reduce those risks

3.      Hall v. E.I. Du Pont Nemours- 13 children injured in 12 different accidents sue 6 manufacturers and the trade association because they cannot tell who made the blasting cap that caused the injuries; to establish liability show 1) joint awareness of the risk, and 2) joint capacity to reduce the risk (could have put warning on cap); don’t have to identify particular defendant, one can be held liable for all

4.      Example: blasting caps

a.      small number of entities

b.      industry-wide standard of safety features

c.       delegation of safety to trade association

d.      inability of plaintiffs to identify which defendant made the cap that caused the injury

D.    Alternative Liability

1.      Each defendant is negligent but plaintiff is unable to prove which defendant directly caused the harm

2.      Burden shifted to defendants (compare to Ybarra)

3.      If defendants start pointing fingers at one another we are better off

4.      Summers v. Tice- triangle of hunters, shoot at quail and hit plaintiff (not battery because there was no intent); both defendants are negligent, don’t know which defendant hit plaintiff in the eye; plaintiff normally has the burden of proof on causation- shift burden to defendant to sort out the apportionment of damages, both defendants are negligent so they can figure it out (burden shifting rule)

E.    Marketshare Liability

1.      Example: DES (Sindell v. Abbott Laboratories)

a.      plaintiff unable to identify which manufacturer made the drug that caused the injury

b.      concert of action, alternative liability, and enterprise liability theories don’t fit

c.       policy reasons behind theory

d.      all DES is bad and can cause injury, we just don’t know which actually caused the injury

e.      remedial revolution- the court wants to find a remedy for the plaintiff who has been hurt, so they sua sponte will come up with a theory that will work

f.        between innocent plaintiffs and negligent defendant, the negligent defendant will bear the cost

g.      each defendant before the court is liable for the proportion of judgment represented by its market share unless it proves id didn’t make the DES that caused plaintiff’s injuries

h.     if proven DES is harmful and defendant has 10% of the market share, the defendant owes 10% of the damages unless they can prove they had nothing to do with the drug at all (ex. Plaintiff says pill was red, defendant never manufactured a red pill).

i.        Sindell required substantial share of market

j.        The burden is now on plaintiffs to show that the product they have been injured by is more like DES than not

k.      DES cases in other jurisdictions (notes p.314)

2.      Hamilton v. Accu-Tek- relatives of 6 people killed by handguns sued 25 handgun manufacturers for negligence in providing youths and violent criminals with easy access to guns, court reasoned why other theories will not work for this case: (reasoning thru theories possibly on exam)

a.      Alternative liability is inappropriate because of a large number of potential wrongdoers, equivalency of defendants’ and plaintiffs’ positions in terms of the ability to identify the manufacturer whose product caused the injury, and the unfairness of imposing joint and several liability where the probability that any one defendant’s product actually injured the plaintiff is small.

b.      Concerted action is inappropriate because this liability requires proof of an express or tacit agreement to engage in tortious conduct.

c.       The heart of enterprise liability is joint control of risk.  There is insufficient evident of that in this case.

d.      Market share liability works because plaintiffs are faced with intractable problems of proof.  Court wants plaintiff to get relief so they are going to stretch the theory of market share liability.

F.     Joint and Several Liability After Comparative Negligence

1.      The adoption of comparative negligence raises the issue of the continued viability of joint and several liability

2.      Some jurisdictions have retained joint and several liability

a.      defendant A is found 80% at fault, and

b.      defendant B is found 20% at fault

c.       plaintiff could recover the complete judgment from defendant B

d.      defendant B would seek contribution from defendant A

3.      Other jurisdictions have limited defendants’ liability to the percentages found under comparative fault

a.      if defendant A is found 80% at fault, and defendant B is found 20 % at fault

b.      then plaintiff could recover 80% of the judgment from defendant A, and 20 % from defendant B

c.       proportionate- can only approach defendant for what they owe according to percent chosen by the jury

4.      Other jurisdictions have a hybrid approach

a.      In Texas, a defendant is liable only for the percentage of the damages equal to that defendant’s percentage of responsibility

b.      Except joint and several liability is retained for a defendant

1.      when the defendant’s percentage of fault is more than 50%, or

2.      when it’s an toxic tort and the defendant’s fault is more than 15%

5.      Class Example: Comparative Negligence

a.      Plaintiff is 10% negligent, defendant 1 is 60% and defendant 2 is 30%

b.      If we stick with joint and several liability the percentages are irrelevant

c.       If plaintiff is greater than 50% we do not care about defendant’s negligence

6.      Disney problem: Plaintiff and her fiance were driving bumper cars at DisneyWorld.  The fiance’s car collided with the plaintiff’s car causing her to suffer $75,000 in damages.  At trial, jury found the plaintiff 14% at fault for her own injuries, her fiance 85% at fault, and Disney 1% at fault.  Spousal immunity shielded the fiance from liability.  Under joint and several liability Disney would be liable for 86% (14% subtracted for plaintiff).

G.    Contribution

1.      Contribution and indemnity are mutually exclusive remedies

2.      Darren was driving an automobile when he ran over Paul and broke his arm.  Five minutes later, David hit Paul and broke his leg.  Each defendant is responsible for the separate injury that he caused, and neither could seek contribution against the other.

3.      Contribution: based on share fault, tortfeasors who have caused an indivisible harm

a.      one defendant sues another defendant to recover overpayment to plaintiff

b.      before advent of comparative fault, contribution was based on pro rata share of judgment

1.      two defendants: 50% each

2.      three defendants: 33 1/3% each

H.    Indemnity

1.      “All or nothing” approach between two tortfeasors (want everything)

2.      One defendant may be required to bear sole responsibility of satisfying judgment

3.      Right of indemnity depends on relationship between the parties

a.      contractual indemnity

b.      manufacturer-retailer (innocent retailer who just sold product can seek indemnity)

c.       derivative or passive liability (seek indemnity from active)       

4.      National Health Laboratories v. Ahmadi- plaintiff suffered permanent paralysis as a result of misdiagnosis, incorrect lab results, lab made the mistake but said center had a duty to discover their mistake, each defendant says the other is 100% liable (indemnity), trial court says each defendant is 50% liable, pro rata contribution- divide liability by the number of defendants


VII.       Damages

A.    Personal injury damages

1.      One purpose of tort damages is to make plaintiff whole

2.      Another goal may be to provide deterrence necessary to provide safety

3.      Jury accomplishes these goals through award of monetary compensation; all losses must be translated in dollar amounts (damages are for the factfinder)

4.      All damages- past, present, and future- are included in one award at one time (cant come back to court later and need more)

5.      Awards include pecuniary and non-pecuniary damages

a.      Nonpecuniary damages- awarded to compensate an injured person for the physical and emotional consequences of the injury- pain and suffering and the loss of the ability to engage in certain activities

b.      pecuniary damages- damages awarded to compensate the victim for the economic consequences of the injury- medical expenses, lost wages

6.      Review of jury awards is limited

a.      deference especially to noneconomic side

7.      English law has contemptuous damages

a.      someone sues for slander, defendant is guilty but jury has utter contempt for plaintiff

b.      get the “lowest coin of the realm”

8.      Loss of consortium- derivative claim, one spouse sues because of the other spouses injury

B.    Economic Loss

1.      wages and benefits, expected growth, work expectancy, discounting

2.      use average wages of others similarly situated

3.      Seffert v. Los Angeles Transit Lines- Plaintiff getting on defendant’s bus when it began to pull away, caught her foot, serious injuries, defendants appeal from excessive non-pecuniary damages given to plaintiff, since damages do not shock the conscience deference is given to jury, affirmed

C.    Non-Economic Losses: Pain and suffering

1.      Physical pain (hurt knee)

2.      Mental anguish (anxiety about hurt knee)

3.      No set formula for amount of money that could be awarded for pain and suffering; jury has discretion

4.      Per diem arguments (per day, makes amount larger)

5.      Hedonic damages (loss of enjoyment) as separate from pain and suffering (usually not a separate item)

6.      Legal fiction- use money to compensate for a noneconomic loss such as pain and suffering and loss of enjoyment of life; does not ease pain but all society can do is award monetary damages

7.      McDougald v. Garber-  Plaintiff in permanent comatose condition.  Is cognitive awareness a prerequisite to recovery for loss of enjoyment of life?  Yes.  Should an award of damages for loss of enjoyment of life be separate from pain and suffering? No. 

D.    Lost earning capacity

1.      Past: loss of wages or diminished earning capacity by time of trial

2.      Future earning capacity: loss or impairment post-trial

a.      type of injury: examine injuries that have caused physical disability which has impaired ability to work and earn money

1.      career arc- someone with your background, potential to move up, raise, etc.

b.      What is the impact of incapacity?  Does it affect the type of work you do?

E.    Duty to mitigate damages

1.      Injured victims have duty to act reasonably to lessen losses

2.      Plaintiffs are expected to seek appropriate medical care

3.      Plaintiff can’t recover for permanent injury if permanency of injury could have been avoided by medical treatment when a reasonable person would do so under the circumstances

4.      Whether plaintiff mitigated damages is an issue for the factfinder

5.      Defendant has the burden of proof to show that plaintiff did not act to lessen the losses

6.      Considered a defensive plea

7.      Factors used to assess plaintiff’s reasonableness include:

a.      risks of operation

b.      whether operation could make things worse

c.       degree of seriousness

d.      alternative methods of treatment

e.      whether doctors agree on advisability of operation

f.        cost of operation

8.      Colton v. Benes- Plaintiff injured his back in accident with the defendant.  Plaintiff was advised to undergo an operation but did not because he could not afford to.  Law does not require the injured person to undergo an operation where the hazards are great.  Burden of proving the plaintiff should submit to an operation to lessen his damage is upon the defendant.  Where an unreasonable expenditure would be required to undergo treatment an injured person is justified in refusing to undergo it.

9.      Basic doctrine: Plaintiff has duty to mitigate, bounded by reasonableness, burden on defendant.

F.     Loss of Consortium

1.      Wife or husband can recover

2.      Loss of society and companionship

3.      Ex. There is an accident and the spouse is not the same as they were before, this fractures the relationship.

4.      Loss of society between parent and child

a.      minors can recover for loss of parent- no playing football, etc.

b.      adult child can recover too but not in the same way

c.       parents allowed loss of society damages for death of a child (emotional loss)

G.    Collateral loss rule

1.      Traditional rule: If injured party gets payments from source independent from the tortfeasor, those amounts aren’t deducted from award (collateral source traditionally will not be allowed in)

2.      Policies behind rule

3.      Criticism of rule is double recovery

a.      plaintiff gets paid twice for medical bills; insurance and defendant

b.      this does not happen anymore because insurance companies have figured this out

4.      Plaintiff’s recovery of gratuitous services

a.      family nursing care

b.      reasonable value of what is being provided

5.      Collateral source rule and tort reform

a.      states are split

6.      Helfend v. Southern California Rapid Transit- Medical bills had been paid by a third party and the jury was not told.  Damages went to plaintiff and defendant appealed.  Court is in favor of collateral source rule.  Court says there is no such thing as double recovery because insurance companies become subrogated to the amount and if the plaintiff wins the money goes to the insurance company.  The court believes the jury needs to hear about medical expenses in order to determine damages.  This does not mean the jury has to award these expenses a second time.

H.    Punitive damages

1.      Purpose can be discerned from the names that have been used: punitive, exemplary (making defendant an example), vindictive (don’t like defendant), smart money (defendant was being dumb, this is something to make them smart)

2.      Defendant has acted with malice or other extremely blameworthy behavior

3.      Not ordinary negligence, defendant has done something far worse

4.      Ordinary negligence will not get you punitive damages

5.      Punishment and deterrence factors

6.      To determine punitive damages look at:

a.      plaintiffs litigation expenses

b.      seriousness of hazard to the public

c.       profitability of the marketing misconduct

d.      attitude and conduct of the co. upon discovery of the misconduct

e.      degree of manufacturer’s awareness of the hazard and its excessiveness

f.        number and level of employees involved in causing or covering up the misconduct

g.      duration of the improper marketing behavior and its coverup

h.     financial condition of the co. and the probably effect of a particular judgment

i.        total punishment the enterprise will probably receive from other sources

7.      Ratio- reasonable proportion between compensatory and punitive damages

8.      Sturm, Ruger & Co. Inc. v. Day- Plaintiff unloading revolver, drops it, gun fires causing leg injuries.  Claims defendant did not make the gun safe.  Plaintiff awarded 2.8 mil punitive damages.  Due process argument is that punitive damages are too arbitrary and should be void for vagueness.  Court does not agree because the jury is instructed on how to deal with damages.  Court holds that damages were excessive and used to punish the defendant.

9.      BMW of North America v. Gore- repainted BMW, 4 mil. in punitive damages awarded, only when an award is “grossly excessive” does it violate the due process clause, raised eyebrow test, courts look at degree of reprehensibility, ratio, and sanctions for comparable misconduct; certain high awards can be unconstitutional but punitive damages in general are not unconstitutional

I.       Constitutional dimensions

1.      At some point, punitive damages award is grossly excessive and enters the “zone of arbitrariness”

2.      Courts should consider:

a.      degree of reprehensibility

b.      disparity between harm and size of award

c.       sanctions for comparable misconduct

J.      Punitive damages and tort reform

1.      Clear and convincing standard

a.      ordinary negligence is preponderance (raised standard)

2.      Ratios or caps on awards

3.      Bifurcated trials- no evidence of wealth in liability portion

4.      Jury given specific factors to consider

5.      Unanimous verdicts for punitive damages awards (could result in a mistrial in Texas)

6.      All or part of award put in state fund- creates disincentive for plaintiff attorney to seek it


VIII.   Limited Duty

A.    Failure to Act

1.      Common law has drawn distinction between nonfeasance and misfeasance

a.      nonfeasance- not doing anything, no liability

b.      misfeasance- doing something negligently, possibility of liability

c.       Weirum v. RKO General- radio station contest in which two minors attempted to follow the disc jockey’s car, forced a car off the highway killing the driver, court held liability is predicated upon defendant’s creation of an unreasonable risk of harm to decedent; misfeasance exists when the defendant is responsible for making the plaintiff’s position worse, defendant has created a risk

2.      Failure to act generally isn’t actionable under the common law (no duty to rescue; no duty to prevent criminal acts by third parties)

a. Yania v. Bigan- Defendant asked plaintiff to aid him in starting his pump, plaintiff did and drowned, widow filed suit claiming Bigan did not attempt to rescue Yania, court said he had no duty to rescue him, it is a moral obligation to help a drowning person not a legal obligation

3.      Exceptions found in special relationships

B.    Defendant’s Negligence Places Plaintiff in Position of Peril

1.    Exception to common law no-duty rule

a.      Rescue doctrine: “Danger invites rescue”

1.      one who rescues or attempt to rescue a person from a dangerous situation and incurs injury by virtue of the rescue or attempt may recover from the party whose negligence caused the party or another to be in a dangerous situation

b.      Defendant owes duty not to place others in peril

c.       Plaintiff who rescues a person in peril and is injured because of that rescue attempt may recover from the party whose negligence caused the original victim to be in a dangerous situation

1.      Day v. Waffle House- Appellant and friend ate at Waffle House, friend ate glass and began bleeding, appellant, drove to hospital and on the way got in an accident, court said Waffle House had duty of ordinary care not to put customers in harms way, rescue attempt was foreseeable


C.    Voluntarily Assumed Duty

1.    If a party assumes a duty, that party has to carry it through

2.    Governmental defendant

a.      More than duty owed to general public

b.      Need a special relationship between the governmental entity and plaintiff that creates a duty to use due care for the benefit of particular persons

c.       Florence v. Goldberg- infant struck by car when crossing  a school crossing, police department voluntarily assumed a duty to supervise the school crossing, this case is about a special relationship, the duty had to be nonnegligently performed

D.    Duty to Act in Special Relationships

1.    Therapist’s duty to exercise reasonable care to protect third party from danger

a.      very fact specific, think about specific facts in this case

b.      Tarasoff v. Regents of University of California- Plaintiff’s daughter was killed.  Plaintiffs alleged that the killer confided his intention to kill their daughter to a psychologist who never warned their daughter of her peril.  The court determined that because the therapist determined that patient posed a serious danger of violence to others, he had a duty to exercise reasonable care to protect the foreseeable victim of that danger.

2.    Conflicting policies

3.    Scope of duty

4.    Restatement Section 315: There is no duty to control the conduct of a third person as to prevent him from causing physical harm to another unless:

a.      a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or

b.      a special relation exists between the actor and the other which gives to the other a right to protection

5.    Farwell v. Keaton- Plaintiff and defendant were out got into a fight, plaintiff went to sleep in back of car, defendant left him there, he died three days later, court determined plaintiff and defendant were companions engaged in a common undertaking and there was a special relationship between the parties, defendant knew or should have known of the defendant’s peril and had an affirmative duty to come to his aid

E.    Negligent Infliction of Emotional Injuries: “Near Misses”

1.      Plaintiff has suffered no actual physical harm that can be directly attributed to the defendant’s alleged negligence.  Plaintiff seeks to recover for purely emotional distress injuries that are allegedly caused by the actor’s original negligence toward some other person with whom the plaintiff claims some type of close or other special relationship.

2.      Recovery allowed where defendant’s negligence could have physically harmed plaintiff, but didn’t (“risk of impact”)

               a. suing for the fear of you being hurt (your injury)

3.      Some jurisdictions have gone from requiring a physical impact that led to emotional injuries to requiring emotional distress leading to physical injury (upset stomach, headaches…doesn’t require much)

4.      Eggshell skull plaintiff rule does not apply: no recovery for hypersensitivity

F.     Negligent Infliction of Emotional Injuries: Bystander

1.      Recovery allowed where defendant’s negligence harmed another and plaintiff witnessed event

a.      trying to recover for a third party’s harm (someone elses injury)

2.      Two classes who might claim emotional distress:

a.      the family

b.      whoever saw the accident (bystanders)

c.       the compensable class is the overlap- one who is closely related and actually sees the accident

3.      Different approaches

a.      Impact Rule

1.      denies recovery for all emotional distress injuries received by anyone who was not also physically impacted by the actor’s original negligence

2.      legal effect: denies recovery by even the closest relatives of the victim or a negligently inflicted injury in any case where they merely witnessed or where they learned nearly contemporaneously of the victim’s injury, but where not themselves physically harmed

3.      most courts have abandoned this rule, too harsh

4.      Dziokonski- daughter hit by car, mom and dad die, court allows recovery because of parent/child relationship for a parent who witnesses the accident or soon comes on the scene

b.      Zone of Impact

1.      permits recovery for purely emotional distress injuries to persons who, although not themselves physically impacted by the actor’s negligent conduct toward a third-person, are so closely situated  to the accident scene (i.e. within the zone of impact) that they could have been physically impacted

2.      rationale is that such persons are just as foreseeable victims of the actor’s negligence as those who are, in fact, actually impacted

3.      no legal justification for denying recovery to such closely-situated bystanders

4.      does not permit recovery for emotional distress injuries sustained by those persons who are not physically situated within close proximity to the actual scene of the victim’s injury

c.       From Dillon factors to Thing requirements

1.      closely related to injured person

2.      present at scene and is aware of injury to victim

3.      suffers severe emotional distress

4.      Must have all three listed above

a.      in Dillon these were only factors so not all were needed, Thing made this a rule

                                                            d. Work thru problem on pg.441


IX.            Premises Liability

A.    Liability depends on duty and duty depends on status

B.    Distinction Based on Status

1.      Trespasser- someone on land without consent, right, authority, or permission

a.      no duty to maintain premises in safe condition, but can’t injure trespasser through willful or wanton acts

b.      “no duty”

2.      Licensee- someone on and by permission but for entrant’s own convenience or purpose (one-sided)

a.      no duty to take affirmative steps to alter conditions, but must warn about known concealed dangers

3.      Invitee- someone on land by express or implied invitation for mutually beneficial business purpose

a.      reasonable care to protect invitees from foreseeable injuries, including injuries from dangerous conditions where owner has actual or constructive knowledge

4.      For exam: determine what status someone is, but discuss the other 2

C.    Status Categories

1.      Status is critical inquiry since duty is determined by status

2.      Status is determined as matter of law when facts are undisputed

3.      Status may be a jury issue where facts or inferences drawn from those facts are in dispute

D.    Trespassers

1.      Extremely limited duty, possessor can’t willfully or wantonly injure

2.      Trespasser takes land as it exists, including concealed dangers

E.    Licensees

1.      Licensee has permission to be on land, but for own purposes

2.      Limited duty: warn licensee of hidden dangers that are unknown to licensee and known to possessor

3.      In some jurisdictions the duty approaches that owed to trespasser: no wanton or willful injury

4.      Possessor has no duty to take affirmative steps

5.      Licensees include social guests

F.     Invitees

1.      Owner has duty to exercise reasonable care to keep premises safe

2.      Possessor of land may need to take affirmative steps even with warning of unreasonable risk of harm remains

3.      Invitees come upon premises for business that concerns occupier

a.      Express or implied invitation or mutual business benefit

4.      Negligence standard

5.      Palmtag v. Gartner Construction- Defendant was remodeling plaintiffs home, plaintiff fell through stairs, court found she was an invitee, plaintiff was at the job site for the mutual benefit of herself and defendant and her visit served defendant’s economic interest

a.      economic benefit test- one is not an invitee unless the visit is directly or indirectly connected with business dealings between them

6.      * Tricky fact patters will mention an invitation, but there has to be a mutual benefit

G.    Analyzing Status

1.      Status of plaintiff determines responsibility of defendant

2.      Status can change

a.      when business transaction is over, plaintiff could cease being an invitee

3.      Restatement comment: invitee ceases to be invitee after expiration of reasonable time to accomplish invited purpose; at expiration of either a licensee or trespasser depending on possessor’s consent

4.      Going outside area of invitation

a.      In stores, people getting boxes out of back room, outside area of invitation, move from invitee to licensee

b.      If no one said you could go in the back room then trespassor

H.    Once Specific Duty of Care Has Been Established:

1.      Landowners liability for negligence is determined just as in any traditional negligence action

2.      Defendant’s breach of care must be the cause in fact and the proximate cause of the entrant’s legally-recognized damages

3.      Traditional common law defenses based upon the plaintiff’s conduct, such as contributory/comparative negligence and assumption of the risk, are fully applicable to bar or reduce any potential recovery

I.       Trespassing Children

1.      Limited exception to common law rules

2.      Exception began with railroad turntable cases, developed into “attractive nuisance” doctrine, then appeared in Restatement as section 339 (“artificial conditions”)

3.      Attractive nuisance doctrine- child’s legal status as a trespasser is not conclusive with respect to the landowner’s duty of care

a.      a duty of reasonable care may still be imposed upon a landowner who has reason to anticipate the presence of trespassing young children on the premises and the danger created by some dangerous condition existing on the property is of such a nature that the injured child, because of his/her young age, inexperience, or other circumstances is not otherwise likely to have appreciated it

4.      Standard raised from no duty to reasonable care

5.      Mozier v. Parsons- Family was a social guest, child fell in pool and drowned, court says pool is never an attractive nuisance (some jurisdictions disagree)

J.      Restatement’s Artificial Conditions and Trespassing Children

1.      Possessor of land liable if:

a.      place that possessor knows/has reason to know that children likely to trespass,

b.      condition that possessor known/has reason to know involves unreasonable risk of serious injury or death,

c.       children, because of youth, will not discover condition or realize risk,

d.      utility of maintaining condition and burden or eliminating danger slight compared to risk to children,

e.      possessor fails to exercise reasonable care

K.    Firefighter’s Rule

1.      Various types of public officials are considered invitees when the come upon premises to conduct official business

2.      Different treatment for firefighters and police

a.      recovery denied where conduct complained of is the same conduct that created need to call for assistance

b.      rationale: don’t have time to clean up your house for a firefighter

3.      It would be unfair to impose a duty of reasonable care upon landowners to protect such entrants from injuries due to the unusual circumstances which often necessitate their entry

4.      Only when the injury results from some cause that is truly separate and distinct from those circumstances which necessitated the original entry will the landowner or occupant be held liable.

L.     Social Guests

1.      Although expressly invited onto premises for social, non-business purpose, social guests are considered licensees

2.      Possessor owes social guests limited duty owed licensees to provide warning of known, hidden dangers

3.      Some jurisdictions have moved social guests to invitee status or have blurred distinction between invitee and licensee

4.      Rationale: Why should you treat your guests better than your family?

5.      Hambright v. First Baptist Church- plaintiff singing in church slipped and fell, wanted to be an invitee, court said she was a social guest and therefore a licensee, person attending church is a licensee

M.   Recreational Premises

1.      Recreational use statutes treat recreational entrants as licensees, limiting duty to refraining from intentionally inflicting an injury

2.      Purpose is to encourage landowners to make land available for recreational purposes

3.      The statutes typically define the type of defendants, type of  land, type of injury, and the injury-causing instrumentality that qualifies for immunity

4.      Will only be liable for an intentional injury

N.    Lessors and Criminal Activity

1.      General rule is party does not have duty to prevent criminal attacks by third parties

2.      Based on foreseeability

3.      Landlord may have duty to take reasonable precautions against criminal activity

4.      Duty to take measure of protection within power and capacity to take and could be reasonably expected to mitigate the risk of intruders

5.      McClung v. Delta Square Ltd- Plaintiff, decedents husband, sued Walmart and owner of shopping center, after his wife was forced at gunpoint into car, raped, and suffocated to death., court determined s.j. was not proper considering the number of crimes committed on defendant’s premises jury could conclude defendant’s negligence created a foreseeable risk of harm to plaintiff’s wife and was a substantial factor in bringing about the harm.

a.      court looked at foreseeability, burden on the defendant, and proximate cause

O.    Alternatives to Status-Based Rules

1.      Some jurisdictions (notably California) have eliminated status approach to landowner liability and replaced it with reasonable care standard (11 states)

a.      Rowland v. Christian- guest injured on faucet handle, civil code says everyone responsible for their own actions, court gets rid of tripartite status and says proper test will be basic negligence standard, whether in management of his property he has acted as a reasonable man in view of probability of injury to others

2.      Other jurisdictions have blurred distinction between invitee and licensee (14 states)

a.      Jones v. Hansen- Created a new rule of reasonable care for invitee and licensee (blur), trespasser stays the same (duty to refrain from willfully, wantonly, or recklessly injuring him or her)

P.     Lessor-Lessee

1.      Traditional common law approach was no duty, which developed into no duty with exceptions

2.      Rationale: lease treated as sale of premises or conveyance with lessor possessing only reversionary interests

3.      Some jurisdictions have gone to generalized duty to exercise due care

4.      Coggin v. Starke Brothers Realty- no railing on stairs, old woman slips and falls, stairs are considered a common area, tenants are invitees when in common area, defendant’s motion for s.j. should not have been granted

5.      Subject to liability to lessee if:

a.      could have discovered the condition and risk involved, and

b.      could have made the condition safe

Q.    No Duty, Modified by Exceptions

1.      General rule: no duty for defective conditions existing at time of lease

2.      Exceptions:

a.      undisclosed dangerous conditions known to lessor and unknown to lessee (duty to disclose)

b.      premises leased for admission of public

c.       parts of land retained in possessor’s control (entryways, hallways, parking lot)

d.      lessor contracts to repair

e.      negligence by lessor in making repairs if tenant doesn’t know repairs negligently made

R.    Reasonable Care Standard

1.      Lease treated as contract, not as conveyance (not actually giving the property to the tenant)

2.      Duty is general duty of reasonable care; liable for injuries resulting from conduct foreseeably creating an unreasonable risk to others

3.      Pagelsdorf v. Safeco Ins. Co.- Plaintiff falls through rotten railing, landlord knew of problem, court says landlord is under a duty to exercise ordinary care in the maintenance of the premsies

S.     How to Write an Exam: Problem: Johnson owns a duplex.  The front door of each unit opens onto a common front porch, however, each unit has its own separate back door that opens onto a small rear stoop surrounded by a wrought iron railing.  Johnson rented one unit to tenant Abbott and the second unit to tenant Baker.  Aware that the iron railing around Baker’s back porch was loose and in need of repair, Johnson pointed out the defect to Baker at the time of leasing and agreed to charge $25 per month less than the regular rental for the apartment unit.  Two weeks later, after visiting inside Baker’s apartment, Abbott was injured while exiting through the back door and onto Baker’s rear porch stoop, when the iron railing collapsed as he leaned against it. 

1.      Is Johnson liable to Abbott based upon a claim for common law negligence?

a.      no liability because no duty à treated as a conveyance

1.      exceptions:

a.      common area? No, enclosed apartment

b.      public use? No

c.       negligent repairs? No assumption of duty

d.      latent defect? Disclosed to tenant

b.      ordinary care à abandoned no duty rule

1.      follow a negligence analysis

2.      what would a reasonably prudent landlord of a duplex do?

                                             2. Is Baker liable to Abbott based upon a common law negligence claim?

a.      look at distinction based on status (tripartite jurisdiction)

1.      Abbott is a social guest, licensee

2.      Look at how licensee is defined and duty

3.      Then look at invitee and duty, and then trespasser and duty (be sure to discuss all 3)

a.      do not just assume it is a social visit, it may be for business which is invitee status, talk about everything

b.      define licensee using regular definition and also state willful/wanton that some states use

                                                            b. look at invitee/licensee blurring (reasonableness)

1.      negligence analysis

                                                                  c. Rowland- same result as blurring

1.      only difference is if he was somehow a trespasser

2.      give this one sentence






X.                Wrongful Death

A.    Wrongful Death

1.      Common law rule: no cause of action for wrongful death (felony merger doctrine)

a.      civil action is merged in to the felony

2.      Legislative response begins with Lord Campbell’s Act in 1846- allows wrongful death recovery

3.      Today every state has a wrongful death statute

4.      Began as pecuniary-loss statutes, but most courts now award loss of society damages.

B.    Wrongful Death in Texas

1.      Statutory beneficiaries include spouse, children, parents

               a. narrow class, looked at liberally

2.      Damages measure impact of death on the survivors; includes economic and non-economic damages

C.    Surviving Spouse’s Damages

1.      Financial contribution decedent would have made in reasonable probability

2.      Value of intangible services (care, counsel)

3.      Loss of companionship and mental anguish

D.    Children’s Damages for Loss of Parent

1.      Loss of maintenance and support

2.      Value of services in training., advising, educating

3.      Loss of companionship and mental anguish

E.    Parent’s Damages for Loss of Child

1.      Loss of companionship and mental anguish

2.      Death of minor child: pecuniary value of child’s services until age 18, less cost of support and education, plus contribution child would have made to parents after the child reached 18….addition of loss of society (emotional) will allow parents to recover damages

               a. Bullard v. Barnes- goes thru calculation of damages

3.      Death of adult child: amount of future pecuniary contributions in reasonable probability child would have made

4.      O’Grady v. Brown- Appellants contend death of fetus was result of respondents negligence.  Purpose of the statute is to provide compensation to parents, make sure tortfeasors pay for the consequences of their actions, and deter harmful conduct.  “Person” includes fetus, therefore, there is a cause of action for the wrongful death of a viable fetus.

a.      29 states allow wrongful death for stillborn, 14 do not: split on viability

F.     Wrongful Death v. Survival

1.      Wrongful death claim

a.      impact on survivors (who is left behind)

b.      survivor’s loss (financial support, loss of society)

2.      Survival claim

a.      pre-death injury to decedent

b.      e.g. pain and suffering before death, including realization of imminent death

c.       impact pre-death to decedent

d.      if person is killed instantly there will not be a survival claim

e.      sue as a representative of the estate, not as an individual…dead person’s claim

f.        Murphy v. Martin Oil- person horribly burned and survives for 9 days, spouse sues under survival statute, lost wages, pain and suffering and medical expenses fall under survival statute

G.    Survival Statutes

1.      What “survives” is the common law claim for damages sustained by decedent prior to death

2.      Damages include physical pain, mental suffering, lost wages, and property damage

3.      Punitive damages

a.      After death of plaintiff?

1.      yes, still punishing the defendant

b.      After death of defendant?

1.      no, cant punish a dead person


XI.            Defenses

A.    Contributory Negligence

1.      If plaintiff’s negligent conduct is a cause of the plaintiff’s injuries plaintiff is barred from recovery, even though defendant’s negligent conduct also caused plaintiff’s injuries

2.      All-or-nothing approach

a.      any fault on plaintiff à plaintiff does not recover

3.      Affirmative defense for the defendant to plead and prove.  Plaintiff is not required to show due care as part of a prima facie case.

4.      Butterfield v. Forrester- Plaintiff leaves pub on horse, obstacle in road, plaintiff hits obstacle while riding violently; it was negligent to be obstructing the road; it was negligent for plaintiff to ride violently; under contributory negligence plaintiff is blocked from recovery for riding violently, even though the defendant is negligent

B.    On the Road to Comparative Fault

1.      Courts lessened impact of contributory negligence by:

a.      requiring defendant to plead and prove plaintiff’s negligence as an affirmative defense

b.      deferring to juries

c.       looking at remote causation

d.      developing last clear chance doctrine

e.      precluding use of contributory negligence when defendant committed intentional tort

C.    Comparative Negligence (new rule)

1.      Plaintiff’s negligent conduct reduces amount of plaintiff’s damages; it doesn’t completely bar plaintiff’s recovery

2.      Before any party is entitled to recover, it must be shown that the negligence of the defendant was the proximate cause of the accident and subsequent injuries.

3.      Adopted by 46 jurisdictions (34 by statute; 12 by court decisions

4.      Different models:

a.      pure (12 states)

1.      plaintiff is 95% negligent and defendant is 5 % negligent, can only recover 5% (no contributory negligence)

2.      reduce plaintiff’s award in proportion to his contributory negligence

b.      modified: plaintiff barred if fault is equal to defendants (12 states)

1.      50-50; barred from recovery

c.       modified: plaintiff barred if plaintiff’s fault is greater than defendants (20 states, including TX)

1.      50-50, can recover, have to be worse than defendant to not recover

d.      four states have kept contributory negligence defenses as bar

5.      Juries are typically given specific interrogatories or special verdicts.  These ask the jury to separately assign percentages or negligence to each party and then to calculate the total amount of damages suffered by each claimant.  The judge then calculates the judgment.

D.    Seat Belt Defense

1.      Defense is precluded by case law or statute in many jurisdictions

a.      doctrinal and practical reasons against use

2.      Seat belts and contributory negligence

a.      many courts say it cant be contributory negligence because the seatbelt did not contribute to the accident 

b.      bar: cant recover even though defendant was negligent because you were not wearing your seatbelt

3.      Seat belts and mitigation/avoidable consequences

a.      After the accident you fail to do what you were supposed to do

1.      avoidable consequences- plaintiff cannot recover for losses that could have been avoided by reasonable precautions taken after the accident

2.      ex. Defendant drives into window of plaintiffs store, plaintiff does nothing to secure the store and it is looted, plaintiff cannot recover if simple and reasonable precautions would have avoided the loss

b.      should wear seatbelt as to not increase level of damages

4.      Seat belts and comparative fault

a.      reduction in damages

b.      how do you figure out what portion of the injuries are due to not wearing the seatbelt?

c.       If a person chooses not to use an available, simple safety device, that person may be at “fault”

E.    Express Assumption of Risk (bar)

1.      Party may agree by contract to bear a risk

2.      Exculpatory clauses are generally valid because public policy supports freedom of contract

3.      The contract is a bar unless you can bust the exculpatory language

4.      An agreement where plaintiff knowingly and expressly assumes risk of injury will be enforced if:

a.      injury is within scope of terms of agreement

b.      release does not violate public policy

5.      Exculpatory agreement could be voided for:

a.      unequal bargaining power

b.      intentional harm or gross negligence

c.       transaction involves the public interest

d.      defendant violated statute (child labor law)

6.      Unaffected by comparative fault

F.     Implied Assumption of Risk

1.      Implied assumption (subjective standard)

a.      actual knowledge of particular risk

b.      appreciation of magnitude of risk

c.       voluntary exposure to risk

2.      Murphy v. Steeplechase Amusement- Plaintiff got on Flopper ride and fell injuring his knee because of a sudden jerk, court said a fall was foreseen as one of the risks of the adventure, the plaintiff watched people on the ride before he got on so the dangers were open and obvious, “the timorous may stay at home”

a.      violenti non fit injuria- one who takes part in a sport accepts the dangers that inhere in it so far as they are obvious and necessary

3.      Implied assumption of risk and sports participants

a.      sports participant not liable to coparticipant for ordinary careless conduct

b.      sports participant liable to coparticipant for intentional conduct or reckless conduct that is outside the range of ordinary activity associated with the sport

c.       duty owed to spectators? 

a.      as long as screened seating is available, no liability

4.      Impact of comparative negligence on assumption of risk (same fate as contributory negligence)

a.      submerged into comparative fault; factfinder considers plaintiff’s conduct as failure to exercise care of reasonably prudent person

b.      remains as distinct defense and complete bar to recovery

c.       Knight v. Jewett- plaintiff and defendant involved in tough football game, plaintiff injured, court determined a participant in a sport breaches a legal duty of care to other participants only if the participant intentionally injures another player or engages in conduct that is so reckless as to be outside ordinary activity of the sport, defendant’s conduct in the football game did not breach any legal duty of care owed to plaintiff, this case falls within the primary assumption of risk doctrine

1.      primary assumption of risk- no duty on the part of the defendant to protect plaintiff from risk, bar (judge)

2.      secondary assumption of risk- defendant owes a duty of care to plaintiff but plaintiff knowingly encounters a risk of injury caused by the defendant’s breach of that duty (jury)


XII.        Final Exam

A.    Look at point totals in order to allot time

B.    1/3 multiple choice, 1/3 short answer, 2 essays

C.    May have to issue spot some within the question

D.    State conclusion first, then give law (elements), apply