Torts Outline - Bar Exam Mind

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Geary: D blew up P's house in attempt to stop fire spreading in city. One so privileged is ... Lake Erie Transportation Co: D held ship fast to privately. owned dock during ..... Salt Water Disposal). ii. substantial factor .... i. chiropractors. ii. Christian ...
Outline – Torts Outline topics taken from chapter/section headings

Torts is a civil wrong resultant from action or inaction, often adjudicated by use of common law, though many statutes have been added which overrule common law.

Damages permitted to recover: 1. past and future medical expenses 2. loss of wages or earning capacity 3. pain and suffering (inc emotional harm) 4. damages for any other specifically-identifiable harm

I. Intentional Torts

A. Battery

1. D intends to cause harmful or offensive contact What form of intent triggers liability? [Key to intent is D's state of mind] a. intent as purposeful conduct of D b. intent as conduct committed w/knowledge of a substantial certainty of contact c. reckless, wanton misconduct d. capacity to formulate intent -capacity is affected by: infancy; insanity (mental impairment) 2. harmful or offensive contact results to P 3. must be contact

Garratt v. Daily: behavior liable under tort law if it was committed with substantial certainty that a harmful contact would result even if moving was not intended to result in harmful contact (e.g., child moves chair and later someone tries to sit where it used to be and is injured)

B. Assault Defintion: D's intentional act to place P in imminent (not future) apprehension of contact (not words alone) and P is placed in apprehension (i.e., what did the D intend? what did the P apprehend?) Intent: a) doctrine of transferred intent b) where D intends battery, but assault occurs

Dickens v. Puryear, (claim not actionable due to statute of limit running) P assaulted when threatened by a gun pointed to his head and when attackers conferenced whether to kill or castrate P; however not assaulted when D told P to pack up and leave the state otherwise he would be killed (i.e., not an imminent threat)

C. False Imprisonment 1. actor must confine the D 2. must be confined within boundaries fixed by the actor, and D must be conscious of the confinement or is harmed by it (bad motive or offense is not necessary on the part of the actor) 3. Confinement can be done by physical barriers, but also threats (implicit or explicit) of physical force, or on a false assertion of legal authority to confine

The role of "harm" in false imprisonment False imprisonment is a trespassory tort, so the plaintiff can recover damages even if she sustains no actual harm. [Also, if unaware of confinement and sustain actual harm, then false imprisonment actionable, but only if harm sustained.]

McCann v. Wal-Mart Stores Inc, P confined and held by duress, i.e., threats and actions taken by Wal-Mart employees led P's to believe that if they tried to escape, they would be restrained by physical force

D. Torts to Property 1. trespass to land a. intentional entry on the land of another b. despite the fact that no trespass was intended. 2. conversion of chattels a. intentional exercise of dominion or control over a chattel b. which so seriously interferes with the right of another that c. the actor may justly be required to pay the other the full value of the chattel. 3. trespass to chattel a. intentional dispossessing of another of the chattel or b. using or intermeddling with a chattel in the possession of another.

E. Civil Rights violations—Title 1983

1. person charged with violation must be acting under “color of law” a. test of violation 4th Amendment unreasonable, search and/or seizure 14th Amendment shocks the conscience of the court 8th Amendment cruel, unusual punishment

II. Defenses to Intentional Torts (look to reasonableness and degree of defense) A. Self-defense a. One is privileged to use reasonable force to defend against harmful or offensive bodily contact and against confinement. b. The privilege exists if the actor reasonably believes it is necessary to respond with force to protects himself. c. The actor is privileged to respond with the level of force required to Protect himself from the actor who threatens him. d. Excessive force is not reasonable force; verbal threat not enough to permit physical defense

B. Defense of others a. One may defend others on the same basis and same manner as one would defend oneself b. Applies is actor believes third-party would himself be privileged to use that force

C. Privilege to arrest or detain a. Must reasonably believe actor has toritiously taken a chattel from premises or has taken a chattel and failed to pay b. may detain actor for reasonable period (i.e., brief) to perform investigation of the facts

Great Atlantic & Pacific Tea Co. v. Paul, Paul was falsely imprisoned by store manager because he had made no attempt to leave store with stolen goods and was detained unreasonably (i.e., manager did not actually witness the theft and did not check shelf to confirm if item was missing.)

D. Defense of Property a. One is privileged to use force not intended to inflict death or serious bodily harm to protect property b. Actor reasonably believes that the intrusion on land or chattels can only be stopped by the force used

E. Consent to touching negates prima facie case a. Express consent is subjective willingness to agree to D's contacts b. Effective consent: i)consent consists of a manifestation of consent by conduct

ii) P conduct may be reasonably construed as consent even if P does not intend consent c. where P consents to act, P may not recover for the result no matter how unusual d. Capacity to consent: P must be able to appreciate the nature and quality of the act i) P does not and D knows, then consent may not exist ii) P capacity does not render the consent ineffective unless D has knowledge of that incapacity (i.e., law prevents exploitation) iii) minors, mentally incompetent may lack capacity e. duress f. misrepresentation, fraud g. informed consent

F. Public Necessity a. One is privileged to invade and destroy the land and property of another when a public necessity during a time of conflagration requires it.

Surocco v. Geary: D blew up P's house in attempt to stop fire spreading in city

b. One so privileged is not required to compensate the individual who has lost property. c. Some states construe this destruction of property as a taking of property for a public use and require compensation under state constitutional provisions.

Wegner v. Milwaukee Mutual: under the Minnesota Constitution art I, § 13, police reimburse that citizen for the costs of repairs. "Private property shall not be taken, destroyed or damaged for public use without just compensation, first paid or secured."

G. Private Necessity a. One is privileged to enter on the land of another in times of personal necessity to prevent harm to person or property. b. One is required to compensate the landowner or property owner for the loss of property or goods.

Vincent v. Lake Erie Transportation Co: D held ship fast to privately owned dock during a storm to minimize damages to his vessel. As a result, dock damaged. D must pay for damages as he purposefully received a benefit resulting from those damages.

III. Negligence A. Prima Facie Case 1. Duty – D owes P legal duty to exercise some level of care 2. Breach – D breached duty of care with respect to P 3. Cause-in-fact – actual cause of P's injuries was D's negligence 4. Proximate cause – D's negligence is prox cause of P's injury 5. Damage – P has suffered some actual damage a. damages must be established/proven, unlike in torts like battery, where damages are assumed as a component of the tort (e.g., harmful contact)

B. The Due Care of Prudent Person Standard 1. negligence is based on foreseeability by a prudent man of harm that could result from his actions; "Exercise the care that would be exercised by a reasonable and prudent person under the same or similar circumstances to avoid or minimize risks of harm to others." a. not focused so much on intent of D as with intentional torts 2. Circumstances external to the actor a. circumstances must be allowed to modify the prudent person standard; judgment will be affected in certain situations b. special danger

Stewart v. Motts: Pouring gasoline into carburetor should be accorded more caution that everyday occurrences.

c. emergency

Lyons v. Midnight Sun: stating that in an emergency a person is not required to use the same care as in deliberate moments is moot and need not be used. Obviously, people adjust their decision- making process based on circumstances.

3. circumstances in the Actor’s Own Characteristics a. physical limitations of the actor i. others should accord deference to disability ii. disabled person should act reasonably in light of

impairment b. mental capacity of the actor – general duty imposed on adults with mental disabilities is the same as that imposed on those without them. i. circumstances can mitigate this

Creasy v. Rusk: when caregiver who knows of disability is injured by a combative mental deficient, there is no liabiliy

ii. insanity iii. infancy a. generally, children held to standard of care of a reasonably careful child of the same age, intelligence and experience

Robinson v. Lindsay: children engaging in inherently dangerous activities, such as operation of powerful motorized vehicles, should be held to adult standard.

c. special ability, knowledge, experience i. one with greater familiarity with an type of equipment or behavior or skill can be held to a higher standard of car

C. Specification of Duties—Negligence as a Matter of Law 1. Judicial treatment of specific duties a. General duty is specified to a particular requirement of action. b. Specification of general duty rejected and jury role restored. i. i.e., circumstances need to be taken into account by jury instead of applying rule to disperate facts an finding negligence per se (Chaffin v. Brame in light of Marshall v. Southern Railway: rule of driving at a speed such that can stop within length of headlights) 2. Legislative treatment of specific duties a. Legislative specification accepted as tort standard.

Martin v. Herzog: Statutes must be strictly applied (light must be affixed to wheeled vehicle). If a term of statute is violated, this is an indication of negligence per se, no evidence can be presented for mitigation of a negligence finding.

b. Legislative specification rejected i.By interpretation of statute ii.By excused violation doctrine. Excuses: a. violation is reasonable because of actor's incapacity b. neither knows nor should know of the occasion for compliance c. he is unable after reasonable diligence or care to comply d. confronted by emergency not due to his own misconduct e. compliance would involve greater risk of harm to the actor or to others iii. By judicial refusal to accept legislative standard.

Tedla v. Ellman: Statute requires walking against flow of traffic. In this situation, it would have created greater danger than walking with traffic. When P's struck by car, P's were not negligent per se for violating statute because it was more prudent and reasonable, in light of their safety, to violate it. [a defense]

3. Scope of the per se rule—classes of persons to be protect and resultant harms to be punished must fall under statutory language.

Wright v. Brown: Court says two conditions must be met before statutory negligence is actionable: 1) P must be in the class of persons protected by the statute and 2) injury must be of the type which the statute was intended to prevent.

D. Breach of Duty of Due Care 1. Establishing Breach of Duty: Assessing Reasonable Care by Assessing Risks and Costs a. balancing the risks and utilities of defendant’s conduct without mentioning it in words.

b. using the formula B < PL (risk/utility analysis) - formula helps order thinking about whether or not there is a breach in duty of care; used mainly by lawyers in assessing cases, not as an instruction to juries B – burden to D of exercising care P – probability of injury L – injury; damages

United States v. Carroll Towing Co.: Should a barge company kept a watchman on board barge during daylight hours? Held: yes, using B
2.Assessing Responsibility when More than One Person is Negligent a. comparative fault i. reduces damages in negligence and strict liability cases, but not in intentional tort b. the concept of joint and several liability i. P collects damages only from one of the liable parties; other parties "contribute" what they owed P to the paying D ii. if one tortfeasor has no assets or is immune from

liability, joint and several requires the solvent tortfeasor to pay for everything c. modification of the rule to several only based on fault i. each tortfeasor pays only the percentage of damages they owe; P may not recover fully

3.Proving that Conduct falls below the standard of care a. direct proof of specific conduct 1. sufficiency of proof – the requirement of specific conduct Gift v. Palmer: there was clear evidence that driver hit boy, but no one witnessed it and driver says he never saw boy. Therefore, we have shown damage, but are unable to show negligence. 2. conflicting evidence, credibility of experts and the process of determining facts Upchurch v. Rottenberry: facts of case lead to several interpretations, therefore, only a jury may decide. Appeals court can't overrule on basis of disputed facts. b. circumstantial evidence – inferences to be drawn from circumstantial evidence

4. Evaluating Conduct a. evaluation of known conduct – can the trier of fact be permitted to evaluate the conduct as negligence? Thoma v. Cracker Barrel: in slip and fall, P must show that D "either created a dangerous condition or had actual or constructive knowledge of a dangerous condition" or was negligent in failing to discover and remove the condition. b. evidence to assist in evaluation (but reasonable and prudent standard is final arbiter) 1. custom: as a sword to aid the P a. if P can show D violated custom of his community (e.g., restaurant owners) it is usually sufficient to get case to a jury McComish v. DeSoi: Safety manuals admitted as evidence of engineering custom 2. custom: as a shield to protect the D a. D may argue that since he was following custom, he can't be held as negligent The T. J. Hooper: Held that although tug crew followed custom by not using radios, radios clearly allow greater safety and little expense and should have been adopted.

Custom: "What is usually done may be evidence of what ought to be done." If custom made without P's input, then P has no knowledge of it and cannot be said to have agreed to it. Therefore, P can discount custom easier than D can rely on it as a defense. cf. professional standards

3. expert testimony – to help explain what caused the injury by giving opinions or conclusions within the field of their expertise

5. Proving UnSpecified Negligence: the special case of Res Ipsa Loquitur a. Origins and Basic features 1. accident doesn't normally happen without negligence (e.g., flour barrel falls out of window onto head) Widmyer v. Southeast Skyways: planes don't normally crash without negligence 2. conduct of P or 3rd-party and other reasonable explanations are eliminated as causes Warren v. Jeffries: car rolling back

3. the indicated negligence is within scope of D's duty to P i. "D is under a duty which he cannot delegate to another" (Giles v. New Haven) 4. (instrumentality that caused injury under control of D – modernly subsumed under #3) Valley Properties v. Steadman's Hardware: Fire

starts in rented space. Can't say this is only possible due to negligence. No recovery for P. b. Effects of res ipsa: inference vs. presumption 1. Courts normally instruct juries that res ipsa creates a permissible inference of negligence that the jury may believe Eaton v. Eaton (p. 175) 2. A few courts say res ipsa creates a "presumption" of negligence; this moves burden of proof to D to show that he did not commit negligence.

E. Harm and Causation in Fact 1. Actual Harm a. Liability = damages must have been caused by negligence (duty and breach); i.e., P must prove actual damages i. if negligence causes no actual damages, then verdict must be for the D Copeland v. Compton: evidence showed injury was

likely preexisting and not caused by car crash

2. Cause in fact a. But-for Test of Causation i. "but-for D's conduct, harm would not have occurred" Salinetro v. Nystrom: x-ray killed fetus; doc never asked if preg; mother would have said no; therefore, doc fails but-for test = no negligence

b. Problems With and Alternatives to But-for Tests i. liability of two or more persons a. joint and several liability applies when indiv tortfeasors who act independently cause indivisible harm (Landers v. Salt Water Disposal) ii. substantial factor test a. "if two or more causes [or tortfeasors] concur to bring about an event, then cause-in-fact is established by the substantial factor test" (200) b. when each cause sufficient to cause damage, then must apply sub fact test (Anderson v. RailRoad: fires); joint and several applies c. Proof: What harm was caused? i. P must prove by preponderance (i.e., greater than 50%) that an element caused damage ii. causing loss of an endangered life Dillon v. Twin State: because P in process of falling to death or crippling injury, D, causing death by electrocution, can only be held liable for a few seconds of life or the value of crippled life iii. causing the loss of causal certainty Summers v. Tice: when impossible to tell who caused injury (and it was certainly only one person) burden of proof shifts to D's to exonerate self. If burden were on P, he could never recover (policy law) iv. causing the loss of a relatively small chance; Relaxed causation test; value of the chance approach (A fork in the law) Wollen v. Depaul Health: if malpractice takes away a patient's chance, however small, at recovery, then we have a cause of action. Fennell v. Hospital: held – when chance of survival less than 50%, P must prove by preponderance that an act by D caused P injuries (i.e., untimely death).

F. Proximate Cause Requirment (key: analyze scope of risk) 1. A D is subject to liability for all harm he causes within the scope of the risk he negligently created 2. A D is not liable for any harm he causes that is not within the risks he negligently created. 3. Application of principle: a. liability limited to type of injury within the scope of risk


b. liability limited to class of persons within scope of risk


4. Assessing the scope of the risk a. Is harm outside the scope of the risk because of the manner in which it occurs? Hughes v. Lord Advocate: Rule: This accident was caused by a known source of danger, but caused in a way which could not have been foreseen, and that affords no defense. Doughty: Rule: if danger known, but result unforeseen, there is no liability b. Is harm outside the scope of risk because its extent is

unforeseeable? i. thin skull cases 1. even if harm way beyond what could be expected, if a tort was committed, the D liable for all harm and P may recover for full loss ii. when D's conduct qualifies as a proximate cause of P's injury, P's more extensive harm is recoverable

c. Is harm outside the scope of the risk because it results most directly from an act of an intervening person or force? i. scope of risk and natural and continuous sequence 1. "The proximate cause of an injury is that which, in a natural and continuous sequence, unbroken by an efficient intervening cause, produces an injury, and without which the injury would not have occurred." Derdiarian v. Felix Contracting: P must show D's negligence was a substantial cause of the events that caused injury, but not that the precise manner of accident or extent of injuries was foreseeable [opposed to Hughes?] Marshall v. Nugent: where risk from D's negligence has terminated; risk is terminated when situation returns to a state in which it existed prior[1] to negligence. Rule: Original negligent tortfeasor responsible for all consequences and subsequent injuries until P has reached a place of safety or has returned to a state of normalcy. [cf. Anaya] Mussivand v. David: risk has shifted Anaya: while actor is coping with first injury, another injury occurs

IV. Defenses to Negligence A. Contributory Negligence 1. the common law rule a. if P shown to contribute to his own injury negligently, it bars his recovery

Butterfield v. Forrester: Rule: One person being at fault will not dispense with another's using ordinary care for himself.

2. Adopting comparative fault rules ("pro rata share") to permit recovery a. pure comparative fault i. damages awarded on percentages b. modified comparative fault (majority of jurisdictions use this) i. if P's fault greater than or equal to D's, P gets no recovery 3. Calculation of P's fault a. Wassell v. Adams b. Restatement of Apportionment #8 i. the strength of the causal connection between the person's risk-creating conduct and the harm (KG emphasized) 4. Traditional Exceptions to App of the Contributory negligence bar a. last clear chance, discovered peril i. tempered trad rule barring P's recovery in event of P's negligence. b. D's recklessness or intentional misconduct c. P's illegal activity 5. Causation and comparative fault a. negligence or fault not a cause-in-fact or proximate cause b. causal apportionment and contributory negligence: minimizing damages i. seatbelt case (by not wearing a seat belt, damages in a car accident greater than should have been; reduce damage costs to the negligent driver who caused accident) 6. Allocating all responsibility to D a. allocating respons. to protect P from P's own fault b. rejecting comparative adjustment to protect P entitlements

B. Assumption of the risk 1. Express/Contractual Assumption of the risk a. shifting responsibility from D to P i. a complete bar to P's recovery (pp. 275-276) b. constraints on D's ability to shift i. must be clear, unambiguous, conspicuous ii. must not be a situation where P is in a decisive

disadvantage of bargaining strength Boyle: patient has lesser power, but did not need to accept treatment from this doctor iii. can P protect herself? Tunkl: public policy issue; can you protect from being exploited by the contract? 2. Implied assumption of the risk: comparative fault or contractual limitation on liability? [know para in middle of p.277] a. if contractual, then complete bar Crews v. Hollenbach: contractual assump of risk requires: 1) knowledge of the risk of danger 2) appreciated the risk (reasonable person test) 3) voluntarily exposed himself to risk b. if negligence conduct on part of D and P, then comp fault (if not in jurisdiction that prohibits recovery is P is at all at fault) Betts v. Crawford: injury not in scope of risk (i.e., no assumption of unsafe stairs) and D breached duty to P, but P also breached duty to self

3. Assumed Risk as limited duty or no D negligence (p.283n2) a. primary assumption of the risk – no duty owed by D Turcotte v. Fell: as a pro jockey, must assume that you will encounter negligence; however, you do not expect to encounter intentional or reckless misconduct. b. secondary ass of risk – breach of duty by D and negligence on part of P Sunday v. Stratton Corp:

C. Statutes of Limitation 1. when statutes of limitation commence running a. from date of accrual of cause of action: old rule i. begins to run when cause of action manifested; in case of negligence, the exact moment the injury occurs b. from date of discovery: modern rule (in most jurisdictions) c. special cases i. latent potential harm ii. repressed memories 2. Tolling of the statute a. for infancy b. for disability 3. Statute of ultimate repose (pre-accrual bar rule) [KG – this is important] 4. Statutory compliance as a defense 5. Know policy arguments for statutes of limitation a. planning b. testimonial integrity

Understand the differences between a "no duty rule" and a "proximate cause rule."

V. Limits on Legal Duty based on Status of Parties 1. P's served by common carriers 2. guests in automobiles; passenger/guest statutes

3. owners and occupiers of the land a. trespassers: owed a duty to refrain from willful or wanton misconduct

b. discovered or known trespassers: owed a duty of reasonable care

c. attractive nuisance and child trespassers: owed a duty of reasonable care

d. licensees/social invitees: refrain from willful and wanton disregard

e. invitees/one on landowner's land for a public or business purpose: owed a duty of reasonable care

4. Rowland v. Christian abolishes classification system; landowner held to duty of reasonable care 5. Recreational users of D's land on land w/o express invitation: no duty rule (a. probably not on test, or only incidental) 6. firefighter's rule a. duty of due care not applicable to landowners 7. landlord rule (probably incidental to exam) a. no duty owed to those injured on the land unless: i. landlord contracts to repair and fails to do so ii. knows of defect at time tenant takes possession iii. responsible for public areas, areas where landlord retains control and for negligence repairs

VI. Duties of Medical and Other Professionals A. Health Care Professionals 1. Standard of care and the expert testimony requirement 2. The relevant medical community for setting the standard of care a. locality rule b. the modified rule c. the national rule d. rule for specialists

e. rule for non-medical practitioners i. chiropractors ii. Christian Science practitioners iii. nurses f. other professionals: lawyers, accountants, architects, engineers 3. Proof of medical malpractice 4. Res ipsa loquitur in medical cases a. a typical case that does not require expert testimony b. res ipsa w/multiple Ds Ybarra v. Spangard

5. Informed consent a. policy: autonomy principle b. materiality standard for disclosure (favors Ps) i. materiality to patient vs. disclosure standard in medical community ii. what is "material" to a patient's decision? A. risks of the procedure/treatment: likelihood of complications, side effects, etc. c. the professional standard (favors D doctors) d. informed consent v. battery e. cause-in-fact requirement i. if had been informed of risks, neither I nor a reasonable \ person would have gone through the procedure.

VIII. Misfeasance vs. Nonfeasance (arbitrary line) ["these are hard cases to understand" i.e., will be on test] Since it is arbitrary and may not be helpful, what we need to do is look into the facts and find if D had any relationship/duty with P before the injury occurs. A. No Duty to Act Rule 1. Yania v. Bigan -man who jumped into water had faculties and made a choice to jump into the water; since he made a choice, D has no duty of rescue -in Newton (424) man falls into unlighted hole; he had no choice to avoid hole because unlighted

B. Exceptions to No Duty Rule 1. Acts causing risk or harm-trigger duty South: if one is or thinks he might be a cause of harm to another, one has an affirmative duty to render assistance Southern: if D or D's instrumentality causes harm, he must render assistance; if he fails to do so and injury is aggravated, then D can be liable for the further injuries cf. rescue doctrine which implies that harm caused by someone else; therefore if [non-professional] rescuer is injured, D liable for his injuries too "Danger invites rescue." 2. Beginning an Act as establishing Duty (act in furtherance of aid to another) Farwell: i.e., if you take charge, then you establish a duty of reasonable care to your charge; by breaching that duty, you put charge in a worse position than when you found him (compare to Krieg: is the court saying the opposite?) 3. Relationship with P triggering duty Farwell: pre-existing relationship (e.g., companions on a social venture) creates duty to render assistance when companion in peril if he can do so without endangering himself 4. Civil rights claims (DeShaney) a. non-protection; no special relationship b. state-created danger c. discriminatory non-protection

IX. Tort Duty as a Function of Contract A. Non-performance of promises 1. unenforceable in tort: Thorne v. Deas

B. enforceable promises 1. when lessor contracts to make repairs (Mobil Oil) a. if injury results due to failure to repair (when contract clause requires repairs to be made), then lessor is liable for injuries 2. when contract term waives contract liability but not tort liability a. breach of contract is, in effect, nonfeasance; therefore, no tort liability b. DCR v. Peak Alarm: does term only waive contract liability, but not tort liability? 3. when waiver is for both

C. promises to third persons 1. privity of contract as a bar to nonfeasance a. Winterbottom v. Wright: (old rule) – liability cannot be beyond the contracting parties (not applied anymore) 2. other justifications for contract to limit tort liability: Moch case a. no negligence proven b. policy: liability too expansive i. the assumption of one relation under contract should not mean that the party will involuntarily assume a new series of relations.

D. Restatement 324(A) – liability by contract created when: (see p. 453) 1. the actor's failure to act increases risk of harm a. Thirion: placed gravel on road, made more dangerous b. Paz: intersection already dangerous; no liability 2. shifting tort response by contract a. Palka: responsibility for hospital safety shifted by contract to a safety maintenance company; there is liability b. Paz: city owed no duty, therefore it could not transfer 3. reliance on other or third person upon the contract

E. Action as promise or undertaking triggering liability w/respect to interests of P 1. undertaking creating duty a. Florence: first discuss immunity, then find if the immunity was waived by the undertaking; then look to reliance 2. reliance creating duty a. Kircher

X. Duty to Protect from Third Persons A. D's relationship with P triggers a duty to P to provide protection to P or duty to control D 1. D's relationship w/P as invitor triggering responsibility to invitee a. choice of rules – Posecai i. specific harm: must have knowledge of imminent harm (too restrictive; let's business owners off the hook for harm to easily) ii. similar incidents test: foreseeability of harm iii. totality of circumstances test: focuses on level of crime in surrounding area (imposes to great a duty on business) iv. balancing test: compares foreseeability of harm and gravity of harm vs. burden on businesses to protect against it; the greater the harm foreseen, the greater the duty (cf. B

2. D's duty triggered by employer/employee relationship – Hosein a. employers have a duty to employees only if the employee

"comes into a position of imminent danger"

3. Duty triggered by teacher/student relationship a. threat posed by teacher – Marquay i. duty comes from custody; the parent's ability to protect child while at school is impaired. ii. duty is imposed only on those school employees with supervisory responsibility over children who have thus stepped into parental proxy a. also extended to negligent hiring and firing of dangerous employees

b. threat posed by fellow student or outsider i. Mirand: duty to adequately supervise students in a manner of "a parent of ordinary prudence in similar circumstance" and will be liable for foreseeable injuries ii. Fazzolari (proximate cause case): duty of school exists when child dropped of at/near school in hours near normal school hours (even when non-school employee causes the harm) c. nature of duty d. duty of colleges and universities to protect students i. from what?

4. Duties of landlords a. to protect residential tenants i. when landlord has knowledge of dangerous tenants, he can be held liable for harm they commit (Dudley) b. to protect commercial tenants

XI. D's Relationship with Dangerous Persons A. General Duty (see page 480 for good definition of how to determine if duty exists)

B. Therapists or physicians' relationship to a dangerous person triggers a duty 1. Tarasoff v UC Regents a. General duty of care to patient and general public b. when patient is clearly violent, therapist owes a duty of care to target of that violence to protect him/her c. this duty only exists when the potential victim is identified; generalized threats to classes (e.g., I'll kill kids) are too broad 2. DiMarco a. Disease is not imminent harm. DR's obligation is to instruct patient properly on how to prevent transmission 3. Witthoeft

C. Negligent entrustment: a facilitator's relation to dangerous actors

D. Supplying dangerous substances or instrumentalities to source of harm 1. Brigance v. Velvet Dove a. when tavern keepers supplies a drunk person or a minor with drinks, the unreasonable risk of harm to others may readily be recognized and foreseen. A duty issue. CL case. b. matches up with saying vendor has a duty of care to invitees c. social host, however, is not liable in a similar situation unless the social host served alcohol recklessly to licensees

E. Voluntarily setting standard for others 1. Snyder v. AABB a. Reliance: Patients and blood banks relied on AABB to set standards to assure safety of blood supply b. AABB could reasonably foresee a severe risk of harm to patient's receiving tainted blood c. case is an outlier, no special relationship as in the other cases

Main topic: limiting duties to protect against special types of harm. (Just as tort liabilities depend in part on the relationship of the parties, it can also depend on the type of harm the plaintiff claims).

X. Emotional Harm A. Intentional infliction of emotional distress 1. intentional or reckless conduct 2. that is extreme and outrageous a. regular pattern of abusive behavior (severity and regularity) b. outside the scope of behavior normal to relationship (supervisor- employee in GTE v. Bruce) i. employees are "captive victims" ii. employees often suffer a power imbalance 3. that causes severe emotional harm to P a. a single insult or annoyance is rarely considered an intentional infliction of emotional distress. i. exception: racial slur spoken by an employer, but not by a stranger on the street[2] (jury would decide)

4. for onlooker, must be present and a member of family to recover with or without physical manifestation (in Restatement) a. Homer v. Long: cannot recover against seducer of wife that resulted in divorce, because not witness to seduction 5. for a non-family member, must be present and must have physical manifestation of emotional harm (in Restatement)

B. Negligent infliction of emotional harm 1. emotional harm without physical injury 2. P can recover without physical impact, but must show physical manifestation of emotional harm (sig minority of jurisdictions) 3. trend: abolish the physical manifestation rule

NB: if P can't recover based simply on emotional distress, then P can attempt to show physical impact/damage and then recover for emotional distress as parasitic damages.

C. Emotional distress caused by another's physical injury 1. recovery if in zone of danger for self, but suffers emotional harm for fear of self and other (most jurisdictions today do not require the physical manifestation) a. zone of danger test: when is z of d, can recover for emotional injury caused by fear (must express fear of one's safety at or near the time of danger) of physical injury to self i. fear for one's safety is an essential element (Grube) 2. Bystander Recovery: Dillon v Legg, Thing v. La Chusa a. Dillon: family related observer, located near the accident, shock results from direct emotional impact upon P resulting from sensory and contemporaneous observance of accident b. Thing: Upheld finding in Dillon as rules for decisions, not just broad guidelines.

D. Direct victim of D's negligence (independent duty/special relationships) 1. Burgess: (cf. Sacco and Camper):

E. Loss of consortium 1. Emotional distress claims deal with acute moment-shock or fright; loss of consortium claims recognized legal harm in chronic, ongoing sense of loss 2. Loss of consortium claims are based on the recognition of a legally protected interest in personal relationships. a. spouses i. recovery permitted b. parents, children (Boucher), significant others ii. no recovery NB. emotional distress and loss of consortium claims are not mutually exclusive (e.g., I witness wife hurt; and later feel a loss of consortium)

F. Duties to Protect Emotional Well-Being Independent of Physical Risks 1. No duty rule a. Washington 2. Untruthful information; liability for all foreseeable harm a. Sacco: (2-part test) Negligent or Intentional infliction of severe or serious emotional distress is actionable if it is a reasonably foreseeable consequence of the D's negligent or intentional act or omission [does this overrule zone of danger and bystander rules? this is a trend to watch] b. Camper: find negligence based on normal 5-part test and then show a severe or serious emotional injury [other rules swallowed up by this decision]

G. Toxic Exposure: Fear of Future Harm 1. fear of future harm and more likely than not rule a. Potter: where there is exposure to carcinogens that may cause cancer, P can recover for fear of future harm if P can show by preponderance (statistical and medical data) that more likely than not that exposure will cause the feared future injury [cf. "loss of chance"] 2. fear of AIDS; exposure rules a. Hartwig: if exposure uncertain, then suffering in period until diagnosis is known can be recoverable i. if exposure was certain, then recovery would be easy

XI. Prenatal Injuries A. Claims for injuries to fetus 1. when child is born alive a. almost always recovery 2. when child is stillborn a. was this child a person? if not, no wrongful death b. if viable at injury, some jurisdictions allow recovery

B. Claims for injuries to child as a result of D's negligence: Greco 1. wrongful conception a. generally no damages except medical expenses for birth etc 2. wrongful birth (to be viewed as normal malpractice in light of negligent testing of child for genetic problems) Rationale for recovery: mother is a direct victim (Burgess) a. recovery for extraordinary medical and custody expenses b. loss of services and companionship i. if mother claims she would have aborted, she would not have had these things, and therefore cannot claim for them c. emotional distress 3. wrongful life: claim makes court determine if child would have been better off not being born; court will not take up this issue a. extraordinary medical and care expenses b. after majority c. emotional distress

XII. Wrongful Death A. Wrongful death actions: action normally brought by a dependent 1. derivative action for class of named dependents a. Policy: compensate survivors for the pecuniary losses they suffer because of the tortious conduct of others b. stepchildren and cohabiting partners normally cannot bring such an action 2. recovery for support, funeral, medical expenses 3. loss of consortium

B. Survival action: action normally brought by executor 1. action for benefit of estate of decedent 2. brought for loss of accumulated wealth 3. Preserves any personal cause of action that decedent would have had if he had survived

C. These actions are entirely creatures of statute. Therefore, in order to know exactly what is happening in your jurisdiction, you must read the statutes.

D. These claims are very difficult to prosecute when the person who died is non- earning (e.g., housewife, child, college student who has yet to gain employment, etc)

E. Normally, wrongful death statutes require that the action can only be brought if the deceased could have brought the action had he lived. i.e., if contributory negligence or assumed risk would have barred the action in life, it bars the action in death.

XIII. Vicarious Liability (respondeat superior) A. Limited form of strict liability in which one person or entity is held legally responsible for the fault-based torts of another 1. Theory is that the employer picks up any damages that employee cannot pay himself. However, very often, the employer pays everything.

B. Justification for vicarious liability 1. Enterprise liability theory: a. torts of employee are deemed to occur as a practical matter b. therefore, it is should be seen as a cost of doing business i. Because consumers prefer cheaper goods, this will mean that they will favor safer goods, and so businesses will be forced to make cheaper/safer make goods safer (558n4).

C. Triggering factor: course and scope of employment 1. Hinman a. "going and coming" rule: normally cuts off vicarious liability for the transit of employee to and from work (not in course and scope). i. Exceptions: employer provides or pays for the transportation/mileage ii. seeking employees beyond normal labor market increases risks during their commute (561) iii. Policy: a matter of control or creation of the risk 2. Frolic and Detour Rule a. if employee is driving and goes out of normal way to frolic (e.g., drink beer with a friend) then vicarious liability cuts off b. if deviation was a mere detour, then vicarious liability may still apply 3. Edgewater Motels a. performance of a negligent act for personal reasons can render an employer vicariously liable if the act was performed while also performing a task within the scope of employment 4. Lisa M v. Hospital

D. Conduct arose out of the employment relationship if: 1. conduct is activated to serve employer's purpose 2. motivating emotions attributed to work-related events a. Lisa M v. Hospital 3. relationship encouraged and developed through employer- created relationship

E. Borrowed servant rule 1. Borrowing servant creates vicarious liability relationship

F. Independent Contractors/Agents 1. without control (i.e., the ability to control the employee in the performance of a task and in its result (not actual exercise of supervision)), there is no vicarious liability. a. apply control test to determine if someone is ind. con. 2. Apparent agency: a. if a principle creates the impression that someone is his agent, he is estopped from denying agency if an innocent 3rd party reasonably relies on the apparent agency and is harmed as a result. b. Vicarious liability for tort arises when the injury would not have occurred BUT FOR the injured party's justifiable reliance on the apparent agency.

G. Independent contractor relationship does not create vicarious liability relationship unless: 1. apparent relationship creates reliance 2. peculiar risk or inherently dangerous activity creates non- delegable responsibility a. also: Statutory duties to provide safety protections are nondelegable. 3. landowner in possession of land is subject to same liability as independent contractor who causes injury

XIV. Products Liability (this will be on the test) A. Origins of R2T §402-A and R3T §§1-3 1. inadequacy of the negligence cause of action a. difficult to prove the deviation from the standard of care b. when product is faulty, we can assume negligence by someone 2. inadequacy of the warranty cause of action a. privity problem (i.e., maker of good often does not sell it to end consumer)

B. Scope of recovery pursuant to strict liability in tort (Moorman) 1. economic loss only – recovery in warranty a. only product itself breaks; there is no injury to persons or destruction of other property 2. property and personal injury – recovery in tort a. recovery only when injury results form a sudden or dangerous occurrence b. if there is also economic loss, then economic loss will normally be treated as a parasitic damage to a §402A cause of action (633n2)

C. Scope of liability under §402A and R3T 1. defective product – manufacturing flaw (mismanufactured product) a. i.e., product in general is fine, but a particular one is broken i. deviates from the standard of like products b. Lee v. Crookston (§402A and R3T) c. Prima Facie case: i. product was in a defective condition and unreasonably dangerous for its intended use and ii. such defect existed when the product left D's control 1. cf. res ipsa loquitur's "control of instrumentality" 2. and evidence often circumstantial 3. when using strict liability, it is much easier to get to jury than with normal negligence or warranty causes of action iii. defect was proximate cause of injury sustained d. manufacturing defect: "a physical departure from a product's intended design" (637); deviates from products of like kind

2. design defect; defectively designed if: i. product falls below consumer expectation a. if unreasonably dangerous product design proximately caused or enhanced P's injuries in the course of a foreseeable use, then strict liability applies for design defect b. deemed unreasonably dangerous if it is dangerous to an extent beyond the expectations of an ordinary consumer when used in an intended or reasonably foreseeable manner

ii. risk/utility analysis shows a defect a. it is deemed defective if: "the benefits of the challenged design do not outweigh the risk inherent in such design.": risk-utility balancing (cf. B
iii. Barker v. Lull test moves the burden to D on risk/utility analysis if P shows design proximately caused the injury a. much closer to strict liability than most jurisdictions iv. Almost no courts hold a manufacturer liable for things that were unknowable when product created (e.g., drugs, 653n6) v. unavoidably unsafe products: guns, cigs, booze, bullets, knives

3. failure to warn a. failure to properly instruct how to use product or explain its general use b. is the warning or instruction clear, visible and appropriately listed in instructions? i. Adequacy of warnings: Carruth c. Is the warning necessary if risk or hazard is obvious? i. Possibly: the warning would then have to explain a way to avoid the danger or lessen the risk, rather than simply name the obvious danger (eg, Liriano). d. Test to determine liability for failure to warn: negligence test

e. Causation: did failure to warn cause injury i. deeming presumption 1. Must produce evidence that warning would have been heeded had there been a warning in existence A. We assume that a reasonable P would have heeded the warning; burden shifts to D to show lack of warning was not but-for cause of injury ii. can that be rebutted

f. Special proof problems in products liability i. use of accident data from other causes ii. general question of causation linking product defect to injury a. scientific expert opinion will be admitted into evidence so long as it meets scientific standards, such as peer review and theory is generally accepted

4. KG – know 638n7; the differences between negligence and products liability cause of action

D. Comparative Fault, Assumption of Risk, Misuse [most confusing area of PL] 1. Comparative Fault and Assumption of Risk in Products Liability Cases a. assumption of risk as a bar to recovery i. that is, a "voluntarily and unreasonably proceeding to encounter a known danger" is an affirmative defense b. contributory negligence as no defense in products cases i. comment n, R2T §402A (see p. 677) a. no defense "when the negligence consists merely in failure to discover the defect or to guard against the possibility of its existence" c. application of comparative fault principles i. some courts retain comment n conduct as a bar, but other forms of contributory negligence will permit D to reduce P's award (680n4) a. e.g., door latch on car defective, but driver is drunk and speeding when he gets into a crash. These second two issue are not comment n conduct

2. Misuse of a Product as an issue of Proximate Cause (Hughes) Q: "Was it a product defect or P's misuse that caused (proximate cause issue) the injury?" a. P's misuse as determinative of defect i. if misuse was reasonably foreseeable by D, then there was a defect (of failure to warn) ii. if misuse was not foreseeable, the D owed no duty to P to design product differently 1. Misuse is not an affirmative defense, but rather is part of P's prima facie case. 2. to dispute, D must show that D could not reasonably foresee the misuse; therefore, key is what could be known from the vantage point of the manufacturer b. manufacturer's duty to anticipate reasonably foreseeable misuse[3]

c. third party misuse or alteration as basis for cutting off D's liability (how to draw the line for liability) i. this occurs when the 3rd party can be determined to be the "sole proximate cause of P's injury." 1. e.g., when product left factory, it was in a safe condition; if end user modifies it, then they are a superceding cause, "putting product to a use other than that foreseen by manufacturer."

how do we know when to treat P's actions as misuse or when to treat it as comparative fault/contributory negligence?? D wants to use it as misuse and thus convert it to an all-or-nothing concept.

def. "misuse" = a use not foreseeable by D

3. Sale vs. provision of service: where does strict liability apply? a. provision of permanent wave vs. use of defective hypodermic needle (Newmark) i. to trigger §402A liability, one needs to have a sale ii. court says if a product is sold but included in a bill for overall service, it is still a sale 1. i.e., products liability applies when service is a hybrid of sale and service a. e.g., one could have purchased the product and used it at home iii. exception: when the person offering the service is a professional (such as a dentist who uses products with due care that may nevertheless fail and cause injury) 1. policy: protect professionals from as much liability as possible b. used goods

c. provision of blood: sale or service i. United Blood Services: a "great" review case a. P must sue under negligence theory, rather than strict liability, because statute prohibits strict liability[4] because blood providers are considered medical professionals who are providing a service b. review issue: standard of due care is that of the profession, but this standard is rebuttable (cf. custom and Carrol Towing). c. compare also to medical malpractice 4. government preemption a. in the context of federally-mandated warnings i. Cippollone ii. preemption emerges where there is a conflict between federal law and state CL strict liability (federal law always trumps) b. in the military procurement context i. use of gov't discretion to give design specs means that state law is preempted re: defective product design if contractor meets those specs [review in Emmanuel] ii. preemption relates to design defects or warnings; but not manufacturing defects!!

E. Common Law Strict Liability 1. strict liability after development of negligence a.. development of strict liability in tort i. strict liability for non-natural use of land (the test: natural vs. non-natural) natural = normal/common a. Rylans v. Fletcher (know this case!!) economic interests are very important in deciding liability. that is, if it is common for a certain economic activity to occur in the area (e.g., oil drilling) then something that damages this interest may be considered non- natural and liable (I think she may base a question on this)

ii. liability for abnormally dangerous, ultrahazardous activity on D's land a. strict liability only for all consequences that stem from that activity (proximate cause/cause in fact issues cut off strict liability; then you may need to go to negligence action) 1. no longer require direct contact (i.e., trespass) from activity to cause damages e.g., debris from blasting is a trespass, but vibration-caused damage is not. Don't matter; liable for these damages too

b. defense to strict liability (same as products liability) assumption of the risk

XV. Allocation of Responsibility Among Joint Tortfeasors A. Doctrine of Joint and Several Liability 1. Joint: all tortfeasors are liable for the entire amount 2. Several: all tortfeasors will share payment on a pro rata basis

B. Contribution and Indemnity Among Tortfeasors 1. common liability rule i. contribution will not apply when the co-Ds have no common basis of liability a. this can shift entire loss to one of the Ds, even when the other D was partly at fault (e.g., Ascheman) 2. apportionment under traditional rule

3. apportionment of liability w/application of comparative fault i. equitable indemnity rule[5] (American Motorcylce) 4. application to Ds, one of whom is negligent and the other strictly liable i. Safeway v. Nest-Kart a. how do you compare responsibility for different types of liability? 1. in this case, comparing a D who is negligent and strictly liable and another D who is only strictly liable ii. contribution law does not req that joint tortfeasors be liable on the same theory of recovery

C. Liability of Tortfeasor Pursuant to market share doctrine (Sindell); a significant minority of jurisdictions apply this rule 1. basis for liability i. concept based on protecting the public at-large ii. based on Summers v. Tice in that we have an identifiable pool of tortfeasors but can't prove who caused the harm 2. based on national market share i. however, if we have a manufacturing defect, rather than a generic design defect, market share liability would be unfair to the Ds because only a single D would truly be guilty of the defect 3. extent of liability i. limited to actual market share ii. if one manufacturer with 20% of market can prove it could not have supplied the drug, then the P will only recover 80% of awarded damages iii. this makes a mockery of proximate cause, however

D. Settlement among tortfeasors: pro tanto (Cal)[6] vs. pro rata 1. pro rata: if there is a settlement for less than pro rata share, the P does not recover the missing amount 2. pro tanto: even if one D settles for less than amount he would have been liable for, the court will force him to pay the missing amount in order to make the P whole

E. Effect of tort reform on joint and several liability 1. modification of joint concept (e.g. 756) i. e.g., non-economic damages shall be several only and not joint a. this applies to about 50% of jurisdictions 2. effect of eliminating a tortfeasor from the calculus 3. comparison of intentional wrongdoer w/negligent party i. if several liability, then intentional wrongdoer will probably get most of the blame and P would get little recovery ii. if joint and several, it doesn't matter because the other tortfeasors will be forced to make up the damages

F. CL set-off 1. balance the damages 2. policy: if both parties are paying out of their pockets, this is fine; if insurance involved, then this enriches the insurance companies and it should not be permitted

G. comparison of P's negligence w/negligence of tortfeasors 1. Graci

XVI. Damages A. economic loss (pecuniary damages) 1. lost wages 2. lost earning capacity 3. medical expenses 4. future and past medical

B. non-economic damages (non-pecuniary) 1. pain and suffering 2. loss of enjoyment of life a. should 1 and 2 be lumped together or determined separately? b. lumped together: they are subjective damages and if they are separate, you will encourage much larger awards 3. how to calculate loss of non-pecuniary damages 4. cap or limitation of liability for this loss a. avoidable consequence/mitigation rule i. "one who is injured by the negligence of another must use reasonable care to promote recovery and prevent any aggravation or increase of the injuries" ii. NB: this is not comparative fault; that is, it does not reduce the total recovery as a % of P's negligence, but rather prohibits recovery for a discrete set of injuries deemed to have been brought about by failure to mitigate (think: proximate cause / intervening cause) a. some jurisdictions, however, use it as comparative fault

C. Collateral source rule 1. Def: if, after being injured, P receives gifts from friends and say, keeps full pay from his job, these collateral benefits cannot be considered in determining the amount of $$ owed by D a. enables double recovery in some instances b. this rule does not apply to previous payments made by the D or someone directed by D to pay

D. punitive damages – are they justified 1. Def: Awarded only for misconduct coupled with a bad state of mind involving malice or at least a reckless disregard for the rights of others a. normally must be proved by clear and convincing evidence 2. purposes: a. punishment b. deterrence c. pool from which to pay the lawyer 3. policy: without punitive damages, a company may make so much money from a dangerous product that only massive punitive damages will induce it to remove the product from the stream of commerce (tort-for-profit)

Do problems in each chapter; they are pretty good at illustrating the grey areas and pointing out forks in law.

Don't forget that you can't normally sue an employer due to worker's comp statutes.

Cases cited repeatedly: TJ Hooper, Summers v. Tice

OMIT: 366-421; 717-729; 807ff ----------------------- [1] In this case, if the people who had been forced off the road by D's negligence had returned to driving and were involved in a later accident (due to delay caused by D's negligence), D would no longer be liable because the situation had returned to its prior state (i.e., the car was back on the road and the people were driving again. [2] NB: importance of relationship to deciding what gets to the jury [3] Therefore, parts a and b are an exclusive binary. This is a proximate cause issue. Either the D should have reasonably foreseen the misuse and guarded against it or P's misuse was not foreseeable and the D had no duty/power to guard against it. That is, who is the proximate cause of P's injury! [4] Note statute as an exception to strict liability, just as statute can create a duty of care. In this suit, we must go on the CL negligence theory. If unclear that something is a sale or provision, then argue both sides, suggest that a statute may exist. Also, use a policy argument: if raising liability would hurt a public good, then it probably will not be a sale (e.g., making blood a sale rather than provision would subject them to massive liability and might harm the public good). [5] In other words, this is just contribution under comparative fault. E.g., D1 was only 10% at fault, but pays 100% of the damages. D1 is, therefore, entitled to equitable indemnity (i.e., contribution) from D2 for 90% of the damages. [6] make sure P recovers full amount