1. Why hold a defendant liable?a. Dealing with private wrongs between citizens: provide damages to make the injured party

wholei. Tort: wrongful act or infringement of a right leading to civil legal liability

1. Must prove fault (negligence): a. Cohen v. Petty: drive ran off road when he fainted and passenger

sued but driver not liable because there was no negligence (fault)b. Other way of dealing with tort law: have strict liability fund (government run)

i. Positive: do away with bulky Tort Law system where so much money is spent litigating

ii. Negative: People might not get what they need; tortfeasors not punished for bad acts

2. Intentional Tortsa. Concept of intent (2 ways) as defined by battery: act for the purpose of inflicting a

harmful or offensive contact on the plaintiff, or realize that such a contact is substantially certain to result.

i. Garratt v. Daily: boy pulled out chair from under woman about to sit down in the chair; acted with substantial certainly that woman would fall

ii. Intentional torts are distinguished from negligent torts: most insurance won’t cover intentional torts because the easiest way not to do an intentional tort is to not do the act

1. Lambertson v. US: sued under Federal law for recovery from horseplay injury at work place; couldn’t recover because injury due to intentional battery (bodily contact, contact was offensive/harmful, contact was intentional); liable for resulting injury from intended, offensive contact

b. Mistake and Transferred Intenti. Actor takes the risk of mistake

1. Ranson v. Kitner: shot man’s dog thinking it was a wolf; still liableii. Actor’s intent to commit one tort transfers from the intended victim (or tort) to the

actual victim (or tort)1. Talmage v. Smith: man threw club at trespassing boys, hit plaintiff; man

liable because exceeded privilege in throwing club and intent in hitting boys transfers to actual victim

a. Responsible to consequences of actions if acting as tortfeasorc. Intent compared to Moral Fault

i. Moral fault not generally taken into consideration1. McGuire v. Almy: registered nurse intentionally injured by insane charge

under her care; mentally insane person still held liable because acted for the purpose of inflicting a harmful contact; 3 rationales

a. Make people in charge of “deranged” more carefulb. Must pay for suppose so should pay for damages too; wealthy

insane people should payc. Courts don’t want to bring in difficulties in determining mental

capacity2. Person held not liable when they can not form the requisite intent

d. Elements of Battery

i. (1) Defendant must act1. Under their own control; not being bumped by someone else into the

victimii. (2) Act must be intentional

1. Act with purpose or substantial certainty that harm will result2. Intent can transfer

iii. (3) Act must cause contact with victimiv. (4) Intended contact must be either harmful or offensive

1. Wallace v. Rosen: teacher touched mother to move her along during fire drill was an expected touching in the course of life, not offensive or harmful

a. Use reasonable person in the circumstances to determine “offensive”

i. Typical/usual contact in the course of ordinary life or circumstances is not offensive if person is hyper-sensitive

1. If actor has reason to know person finds contact offensive, then liable as a batterer

2. Fisher v. Carrousel Motor Hotel, Inc: grabbing tray out of black customer’s hand was offensive; “body” includes items intimately associated with person

a. Harm that offends the reasonable sense of personal dignityi. Physical impairment, pain, illness, etc.

e. Assault: intentionally placing someone in reasonable apprehension of an imminent harmful or offensive contact

i. Western Union Telegraph Co. v. Hill: woman told by company worker that he would fix her clock if she would come around the counter and let him touch her; held liable because fear was well founded even if he may not have been able to reach over the counter to get to her

3. Privilege Defenses to Intentional Tortsa. Consent:

i. Apparent consent: some how manifesting assent to touching1. Use only outward manifestations of consent: O’Brien v. Cunard: plaintiff

stood in line and presented arm for vaccination shot; defendant not liable because plaintiff outwardly appeared to have consented to shot

ii. Scope of Consent and Fraudulent Consent1. Consents to some contact but may not have consented to the specific

contact that is madea. Mohr v. Williams: consented to surgery on left ear but Dr.

operated on the right ear; patient did not consent to surgery on right ear; Dr. liable for battery

2. Consent given under false pretenses/misrepresentation is not consenta. De May v. Roberts: Dr. brought in man to woman’s birthing room

and woman consented because she thought the man was a medical assistant but instead Dr.’s friend

3. Adults have right to refuse consent even if against doctor’s orders or medical community’s recommendation

a. Shine v. Vega: woman in hospital did not want to be intubated for asthma attack but doctors forced her to be physically restrained and intubated; she died later because she failed to go to a hospital during an asthma attack because she was traumatized from her previous visit

4. Emergency Medical Privilege - allowed to treat without consent if:a. Immediate care needed/emergencyb. Unable to obtain consent (can use family)c. Reasonable person would acceptd. No reason to believe the particular patient would note. Delay would involve a risk of death or serious bodily harm to the

patientb. Self-defense and Defense of Others – similar to criminal rules and application; privilege

to use self-defense with reasonable force to prevent batteryi. Retaliation not allowed: when battery no longer threatens, privilege terminates

1. Original aggressor may use self-defense after retreating from initial conflict

2. Authorized solely to prevent further intrusion that cannot be avoided by waiting for legal redress

ii. Type of force allowed based on reasonable belief at the time (mistake ok)1. Don’t have time to thoroughly assess the situation2. Threats don’t give right to self-defense

iii. Amount of force: reasonably necessary for prevention or protection against battery

1. If amount of force is excessive, then actor becomes a battereriv. Retreat (jurisdictions differ)

1. Restat s65: if threatened by death or serious bodily harm, must retreat before responding w/ deadly force if one can do so in complete safety

a. No duty to retreat in one’s own home2. Restat s63: if threatened by non-deadly force, there is no duty to retreat

even if can do so to avoid harm3. Stand your ground jurisdictions: no duty to retreat regardless of

significance of threatened harmv. Defense of Others: similar to self defense, place self in place of one being

battered1. Two ways to handle mistake

a. “Shoe stepping”: step into the shoes of the person you are defending; only have privilege if the person actually has the privilege; look before you leap

b. Reasonable perception: mistake is ok as long as mistake is reasonable

c. Defense of Propertyi. Can not use deadly force to defend property unless trespasser is committing a

violent felony or trespasser endangering human life1. Katko v. Briney: spring-gun set to defend unused property; plaintiff broke

in to house to steal antique bottles and was severely injured by shot-gun

set by defendant; liable because no right to defend home in person then no right to set up traps

a. Value human life over interest of possessor of land in excluding trespassers

d. Necessity: allowed to commit prima facie tort for the necessity of society overalli. Surocco v. Geary: mayor of SF burned down home in order to try to prevent large

fire from spreading; not liable because private rights of individual yield to interests of society

1. Use a “reasonable belief” standard if there was a mistake2. If private citizen instead of government official, still held to

reasonableness standardii. Vincent v. Lake Erie Trans. Co.: boat caught in storm stays tied up to dock and

causes damages; boat still liable for damages even though captain acted with good judgment and made a prudent choice

1. Boat only private citizens and private property2. Large amount of damage if boat forced out to sea vs. small damages to

dock securing safety of ship and crew3. Privilege to use the dock, but still must pay = incomplete privilege

4. Liability for Negligence: (1) breach of duty, (2) causation, (3) duty, (4) damagesa. Factors relevant to negligence

i. Breach: reasonable conduct under the circumstances; reasonable person doesn’t prevent all harm

1. Blyth v. Birmingham Waterworks Co.: pipe burst after extraordinary freeze and waterworks company not liable because they did what was reasonable under the circumstances;

a. Reasonable does not necessarily mean foreseeable2. Chicago, B&Q R. Co. v. Krayenbuhl: boys foot caught in turntable;

railroad liable because reasonable to keep turntable lockeda. Factors to consider:

i. Character and location of premisesii. Purpose premises used for

iii. Probability of injuryiv. Precaution necessary to prevent injuryv. Precaution vs. beneficial use of premises

b. Negligence formulas: B (benefit) < PL (probability x loss = expected loss) – Hand Formula

i. US v. Carroll Towing Co.: tug boat caused damage to ship but damage would’ve been less if ship not negligent in providing bargee on ship during daylight hours

1. Probability boat will break away (busy port); gravity of resulting injury if does break away; burden of adequate precautions (providing person on board to monitor ship)

c. Applying the reasonable person standard: reasonable care under the circumstancesi. Need to have one standard by which everyone is measured

1. Vaughan v. Menlove: hayrick burst into flames after others warned Menlove of potential danger; liable because a reasonable person under the

circumstances would’ve dismantled/moved the hayrick; didn’t matter that he did his best in good faith

2. Delair v. McAdo: drove on highway with bald tire; have duty to make sure tire is not obviously unsafe; must use a strict standard because high risk of danger to others

ii. Use standard to measure the conduct of the person, not the person themselves1. Even if surgeon performs 300 flawless surgeries, no barring on the 301st if

that one is messed up – only look at 301st surgeryiii. However, can’t license people to ignore facts that they know

1. Reasonable person under the circumstances in light of facts that they know or should have known

d. The emergency doctrinei. Not required to exercise unerring judgment in an emergency

1. Cordas v. Peerless Transportation Co.: taxi driver jumped out of moving car when held-up at gun point by robber; no liable because he acted on a split second decision during a harrowing experience not of his own making that was unforeseen, sudden, and unexpected

ii. Emergency jury instructions may be given depending on jurisdiction1. MA leaves it up to the trial judge whether the instruction is appropriate

e. Persons under disabilityi. Must act as a reasonable disabled person would under the circumstances

1. Roberts v. State of LA: blind employee went to bathroom without cane and knocked over plaintiff; not liable because it was reasonable for blind man to move without his cane

2. Allow adjustment of the standard because it is easy to define a physical handicap, but not easy to define intelligence

f. The reasonable professionali. Impose same objective standard of care for the “ordinary prudent professional”

1. Heath v. Swift Wings: plaintiffs killed in plane crash; standard of case is for the ordinary prudent pilot NOT subjective “having same training and experience as defendant”

ii. How to prove what due care requires? Plaintiff must establish standard of care through expert testimony

1. Boyce v. Brown: plaintiff went for treatment of ankle and treated multiple times to no avail, went to different doctor who performed x-ray and surgery to repair ankle; plaintiff needed to use expert testimony to compare defendant Dr.’s actions against the standard of care

a. Gross negligence doesn’t need expert testimony because jury can tell for themselves

iii. Same or similar community standard: local vs. national1. Morrison v. MacNamara: lab test performed on plaintiff using local

standard of care and plaintiff fainted; court held lab should be held to national standard because they were nationally certified and held themselves out as nationally certified to the public

a. Local standard my foster substandard care, but also may encourage rural doctors

b. Medical standards are nationalized through national board certifications – logical to use national standard

g. Informed consent: duties of disclosure in medical practicei. Doctors must disclose all information a patient needs to make an informed

decision – full disclosure of material facts1. Scott v. Bradford: went for surgery for fibroid tumors and not informed of

a side affect that patient subsequently suffereda. Subjective vs. objective reasonable person

i. Objective is what a reasonable person would have decidedii. Subjective is what the actual person would have decided

1. Good because otherwise the patient’s right of self-determination is lost

b. Causation: lack of informed consent must be the reason patient went ahead with the procedure; but for the surgery, patient would not have suffered side effect

c. Damages: side effect you didn’t sign up for5. Proving Negligence

a. The relevance of custom: custom and trade usage can be used but is not the only authorityi. Must be fairly well defined and in same business as defendant so actor may be

charged with knowledge or negligent ignorance1. Trimarco v. Klein: man injured when glass shattered in shower; plaintiff

wants to prove negligence based on not replacing regular glass with tempered glass as was the proper custom

b. Violation of statute: must use relevant statute legislature created aimed at risk plaintiff suffered

i. Martin v. Herzog: Martin hit by Herzog’s car while driving a buggy, negligence charged against Herzog for not keeping to the right of the road, negligence charged against Martin for not having lights on the buggy required by statute; buggy not having lights was negligent

1. Can’t ignore the voice of the legislature – lights on buggy’s required by statute for the safety of all on the highway

ii. Statute can create a rebuttable presumption of negligence (shift burden of proof)

1. Zeni v. Anderson: nurse walking along snow path instead of sidewalk and hit by car; defendant claims plaintiff violated statute requiring pedestrians to use side walk where available and walk facing traffic where not

iii. Statute can create negligence per se but can be inflexible and mechanicaliv. Statute can be simply evidence of negligence

1. Massachusetts rule – not dispositive even if party doesn’t offer an excusev. Compliance does not prevent finding of negligence

1. Legislative regulations are though to be minimal safetyvi. Violation excused when (not exclusive list):

1. Violation is reasonable due to incapacity2. Doesn’t know nor should know of need to comply3. Unable after reasonable diligence to comply4. Emergency not of his own making

5. Compliance poses a greater riskvii. Violation of regulations might be treated differently than legislative statutes

1. Local ordinance or bylaws given less weight because not enacted by as august a body as the legislature

a. Could be evidence of negligence but not dispositivec. Res Ipsa Loquitur – the thing speaks for itself (license jury to find negligence but doesn’t

require it)i. Foundational facts required: (1) negligence attributable to the defendant and (2)

ordinarily would not occur without negligence1. Byrne v. Boadle: barrel of flour fell on plaintiff’s head from defendant’s

warehouse window; can’t specifically prove how barrel fell but barrels don’t normally fall out of windows on their own

a. Falling is evidence of negligence – more probable than not accident occurred due to negligence

b. Duty of warehouse to make sure things don’t fall from windows2. McDougald v. Perry: spare tire came lose from defendant’s truck shooting

up and hitting plaintiff’s care; a. Res ipsa appropriate because:

i. Would only occur if someone was negligent; no way to prove what happened with direct evidence; accident under defendant’s control

3. Ybarra v. Spangard (CA): plaintiff went in for appendectomy under anesthesia and under care of various professionals ended up with paralysis and atrophy of shoulder muscles; accident one which ordinarily would not occur unless someone was negligent

a. Allowed to use res ipsa against multiple defendants (NOT THE RULE EVERYWHERE)

ii. Circumstantial evidence: inference from surrounding circumstances; infer something from proof of facts to prove negligence; facts inferred from other facts

iii. Res ipsa is only reasonable evidence in absence of explanation by defendant1. Sullivan v. Crabtree: passenger killed when driver lost control of tractor

trailer and ran off road; res ipsa applies because circumstance in defendant’s control and accident doesn’t normally occur without negligence, BUT defendant allowed to make case with evidence that he was not negligent and accident happened because of mechanical failure

6. Actual Causationa. Sine qua non or but-for causation – negligent act must be the but for cause

i. Perkins v. Texas & New Orleans Railroad: plaintiff hit and killed by train at RR crossing; railroad speeding but plaintiff unable to show accident probably would not have happened if railroad had been at the speed limit

ii. Temporal sequence does not prove causation – need to show possible link1. Kramer Service, Inc. v. Wilkins: plaintiff cut on forehead by piece of glass

that fell from transom in defendant’s hotel, and in same spot plaintiff developed melanoma; no causation because need to show a possibility that injury was caused by negligence; must show a direct cause and we don’t know what causes cancer

b. Concurrent and alternative causationi. Each negligent actor is responsible for entire accident even though he might not

be solely responsible1. Hill v. Edmonds: defendant parked in middle of highway without lights

on, car with plaintiff as passenger saw the truck with time to swerve but didn’t, case dismissed because car driver also negligent; overturned because someone else’s negligence is not a defense

ii. Substantial factor test – if there are two sufficient causes, each is treated as the cause of the harm and each is liable

1. Anderson v. Minneapolis Railroad: fire started by defendant merged with fire of unknown origin and destroyed plaintiff’s property; defendant liable even though other fire alone could’ve destroyed plaintiff’s property

iii. EXCEPTION! Not the law! Even though only one person could actually be responsible and plaintiff can’t identify the actor who actually caused injury, can’t escape liability because both were negligent

1. Summers v. Tice (CA): plaintiff and defendants hunting, defendant’s both fired at quail near plaintiff and one pellet hit plaintiff in the eye

a. Burden shifts to the defendants to show that they were not the cause and other actually caused the damage

2. Enterprise liability – group of companies that manufactured substantial share of available supply; an effort to impose liability in proportion to risk created to public

a. Sindell v. Abbott Lab (CA): plaintiff wants to sue defendants who manufactured DES given to plaintiff’s mother and caused plaintiff’s cancer; defendant does not need to show which company manufactured DES

i. Liability might be different than market share but general approximation of responsibility for amount of drug induced damage

c. Problems in proving actual causationi. Loss of chance – negligence increased the risk of harm but not “but-for” cause

1. Herskovits v. Group Health Cooperative of Puget Sound: plaintiff sues for wrongful death when man negligently treated at hospital ER and therefore chance of survival from lung cancer reduced by 14%, man had less than 50% chance of survival from the start; let jury decide

a. Damages only caused a premature death but not all deathb. Could compensate for loss of chance proportionally – get 14% of

damages2. Fennell v. S. MD Hospital Center: decedent admitted for headache, given

CT no seen after and died from meningitis, negligent treatment reduced chance of survival from 40% to 0%

a. Loss of chance not allowed because not more likely than not there was a chance of survival without negligence

ii. Cannot use res ipsa against defendants acting subsequent to each other1. Novak Heating & Air Cond. v. Carrier Corp: plaintiff ordered roof H&A

unit through Yeoman’s distributor, shipped through Yellow Freight, unit

damages and plaintiff sued all three actors; no causation because there was no shared control of the item and plaintiff did not establish either defendant was negligent

7. Proximate causation – defendant actually a but-for cause but we don’t always hold defendants liable

a. Classic positionsi. Responsible regardless of foreseeability if direct cause of injury

1. In Re Polemis: plank fell from ship while unloading cargo causing spark igniting gas vapors destroying the ship; just because action produced an unexpected result does not relieve liability; would have caused damage anyway; traceable to negligent act and not independent cause

a. Not the current law – don’t use direct cause aloneii. Injury outside of the risk foreseen = not liable

1. Wagon Mound No. 1: defendant’s ship leaked furnace oil into the harbor, cotton on top of oil ignited from plaintiff’s dock workers’ welding, fire destroyed wharf and ships docked; not liable because furnace oil igniting while on water was not foreseeable

b. Tort law’s most famous case & unforeseeable consequencesi. Not liable for unforeseeable consequences

1. Palsgraf v. Long Island RR Co: man getting on moving train with box of fireworks, dropped box when guards helped him board the train, fireworks exploded knocking over scales at the other end of the platform fell and injured plaintiff; defendant not liable because “eye of ordinary vigilance” would not have perceived the outcome; not foreseeable that parcel wrapped in newspaper would cause wreckage through the station

a. Dissent: negligence affects everyone not just those with foreseeable injury or danger of injury; foreseeable that objects might fall and we don’t need to foresee the details

ii. Look to relationship between negligent actor and person injured; unreasonably jeopardizing safety of any one who might be affected

1. Many different ways to deal with proximate causea. Natural and continuous sequence, substantial factor, intervening

causes, foreseeability using prudent foresight, remoteness in time and space, actual cause of injury so should be liable regardless

b. Restatement: what risk should’ve been anticipated? Risk anticipated comes to fruition = liability

iii. Foresee nature of harm by the mechanism of way in which harm occurred1. “Rat” case – United Novelty Co. v. Daniels: cleaning machines with gas in

small room heated by heater with open flame and rat soaked in gas caught on fire and ran towards the machine which exploded and killed plaintiff; liable because explosion exact type of accident that was anticipated

a. Doesn’t matter the manner/way in which accident took place – the damage threatened was foreseeable

b. General nature of risk anticipated is the risk that happened2. “Vat” case – Doughty v. Turner: cover of vat knocked into molten liquid

later caused chemical reaction and explosion sloshing molten liquid onto

plaintiffs leg; not liable because splashed by liquid in an unforeseeable manner, injured by different risk than risk created by negligence

a. Risk of physical splashing from lid falling into vat vs. risk of chemical reaction/explosion

c. The “thin skull” rule – negligent actor takes the plaintiff as he finds him; pay for actual injury and not the average injury

i. Bartolone v. Jeckovich: plaintiff suffered minor injuries in 4-car collision but subsequently suffered acute psychotic breakdown, accident aggravated a pre-existing paranoid schizophrenic condition; liable for the injury caused once a tort is established

1. Liable for fragile psyche as well as fragile skull2. Doesn’t matter that plaintiff might have suffered injury without accident

d. Intervening and superseding causes – a court may decide that a later negligent act “supersedes” the prior negligence and therefore refuses to impose liability on the defendant: foreseeability

i. Do not “cut off” liability when injury results from a natural and foreseeable consequence of situation created by defendant’s negligence

1. Derdiarian v. Felix Contracting Co.: plaintiff hit by car at street excavation worksite and burned by molten enamel, defendant failed to adequately secure the work site; defendant argued not liable because intervening car swerving into worksite was superseding cause

a. Risk of intervening act is the same risk which renders act negligentb. Don’t need to foresee the detailsc. Reasonable person would warn of car crashing into work site in the

middle of the street – that’s why construction company was negligent in not providing barricade

ii. Liability may be cut off if act is maliciously committed (with intent) versus negligently

1. Watson v. Kentucky & Indiana Bridge RR: railroad’s negligence allowed gasoline to run into the street, man either accidently or on purpose lit a match and threw it into the gas vapor causing an explosion

a. Shift culpability to the arsonist rather than holding the negligent railroad liable

iii. Liability not extended if plaintiff acted in an unreasonable manner – highly extraordinary

1. Yun v. Ford Motor Co.: plaintiff had spare tire storage installed on back of van and assembly was damage and tire rolled into middle of the highway, drivers dad ran across traffic to retrieve the parts and was killed by car; running into traffic was “highly extraordinary”

a. Dissent: judges shouldn’t make decisions of proximate cause because might be too conservative (or not an average “reasonable” person) so should leave it to jury

iv. Rescuers are foreseeable1. McCoy v. American Suzuki Motor Corp: car in front of plaintiff rolled off

road, plaintiff stopped to help, while helping was hit by a car; rescuer does

not assume the risk and jury can decide if Suzuki proximately caused the injury to plaintiff-rescuer

e. “Proximate cause” can limit liability for other policy reasons despite foreseeabilityi. No liability when it would subject people to too much liability against which no

prudence could guard1. Ryan v. NY Central RR: defendant’s negligence caused fire on their

property which spread to plaintiff’s house and burned it downii. No liability for secondary economic losses – link between defendant’s activities

and economic loss is too attenuated1. 532 Madison Ave Gourmet Foods v. Finlandia Ctr. Inc.: part of wall fell

into street closing 15 heavily trafficked blocks for 2 weeks, stores in area sued due to closure and customers not being able to access their stores; need personal injury or property damage before you can recover for economic losses

a. Owe duty to take reasonable precautions to avoid injury, but don’t owe entire urban neighborhood

8. The element of duty – judge made law: owe duty of reasonable care to fellow citizensa. Liability for failure to act: generally, no duty to act even if person realizes action is

neededi. Primary source of duty = creating risk

1. L.S. Ayres & Co v. Hicks: boy went to department store with mom and got hand caught in escalator; department store owed a duty of care when instrumentality of injury (escalator) was under the defendant’s control; invited in for business purposes therefore owe a duty of care

ii. Secondary source of duty = special relationship1. E.g. common carrier and passenger; innkeeper and guest; temporary legal

custodian and charge (school); occupier and legal entrant onto land; husband and wife, parent and child; induce reliance and rely to your detriment

2. No duty to regulate the lives of private studentsa. Hegel v. Langsam: 17 year old female attended university and

became drug user; university had no duty because not responsible for adult students as no requirement to attend not a nursery school, prison, or boarding school; would be a crime to contribute to delinquent child

3. Duty to warn 3rd party of impending danger may be found in certain situations

a. Tarasoff v. Regents of U.C. (CA): Dr. had patient who threatened to kill his ex-girlfriend, Dr. had him detained but then released and he did kill the girlfriend; imposed duty of care because benefit far outweighs the burden, Dr. in best position to warn because actually aware of the risk; once determines danger, has duty to exercise reasonable care to protect the foreseeable victim of that danger

i. Risk of unnecessary warning is reasonableii. Public interest to prevent violent assault

iii. Only needs reasonable cause to believe violence likely

b. J.S. and M.S. v. R.T.H.: husband and wife lived next door to plaintiffs who visited often, husband sexually abused young girls; imposed duty of care on wife because she had “special reason to know” that a “particular plaintiff” would suffer a “particular harm”

i. Many factors in determining if wife should know (e.g. previous acts)

ii. In society’s best interest and public policy supports protecting children

iii. Balance marriage interest with protecting children from abuse

1. Many options available to uphold duty: warn, stop, monitory

iii. Assuming a narrow duty when you intervene to rescue or aid1. Restatement 324: establishes liability for breach of a voluntary

undertaking if a party undertakes to do something and then fails to exercise reasonable care in a way that increases a third party’s risk of harm

a. Can’t leave the person in need of aid in a worse position than you found them

b. Want to entice rescuer’s without imposing an undue burdenb. Liability for infliction of emotional distress; impose a duty not to inflict emotional

distressi. Intentional infliction – actor liable for distress and any physical harm resulting

despite lack of causing physical harm1. State Rubbish Collectors Ass’n v. Siliznoff: ∆ threatened with physical

abuse if he didn’t pay money or give up trash route collection; could bring claim for emotional distress even though no property damage or physical injury

a. Difficult to determine physical harm resulting from emotional distress, but jury can look to defendant’s acts in causing I.I.E.D.

2. Conduct must exceed all bounds which could be tolerated by society; 3. Use an objective standard: person of ordinary sensibilities in absence of

special knowledge or noticea. Slocum v. Food Fair Stores of Florida: man in grocery store replies

rudely to π’s inquiry (“you stink to me”); conduct must be especially calculated to cause mental damage of a very serious kind; humiliation suffered was not sufficiently intense for stress to be severe

ii. Negligent infliction – emotional trauma suffered by one person who witnesses or learns of an injury to another

1. Impact rule – recovery for emotional distress was proper if the plaintiff also suffered physical injury

a. Historically, first effort to keep the flood of emotional distress claims at bay

2. Zone-of-danger rule: must be close enough to ∆’s negligent conduct to be placed at risk of physical injury, even though not actually touched

3. Dillon Rule: (1) must be near scene of the accident (2) direct emotional impact from the sensory and contemporaneous observance of the accident (3) must be closely related

a. Thing v. La Chusa: ∆ struck π’s child with car, mother neither saw nor heard the accident but told by daughter, son was hit and rushed to the scene; mother not able to recover because was not present at the time of the accident

i. Makes the Dillon factors pre-requisites to recoveryii. Limiting recovery to those who may suffer the greatest

distress4. Resulting physical injury – required by some jurisdictions regardless of

which rule they applya. Daley v. LaCroix: ∆’s car crashed into electrical pole causing a

great explosion causing; emotional distress must be proximately caused by ∆’s negligence; physical harm or illness must be a natural result of fright

iii. Loss of consortium compared – recovery for loss of ability to relate with direct victim of defendant’s negligence

1. Usually only for spousal relationship, but some courts recognize child/parent

9. Damages – compensatory: put person back in the position they would’ve been in prior to the accident

a. Basic types of compensable lossi. Medical expenses, lost earnings and earning capacity, pain and suffering

1. Anderson v. Sears, Roebuck & Co.: woman and baby injured during house fire caused by ∆’s defective heater; court awarded $2M, ∆ filed for new trial or remitter; jury awarded amount within reasonable bounds

2. Use experts to provide testimony as to future wages losta. Richardson v. Chapman: jury awarded $22M and $102K; found

was excessive because jury went beyond expert’s calculations of future medical costs

i. Dissent: medical expenses only showed minimal care; substituting subjective judgment over jury’s weighing of evidence; must “shock the judicial conscious”

ii. Disability vs. loss of enjoyment vs. pain and suffering1. Disability: injured party’s current condition2. Loss of enjoyment: consequences of the condition for THAT person not

the reasonable persona. Absence of opportunity to do things could have done before the

injury3. Pain and suffering: psychological injury suffered as a result of injury

a. E.g. anxiety, frustration due to limitationsiii. Single recovery rule: all damages must be awarded at the time of the trial (past,

current, and future)b. Collateral source payments: jury should still award full costs in spite of insurance or other

relief to π

i. Claimant should benefit rather than tortfeasor1. Montgomery Ward v. Anderson: injured in store and taken to hospital,

store wanted evidence of total cost be excluded as injured didn’t actually pay; discounted medical treatment was a collateral source and not considered by jury

c. Punitive damages: used to punish and deter; sometimes sought by attorney generali. Usually need egregious behavior; used to enforce the law

10. Wrongful death and survivala. History and structure of wrongful death statutes

i. Historically, felony merger meant unable to recover because causing the death of another caused felon killed and assets turned over to the crown

1. Moragne v. States Marine Lines, Inc.: wife able to recover under wrongful death caused by violation of maritime duties; common law creation of wrongful death

ii. Wrongful death: new cause of action created by death of individual due to tortious conduct of another

1. Created by statute in all jurisdictions (except maritime – see above)a. Can be based on intention, negligence, or strict liability

2. Allows damages for the losses suffered by surviving relatives (e.g. loss of economic support or society)

3. Compensates survivors of the decedent, determined by statutea. Close relatives can recover e.g. spouse, children, grandchildren,

parents, brothers and sistersi. Tiers: (1) spouse (2) children (3) parents (4) heir

b. Can be brought by the executor or administrator of the estate, but damages are measured by the losses to the statutory beneficiaries

c. Many statues provide that the recovery does not become part of the decedent’s estate

i. Money goes to the survivors the action is meant to compensate, rather than to pay the decedent’s debts

b. Pecuniary loss rule: only allowed to recover direct financial contributions or services the decedent would have rendered to the survivors

i. Can recover more than simply pecuniary losses1. Selders v. Armentrout: 3 minor kids killed in car accident, parents want to

recover for more than economic losses (which would be almost nothing); in modern family life children have more value than purely economic

a. Dissent: death claims for minor child turned into a sympathy and sentiment contest in the award of money

c. Survival claims: cause of action for personal injury of the decedent survives the death of the π and/or ∆

i. Action brought by representative of the estate of the decedent and recovery goes to the estate

ii. Allow damages suffered by the decedent before death, which she could have enforced personally had she lived

iii. Can bring both survival and wrongful death claims

1. Murphy v. Martin Oil Co.: man burned and survived for 9 days and then died from injury

a. Old rule: survival only if did not die from tortious conducti. Inadequate recovery and lets tortfeasor off the hook

b. Survival includes pain and suffering where as wrongful death does not

i. Recovery goes to estate and not family members directlyd. Defenses

i. Based on conduct of the decedent or beneficiariesii. Comparative negligence

iii. Action before death may preclude other claimsiv. Statute of limitations: limited by statue of foreign forum’s lawv. Wrongful death and survival are two distinct causes of action

e. Drafting a complaint in a wrongful death case11. Joint and several liability – both “but for” causes and both liable for the whole (no excuse that

other person is also the cause)a. Basic principles

i. Each tortfeasor is liable jointly with the others for the amount of the judgment against them, and each is also individually liable for the full amount

1. Plaintiff can collect from anyone or any groupii. Can be liable by:

1. Acting in concerta. Bierczynski v. Rogers: teenagers car racing and hit ∆’s car; both

are liable even though only one car his the ∆’si. Concurrent negligence – both “but for” causes

ii. Agreed to race = working in concert2. Failing to perform a common duty3. Acting individually or independently to cause indivisible harm

b. Effect of a releasei. There can be only one satisfaction

1. Bundt v. Embro: passengers sued owners and drivers; allowed to amend answers when learned π recovered a judgment for same injuries against NY

ii. Partial vs. full satisfaction1. Partial = settlement and release

a. Partial satisfaction is credited to other liable parties2. Full = payment of judgment

iii. Release made in favor of joint tortfeasor does not release π’s right to sue others from same transaction and occurrence

1. Cox v. Pearl Investment Co.: overturned prior rule – didn’t make sense, old, harsh, unrealistic; give contracting parties benefit of intention of contract

iv. Uniform Contribution Among Tortfeasors Act (most jurisdictions)1. Right of contribution only if paid more than pro rata (equal split of

judgment) share2. Give dollar credit for amount of settlement

3. No right of contribution for intentional torts4. Settling tortfeasors cannot seek contribution from others nor visa versa5. Settling does not release claims against other tortfeasors for same T&O

v. Pro rata – settlement counts for tortfeasor’s pro rata (equal split) share12. Contribution among joint tortfeasors

a. Implead other potential tortfeasors if may be liable to ∆ for all or part of the damagesb. Contribution allowed regardless of π’s wishes (Knell v. Feltman)

i. Redistributes the judgment among all tortfeasors after π has been satisfiedii. To seek contribution must prove (1) also a tortfeasor (2) paid more than pro rata

sharec. Cannot seek contribution from potential tortfeasor who settles

i. Slocum v. Donahue: ∆ ran over π’s son, claimed defective floor mat of Ford; π had settled with Ford not in bad faith so settlement stands and indemnification/contribution not appropriate

1. Settler is buying peace of mind from claims relating to the accident; know the settlement that will be required

d. Employer is vicariously liable for employee’s negligence; on the hook if employee acts within scope of employment, but doesn’t release the employee

i. Full reimbursement is indemnification and not contribution13. Contributory and comparative negligence

a. Contributory negligencei. If the plaintiff is negligent at all, then plaintiff cannot recover

1. Butterfield v. Forrester: π riding fast along the road, ran into obstruction place by ∆; π barred from recovery because one person being at fault does not dispense with the need for ordinary care

ii. Why deny recovery?1. Punishment for negligence2. Want “clean hands”3. Encourage due care

iii. Affirmative defense1. Burden is on the ∆ to show π was a part cause of the accident2. Not a defense to an intentional tort

iv. Limiting the impact of comparative negligence1. “Last clear chance”

a. Davies v. Mann: π fettered donkey in highway, ∆ ran over donkey; allowed recovery because ∆ could have avoided the donkey so must pay consequences

b. Comparative negligencei. Adoption – take into account π’s negligence and reduce the judgment accordingly

1. McIntyre v. Balentine: car accident π drunk and π speeding, jury found equal fault but judgment for ∆ because π negligent; TN adopted comparative negligence (modified: π’s fault must be less than ∆’s)

a. Reasons for adoption: already exceptions to hard rule, 11 states judicially adopted, 34 have legislatively adopted, outmoded and unjust

ii. Representative approaches

1. Pure – plaintiff recovers less % of plaintiff’s fault2. Modified

a. Not as great asb. Not greater thanc. Compare plaintiff’s fault to defendants as a group or individually

i. Adding more tortfeasors may drive down amount of fault attributed to plaintiff

iii. Applying comparative negligence1. Absent tortfeasor may be taken into account, but % of fault does not stand

in a trial with π and previously absent tortfeasor; new %s of fault will be assigned

2. Some jurisdictions do not take into account settling tortfeasor’s amount of fault

a. Shantigar Foundation v. Bear Mountain Builders: fire burned π’s barn due to oily rags left by construction workers, π sued ∆ and Cove, settled with Cove; just is not allowed to take into consideration the settling tortfeasor’s amount of fault

i. MA follows Uniform Contribution Among Tortfeasors Act1. Statutory language is clear: “against whom recovery

is sought”2. Apportionment not incompatible with facts3. Legislative intent was not to take into account

settlers4. Want to promote settling

3. Some jurisdictions allow intentional tortfeasor’s fault to be assessediv. Effect on joint and several liability

1. Comparative negligence has no effect on joint and several liabilitya. Coney v. JLG: each defendant is still proximate cause of entire

injury, i. Otherwise plaintiff force to bear risk of insolvent ∆

(especially if π not at fault)ii. Π’s negligence relates to care for his person, ∆’s care is

safety of othersiii. Would have a serious effect on ability of π to obtain

adequate compensation2. Joint and several liability not retained in pure comparative negligence

jurisdictiona. Several liability: ∆ liable for % of damage jury ascribes based on

faulti. Can still use modified comparative fault and ∆ may not be

liable if equal or greater than faultii. No contribution

iii. No credits for settlementsb. Bartlett v. New Mexico Welding Supply Inc.: 3 drivers in car

accident, π sues last driver, court considers 1st driver in apportioning fault

i. Fault is divisible therefore so is the damage1. “Unity” concept is out of date and not needed

ii. π’s bare the risk in π1 v. ∆1 situations so why not when more than 1 defendant

1. No shifting the risk from π to ∆s14. Assumption of the risk

a. Express assumption – agreed to risk in advance by contract, can’t sue when risk occurs; for the most part, enforceable

i. Risk that injured plaintiff fell within the unambiguous terms of the agreement1. Gross negligence, recklessness, intent are not included2. If gross negligence, can survive motion for summary judgment and still

prove caseii. Unenforceable when contract violates public policy and no meaningful alternative

1. Essential services, subway, healthcare, education, utilities, innkeepersiii. Requires plaintiff actually knew of the danger and chose to proceed

1. “Should have known” is contributory negligenceb. Implied assumption

i. Primary implied assumption of the risk is really “no breach of duty”1. Element of risk out of the control of the ∆2. Carefully conducted activity (all due care) that still has risks = ∆ not

negligent and no breach of dutyii. Secondary implied assumption of the risk: π, after becoming aware of the

unreasonable risk created by ∆, chooses to encounter it and suffers injury as a result

1. Π’s choice is secondary to ∆’s negligence2. ∆ will raise implied assumption of the risk as an affirmative defense3. Premise is choice and not fault – π chose to act (assumption of the risk) vs.

fault (contributory negligence)a. Reasonable vs. unreasonable choice

i. Reasonable e.g. saving child’s life in a fireii. Unreasonable e.g. standing next to someone negligently

setting off fireworksb. Can treat choice and comparative negligence or complete bar to

recovery