REMEMBER TO ALWAYS MENTION INTENTIONAL TORTS (harm substantially certain) WITH CAUSATION ANALYSIS, PLAIN OLD NEGLIGENCE!!! offense against offense against TURN OVER EVERY LEAF!!! 1 1 possession 1 ownership 2 2

Battery Trespass Conversion Offensive Battery Assault intentional entry/substantial certainty Conversion requires attempt by 3rd party to claim ownership

DEFENSES TO INTENTIONAL TORTS conversion: converting real P into personal P / treating someone else's P as your own no changing locks, breach

trespass to chattels: vandalism (lesser offense) no intent to harm/claim owner req'd

3 5 5 6 6 of peace 7 7 8 implied consent

(medicine & sports)

insanity (not a

defense)

self-defense (even w/ 3rd party)

defense of property

(only force necessary)

recapture of chattels

(only if no claim of right)

necessity (servant cuts rope

loose)

false imprison-

ment (awareness?)

intentional infliction of emotional distress

Jewelry store no spring guns OK if force/fraud privileged, but Ds shoplifting, missed train STRICT LIABILITY VS. NEGLIGENCE: HISTORY / ANALYTICAL IMPORTANCE

illegal boxing, rule infractions

escape of dangerous substance READ

CAREFULLY!!! 10 11 12 13

Early Cases (e.g. Thorns, inevitable

accident, lighted squib)

Modern Approach (e.g. dogs and stick, Rylands) ultrahazardous activities

American Cases

Rylands/Cairns as reasonable/unreasonable

Recent Hard Cases

Bolton v. Stone (low risk events), epileptic driver

is (1) intention unlawful (2) Δ at fault •Bramwell right to be free of foreign water •Blackburn likelihood of mischief parents not vicariously liable, but special duty? negl.? THE CONCEPT OF NEGLIGENCE if it escapes •Cairns natural vs. unnatural

adults, elderly, children, disabled, mentally ill Batman (foreseeable) Osborne: 1) purpose of statute 2) protected class 3) w/in type of accident 14 ↑ 15 15 17 18 19 21 ↑ 23 23 reasona-bleness standard (haystack)

sudden emer-gency

doctrine

calculus of risk (B<PL)

(bargee)

customary care (TJ Hooper)

custom in

medical cases

informed consent (AIDS blood)

violation of

criminal statutes

dram

statute liability

Res ipsa loquitur (nondele-

gable duty) disfavored including kid saved on train tracks, man dies; powerline/Tel. + conditional also weed

burning near PLAINTIFF'S CONDUCT (things you can do to screw up chances of recovery) res ipsa P boundary res ipsa (1) usu. negl. (2) exclusive control (3) no π contribution 27 29 29 Bernina 30 fellow servant 31 31 π

contributory negl. (speeding

horse, pole)

last clear chance (wagon on tracks, man ran over 3x)

imputed contrib.

negl. (but not even fellow empl.)

assumption of risk (primary, secondary)

arbitration clauses

comparative negligence (e.g., pure, modified)

"community of interest" ↑ vibrating hatchet rack, fellow servant, flopper, ice rink not empl. dangers fishmeal platform collapse no causation MULTIPLE DEFENDANTS (plus vicarious liability)

also not wearing seatbelts 32 Δ only when both definitely contributed 34

direct negl. theory, hostile work environ. e.g. goosing

Joint and Several Liability (differs by state) Vicarious Liability ("Respondeat Superior") (joint enterprise) CA – J&S with contribution – each still 100% liable incl. negl. indep. K doing dangerous work CAUSE IN FACT HMO – apparent/implied authority court as expert witness also ER Dr. / newspaper boy

37 38 38 38 "gatekeeper" 39 40 41 Rescue at Sea (no life buoys,

but causation?)

Statutory Violations

Negl. per se

Slip and Fall (but no Ds for lesser precaution, tub)

Products Liability seat belt 2 theories,

drugs, asbestos

Lost Chance Doctrine

(Herskovits)

Multiple Causes, Apportionment

market share liab 42 Osborne (poison, p. 21); pharmacy overdose Bendectin, exposure?, weird mice studies

jumping to avoid accident PROXIMATE CAUSE AND THE SCOPE OF DUTY concert of action

41/42(Sykes) Cardozo: danger invites rescue 3 theories (1) directness (2) foreseeability (3) harm w/in risk

42 43 43 44 45 43 46 46 fire cases

(usually only 1st house it spreads to)

coincidence tree falls on

speeding train

foreseeable intervention train past stop, rape;

dynamite caps; match gas spill; things stolen from train

Polemis (plank hits

boat) directness

Palsgraf – explosives no duty to

party harmed

until situation stabilized

(e.g. wreck)

Wagon Mound

(foresee-able Ds)

even intentional tort doesn't necessarily break causal chain see also rescue US standard: ATTRACTIVE NUISANCE? SPECIAL DUTIES OF CARE RR Important anytime someone is hurt on someone else's P implied licensee? watchman

harm w/in risk: negl. foreseeable Ds w/in foreseeable type not degree

47 49 foreseeable? 51 e.g. Moch, hydrant 54 (boat loose) Rescue situations Possessors of Land "Gratuitous" Promises Special Relationships

(1) invitee (2) licensee (3) trespasser

increased harm or reliance POCKETS OF STRICT LIABILITY

psych. Tarasoff; disk jockey; college, business, landlord Note: DO NOT apply comparative

negligence analysis to strict liability!!! assumption of risk harm w/in risk, mink Cyanamid Ds, lessor or lessee? 56 57 59 judges decide 62/67

Trespass/Conversion (spleen, wine barrels) Dangerous Animals

dogs, cattle fence range Abnormally Dangerous

Activities (explosives) ? of law Nuisance (Private and

Public) (unreasonable?) requires actual Ds (can be caused by 3d parties, thieves) exception to eggshell skull rule

PRODUCTS LIABILITY (see also causation) usually any substantial harm Design defects/warnings negl. analysis (some juris. allow comparative negl.) components e.g. concrete unreasonable

68/71 cannot sue sub 73 no suit against sub 76 Restatements §402A consumer

contemplation; 3d Rest. negl. analysis Manufacturing and Design Defects, e.g. used, second collision, obvious danger Inadequate Warnings (birth control &

vaccines, sufficiency of warnings) fan in car, VW seat, bulletproof vest, printing press baby oil, do not breathe DAMAGES

Casa Clara – no Ds for pure econ. losses, e.g. D to product itself (salty concrete) – only for D to other P/injury also % likelihood not working

DUTY TO MITIGATE

BE SPECIFIC IN DISCUSSING Ds!!!

78 cook injured: adjust for inflation (discount rate/wages) 79 wanton, reckless apply accurately to facts Compensatory (loss of enjoyment, per diem, taxes) Punitive (1) actual knowledge (2) disregard; BMW paint case

what if…

ear, phlebitis, 2nd vaccine,

kidney transplants, herpes, Dr.

assisted suicide/life

support

2 fires converge; coat on fire, Summers v. Tice (alternative liability); apportionment can be similar to market share liability but definite known contribution e.g. quantity of pollution market share liab. is when actual cause unknown

"ancient lights"; fishermen, no public nuisance (econ losses) but duty; not for natural occurrences e.g. bugs, wind blowing dust from cleared land; no liability for natural conditions of land §363

all of the facts

no duty to rescue unless you create the situation, e.g. wreck, stalled

cars (even if not negl.) or if

you begin to help someone

e.g. sick customer

mean joke, gas man, Dr./people outside in rain, debt collectors, sexual harrasment, not for parodies of political figures Outrageous!!

flour barrel, hotel guests, drunk pilot, cigarette fire, rolling logs, tonsil, escalator, cortisone shots, muscle atrophy, rongeur break (generally all potential Δs must be joined, but not w/rongeur)

oil fire, molten metal on lip (cancer) thin skull π OK

Prospective Economic Advantage Rule: economic losses must be tied to actual physical injury/Ds or no recovery

customer? parent? reasonable care to protect business visitors from 3rd persons/ animals §344