gangsta ass torts outline

8/2/2019 Gangsta Ass Torts Outline

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Torts Outline1. Intent

a. A voluntary purposeful or deliberate act. Or an act done with the knowledge to asubstantial certainty of its outcome

b. If consequence is unlawful = Torti. Ranson: mistaken identity does not negate intentii. Talmage: doctrine of transferred intent

1. D threw stick at a boy, missed the boy and hit the P, he was liablebecause the intent to hit the first boy transferred to the P

2. Doctrine of Transferred intent Even if P is not intended target and Daccomplishes any 1 of the 5 intentional torts that fall under the TrespassWrit, D is liable for that tort (applies to five intentional torts: Battery,Assault, Trespass to land, Trespass to Chattel, False Imprisonment. NOTIIED!)

iii. Mcguire: mental illness does not excuse conduct for an intentional tort, cannotnegate intent as long as plaintiff did not assume the risk

1. Trying to protect the most innocent, nurse in this case is more innocentthan the insane person she was taking care of

2. Intentional Torts

a. Batteryi. A voluntary intentional act which results in the harmful or offensive touching of

anotherii. Designed to protect your person, once the touching occurs, actor is liable for the

consequences that follow.1. If two people meet in a narrow passage way and without any violence or

design of harm, one touches the other gently it will be no battery (NYCSubway)

iii. Fisher: Battery can be the invasion of your personal integrity, snatching a platefrom your hand is viewed as an extension of your body, furthermore the racialslur showed his touching was meant to be offensive

b. Assault:i. Voluntary intentional act that puts another person in immediate reasonable

apprehension of harmful or offensive contact, and with an apparent ability tocarry it out (must be aware). Designed to protect your personal space

1. When actions and words contradict, actions always win, with a blindperson words alone are fine

a. If I say I am not going to hurt you but I cock my arm back as if Iam going to punch you, I have committed an assault

ii. Hill: Just because someone cannot physically touch you, if you are put inreasonable apprehension it is assault.

1. Ex: I know when I swing my bat it will come within three inches of your

head but it will not touch you. You do not know this so when I swing thebat and if you are in reasonable apprehension, I have just committed anassault

c. False Imprisonmenti. A voluntary intentional act that confines a person within boundaries against their

will with no reasonable means of escape and without legal justification.ii. Confinement no reasonable means of escape, if there is a reasonable means,

and P does not know, he is still falsely imprisoned, additionally can be confinedby words but they must threaten your safety, must be immediate and direct threat


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1. If you take an unreasonable means of escape and get injured you cannotrecover under false imprisonment

a. Ex: jump off 20th story of building to escape and hurt yourself,cannot recover under false imprisonment (not reasonable means ofescape)

iii. Designed to protect a persons freedom of movement1. Taking your child this is false imprisonment because the child, the

personal property, is so closely connected it effects your freedom of

movement2. Taking your wallet is false imprisonment, but taking your car keys is not!

a. Taking your wallet restricts your ability to move because withoutany identification the police could arrest you, restricting your abilityto move. The taking of your keys only restricts you from using yourcar but you are still free to move by any other means, therefore thetaking of the keys is not false imprisonment

3. PROPERTY NEEDS TO BE PERSONAL ENOUGH THAT IT RESTRICTSYOUR FREEDOM TO MOVE

iv. Big Town Nursing Home: P checked in to nursing home under the condition thathe could leave when he wanted, when he tried to leave they forcefully brought

him back and confined him in crazy ward and strapped him to a chair multipletimes: FALSE IMPRISONMENT

v. Parvi:P was confined in police car and dropped off at a golf course, he wasunaware/unconscious during confinement so it cannot be false imprisonmentunless he could prove that he was harmed from the confinement

1. Must be aware during confinement otherwise you cannot sue for falseimprisonment. Only exception to this is if you are harmed duringconfinement or as a direct consequential result.

2. If P is harmed directly from confinement (if when he was dropped of at thegolf course a mower chopped his head off he could have recovered basedof off false imprisonment consequential damage/reasonable connection,

but once he wonders into street and gets hit by a car this is not a directconsequence of the confinement.

vi. Hardy: P was escorted to the managers office under a false pretense to bequestioned if she stole from the store, she was never told that she could notleave therefore this was not false imprisonment, furthermore she wanted to stayto clear up this mishap

1. If she was told if you leave you are fired this would not be falseimprisonment because her person was not threatened

2. If you stay voluntarily you cannot recover under false imprisonmentd. Intentional Infliction of Emotional Distress (IIED)

1. A voluntary intentional act that is extreme and outrageous that causesSEVERE emotional harm

i. Severe emotional harm1. Physical manifestations help to prove this, but physical symptoms are not

necessary2. Mere vulgarities will not suffice unless the D is in a power position (ex:

teacher calls student a bitch, doctor verbally abuses patient)ii. Extreme and Outrageous conduct

1. Conduct must exceed bounds that are tolerated by a civilized society


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2. If you told an average person on the street what happened they would sayOutrageous!

iii. State Rubbish Collectors: D told P that if he didnt comply with the unionsdemands D would seriously hurt him, his business, and property. These threatsmade P physically ill (physical manifestation). This was IIED because conductwas extreme and outrageous which caused severe emotional distress (think ofTony Soprano saying if you dont do this you will sleep with the fishes.)

iv. Slocum: P asked D who worked at a grocery store where something was and D

insulted P, she then went into cardiac arrest because she had a prior heartcondition blaming it on Ds insult. It was ruled not to be IIED because it was notapparent that she had a prior heart condition

1. If P would have had a visible pacemaker she could have recovered fromIIED

a. Certain people require more care such as pregnant women, personwith a visible pacemaker. It must be apparent though (it isapparent when a women is pregnant)

v. Harris: P had a stuttering condition; his manager (D) constantly ridiculed him andallegedly made his stutter worse. He was already self-conscious of his conditionand had admitted that bosses made him nervous. Lost IIED case because he

was unable to show how much of the stutter worsened from Ds actionsvi. If you are a family member you can recover under IIED if something terrible

happens to your loved one1. Ex: father is beaten up and you witness, D does not have to know that

you are there but D is still liable because D knows that you will find out.Presence is not necessary, can hear from another room

2. Ex: husband killed in action, his coffin is left at wifes front door when shecomes home to see this, it is IIED

e. Trespass to Landi. A voluntary intentional act that physically invades the boundaries of anothers

land. Do not have to prove actual damages for this tort.

1. Exception: if physical invasion is intangible must prove actual damagesii. Pertains to usable airspace above ground, also pertains to your land

underground1. Exception if you find vein of oil underground on your land, you can follow

the vein wherever it leadsiii. Who can be proper Ps in Trespass to Land tort owner, guests, family members

on property, someone who has an ownership interest (hotel guest, lessee),burglar in some instances

iv. Nuisance different than trespassinterferes with owners use and quietenjoyment of land. In nuisance you have to show damages

1. Every trespass is a nuisance but not every nuisance is a trespass

v. Dougherty: D was a surveyor who physically invaded Ps land, caused no actualdamage but still committed Trespass to land because no actual damage needs tobe shown

vi. Bradley: When airborne microscopic particles are transitory and quickly dissipatethey are a nuisance not a trespass. However when they accumulate on the landand dont pass away they are properly denominated as a trespass but in order torecover, must prove damages

vii. Herrin: D used a shotgun to shoot a bird over Ps land, even though the bird andbullet never hit the Ps actual land, it was a trespass because the bullet passed


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over the usable airspace which interfered with quiet, undisturbed, peacefulenjoyment of the Ps land thus committing a trespass in the very least.

viii. Rogers: D placed snow fence on Ps land with the consent of the P because Dhad a license to do so. Once license expired D had to remove snow fence in itsentirety. D left an anchor of the fence, which P crashed into with his tractorleaving him fatally injured. License allowed defendant to leave snow fence untilsnow season was over

1. Once license has expired, licensee no longer has permission and now

becomes a trespass2. Ex: July would no longer be the snow season3. Privileged entry is limited to time, space, and purpose.

a. Purpose ex: allow handyman on property to fix roof, handymanthen lounges in pool, this is trespass because the handymanmoved beyond scope of invitation

f. Trespass to Chattelsi. A voluntary intentional act, which intermeddles (which interferes with the affairs

of others) with a chattel, which is in possession of another.ii. Liable to a person for trespass to chattels if: chattel is impaired to its condition

quality or value, or physical dispossession of the chattel (must show damage),

deprivation of its use for a substantial period of time, or bodily harm is caused tothe possessor or harm is caused to some person or thing which the possessorhas a legally protected interest.

iii. For trespass to chattels you have to show actual damage, the remedy of which itthe restoration of the chattel before it was intermeddled with

1. Ex: you have a one of a kind car that D takes and crashes you sue forTrespass to Chattel because you want the car back in its previouscondition

iv. Glidden: P was a four year old girl that played with Ds dog and got bit, she suesfor damages, D countersues for trespass to chattels, D is unsuccessful becauseP was too young to be convicted of negligence, therefore she is too young to be

convicted of Trespass to Chattelsv. CompuServe: D sending mass emails to Ps customers using Ps servers, these

mass emails are slowing down Ps servers which is enough to show actualdamage for a cause of action for Trespass to Chattels

g. Conversioni. A voluntary intentional act in which the person exercises dominion or control

such that there is an interference with the owners ownership right to control thechattel

1. Theft = conversion2. Every conversion could be a trespass but not every trespass is a

conversion

3. Treat like you own it4. In conversion, value of damage is the price to get a new one usually

governed by fair market value at the time when it was converted. Youbreak you buy it

5. Acting in good faith is not a defense when receiving a converted item,unless you are a bailee (mailman)

a. Exceptions to bailee good faith exemption: bailee is complicit,when bailee is delivering a good and two people claim to berightfully recipient, if bailee gives the item to the wrong person =conversion


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ii. When P is deciding to sue for either trespass to chattels or conversion, P mustdecide what they want in damages, do they want the personal property restoredto its original condition, or do they want a new one

1. In order for P to have this decision, COA has to rise to the level ofconversion

iii. Pearson: Ds agents broke into Ps office took documents and photocopied themto use a source for a newspaper story. Once done photocopying the documentthe agents put them back in their original condition.

1. Not conversion because they were put back2. Technically a trespass to chattel because they were dispossessed but not

able to sustain this COA because no actual damages occurred. If thedocuments contained nuclear secrets, then damages could have beenproven for trespass to chattels, but documents were mere letters andcorrespondents, this is more like defamation and invasion of privacy

iv. Conversion ex: Jimmy sees a corvette, enters it and attempts to hotwire in orderto steal. He then notices a police car on patrol, he gets out of the corvette andleaves

1. This is still conversion because jimmy exercised dominion and controlwhen he was attempting to hotwire the car.

v. Conversion ex: P has one of kind car; D steals it and then wrecks it. This isconversion, but since P wants the car restored to its original condition he sues forTrespass to Chattels

Comparison Chart

Issue Trespass to Chattel Conversion

What Owner Gets Back Property and Damage Full Value

Who Keeps Chattel Owner Converter

What D. did to Chattel Borrowed/used/return Converts it

Amount of $ Recoverable Amount used of property Full Market Value

Interest Interfered with Temporarily Possessory

right

Control / Ownership

Type of Chattel Involved Regular stuff Everything else

Personal,Independent

Scientific, literary Ideas

3. Privilegesa. Consent

i. A voluntary intentional act in which there is an expression of permission thatsomeone agrees to the act being performed - consent can be verbal, can beactions, or can be silence

ii. Cannot consent to something illegal ever (majority opinion)


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1. Minority Rule looks at the statute and determines who the statute istrying to protect (ex: third trimester abortions, is the statute designed toprotect the mother or the baby? Can consent if statute is designed toprotect mother even though this is an illegal act)

iii. The two most important facts when determining if someone gave consent1. Capacity make sure you are rational state of mind2. Voluntariness making sure you are not under duress

iv. OBrien: P did not pull back arm when doctor went to give P a vaccination, her

action of not pulling back her arm constitutes as consent because a reasonableperson would have pulled arm away

v. Hackbart: (NFL football case) after the play was over D ran over to P when Pwas kneeling down and D elbowed P in the neck. No penalty was called, but thiswas still a battery because even though P agreed to play football he did notconsent to this act, which was outside the bounds of the game. Consent haslimits

vi. Mohr: P is diagnosed by D in needing surgery for infection in right ear. Whileunder anesthesia the D decides surgery is not required on right ear but isnecessary on left ear, so operates on left ear. P did not consent to left earsurgery; this cannot be implied by a doctor. Only time doctor can imply consent

is if the patient is incapacitated and in this emergency setting the consent wouldbe necessary to save the patients life or prevent serious bodily harm

1. This was a battery, because battery protects the integrity of your bodyvii. De May: D brings a person who P believes is a doctor, D knows he is not a

doctor but lets P assume this, P consents to Scattergood being at the delivery (Pis giving birth). When P learns that Scattergood is not a doctor, she sues Dsaying that she did not consent to Scattergood being there. P is successful insuit

1. For P, Unilateral Mistake is a defense for giving consent (D knows the trueidentity, but P does not). Bilateral mistake is not a defense for consent.

viii. Intoxication, insanity, etc play on ability to give consent but they do not defend

intentix. Consent hypos:

1. Identical twins, one with both kidneys failing, the other twin has twohealthy kidneys. Parents consent to the removal of a kidney from healthychild to save other child. Healthy child does not consent, whose consentis superior? Parents consent wins in this case. Usually when child isunder the age of 15 or 16, parents consent is superior.

2. If I tell G I am going to punch him and he stands his ground, is he givingme consent to punch him? Probably not (illegal act)

b. Self Defensei. Self-defense must be proportionate. Shooting someone who is trying to stab you

is okay, but you cannot shoot someone who is pushing you ii. Self Defense must happen the moment you are put in jeopardy and must be

proportionateiii. Mere words cannot invoke self defense there must be an activ. It is okay if you make a reasonable good faith mistake when exercising self

defense1. When coming to the protection of others, the self defense privilege applies

but you cannot make a mistakev. Ex: If aggressor is trying to kill you, and you shoot at him and miss and hit an

innocent bystander, self defense privilege still applies


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c. Defense of Propertyi. Only non-deadly force in authorized (unless you are in Florida)ii. Katko: D had a spring loaded shotgun in his abandoned farmhouse, P broke in

to steal some jars, when he entered the one of the rooms the spring loaded gunwent off and shot P in the leg, causing him to loose part of his leg.

1. D said that having the gun aimed at his leg was reasonable and notdeadly force. Court did not agree, stating that in defense of property youcannot use deadly force or force that will cause great bodily harm

iii. Ex: If intruder is on your property and you see him, so you shoot a warning shot,but the warning shot shoots him killing him or causes great bodily harm, youwould be liable because of the action, regardless if you did not intend to have thebullet actually hit the intruder.

d. Recovery of Propertyi. In todays day you should resort to the legal process to recover your p roperty, but

if you want to do it yourself you have to be in fresh pursuit (limited to promptawareness of dispossession), demand the return on the property, you can alsonot breach the peace.

ii. Hodgeden: D bought stove on false credit, when Ps realized they chased himdown. When they attempted to recover the stove, the D pulled a knife, defense

of property then turned into self defense and proportional force was allowed toregain stove (Ps held D down and beat him up, this was okay because it wasproportional in defending against a person with a knife.)

iii. Bonkowski: P walked out of store, Ds security guard had P return so he couldquestion her if she was shoplifting. Security guard had her empty purse when hefound out that she did not steal anything he let her leave (he had reasonablesuspicion to believe P stole, because another customer told him).

1. P sued for false arrest because of the detainment, court said it was notbecause of the shopkeepers privilege.

2. Shopkeepers privilege: If they have a good faith belief that you arestealing, they can stop, detain, and question person once they leave the

store. Exception, if you are stealing underwear they can stop you beforeyou leave because shoplifter is not going to undress in the public store toremove the stolen items.

a. Detainment requires proportionate force, search must beproportionate (cant do a cavity search if they think you stole abasketball, if male searches female, must be in the presence ofanother female)

b. Must tell you what they think you stole. (If you are in Macys theycant search you for allegedly stealing pills)

e. Necessityi. Public Necessity: a voluntary intentional act that is reasonable to commit a tort to

prevent threatened harm to the public (protects completely against liability).Three characteristics: public interest, reasonable belief action was needed,action took was a reasonable response to the need,

1. Suroco: Ps house was on fire, fire was going to threaten surroundinghomes, D (mayor of San Francisco) destroyed house out of necessity toprotect surrounding buildings. This was allowable under public necessity

ii. Private Necessity: a voluntary intentional act that is reasonable to commit a tortto prevent harm to a private citizen (not a complete defense to liability). Mustcompensate owner of property with fair market value for damages


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1. Vincent: Ds boat was attached to Ps dock during a terrible storm. Boatdamaged the dock, court ruled that D acted in necessity but since this wasprivate necessity, D was liable for damages to Ps dock.

4. Negligencea. Negligence: when the conduct of the D falls below the established standard for the

protection of others against unreasonable harmb. In every negligence case you must prove all 4 elements by a preponderance of the

evidence (more likely than not). The 4 elements are:

i. Duty to exercise reasonable careii. Breach of Dutyiii. Causation

1. Cause-in-fact2. Proximate Cause

iv. Injuryc. Duty

i. When LH+SH>CP = unreasonable risk duty to exercise care existsii. When LH+SHCP, the court held that there was a duty to exercisereasonable care

v. The Standard of Care:1. What a Reasonably Prudent Person would do under the same or similar

circumstances.a. This standard is not subjective but it dynamic, can change

depending on the facts2. Ex: a skier on a black diamond ski run will be judged by what a

reasonably prudent person on a black diamond ski run would do. a. We will take into account extraordinary skills (which can raise the

standard, if you are an Olympic skier), but we will not take intoaccount that you are a beginner because the standard of careestablishes what the minimum appropriate conduct would be in aparticular situation.

d. Breach of Dutyi. To determine breach of duty, must look at Ds actions and see if they fell below

the standard of care (RPP)ii. Vaughan: D built hey rick on one side of his property near Ps cottages. Hey rick

fire spread to Ps cottages and destroyed them. D breached his duty to exercise

the proper standard of care1. Duty exists: LH (hey catching fire) + SH (cottages burning down) > CP

(put hey rick on other side of property)2. Breach: D told P that he would take his chances and leave the hey rick

where it was. A reasonably prudent person under the same or similarcircumstances would put the hey rick on the other side of the property.

iii. Delair: D was driving on highway, when he pulled up alongside P his tire blewout and he crashed into P. There was evidence that the tire was worn throughthe fabric before it blew out. A reasonably prudent person under the same orsimilar circumstance would know to change his tire when it has worn through to


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the fabric. The fact that the D did not do this, his actions fell below the standardof care, therefore there was a breach of the duty.

1. Most people do not check their tires every time they drive their car,however the standard, a reasonably prudent person would check his tiresbefore he drives.

iv. Trimarco: D was landlord to P. When P shut the glass shower door, the glassshattered everywhere. D had not installed shatterproof glass b/c at the time ofdoor installation common practice was non shatterproof glass.

1. LH + SH > CP (installing shatterproof glass)2. A RPP would have installed shatterproof glass, D excuse of saying that is

was common practice of not installing shatterproof glass in not bought bythe court

a. What usually is done may be what ought to be done, what ought tobe done is judged by what a RPP would do. This means that justbecause everyone is doing it, does not mean that it is the right thingto do

v. Cordas: D was driver of taxi, gunman enters his taxi and puts gun to his head. Djumps out of taxi which then hits P.

1. LH + SH > CP (staying in taxi and driving it), however in an emergency

circumstance the standard of care changes, what a RPP in thisemergency situation would do. Because of this D did not breach a duty

2. Reason he did not breach his duty is because RPP under the same orsimilar circumstance would jump out of the taxi to avoid being killed.

vi. Emergency Circumstance1. In an emergency circumstance standard of care is what a RPP would do

under the same or similar circumstance. We take into account anemergency but not if D causes emergency or if D has special training foremergency situations (ex: police officer, bank teller)

2. Ex: (emergency circumstance) breaks on your car go out, due to no faultof your own, you are able to safely jump out of your car, once you jump

out, the car crashes into a parked car. Your actions did not fall below thestandard of care b/c a RPP in this emergency circumstance would do thesame.

vii. Special Standard of Care for people with a handicap1. When using the Standard of Care for someone who is handicap, for

example a blind person, they will be judged by what a reasonably prudentperson who is blind in the same or similar circumstances.

a. Ex: A RPP who is blind would never driveb. Roberts: D was a blind man working at a post office concession

stand for three years, left concession stand to go to the bathroomwithout his walking stick, he bumped into P causing him to fall.

Court held that D did not breach standard of care because a RPPwho is blind under the same circumstance (familiar setting) wouldwalk to the bathroom without his walking stick. Additionally, in acrowded area like the post office, a walking stick could create amore dangerous situation

2. For children: What a RPP who is a child of the same age under the sameor similar circumstances will be the standard of care. UNLESS the child isengaged in an inherently dangerous activity, then the standard of care willbe of an adult


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a. Ex: if a child is driving a car at 100 mph on the highway, this is aninherently dangerous activity that children usually do not engage in,therefore, the standard of care will be of an adult

b. Robinson: D was 13 yrs old, driving a snowmobile, with P beingpulled on the back. Ps thumb caught in towrope and thumb wassevered. D was held to an adult standard of care because whenthe activity a child engages in is inherently dangerous, as in theoperation of mechanized vehicles, the child should be held to an

adult standard of care3. Insanity is not seen as an excuse because you cannot be judged as a

RPP who is insane. Therefore, you are judged by a mentally soundperson.

4. Ex: If you are insane and you wind up driving and crash into someonebecause of your mental disease, this will not be taken into account whendetermining the standard of care. The standard of care will be what aRPP would do who is driving.

viii. Professional Standard of Care1. This standard of care is used for what we traditionally think of as

professionals for ex: doctor, lawyer, accountant, pilot, nurse, architects,

teachers, clergy and engineers2. Standard of Care is what a reasonably prudent person who is in same

profession would do under the same or similar circumstances. Standardof care has two elements

a. A reasonably prudent person in that profession who has all therequired knowledge, skills and training

b. The person applies that skill, knowledge and training as a RPP inthat profession would

3. Heath: D was a pilot who was taking his wife and kid on the plane to goon a trip. Once they took off they immediately crashed and they all died.P (family of wife and child) sued D on ground that his conduct fell below

the professional standard of care. In this case the standard of care waswhat a RPP who is a pilot would do in the same or similar circumstance

4. Hodges: P sued their lawyer for negligence because he served asummons according to a state statute, which was later found to beunconstitutional. Court held that D (lawyer) was not in breach of dutybecause a RPP who is a lawyer in the same circumstance would havedone what D did. It is too much to ask, for a RPP who is a lawyer toanticipate when a court will find a statute to be unconstitutional sometimein the future

a. For a lawyer to be found negligent not only do you have to showthat lawyer was negligent by breaching professional standard of

care, you also have to show that the lawyer would have won thecase that they were representing the P in.

5. Boyce: P went to D (doctor) who placed a screw in her ankle. Severalyears later it began to hurt so she went back to the D, who then wrapped itup. Ps ankle continued to hurt so she went to another doctor who took anx-ray and realized that the screw needed to come out. D was not found inbreach of the standard of care.

a. Reason why D was not in breach was because when the otherdoctor testified at the trial he said that he would have taken an x rayand not just wrapped like the D. But when looking at the standard


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of care that is not important. We need to know what a RPP who isa doctor would do in the same circumstance. Court believed thatnot taking an x ray was not a deviation from the standard of care.This case was tried in 1938.

6. Informed Consent another way to bring suit against doctors. They areinherently difficult, especially difficult in FL, hasnt been a successful casein over 10 years.

7. In a medical malpractice action a patient suing under the theory of

informed consent must allege and prove:a. Defendant physician failed to inform him adequately of a

material risk before securing his consent to the proposedtreatment;

b. If he had been informed of the risks he would not haveconsented to the treatment

c. The adverse consequences that were not made known did infact occur and he was injured as a result of submitting to thetreatment

8. Morrison: rejected locality rulea. Locality rule: when using standard of care it would be what a RPP

who is a doctor in the same local geographic area. It was rejectedbecause of advancement of technology and communication. It iseasy for doctors to find out what the common practice is around thecountry. Additionally, doctors now have to be nationally certified.

e. Negligence Per Se (proving the essential elements are inherently difficult toprove)

i. Duty (The Statute)ii. Breach of Duty (Violation of the Statute)

1. P must be the type of person the statute was designed to protect (intent oflegislature)

2. Injury falls within intent of statute, which statute was designed to protect

iii. Causationiv. Injuryv. Exceptions: there is adequate justification to violate a statute when: there is an

emergency (that you didnt cause yourself), when compliance would causegreater risk to the actors than if the actors were not comply with the statute, orwhen there is a reasonable attempt to comply with the statute but the actorsincapacity makes the violation reasonable

vi. Osbourne: D sold bottle of poison to P without properly labeling it. P theningested the poison and died. P sued because it was a violation of a statestatute to sell poison without proper label

1. Statute was designed to protect people who buy poison (P was this)

2. Statue was aimed to prevent the injury of ingesting poison (P sufferedthis); therefore P can sue using this statute for negligence per se.

vii. Stachneiwitz: fight erupted between drunken patrons at a bar of Native Americandescent and the Ps party. P sustained severe injuries as a result (no one coldattest to how P sustained the injuries), P sued bar based off of a violation of astatute that prohibits the serving of alcohol to any visibly drunk person andprohibits the bar from allowing a drunk, loud, rowdy, etc person from remainingon premises.

1. P was within the class of people designed to protect, his injury was alsothat type of injury the statute aimed at preventing. However, it fails the but


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for causation test. Because we cannot say MLTN but for the serving ofthe drunk person the injuries to the P would not have occurred. Cant saythis because the aggressor was already drunk, therefore the serving of thealcohol is not a cause in fact.

2. Court still held in favor of the P, Flynn believes this is a racist opinionviii. Perry: P (parents of children who witnessed abuse) sued Ds (people who knew

that the daycare was molesting kids). Suite was brought as a negligence per secase because the family code statute stated any person who has cause to

believe that a childs physical or mental health may be adversely by abuse mustbe reported to police. Court held in favor of Ds because they did not want toextend negligence per se to this case because it could cause immense tortliability on people who are extremely removed from the situation

1. Possible reasons for outcome:a. Ps children were not in the class of people to be protected (the

class of people designed to be protected were the actual childrenwho were being molested)

b. Can you say MLTN but for the failure to report abuse the injurywould not have occurred? No and there was no proof they wereinjured.

c. Court made policy argument not to extend this statute to civilliability because the floodgates to tort litigation would become wideopen, this statute is too vague because it says cause to believe.

ix. Martin: The three procedural views on Negligence per se came out of this case: 1. The Cardozo view: Once P proves negligence per se, he automatically

wins the case.2. The Majority view: Negligence per se shifts the burden to the D, D must

show legitimate excuse for negligence per se, if no excuse P wins, if thereis a valid excuse jury must decide if D has legitimate excuse.

3. Florida View: Negligence per se only permits a permissible inference thatthe jury can decide to accept or disregard.

x. Zeni: D hit P when P was walking on the street, D was driving a car. P sued Dfor negligence, D countered suing for negligence per se because was a statuethat stated pedestrians must walk on the sidewalk. Court held in favor of Pbecause they believed P had valid excuse to disobey the statute.

1. Sidewalk was covered in snow and ice, and it would be much moredangerous for P to walk on sidewalk then to walk on the side of the streetwhich plowed

a. This is the exception when a person is allowed to disobey thestatute because complying with the statute would be moredangerous

f. Res Ipsa Loquitur

i. Literally means the thing speaks for itselfii. This is a last ditch effort when you have no evidence

1. Its like going all in all in on the turn and you only have one outgoing to theriver

iii. MLTN this event or incident does not usually occur unless someone had a dutyto exercise reasonable care and breached that duty to exercise reasonable care.MLTN the D was in exclusive control or management of the object causing injury

iv. Once you bring evidence into the equation you move out of res ipsa, res ipsa isall about lack of evidence and it satisfies the duty and breach of duty elementsinside of negligence.


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v. Ex: single car crash into tree, that is all we know. Can you say MLTN single carcrashes occur into trees unless driver was negligent? No. Driver had exclusivecontrol over the car. This is an example of Res Ipsa.

vi. Byrne: P was walking on sidewalk past Ds shop; a barrel of flour fell upon Pfrom roof Ds shop, which seriously injured P. No other evidence

1. Can you say MLTN that barrels of flour fall from roofs unless someoneacted negligent? No. MLTN did D have exclusive control over thehandling of the barrels of flour? Yes. Therefore this is res ipsa.

vii. Larson: P was walking down street when a chair fell on him that came from awindow in a hotel. D (hotel) was not able to be brought on negligence chargesbased of off the doctrine of res ipsa

1. Reason: D did not have exclusive control or management of furnitureviii. Ybarra: P went it in for surgery, when we awoke is right arm and shoulder were

in pain, this led to paralyses of the muscles in Ps shoulder. P sued using thedoctrine of Res Ipsa

1. Cant say MLTN that it was anyone of the health staff on their own, thereis not shared responsibility because each of them do something different.Res Ipsa cant be applied to all of them because one of them would beenough for the injury.

2. Exception: Interdependence of function allows exclusive control to beextended to all of them, not shared responsibility and not jointresponsibility. This only applies to select groups (besides surgery teamsthis has only been extended to bottle cap manufactures, dynamite, anddynamite caps.)

3. Res Ipsa under the interdependence of function shifts the burden to theDs who had any control over Ps body orthe instrumentalities that mighthave caused injuries. Ds will be called upon to meet the inference ofnegligence by giving explanation of their conduct.

ix. Sullivan: P was riding in a truck that swerved off highway and overturned whichkilled P. P sued D (driver) using Res Ipsa; P claimed that Res Ipsa required jury

to find for P.1. Court held that Res Ipsa merely case for injury and permits the jury to

choose the inference of res ipsa or disregard it.x. Turkey example from class

1. 9 moms made 9 separate turkeys. Some of the moms made a turkeysalad using all 9 turkeys. P got ill from eating the turkey salad. Can Phold all 9 moms liable under res ipsa

a. No, cannot hold all 9 moms liable under res ipsa because it is justas likely that it could be anyone of them. Can hold the some ofmoms liable that made the turkey salad because they had concertof action of making the salad. MLTN does someone get sick from

eating turkey salad unless someone is negligent? No. Did thesome of moms have exclusive control over the making of the turkeysalad? Yes. Hence the some of the moms can be held liableunder Res Ipsa.

xi. Theories to prove exclusive control with Res Ipsa when there are multiple Ds1. Vicarious liability: employer/employee or principle agent has to look at

employees in scope of employment or that agent is acting under directionof the principle

2. Concert of Action: when all the parties are doing the same thing (turkeysalad example)


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3. Interdependence of function: (Ybarra), all wrongdoers are dependentupon each other

4. Shared Responsibility: More than one person led to the injury without theability to identify the wrongdoer.

5. CAUSATION:a. Cause in Fact: Its essentially proving cause and effect (you never get here unless you

have already proved duty and breach of duty). It can be an act or omission.i. Cause in Fact Test for a single defendant:

1. (THIS IS THE BEST TEST) MORE LIKELY THAN NOT, BUT FOR, thedefendants breach of duty, injury would not have occurred.

a. Ex: P walks and slips on Ds slippery floor b/c it hasnt beencleaned. Can you say, more likely than not, but for the Ds failureto clean the floor, P wouldnt have fallen? YES, because the floorwould not have been slippery if D cleaned it up earlier.

2. (THIS IS 2NDBEST) MORE LIKELY THAN NOT, Ds breach of dutyMULTIPLIED OR INCREASED THE RISK of injury to P.

a. Ex: D is a landlord in a bad neighborhood who doesnt installdeadbolts on his tenants doors, only has a flimsy bathroom doortype lock. P is a tenant, and their apartment gets broken into. You

cannot say, more likely than not, but for the Ds not installingdeadbolt, the Ps apartment would not have been broken into. Butyou can say, more likely than not, the failure of D to install adeadbolt increased or multiplied the risk of Ps apartment gettingbroken into. You can say this because not having a deadboltmakes it easier for someone to break in.

ii. Cause in Fact test for MORE THAN 1 Defendant:1. MORE LIKELY THAN NOT, BUT FOR BOTH Defendants breach of duty,

the Ps injury would not have occurred. NEITHER one alone is enough tosatisfy the but for test, need both Ds.

a. Ex: D1 hits D2s car, D2s car swerves into oncoming traffic and hits

P. Need both Ds actions to injure P. You can say, more likely thannot, but for both the Ds breaches, P would not have been injured,because in order for P to have been hit by D2s car, you needed D1to first hit D2.

2. MORE LIKELY THAN NOT, BOTH DS MULTIPLIED OR INCREASEDRISK OF INJURY to Plaintiff.

a. Have to show that each D is a substantial factor in causing theharm. EITHER one alone is enough.

b. Ex: 2 fires merge and burn down Ps house, but dont know whichb/c they merged. B/c either one alone is enough, you cant use butfor test here, but you can say, more likely than not, the two fires

that merged multiplied or increased the risk that Ps house wouldburn down.

iii. Exceptions to cause in fact test1. Only use when other tests do not work. These exception tests are only for

multiple Ds.a. Summers v. Tice test: P was shot while hunting when D1 and D2

both shot in Ps direction, and one pellet hit him in the eye.i. Can you say, more likely than not, but for shooter 1, P is not

injured? NO (same for shooter 2). Can you say, shooter 1alone multiplied risk to P? NO, b/c one bullet hit him (same


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for shooter 2). Can you say but for both, P would not havebeen shot? NO, b/c one bullet hit him. Can you say, morelikely than not, both Ds increased the risk of Ps injury? NO,b/c only one bullet hit him.

ii. Join all possible Ds and show more likey than not, one ofthem caused the harm. Once that is done, the burden shiftsto Ds to show that it is not them. Ds would need to showthat they didnt cause the harm. Must make sure that these

are the only people who could have committed the tort.b. Enterprise liability: product that caused injury manufactured by

small number of Ds. Have to get them all into court. This hardlyever happens.

i. Ex: there are only 3 companies that make a drug so mustget them all into court.

c. Market Share liability: P must sue enough manufacturers to covera majority of the market. Each manufacturer is then responsible fortheir percentage of the market.

i. Ex: Sindell:Ds covered 90% of market, so could sue all ofthem and they had to pay their %.

1. Problem is that you have to get a large enough shareof the market and a large enough field.

iv. Perkins: P was passenger In car, the car entered the railroad tracks at 6:02 am.Ds train hit the car, killing the P. Train was traveling at 37 mph when it wassupposed to be traveling at 25 mph. P sued based off the fact that train wastraveling too fast and therefore hit P. Court said there is no cause in fact b/ceven if the train was traveling at 25 mph, it still would have hit the P.

1. More likely than not, but for the train traveling at an excessive speed, Pwould not have been injured. Cant say this, b/c he still would have beenhit at 25 mph.

a. Flynn says the court is full of shit, b/c if they were traveling at 25

mph they would not have been at that intersection at 6:02am.v. Reynolds: P was a fat lady, who was walking down unlit steps that had no railing,

and she slipped and fell while rushing to catch Ds train. You cant say morelikely than not, but for Ds failure to light and put handrails on the stairs, P wouldnot have been injured (P could have still fallen, people slip down stairs all thetime). But, you can say, more likely than not, the failure to put hand rails andlight stairs multiplied or increased the risk of injury to P, b/c without theseprecautions, it is more dangerous to travel the stairs.

vi. Gentry: P was visitor on friends farm. Mr. Bacon was walking to a staircase inDs house carrying a loaded rifle. When he went to ascend the stairs, he fell andaccidently shot P in the head and killed her. P brought suit against D b/c D had a

hole in one of the stairs, P alleges this is what caused Mr. Bacon to fall and shoother.

1. But for and increased the risk test do not work here b/c there is a lack ofevidence. The court only knows that Mr. Bacon fell when he was about toclimb the stairs, but dont know why. Therefore we cannot say more likelythan not that the hole in the stairs caused or increased the risk of injury

vii. Kramer: P was injured by a piece of glass that fell from Ds hotels ceiling whichcut Ps head. The cut didnt heal and P developed cancer on that same spot. Hesued D saying that the glass that fell from the ceiling caused cancer.


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1. Cant say but for the glass falling and cutting Ps head, P would not havegotten cancer b/c the cause of cancer is unknown.

2. Cant say that the glass falling from the ceiling and cutting Ps headincreased or multiplied the risk of cancer, b/c the cause of cancer isunknown.

a. The fact of the injury is never cause in fact. You are confined towhat you can prove. Association is not causation. If P would havesued for damages for the cut received from the glass falling from

the ceiling, this would have been easy to prove using cause in fact. viii. Herskovits: Ds failed to diagnose Ps wife with lung cancer on first visit. b/c of

this, Ps survival chances dropped from 39% to 25%. Can you say, more likelythan not, but for Ds failure to diagnose lung cancer on the first visit, she wouldhave survived? NO, b/c at that point she still had 35% chance. Same thing withthe increased risk test. But you can say, more likely than not, but for Ds failureto diagnose Ps lung cancer on the first visit, the P lost a chance a survival. Cansay the same thing for multiplied risk test.

1. Loss of chance can be measured in cause in fact and is accepted in tortlaw.

ix. Concurrent Causes:

1. Anderson: fire which caused by Ds negligence merged with another firethat was caused by unknown origins. Ps house was burned down fromthis fire.

a. Cant use but for one test, b/c either one could have done it, andcant use but for both test b/c either one could have done it alone.

b. Can say, more likely than not, both fires increased or multiplied therisk of Ps house burning down, b/c both were contributing factorsand either one more likely than not could have been enough.

b. PROXIMATE CAUSE:i. How far do we extend liability?ii. You never get to proximate cause unless you have proven duty, breach, and

cause in factiii. 2 ways to construct argument for PC, CARDOZO and ANDREWS approach.

Must do both on exam.iv. CARDOZO approach (FORESIGHT APPROACH):

1. Look from Ds original act to see what is foreseeable2. Ask would a RPP in Ds position at the time of the act would foresee Ps

injury.3. The court stands in Ds shoes in time of the act and looks forward to see if

injury was foreseeable.4. Steps of analysis:

a. Determine Ds breach

b. Characterize risk of that breachc. Determine the zone of danger

i. Zone of danger is anything that is at risk from Ds breach d. Determine if the zone of danger includes the P

i. If P falls within zone of danger, that means injury to P isforeseeable and therefore D is the proximate cause of injury.

v. ANDREWS approach (HINDSIGHT APPROACH or chain of events):1. is there an intervening act?2. If there is you want to look at it from Ps perspective


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3. The court stands in shoes of P at the time of incident and looks backwardsat Ds breach of duty to see if there is an unbroken chain of events

4. Look at remoteness in time, space and distance5. Steps of analysis:

a. Look for any intervening acts. Is there a presence of such an act?i. Start at P and go backwards and determine what constitutes

an intervening act. If there is an intervening act thatsupersedes, it will break chain of events and D will not be

liable.b. Remoteness of time, space, distance

i. Time: want to look at the breach of duty and this is time onthe clock (seconds, minutes, hours; the longer, the moreremote and therefore LESS LIKELY to be the proximatecause.)

ii. Space: tangible objects between the P and incident. Forexample, chair in between.

iii. Distance: actual distance that is between the breach and theinjury.

iv. Public policy: a higher set of standards. This determines

whether you should or should not hold D liable for breach ofduty.

1. Sovereign immunityv. Common carrier? Held to a higher standard.

vi. INTERVENING ACTS to determine if intervening acts are foreseeable, useCardozo analysis from original Ds perspective to determine if act and/or injuryare foreseeable

1. Act of god: act and injury have to be unforeseeable to supersede originalactors liability.

a. Ex: hurricane in FL is foreseeable, but an earthquake in FL isunforeseeable b/c it never happens.

2. Negligent act: act and injury must be unforeseeable for this type ofintervening act to supersede original actors liability.

a. Must do mini analysis on the elements of negligence.3. Criminal/intentional act: only act has to be unforeseeable to supersede

original actors liabilitya. Must do a mini analysis of the intentional act, for example, if

intentional act is a battery, must define battery first.4. Lawful act: both act and injury need to be unforeseeable for act to

supersede original actors liability.5. Strict liability: the act and the injury need to be unforeseeable to

supersede Ds original actors liability.

vii. Intervening act cases:1. Derdiarian: D1 is contractor of construction site, who negligently failed to

put up barricades around work site which was a hole on the side of a road.D2 is driver who negligently failed to take his seizure medicine and had aseizure, drove into work site, hitting P which caused P to fly up in the airand then land in molten hot enamel, which lit him on fire, but P survived.

a. D1 contended that D2s action should supersede D1s negligent actof not putting up barricades. Court did not agree b/c standing inD1s shoes, it is foreseeable that not installing a barricade aroundthe work site would make the workers inside the hole at risk to cars


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that lose control and drive into hole. Since this act is foreseeable,the intervening act does not supersede and therefore D1 is stillliable.

2. Watson: D railroad was negligent in securing a tank car full of gas whichderailed and spilled gas onto the street. A person lit a match and it fell onthe gas, causing an explosion which injured P. it is contested whether theperson who dropped the match did so intentionally or accidentally. Courtheld that this needed to be determined in order to decide if this intervening

act was unforeseeable and therefore superseded. If this was a criminalact, court said that it would supersede b/c D could not foresee thatsomeone would purposefully light the gas on fire.

3. McCoy v. American Suzuki:a. Defines rescue doctrine: allows injured rescuer to sue the party

which caused the danger requiring the rescue in the first place.i. If you are a rescuer, your injury is always foreseeable and

therefore PC is easy to prove. Property loss in the course ofa rescue is foreseeable as well.

ii. Doesnt apply to emergency personnel b/c theyre beingcompensated already.

iii. Cardozo: peril invites rescueiv. If you have a good faith belief that someone is in peril and

you go to rescue and get injured, even if they were not inperil, you can still recover under the rescue doctrine b/c youhad a good faith belief.

v. With intervening acts, malpractice is always foreseeable, butgross malpractice is not.

1. Ex: you go to hospital b/c of injuries from D, doctoraggravates injury b/c of malpractice. This does notsupersede b/c its foreseeable. You go to hospitalfrom injuries to hand and they amputate your leg.

This is gross negligence and supersedes.6. Joint Tortfeasors

a. Liability and Joinder of Defendants:i. Bierczynski v. Rogers (concert of action): D1 and D2 were involved in an auto

race. D1 hit P, P sued both Ds. D1 wanted to be excused from the suit b/c hedid not cause any actual damage to the plaintiff. Court held that D2 could not beexcused b/c his action of racing w/ D1 made this a concert of action case, D2was needed for the actual injury b/c if D2 wasnt involved, they would not havebeen racing, which was the cause of the accident. Both are liable for the entireamount, so P can choose to only seek money damages from one, and one wouldbe responsible to pay for everything, even if the person being sued didnt do the

damage. This means that this D could make a contribution claim against theother D to extent that they are allowed

1. Joint and several liability: when P sues both Ds when joint and severalliability apply, this means that P can receive entire damages from one ofthe Ds even if they are not solely responsible for the action. P should goafter D with the most money.

a. When acting in concert (concert of action), even though oneactually caused the injry, they are both jointly and severally liable.


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b. Joint and several liability applies in concert of action cases, orin the circumstance of shared responsibility, or indivisibleinjury

i. Shared responsibility: vicarious liability, employee/employerrelationship, both Ds could have shared responsibility whenthere is not concert of action. Ex: store owner in a shoppingmall and shopping mall owner, sign is hung out of store thatfalls onto a walking pedestrian.

ii. Indivisible injury: death is most common indivisible injury.Ex: P is killed when one car runs over him and another carruns over him. Both Ds would be joint and severally liable.

iii. For Ps joint and several liability is great b/c its easier torecover.

iv. FL no longer has joint and several liability, you pay to yourpercentage that you are at fault. Most states do not have

joint and several liability anymore, must have D pays % thatthey are at fault.

b. Satisfaction and release:i. Bundt v. Embro: D1 (driver of the first car), D2 (driver of second car), and D3

(contractor repairing highway and negligently obstructed view of the sign). Psues all the Ds. P fully recovers against D3, then tries to recover again fromD1&2. THERE CAN BY BUT ONE SATISFACTION. Once you fully recover, youcannot recover again. Doesnt matter which D pays.

ii. Cox v. Pearl Investmment Co.: P slipped and fell at Goodwill, Goodwill agreed topay P $2,500 if P agreed to sign covenant not to sue w/ goodwill. P then suedowner of the building for the additional money that it wanted. The building ownerclaimed that the covenant not to sue barred P from suing building owner. Courtheld that covenant not to sue only applied to goodwill, not building owner.

1. Covenant not to sue is only applicable to the parties in the agreement. Inthis case, P and goodwill.

iii. Release: a extinguished agreement:1. Old rule is if you sign a release w/ one D, it applies to all Ds. So, P better

have received enough money before signing this b/c once you sign, yourescrewed as a P.

2. Modern rule: if you release D1, havent released other Ds, only releasedD1.

3. Only way release can become void is through fraud.c. Elbaor v. Smith

i. Mary Carter agreement: essentially fraud, no longer legal.1. P agrees to settle w/ one D, and P then sues other Ds. if P gets the

amount of money that they want form other Ds, the D that signed the

mary carter agreement is repaid by the P.2. High/Low: P and Ds meet before trial, they agree that P is guaranteed a

low amount and if P wins in court, they are limited to the high amount inthe agreement. These are legal.

a. Ex: P agrees w/ D if they lose the case they will receive $100K, butif P wins the case, no matter how much the jury awards P, P willonly receive $500K.

d. Contribution & Idemnityi. Knell: P sued taxicab owner for injuries sustained in a car accident. Taxi cab

owner then sued driver for contribution, claiming that driver was negligent in


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driving. This can be done in one lawsuit, or two, depending on what D wants todo.

1. Contribution is the right of one joint tortfeasor to sue the other for aproportionate share. This is among negligent tortfeasors (does not applyto intentional torts).

2. Idemnity: 100% contributiona. Ex: if youre injured in a car wreck, insurance co. will pay you all

your damages. This is usually done by contract.

e. Bruckman v. Pena: P involved in an accident where 1st injury of 1st accident wasaggravated. 2nd accident occurred a year later, we now have 1st injury and a 2nd injury.In order for P to recover from driver of the 1st car that caused 1st injury, P needs toapportion damages to the injury from the first accident in injury to 2nd accident.

i. Ex: if arm was injured in one crash, and a year later arm was further injured dueto weakened condition, P will have to show what portion of the injury is due toD1s accident. This is how P will be able to recover proper damages from D1.

f. Mitchie v. Great Lakes Steel: Ps are 37 people from 13 diff. families. D are 3 factoriesacross river emitting pollution. If it is all the same type of pollution, it is easy and this isan indivisible injury and Ps are jointly liable. However, the pollutants are all differenttypes, so it makes it much more difficult to show which D is liable for injury.

i. Sometimes torts will call this concert of action so P will recover. However,indivisible injury is the easiest way to go. If P is sick, it is an indivisible injury. AllDs contributed to this, so they are all liable. Ds will counter that the sicknesswas not due to their pollutant.

7. FAILURE TO ACT: this could be negligence. This is complete omission of action of somebodywho had a duty to act.

a. Usually the duty to act is established by some type of special relationshipi. Ex. Emergency room doc does nothing when a patient is brought in with a

gunshot wound, or parent who doesnt save child when drowning in a pool. b. Hegel v. Lansgam: girl goes to college, gets involved with wrong crowd, and becomes a

major slut. Parents sue the university b/c they did nothing to stop this (failure to act).

i. Court does not buy the parents argument, no duty by school to make suredaughter does not become a slut.

ii. This case is very different from a university not properly securing the dorms, andpeople who live in the dorms are harmed. University has a duty to keep theirschool safe, but not to be a nursery school to make sure students behave.

c. Ayres: kid was on escalator, got his hand caught on Ds escalator. D did not stopescalator for a considerable time period, making childs injury much worse.

i. There are circumstances where a duty is imposed to help (as in the presentcase, D needed to act swiftly to turn escalator off)

ii. Certain special relationships define when there is a duty to act, usuallyrelationships built on trust. These are: common carrier/passenger, innkeeper and

guest, temporary legal custodian and child, occupier of land and entrant ontoland (trespasser, licensee, invitee), or if you put someone in greater peril thanthey were originally.

8. NIED:a. Can claim emotional distress from negligent acts. Emotional distress damage is called

a parasitic damage. It is connected to physical injury. All states allow this.b. Question arises when there is a claim of emotional distress from negligence when there

is no physical damage.


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c. Daley v. La Croix: D flipped car, hit a pole, caused an electric explosion which thencaused physical property damage. But, P, who was never physically injured, claimsemotional nervousness and other fucked up shit.

i. 5 diff ways a court could handle this:1. Absent physical injury, cant recover for NIED. This is most conservative

approach, but can screw over people who actually suffered emotionaldistress.

2. Whatever you can prove you can get. Does not matter if there is physical

injury. Usually requires medical testimony.3. If you have physical injury, you can prove emotional distress4. Even without physical injury, if you can prove physical manifestation of

emotional distress, then you are allowed to recover (ex: twitch, insomnia,etc.)

5. Even if there is no physical injury, if you can show physical impact, thenyoure allowed to recover (ex: impact can be dirt kicking up. In one case,it went as far as dust. FL is under this approach)

ii. Thing v. La Chusa: P mom was told by daughter that her son was hit by avehicle. She ran to the scene shortly after and sees son lying on the streetbloody. She claims ED.

1. NEARNESS NOWNESS CLOSENESS: if you fit nearness, nowness,closeness, you will be able to recover for ED as bystander.

a. Nearness: 3rd party actually viewed it at the time it occurred orcame upon the scene reasonably promptly, must have physicalnearness.

b. Nowness: contemporaneously with the actual observation, theperson suffers emotional harm (emotional harm happens when theysee it.)

c. Closeness: family relationship, relationship must be familial, cant bea fiance or significant other.

d. Exceptions to this is handling of dead bodies. This is the stretching

of the nearness element. Also, telephone calls (ex. A doc fucks upand says you have AIDS via telephone, and then calls back andsays OOPS!)

9. Owners and Occupiers of land:a. There is a limitation on the duty element with regard to property owners.b. 3 types of people when they are on your property.

i. Trespassers: dont have permission to be there.ii. Licensees: have permission to be there, but reason for being there is not of

benefit to the landowneriii. Invitees: customer in a store or someone in a public park. The person who

primarily benefits from an invitee is the person who invited them. Ex. Nova with

me, they get my fucking $.c. When we look at this duty, can divide it into 3 categories: natural conditions on the

property (river, lake, etc), artificial conditions (anything added to land, e.g. merry goround), and activities (e.g. sports being played on land)

d. Taylor: tree falls onto public road, and P runs into it.i. With trees that fall outside of your property, the only duty you have is not to

intentionally injure someone.ii. If property is next to a public roadway, you have a duty to exercise reasonable

care not to have it fall down. This is an exception.


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1. Duty to exercise reasonable care not to have tree fall down depends onfacts. If tree has exterior signs of rotting, then you need to do something.Owner has a duty to look, or duty to observe.

e. Salevan v. Wimington case:i. With an artificial condition, must exercise reasonable care. in this case, there

were several fly balls flying out of the baseball park every day, so fence neededto be built higher. They may have to build it higher again if the firstreconstruction proved to be insufficient.

ii. No clear answer, have to keep exercising reasonable care.iii. With artificial conditions, owner has duty to exercise reasonable care to people

outside the property. With natural conditions, it is just to people on the property.f. ON THE PREMISES: trespassers:

i. What is the duty of care in regard to trespasser?ii. No duty owed to trespasser, just that you cant intentionally injure them.iii. Duty is when you discover them, must warn them of hidden or concealed

dangers that owner actually knows of.1. To constitute a hidden or concealed danger, it would not be apparent to a

reasonable person.iv. If trespasser is a tolerated trespasser (kids cutting through your grass on a

regular basis), they are treated the same way as a discovered trespasser.v. Note: the above info is for natural and artificial conditions. As to activities, it is

reasonable care.g. ON THE PREMISES: licensees

i. Primary purpose of being there is not the benefit of the landowner, e.g. socialguest.

ii. Theres a duty for property owner to warn of concealed dangers that owner knewor should have known through the exercise of reasonable care.

iii. Duty to discover hidden danger, but dont have to fix it, just have to warn them(with an invitee, its different, b/c you would have to fix it eliminate the risk)

iv. MUST WARN A LICENSEE OF HIDDEN DANGERS that through the exercise of

reasonable care you would know of. This is for artificial and natural conditions.v. Barmore: keeping the son in the basement was considered an artificial condition,

and D through the exercise of reasonable care, could not have known that crazyson would have come up and stabbed him b/c he hadnt done something like thisbefore.

vi. For licensees, must warn of dangers you would have found if exercisingreasonable care.

h. ON THE PREMISES: Inviteesi. If the person could buy something, then they are an invitee. Ex. If you walk by a

store, you have a chance of buying something, which makes you an invitee. Thismakes the category of licensee shrink.

ii. If you ask business owner to use the employees only bathroom, you are alicensee while in the bathroom, and an invitee the second you leave it.

iii. Natural and artificial conditions duty to exercise reasonable care. within theduty, have to warn or make safe any concealed dangers that you know about,and have duty to discover.

1. Must fix the danger.i. Children: only issue is when they are trespassers

i. Attractive nuisance doctrine: landowner always has a duty to discover kids whoare trespassing, and a duty to exercise reasonable care to discover kids.


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ii. Even through exercise of reasonable care, landowner could nto discover that kidwas trespasser, then landowners duty of natural and artificial stuff is attractivenuisance, but as to activities its still duty to exercise reasonable care. for thisattractive nuisance doctrine:

1. Iook at the things that attract kids2. Could a landowner through reasonable care determine that a child would

be lured into the condition.3. The kid who is lured would not appreciate the magnitude of the risk

involved.iii. If these 3 are met, then the attractive nuisance doctrine applies, and reasonable

care must be exercised.iv. 2 exceptions to the attractive nuisance doctrine:

1. Only covers artificial condition2. The open and obvious danger

a. You will not be responsible for the open and obvious dangerousartificial conditions in the eyes of a child.

10. WRONGFUL DEATH statute:a. Wrongful death: if D is the cause of death, the survivors have a right to bring a wrongful

death lawsuit. Minor children, wife, dependent parents, these types of people will be

enumerated in the statute. Beneficiaries cannot sue under emotional distress or anyother non-economic damages of the dead person (the emotional distress of the victimwhile he was lying in pain before he died). Ex. Im run over by a car and I die. My wife,kids and parents now have an action against D who killed me under the wrongful deathstatute. However, they cannot sue for my emotional distress.

b. Wrongful death claim. Can recover for the emotional distress of the survivors (loss ofconsortium or companionship). Survivors can sue for economic loss too, which is thecost of support of the surviving spouse. They can also recover funeral and burialexpenses. Minor child in FL for wrongful death is 25 or younger.

c. Survivor claim: if a doctor malpractices on me, and I have a claim for malpractice, and Idie (not b/c of the malpractice, but because of something else) my claim survives, b/c it

wasnt a negligent act of the doctor that killed me.i. Ex. I had malpractice done on me, I now have ailments, but then I am hit by a

bus.1. Claim against bus driver would be wrongful death claim brought on by

beneficiaries. And, the malpractice claim that didnt kill me is a survivorclaim.

d. Contributory negligence on the part of the decedent is available in both actions wherecontributory negligence of the beneficiaries in a wrongful death claim would also beavailable.

11. CONTRIBUTORY NEGLIGENCE: This is negligence on the part of the plaintiffa. Conduct on the part of the plaintiff is called contributory negligence (contributory

negligence defines conduct on the part of the plaintiff that is negligent TERM OF ART)b. Butterfield v. Forrester: D negligently left a pole in the middle of the road, and plaintiff

riding his horse in full speed rode right into the pole.i. Intervening act in this instance is the plaintiff crashing into the poleii. P was contributorily negligent b/c he wasnt paying attention when he hit the pole

in the middle of the road. (must do whole negligent analysis when doingcontributory negligence)

iii. To determine if contributory intervening act supersedes, do normal interveningact analysis (foreseeability from original D using Cardozo approach)


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c. The majority rule is that contributory negligence is not a bar from recovery, it iscomparative.

d. Comparative negligence defines how much everybody has to pay. Ex. D 60%negligent, P 40% negligent.

e. Last clear chance doctrinei. This doctrine applies to jurisdictions where contributory negligence bars Ps

recovery. This is the exception.ii. if P can show more likely than not that D had the last clear chance to avoid the

injury to the P, then the contributory negligence on the part of the plaintiff will notbar Ps recovery.

iii. Ex. (HELPLESS P): P faints as crossing the street (neg. b/c didnt take meds), Ddriving and runs over P (negligently driving)

1. Observant Defenant: saw P in the middle of the road so had LAST CLEARCHANCE to avoid injury P NOT BARRED FROM RECOVERY

2. Inattentive D: if D had exercised reasonable care and saw helpless P, heHAD THE LAST CLEAR CHANCE to avoid injury to P P NOT BARREDFROM RECOVERY.

iv. Ex. (INATTENTIVE P): P licking an ice cream cone and worried about ice creamfalling so not paying attention, and D hits P with his car.

1. Observant Defendant: had last clear chance to avoid harming P P NOTBARRED FROM RECOVERY

2. Inattentive Defendant: both P and D are equal (both not paying attention),so court says the doctrine of last clear chance doesnt apply. P iscontributorily negligent BARRED FROM RECOVERY.

f. Mcintyre v. Balentine: Ds neg act is speeding, Ps contributory neg act is drinking.Some states say if percentage of fault is above 50% they are barred from recovery(50% rule).

i. There are pure comparative negligence states which means that you pay to thepercentage of your fault.

12. ASSUMPTION OF RISK

a. EXPRESSED ASSUMPTION OF THE RISK: it is written, ex. On the back of a sportingevent ticket. Idea is that you are releasing the potential D. if the contract that yousigned is valid and your injury falls within the assumption of the risk, you are barredfrom recovery.

b. National fitness case: when P signed up for gym membership with D, D had P sign anexculpatory clause which essentially is like a release, so P cannot sue D.

i. It was expressed assumption of risk. Therefore P cant sue D b/c it was valid anddidnt violate public policy. (Ex. Didnt violate public policy b/c P could go toanother gym, compare with emergency room, this would be a diff. story and the Kwould be invalid)

c. IMPLIED ASSUMTPION OF THE RISK:

i. In order for D to make out implied assumption of risk, they must prove more likelythan not that this P subjectively understood the risk, knew of the risk, and themagnitude of the risk, and choose to take on the risk anyway.

ii. Implied assumption of risk is through conduct.iii. Rush: P was lesee of Ds property, D had an outhouse that P could use. P went

to use the outhouse, fell through floor.1. P did not act negligently going to the outhouse. D claiming that P

impliedly assumed risk by going to the bathroom in the outhouse.a. First, must have risk here, the outhouse


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b. D must prove this particular P subjectively understood the risk,knew the risk, and the magnitude of the risk. DONT HAVE THISHERE, b/c P didnt know the risk that the floor would fall through b/cthere were no visible signs of deterioration.

13. STATUTE OF LIMITATIONS:a. The time period within which a person must file a lawsuit. If they do not they are barred

from filing one.b. Most states start the SOL once the injury is discovered.

c. If you hear that SOL is tolled, that means its stopped running. This happens sometimeswhen person who is injured is a minor, then it is tolled until they reach majority

14. Statute of reposea. This sets out a time frame within which, no matter what, a case must be filed.b. SOL can be tolled but SOR is not.

15. VICARIOUS LIABILITY: employer can be held directly responsible for the acts of their agentsin three situations which is not under vicarious liability. These are direct causes of action, havenothing to do with vicarious liability. They are Negligent hiring, negligent supervision, ornegligent retention.

a. Vicarious liability liable for acts of someone else.b. Respondeat superior: employer/employee, principal/agent, master/servant

c. Brussard v. Minimed: company hired someone to come in and do pest control spray.Employee gets sick at work, D employer says you should go to the doctor (this does notexclude D from liability). Employee drives home and hits another car b/c she is lightheaded from pest spray. Person who is his is P, and is suing employer. No evidencethat employer acted negligently towards employee. P trying to hold employer liablewhen they did nothing wrong. For vicarious liability to attatch to employer, employeemust be acting WITHIN THE COURSE AND SCOPE of employment. Employee iscoming home from work, this is commuting, which is usually not in scope ofemployment, however, b/c of exceptions, P allowed to recover.

d. Analysis must go into what is inside course and scope of employment. This is provenfactually.

e. Commuting to and from work are not within scope of employment, except in twocircumstances.

i. If risk is created at work, it is extended to the person when they leave (like thecase above)

ii. If a situation occurred in a circumstance that is not so startling or unreasonableand there is a risk that could create a risk outside of work (ex. Employer tellsemployee to go home b/c he is out of it, b/c he is on xanax. Employer knows thisbut still tells employee to drive home anyway.)

f. Oshea case: Employee is using a company car to drop off football tickets to othermanagers. When he is pulling into service station he negligently crashes into anothercar. P sues employer and wins b/c this is considered within employment b/c employee

driving company car.i. Difference between DETOUR and FROLIC if FROLIC, its outside scope of

employment. If DETOUR, it is within scope of employment.1. A detour is a deviation that is related to employment so that it is within the

scope (on company route, stop to get gas).2. A frolic (on company route, but stopped to go to a strip club)3. 6 factors to determine If detour or frolic:

a. Employees intentb. The nature, time and place of deviationc. The time consumed in the deviation


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d. The work for which the employee was hirede. The incidental acts reasonably expected by the employer, andf. The freedom allowed to the employee in performing his job

responsibilities.16. INDEPENDENT CONTRACTORS VICARIOUS LIABILITY:

a. With a true independent contractor, employer not liable for your tortuous acts, but inorder for them to be an independent contractor, employer cannot control details ofemployment. The employer only hires for a result.

i. Just because someone is labeled an independent contractor does not alwaysmean that they are really one.

1. Ex: at hospital, doctors are labeled independent contractors, but they wearthe hospital logo. And the hospital has guidelines for the doctors toperform a certain way. Therefore, they are not really independentcontractors and vicarious liability will apply.

b. NON-DELEGABLE DUTY: b/c of nature of particular activity, cannot hide behind shieldof hiring an independent contractor

i. The duty can be delegated to another, but the responsibility for a negligent failureremains with the owner. There is no obvious criterion to determine what duty isdelegable or not, but as a matter of public policy, one cannot avoid particular

responsibilities by hiring someone else to discharge them, b/c of the importanceof the duty.

1. Ex. Hiring independent contractors to build a dome over a stadium. If thedome collapses during a game due to no fault of the stadium owner, hewill still be liable b/c this is a non-delegable duty. There was a risk ofbuilding the dome, b/c it exposed people to harm.

ii. Inherently or intrinsically dangerous activities when there is a peculiar risk, it willoverride the independent contractor shield, and make the employer liable. Thecontract for performance of illegal acts are always vicarious liability.

17. STRICT LIABILITY - Abnormally dangerous activitiesa. Liability without fault. Not looking at conduct of defendant. If you engage in this

abnormally dangerous activity, as a matter of law, liability attaches to the activity.b. Six factors to determine if the activity is an abnormally dangerous activity. This is the

risk/utility analysis. If risk outweighs utility, it will make the activity, it will make activityabnormally dangerous. ORDER IS 3,5,4,6,1,2 in order of importance, 3 most important.

i. Existence of high degree of risk (LH)ii. The harm that would ensue if the risk materializes (SH)iii. Such accidents could not be prevented by exercise of reasonable careiv. Activity is not a matter of custom usagev. Appropriate Location appropriateness of the location weighs against strict

liability.vi. Is the value of the activity to the community high? Luxury v. necessity

c. THREE AND FOUR ARE MOST IMPORTANT. Then comes five and six. One and twoare least priority.

d. Artificial water direction is considered strict liability (ex. Reservoir, man made lake, manmade canal).

e. For strict liability analysis, do abnormal dangerous activity analysis instead of duty andbreach of duty. Cause in fact and proximate cause come after.

f. Contributory negligence can be a defense to strict liability. It is applied the same waythat it is applied to negligence cases.


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g. For Cardozo analysis in proximate cause, the characterization of the risk comes fromthe abnormally dangerous activity (so for blowing up a building, it would be flyingdebris).

18. Strict Liability with Animals:a. Some states say owners of animals can be strictly liable for the injuries that their

animals inflict on someone else. Usually with a dog. If you fence In your property andsomeone elses animal comes in and bites you it is strict liability to the owner of theother animal. If you fence in your animal and your animal gets out, no strict liability for

you b/c you fenced your area.b. Wild animals = strict liability all the time, exception is zoos (then you would have to

prove negligence)19. PRODUCTS LIABILITY:

a. 3 Theories for Recovery for Products liabilityi. Intentional battery or trespass are most commonii. Negligence must do negligence analysisiii. Strict liability

b. 3 diff types of defectsi. Manufacturingii. Design

iii. Warning and Directions.c. Strict Liability with PRODUCTS

i. 402A RULE Special Liability of Seller of Product for Physical Harm to User orConsumer

1. One who sells any product in a defective condition unreasonablydangerous to the user or consumer or to his property is subject to liabilityfor physical harm thereby cased to the ultimate user or consumer, or to hisproperty, if

a. The seller is engaged in the business of selling such a product,AND

b. It is expected to and does reach the user or consumer without

substantial change in the condition in which it is sold.2. The rule stated in Subsection (1) applies although

a. The seller has exercised all possible care in the preparation andsale of his product, AND

b. The user or consumer has not bought the product from or enteredinto any contractual relation with the seller.

ii. From here, must identify and fully explain why the product is either amanufacturing, design, or warranty defect (could be more than one)

iii. MANUFACTURING DEFECT:1. Look at the product and decide whether the product with the defect lives

up to the reasonable consumers expectation. ex. Coke cane w/ knife

sticking out of mouthpiece; a reasonable consumer looking at this productwith the defect would not live up to the consumers expectation b/cdrinking out of this coke can would cause severe injury making thedefective condition unreasonably dangerous. Therefore, this defectivecondition which is a manufacturing defect is unreasonably dangerous.

2. Once you prove manufacturing defect, would a reasonable consumer whois exposed to this product expect it to be in this condition? This is the test.If the answer is no, then it is unreasonably dangerous.


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a. Example of manufacturing defect that is not unreasonablydangerousbelt that doesnt have a belt buckle. This isntunreasonably dangerous b/c this wont create injury.

iv. DESIGN DEFECT:1. To determine if there is a design defect you have to do the risk/utility

analysis. This is a balancing test. Any one factor can tip the scale in favorof risk or utility.

i. Usefulness and desirability of the product. Usefulness is a

much stronger argument if its a necessity. This weighs infavor of utility.

ii. Safety aspect of the product, the LH and SH that could becaused from the use of the product.

1. The higher this is, the more it weighs towards riskover utility.

iii. Availability of a REASONABLE FEASIBLE alternativedesign. This is one of the most important factors.

1. This is shown with state of the art evidence. D willbring up 2 counterarguments, that this product wasthe state of the art, and that the reasonable feasible

alternative is a PRODUCT ENHANCEMENT. Pwants to anticipate this defense by saying what reallywas state of the art at the time by expert testimony,and what is the reasonable feasible alternative.

iv. Ability to eliminate risk without impairing the usefulness.1. Deals with cost. If eliminating the risk makes the cost

unreasonable, then this helps Ds argument.v. Users ability to avoid the risk of injury by use of reasonable

care1. Did consumer use the product properly.

vi. Can manufacturer spread the risk by raising the price of the

product or able to buy insurance to spread the risk.1. If he cannot, this will weigh in favor of the D.

vii. The users awareness of the danger associated with theproduct (open and obvious danger)

1. The more open and obvious the danger, the less theproduct tends to have a defect.

viii. Reasonable user expectation when using the product2. After you determine that there is a design defect, to determine if that

design defect is unreasonably dangerous, the test is:i. Put yourself in the position of the manufacturerii. Impute the knowledge of the design defect to the

manufacturer (assume whether its true or not, that themanufacturer knew of the design defect)

iii. Then ask: would a reasonable prudent person in the positionof the manufacturer with knowledge of this design defect stillsell the product? (this is the rule statement)

1. If they would, its not unreasonably dangerous.2. If they wouldnt, it is unreasonably dangerous.

v. 3 exceptions that are different, only apply for design defect:1. Prescription drugs:


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a. Ex. drug that helps with MS but most likely side effect is that youwill go blind. This is the state of the art at the moment.

b. Could make an argument that the risk outweighs the utility, but aslong as this drug comes with proper and adequate warning, there isno design defect, and it is not unreasonably dangerous.

2. Inherently dangerous product:a. Ex. salt, sugar, alcohol, etc. as long as there is a proper and

adequate warning, there is not a design defect and not

unreasonably dangerous.b. Dont need to warn about risks that are common knowledge. Ex.

butter.3. Food:

a. Majority rule: foreign natural substance:i. Ex. if you bite into a chicken bone when eating chicken

noodle soup, this is not defective b/c not a foreign substanceto chicken noodle soup. If instead it was a toe nail, this is adesign defect.

vi. Warning (marketing) Defect Strict Liability1. To determine if there is a defective marketing condition, we must see if

there is any warning or instructions with the product, OR if the product hasany warnings or instructions, are they adequate?

a. To determine adequacy of warning, we use THE 3 CS TEST:i. Conspicuousness the warning/directions MUST BE

READABLE!ii. Completeness every known and knowable risk has to be

included, MUST HAVE ERRTHANG.iii. Clearness/specificity must be completely clear as to the

warning. Tells the user what the risk is and how to avoid it.2. To determine if it is unreasonably dangerous: ask what the manufacturer

knew, or should have known, of any risk. If he knew or should have

known of the risk, manufacturer must warn of it.

3. If you cant design away the risk, you must warn about it.

4. If warning is not enough in strict liability context it is inadequate. Ifwarning is not enough in negligence context it is improper.

5. Dont have to warn about common knowledge hazards ofusing a product.

a. Ex. common knowledge that a knife cuts and a lighter starts fires.6. Learned Intermediary Rule: if the manufacturer provides adequate

warning to a learned intermediary, then manufacturer is no longer liablefor warning problems b/c they informed the learned intermediary.

a. ex. drug co. provides a prescription only drug that is marketed onlyto doctors for them to prescribe at their discretion. Drug co. onlyneeds to warn about things that the doctor would not know about.However, if it is marketed to the public, drug co. is fucked andneeds to warn about everything so retards know what the risks are.

7. Govt. specifications and standards in regards to products:

8/2/2019 Gan

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