torts (1) outline ab

8/3/2019 Torts (1) Outline AB

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§8A. Intent:

Intent means that the actor desires to cause the consequences of his act OR that he believes that the

consequences are substantially certain to result from it.

Elements of intent

• Defendant must commit some voluntary act AND

• Defendant must intend the consequences of that act

o Willful Purpose: Defendant desired to cause the mental or physical effect on plaintiff

o Substantial Certainty: Defendant knew with substantial certainty that the tortious event

would likely result from his conduct

Transferred Intent:

When the defendant intends any 1 of the 5 intentional torts and accomplishes any one of the 5

intentional torts, the doctrine applies and the defendant is liable even if the plaintiff was not the intendedtarget

- Types:o Commit the same tort against a different person

o Commit a different tort against the same person

o Commit a different tort against a different person

Relevant Cases:

• 3 year old on tricycle rides into Π

o Fault must be established to impose liability

o Exception to proof of fault: ultra-hazardous activity: strict liability. Ex. blasting

• Petty passed out driving- not forseeable

o

No evidence of fault

Petty not liable• Garratt v. Dailey: 5 yr old pulls chair out from under old woman

o Rule: Intent only requires the actor to have substantial certainty that the result will

occur

• Ranson v. Kitner : Defendant shoots Ranson’s dog while hunting because he thought it was a

wolf

o Rule: Mistake Doctrine: A good faith mistake is not a defense to intentional torts where

the defendant intended the consequence of his act

§13. Battery—Harmful and Offensive Contact: An actor is subject to liability to another for battery if:

• (a) He acts intending to cause a harmful or offensive contact to another, or an imminentapprehension of such a contact AND

• A harmful contact to another directly or indirectly results

o Elements

Defendant commits a voluntary act with the intent to cause a contact or

apprehension of a contact with another person

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Causes such contact directly or indirectly

• Contact can either be with the plaintiff or something closely associated with the plaintiff

• Contact is either Harmful or Offensive

o Harmful Contact

Causes pain or bodily damage

o §18. What constitutes Offensive Contact:

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

o Note: Plaintiff doesn’t have to have knowledge of the contact when it occurs

o Possible Defenses:

Defense of Property, Self Defense, Consent

o Relevant Cases:

Wallace v. Rosen: A woman is pushed down the stairs during a fire drill at a highschool.

• Rule: In order to establish if touching was offensive to the reasonable

man, it is important to look at the nature of the touching and if the

context of the touching was in a “rude, insolent or angry manner.”

Fisher v. Carrousel Motor Hotel, Inc.: A manager snatched a plate from a black man at a luncheon.

• Rule: To constitute an assault and battery, it is not necessary to touch

the plaintiff’s body or even his clothing; knocking or snatching

anything from plaintiff’s hand or touching anything connected with

his person, when done in an offensive manner, is sufficient

§21. Assault:An actor is subject to liability to another for assault if:

• He acts intending to cause a harmful or offensive contact with another or an imminentapprehension of such a contact AND

• The other is thereby put in such imminent apprehension

§31. Threat by words:Words do not make the actor liable for assault unless together with other acts or circumstances they put

the other in reasonable apprehension of an imminent harmful or offensive contact with his person

§30. Conditional Threat:If the actor intentionally puts another in apprehension of an imminent and harmful or offensive

contact, he is subject to liability for an assault although he gives to the other the option to escape the

contact by obedience to a command given by the actor, unless the command is one which the actor is

privileged to enforce by the infliction of the threatened contact or by a threat to inflict.

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• With the intent to cause a person to expect an imminent battery

o Transferred Intent Doctrine applies

o It is not necessary that the battery actually occur

• That causes such apprehension directly or indirectly

o Apprehension is an expectation, not necessarily a fear Threat must be of immediate contact

Defendant must seem capable of fulfilling the threat

Plaintiff must be aware of the defendant’s threat

§22. Attempt Unknown to OtherAn attempt to inflict a harmful or offensive contact or to cause an apprehension of such contact does notmake the actor liable for assault if the other does not become aware of the attempt before it is terminated

Possible Defenses: Defense of property, self defense, consentRelevant Cases:

• Western Union Telegraph Co. v. Hill :

o Rule: The actual ability of the defendant to cause harmful or offensive touching is not a

requirement for actionable assault – must be an apparent present ability to bring attempt

into effect.

False Imprisonment

CR §35. False Imprisonment: An actor is subject to liability to another for false imprisonment if:

- He acts intending to confine another within boundaries fixes by the actor AND

- His acts directly or indirectly result in such a confinement of the other AND- The other is conscious of the confinement or is harmed by it

CR §36. What Constitutes Confinement:

-To make the actor liable for false imprisonment, the other’s confinement within the boundaries fixed by

the actor must be complete; and

-The confinement is complete although there is reasonable means of escape unless the other knowsabout it;

-The actor does not become liable for false imprisonment by intentionally preventing another from going

in a particular direction in which he has a right or privilege to go.

Types of Confinement:§39 Confinement by Physical Force: The confinement may be by overpowering physical force, or by

submission to physical force.

§40. Confinement by Threats of Physical Force: The confinement may be by submission to a threat

to apply physical force to the other’s person immediately upon the other’s going or attempting to go beyond the area in which the actors intends to confine him.

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§40A. Confinement by Other Duress: The confinement may be by submission to duress other than

threats of physical force, where such duress is sufficient to make the consent given ineffective to bar the

action. Indirect confinement

• Person or property i.e. kill their family, seize their property

o Confinement of an individual to a bounded area without means of escape can result infalse imprisonment even if there is no actual physical restraint used upon theindividual

• Refusal to release or aid in escape

o Actor is under a duty to release the other from confinement or aid in such release by

providing a means of escape

• Confinement by words alone or moral pressure is NOT enough

• Actor is not liable by intentionally preventing another from going in a particular direction in

which he has a right or privilege to go

• Requisite Intent- Intent to confine or knew with substantial certainty that the other would be

confined by their actions

§41 Confinement by Assert Legal Authority

1. The confinement may be by taking a person into custody under an asserted legal authority2. The custody is complete if the person against whom and in whose presence the authority is asserted

believes it to be valid, or is in doubt as to its validity, and submits to it.

Relevant Cases:

• Big Town Nursing Home, Inc. v. Newman: Def. wasn’t allowed to leave a nursing home.

o

Rule: False imprisonment occurs when one person directly restrains another person’s physical freedom without legal justification.

o Keeping clothing= duress of property = indirect confinement

• Parvi v. City of Kingston: Police took Pl. to a golf course when he was wasted.

o Rule: False imprisonment is suffered only when the victim is conscious of the

imprisonment when it is happening regardless if the Π can recollect the imprisonment

• Hardy v. LaBelle’s Distributing Co.: A woman is detained for questioning about shoplifting.

o Rule: Π is required to test confinement if it is reasonable to do so or else assume consent

• Enright v. Groves: A woman was arrested for failing to show her license for dog-at-large

charges

o Rule: False arrest arises when one is taken into custody by a person who claims, but does

not have, the property legal authority.• Whittaker v. Sanford : A leader of a religious cult wouldn’t let a woman leave his ship.

o Rule: The tortfeasor does not have to apply physical force to the plaintiff—must just

insure that the plaintiff is physically restrained.

o False imprisonment occurs when there is an intentional break of an obligation to

take active steps to release plaintiff or if defendant refused to provide means to

access shore safely.

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• False Imprisonment Notes

o Can occur in a moving vehicle

o Can be as large as cities and states, but not countries

o No actual damages need to be proven

o Plaintiff may not recover for injuries making his escape if he could have stayed falsely

imprisoned with no harm

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESSINTENTIONAL INFLICTION OF EMOTIONAL DISTRESSCR §46. Outrageous Conduct Causing Severe Emotional Distress: One who by extreme and

outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject toliability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.

Elements of Intentional Infliction of Emotional Distress:

- Intentional or reckless conduct

- Doing something extreme or outrageous

- A Causal connection between the conduct and the distress- That causes the Def. to feel severe emotional or mental distress

o Π is judged not by his own sensitivity, but by that of the reasonable person

Hypersensitivity is only a reason to recover if it is exploited or directly abused

o Physical manifestations are not necessary, but they help

Third Party Recovery:

CR §46(2): Where such conduct is directed at a 3rd person, the actor is subject to liability if he

intentionally or recklessly causes severe emotional distress:

- To a member of such person’s immediate family who is present at the time, whether or not

such distress results in bodily harm OR - To any other person who is present at the time, if such distress results in bodily harm

- The ∆ must know the 3rd member was present

Possible Defenses: The common law defenses to other torts are irrelevant here.

Relevant Cases:

- State Rubbish Collector’s Ass’n v. Siliznoff : Def. threatened Pl., but it wasn’t an immediate

threat.

o Rule: The threat to sustain an IIED claim does not need to be immediate; it just has to be

intentional.

- Slocum v. Food Fair Stores of Florida: A clerk told a woman she smelled and she had a heartattack.

o Rule: There is liability only for conduct exceeding all bounds which could be tolerated by

a reasonable person = severe- Harris v. Jones: Def. teased Pl. about his stutter, about which he knew he was sensitive.

o Rule: Π must suffer a severely disabling emotional response to the tortfeasor’s conduct

in order to recover damages for IIED.

- Taylor v. Vallelunga: A woman sues for IIED after watching her father get beat up.

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o Rule: Third Party Recovery Rule

If the Δ is not aware that the 3 rd party is present, then the Δ does not have the

requisite intent to cause IIED to the 3rd party family member

• Noteso Crying/being upset is not sufficient

o Fear of contracting disease without exposure not sufficient

o Sexual or racist insults have not been found so outrageous as to be intolerable in a

civilized society.

Insults combined with other conduct may qualify

o Frivolous law suits are not grounds for IIED

Trespass to Land

CR §158. Liability for Intentional Intrusions on Land: One is subject to liability to another for

trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally:

- Enters the land in the possession of the other, or causes a thing or a 3rd person to so OR - Remains on the land OR

- Fails to remove from the land a thing which he is under a duty to remove

Elements of Trespass to Land

• An act of physical invasion

o Def doesn’t have to physically enter the land – can throw things onto it

• Intended by the Def

o Doctrine of Transferred Intent applies

Mistake is not a defense; it is a voluntary act to make contact with the land

o Involuntary acts are not included

• If you remain on land past owner’s consent, or presence is procured through fraud, it is

trespass to land

Possible Defenses: Consent, Necessity

Relevant Cases:

• Herrin v. Sutherland : Def. shot a duck flying above Pl’s premises.

o Rule: Land in a legal sense has an indefinite extent, upwards and downwards.

• Rogers v. Board of Road Com’rs for Kent County: A man ran over a snow post on his mower.

o Rule: A trespass may be committed by the continued presence of a structure on land after

the landowner has effectively terminated his consent to have the property on his land.

• Once trespass occurs, defendant liable for all harmful consequences no matter how unpredictable

Trespass to Chattels:

§217. Ways of Committing Trespass to Chattel:

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A trespass to a chattel may be committed by intentionally dispossessing another of the chattel or using

or intermeddling with a chattel in the possession of another

Elements of Trespass to Chattels:

• An act of defendant interferes with the plaintiff’s right of possession if the chattel

o Dispossess the plaintiff of the chattelo The chattel is impaired as to its condition, quality or value

o The possessor is deprived of the use of the chattel for a substantial time

o Bodily harm is caused to the possessor, or harm is caused to some person or thing in

which the possessor has a legally protected interest

o Only Intentional Tort that requires Damage or Harm!!

• Intent to perform the act

o Doctrine of Transferred Intent applies

• Relevant Cases:

o Glidden v. Szybiak: Little girl was playing rough with dog when it bit her

Rule: One may only maintain an action for trespass if he has suffered actualdamages.

PRIVILEGES

§10. Privilege:Privilege denotes the fact that conduct which, under ordinary circumstances, would subject the actor to

liability, under particular circumstances does not subject him to such liability.

§10A. Consent:

Consent denotes willingness in fact that an act or an invasion of an interest shall take place• Express Consent:

o Explicit agreement between defendant and plaintiff; can be oral or written

o Acknowledge act is about to occur and agree to its risks and consequences

• Implied Consent:

o Exists if:

Defendant has a reasonable believe that plaintiff consented

• Based on objective manifestations—person’s words and actions

• Based on custom

• Based on a failure to object

Whether or not reasonable person would believe that plaintiff consented to action

o Implied in Fact – based on conduct

o Implied in Law – based on law (usually medical cases)

Plaintiff is absent or unable to consider the matter

An immediate decision is necessary

There is no reason to believe plaintiff would withhold consent if able AND

A reasonable person in plaintiff’s position would consent

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When Consent Might Be Invalidated:

• Lack of Capacity to Consent:

o Consent will be ineffective where the defendant knows of or should know that the

plaintiff is not competent to give a meaningful consent

Includes age, insanity, mental disability and intoxication

• Acts are in excess of the consent given. Aka consider scope of consent• Fraud: Consent is invalid if induced by fraud

• Duress: consent procured under physical threat is invalid

• A person cannot consent to a criminal act

Relevant Cases

• O’Brien v. Cunard S.S. Co: Woman was vaccinated on a ship

o Rule: Defendant may rely on plaintiff’s behavior and overt acts in order to determine

whether she has consented to the defendant’s conduct.

• Mohr v. Williams: Dr. operated on woman’s left ear, not consented-to right ear

o Rule: Defendant is liable if his acts are substantially different from those consented to

and circumstances are not such to justify it without consent

• DeMay v. Roberts: A young, unmarried man helped a dr. deliver a woman’s baby

o Rule: Consent is negated if obtained by deceit or fraud

§63. Self-Defense by Force Not Threatening Death or Serious Bodily HarmAn actor is privileged to use reasonable force, not intended or likely to cause death or serious bodily

harm, to defend himself against unprivileged harmful or offensive contact or other bodily harm which hereasonably believes that another is about to inflict intentionally upon him.

** Reasonable amount of force

Obligation to Retreat: If the victim can retreat without increasing danger, he should; however, he isallowed to stand his ground and no one is required to retreat within his own home

Note: Retaliation is not self defense* The threatened harm must be immediate

* Verbal threats (provocation) are usually not enough – must be accompanied by some physical action

* not liable for injury to 3rd parties

Defense of Others:

CR §76. Defense of a Third Person: The actor is privileged to defend a 3rd person from a harmful or offensive contact or other invasion of his interests of personality under the same conditions and by the

same means as those under and by which he is privileged to defend himself if the actor correctly or reasonably believes that:

- The circumstances are such as to give the 3rd person a privilege of self-defense AND- His intervention is necessary for the protection of the 3rd person

DEFENSE OF PROPERTY:

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CR §84. Use of Mechanical Device Not Threatening Death or Serious Bodily Harm: The actor is so

far privileged to employ, for the purpose of protecting his possession of land or chattels form intrusion, a

device not intended or likely to cause death or serious bodily harm that he is not liable for bodily harmdone thereby to a deliberate intruder if:

- The use of such a device is reasonably necessary to protect the land or chattels from intrusion AND

- The use of the particular device is reasonable under the circumstances AND- The device is one customarily used for such a purpose, or reasonable care is taken to make its use

known to probable intruders

See also CR §85. Use of Mechanical Device Threatening Death or Serious Bodily Harm

Deadly Force: Is never allowed to protect mere property – human life is worth more than that

Relevant Cases:

- Katko v. Briney: Man gets leg blown off by spring-loaded gun in an uninhabited farmhouse.

o Rule: An owner of a property cannot protect his property by use of direct or indirect

force which may cause serious bodily injury or death.

RECOVERY OF PROPERTY:

Requirements:

- Fresh Pursuit: Owner must act quickly, otherwise he loses the right to self-help and must resort

to other methods to recover property- Amount of Force: Reasonable, which is never deadly

- Entry on Another’s Land: Privilege to enter another’s land for the purpose of regaining

possession of property (must show reasonableness as to time of day and type of entry)

Merchant’s Privilege: Allows stores to use reasonable force to detain people for reasonable periods to

investigate possible theft.

Relevant Cases:

- Hodgeden v. Hubbard : Def. took a stove away from Pl. using violence and force.

o Rule: A person may use reasonable force to recover property.

- Bonkowski v. Arlan’s Department Store: Pl. was detained for shoplifting she didn’t commit.

o Rule: Merchant’s privilege.

NECESSITY:

CR §197. Private Necessity: One is privileged to enter or remain on land in the possession of another

if it is or reasonably appears to be necessary to prevent serious harm to the actor, or his land or chattelsOR the other or a 3rd person, or the land or chattels of either, unless the actor knows or has reason to

know that the one for whose benefit he enters is unwilling that he shall take such action.

Compensation for Privileged Use: An individual who takes advantage of the private necessity

privilege to use another’s property must pay damages for any harm caused.

Public Necessity:

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CR §196. Public Necessity: One is privileged to enter land in the possession of another if it is, or if

the actor reasonably believes it to be, necessary for the purpose of averting an imminent public

disaster.

Relevant Cases:

- Ploof v. Putnam: A man and his family trespassed on Def’s dock during a storm.o Rule: When one’s life is in danger, his privilege trumps right of property.

- Surocco v. Geary: Mayor ordered demolition of P’s house during a fire.

o Rule: The good of society overall provides a defense to taking away private rights.

- Vincent v. Lake Erie Transp. Co.: Def. tied boat to P’s dock during storm and the dock was

damaged.

o Rule: Necessity is not a complete defense – Def. is liable for damages, but not trespass.

AUTHORITY OF LAW:

- Arrest: Arrest under a warrant is generally considered to be “ministerial,” so that the officer is

liable if he acts improperly.

DISCIPLINE:

- Parent and child: Parents have the privilege of exercising reasonable force and restraint upon

their children, and this privilege extends to those who are temporarily responsible for them.

NEGLIGENCE

CR §284. Negligent Conduct; Act or Failure to Act: Negligent conduct may be either:

- An act which the actor as a reasonable man should recognize as involving an unreasonable risk of

causing an invasion of an interest of another OR

- A failure to do an act which is necessary for the protection or assistance of another and which the actor is under a duty to do.

ELEMENTS OF NEGLIGENCE:

A duty to use reasonable care.

A failure to conform to the required standard, or a breach of the duty.A reasonably close causal connection between the conduct and the resulting injury.

- Actual cause, “cause-in-fact”

- Proximate cause

Actual loss or damage resulting to the interests of another.

DUTY

Risk v. Burden Balancing Test: Consider

- Character and location of premises

- Purpose they’re used for

- Probability of injury

- Precautions necessary to prevent injury

- Relation of precautions to beneficial use of premises

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Judge Learned Hand’s Formula: L = B < PI (Liability, Burden, Probability, Injury)

o If the burden of adequate precautions (B) is less than the gravity of the injury (L) times

the probability of the event (P) then ∆ is liable. If the burden is greater than the ∆ is notliable.

Relevant Cases:

- Lubitz v. Wells: Def’s son hit a girl in the face with his golf club, which he left in the backyard.

o Rule: Conduct that is reasonable and has a low probability of resulting in harm to others

is not negligence.

The object was not obviously and intrinsically dangerous and it would be unfair to

hold someone to a standard of conduct beyond that with which a reasonable person would comply.

o Court was thinking of public policy implications in its ruling.

- Blyth v. Birmingham Waterworks Co. : A water leak during a severe frost damagedΠ ’s house.

o Rule: A defendant only needs to consider average circumstances, and is not required to

reduce all risks.- Gulf Refining Co. v. Williams: Bung hole.

o Rule: A reasonable man would not take a risk if there was a high probability of a mild

consequence NOR if there were a low probability of a severe consequence.

o Considering the cost of the fix vs the extreme harm of the consequences.

- Chicago, B. & QR. Co. v Krayenbuhl : Child severed his foot on an unlocked turntable.

o Rule: Balancing risk v. burden Test and attractive nuisance

- Davison v. Snohomish County: A Model-T skidded off a bridge with wooden railings.

o Rule: The defendant’s actions are viewed by what they could have known at the time

they took place, not what later comes to light.

- United States v. Carroll Towing Co. : Bargee wasn’t on the barge and it sank due to everyone’s

negligence.

o Rule: liability for negligence depends on whether the burden of adequate precautions is

less than the injury times the probability of the event.

THE STANDARD OF CARE:

The Reasonably Prudent Person:

CR §283. Conduct of a Reasonable Man – The Standard: Unless the actor is a child, the standard of

conduct to which he must conform to avoid being negligent is that of a reasonable man under like

circumstances.

CR §283A. Children: If the actor is a child, the standard of conduct to which he must conform to

avoid being negligent is that of a reasonable person of like age, intelligence and experience under like circumstances

o Exception: If a child is engaging in an adult activity, then he is held to the standard of the

reasonably prudent adult.

o Children under 7 are conclusively presumed to be incapable of committing negligence.

o Between 7-14, there is a presumption that the child is incapable of negligence, but that

presumption is rebuttable.

o At age 14, the presumption is that the child is capable of negligence, but it can be refuted.

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CR §283B. Mental Deficiency: Unless the actor is a child, his insanity or other mental deficiency

does not relieve the actor from liability for conduct which does not conform to the standard of a

reasonable man under like circumstances.

CR §283C. Physical Disability: If the actor is ill or otherwise physically disabled, the standard of

conduct to which he must conform to avoid being negligent is that of a reasonable man under likedisability.

o Physical disabilities, however, are acknowledged – they’re part of the circumstances

o The effect of superior abilities, skill or knowledge: The standard of care doesn’t change

for those with superior skills, but they may be used to determine breach.

o The reasonable standard of care only sets the minimum requirement of duty.

o The law is willing to raise the bench for the professional, but not lowering the bar for the

beginner.

CR §295A. Custom: In determining whether conduct is negligent, the customs of the community,or of others under like circumstances, are factors to be taken into account, but are not controlling

where a reasonable man would not follow them.

-

- Relevant Cases:

o Delair v. McAdoo: Def’s tire blew out – it was visibly damaged and worn down.

Rule: With something as inherently dangerous as driving, a person is responsible

for knowing that which a reasonably close inspection would disclose

NOTE: There are certain things everyone is community has a duty to be aware of

i.e. gravity, principle of leverage, wood & paper burn, flammability of gas,

conditions of car parts which are likely to become dangerous where flaws would

be disclosed by reasonable inspection)

NOTE: Forgetfulness is not an excuse, but when distracted attention, lapse of timeor other factors make it reasonable to forget, it can be found there is nonegligence.

o Vaughan v. Menlove: Def. is dumb and said he acted in good faith.

Rule: The standard of care used to determine negligence is that of the reasonable

prudent person and not the good faith or subjective standard used by the ∆

o Trimarco v. Klein: Glass in the bathroom shattered because it wasn’t tempered.

Rule: if go against customary standard + customary standard is reasonable under

the circumstances liable

o Cordas v. Peerless Transportation Co .: A cab driver was held at gun point and hit a

woman and her kids.

Rule: The emergency rule: In determining whether conduct was negligent, thefact that the actor was confronted with a sudden emergency is a factor indetermining his liability.

• Great Risk for actor

• Arise suddenly and unexpectedly

• Actor himself didn’t cause emergency

o Roberts v. State of Louisiana: Blind man bumped into an old man.

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Rule: CR 283C: Physical disability: If the actor is ill or otherwise physically

disabled, the standard of conduct to which he must conform to avoid beingnegligent is that of a reasonable man under like disability.

o Robinson v. Lindsay: Child is driving a snowmobile and a girl loses her thumb.

Rule: A child engaged in an adult activity is held to the standard of the

reasonable prudent adult.• Activity must be inherently dangerous

• Mostly adult participants

o Breuning v. American Family Ins. Co. : Woman drove into another car because God told

her to.

Rule: Insanity is not a defense to negligent conduct where the ∆ had prior warning and knowledge of her insanity.

The Professional:

CR §299A. Undertaking in Profession or Trade: Unless he represents that he has greater or lessskill or knowledge, one who undertakes to render services in the practice of a profession or trade is

required to exercise the skill and knowledge normally possessed by members of that profession or trade in good standing in similar communities.

- Expert testimony: A lay jury is not usually in a position to understand without assistance the

nature of the work of a professional, and so the Π must offer an expert witness to explain it.

The exception to the expert testimony requirement is when the negligence is so

grossly negligent that a layman would have no difficulty identifying it.

- Professional Standard

o Good results not guaranteed

Only liable if defendant acted without requisite minimum skill or knowledge, notif operation, lawsuit, etc. was not successful

Not liable if bad strategy if acted in good faith.

o NOTE- standard is modified for those in the profession with high skills (i.e. gyno was

held to higher level of care as a specialist) does not matter if skills are pro bono

- Areas in which a professional’s conduct may be questioned:

o Possession of knowledge or skill: Professionals are not expected to know everything, just

what the ordinary member of the profession does

o Exercise of best judgment: Not the professional’s best judgment, but the profession’s

o Use of due care: Steps that are mechanical rather than discretionary implicate no

professional judgment

- Customary Practice:

o Violation of: It is not enough that an expert witness testify that he would not personally

follow the Def’s practice. He must also testify that the professional didn’t conform withthe standard of care of an ordinary member of the profession.

o Compliance with: Professional prudence is defined by actual or accepted practice within

a profession, rather than theories about what “should” have been done

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- The Doctrine of Informed Consent: Imposes a duty on Dr. to inform a patient of his options

and their attendant risks.

o Material risk or any risk that would likely affect a patient’s decision must be disclosed

o Causation

Subjective approach: The Π must prove 3 elements

• 1. Lack of informed consent• 2. Risk did occur

• 3. Π would have declined treatment if they knew of the risk

Objective approach: would the reasonable patient have agreed to the procedure

o Exceptions: emergency, risk-averse patient would choose non-treatment which would

actually be more dangerous

- Locality Rules:

o 3 Types of medical standards

Local-what is done in the local region

This has 2 consequences

1. It is possible for the community to be very isolated for whether or not ithas changed behavior according to new knowledge, technique, means of

diagnosis

2. A significant impact on who can qualify as an expert in the typical casewhere expert testimony is required to establish the standard. Experts have

to be appropriately knowledgeable about the area under consideration.

Oftentimes courts are deciding if an expert is qualified in terms of general

expertise and in this case, it can be very difficult (esp. for the Π ) to find a

local expert to testify

National

•a lot of time it is “unfair” to compare the diagnostic abilities of a smallhospital to a large teaching facility

Same or Similar Community standard

• communities (professional community) that are similar in terms of

facilities, number of physicians, the practice areas of the physicians,

details of medical practice

- Relevant Cases:

o Heath v. Swift Wings, Inc. : A new pilot crashed a plane.

Rule: The professional standard is not tailored to the professional’s training and

expertise, but is an objective standard.

o Hodges v. Carter : Π ’s shop caught on fire. He had 4 insurance claims. His lawyersdidn’t serve the notice properly.

Rule: An attorney who has acted in good faith and in the best interests of his

client is not liable in negligence for a mere error in judgment.

Only liable if defendant acted without requisite minimum skill or knowledge, not

if operation, lawsuit, etc was not successful

Π must show that they would have been successful if it weren’t for the attorney’snegligence

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o Boyce v. Brown: Def. operated on Π ’s ankle and didn’t x-ray it when she came back.

Rule: In a medical malpractice case, theΠ must prove the standard of care in the

medical community (custom) and that the Def’s conduct departed from this

standard.

o Morrison v. MacNamara: Man fainted during a urethral smear test performed against

nat’l standards, but adhering to local standards. Rule: Locality Rules

o Scott v. Bradford : Woman had difficulties after a surgery she was never warned about.

Rule: the risks of a proposed treatment must be adequately disclosed to theΠ ,along with alternative treatments, before consents to the treatment.

o Moore v. The Regents of the University of California:

Rule: A Dr. who is seeking a patient’s consent for a medical procedure must

disclose his own personal interests, unrelated to the patient’s health, that mayaffect the patient’s decision.

BREACH OF DUTY

VIOLATION OF STATUTE:

CR §288B. Effect of Violation: The unexcused violation of a legislative enactment or anadministrative regulation which is adopted by the court as defining the standard of conduct of a

reasonable man is negligence in itself.

Two ways of dealing with a violation of statute:

- Negligence Per Se: The violation of a statute provides the breach of duty for the complaint.

o Def’s defense is that he didn’t violate the statute or 1/5 excuses.

If he doesn’t come forward with such evidence, a verdict is directed for the breach

of dutyo Statute is a matter of law, the judge decides whether to adopt it

o Π still must show causation and damages to go to jury

- Prima Facie Rule (some evidence rule): If Π offers some evidence, there can’t be a directed

verdict –

o the violation is used as evidence of negligence, but is not conclusive proof,

o Violation of statute is a matter of fact for the jury to decide

o Violation of statute can only prove breach of duty, must also prove causation and

damages

Applicability of Statute: In order to establish a criminal statute as a standard of care in a tort suit:- The party seeking to charge the other with violation of the statute is a member of the class the

legislature intended to protect.

- The hazard that occurred was one the legislature intended to prevent.

- Whether it is appropriate to impose tort liability for violations of the statute.

Whether or not to apply negligence per se:

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o Did legislature determine that compliance with criminal statutes is practicable and

desirable and that criminal statues give citizens notice of what conduct required of them

Notice-does the statute clearly define the prohibited or required conduct?

Some penal statutes are to obscure to put public on notice

Some may impose liability without fault

May lead to ruinous monetary liability for relatively minor offenses Is injury directly or indirectly cause from violation

- Relevant Cases:

o Osborne v. McMasters: A clerk sold a bottle of poison without labeling it as such.

Rule: An individual who breaches a duty imposed on him by statute is liable for injuries to those whom the statute is designed to protect if the injuries resulted

from his breach.

o Stachniewicz v. Mar-Cam Corp. : Def. sues owner of a bar for injuries sustained there.

Rule: Negligence per se is when the violation results in injury to a member of theclass of persons protected by the statute or regulation and when the harm is of the

kind which the statute or regulation is designed to prevent.

o Ney v. Yellow Cab Co. : Kid stole Def’s cab, which he left running and unlocked.

Rule: A Pl. who bases his claim for negligence on a Def’s violation of a statute,

must prove that his injuries were directly and proximately caused by the Def’sviolation of the statute.

o Perry v. S.N. and S.N .: A man saw children being abused and didn’t report it.

Rule: Negligence per se is not applicable if the criminal statute doesn’t provide

an appropriate basis for civil liability

§288A. Excused Violations (for Negligence Per Se):

1. An excused violation of legislative enactment or an administrative regulation is no negligence.2. Unless the enactment or regulative is construed not to permit such excuse, its violation is excusedwhen

a. The violation is reasonable because of the actor’s incapacity;

b. He neither knows nor should know of the occasion or compliance;c. He is unable after reasonable diligence or care to comply;

d. He is confronted by an emergency not due to his own misconduct;

e. Compliance would involve a great risk of harm to the actor or others.

Doctrine of Excused Violations: Court is free to find that the statutory violation was excused, as long as

the statute itself doesn’t show that no excuses are permitted

o Includes incapacity, reasonable ignorance, reasonable attempt to obey the statute,

emergency that isn’t the Def’s fault, greater risk of harm- Relevant Cases:

o Martin v. Herzog : Def. struck Pl’s car at night, but Pl. didn’t have headlights on.

Rule: The unexcused omission to perform a statutory duty is negligence per se.

PROOF OF NEGLIGENCE:

Initial Burden of Proof:

CR §328A. Burden of Proof: In an action for negligence the Π has the burden of proving:

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- Facts which give rise to a legal duty on the part of the ∆ . to conform to the standard of conduct

established by the law for the protection of the Π

- Failure of the Def. to conform to the standard

- That such failure is a legal cause of the harm suffered by the Π AND

- That the Π has in fact suffered harm of a kind legally compensable by damages.

- Circumstantial Evidence: One or more inferences which may be said to arise reasonably from aseries of proven facts.

o Can only sustain a Π ’s burden of proof of negligence only if a reasonable jury can draw

from it the positive inference that Def. was negligent

- The Banana Cases: Premises Liability Claim: For Π . to recover, he must prove that

o Def. had actual or constructive knowledge of a condition on the premises

o The condition posed an unreasonable risk of harm

o Def. didn’t exercise reasonable care to reduce or eliminate the risk

o Def’s failure to use such care proximately caused her injuries

- Relevant Caseso Goddard v. Boston & Maine R.R. Co. (229)

o Joye v. Great Atlantic and Pacific Tea Co. (231)

o Anjou v. Boston Elevated Railway Co (230)

o Ortega v. Kmart (231)

CR §328B. Functions of Court: In an action for negligence the court determines:

- Whether the evidence as to the facts makes an issue upon which the jury may reasonably find the

existence or non-existence of such facts

- Whether such facts give rise to any legal duty on the part of the Def.

- The standard of conduct required of the Def. by his legal duty

- Whether the Def. has conformed to that standard, in any case in which the jury may notreasonably come to a different conclusion

- The applicability of any rules of law determining whether the Def’s conduct is a legal cause of

harm to the Pl. AND

- Whether the harm claimed to be suffered by the Pl. is legally compensable

CR §328C. Functions of Jury: In an action for negligence the jury determines, in any case in

which different conclusions may be reached on the issue:

- The facts

- Whether the Def. has conformed to the standard of conduct required by the law

- Whether the Def’s conduct is a legal cause of harm to the Pl. AND

- The amount of compensation for legally compensable harm.

-

- Relevant Cases:

o Jasko v. F.W. Woolworth Co. : Pl. slipped on a piece of pizza.

Rule: A Pl. doesn’t have to prove Def’s notice of the dangerous condition which

has caused her injuries when the dangerous condition is one which is continuous

and easily foreseeable.

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o H.E. Butt Groc. Co. v. Resendez : Resendez slipped on some grapes at a store.

Rule: Negligence based on conditions of the sale which were inappropriately

risky:

• defendant knows or should have known of risk

• there is unreasonable risk of harm

• Need to look and see if protective measures were taken to minimize anyforeseeable risk

Res Ipsa Loquitur “The thing speaks for itself”:

CR §328D. Res Ipsa Loquitur:

1. It may be inferred that harm suffered by the Π . is caused by negligence of the Def. when:

a. The event is of a kind which ordinarily doesn’t occur in the absence of negligence

b. Other responsible causes, including the conduct of the Pl. and 3rd persons, are sufficientlyeliminated by the evidence AND

c. The indicated negligence is within the scope of the Def’s duty to the Pl.

(2): It is the function of the court to determine whether the inference may reasonably be drawn by

the jury, or whether it must necessarily be drawn.(3): It is the function of the jury to determine whether the inference is to be drawn in any case where

different conclusions may reasonably be reached.

- Requirements:

o Defendant must have exclusive control

o Other responsible causes are eliminated

o Situation would not have ordinarily happen without negligence

There must be evidence that on the whole is more likely that there was negligenceassociated with the cause of the event than that there was not.

o Is a matter of fact

o

The Def. has no evidence to the contrary.- Procedural effects:

o An inference of negligence which the jury may draw or not

o It raises a presumption of negligence which requires the jury to find negligence if Def.

doesn’t produce evidence sufficient to rebut this presumption.

o It not only raises such a presumption, but also shifts the ultimate burden of proof to Def.

and requires him to prove by a preponderance of all the evidence that the injury was notcaused by his negligence.

- Def’s Superior Knowledge: The basis for RIL is the Def’s ability to obtain evidence as to what

occurred, and the Pl. can smoke out the info. he cannot otherwise get

- Relevant Cases:

o Larson v. St. Francis Hotel : Pl. was struck by an arm chair thrown out a hotel window. Rule: Control must be exclusive by the defendant.

o Ybarra v. Spangard : Π . suffered injuries during an operation

Rule: Where an unexplained injury occurs during a medical procedure to a part of

the body not under treatment, res ipsa loquitur applies against all of the Drs andmedical employees who take part in caring for the patient

o Sullivan v. Crabtree: Pl’s son was killed while a guest in a truck.

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Rule: In the typical case, the defendant will raise general alternative explanations

of the event, but they are rarely strong enough evidence to be conclusive against principles of RIL

CAUSATION

CAUSE-IN-FACT (Sine Qua Non-means without which it is nothing):

CR §431. What Constitutes Legal Cause: The actor’s negligent conduct is a legal cause of harm to

another if:- His conduct is a substantial factor in bringing about the harm AND

- There is no rule of law relieving the actor from liability because of the manner in which his

negligence has resulted in the harm.

CR §432. Negligent Conduct as Necessary Antecedent of Harm: Except as stated in Sub§(2), the

actor’s negligent conduct is not a substantial factor in bringing about harm to another if the harm would

have been sustained even if the actor had not been negligent.

(2): If two forces are actively operating, one because of the actor’s misconduct on his part, and each of itself is sufficient to bring about harm to another, the actor’s negligence may be found to be a substantial

factor in bringing it about.

Proof of Causation:

- Burden of Proof with respect to causation rests with the Π

- Federal rules of evidence: If scientific, technical or other specialized knowledge will assist the

trier of fact to understand the evidence or to determine a fact at issue, then a witness qualified asan expert may testify thereto IF:

o The testimony is based upon sufficient facts or data AND

o The testimony is the product of reliable principles and methods AND

o The witness has applied the principles and methods reliably to the facts of the case.

But-For Test: Pl. would not be injured but for Def’s conduct

- Acts of God: Def is not liable for negligence if the act of God would have caused the damage

anyway

Relevant Cases:

- Perkins v. Texas and New Orleans Ry. Co. : A train hit car with Π ’s husband in it. The driver

was negligent, but the train was speeding.

o Rule: Negligence is a cause in fact of the harm to another if it was a substantial factor in

bringing about that harm.- Reynolds v. Texas & Pac. Ry. Co. : Corpulent woman falls down the stairs.

o Rule: Where the negligence of a Def. greatly increases the chances of an accident giving

rise to the Π ’s injury, the possibility that the accident could have happened without the

negligence doesn’t break the chain of causation.

- Gentry v. Douglas Hereford Ranch, Inc. : Man stumbled near crumbled stairs at a ranch and his

gun misfired and shot Π in the head.

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o Rule: Evidence that Def’s conduct was a cause in fact of the accident must be offered to

make a negligence case.

- Kramer Service, Inc. v. Wilkins: Pl. got cut on the forehead from a piece of glass in a hotel and

developed cancer there.

o Rule: In order to impose liability on a Def., it is not sufficient that the Π prove that the

Def’s negligence and the Π ’s injury co-existed or that the injury came after the negligentconduct of the Def. – possibility can’t sustain a verdict

Concurrent Causes: Two individual cases of negligence bringing about a single injury.

- Market Share Liability: Where more than 2 Defs have negligently produced a drug causing the

Π ’s injury, the latter may recover from the Defs even though the Π doesn’t prove which Def’s

drug was the direct cause of the Π ’s injury.

o Defs are held proportionately liable in terms of their market share

- Substantial Factor Test: If either one of two acts was sufficient to cause the injury, both actors

are liable if each person’s conduct was a substantial factor

Relevant Cases:

- Hill v. Edmonds: Pl. was a passenger in a car that crashed into a truck in the middle of the road.

o Rule: Where separate acts of negligence combine to produce a single injury, each

tortfeasor is liable for the entire result even though his act alone may not have caused theresult.

- Anderson v. Minneapolis, St. P. & S. St. M. Ry. Co. : Two forest fires merged to burnΠ ’s property, but they only knew the cause of one of them.

o Rule: Where a Π is injured by the negligent conduct of more than one tortfeasor, each is

independently liable if it was a substantial factor in bringing about the Π ’s injury.

- Summers v. Tice: Two hunters fired in Pl’s direction and one of them hit him in the eye.

o Rule: When multiple defendants are negligent, but only one of them could have caused

the injury, the court will hold them all liable when it cannot determine which of thedefendant’s caused the damage. The burden shifts to the defendant to prove they did not

cause the damage.

The plaintiff must bring all possible tortfeasors before the court.

o Multiple, alternate causation:

- Sindell v. Abbott Laboratories: Woman’s mom took DES and got cancer.

o Market share and liability is based on likelihood that the defendant’s product was the one

that was supplied to the Π and caused the harm

Loss of Chance: Causing reduction of opportunity to recover (or loss of chance) does not necessitate a

total recovery. Damages should be awarded only on damages created by premature death, such as lost

earnings and additional medical expenses

- Herskovits v. Group Health Cooperative of Puget Sound : Dr’s failure to diagnose a man’s

cancer reduced his survival chances from 39 to 25 percent.

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o Rule: Determine damages by loss of chance, (occurs mostly in med malpractice for those

who have died.)

o Substantial Factor Test: The ∆ s actions were a substantial factor in the resulting harm;

whether the reduction of probability of survival had a substantial impact on the Π s

chances

PROXIMATE OR LEGAL CAUSE:

Definitions:

- Proximate Cause: The proximate cause of an injury is that which, in a natural and continuous

sequence, unbroken by any efficient intervening cause, produces an injury, and without which

the injury would not have occurred.

o Factors in considering proximate cause:

Cause in fact-(but for test)

Natural and continuous in sequence

Remoteness of time and space

Prudent foresight

- Legal Cause: Such that the issue is whether liability should be imposed, not whether the Def’sact was a cause in fact of the Pl’s harm

Foreseeability Test: Where it is reasonably foreseeable that the Def’s negligent conduct would cause

damages to the Π the Def. is liable even though the exact extent of the damages is not foreseeable.

CR §435. Foreseeability of Harm or Manner of its Occurrence: If the actor’s conduct is asubstantial factor in bringing about harm to another, the fact that the actor neither foresaw nor should

have foreseen the extent of the harm or the manner in which it occurred doesn’t prevent him from

being liable.

Remote Causation: In determining how far the law will trace causation and afford a remedy, the facts

as to the Def’s intent, his imputable knowledge or his justifiable ignorance are often taken into account.

- Zone of Danger: A Def. is liable in negligence only to Π s who are in the reasonably foreseeable

zone of danger

Relevant Cases:

- Ryan v. New York Central R.R. Co. : RR set fire to a shed and it spread to Def’s property.

o Rule: A Def. is only liable for the ordinary and natural results of his negligent conduct.

- In Re Arbitration Between Polemis and Furness, Withy & Co., Ltd : A plank fell on a ship and afreak fire occurred from a spark.

o Rule: The fact that the kind of damage which an act might cause was not the damage the

anticipated is immaterial so long as the resulting damage is directly traceable to the

negligent act and is not due to independent cause having no connection with the negligentact.

o Court’s rule emphasized directness in how the events unfolded as a key consideration.

- Wagon Mound No. 1: Wagon Mound leaked oil into harbor and a fire started.

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o Rule: Even though injury may result from a negligent act, liability for injury is limited to

the reasonably foreseeable risk, foreseeability is the limit of liability. It is not enough to

anticipate some harm, must anticipate the type of harm.

- Wagon Mound No. 2: Same as Wagon Mound No. 1

o Rule: Even if the risk is small, the actor is liable if the damage caused by the risk is

foreseeable. A reasonable man would only neglect a small risk if it involved considerableexpense to eliminate it. (Learned Hand)

- Palsgraf v. Long Island R.R. Co. : Man dropped fireworks under train.

o Rule: If plaintiff is in the foreseeable zone of danger or within range of apprehension,

then damage to them is foreseeable.

o Andrew’s dissent-Duty is to society as a whole. A defendant owes a duty to someone

who experiences injuries as a proximate result of his breach of duty.

Unforeseeable Consequences:

- Eggshell Skull Rule: A def. is liable to theΠ in damages for the aggravation of Π ’s

preexisting illness due to the Def’s negligent conduct, including mental illness.o Rule: Eggshell Skull Rule -When a preexisting condition causes unforeseeable

consequences in an event that causes physical injury to the plaintiff, the plaintiff is also

allowed to recover for the unforeseeable consequences

o Bartolone v. Jeckovich: Car accident aggravated Pl’s preexisting schizophrenic

condition.

- Intervening Cause: An event that comes between the initial event in a sequence and an end

result, thereby altering the natural course of events that might have connected a wrongful act to

an injury

o Superseding Cause: An intervening act that the law considers sufficient to override the

cause for which the original tortfeasor was responsible, thereby exonerating thattortfeasor from liability.

o Third Party Intervention: Where the act of a 3rd party intervenes between the Def’s

negligent conduct and the Pl’s injury, the causal connection is not severed if the

intervening act is a normal and foreseeable consequence of the risk created by the Def’snegligent conduct.

CR §439. Effect of Contributing Acts of 3rd Persons When Actor’s Negligence is

Actively Operating: If the effects of the actor’s negligent conduct actively and

continuously operate to bring about harm to another, the fact that the active and

substantially simultaneous operation of the effects of a 3rd person’s innocent, tortious

or criminal act is also a substantial factor in bringing about the harm does not protectthe actor from liability.

Relevant Cases

- Yun v. Ford Motor Co. : A man ran across a street to fetch a spare tire that came loose.

o Rule: The fact that the plaintiff made a decision to interject himself into a position of risk

means that the defendant is not liable. He was a superseding cause.

- Derdiarian v. Felix Contracting Corp. : Truck crashed on work site and Pl. was splattered with

400* liquid.

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o Rule: 3rd Party Intervention: The fact that there was an intervening cause by a third party

does not supersede the defendant’s liability because the employer had a duty to protect

the workers from negligent intrusion into the work site.

o Rule: When the risk that is manifested is the same risk that makes the conduct negligent it

cannot be a superseding cause.

- Watson v. Kentucky & Indiana Bridge & R.R. Co. : Man lit a match near an oil spill.o Rule: A negligent Def. is not liable for the intentional intervening malicious acts of a 3rd

party which are not reasonably foreseeable.

- Fuller v. Preis: Pl. committed suicide after a car accident.

o Rule: An act of suicide is not, as a matter of law, a superseding cause in negligence law

which precludes liability of the original tortfeasor. It is a matter of fact for the jury todetermine if it is a superseding cause

The Rescue Doctrine: Allows an injured rescuer to sue the party that caused the danger requiring therescue in the first place – may be invoked in products liability actions

• Elements to achieve Rescuer Status:

o The defendant was negligent to the person rescued and such negligence causedthe peril or appearance of peril to the person rescued

o The peril or appearance of peril was imminent

o A reasonably prudent person would have concluded such peril/appearance of peril

existed

o The rescuer acted with reasonable care in effectuating the rescue

• The rescuer must still show that the defendant proximately caused the resulting injury to

the rescuer

• You cannot recover under RD if the risk that occurs is inherent in the job or in theoperation undertaken.

Social Host Liability: In New Jersey, most other states don’t apply it. It relates to adult guests and alsofor minors.

Relevant Cases:

- McCoy v. American Suzuki Motor Corp. : Pl. stopped to help someone and was hit by a car.

o Rule: Rescue Doctrine

- Kelly v. Gwinnell : Adult Def. drank at Zak’s home and drove home.

o Rule: A host is liable for the negligence of an adult social guest who has become visibly

intoxicated at the host’s home, and where risk of harm to others is foreseeable. (the rule

in NJ, not the majority rule)

- Enright v. Eli Lily & Co .: A DES granddaughter sued someone.

o Rule: An injury to a mother, which results in injuries to a later conceived child, doesn’t

est. a cause of action in favor of the child against the original tortfeasors.

DEFENSESPLAINTIFF’S CONDUCT:

Contributory Negligence: Bars recovery if Π . was at all negligent

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- Burden of Proof : defendant must show that plaintiff was negligent AND that the negligent

conduct was a proximate cause of plaintiff’s injuries

o Usually left for the jury to decide

- Is not a defense to an intentional tort or in cases where the Def. has engaged in wanton andwillful or reckless conduct, but can be a complete defense to negligence

o Is a defense in cases where Def. engages in negligence per se for a violation of statuteexcept when the statute explicitly abolishes contributory negligence defense

- Doctrine of Last Clear Chance: If the Def. had the opportunity to avoid the accident after theopportunity was no longer available to the Pl., then the Def. should bear the loss

o Depends on whether Pl. was helpless and unable to avoid the danger or merely inattentive

- Relevant Cases:

o Butterfield v. Forrester : Pl.’s horse fell on pole Def. put in road. Pl. was speeding.

Rule: An injured Pl. may not recover damages against a negligent Def. if the Pl.

did not exercise reasonable and ordinary care to avoid the injury.

o Davies v. Mann: Def’s wagon ran into Pl’s ass, which was illegally grazing by the road. Rule: Doctrine of Last Clear Chance

Comparative Negligence:

- Types of Comparative Negligence:

o Pure: (≈ 12 states) A Π ’s damages are reduced in proportion to the percentage

negligence attributed to him.

o Modified (Π not greater than): Pl’s recovery is reduced by the percentage of fault

attributed to him as long as his fault is not greater than the Def’s fault (≈ 20 states,

including IL)

Never adopted last clear chance doctrine, but instead uses wanton and willful or reckless acts standard

Allows for 50-50 Π recovery

o Modified (Π . not as great as): Pl’s recovery is reduced by the percentage of fault

attributed to him as long as his fault is not as great as the Def’s fault (≈12 states)

Does not allow for 50-50 recovery by Π . 49% jurisdictions

No last clear chance or contributory negligence

- Multiple Defs: Π will be entitled to recover as long as Π ’s fault is less than the combined fault

of all tortfeasors (IL Rule)

o Renders joint and several liability obsolete

o Differs from state to state

- Burden of Proof : defendant must show that plaintiff was negligent AND that the negligentconduct was a proximate cause of plaintiff’s injuries

- Factors for assigning percentages of responsibility:

o The nature of the person's risk-creating conduct, including any awareness or indifference

with respect to the risks created by the conduct and any intent with respect to the harmcreated by the conduct; and

o The strength of the causal connection between the person's risk-creating conduct and the

harm.

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McIntyre v. Balentine: car accident. Δ hits Π, but both had been drinking that evening.

Factors For Assigning Shares Of Responsibility

- Factors for assigning percentages of responsibility to each person whose legal responsibility has

been established include

(a) the nature of the person's risk-creating conduct , including any awareness or indifference withrespect to the risks created by the conduct and any intent with respect to the harm created by the

conduct; and

(b) the strength of the causal connection between the person's risk-creating conduct and theharm.

Assumption of Risk: A Π . is said to have assumed the risk of certain harm if she has voluntarilyconsented to take her chances that that harm will occur.

- Express Risk: The risk is assumed by express agreement, through contracts and such

o Is a complete defense

o Exceptions to enforcement of exculpatory clauses:

When the party protected by the clause intentionally causes harm or engages inacts of reckless, wanton or gross negligence

When the bargaining power of one party to the contract is so grossly unequal so

as to put the party at the mercy of the other’s negligence AND

When the transaction involves the public interest

o Contract of Adhesion: A contract that is drafted unilaterally by the dominant party and

then presented on a “take-it-or-leave-it” basis to the weaker party who has no realopportunity to bargain about its terms.

o Two issues when Def. asserts Π expressly assumed a risk:

Whether risk that injured Π falls within the unambiguous terms of the agreement

Whether the contract itself violates public policy and so shouldn’t be enforced

- Implied Risk: Risk may be assumed by Pl’s conduct

o In order to show Pl’s implied assumption of risk:

The Pl. must have actual knowledge of the particular risk

• Knowledge may be implied where the reasonable person would know of it

Appreciation of its magnitude AND

Voluntary encountering of the risk

• The encountering is not voluntary if the Pl. has no other options

- Relevant Cases:

o Seigneur v. Nat’l Fitness Institute, Inc.: Woman was injured at a gym.

Rule: fitness gym is not an “essential service,” and not gross bargaining power

because plenty of competitive fitness clubs.o Rush v. Commercial Realty Co.: Pl. fell through a hole in an outhouse floor.

Rule: A person doesn’t voluntary accept a risk when no reasonable alternativesexist. No assumption of risk when the Π has no reasonable choice but to

encounter a known danger.

o Blackburn v. Dorta: father runs into burning house to retrieve child

Traditional Assumption of risk doctrine: Π barred from recovery bc assumed risk,even if did so reasonably

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Comparative Negligence jurisdiction: if Π’s decision to place self in particular

danger in reasonable, Π’s conduct is not negligent and recovery will not bereduced.

STATUTES OF LIMITATIONS AND REPOSE:

Statute of Limitations:- Continuing Torts: In some medical malpractice cases, the statute of limitations doesn’t begin to

run until the course of treatment was complete

- Discovery Rule: The statute of limitations doesn’t begin to run until the negligent injury is, or should have been discovered. (Medical Malpractice cases.)

o In some jurisdictions, only for foreign objects left in the body

o Discovery rule can be narrow or broad depending on what Π must discover

Ex. Discover injury or that injury was caused by Δ’s conduct?

- Tolling: Sometimes the statute of limitations is put on pause for some special circumstance, such

as when there is a minor or legally disable Π

Statute of Repose: limits potential liability by limiting the time during which a cause of action can

arise.- In IL there is a Statute that says the absolute cut off date is 4 years after the injury occurred and

not when the injury is discovered.

Relevant Cases:

- Teeters v. Currey: A woman had her tubes tied and got pregnant anyway. 2 years after the

surgery she gets pregnant. She found after the pregnancy that her tubes were tied negligently

o Rule: The Discovery Rule

IMMUNITIES:

Family: Old common law says spouses couldn’t sue each other, but they are becoming obsolete

- Children may not usually sue their parents- Exceptions to Partial Abrogation:

o When the action is for personal injury inflicted intentionally or is willful or wanton

o When the relationship has been terminated before suit by death of the parent or child

o When the Def. has a step-parent or other person standing in loco parentis

o When the child has been legally emancipated

Charities: Non-gov’t charitable institutions are liable for their own negligence and the negligence of their employees

Employer Immunity: Worker compensation acts as an alternative to the tort system, so many

employees are not allowed to use the system to recover.

State and Local Gov’ts: Pretty much no longer exists

- Those states that have eliminated gov’t immunity have retained immunity for the legislative and judicial functions of the gov’t

- There is usually a cap on damages

- Many states retain immunity for discretionary functions, but not ministerial functions

o Discretionary functions: The gov’t is acting to est. policy

o Ministerial functions: Acts that implement or effectuate the policies

The Fed’l Gov’t:

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- The Fed’l Tort Claims Act of 1946: Cong. waived the immunity to civil suit enjoined by the US

and gives consent to be sued for damages in fed’l court – Three exceptions

o Discretionary Function Exception: Shields the gov’t from liability for claims based on

the exercise or performance of a discretionary function or duty on the part of a fed’lagency or agent

o Any claims arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit or interference

with contract rights

o Any claim rising out of combatant activities of the military or naval forces, or the Coast

Guard, during time of war

Public Officers:

- Legislatures and judges have absolute immunity for acts committed within the scope of their

office even if they acted in bad faith

- Fed’l executive officers also benefit from the immunity

o The President is absolutely immune for acts within the scope of his office

- Official immunity is available only with respect to the acts that are discretionary

Relevant Cases:- Freehe v. Freehe: A husband sues his wife for injuries caused by her tractor.

o Rule: Abolished spousal immunity

- Renko v. McLean: A daughter sued her mother for injuries sustained in a car accident.

o Rule: Child-parent immunity stands

- Abernathy v. Sisters of St. Mary’s: A man was injured at their charity hospital.

o Rule: Abolished immunity for charities.

- Ayala v. Philadelphia Board of Public Education: A student was injured in shop class.

o Rule: Abolished immunity for gov’t entities

- Riss v. New York : A woman was injured by an attacker after police ignored her pleas for help.

o Rule: Cities are immune from liability for the negligent failure to provide adequate

police protection.- DeLong v. Erie County: A woman called the cops and they said they would send someone.

o Rule: When a relationship is created between an individual and the police which gives

rise to a special duty, the municipality loses its gov’t immunity

JOINT TORTFEASORS

LIABILITY AND JOINDER OF DEFENDANTS:

Joinder: Is permitted when Π ’s claim arises from the same transaction, occurrence or series of

transactions or occurrences and if any question of fact or law common to all Defs will arise in the action.**for joint liability: 25% for all other liability besides medical expenses. No matter what

percentage, always liable for medical expenses.

Joint and Several Liability: Means each of the several tortfeasors is liable jointly with the others for the amount of judgment against them, and that each is also individually liable for the entire amount

- Imposed when:

o The tortfeasors acted in concert or acted independently to cause an indivisible harm; and

o The Defs fail to perform a common duty to the Π

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- The Uniform Comparative Fault Act: Continues joint and several liability, but provides for the

determination of each party’s equitable share of the obligation in accordance with his percentage

of fault.

Relevant Cases:

- Bierczynski v. Rogers: Defs were racing and there was an accident.o Rule: Tortfeasors who act in concert are jointly liable for injuries to a 3rd person

regardless of which party directly inflicted the injury or damage

- Coney v. J.L.G. Industries, Inc: Man died while working on an aerial work platform.

o Rule: Comparative negligence doesn’t eliminate joint and several liability

- Bartlett v. New Mexico Welding Supply, Inc. : Def. hit Π when Π braked for an unknown driver.

o Rule: In a comparative negligence jurisdiction, a concurrent tortfeasor is not jointly and

severally liable for the entire amount of the Pl’s judgment

SATISFACTION AND RELEASE:

Satisfaction: Where Π recovers full payment from one tortfeasor

- Partial Credit Rule: All states provide for a credit against the judgment for the partialsatisfaction of the judgment, which is reduced by the amount of any partial satisfaction

- Payments made by the tortfeasor’s liability insurance company are made on his behalf and

credited against the judgment.

Release: Surrender of Π ’s cause of action against the party to whom the release is given.

- Majority of states hold that the release of one tortfeasor doesn’t discharge other tortfeasors

- The claim against the other is reduced to the extent of the amount stipulated in the agreement or

the amount of consideration paid, whichever is greater

- General Release: Forecloses lawsuits against other tortfeasors who may arise

Covenant Not to Sue: Says Π . doesn’t surrender the cause of action, but contracts not to sue on it.

Relevant Cases:

- Bundt v. Embro: Pl. and other injured passengers of 2 cars sued owners and drivers for injuries.o Rule: Plaintiff is entitled to full satisfaction of the injury but no more, not a windfall.

- Cox v. Pearl Investment Co.: Pl. settled with one Def. and then sued Pearl.

o Rule: A contract between one tortfeasor and the Pl., where the parties intend to reserve to

the Pl. the right to sue the co-tortfeasor, doesn’t release the co-tortfeasor from liability.

CONTRIBUTION AND INDEMNITY:

Contribution: One tortfeasor can require another to help him pay part of the judgment

Rule: Contribution: When two or more persons become liable in tort to the same person for the sameharm, there is a right of contribution among them, even though judgment has not been recovered against

all or any of them.

- Once a single tortfeasor has discharged the entire claim for the harm (thus paying more thanhis equitable share of the common liability), that tortfeasor may sue other (unsued) tortfeasors

for contribution; this claim is limited to the amount paid by him in excess of his share.

- No tortfeasor can be required to make contribution beyond his own equitable share of the

liability UNLESS there is a tortfeasor against whom recovery is not possible (this would be a

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tortfeasor who cannot be found or a tortfeasor who is insolvent). Then all of the tortfeasors who

can pay share this tortfeasor's share of liability.

- Joint Tortfeasor Contribution Act:

o A settlement is collusive or in bad faith only if it constitutes a crime or tort against

another partyo No one has a right of contribution until judgment has been entered

o It’s not the Π who takes the loss for insolvent Defs – it’s the other Defs

With the exception of the 25% rule

- Ill.’s 25% Rule: If a Def. is less than 25% liable, he will not be liable to pay any share of an

insolvent Def’s liability with the exception of medical damages

- Pro rata share: amount to be paid based on the fractional share of responsibility

o If a Δ has paid more than his pro rata share, he may be able to obtain contribution from

the other Δ’s

- Comparative negligence jurisdiction: person entitled to recover contribution may not recover

more than the amount paid to the plaintiff in excess of the person’s comparative share of

responsibility

Indemnity: Indemnity applies when a party is able to recover the full amount of damages from another person who is actually liable for the damages.

Ex: a toy store is sued by a customer who is injured by a malfunctioning product, the toy store

may be able to recover the full amount of any damages from the factory that produced thedefective toy, if it is actually the factory that is at fault.

Relevant Cases:

- Knell v. Feltman:

o Rule: The right to contribution doesn’t exist only between tortfeasors against whom the

Π has obtained a judgment.o Non-intentional tortfeasors can obtain contribution

Don’t want Π and Δ1 to gang up on Δ2

- Yellow Cab Co. of D.C., Inc. v. Dreslin: Pl. was injured in a car accident. Pl. sued Yellow Caband they cross-claimed against her husband for any sums recovered

o Rule: the co-tortfeasor being sued for contribution must be liable to the original Π.

o The majority trend is to allow an immunity to protect a tortfeasor from contribution.

- Slocum v. Donahue: A drunk man killed a kid with his car, claiming the accident was caused by

a floor mat due to a manufacturing defect.

o Rule: A settling tortfeasor is protected from a contribution claim made by a non-settling

tortfeasor.

o Small settlement amount does not by itself demonstrate that a settlement was collusive or

in bad faith

FAILURE TO ACT:

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Duty to Rescue: Generally there is no duty to rescue, but having effected it, the rescuer is entitled not

to harm the person whom he has rescued

- A duty to act is imposed whenever the Def. assumes a responsibility to act and such undertaking

increases the risk of such harm or is relied upon by the Π to her detriment

- When the Def. by his own negligence injures another, he is then under a duty to take reasonable

affirmative action to aid him.

Relevant Cases:

- Hegel v. Langsam: Pls sued university for allowing their daughter to be a slutty freshman

o Rule: A university doesn’t have the duty to control the private lives of its students.

- L.S. Ayres & Co. v. Hicks: A boy got his fingers stuck in an escalator at a store.

o Rule: There is a legal duty to take positive or affirmative steps to effect the rescue of a

person when the Def. is a master or an inviter, or when the injury resulted from use of an

instrumentality under the control of the Def.

- J.S. and M.S. v. R.T.H. : Two girls spent a lot of time with a man and his horses.

o Rule: When a spouse has actual knowledge or special reason to know of the likelihood of her spouse engaging in sexually abusive behavior against someone, a spouse has a duty

of care to take reasonable steps to prevent or warn of the harm, and a breach of such aduty constitutes a proximate cause of the resultant injury.

- Tarasoff v. Regents of University of California: A boy tells a therapist he will kill a girl and does

o Rule: The relationship between a therapist and a patient supports the duty on the part of

the therapist to exercise reasonable care to others against dangers posed by the patient.

NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS: duty

- Π’s are sometimes allowed to recover for mental sufferings caused by Δ’s conduct, even where Π

has not suffered physical injuries.- Electrical explosion in Π’s house. 2 kids suffer traumatic neurosis, emotional disturbance,

and nervous upset.

Where a definite and objective physical injury is produced as a result of emotionaldistress proximately caused by defendant’s negligent conduct, the Π may recover in

damages for such physical consequences to himself even if there is no physical

impact upon Π at time of mental shock.

- When the defendant causes an actual physical impact to Π’s person, he is liable not only for physical

consequences of impact but also for virtually all emotional or mental suffering which flows naturally

from it.

- No recovery for hypersensitive mental disturbance where a normal individual would not be effected

under circumstances.- Physical harm or illness of Π must be the natural result of the fright proximately caused by Δ’s

conduct.

Bystander Cases:

- Zone of danger : the bystander must be at personal risk for her own safety and must fear for her ownsafety to recover for emotional distress

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- Mom doesn’t witness Thing’s accident: Π may recover damages for emotional distress caused by

observing the negligently inflicted injury of a third person if the Π is:

1. Closely related to the injury victim (by blood or marriage: more likely to suffer greater degreeof emotional distress)

2. Present at the scene of the injury-producing event at the time it occurs and is then aware that it

is causing injury to the victim3. As a result, suffers serious emotional distress—a reaction beyond that which would be

anticipated in a disinterested witness and which is not an abnormal response to the

circumstances

** close relatives who witness accidental injury or death of a loved one and suffer emotional trauma

may not recover when the loved one’s conduct was the cause of that emotional trauma.

Direct Victim: A direct victim is a person whose emotional distress is a reasonably foreseeable

consequence of the conduct of the Def.

Physical Manifestations: to recover need either physical impact + emotional distress OR emotional

distress + physical manifestations– two exceptions:- The death-telegram rule: Recovery for emotional harm resulting from negligent transmission by

a telegraph company of a message announcing death – minority rule

- Negligent interference with dead bodies

PREMISES LIABILITYATTRACTIVE NUISANCE DOCTRINE:

CR §339. Artificial Conditions Highly Dangerous to Trespassing Children: A possessor of land is

subject to liability for physical harm to children trespassing thereupon caused by an artificial condition

upon the land if:- The place where the condition exists is one upon which the possessor knows or has reason to know

that children are likely to trespass, AND- The condition is one of which the possessor knows or has reason to know and which he realizes or

should realize will involve an unreasonable risk of death or serious bodily harm to such children AND

- The children of their youth do not discover the condition or realize the risk involved in intermeddling

with it or in coming within the area made dangerous by it AND- The utility to the possessor of maintaining the condition and the burden of eliminating the danger are

slight as compared with the risk to children involved AND

- The possessor fails to exercise reasonable care to eliminate the danger or otherwise protect the

children.

DUTY:

Traditional approach is to craft a duty obligation in relation to the statue of the entrant who later becomethe plaintiff:

1. Trespasser: No duty with many exceptions

a. Activities highly dangerous to constant trespassers on a limited area (known or shouldhave known of trespassers)

b. Highly dangerous artificial conditions if know or should know of trespassers

c. Activities dangerous to known trespasser

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2. Licensee: On the property with consent, but only consent and are typically not conferring any

benefit on the possessor of the land. Usually includes social guests

a. Activities dangerous to licensees b. Dangerous conditions known to or knowable by possessor

c. Often NO duty of inspection or repair of premises

3. Invitees-Public invitees and business visitors; individuals who are on the property that isgenerally open to the public (public library, store patrons, delivery persons)

a. Activities dangerous to invitees

b. Dangerous conditions known to or discoverable by possessor c. Duty of inspection or repair of premises

4. Content of Duty

a. Often warning suffices to fulfill the duty obligation (less likely so for invitees)

b. Often will not extend duty to known or obvious dangersi. Distracted Shopper: : if a risk is open and obvious but might not be noticed

because of distractions in the situation, then a risk that seems open and obvious

may not be

c. Activities vs. Conditionsi. Activitites are controlled by the ∆ and create a greater duty obligation

ii. Conditions are passive state of the premises and thus lower duty obligation5. In some states, legislatures and courts have abolished categorical approach, applying instead

general negligence principles

a. IL abolished distinction btwn licensees and invitees

§520 Abnormally Dangerous Activites

In determining whether an activity is abnormally dangerous, the following factors are to be considered:

a) existence of high degree of risk of some harm to the person, land or chattels of others; b) likelihood that the harm that results from it will be great;

c) inability to eliminate the risk by the exercise of reasonable care;d) extent to which the activity is not matter of common usage;e) inappropriateness of the activity to the place where it is carried on; and

f) extent to which its value to the community is outweighed by its dangerous attributes.

UNBORN CHILDREN

I. Injury to Fetus

a. Third party (not a family member) is defendant.i. Fetus is viable when injured, is born alive.

1. Later dies. Recovery allowed.

2. Sustains injuries. Recovery of damages allowed in common-lawnegligence claim. Parents may not recover for loss of society.

ii. Fetus is not viable when injured, is born alive.

1. Later dies. Might have recovery under Wrongful Death Act but unclear.2. Sustains injuries. Duty owed

iii. Fetus is viable when injured, is still born.

1. Recovery allowed. Damages allowed to parents for loss of societyiv. Fetus is not viable when injured, is stillborn.

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1. 1980 amendment to Wrongful Death Act allows recovery in this situation,

although some courts limit this

b. Mother is defendant. No claim for unintentional injury.II. Wrongful Life

a. action of person against parents for conceiving and/or delivering him, or against 3rd

person for permitting him to be borni. No recovery allowed.

III. Wrongful Birth

a. Action by parents of defective child against third person for permitting child to be borni. Mother would have had abortion of hemophilic child. Court allowed

extraordinary expenses attributable to defect during minority, but not for

emotional distress of parents.

IV. Wrongful Pregnancya. Action by parents against third person for permitting the pregnancy; parents sue for

damages.

b. Recovery denied for costs of raising normal child; dicta recognizes cause of action for

expenses and pain associated with childbirth.c. Recovery denied for extraordinary expense of child with ADD.V. Endresz v. Friedburg (NY Court of Appeals 1969)

a. Stillborn twins after car accident

b. NOT LIABLE-The parents of an unborn fetus whose birth was prevented by

negligent conduct may not bring a wrongful death action to redress the wrong

which was done. (this is applying NY law, in IL parents could have recovered under theWrongful Death Act)

c. Wrongful Death Action-implies that there was life

d. NOTE-Why no recovery for unborn fetus:i. Assumed fetus had no separate existence from mother

ii. Problems of proving causation in fact

iii. Damages would be too speculativee. NOTE- physician owes a duty to an expectant mother, negligence in causing a

miscarriage, mother can recover for emotional distressVI. Procanik by Procanik v. Cillo (Supreme Ct. of NJ (1984)

a. Failure to diagnose led to handicapped child, she might have terminated pregnancy if she

had known

b. NOT LIABLE- Wrongful Life claim: An infant plaintiff asserts he should not have

been born BUT FOR the negligent act of doctors that failed to give his parents

choice to terminate the pregnancy

i. Universally rejected by courts

1. Policy-Who are the courts to say these people never should have been born

ii. Some recovery for medical expenses for parents, NONE for pain and suffering

c. LIABLE- Wrongful Birth claim: Parents of child allege that negligent advice or

treatment deprived them of the choice of terminating pregnancy.

i. Some courts have allowed for recovery of birth costs and mother’s lost wages

ii. One involving birth defects -> options for courts

1. Full recovery of lost wages and medical expenses

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2. No recovery at all

3. Claims only allowed by health providers

d. Woman has become pregnant by tortious conduct of defendant allow recovery when:i. There was a lack of informed consent

ii. Negligent performance of a sterilization procedure

torts (1) outline ab

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