torts outline megan

8/8/2019 Torts Outline Megan

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Section 1: Preliminary Concepts-Intro to Torts1. Goals of tort law:

a. Make reparations/compensation for injured partiesb. Deter wrongdoingc. Force D to internalize costs (to create an economically efficient level of accidents)d. Punish breach of social normse. Provide dispute resolution mechanism

2. Rule vs. Standard:a. Standards are more open to interpretation/rules provide clear guidanceb. Standards are flexible, change with the context, applies in degrees/rules are strict, inflexiblec. Standards are broad, harder to enforce/rules are easier to enforce, more predictable, but narrower

3. Law and Economics:a. Goal is to break torts loose from moral concerns. Use law as a tool for promoting economical

efficiency. Goal is to achieve economically efficient level of accidents. Tradeoff between safety

and other values.Assumptions: human beings are rational actors making rational choices to maximize their welfare.

Externalities= costs not reflected in a market price of a good. Usually person causing externalitiesmust internalize it.

b. Coase theorem: if transaction costs are negligible, then it doesnt matter who is liable becauseeconomically efficient result will occur anyways.Related to lowest cost avoider approach.

c. Efficiency= increase net value of resources4. Elements of Negligence-need all to establish negligence:

a. Dutyb. Breachc. Cause in factd. Proximate causee. Damages

5. Stanley v Powell without negligence or intent to do harm (COA), P cannot recover for damages, eventhough he was injured by Ds shot because it was not intentional or resulting from neg. No liability in tortwithout fault

a. Exception-Strict liability in two types of cases: 1) ultra hazardous activities 2) defective products6. Fowler v Lanning same rule as Stanley, but adds that the BOP for NEG lies with the P, not the D.(issue here was BOP)

7. Once COA is established,procedural law must also be followed.8. Pleadings Stage - can either file

a. Motion to Dismiss (demurrer) says, even if these facts are true, not cause of action, everyone filesone, earliest stage where can test legal sufficiency of allegations even if they are true, look at factsin light most favorable to P.

b. Motion for SJ- challenges P to show evidence and says no evidence to sustain cause, court looksat all evidence in light most favorable to non-moving party and if impossible to find for him,

dismiss case.Difference from demurrer is discovery occurred.

c. Motion for directed verdict- After trial starts, opening arguments, P has witnesses, at close ofP'scase in chief, D moves for directed verdict. Judge does not want to do this b/c he would rather havejury do the dirty work.

d. JNOV made after jurys decision if judge thinks not enough evidence to convict, appellate courtcan just reverse this, where as if had given directed verdict, trial would start all over again

Section 2: Intentional Torts

1. Battery: Intentional infliction of a harmful or offensive contact with the person or plaintiff.a. Elements ofBattery

i. D must act (volitional muscular movement)ii. Act must be intentional


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iii. Act must cause a contact with the victim and the intended contact must be either harmful oroffensive to the victim.

b. Intent Requirement: Subjective standard (in the mind of the D)i. No contact is intentional if it is not the result of a voluntary act.

ii. Must act for the purpose of inflicting a harmful or offensive contact, ORrealize that a contactis substantially certain to result.Battery does not require intent to harm, just unconsented and

offensive touching.iii. An actor can possess tortious intent even though they bear no ill will to the victim

whatsoever.iv. P is not required to prove intent to cause specific injuries resulting from the contact.

c. Offensive Contact: Offends a reasonable sense of personal dignity.i. IfD knows that a P will find something offensive, and does it anyways, even if its a tap on

the shoulder, then D is liable for battery. NO requirement to prove damages.ii. Minority view-D must realize that contact is offensive.

iii. Something can be offensive to a reasonable person precisely b/c it was unconsented. (toprotect autonomy) except in emergency situations.

iv. D need not actually touch P at all, or even be present at time of contact to commit battery.v. D is liable for ALL of the consequences of the battery.

1. Rationale: because intentional torts are deliberate actions to invade another's rights, itseems appropriate to impose all resulting damages on the actor rather than the innocentvictim.

d. FL says that battery and neg are mutually exclusive, MD says they are not (Ghassemiah)2. Assault: an act intended and succeeded in putting another person in reasonable apprehension of an

immediate battery.a. Elements:

i. Act with intentii. Place victim in reasonable apprehension of harmful or offensive contact or to make such

contact.iii. Unconsented to by the victim

b. Intent Requirement (same as battery):i. Must act with purpose to cause apprehension of a contact or substantial certainty that it willresult.

ii. One who attempts to batter the P but misses is liable for assault if the P is placed inapprehension of a blow.

c. Apprehension of harmful or offensive contact (same as battery):i. P must prove that they actually feared the type of contact that would support a battery claim if

it actually occurred.

ii. Apprehension means perception or anticipation of a blow, rather than fright.Must also beimminent-does not mean immediate .Means "it is enough that one is so close to striking

distance that he can reach the other almost at once, or he can make the weapon ready for

discharge in a very short time". -Restatement.P doesnt have to know if its imminent.iii. Fear of future conduct is not assault.iv. Does not matter whether or not the actor is in fact able to make the threatened contact.v. Mere words alone cannot constitute assault unless combined with other acts or circumstances

that make victim apprehensible.

vi. Conditional Threat:1. Not assault if the words negate the intent to cause harm "if you werent so old I'd" but

otherwise, its considered assault.

3. Universal elements of Intentional Torts:a. Consent:


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i. Factual question for the jury.Can be either express or implied1. Customary uses can imply consent.2. Circumstances of the situation can imply consent, something can be offensive to a

reasonable person precisely because it was unconsented. Emergency situation implies

consent.b. Transferred Intent:

i. Between People- An actor intends to commit battery on one person and actually inflicts oneon someone else.

ii. Between Actions- Allows recovery where the actor attempts any of the intentional torts butcauses another. (i.e. if actor intends to commit assault by scaring someone but actually harms

them, then actor will be liable for battery instead).iii. If original intent by D to A is not offensive or wrongful, but then hits B who is not consenting

and would find it offensive, intent does NOT transfer.(may be liable for neg).c. Child Standard for Intentional torts:

i. Standard for battery is same as for adults, so long as they have the capacity to form intent.They do not have to understand what they are doing, they just have to intend this. Usually

children below 5 do not have the capacity to form intent.

Section 3: Duty

1. General Principles of Duty: Judge imposed-juries do not decide whether or not a D owed a duty to P.a. Generally- If someone engages in an affirmative act that creates a foreseeable and unreasonable riskof physical injury or property damage to another, then duty is owed. (Heaven v.Pender).

b. Factors in deciding when to impose duties:i. Foreseeability and extent of the likely harm from the D's conduct

ii. If the D is uniquely positioned to prevent harmiii. Burden that new duty will impose ofDiv. Alternative ways of protecting the P's interestv. Increased safety likely to result

vi. Chilling effect on D's conductvii. Policies established by the legislature (e.g. imposing duty on police to arrest drunk drivers).

viii. Admin problems for courts in enforcementc. Hand's Formula for duty (US v.Carroll Towing): BPL doesnt work as well for momentaryinadvertence like one small mistake that you do that is not planned. Also if you cant quantify somefactors.

i. P=probability of injury, B=burden of adequate precautions, L= gravity of resulting injury.ii. IfBPL, there may not be a dutyd. Relationship between the Parties: Proximity

i. Duty to take care when the person is in such proximity to another that damage might be doneto him without reasonable care.

i. Not limited to physical nearness1. Snail in ginger beer proximity of use - Donoghue v Stevensone. Foreseeability ofP

i. Injured party must have been foreseeable, probable, wrong must have been to that person, not3rd party - Cardozo in Palsgraf v Long Island RR

ii. Andrews: duty owed is to the public at large to all who were there as well as all who mighthave been.

f. Childreni. Traditional rule-no duty to trespassers -exception: Dallas v. Granite Steel - expense and

inconvenience of remedying the condition is slight compared to the risk to the kids. There was

an attractive nuisance in this case, otherwise there would be no duty to trespassers.g. Controlling the Actions ofOthers:


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i. In general, there is no duty to protect another from a criminal act by a third party, or to controlthe conduct of others unless a special relationship exists.Roberson v. Allied Foundry

ii. IfD has control over doer (custodial relationship-can extend this by analogy for public policyreasons),

1. Foreseeability of harm done by the evildoer is sufficient to establish a duty owed by D(even though D does not have control over both doers and victim).Home Office v.

Dorset Yachth. Seller of Goods

i. Seller must anticipate the environment that is normal for the use of his product and thereasonably foreseeable risks involved therein -duty to design a crashworthy car.Mickle v.

Blackmoni. Public policy aspect of duty:

i. Balance of public expense against probability of greater safety to individualsii. When an activity is inherently dangerous, other people do not generally owe a duty to make

sure you are safe .Cuts liability off short of foreseeability of for public policy reasons- Olsonv.Village ofOakLawn

3. No liability for failure to acta. Rationale: Duty to act would infringe upon individual liberty, hard to define the duty to be

imposed, which bystanders would have to step in, you might endanger yourself.b. Exceptions:

i. Duty based on special relationship to the victim1. Examples: train conductor/passenger, factory owner/employee, school officials/sick

child, guard/prison inmate.

2. D is not the source of injury but they must take affirmative steps to minimize or avertthe harm.

3. If it is an ee/er relationship, the er is uniquely situated to mitigate the harm and the ee isthere for the benefit of the er.

4. Duty is imposed if the D has knowledge of their need for protection or the P is deprivedof the ability to act for his own protection (prisoner).

5. Duty based on special relationship to the perpetratora. Duty to control one person to prevent him from injuring others. Usually this is aduty to exercise reasonable care to prevent injury from the dangerous person.

b. Examples: parent/child, er/ee,c. Duty is imposed on one who takes charge of other with dangerous propensities

(mental patients, prisoners)

i. Tarasoff- psychiatrists relationship to dangerous patient gave rise to a duty towarn the patient's intended victim that the patient had threatened to kill her.

Some courts refuse to extend this duty beyond situations involving a threat toa particular victim.

ii. In a similar case, a doctor has not duty to warn victims ofD's STDs, but thedoctor may have a duty to inform the D that he could spread and harm otherpeople with it.

6. Duty based on innocent creation of the riska. The D without negligence, realizes or should realize that they created the risk that

causes injury to the P.

b. An actor who has injured another, even without negligence, has an affirmativeduty to render assistance to prevent further harm to the injured party.

c. Rationale: risk creation- by D's risk-creating conduct for his own purposes injuredanother. "requiring a person to minimize the consequences of risks which society

gives him a privilege to create".c. Rescuers-Gratuitous Services Exception- NO duty to rescue, usually.


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i. Exceptions:1. You created the risk2. You furthered the harm (enhanced the risk)3. Special relationship4. Undertake rescue and proceed negligently5. Prevent others from rescuing.

ii. Special relationship: captain of boats. If you put someone in a situation that invites rescue,you also have a duty to that rescuer, who is foreseeable (Horsley).

iii. The D, under no initial duty to do so, goes to the aid of another. The D is subject to liabilityfor any bodily harm caused by the failure to exercise reasonable care (act as an ordinary

prudent person) to secure the safety of the other, or by the discontinuing of his aid, if by doingso leaves the other in a worse position. Good Samaritan can leave an injured person at any

point in the rescue as long as they are not in a worse position.iv. Rationale-the actor, while virtuous, is a risk creator in rendering assistance.

4. RiskCreation as a Source ofDutya. Those who do act, who choose to engage is activities that create a risk of injury to others, do

have a duty to exercise care to avoid injuring others.

b. Heaven v.Pender-NO exception to this rule-should be liable for all injuries foreseeablycaused by their negligence.Other courts has limited duty based on policy considerations.

5. Duty v.Proximate Cause (Palsgraf)a. Confusing and not yet consistently distinct in all case but should be:b. Use proximate cause analysis for refusing to impose liability for unforeseeable consequencesc. Use duty analysis to impose policy limits on liability for harm that is foreseeable.d. Proximate Cause: usually resolved by answering whether the injury that befell the plaintiff

was one of the foreseeable risks which made the defendant's conduct negligent in the firstplace.

6. Indirect Infliction of Emotional Distress:a. Common Law:i. No duty to avoid negligent infliction of emotional distress on bystanders

ii. Recovery allowed if emotional distress (pain & suffering, e.g.) resulting from a bodily injuryin a negligence case (known as parasitic damages)-Impact rule (below)

iii. Recovery allowed as part of the recovery for the intentional torts, since the intentional tortsvindicate dignitary injuries

b. Policy Arguments & Counterarguments in BystanderLiabilityCasesi. Medical science cant prove fright caused harm

ii. Fraudulent claimsiii. Floodgates-everyone could have a claim-clog the courtsiv. Unlimited, unduly burdensome liabilityv. Circumscribing liability

y Exceptions:c. Impact Rule

i. Requires that the P prove that he suffered a physical impact upon his person, and can recoverfor damages. The impact must lead to the emotional injury.

ii. If the emotional distress led to a physical illness, recovery was barred if there was no physicalimpact upon which to piggyback the distress damages.

iii. Some jurisdictions greatly expand this rule by using any type of physical impact to allowrecovery.

iv. Some jurisdictions limit this rule by requiring a physical manifestation of their emotionaldistress.


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v. Rationale: alleviated fears of fraudulent claims, filtered out frivolous claims while allowingmore serious ones to proceed.

d. Zone ofDangeri. P must be close enough to the D's negligent conduct to be placed at risk of physical injury,

even though P was not actually touched. Usually, P does not have to be aware that he was atrisk.

ii. Rationale-D owes these bystanders a duty of care because they are within the area of riskcreated, thus injury is foreseeable. (stems from Palsgraf-Cardozo's argument).

iii. Criticized because arbitrarily drawn line of who gets to recover, father can watch his child gethit by a car from a window but because mother was closer, she gets to recover. Hopelessly

artificial.iv. Physical manifestation of emotional distress is often added on top of the ZOD requirement.

e. The Dillon Rulei. More flexible approach than ZOD.Dillon rule includes indirect victims if:

1. The P was located near the scene of the accident2. The P actually witnessed the accident3. P and victim were closely related-almost always has to be a relative

ii. Physical manifestation of emotional distress is often added on top of this.iii. Dillon court did not say that all three factors must be present, they are just relevant factors.

Thing v.LaChusa, a case in CA converts this to say that ALL must be present. Some statesview the factors as guidelines, other view them as requirements because floodgates wouldopen up otherwise.

iv. If a person if mistaken that their relative is being injured when it is really someone else, courtshave held they will not recover for emotional distress.

f. Direct Injury: Impact Rule, ZOD.Bystander: ZOD, Dillon Rule. A jurisdiction can have acombination of these rules like Impact rule for direct injury and ZOD rule for bystander.

7. Owners and Occupiers of Land-limited dutiesa. The status of the person on your property can change at any time and status is a question offact.

Invitee/Licensee/Trespasser

Status Duty - Condition ofPremises

Duty - Actions ofPossessor

Definitions

Business

Invitee

Reasonable care, including

obligation to makeinspection and discover any

reasonably apparent flaws

Ordinary (Reasonable) care Invitation to be on land

with some kind ofeconomic connection

mutual economic interestor public guest

Licensee None, except to warn of

latent dangers or traps andnot willfully injure

Duty to warn of danger

owner knows about andunlikely to be discovered by

guest. (latent dangers ortraps).

Some basis to be on land;

social guest, permission(revocable) and no

economic interest

Trespasser None None. Except: dont

willfully and wantonlyinjure, attractive nuisance,

habitual/known trespassers.

No right, no license, no

invitation; withoutpermission or entitlement

b. Invitees- a person who enters by the express or implied invitation of the land occupier for somepurpose related to the activities or interests of the land occupier.


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i. Business invitee-it is immaterial if business dealings fail to materialize.1. Rationale-proprietor is benefitting-quid pro quo, duty ofRC is price you pay to have

people come and buy things.ii. Public invitee-enters upon land held open to the public

1. Rationale-Implied representation of safety that you should be able to rely on.Peopleshould be able to assume that public areas are safe.

iii. If an invitee wanders throughout the premises-their status may change (ex-they enter an"employees only" part.

c. Licensee- person has express or implied permission (very broad) by the occupier. They enter fortheir own purpose, conferring no particular benefit on the owner. (firefighter, social guest,

relatives).i. Posting signs are sufficient to warn of latent dangers unless owner knows signs to be

ineffective.ii. No duty to inspect, only duty to warn of latent dangers that they are aware of, and duty not to

make traps.iii. Lack of knowledge that a particular licensee was on premises is no defense, must conduct

activities as though a licensee may be on the premises.d. Trespassers:

i. Ordinary trespassers: anyone without the express or implied permission of owner, and isunauthorized to be there.1. No duty of reasonable care, no duty to discover presence of trespassers, but a duty to not

intentionally or wantonly cause injury.

2. If the owner knows or should know that a trespasser is on the land, then there is a duty(same as licensee).

ii. Child trespassers: must be so immature as to be unable to recognize the harm involved.Usually, below age 14 counts as a child. (this is a question of fact-the younger the child, the

more likely a condition will be an attractive nuisance).1. Attractive nuisance- imposes a special duty of care on an owner that involve a risk of

harm to children unable to recognize the danger involved.a. Rationale-society has a greater interest in the safety of children than in an

occupier's right to do what they please with their land.e. Landlord-Tenant Duty

i. CL-Landlord has not duty to the tenant or 3rd parties for injuryii. Now-Exceptions to NO duty, LL liable for:

1. Defects in premises leased for admission of the public2. Breach of a covenant to repair3. Negligent repairs4. Defects in common areas underLL's control5. Defects in violation of a housing code.

iii. Jurisdictions vary on this-InWY (Merrill v. Jansma):1. No duty to landlords EXCEPT:y Hidden or latent dangerous conditions known to the landlord and unknown to the tenantcause an injuryy Premises are leased for public use and a member of the public is injuredy Landlord negligently makes repairs (Merrill case).

Activities on the property vs.Conditions on the property:If injured because owner of property is doing something that injures you on property-then

just regular negligence rules apply (anytime you engage in an affirmative act which you canreasonably foresee injury to another, a duty is owed).

Policy Rationales for not using categories:


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Increasing awareness for human safety, want people to manage their property for thesafety of people.

Property owners should be liable for the safety of others regardless of what their status isConditions have changed and categories do not reflect modern society (human safety vs.

absolute property rights)There is not that much of a burden to extend duty to social guests because they should

want to fix it anyways.Categories are confusing and court mislabel them, they should just apply general

principles of negligence.Policy Rationale for keeping categories:

Property owners should be able to use/enjoy property without fear of liabilityOpens the floodgates, people might be afraid to have guests at their house

People do not want to be liable to trespassersPredictability for the courts-judicial efficiency

This kind of decision should be made by the legislature-institutional competenceArguments in favor of status quo-the categories are so ingrained in history

Wrongful DeathEarly CL-NO recovery for wrongfully causing the death of another due to felony-merger rule

which meant that everything would go to the state anyways and there is nothing left to recover.

This seemed wrong because it was cheaper to injure than to kill.Statutes were designed to fix it.(Lord Campbell's Acts)

Survival Action Wrongful Death

Who sues? Personal Rep. PRor survivor (spouse). Executor of

estate

On behalf ofwhom?

Estate-distributed by will or intestacy Survivors (spouse, child, parent, maybesibling)

For what? Damages suffered b/t time of injury and

time of death. No punitive damages

Value of lost support, mental anguish of

closely related survivors. Usually

pecuniary damages only

Wrongful death: claim for damages for tortiously causing the death of another.

A personal rep. sues on behalf of the family members for the harms that they havesuffered by the death of the deceased (usually what the deceased would have contributed to

the family members had s/he lived).CL- tended to be only pecuniary harm; now maysometimes recover funeral expenses and loss of society/companionship.

Survival: an action brought by the representative of the estate of a decedent for injuries suffered

before the death.Allows the estate of a decedent to enforce a tort claim for damages suffered before the

death. The thing that survives is the COA, only can recover ifP could recover if they werealive.Damages could include whatever the decedent could have recovered if he lived; for ex.,

if they had a negligence claim, the personal rep. could recover medical expenses, loss ofearnings/earning capacity, etc. from time of injury to time of death.

No survival action if death is instantaneousP can also sue D's estate ifD dies.

For both actions:Possible to have a survival action without a wrongful death claim.P sues for injuries and

then dies from an unrelated event.But they do not ever overlap each other.If someone is injured and then sues and recovers, then wrongfully dies from them, they

cannot recover anything else.


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Courts treat wrongful death actions as statutorily created and do not use much judicialcreativity to add or subtract anything from the statute.

Section 5: Breach

Breach: Failing to act as a reasonable person under the circumstances.Decided by a JURY, question offact(unless no reasonable jury could decide, then judge decides and becomes question of law and fact).

Reasonable Person Defined:The reasonable person is: a model of propriety and common sense, a person of sound judgment

who acts with ordinary prudence. A fiction who always exercises proper self-restraint and weighsnot only his own interests, but those of others as well in his affairs.

How the Reasonable Person Thinks:Considers the foreseeable risks of injury that the conduct will impose on the community in light

of the utility of the conduct.Considers the extent of the risks posed by their conduct.

Considers the likelihood of a risk actually causing harm.Considers whether the alternatives to her proposed conduct would achieve the same purpose with

lesser risk.Considers the costs of various courses of action-the injuries avoided outweigh the cost of the

extra precaution.

B


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1. What is an adult activity?a. Same kind of risks that adults generally impose, engaged in the activity as a

normal adult would be.b. Custom- children normally do not engage in this activityc. Magnitude of riskd. Whether or not law imposes age restrictions on the activity

2. Rationale: Others cannot take measures for protection because they dont know that achild would be driving (e.g.).

d. Expert in a field: Not necessarily a higherstandard of care but the fact that an actor is aprofessional or assumes the role of an expert is a circumstance that colors the meaning of

reasonableness.e. Emergency: Rule is emergency is one of the circumstances you can take into account in deciding if

someone behaved as a RPUC. IfD was confronted with a sudden emergency that was not his fault& was forced to act with little time for reflection, D will not be held to the same standard of care as

one who has ample time for thinking about what to do. There is some variation on whether youspecifically instruct the jury on sudden emergency instructions.

6. Constructive Noticea. Slip & Fall Cases:

i. D must have actual or constructive notice of hazards presence or the hazard must haveexisted for so long that the D ought to have known about it in order to be liable if he fails toexercise reasonable care in preventing injuries.

ii. If the owner created the hazard, then notice is not needed but notice is needed if a third partycreated the condition.

1. Pro-D jurisdiction-requires P to prove actual or constructive notice2. Pro-P jurisdiction- rebuttable presumption of negligence arises and burden shifts to D.

7. Passage of time or change in ownership does not afford immunitya. Where the manufacturers NEG in design causes an unreasonable risk to be imposed upon the user

of its products, the manufacturer should be liable for the injury caused by its failure to exercise

reasonable care in the design.

8. Defective Productsa. Manufacturer can be held liable for failure of product even if it had been used safely and effectively

for a prolonged period of timei. P must prove that the product was originally defective at time of building

b. Duty to provide a crashworthy car - Mickle v Blackmon9. Heightened risks

a. Degree of care required varies w/ risk involvedi. Recognized heightened standard due to risk or public interest

1. Common carriers in getting people on and off.a. Delivery of electricityb. Delivery of gas (propane)c. Delivery of gasoline

10.Res Ipsa Loquitur- helps P prove Breacha. Requirements:

i. Injury must be caused in such a way that it is more likely than not that negligence is to blame.Does not ordinarily occur unless negligence was present.P must show that neg was likely that

of a particular defendant.1. Most likely scenario is that D breached due to circumstantial evidence.


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ii. Caused by an agency that had exclusive control-not always taken so literally.1. May be applied under the theory that the D had control at the time of the NEG act, but

not at time of accident, provided P proves that the condition of the instrumentality hadnot been changed after it left the Ds possession.

a. P has to prove that from the time the bottle left Ds control until the bottleexploded, nothing happened to it.Escola v Coca Cola Bottling Co.

iii. P needs to show that it was not his own fault (kind of built in to #2).b. Possible procedural effects: Jurisdictions use #1 mostly.

i. Permissible inference of negligence; -most used procedure.Means P brings forth pre-reqs ofRIL and jury can do what it wants-decide its breach or not.

ii. Rebuttable presumption of negligence; -CA uses this procedure.Breach unless presumptionrebutted.Burden of production-shifts to D, Burden of proof still on P.Once P makes out pre-

reqs forRIL-creates inference of neg, jury will find breach unless the D rebuts thepresumption.P still has burden of proof once D brings forth some evidence.Only shifts

burden of production. IfD cannot bring forth anything, then he loses on issue of breach.iii. Shifts burden of proof on negligence issue.-rare for it to shift the entire burden of proof.iv. If the P has actual evidence of the breach, then it is not a RIL case.

11.Breach of Statutea. Elements required to apply the statute:i. Must be relevant to the situation

ii. Must be intended to protect the class of persons to which the P belongs.iii. Must prevent the type of harm that actually occurred.iv. Must have caused the harm due to violation of the statute.

b. Questions to ask when dealing with statutes:i. What kind of statute is it? Is it a safety statute? If not, it may not be relevant at all.

ii. Who passed the statute? Feds? Statute? Municipality?iii. What procedural effect should be given to violation?

1. Most jurisdictions say that it is negligence per se (an irrebuttable presumption) withexcuse.

2. Other jurisdictions: rebuttable presumption; or some evidence; might treat differentkinds of enactments differently.3. Burden never shifts to D.D can always offer evidence of an excuse, P must still estab.D

was not being a RPUC.

iv. What are the possible excuses the D can make once negligence per se is established?1. Safer to violate statute than conform to it (ex- walking on the wrong side of the road

because more light on that side).2. Incapacity (an actor is minor and unable to comply)3. Inability to comply (tail light might go out suddenly)4. Emergency (speeding on way to hospital)

c. Arguments for negligence per se rule:i. Reasonable people do not violate statutes or ignore the standard of care established by thelegislature.

ii. Courts should give deference as a matter of institutional comity to legislative judgment abouthow reasonable people behave

iii. Since the legislature thought about it, they wanted to set a standard of safety for the protectionof citizens, as reflected by the imposition of criminal penalties.

d. Arguments against negligence per se rule:i. Most statutes say nothing about recovering damages in tort actions so court has discretion in

borrowing the standard.

ii. Doubtful that legislature intended blind adherence to standards, regardless of circumstances.


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12.Customa. Custom is not synonymous with RC but it is sometimes relevant and has a bearing on BPL analysis

The fact that conduct is generally engaged in by those in a particular trade or profession at leastsuggests that such conduct is acceptable. Some customs are known to be unreasonable and still

followed anyways.b. Difficulties with Custom

i. Hard to prove an industry-wide customii. Hard to distinguish between custom and habit.

iii. What do you do with evidence of a custom?iv. Making sure that the custom is relevant to the facts

c. A jury may use evidence of noncompliance with a custom/industry standard to find negligence, butit does not have to do so.Depends on judge's instructions

i. Majority Rule-is not a the same as a neg per se effect, use it as non-conclusive evidencetending to show that D breached.

d. Why dont we give custom the same effect as breaching a statute?i. An industry standard is not the same as a statute-legislature takes a lot of time thinking about

making statutes. Industry customs are made from businesses who may not consider safety tobe their first priority.

13.Malpracticea. Informed Consent:i. Reasonable dr. standard: Duty to inform does not require the doctor to risk frightening the

patient out of a certain course of treatment which sound medical judgment dictates that patient

should undertake.Pro-Dii. Reasonable patient standard: what an objectively reasonable patient needs to hear from his

doctor to allow the patient to make an informed and intelligent decision about treatment.Pro-P

iii. Elements of malpractice for not providing informed consent:1. Failure to inform patient of all material risks AND2. A reasonably prudent patient would have declined the treatment had they known about

the risks.

b. Professional Standard ofCare:i. If you are a professional with a license then you are held to a higher standard of thatprofession under the same or similar circumstances.

c. Locality Rule- a professional has standard of reasonable care required of a professional of thatlocality under the same or similar circumstances (and locality). A dr. in a remote area would not beexpected to have the same standard of care as a doctor in a big city.

i. This rule is mostly gone now because modern technology and communication-doctor shouldbe able to keep up on new advances in medicine.

14.Common Carriers/Hazardous Activitiesa. Common carriers & those dealing with hazardous activities are held to the highest standard of

care in the delivery of their services, though still not strict liabilityi. Standard applies only when doing something that involves the ultra-hazardous activity

ii. Hypo: Gas Cos truck is driving & crashes.What is the standard of care?1. P1 is crushed by the truck Ordinary care2. P2 is injured by leaking gas Highest care

b. Reasons why they are held to a higher standard (criteria for applying enhanced standard):i. Inherently dangerous properties

ii. The company possesses expertise in dealing with it-not a reciprocal risk.iii. General public is not able to recognize and guard against the dangerous potential of certain

situations.


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15.Statutory Modifications:a. In some circumstances, a statute can modify the standard of care necessary for breach.For ex., a

guest statute lowers the standard of care for drivers (Spence v.Vaught).b. Dram shop liability: general rule is usually no duty for serving alcoholic beverages except if the

person is visibly drunk or if you are serving to minors. In FL-if you serve to an alcoholic or tominors-could be liable.FL raises the standard of care somewhat.

torts outline megan

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