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    TORTS OUTLINEPROFESSOR BELL

    INTENTIONAL TORTS

    I. BATTERYA. Elements

    i. INTENT(not to cause the injury, but to CAUSE THE CONTACT)1. INTENT is the knowledge of SUBSTANTIAL CERTAINTYthat harmful contact will

    happen2. desire or purpose a result will occur

    II. CAUSEiii. HARMFUL OR OFFENSIVE(harms persons dignity) CONTACTjudged by e!s"n!ble

    #es"n st!nd!d1. H!m$ul %"nt!%t &s &m#!&ment "$ #'ys&%!l %"nd&t&"n( #!&n( " &llness2. O$$ens&)e %"nt!%t "$$ends ! REASONABLE SENSE OF REASONABLE

    *I+NITY3. S#l&t "$ !ut'"&ty

    a. !ajority of courts will determine if a REASONABLE PERSONwould findthat contact harmful"offensi#e $$ objecti#e

    b. !inority of courts will determine if *EFEN*ANTthought the contact washarmful"offensi#e (%pi#ey #. &attaglia) $$ subjecti#e

    i#. ConsequencesB. +ARRAT V, *AILEY(') (BAD LITTLE BOY WITH CHAIR)

    i. Issue* Is + liable for battery, where he had the INTENTto pull the chair, knowing withsubstantial certainty that the act would cause her to fall

    ii. H"ld&ng* -es, the court erred in ruling that + was not l iable for battery.

    1. It is not enough that action was intentionally done for liability, action must be certainto happen.

    2. If + had that knowledge in his mind that his action would result in her falling andbreaking her hipintentional battery.

    iii. Rule* /ctor is liable for battery if +, in the intent of pulling out the chair, knew to subst!nt&!l%et!&ntythat 0 would sit down on the chair he intended to pull away.

    C. VOSBUR+ V, PUTNEY('1') (KICKING INCIDENT)I. Issue* +oes 0 ha#e a #alid cause of action for assault and battery with intent, where +s kick

    e2cited a pre#ious injury causing e2tensi#e pain and damageII. Re!s"n&ng* -es.

    '. To ha#e cause of action for battery, 0 must show either that &ntent&"n -!s unl!-$ul

    or that the + is in fault.3. 4ad 0 and + been on playgrounds playing sports, + might ha#e been free from

    malice or negligence, since sports constitute the implied consent to physical contact.5. &ut + kicked 0 in class time, when order was called. There is no other e2planation

    for the injury in a ci#il setting other than to kick someone with the intention to causeharm.

    III. Rule* If party intends to do unlawful act, and conduct causes injury, + is liable for battery.(6iability for all resultant causes of battery, foreseen or not)

    &. SPIVEY V, BATTA+LIA ('73) (FRIENDLY, N!OLICITED HG)

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    I.Issue* Is + liable for battery, where he claims that in gi#ing 0 a 8friendly, unsolicited hug,9 he

    knew that it would cause the paralysis on her faceII. H"ld&ng* No. +s cause of action for battery is dismissed:there is no way that anyone can

    substantially be certain of the bi;arre conse

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    '. RESTATEMENT OF TORTS 4* 0 1268Intentional CONTACT WITH ANYTHING !OCONNECTED WITH THE BODY THAT CAN BE REGARDED A! +ART OF THEOTHER! +ER!ONcan constitute as offensi#e contact with his person, e.g., thingslike a cane, clothing, Hin this case, a plate, or anything directly grasped by thehandJ.9

    III. Rule "$ l!-* /ctions causing contact or HAR6 TO THE E5TEN!ION OF THE BODY

    constitute as battery.II. ASSAULT

    /. ElementsI. INTENTto cause harmful or offensi#e contact with the person OR

    '. INTENT is the knowledge of SUBSTANTIAL CERTAINTYthat harmful contact willhappen

    3. The intent must be of immediate contactII. IMMINENT APPREHENSIONof the harmful contact

    '. A##e'ens&"nconstitutes a well$founded, e!s"n!ble bel&e$

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    &. +RANT V, STOP>N>+O MAR/ET OF TE=AS( INC,(')I. Issue* Is + liable for falsely imprisoning 0II. H"ld&ng* -es.III. Re!s"n&ng*

    '. Elements of false imprisonment* (') willful detention, (3) without consent, (5) withoutauthority of law.

    3. +ispute in willful detention. P $elt %"m#elled t" st!y be%!use 'e -!s !$!&d t'e#"l&%e -!s g"&ng %"me !$te '&m. 0s allegations are inconsistent with +saffida#it.

    5. +ispute with willful consent.a. /ccording to 0, @alhoun (') grabbed his arm for 3 seconds and (3) told 0 he

    could not lea#e and that he was calling police. 0 did not willfully consent tostay in the store:+s calling of police forced him to stay in fear of beingchased after. +isputed issue.

    A. +ispute in detention time. + relies on >esende;to argue that 'K$' detention is ?L.&ut, 0 was detained for longer than ' minutes. It was ' hr and 3K minutes.

    @. HYPO( MR, BI+ ? THE EMPLOYEE IN THE CARRIER *OME

    I. %C makes motion for directed #erdict will judge grant it, i.e., no reasonable juror couldconclude 0 has probably pro#en all the elements

    II. Elements of Galse Imprisonment'. Intent3. @onfinement:no one said she couldnt go, so she was not actually confined against

    her willa. Threat of immediate use of force (e.g., two big guys 8strongly suggesting9

    that you stay and meet with !r. &ig.) is enough to constitute that 0 wasconfined.

    b. /ssertion of legal authorityi. If wearing uniform, and seem to be official, courts are likely to say

    that there was confined against his"her will.c. 8!oral pressure to stay is not enough. The threat that force will be used in

    future is not enough.9d. E%"n"m&% t'e!t "$ l"s&ng j"b &s n"t en"ug' t" %"nst&tute $!lse

    %"n$&nement5. @ausationA. @onsciousness

    ID. INTENTIONAL INFLICTION OF EMOTIONAL *ISTRESS 3IIE*5/. Elements

    I. INTENTIONAL OR REC/LESS ACTII. /ct must be E=TREMEand OUTRA+EOUS CON*UCT

    III. @ausationID. %e#ere and emotional distress

    '. 0laintiffs emotional distress must be so se#ere that no reasonable person could bee2pected to endure it (Mones #. @linton)

    &. HARRIS V, @ONES ('77) (!+EECH I6+EDI6ENT)I. Issue* Is + liable for inflicting IIE+ on 0, where, in mimicking his speech impediment (with

    the fair knowledge of 0s susceptibility) and causing him to be ner#ous at work, his (')intentional or reckless actions were (3) were e2treme and outrageous, and that (5) there was

    A

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    causal connection between the wrongful conduct and emotional distress that led to (A)se#ere emotional distress

    II. H"ld&ng*'. -es, +s actions were found to be intentional or reckless, as well as e2treme and

    outrageousa. -es to ' and 3, no to 5 and A.

    b. RS OF TORTS 0 * 8one who by e2treme and outrageous conductintentionally or recklessly causes se#ere emotional distress is liable for tort.9

    c. RS 0 states that if the conduct E=CEE*S ALL BOUN*ARIESTOLERATE* BY *ECENT SOCIETY, the conduct is subject to tort liability.

    d. RS 0 3$5states that e2treme and outrageous conduct may arise if theactor takes HAS SUFFICIENT /NO8LE*+E THAT THE OTHER ISPARTICULARLY SUSCEPTIBLEto emotional distress.

    3. There was no pro2imate, causal connection between the intentional"reckless actionand the se#ere emotional distress

    a. 0 had suffered from this ner#ousness before e#er working under +.b. 0 saw a physician for F years prior to working for 4arris. + only e2cited a

    pree2isting condition.c. +istress was not se#ere. /ll that was shown was that 0 was 8shaken up9 by

    Mones misconduct and was so humiliated that she felt 8like going into a holeand hide.9

    5. Rule "$ l!-* /n action with the intent to cause emotional distress may be subject totort liability if the conduct is so outrageous that it e2ceeds all boundaries tolerated bydecent society, and if actor has sufficient knowledge that the other is particularlysusceptible to emotional distress.

    @. ALCORN V, ANBRO EN+INEERIN+( INC,('7K)I. Issue* +oes +s conduct constitute IIE+, where in firing and berating an /frican /merican

    employee with blistering racial slurs, i.e., calling him 8n9 word, after he prohibited another

    white employee from dri#ing a truck to a site (actions which were ratified by his superior), +caused 0 to suffer humiliation, mental anguish, and se#ere emotional distress as a result of+s allegedly outrageous conduct

    II. H"ld&ng* -es, +s conduct, where he his intentional"reckless act caused 0 to suffer fromse#ere distress, all without just cause, constituted IIE+.

    '. E;teme !nd "ut!ge"us %"ndu%ta. Abuse "$ em#l"ye>em#l"yee el!t&"ns'b. E;%eeds !ll b"unds "$ de%en%yc. /n"-ledge "$ sus%e#t&ble )ulne!b&l&ty

    3. Se)e&tya. S'"%( n!use!( !nd &ns"mn&!

    III. Rule "$ l!-* /ction conducted with intent to cause se#ere emotional distress is liable for tortsuit.+. @ONES V, CLINTON('1)

    I. Issue* +oes +s actions of soliciting se2 in a hotel room by kissing 0, touching her, andre

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    3. Element (') is not an issue. In >E* element (3), +s actions were outrageous but notof se2ual assault. +s conduct was merely a se2ual proposition, one relati#ely briefin duration, not of coercion of threat, and was abandoned once 0 refused.

    5. P d&d n"t su$$e !ny em"t&"n!l d&stess.a. 0 admits to ne#er missing a day of work following the encounter she

    continued to see + in friendly, nonse2ual manner she ne#er filed formal

    complaint ne#er consulted physician or psychiatrist.III. Rule "$ l!-* In order to ha#e torts claim for se#ere emotional distress caused from

    intentional infliction of harm, allegations must meet the elements of /rkansas law.E. S8ENSON V, NORTHERN CROP INSURANCE( INC,('5) (!E5 DI!CRI6INATION IIED)

    I. Issue* Is + liable for IIE+, where after 0 (female) took a high$paying position from a retiredmale, (') continually listened to Mohn Lrabseth insist in the need for a man to work for himinstead of a woman, (3) recd une

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    II.=eaknesses of tort litigation

    '. 0ersonal litigation defeats the collecti#e action of employer abuse.3. @hange comes as a result of united, collecti#e action, not single, isolated

    occurrences

    D. TRESPASS TO LAN*/. Elements

    I. INTENTII. TO ENTER LAN* IN THE POSSESSION OF ANOTHER

    '. -our actions will result in someone or something being on a certain area of#"#ety "$ !n"t'e.

    3. E#en one who mistakenly steps on anothers property, belie#ing it to be his own,commits tort of trespass.

    5. If you trespass, you are responsible for all injuries that result from trespass.&. RO+ERS V, /ENT BOAR* OF COUNTY ROA* COMMISIONERS('A7) (!NOW FENCE)

    i. Issue* Is + liable for trespass of land where, after obtaining a license to place a snow fencein 0s field, + failed to remo#e the fence as re

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    ii.H"ld&ng* -es, +s incessant mailing of unsolicited emails to 0s subscribers, while at 0s re% 'c$1ons $%'$ -on$ '**ec$ 3%/s1c' con-1$1on. E.g., 0 has to deal withmass #olumes of emails, and this places tremendous burden on its e'/ 3&o$ec$e- 1n$e&es$.0s legally protected interest is to make sure subscribers arent bothered by the junkmail.

    . Rest!tement 0 4123d56reco#er damages if + %'&.s +s us1ness &e3u$'$1on. 0lost many subscribers because of the unwanted bulk of junk mail.

    F. +s Girst /mendment argument to send junk mail does not stand because 'st/mendment protection to free speech is rights that only protect you from

    go#ernment efforts to shut you up.iii. Rule "$ l!-* The intentional intermeddling of pri#ate chattel that causes impairment through

    damages, harms that which possessor has a legally protected interest in, and harmspossessors business constitutes as trespass.

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    PRIVILE+ES AN* *EFENSESI. CONSENT

    I. Elementsi. MANIFESTE* BY ACTION OR INACTIONand need not be communicated to the actorii. If 8OR*SCON*UCT ARE REASONABLY UN*ERSTOO* BY ANOTHERto P consent

    constitute as apparent consent and are effecti#e as consent.1, "oen$1 non *1$ 1n?u&1'6to one who consents, no wrong is done.

    II. *e$ensesto in#alidate consent*i. Induced by fraud*ii. 6ack of capacity to understand the nature of the consented act

    III. !iscellaneous pri#ilegesi. @op pri#ilegeii. +iscipline

    1, 0arents and teachers can use force on children:this isnt uniformIV. OBRIEN V, CUNAR* STEAMSHIP( CO,('1') 37VACCINE SHOT:5

    i. Issue* Is + liable for battery and negligence, where defendant surgeon #accinated 0 withforce and without consent after she was waiting in the #accination line and did not sayanything in retaliation of the #accination

    ii. H"ld&ng* No, 0, in not #oicing any feelings against the #accination after surgeon forcefullygrabbed her arm, willingly and impliedly consented to surgeons action of #accinating heragain.

    1, she did not tell him that she did not want to be #accinated. %he was amongst alarge group of women who were recei#ing shots and did not object to anything. Theyall desired to a#ail themsel#es of the pro#isions made for their benefit to get into&oston.

    iii. Rule "$ l!-* Fo&ce*u 'c$1ons -one 01$% $%e consen$of the one recei#ing the action andwithout e2pressed feelings against the action are not considered assault. (re#ised* consentcan be gi#en, absent words, when circumstances imply it.

    V. HAC/BART V, CINCINNATI BEN+ALS( INC,('7)

    i. Issue* Is there implied consent for one player to intentionally cause injury to another, E/%?N/&6E people would bebelie#ed to ha#e consented to this surgery, then this may allow doctor to operate without being suedfor battery.

    i. /ENNE*Y V, PARROTT('F) (8@-%T%"/00EN+I@ITI% @/%E9)1, Issue* Is + liable for battery, where a non$consented surgery to puncture 0s cysts,

    while performing the primary surgery of appendicitis, caused 0s e2tensi#e pain andsuffering in her leg

    4, H"ld&ng* No, + is not liable for battery where he conducted, with good surgicaljudgment, a secondary operation, without 0s consent. .

    G, Rule "$ l!-* =here a surgeon, with !OND !RGICAL @DG6ENT, e2tends hisoperation further than was originally contemplated, surgeon is not liable fordamages for an unauthori;ed operation.

    C"nsent &n)!l&d!tedo Incapacity to grant consent

    o @onsent made for action prohibited by law

    o @onsent made under duress or by misunderstanding of the facts

    VII. *E MAY V, ROBERTS('11') 370>ETEN+ +?@T?>:5i. Issue* In appealing the lower courts decision, did + ha#e cause of action to #itiate her

    consent in allowing %cattergood to assist her in the birth of her child, where she mistook%cattergood to be a doctor

    ii. H"ld&ng* -es, + did ha#e cause of action to #itiate her consent in allowing %cattergood and0 to assist her in labor because she mistakenly consented to %cattergoods assistance afterhe pretended to be a doctor.

    1, %he consented to %cattergoods presence because she was fooled into thinking thathe was a doctor. %cattergood failed to disclose his true character.

    iii. Rule "$ l!-* The ac

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    -ec1s1on (1..'$u&1$/):%e&e, >1& 0'sn$ >&ou3 .e'n$ $o e 3&o$ec$e-ec'use s%e 0's '&e'-/ =no0e->e'e 'ou$ se2:

    IX. BISHOP V, LISTON('3A) (!TRICT LIABILITY FOR RA+E, REGARDLE!! OF CON!ENT BY6INOR)

    i. F!%ts* 0 is '7 years old and engaged in se2ual intercourse with +, K years old.ii. Issue* Is + liable for rape, regardless of consent, where he, K years old, engaged in se2ual

    intercourse with 0, '7 years oldiii. H"ld&ng* -es:e#en if 0, under '1, consented to se2, + is still liable for rape because

    females under '1 ha#e no attained the mental capacity to fully understand the nature of se2..

    i#. Rule "$ l!-* &ecause female minors HA"E NOT ATTAINED THE 6ENTAL CA+ACITY TOFLLY NDER!TAND THE NATRE OF !E5, with or without consent, a male person o#erthe age of '1 is liable for rape if he has se2 with female minor under '1.

    X. HO+AN, V, TAV.EL(') (GENITAL WART!, BABY)i. Issue* +oes 0 ha#e #alid cause of battery, where while unaware of the

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    4, =hats the contact%e2

    G, Is the contact of se2 harmful or offensi#e!, If done without consent, yes it is offensi#e

    , +id %amantha consent to se2 with Mennings!, @onsent by%"ndu%t

    i. The conduct must be so that a e!s"n!ble #es"nmay belie#e

    that 0 was gi#ing consentii. Initially she unsure and hesitant, but later she did not resist his

    ob#ious mo#es towards intercourseb, @onsent by-"ds

    iii. /s to what acti#ity was %amantha gi#ing consent gi#en to1, If Mennings has se2 with %amantha and its 8rough9 se2:she comes out with

    bruises, lacerations, etc. @an she sue him for battery4, -es because she was consenting to something other than 8rough9 se2.

    i#. E#en if %amantha consents, consent is in#alid1, @riminal #iolation (&ishop #. 6iston)

    !, +id %amantha know the nature and

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    him when he reasonably belie#es (') the other is about to inflict intentionalcontact /N+ (3) he is put in peril of death or seriously bodily harm orra#ishment, which can safely be pre#ented only by use of deadly force.

    iii. Gd PARTY INTERVENTION1. If 5rdparty reasonably belie#es that someone else is being attacked, she has

    pri#ilege to use self$defense

    2. This #aries de#end&ng "n -'!t ju&sd&%t&"n y"ue undea. %ome courts allow the pri#ilege if the mistaken belief regarding the need to

    inter#ene was &e'son'eunder the circumstancesb. ?ther courts refuse to pro#ide this pri#ilege because the chances of mistake

    are greater when 5rdparty tries to inter#ene, thereby holding 5rdparty liablefor interference.

    c. Those who are most intimately in#ol#ed with the situation know the natureof the attack.

    d. 5rdparty should think twice before helping so as not to make a mistakeD. COURVOISIER V, RAYMON*('1F) (I !HOT THE CO+)

    i. Issue* In dismissing 0s claim for self$defense in the lower court, was the jury improperly

    instructed to e#aluate 0s reasons for shooting + Is 0s use of self$defense in shooting?fficer >aymond justified, where after burglars tried to break into his house, steal goods,and throw stones and other materials at him, 0, in fear of his life, mistakenly shot + in fearthat he was an approaching burglar

    ii. H"ld&ng* -es:0s use of self$defense in shooting ?fficer >aymond should be justified, 0shot + in the dark out of fear that the approaching figure was one of the burglars who mayha#e intended to cause serious bodily harm or death.

    iii. Rule "$ l!-* %elf$defense is #alid when one belie#es his life is in danger or if one is dangerof recei#ing bodily harm at the hands of the attacker.

    II. *EFENSE OF PROPERTYa. L/TL? D. &>INE-('7')

    I. RS 0 DD6 E)en n"nde!dly $"%e 3g!b s"me"ne5 %!nn"t be used t" de$end y"usel$!g!&nst #"#ety tes#!sse -&t'"ut $&st !s&ng t'!t #es"n t" le!)e,

    II. Issue* +oes a party ha#e a #alid cause of action in using forceful or deathful self$defenseagainst the mere trespass of property, where +, to protect his property, set up a 8shotgun9trap to pre#ent theft, resulting in permanent damage to 0

    III. H"ld&ng* No, +s actions of self$defense were not reasonable for the petty theft that 0committed.

    ID. Re!s"n&ng* There must be a reasonable threat to the person, not the property, in order toself$defense that can cause death or serious bodily harm.

    '. In order to ha#e the pri#ilege to use deadly force, $%e&e .us$ e ' $%&e'$ $o $%e3e&son.

    D. Rule "$ l!-* 0roperty alone cannot be protected by self$defense that causes death orserious bodily harm.

    DI. NOTES*'. &reakdown of 6arsons dissent

    a. If + intended to scare to him, then there is the intent to cause 8imminentapprehension of harmful contact,9 which is sufficient intent for the tort ofbattery.

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    b. 4e is trying to offer an alternati#e definition for pri#ilege of self$defense. If allyou intended to do was to scare somebody, for the sake of ones property,then you ha#e a pri#ilege of self$defense.

    c. Mudge 0osner ()* there should be a case$by$case analysis sometimesthe interest of property can outweigh the #alue of life where self$defensethat causes death or bodily harm is allowed.

    IV, RECOVERY OF PROPERTYa. HOT PURSUIT

    i. @ourts recogni;e the pri#ilege to use reasonable force to regain property tortiously taken byanother as long as the rightful possessor acted promptly in 8hot pursuit9

    II. I$ t'e sense "$ &mmed&!%y &s l"st( t'e sel$>'el# #&)&lege &s g"neiii. If the possessor seeking to recapture his property was mistaken, he has no pri#ilege to use

    force to get the property back.

    V, NECESSITYa. Elements

    i. + REASONABLY BELIEVESii. That his"her trespass to anothers property is

    '. (') NECESSARYto pre#ent serious, imminent harm to the3. (3) person or property of5. (5) himself or of others.

    b. COMPLETE V, INCOMPLETE PRIVILE+EI. C"m#lete* if you damage property out of necessity, youre not liable you dont ha#e to pay

    for damages (0loof @ordas)II. In%"m#lete* you ha#e the right to necessity, but you ha#e to pay for whate#er damages

    result from your trespass (Dincent)c. PUBLIC V, PRIVATE NECESSITY

    I. P ubl&% ne%ess&ty(pg 'K', %urocco #. Qeary)* person who is doing the harm to the propertyis usually a public official in order to pre#ent harm to the public at large.

    II. P&)!te ne%ess&ty(Dincent)* the person is doing the trespass to property of another in orderto protect himself or a few other people (the difference b"t this and public is the number ofpeople youre trying to protect.).

    d. PLOOF V, PUTNAM('K1)I. Issue* +oes 0 ha#e #alid defense of necessity in tying his boat to +s dock, where in fear for

    their li#es and for their property, they got off shore to a#oid injury from the storm where +,arguing for trespass, untied the boat and let it drift into the ocean where the boat wasdestroyed as a result of +s action

    II. H"ld&ng* -es, because 0 and family were in danger from the tempest, they are justifiedthrough the doctrine of necessity in temporarily tying their sloop onto +s property.

    III. Re!s"n&ng* The doctrine of necessity applies with !+ECIAL FORCE TO THE+RE!ER"ATION OF LIFE. It is clear that an entry upon the land of another may be justifiedby necessity. The stress of a sudden and #iolent storm compelled 0 to tie his boat to +sdock so as to sa#e the boat and the people in it.

    ID. Rule "$ l!-* The necessity of an action to enter upon anothers land and interfere with theothers personal property is justified when done so in for the preser#ation of ones life,thereby superceding any cause of action for trespass.

    e. VINCENT V, LA/E ERIE TRANSPORTATION( CO,(''K)

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    I.Issue* Is 0 liable for damages, where he moored his #essel in an e2posed part of the wharf on

    +s dock where he kept remooring the boat to the dock in necessity when the storm rippedthe moor up where the boat caused significant damage to the dock

    II. H"ld&ng* -es, while there may ha#e been a necessity to moor the #essel onto the dock forpurposes of unloading the cargo, mooring the #essel in that location while the storm cameresulted in the #essel damaging the dock. 0 may ha#e had a necessity, but is liable to pay

    for damages.III. Re!s"n&ng* 0, in charge of his own #essel, deliberately and by direct efforts moored the

    #essel in a way that the damage of the dock resulted, and ha#ing preser#ed the ship at thee2pense of the dock, is responsible for the damages incurred.

    '. 8'&le #ubl&% ne%ess&ty m!y eu&e t'e t!&ng "$ #&)!te #"#ety $" #ubl&%#u#"ses( !nd t'e #"#ety &s t'eeby d!m!ged( %"m#ens!t&"n must be m!de,

    ID. Rule "$ l!-* +uring the course of using +s pri#ate property out of necessity, if damagesonto that property incur as a result of 0s negligent actions, 0 is responsible for propercompensation.

    f. COR*AS V, PEERLESS TRANSPORTATION( CO,('A')I. Issue* Is + liable for negligence, where, at being held at gunpoint, he jumped out of a

    mo#ing #ehicle, subse

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    d. 0 was harmed unintentionallye. + had no time to think he instantaneously jumped out of the car

    considering his life was in danger.f. Qunmans was human cause that resulted in damage

    i#. &eing that Dincent was done with intentional harm and @ordas was done with unintentionalharm, why is there a difference in ruling

    D. Non

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    c. (5) =as +s negligent conduct also the PRO=IMATE CAUSEof the plaintiffs injuryd. (A) &ut, is there something special about these cases that pushes us to not hold + liable for

    negligent conduct (e.g., + had no duty to help a stranger after a tree fell on top of him.)e. %ubpoint () =as there HARMto plaintiff

    III. ELEMENT 315 6 *&d *s %"ndu%t $!ll bel"- t'e STAN*AR* OF REASONABLE CAREKa. NE+LI+ENCE BALANCIN+

    i. IF B P ; L NE+LI+ENCE'. / defendant is negligent if the Budenof a#oiding the accident is less than the

    P"b!b&l&tythat an accident will occur, multiplied by the gra#ity of the L"ssif anaccident were to occur

    3. To a#oid liability, + must show that the Budenwas too big5. To e2plain & R 0 2 6 in other words

    -ou must take the burden (i.e., precautions) or you will be held liablea. The +efendants goal is to spend the least amount of money and still ha#e

    precautions that will not result in liability.A. The ultimate goal is to achie#e the lowest total social cost. T'ee !e st!nd!ds "$ &nstu%t&"ns

    a. @ourts may say something about physical and mental disabilitiesb. Emergency Idea (@ordas)c. & R 0 2 6d. Diolation of statutes (e2ceptions to #iolations of statutes)e. @ustom of the industry

    ii. 0roblem +, && ('5)'. Nancy dri#es on steep hill, when the brakes die. %he jumps out the car, when the

    car hits 'K people.3. 0s cause of action (what about +s conduct fell below standard of care)* negligent

    dri#ing once the brakes were shota. %he just do#e out of the car

    b. %he was negligent for dri#ing generally in %G.c. %he didnt check her brakes

    5. Nancys response against negligence claim*a. %he did her 8best9

    i. If this point is undisputed, would Nancy be awarded a directed#erdict

    ii. (V!ug'n ), Menl")e) &ut in doing her best, would a e!s"n!ble#es"n, in the same situation, just ha#e jumped out of the car

    iii. To judge based on 8do your best,9 e#erybodys 8best9 is differenti#. 0, in this case, can always bring in e#idence to show that + did not,

    in fact, try her best.

    #. / uniform standard of 8best9 might promote greater safety but thepeople who are inclined not to do their best, but think they can getaway with it, now cannot because of a standard of reasonable care.

    #i. &ut doesnt it seem fair that because one was doing his best, heshould not be held liable

    b. 0rocess costsc. Transaction costsd. Ctilitarian considerations

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    e. Gairness consideration* is it e#er appropriate to hold somebody liable whenthey ha#e not acted in fault +id somebody beha#e as well as he couldbeha#e

    A. =hat if the jury is instructed to decide if Nancy acted as a reasonable woman would(6ehmann #. Toys > Cs)

    a. 6ehmann is not a tort case its a case in which 0 is making a claim by NM

    %tate 6/+, 6aw /gainst +iscrimination.b. If you take the approach from 6ehmann, i.e., looking through the eyes of a

    woman, you see how we can eliminate discrimination that women suffer. Intort law, if we look through the eyes of a +, we are worried that we are notgoing to make the world a safe place we are going to look through theeyes of how to e2cuse injurers.

    c. =hat if we apply the reasonable woman standard to e#erybody 4a#entwe established that by looking at the difference in insurance rates, thatwomen beha#e more safely than men, which means that women are e#enmore careful If we create a reasonable woman standard, is this not ane#en higher standard than the regular 8reasonable man standard9

    d. %hould we ha#e a more global standard of care, e.g., a reasonablemensch(reasonableness of a perfect standard) ('35)

    . Thus e2ists the dispute between particular"specific standards #. general standard ofcare

    a. The courts ha#e adopted the uni#ersal standard of negligence law* did the+ fail to act as a reasonable person under all the circumstances

    F. The /lmighty Mury and >isk$Ctility &alancing(''7)a. To just tell a jury in any situation that they should listen to all e#idence and

    decide if they acted reasonably is risky.b. &ack to 0roblem +(d)

    i. 4ow did Nancy act negligently

    '. %he didnt check her brakes or pump her brakes at the startof each trip made in the car

    ii. =ere these actions negligent'. There is liability if & R 0(6)3. In Nancys case at (d)(a)

    a. 0robability that she can cause an accident('"'KK,KKK) if she doesnt check her brake or pumpthem

    b. Qra#ity of damages* S3KK,KKKc. Thus, ('"'KK,KKK)(S3KK,KKK) P S3. %o e#ery time

    she dri#es, shes liable for S3. If the burden to fi2

    the brakes is S3"week, and her potential costs areS3, S3 3, therefore, he is not liable.d. %he is not negligent as long as she doesnt take

    more than '3 trips a week, because this willamount to S3A. %hould she take '5 trips, then S3R S3Fliable.

    5. In Nancys case at (d)(b)a. %he would be liable to damages if she didnt pump

    her brakes e#ery time she took a trip.

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    b. S.3 R S3. The burden to test your brakes is less ofa burden than to pay for the potential costs if youraccident causes damages.

    7. =hat more does the court say to measure reasonableness under certaincircumstances

    a. 6earned 4and Theory* & R 0(6)

    b. Tyle Tug C", P"blemi. They want to spend as little money as possible to insure a le#el of

    safety for the barges.ii. =hat is it that the company wants to achie#e %pend the least

    amount of money'. %pend the least amount of accident costs if they dont take

    safety stepsc. =e want the lowest total accident costs total accident pre#ention costs.d. ('33) This 6earned 4and & R 06 test sends a cold shudder my spine. Is it

    worth sacrificing li#es to create economic efficiencye. If it costs too much to sa#e your life, companies will allow you to die

    f. -ou cant a#oid the reality that a court must consider & R 06 formula. %omee2penditures"costs are not worth the sa#ings of li#es (e.g., a bubblearound bicycle to pre#ent accident).

    1. /nother way to e#aluate standard of care is to see if + beha#ed the same waye#erybody else is beha#ing

    iii. LUBIT. V, 8ELLS( ET, AL(')'. Issue* Is it negligent to lea#e a dangerous instrument on the ground outside, where

    it could cause harm, where +, in lea#ing his golf club outside, should ha#e knownthat the negligent use of a gold club would ha#e resulted in 0s injury

    3. H"ld&ng* No. / golf club is not a dangerous instrumentality where lea#ing it on theground is negligent.

    5. Re!s"n&ng* It would hardly be good sense to hold that this golf club is so ob#iouslyand intrinsically dangerous that it is negligence to lea#e it lying around in the yard.

    A. Rule "$ l!-* !ere objects that could cause harm, but are not dangerousinstruments on its own, can be left unattended without being charged withnegligence.

    . N"tes*a. Lilleen #. 4armon ruled the same way as 6ubit;, where a kid, while ha#ing

    a two$edged toothpick in her mouth, fell, puncturing her lip. 0 soughtreco#ery from +s negligence in using toothpicks which were 8pointed atboth ends, rather than somewhat rounded at one end.9

    b. The court held that a toothpick was an e#eryday item, and that it could not

    be deemed unreasonably dangerous. It would not be right to shift the lossfrom the careless user to the blameless manufacturer of supplies.i#. UNITE* STATES V, CARROLL TO8IN+( CO,3'A7) B P ; L

    '. Issue* +id the bargees absence at the dock when /nna @ sunk constitute asnegligence, where he left the dock at 0! on Man. 5 rd, only to return 30! the ne2tday where the barge was untied and refastened, only to break free, crash into anearby tanker, cause leak and where he could ha#e pre#ented the damage by hispresence

    3. H"ld&ng* -es.

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    5. Re!s"n&ng* The barge owners duty to pre#ent injuries resulting is a function of 5#ariables* (') the3&o'11$/that she will break away (3) if the boat does breakaway, the>&'1$/ o* $%e &esu$1n> 1n?u&/ (5) the u&-enof ade

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    F. Rule "$ l!-* if & R 06, then there is no negligenceb. UALITITES OF A REASONABLE PERSON

    i. u!l&t&es "$ ! e!s"n!ble -"m!n st!nd!d'. LEHMANN V, TOYS R US ('5)

    a. Issue* Cnder the 6/+ (6aw /gainst +iscrimination), would a reasonablewoman find + liable for hostile work en#ironment se2ual harassment,

    where, 0, because a hostile work en#ironment in Toys > Cs, was forced tolea#e due to se2ual harassment

    b. H"ld&ng* ?ne can state a claim for hostile work en#ironment se2ualharassment if (') the conduct would not ha#e occurred but for theemployees gender, (3) the conduct was se#ere or per#asi#e enough tomake (5) a reasonable woman belie#e that (A) the conditions ofemployment were altered and the work en#ironment was hostile andabusi#e.

    c. 8 +RONG TE!T* Gor establishing a cause of action for hostile worken#ironment se2ual harassment, the alleged conduct (') would not ha#eoccurred 1* 1$ 0e&en$ *o&the employees gender, (3) and it was see&e o&

    3e&'s1e enou>%to make (5) a &e'son'e 0o.'nbelie#e that (A) theconditions of employment are altered and the 0o&=1n> en1&on.en$ 1s%os$1e 'n- 'us1e. 3, 5, and A are interdependent, in that the conductmust be se#ere or per#asi#e enough to make the reasonable womanbelie#e that the conditions of employment are altered and her workingen#ironment is hostile.

    i. H'&'ss.en$ ec'use o* 3'1n$1**s se2* There must bepreponderance of e#idence that she suffered discrimination directlybecause of her se2.

    ii. !ee&e o& +e&'s1e* !ost plaintiffs who claim hostile worken#ironment se2ual harassment allege numerous incidents that

    would be insufficient alone, but if they are culminated andconsidered togetherstronger case for se#ere and per#asi#e

    conduct.iii. T%e Requ1s1$e Lee o* H'&.* In considering the le#el of harm that

    0 suffers, this is a subject that is split. (') ?ne court argues that theharm must ha#e caused the effect of unreasonably interfering with0s work performance, and creating an intimidating, hostile, oroffensi#e work en#ironment that caused psychological damage. (3)?ther courts argue that 0 must show that the alleged conduct was8sufficiently se#ere or per#asi#e to alter the conditions of the#ictims employment and create an abusi#e working en#ironment.9

    This court agrees with latter argument because in >E* to the firstargument, psychological distress is one of many other problemsthat 6/+ tries to pre#ent:it would be too narrow of a scope.

    i#. T%e Re'son'e Wo.'n !$'n-'&-* the court chooses a (')"bje%t&)eand (3) gende>s#e%&$&% #es#e%t&)e.

    '. Obje%t&)e st!nd!d* (a) ?bjecti#e reasonablenessstandard better focuses the courts attention on the natureof the alleged conduct, rather than on 0s reaction of theconduct, which is more related to tort damages. (b) /nobjecti#e standard pro#ides more fle2ibility because as

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    community standards e#ol#e, the standard of what areasonable woman would consider harassment will alsoe#ol#e. (c) The purpose of 6/+ is to eliminate realdiscrimination and harassment. (The category ofreasonable woman is di#erse and includes both sensiti#eand tough people. This standard should not be used to

    reject as 8unreasonable9 an emotional response to se2ualharassment, because such a response is normal andcommon. ?nly the peculiar response of a hypersensiti#e 0to conduct that a reasonable woman would not findharassing is e2cluded by the reasonable standard).

    3. +ende>s#e%&$&%* courts must recogni;e that there istendency in the courts and in our society to #iew the maleperspecti#e as the objecti#e or normal one. >esearchshows that men and women percei#e se2ual conduct onthe job differently. !en think its harmless (while men wouldprobably be offended by a gay man harassing him, this test

    is solely for hetero se2ual harassment). 4owe#er, (')women are in danger of se2ual #iolence e#eryday (3) theyare still minorities in the work field, and therefore it isharder for them to gain acceptance and respect fromemployers, coworkers, and clients. (5) =omen are still#iewed as se2ual objects rather than credible co$workers.

    c. CUSTOMS STAN*AR*Si. E#idence of common practice is good e#idence if beha#ior is reasonable or not.

    '. The e#idence of common practice alone is not determinati#e.a. CUSTOM ALONE *OES NOT SET THE STAN*AR*

    ii. M!et St!nd!ds

    '. @an juries come in and tell the market what to do because were worried an entireindustry will adopt an unsafe standard (e.g., the A railing that injured FA9 !elo)

    3. !arket imperfectionsa. !arkets need an incenti#e to place safety standardb. @onsumers dont know enough about safety standards (e.g., %ince not that

    many people know the safety standard of cars, car manufacturers are lesslikely to upgrade safety standards since consumers wouldnt e#en knowwhats safe and whats not.)

    iii. TRIMARCO V, /LEIN('13) 378IN*O8S CUSTOM9)'. Issue* Is a customary practice the only guideline needed to find an actor liable for

    damages caused out of negligence, where 0 suffered se#ere damages from a

    shattered bathtub glass window that should ha#e been changed according to newGederal regulations3. H"ld&ng* -es.5. Re!s"n&ng* It was understood that tenants looked to their landlords for safe

    maintenance of the apartments. If landlords were not gi#en the responsibility tokeep things in 8good repair,9 then defects would remain unremedied.

    a. But e)en t'"ug' t'e %ust"m!y #!%t&%e be%"mes un&)es!l t"e)ey"ne( t'&s %"mm"n test &s n"t t'e %"n%lus&)e test t" detem&nenegl&gen%e, T'e juy must be s!t&s$&ed -&t' t'e %ust"m!y #!%t&%es

    33

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    e!s"n!bleness(just as the jury must be satisfied with theunreasonableness of the beha#ior adhered to the custom.

    A. Rule "$ l!-* the reasonableness and uni#ersality of a customary practice is notenough to determine negligence the jury must be satisfied with the customarypractices reasonableness, as well as with the reasonableness orunreasonableness of the conduct done in accordance with the practice.

    . HYPO( CUSTOM STAN*AR*S6a. STAN*AR* OF SAFETY RAILS THAT COME UP TO : EVI*ENCE

    OF CUSTOMb. !elo, F79, falls off the railing. 4e sues >GL stadium for negligence arguing

    that the railing wasnt tall enough. &ut >GL created the railing according tothe a#erage height of people li#ing in +@, and >GL was following industrystandards. @an !elo est. that + acted negligently

    c. * -&ll n"t g!nted m"t&"n $" d&e%ted )ed&%t.d. If following the customs of the industry nonetheless causes an injury,

    where does the judge or the jury goe. /ccording to Trimarco, how would the jury today consider the

    reasonableness of the industry standard to ha#e the railing only come upto AF9 Must because + acted under the industry standards, this act aloneis not conclusi#e to dismiss grounds for negligence.

    i. +ifference in Trimarco, 0 had introduced substantial e#idence thatthe custom of the industry was to replace glass with shatterproofglass. In this case,

    ii. CUSTOM *OES NOT SET THE STAN*AR*,4owe#er there aresome situations where you ha#e e#idence that e#eryone isfollowing the custom, and 0 cant pro#e that this custom isunreasonable, then motion for directed #erdict will result.

    f. =hy not just follow the industry standard =hy doesnt the court just base

    their decision on the industry standardi. Een 1* 'n en$1&e 1n-us$&/ *oo0s s3ec1*1c cus$o.s, $%ose

    cus$o.s -on$ necess'&1/ %'e $o e &e'son'e:i#. ROBERTS V, STATE OF LOUISIANA('1') (8BLIN* MAN 8AL/IN+9)

    '. Issue* +oes an injured party ha#e a cause of action for negligence against aphysically disabled person who allegedly did not act with reasonable care gi#en hisdisabilities, where +, blind, did not walk with a cane while going to the bathroomduring work, where he bumped into 0 and caused injury

    3. H"ld&ng* =here the blind actor injured another while acting as a reasonablyprudent blind man would act, there is no liability.

    5. Re!s"n&ng* T'e %"e%t st!tement &s meely t'!t 'e must t!e t'e

    #e%!ut&"ns( be t'ey m"e " less( -'&%' t'e "d&n!y e!s"n!ble m!n -"uldt!e &$ 'e -ee bl&nd,

    a. It is common for blind people to rely on other techni

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    A. Rule "$ l!-* =here a blind man causes injury to another party while acting in theconduct which an ordinary reasonable man would if he were blind, he is not liablefor injuries incurred.

    #. STEVENS V, VEENSTRA('1) (8CRA.Y /I* *RIVIN+9) (did we read this)'. RS 0 1( CHIL*REN

    a. 3!5 8'en !n !%t" &s ! %'&ld( t'e !%t"s %"ndu%t &s negl&gent &$ &t d"es

    n"t %"n$"m t" t'!t "$ ! e!s"n!bly %!e$ul #es"n "$ t'e s!me !ge(&ntell&gen%e( !nd e;#e&en%eJ e;%e#t t'!t

    b. 3b5 A %'&ld -'" &s less t'!n $&)e ye!s "$ !ge &s &n%!#!ble "$negl&gen%eJ AN*

    c. 3%5 T'e s#e%&!l ule &n Subse%t&"n 3!5 d"es n"t !##ly -'en t'e %'&ld &seng!g&ng &n ! d!nge"us !%t&)&ty t'!t &s %'!!%te&st&%!lly undet!enby !dults

    3. Issue* =here the trial court found in fa#or for +, should a minor be held to thesame conduct as an adult when engaging in adult acti#ities that are highly probableof causing damage, where +, while taking dri#ers ed, ran someone o#er

    5. H"ld&ng* -es. !ichigan has a long$standing policy of holding all dri#ers to an adult

    standard of care* 8J/ minor who engaged in an adult acti#ity that is dangerous,e.g., dri#ing a car, is charged with the same standard of conduct as an adult.9

    a. It would unfair to the public to allow minors to obser#e any standard of carethan that which all others abide by. It would be stupid to think that dangersassociated to dri#ing are lessened when the acti#ity is undertaken by aminor.

    b. Though the process of learning in#ol#es dangers, when the probability ofharm associated with engaging in an acti#ity is great, anyone engaging inthat acti#ity must be held to the same le#el of competence. +ri#ing anautomobile is one of these acti#ities, thus anyone dri#ing a car, regardlessof age, must be held to the same standard of care.

    A. Rule "$ l!-* /ctors, minor or adults, regardless of age, who engage in adultacti#ities that ha#e the high probability of causing damage, must be held to thesame standard of competence and conduct.

    . NOTES, SPECIAL CUSTOMS 8ITH CHIL*RENa. Hy#"* !an sues children for negligence after she ran him o#er with an

    /TD.b. (%te#ens) The judge should tell the jury that Natalie should be held to the

    standard of a reasonable child of the l&e !ge( &ntell&gen%e( !nde;#e&en%e('A').

    c. &ut, this wont work because she was dri#ing an /TD, an acti#ity that isconsidered an adult acti#ity. / child engaged in adult acti#ity should be

    held to reasonable standards of an adult.d. Is this an adult acti#ity if she dro#e the /TD in the road ?n an enclosedlot

    e. The tricky part with cases like this is figuring out what is considered anadult acti#ity and which acti#ities are not considered as adult acti#ity(hunting, gun use, /TD). It #aries by states and jurisdiction.

    f. @ertain places where the acti#ity is done by majority of adults areconsidered adult acti#ities, but where many of the people engaging in theacti#ity are children, then the standard is changed to the reasonable childof like age, intelligence, and e2perience.

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    d. ME*ICAL MALPRACTICEi. BOYCE V, BRO8N('51)

    '. RE!TATE6ENT 7 A, NDERTAKING IN +ROFE!!ION OR TRADEunless'e e#esents t'!t 'e '!s ge!te " less s&ll "$ n"-ledge( "ne -'"undet!es t" ende se)&%es &n t'e #!%t&%e "$ ! #"$ess&"n " t!de &seu&ed t" e;e%&se t'e s&ll !nd n"-ledge n"m!lly #"ssessed by

    membes "$ t'!t #"$ess&"n " t!de &n g""d st!nd&ng &n s&m&l! %"mmun&t&es,3. Issue* Cnder the general laws go#erning actions of malpractice, does a patient

    ha#e a cause of action against a doctor if her practice de#iates from the properstandard of medical care, where + allegedly did not e2ercise sound professionalcare by failing to 2$ray 0s ankle to figure out what was wrong with it

    5. H"ld&ng* &ecause not taking an 2$ray does not necessarily de#iate from the properstandards of medical care, + is not liable for 0s continued pain in her ankle.

    A. Re!s"n&ng* +ene!l ules "$ l!- g")en&ng !%t&"ns "$ m!l#!%t&%e* (') onelicensed to practice medicine is presumed to possess degree of skill which ispossessed by the a#erage member of the medical profession and is to apply thatknowledge with ordinary and reasonable care failure to do so is malpractice (3) for

    doctor to be liable, he must ha#e done something that the standard of good medicalpractice in the community he practices forbids (5) jury may not speculate what there

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    i./ material risk is a 8material risk9 only if members of the medical

    profession belie#e it to be then and only then would they disclosethe risk

    '. I.e., if there is a es#e%t!ble m&n"&tythat dont perform orthat dont tell the patient about the risk, then doctor is notliable

    5. (5) CAUSATION. That the ad#erse conse

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    e2amining the credibility of 0s testimony. The jury must be instructed thatit must find 0 would ha#e refused treatment if 0 is to win.

    b. This court, based on jurys finding for +, does not re#erse (=4-)c. +efense to failure to disclose

    i. 0laintiff knew risksii. Gull disclosure would be detrimental to patients best interest

    iii. Emergency e2isted reoberts.

    5. Informed consent cases could be treated as battery cases on the grounds that 0did not recei#e ade

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    b. (b) Is the harm and ha;ard resulting from the negligence that which thestatute aimed to protect against

    i. &?T4 !C%T &E %/TI%GIE+3. PART II6 8'!t e$$e%tK

    a. If both parts in PART Iare satisfied, then + acted unreasonably andnegligently.

    b. S"me %"uts s!y t'!t t'ee &s e)&den%e "$ negl&gen%ei. Cnder all circumstances and facts, we are to determine if + #iolate

    the statutec. S"me s!y t'!t t'ee &s #esum#t&"n "$ negl&gen%e

    i. If + had a reasonable e2cuse for #iolating the statute, then + is notliable for negligence per se. The presumption of negligence can berebutted by proof that a reasonable person would ha#e acted thesame way + would ha#e.

    ii. Gor e2ample, not e#ery #iolation of statute is negligence per se (>% 311, pg ')

    5. PART III* 8'!t e;%uses -&ll su$$&%eK

    a. 0g, 'FF, >% 311/, list of e2cusable situations (these are not e2clusi#e)i. Diolation is reasonable because of actors incapacityii. 4e neither knows nor should know of the occasion for complianceiii. 4e is unable for reasonable diligence or care to complyi#. 4e is confronted by an emergency not due to his own misconduct#. @ompliance would in#ol#e a greater risk of harm to the actor or to

    othersb. +s son is late for his first soccer game.

    ii. RESTATEMENTS'. RS 0 1( STATUTORY VIOALTIONS AS NE+LI+ENCE PER SE6 !n !%t" &s

    negl&gent( &$ -&t'"ut e;%use( t'e !%t" )&"l!tes ! st!tute t'!t &s des&gned t"

    #"te%t !g!&nst t'e ty#e "$ !%%&dent t'e !%t"s %"ndu%t %!uses( !nd &$ t'e!%%&dent )&%t&m &s -&t'&n t'e %l!ss "$ #es"ns t'e st!tute &s des&gned t"#"te%t,

    3. RS 0 4226 T'e %"ut -&ll n"t !d"#t !s t'e st!nd!d "$ %"ndu%t "$ ! e!s"n!blem!n t'e eu&ements "$ ! leg&sl!t&)e en!%tment " !n !dm&n&st!t&)eegul!t&"n -'"se #u#"se &s $"und t" e;%lus&)ely6

    a. 3!5 t" #"te%t t'e &nteests "$ st!te " !ny subd&)&s&"n "$ &t !s su%'JOR

    b. 3b5 t" se%ue t" &nd&)&du!ls t'e enj"yment "$ &g'ts " #&)&leges t"-'&%' t'ey !e ent&tle "nly !s membes "$ t'e #ubl&%J OR

    c. 3%5 t" &m#"se u#"n t'e !%t" t'e #e$"m!n%e "$ ! se)&%e -'&%' t'e

    st!te " !ny subd&)&s&"n "$ &t undet!es t" g&)e t" t'e #ubl&%J ORd. 3d5 t" #"te%t ! %!lss "$ #es"ns "t'e t'!n t'e "ne -'"se &nteests!e &n)!dedJ OR

    e. 3e5 t" #"te%t !n &nteest "t'e t'!n t'e "ne &n)!dedJ ORf. 3$5 t" #"te%t !g!&nst "t'e '!m t'!n t'!t -'&%' '!s esultedJ ORg. 3g5 t" #"te%t !g!&nst "t'e '!!ds t'!n t'!t $"m -'&%' t'e '!m

    '!s esultedJ.5. Rest!tement 0 422A6 !n e;%used )&"l!t&"n "$ ! leg&sl!t&)e en!%tment &s n"t

    negl&gen%e, A l&st "$ e;%us!ble s&tu!t&"ns6a. 3!5 t'e )&"l!t&"n &s e!s"n!ble be%!use "$ t'e !%t"s &n%!#!%&ty

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    b. 3b5 'e ne&t'e n"-s n" s'"uld n"- "$ t'e "%%!s&"n $" %"m#l&!n%ec. 3%5 'e &s un!ble !$te e!s"n!ble d&l&gen%e " %!e t" %"m#lyd. 3d5 'e &s %"n$"nted by !n emegen%y n"t due t" '&s "-n m&s%"ndu%te. 3e5 %"m#l&!n%e -"uld &n)"l)e ge!te &s "$ '!m t" t'e !%t" " t"

    iii. MARTIN V, HER.O+('3K) (8O6I!!ION OF LIGHT! I! NEGLIGENCE +ER !E9)'. Issue* Is 0s conduct in not dri#ing without headlights negligence per se, where the

    mere act of dri#ing without lights, a clear #iolation of statute, was contributorynegligence that caused the collision, resulting in 0s husbands death

    3. H"ld&ng* The #iolation of a statute is negligence per se.5. Re!s"n&ng* The omission of lights is more the some e#idence of negligence. It &s

    negligence in itself (per se). 86ights are intended for guidance and protection ofother tra#elers on the highway.9 4ighway 6aw, 53(a). To omit, willfully orheedlessly, the lights for the benefit of another that he may be preser#ed in life andlimb, is to fall short of a standard of care to which all those who li#e in organi;edsociety li#e by.

    A. Rule "$ l!-* The #iolation of a statute is negligence per se. =hen an actor #iolatesa statute, where his conduct constitutes as contributory negligence to the accident,

    actor is liable for damages.i#. REUE V, MIL8AU/EE ? SUBURBAN TRANSPORT CORP,(')

    '. Issue* /re all #iolations of statutes negligence per se, where + allegedly #iolated=isconsin statute 1.'(3) by not stopping the bus '39 from the curb, where 0stepped off and injured herself as a result of this negligence

    3. H"ld&ng* No. &ecause the =isconsin statute did not protect injured parties, aha;ard not mentioned intentionally in the statute, 0 cannot reco#er damages. Notall #iolations of statutes are negligence per se.

    a. 311 of >estatement, %econd, of Torts pro#ides as follows* The court willnot adopt as the standard of conduct of a reasonable man there (b) to secure to indi#iduals the enjoymentof rights or pri#ileges to which they are entitle only as members of thepublic ?> (c) to impose upon the actor the performance of a ser#ice whichthe state or any subdi#ision of it undertakes to gi#e to the public ?> (d) toprotect a class of persons other than the one whose interests are in#aded?> (e) to protect an interest other than the one in#aded ?> (f) to protectagainst other harm than that which has resulted ?> (g) to protect againstother ha;ards than that form which the harm has resultedJ.

    b. =e consider (g)* This statute had no intention in protecting persons suchas + from a ha;ard that arose from something other than from a collision

    between a mo#ing car and a parked car.5. Rule "$ l!-* Not e#ery #iolation of a statute creates negligence per se but if the#ictim was within the class of persons the statute was trying to protect.

    #. STACHNIE8IC. V, MAR>CAM CORP('7')'. Issue* Cnder ?>% A7'.A'K(5) and ?regon 6iegulation No. 'K$

    KF(3), is + liable for negligently failing to (') deny li

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    3. H"ld&ng* -es, + is liable in negligently failing to enact his responsibilities with duecare because the statute had aimed to protect a class of citi;ens by that legislation,and where 0 was a member of that class, and where 0 was injured in a fight thatthe statute enacted sought to pre#ent, + is liable.

    a. ?>% A7'.K5K, 80urpose of 6iestatement of Torts 311/, unless a harmful or dangerous

    act was done with a legally acceptable e2cuse or justification, an actor who causesserious harm to another party is therefore liable for negligence per se.

    5K

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    http://users/jamesabre/Desktop/law%20school/james/torts,%20bell/cases/37Impson%20v.%20Structrua%2351D6B.dochttp://users/jamesabre/Desktop/law%20school/james/torts,%20bell/cases/37Impson%20v.%20Structrua%2351D6B.doc
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    f. RES IPSA LOUITOR 3n" %!us!t&"n needed5i. Elements

    '. 315 t'e !%%&dent "d&n!&ly -"uld n"t '!)e '!##ened unless t'e * -!snegl&gent 3&,e,( t'e "nly e!s"n $" t'e !%%&dent -!s be%!use "$ s"me"nesnegl&gen%e5( AN*

    3. 345 t'e &nstument!l&ty " !gent -'&%' %!used t'e !%%&dent -!s unde t'ee;%lus&)e %"nt"l "$ t'e *( AN*

    5. 3G5 t'e %&%umst!n%es &nd&%!ted t'!t t'e unt"-!d e)ent -!s n"t %!used "%"nt&buted t" by !ny !%t " negle%t "n t'e #!t "$ t'e &njued #es"n,

    ii. To pro#e that a 0 sustained injuries because of +s negligence re

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    suffered no damage but her mother was injured where +aughters shoe was stuckunder the accelerator

    3. H"ld&ng* -es.5. Re!s"n&ng* Cnder the rule of res ipsa loquitor, a jury may draw permissible

    &n$een%eof negligence from the circumstances surrounding certain accidents.a. A##l&%!t&"n "$ t'e ule de#ends "n s!t&s$!%t&"n "$ G %"nd&t&"ns6 315

    t'e !%%&dent -'&%' #"du%ed #es"ns &njuy -!s "ne -'&%'"d&n!&ly d"es n"t '!##en unless s"me"ne -!s negl&gent 3&,e,( t'e"nly e!s"n $" t'e !%%&dent -!s be%!use "$ s"me"nes negl&gen%e5J345 t'e &nstument!l&ty " !gent -'&%' %!used t'e !%%&dent -!s undet'e e;%lus&)e %"nt"l "$ t'e *J 3G5 !nd t'e %&%umst!n%es &nd&%!tedt'!t t'e unt"-!d e)ent -!s n"t %!used " %"nt&buted t" by !ny !%t" negle%t "n t'e #!t "$ t'e &njued #es"n,

    A. Rule "$ l!-* =here there is sufficient e#idence to support the proposition that thenegligence that caused the harm points to the defendant, res ipsa loquitorfinds thedefendant liable for negligence.

    #i. Use "$ E;#et Test&m"ny t" Su##"t ! Res I#s! In$een%e

    '. =here in many cases a jury can draw a common sense inference of negligencefrom their own e2perience, some cases re

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    '. Issue* Is 0 entitled to submit the case to the jury on the theory of res ipsa loquitor,where the e#idence alone pro#ides the jury to make an inference that +s actionswere negligent, where + performed surgery on 0 where 'K laparatomy pads usedduring the surgery were found in her abdomen after the surgery

    3. H"ld&ng* -es, there is res ipsa negligence.a. The jury did not re

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    3 mph where 0s car jutted out a little beyond the tracks where the 8house track,9running parallel to the tracks, blocked the #iew of the train and the car

    3. H"ld&ng* No. /ccident would ha#e happened anyway had the train been going atthe speed limit.

    5. Rule "$ l!-* =hen the plaintiffs harm would ha#e occurred e#en if the + had notacted negligently, then the +s negligence did not legally cause the plaintiffs harm.

    +s negligence did not increase the probability that the accident would ha#ehappened. (=4-)

    #i. FOR* V, TRI*ENT FISHERIES( CO, ('')'. Issue* &ut for +s negligence in not suspending the safety boat lower to the water

    and negligently supplying only one oar, would 0s life ha#e been sa#ed, where hewas thrown o#erboard when the #essel rolled

    3. H"ld&ng* No. It does not appear that if the boat had been suspended from da#itsand a different method of propelling it had bee used he could ha#e been rescued.

    5. Rule "$ l!-* E#en where the + acted negligently, in another respect, &$ t'!tnegl&gen%e &s n"t ! subst!nt&!l $!%t" &n b&ng&ng !b"ut t'e '!mto the plaintiff,+ is not negligent.

    #ii. LYONS V, MI*NI+HT SUN TRANSPORTATION SERVICES( INC, ('F)'. Issue* &ut for +s negligent dri#ing, would 0s death ha#e been a#oided, where he

    allegedly speeding where 0s wife pulled out of a parking onto the main road andwhere 0 steered into the left lane to a#oid hitting 0s car

    3. H"ld&ng* No, though + was negligent in his dri#ing, his negligence is not the legalcause of the accident.

    5. Re!s"n&ng* There was e#idence presented at trial from which the jury would ha#ereasonably drawn the conclusion that e#en though + was dri#ing negligently, hisnegligence was not the pro2imate cause of the accident. *s e;#et test&$&ed t'!tt'e #&m!y %!use "$ t'e !%%&dent -!s Ps !%t&"n &n #ull&ng "ut "$ t'e #!&ngl"t &n $"nt "$ !n "n%"m&ng tu%,+ further responded reasonably in steering out

    of the lane. / reasonable jury could conclude that 0 caused the accident byabruptly pulling out in front of the oncoming truck.

    A. Rule "$ l!-* =ith the element of pro2imate causation lacking, e#en the mostegregious negligence cannot result in liability.

    #iii. REYNOL*S V, TE=AS PACIFIC RY,('11)'. Issue* &ut for +s negligence, could the harm sustained by 0 ha#e been pre#ented,

    where 0 fell down the unlighted stairs as a result of +s negligence to not placehandrails on the ledges to safely guide customers down

    3. H"ld&ng* -es.5. Re!s"n&ng* The court concedes that e#en if the stairway was lit she could ha#e

    fallen down the stairs. &ut if +s negligence in failing to place handrails in properly

    designated places enhances the danger to 0, it is ne#ertheless a character thatnaturally leads to the injury.A. Rule "$ l!-* E#en if 0s harm would ha#e occurred absent +s negligence, &$ *s

    negl&gen%e en'!n%es t'e %'!n%es "$ Ps !%%&dent, then this negligence leads tothe injury, and + is liable for injuries.

    b. SPECIAL PROBLEMS OF PROOFi. The standards that regulate e2pert testimonyii. This is

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    i#./RAMER SERVICE INC, V, 8IL/INS('5)

    '. Issue* =as the jury in the trial court improperly instructed by taking intoconsideration the cancer that grew where 0 sustained injuries on the temple when ithad not been definiti#ely pro#en that such trauma and injury has a pro2imateconnection to cancer where broken piece of glass struck + in the temple whereskin cancer de#eloped later on the area of abrasion

    3. H"ld&ng* -esa. 0 was entitled to the reE* to cancer. It is not

    sufficient for + to seek reco#ery in damages for an alleged negligencewhere there was a #"ss&bleconnection that the injury was caused by thenegligence. 0ossibilities will not sustain a #erdict.

    b. The testimony from the two doctors is that theres only a #"ss&b&l&tya skincancer could be caused by an injury. If doctors and researchers still do notknow after years of research, certainly judges and juries are far fromknowing what causes cancer.

    c. Therefore, where medical testimony is undisputed, the jury must act uponthis, otherwise, the jury will resort to3os$ %oc e&>o 3&o3$e& %oc, i.e.,

    8after this, therefore because of this,9 i.e., cancer came after the injury,therefore the cause of cancer is because of +s negligence.9

    5. Rule "$ l!-* The mere possibility that an injury was caused by +s negligence isnot enough proof to hold + liable for 0s injuries.

    #. *AUBERT V, MERRELL *O8 PHARMACEUTICALS( INC,('5)'. Issue* In using medical e2pert testimony to inform the jury so as to make a

    decision, is the standard that 8the e2pert testimony must generally be accepted inthe field to which it belongs9 (Grye) a sufficient standard to determine whichtestimonies are allowed, where 0s e2pert testimonies, because (') they were notpublished, (3) not subject to peer re#iew, and (5) generated solely for the purposeof litigation, were dismissed

    3. H"ld&ng* No, Grye made 8general acceptance9 the e2clusi#e test for admittinge2pert scientific testimony. That austere standard, absent from and incompatiblewith the Gederal >ules of E#idence, should not be applied in federal trials.9

    a. Rule 4* 8/ll rele#ant e#idence is admissible, e2cept as otherwisepro#ided by the @onstitution of the C%.9

    b. Rule D4* 8If scientific, technical, or other speciali;ed knowledge will assistthe trier of fact to understand the e#idence, or to determine a fact in issue,a witness

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    consider whether the e2pert is proposing to testify (') scientific knowledge that (3)will assist the trier of fact to understand or determine a fact in issue.

    D. POSSIBILITY CASE OF PROOF* Its not probable that the + caused 0s injury. The injuryprobably would ha#e occurred e#en without +s negligence.a. HYPO( PROBLEM E*

    i. 0eople in southern Ctah are e2posed to cancerous agents during 'Ks. 0s get infected,

    and there is possibility that C% go#ernment is negligent.ii. Two people file action, !s. Ely and !oab

    '. !s. Ely gets cancer3. !oab doesnt get cancer, but he suffers from emotional distress fearing that he

    might ha#e been e2posed to the canceriii. MS, ELY +OT CANCER,

    '. %he has causation problem.3. =hy does she ha#e a causation problem

    a. Theres no apidTransit held that it is not enough mathematically that the chances somewhat fa#or aproposition to be pro#ed.

    i#. STRON+ PREPON*ERANCE OF EVI*ENCE RULE'. SMITH V, RAPI* TRANSIT( INC , 3#!ge 1D53. Cnder the st"ng #e#"nde!n%e ule, probabilities are not enough. -ou ha#e to

    ha#e a strong preponderance of e#idence. It &s n"t en"ug' t'!t m!t'em!t&%!llyt'e %'!n%es s"me-'!t $!)" ! #"#"s&t&"n t" be #")ed

    5. The m!j"&ty "$ %"utsadopt strong preponderance rule of e#idence

    5F

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    A. @ourts want more e#idence other than the percentage chance. The problem withthis is that most times in these cases (like 0roblem E), 0 has nothing but thestatistics to go on.

    #. 8EA/ PREPON*ERANCE OF THE EVI*ENCE RULE'. If theres not enough substantial e#idence alone to pro#e that the + more likely than

    not caused 0s injury, t'e -e! #e#"nde!n%e "$ e)&den%e t'e"yallows

    reco#ery if 0 can show that more likely than not statistically, i.e., K.'W or o#er, +Xsnegligence caused 0Xs injury.

    3. =eak preponderance of the e#idence rule is typically used in medical malpracticecases (Morgenson, 4ersko#its)

    5. In !s. Elys case, it is as likely as not that +s negligence caused the injury.#i. LOSS OF A CHANCE *OCTRINE(This is usually used in medical malpractice)

    '. %ome @ourts ha#e reali;ed that people such as !s. Ely in 0roblem E cannotreco#er because the statistics do not show weak preponderance of the e#idenceand they ha#e no other e#idence to go on.

    3. E#en when its less than likely that 0 can reco#er, 0 would recei#e that percentageof her damages P to the chance + took away for reco#ery.

    5. =ithout the loss of chance doctrine, it would allow doctors to be negligent and notha#e to be liable as long as the patient didnXt ha#e a KW chance of li#ing in thefirst place.

    a. It would be Yopen seasonY on people who ha#e less than a KW chance ofgetting better.

    b. In 4ersko#its the court sums this up by saying about their decisionA. @OR+ENSON V, VENER(3KKK)

    a. Issue* /ccording to the loss of chance doctrine, should the court #iew thereduction of a 0s chance of sur#i#al as a rele#ant e#ent in 0s injuries, andthus allow 0 to reco#er if more likely than not +s negligence was apro2imate cause, where treatment could ha#e sa#ed 0s leg with FKW

    success rate where 0 elected for amputation and +s negligence to notnotice the defect caused 8loss of chance9 for him to sa#e his leg

    b. H"ld&ng* -es.i. /ccording to Torts RS 0 G4G(a professional is subject to liability to

    the other for physical harm resulting from his failure to e2ercisereasonable care to perform his undertaking, if (a) his failure toe2ercise such care increase the risk of such harm

    . HERS/OVITSa. Issue* @an an estate maintain an action for professional negligence as a

    result of failure to timely diagnose a disease, where the estate can showprobable reduction in statistical chance for sur#i#al but cannot show and"or

    pro#e that with the timely diagnosis, decedent probably would ha#e li#ed tonormal life e2pectancy, where 0s husband at 5FW chance of sur#i#alwhen he first got cancer, was not diagnosed in time where then hischance of sur#i#al dropped to 3W whether this reduction in sur#i#al issufficient cause in$fact e#idence that +s failure to diagnose was pro2imatecause of death

    b. H"ld&ng* -es.c. Rule "$ l!-* /ccording to 4amil, once a 0 has demonstrated that the +s

    acts or omissions ha#e increased the risk of harm to another, suche#idence furnishes a basis for the jury to make a determination as to

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    whether such increased risk was in turn a substantial factor in bringingabout the resultant harm. +amages should be awarded caused directlyfrom the death, i.e., lost earning, additional medical e2penses

    #ii. Taking the loss of chance approach, if !s. Elys damages are S3!, and theres a K$Kchance that + caused the negligence, then she should get KW of S3! (4ersko#it;)

    S'!.

    '. 4ow does Elys case differ from Morgenson and 4ersko#it;a. !s. Elys case is not a medical malpractice case. ?ur case is about

    e2posure to en#ironmental to2in.b. 8'y s'"uld l"ss "$ %'!n%e d"%t&ne &n med&%!l m!l#!%t&%e %!ses be

    e;#!nded t" t'ese &nds "$ %!sesKi. Its ! g""d &de! t" '!)e t'&s &nd "$ ule &n "t'e !e!s !s -ell

    #iii. SPLIT OF AUTHORITY ON LOSS OF CHANCE'. (3'') T'e m&n"&ty "$ %"uts d"nt !##ly t'e l"ss "$ %'!n%e d"%t&ne,

    a. /pplication of the loss of chance doctrine to en#ironmental injuries will notwork because there would be only speculati#e e#idence. 4owe#er, it couldpromote good social policy to hold the go#ernment and corporations to

    a#oid accidents that could be pre#ented through testing.3. T'e m!j"&ty "$ %"uts !d"#t l"ss "$ ! %'!n%e, 8'y &s &t g""d t" '!)e l"ss "$

    %'!n%eKa. ?#erall accident cost reduction, i.e., instrumental category

    i. the lowest total accident costs in societyii. (') accident costs accident a#oidance costiii. +octors will be careful when their patients ha#e a sur#i#al rate

    lower than KWi#. @"gens"n *&ssent6 t'&s -&ll le!d t" de%e!se &n !)!&l!b&l&ty "$

    med&%!l %!e &n S*,b. Mustice"fairness for the 0 to reco#er injury

    i. 0roportionalityii. Morgenson E2ample in +issent (1, )*

    '. /ll people ha#e cancer.3. FF will die anyway because their chance of sur#i#al is

    under KW.5. Cnder loss of chance, the + pays the 8just right9 amount.

    The + pays out for the injuries for the total amount that the+s negligence caused.

    A. The 0s injuries caused by +s negligence dont get the fullamount, whereas some 0s whose injuries did not comefrom +s negligence, they get some reco#ery regardless

    . 8e d"nt -!nt t" d" l"ss %'!n%e be%!use -&t' #e"#le( -e '!)e e"s &n t'e "ut%"me "$ t'e jud&%&!lsystem, At le!st unde "u #esent system -&t'"ut l"ss"$ e%")ey( less e" be%!use y"u "nly g&)e%"m#ens!t&"n t" t'"se -'" -ee de$&n&tely &njued$"m *s negl&gen%e,

    iii. ="o the loss of chance the 55W of truly injured will ne#er reco#er:its all or nothing.

    c. Issue of institutional competence32( $&st %"lumn5

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    i.This is a big policy change in %+ and this is something with lots of

    medical complications. This is a job not for the courts, but for thelegislature.

    i2. !oab did not get cancer, but he suffered emotional distress. !r. !oabs concern is notcausation. /ll of his angst was caused by +s negligence.

    '. =hat are his claims

    a. Enhanced risk due to e2posure to cancerb. Emotional distress (cancerphobia)c. Increased medical bills due to consistent #isits to doctor

    2. @an he reco#er2i. Elements "$ ENHANCE* RIS/

    '. Cnder enhanced risk, is it probable that hes going to get cancer3. C!n%e#'"b&!* !oab must pro#e substantial proof that #'ys&%!lb"d&ly '!m

    %!used t'!t em"t&"n!l $e!.5. The * must '!)e $"eseenthat the cancerous agent caused a cancerphobiaA. The emotional distress must be m!n&$ested by subseuent #'ys&%!l &njuy. There must subseuent #'ys&%!l &m#!%t

    F. Med&%!l m"n&t"&ng* 4e can reco#er for medical monitoring so long as he can getmedical testimony that shows that a specific fre

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    i.4e can reco#er for medical monitoring so long as he can get medical

    testimony that shows that a specific fre

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    I.@OINT AND !E"ERAL* +s are liable to pay for its own share (i.e.,

    joint), but if one or all +s cant pay, then you all ha#e to pay for it(i.e., se#eral)

    ii. If judgment comes against 3 +s, and ' of the 3 is rich, 3 of 3 ispoor, and 3 of 3 cant pay for its share of damages, ' of 3 has toco#er all damages.

    d. SUMMERS V, TICE('A1)I. Issue* =here a plaintiff is injured by more than one party, but does

    not know which one caused an injury, can a judgment against bothdefendants stand, where two +s both shot a

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    the harm, where 0s mother took +E% drug where 0 then sufferedfrom cancer 0 filed suit against +

    ii. 0 relies on the 8ente#&se l&!b&l&ty9 theory. This theory came fromHALL, where 0s were '5 children injured from e2plosion of blastingcaps in 'K different states. The gist of the complaint was that thepractice of the industry of omitting a warning on indi#idual blasting

    caps and of failing to take other safety measures createdunreasonable risk of harm, resulting in 0s injuries.

    A. MAR/ET SHARE LIABILITY(%indell %mith #. Eli 6illy))a. Pees

    i. 0 cant identify the particular +ii. 0 must pro#e that +s product caused the injury. There must be

    proof that + acted negligently.iii. 4ow many +s do you ha#e to sue in order to use the !%6 theory

    '. E&t'e *s -'" '!)e SUBSTANTIAL SHARE IN THEMAR/ET 3CA COURT5 " just ONE * 3"t'e %"uts5

    b. E$$e%ts

    I. MICHI+AN !nd FLORI*A %"uts eu&e t'!t t'e P m!ed&l&gent e$$"ts t" &dent&$y t'e * -'" %!used t'e &nju&es. This isto get around what the %mith majority was concerned about, that0s were better in being unable to identify the + because they canine#itably reco#er from other +s through !%6.

    II. / * %!n e;%ul#!te '&msel$by showing that (a) + did not sell ormake the product at that time, or in that area, or (b) the product wasused in a way not intended for use (NY COURT)

    iii. 6iability in !%6 is not joint and se#eral:its just se#eral'. %o not e#ery + would ha#e to pay damages.3. Gor e2ample, 0 suffers S'! in damages

    5. +ow and !onsanto make up 7W of the agent orangemanufactory. They would pay 7W of the S'! S7KL.

    c. SIN*ELL V, ABBOTT LABSI. F!%ts* 0 sued after de#eloping bladder probs. 0 joined many +s,

    but not all of them. %he didnXt know which one caused harm.II. Issue* @an + be held liable under !%6III. H"ld&ng* !%6 is fair. +s are better capable of bearing the costs and

    it pro#ides an incenti#e to work on safety concerns. + may be heldliable for their percentage of the market of a product that injured 0unless +s can pro#e they ha#e no share in market. /ll +E% casesin#ol#e drugs marketed at certain times. Injuries were '$3K years

    later so no records.ID. Rule6 Unde MSL( e!%' * &s l&!ble $" ! #"t&"n "$ !-!d

    !##";, t" &ts m!et s'!e,D. *ISSENT* !%6 allows 0 to reco#er w"o est. causation. It should be

    up to the legislators.DI. P"l&%y6 +s can better share the losses and it is better to allocate a

    percent of damage to each + then to ha#e innocent 0 pay.d. Is this market share liability going to apply outside of the +E% cases (get

    this on &&)e. SANTIA+O ), SHER8IN 8ILLIAMS

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    I.Issue* @an you use !%6 and find + liable, where 0 was infected with

    lead poison where + consisted of many companies where 0 couldnot identify the + that caused the harm

    II. H"ld&ng* No. + argues that where +E% had signature causes tocreate cancer, + asserts that certain hereditary, social, anden#ironmental factors could ha#e caused 0s injuries. + argues that

    0 did not suffer from a signature lead paint injury.'. * '!s #"du%ed e)&den%e t" s'"- "t'e $!%t"s t'!n

    le!d #&gment &n #!&nt -ee !deu!te &n #"du%&ng%!uses "$ Ps &nju&es, T'e juy %"uld "nly s#e%ul!te !st" t'e degee t" -'&%' * %!used t'e '!m,

    3. !%6 holds +s responsible only to the e2tent that theirproduct has contributed to the risk of injury to the public. +argues two reasons as to why its impossible to determinetheir contribution to the risk of harm. (') 0 holds +accountable for a time span of A year, during the timewhen + mo#ed in and out of the market. (3) 0 holds +

    liable as bulk suppliers, not as paint manufacturers:+ didnot package the paint.

    f. SHOUL* MAR/ET SHARE LIABILITY E=ISTKI. LOSS SPREA*IN+

    '. =hy is it useda. ?ne of the emphases that the courts adopted,

    starting with %indell, was the idea 8L"ssS#e!d&ng::+s can better spread the costs. Thisis why !%6 e2ists in the first place

    b. =hy is society better off if the +s ha#e to bear thecost

    i. 8+eep pockets9theyre wealthier, sothey should bear the loss

    ii. &y spreading the loss, it makes it easierfor +s to pay the loss

    c. =e put the loss on the +, and the + can spreadthe hea#y burden amongst all the other +s.0unishment should fit the crime

    +. T'e &de! 'ee &s t'!t &ts !n &nstument!l ule &nt'!t s"%&ety -&ll be bette "$$ be%!use t'ee &sless t"t!l #!&nd&sut&l&ty &n s"%&ety -'en ! l"ss&s $elt by ! l"t "$ #e"#le !t'e t'!n ! %us'&ng

    e;#e&en%ed $elt by "ne #es"n.II. *ETERRENCE

    '. !%6 is going to ")e>deteand put manufacturers out ofbusiness because it will cost more for them to makeproducts and they will be afraid of liability

    a. If you dont accept !%6, then all these companiesescape liability for manufacturing a fungibleproduct

    b. ="? !%6, companies ha#e no incenti#e to beha#esafely because if we do, all the other companies

    A5

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    who are not upgrading safety standards will ha#ebetter profit since they are selling their goods at alower price

    3. Is !%6 an accurate deterrenta. In theory, each company is liable for its share

    in#ol#ed in the market, so we create the 8just right

    amount9 of deterrence.&. But( &n !%tu!l&ty( MSL &s n"t e!lly ! l&ely

    deteent, Ps t"" dugs &n t'e l!te 1s !ndn"- t'eye b&ng&ng ! t"t l!-su&t G ye!sl!te,

    III. FAIRNESS@USTICE'. Innocent #. wrongdoers3. P"#"t&"n!l&ty* is + being held liable in proportion to that

    share of the risk that they put out on society !%6 doesjust that.

    5. (%mith 75) &ecause its impossible to determine with

    accuracy what a companys market share is that you wouldha#e liability being too arbitrary and too inconsistent.

    A. 0ay for injuries that you didnt cause.

    DII. VALUATIONa. PROBLEM +

    i. =hat could 0illy 0 argue'. I didnt cause her death3. /ll that 0illy took away from !adelaine was 'KW sight loss, so 0illy 0 pays 'KW of

    her loss until she dies.ii. =hat could !adelaine Q sue for

    '. &lindness caused by the medicine made by 0illy 0

    iii. =hat about >ichard'. If he negligently dro#e, then !adelaine could sue him

    a. >ichards defense* youre going blind anywayV3. The damages she would get from >ichard would be reduced damages.5. If >ichard is negligent, the courts must figure what the dollar damages would ha#e

    been if !adelaine was completely healthy.a. Then they ha#e to assess the damages that !adelaine would recei#e if

    she was blinded in one yearb. If she can reco#er a 'KW loss from 0illy 0 and also an assessed damages

    from >ichard. If >ichard is not negligent, then all she can reco#er is the'KW loss from 0illy 0.

    i#. Must because !adelaine dies, 0illy gets off the hook and only pays 'KW loss.'. =hat if !adelaine takes the drugs, finds out that shes going to be blind, and then

    goes cra;y and goes into a coma.3. 0illy now has to pay 'KW loss /6?NQ with the liability that it precipitated the

    deliriuma. 0illy could argue that it was foreseeable that someone would be blinded by

    the medicine, but we had no idea that a person would ha#e deliriumtremens and suffer from comatose.

    b. 0s injury would ha#e had occurred anyway.

    AA

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    c. T!e y"u #l!&nt&$$ !s y"u $&nd '&m:the unforseeability of the injurydoesnt matter. =hen you do something that physically injures someoneelse, and that they if they are thin, egg$shell skull rule

    d. =hat if + argued* this person was so fragile that he would ha#e diedanyway #ery soon. In this case, + has to 0>?DE IT

    #. %o how does this relate to 0illy 0s chance to get away with liability if they only ha#e to pay

    for the 'KW liability.#i. T'e l!- d"esnt '"ld y"u l&!ble $" -'!ts e;#e%tedJ t'e l!- '"lds y"u l&!ble $" -'!t

    !%tu!lly '!##ens,'. @ricket ball hits someone who suffers for di;;iness and headache:you pay for

    that.3. @ricket ball hits kid and shatters his egg$shell skull:+ pays because of the

    conse

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    DIII. PRO=IMATE CAUSE6 SEPARATE FROM CAUSATIONa. Things to remember

    i. The 0 must satisfy this re

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    3. Re!s"n!ble se%u&ty !g!&nst t'e& "-n l"sses* we wantto force one of them to get insurance cheaply to e2pend

    a. It would be better to spread the loss of insurance5. The problem of &nte)en&ng %!uses, where the + is

    essentially saying, yes I was negligent, but someone elseinter#ened in a way that I shouldnt be liable for that result

    A. An"t'e &s !%tu!lly es#"ns&ble:there was somebodyelse who was really responsible of taking care of this 0 andthey should be the ones responsible for 0s injury.

    . 4ypo, !r. /l#are;:the manufacturers should notresponsible for making the /gent ?range the C%go#ernment should be responsible for looking out for theirshoulders.

    iii. *ELL8O V PEARSON'. Issue* =here a +s negligent cause a chain of direct e#ents which ultimately lead

    to 0s injuries, is + liable for pro2imate injuries, whether or not they wereforeseeable, where 0 was fishing with AK feet of lining following the boat where +s

    boat crossed 0s and caught the lining, wrapping the lining around the motor,snapping the rod and injuring 0

    3. H"ld&ng* -es, jury was incorrectly instructed5. Re!s"n&ng* =hether or not the + could ha#e foreseen the injury occurring, if the

    act is negligent and causes injury, then that person is guilty and e

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    n"t $"esee!ble, the destruction of the boat was the direct result ofnegligence.

    ii. Issue6 Is + liable for the damages that were not foreseeable, where+s ship spilled oil in a harbor, where workers were using acetylenetorches in repairing the wharf, where + assured the workers thatthe oil would not ignite from the torches, where few days later the

    wharf blew up, and where + argued that B negligence because thee2plosion was unforeseeable

    iii. H"ld&ng6%ays 0olemis$rule is bad law. Re!s"n!ble$"esee!b&l&ty test, 4ere the fire was unforeseeable hence, noliability

    i#. Rule "$ l!-* + is only liable for the pro2imate cause of his actions ifthe damages from that negligence are foreseeable. n!"-definition

    b. 8A+ON MOUN* 4i. =agon !ound 3 decides that the burning of the ships was

    foreseeable

    ii. The @ourt b"!dlyacknowledges what is reasonably foreseeableiii. The @ourt e2plicitly refers to the finding by the lower court, that if +

    had gi#en attention to the risk of the conseE* it as possible conse

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    A. N"tes*a. The 0 must be in the ;one of foreseeable danger, and 0alsgrafs injury

    was not foreseeable.b. +issent*

    i. =as there a natural and continuous se narrowly

    ii. =agon !ound 3 is e2ample* the infinitesimal risk that was shownthrough the cricket ball that was hit from outside the stadium and hitsomeone outside the street.

    iii. ?n the other hand, if you look at jury instruction in +elllwo, 8theresonly going to be foreseeable harm if it was probable according toordinary e2perience.

    3. 8e&d C"nseuen%esa. Narrow #. broad definitions of what conse

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    a. If the risk you created was harm to people, but what occurred to property,then that is not pro2imate cause:@?C>T% +?NT &C- T4I%

    A. 8e&d M!nnea. If the harm is foreseeable to a 0, does it matter that the way the harm

    happens is unforeseeableb. !ost courts say N? (Cnited No#elty #. +aniels:+ goes to his employee,

    hands him gasoline soaked rag and says, clean the room where the openflame heater is. 4e takes the rag, cleans the refrigerator, gas dripping ontoa rat. >uns across the room to the gas heater.

    c. + was found liable because the conse

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    0rinces negligent dri#ing, and it occurred whilethe traffic mi2$up occasioned by +snegligence was still persisting, not after thetraffic flow had become normal again.

    , Rule "$ l!-6 8'ee t'e !%t&"n bet-een "ne#!tys negl&gen%e &s d&e%t t" !nd

    &nse#!!ble $"m ! Gd

    #!tys negl&gen%e(!nd t'ee &s $"esee!b&l&ty t'!t d!nge%"uld esult $"m Gd#!ty negl&gen%e( t'e#&m!y t"t$e!s" &s l&!ble $" #";&m!tely%!us&ng Ps &njuy, Be%!use &t -!s$"esee!ble t'!t t'e P -"uld ty t" -!n"t'e m"t"&sts "$ t'e d!nge !'e!d%e!ted by t'e &n&t&!l !%%&dent( t'e *Qsnegl&gen%e &s t'e #";&m!te %!use "$ t'ePQs &njuy -'en stu% by ! Gd3&nte)en&ng5 %!, 3I$ t'e &njuy '!d "%%ued

    !$te t'e &s s&tu!t&"n -!s g"ne( 3$&)e m&lesd"-n t'e "!d5( t'en t'e *Qs negl&gen%e-"uld n"t be t'e #";&m!te %!use,5

    II, This analogous fact patternIII, MARSHALLcourt rules that lower courts ruling is right

    in refusing to grant directed #erdict. 4ence if the casein 0roblem in 4 was denied direct #erdict, the court inappeal should affirm the denial, too.

    B. @on#ersely, one could argue 8-es9I, Gact pattern is somewhat different considering that the

    dri#er who hit 0 in 0roblem 4 was drunk. The dri#er in

    !arshall was innocent. The inter#ening act in 0roblem4 is criminal the inter#ening act in !arshall wasaccidental.

    C. *ER*IARIAN&, Issue* Is +ickens (5rdparty) negligence a superceding

    e#ent that would break the causal link between 0sinjury and +s negligence, where +ickens fellunconscious, allowing his car to careen into theconstruction site where the car then hit 0 where 0landed and AKK degree li

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    be a superseding act which breaks the causallink.

    4, + negligently failed to safeguard the site. /prime foreseeable conseestatement (5rd) helps you ask, 8=as that inter#ening

    damage foreseeableV, %plit in the approach that the courts used

    B. 8ATSON&, Issue* =here +uerr, acting as 5 rdparty inter#ener, lit

    the match and dropped it into the gas, did he just dropit into the gas unknowingly, where the e2plosioncaused injuries to 0 which would hold + pro2imatelyliable for the damages or did did +uerr drop the matchinto the gas purposefully and maliciously, which wouldbreak the causal link between 0s damages and +snegligence, thereby finding +uerr instead liable forwanton negligence

    &&, H"ld&ng* If +uerrs act was malicious, the e2plosion

    was one which could not ha#e been reasonablyanticipated or guarded against, and in such case theact of +uerr, and not the primary negligence of +, wasthe efficient and pro2imate cause of the 0s injuries.

    III, Rule "$ l!-6 I$ = !%ted negl&gently &n l&g't&ng t'es#&lled g!s -&t' '&s m!t%'( t'en * -"uld be 'eldl&!ble be%!use t'!t -"uld be $"esee!ble, I$ ='c$e- 1n$en$1on'/c&1.1n'/( t'en * -"uld n"t be'eld l&!ble $" t'e &njuy t" P be%!use su%' !n !%t-"uld be un$"esee!ble,

    3

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    III, SPECIAL CATE+ORIES!, Element 356 But( &s t'ee s"met'&ng s#e%&!l !b"ut t'ese %!ses t'!t #us'es us t"

    n"t '"ld * l&!ble $" negl&gent %"ndu%tK 3e,g,( * '!d n" duty t" 'el# ! st!nge!$te ! tee $ell "n t"# "$ '&m,5

    b, Sub#!t 315 FAILURE TO ACTI, 4-0?