KBC Torts I Outline

8/7/2019 KBC Torts I Outline

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Torts I Outline LeCesne Page 1 of 27

I. Intentional Interference With Person or Property (Intentional Torts)A.INTENT1.Only necessary to prove that the person intended to perform the action; not necessary to

prove that intended to cause injury

2.Intent doesnt require showing of malice, but must be volitional and there must be a chanceof harm or bodily contact; reckless

3.Types:a.General

i. may not consciously desire the physical result, but knows that result issubstantially certain to follow

b.Specifici. consciously desires physical results of his act; acts with the purpose that

the consequences will follow

c.Transferredi. when an intent to cause harm to one person results in harm to another

person instead of the intended target, the law transfers intent to the

actual harm caused

Only applies to 5 torts:y battery,y assault,y false imprisonment,y trespass to property/land andy trespass to chattels (chattel- a movable, tangible

property)

o (i.e., shoot at a dog) Doesnt apply to conversion, transfer of Occurs in case of same tort, different target; or in case of different

tort, same target; or in case of different tort, different target

4.Neither good faith nor insanity excuse liability as long as the person possesses the requiredintent to perform the action

5.**With every tort case, must first determine: was there intent? If so, what type of intent isit-specific, general or transferred?6.The tort law standards differ from the criminal law standards for holding the mentally ill

responsible for their actions.

a.i.e., liable for battery of s decedent even though he was found not guilty byreason of insanity in criminal case arising out of same incident.

7.Even if a mentally ill person lacks the ability to form the intent to commit a tort, an actionmay lie against persons responsible for caring for the mentally ill person, based on negligent

supervision.

a.i.e., parents liable for negligent supervision when 22 yr. old son attacked histherapist.

8.Cases:a.Garratt v. Dailey(liability of infant for alleged battery pulled a chair out from lady)

i. Rule: Intent to perform the act is all that is necessary, not intent to doharm

b.Spivey v. Battaglia (unsolicited hug by fellow employee)i. Rule: liable for reasonably foreseeable consequences, though exact

results and damages were not contemplated. Enough that had intent to

do act which would cause harmembarrass

c.Ranson v. Kitner(dog killed because looked like wolf) (Tort = trespass of chattel)


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i. Rule: Only need general intent (i.e., lifting the gun and shooting and killingsomeones personal property) to perform an act, not intent to harm, to be

held liable. Mistake and good faith do not negate intent

d.McGuire v. Almy(insane person batters nurse)i. Rule: An insane person is liable for intentional damage to a person or

property of another just as a normal person would be. Mental illness or

voluntary intoxication doesnt negate intent.ii.While in criminal law an insane person can negate intent.iii.In this case, she would only have to know with substantial certainty that

the harm would occur.

iv.A volitional act is always required. i.e., if you have a heart attack and runinto another car, you are not liable.

e.Talmage v. Smith (boys on shed)i. Rule: is liable for committing battery, even if he intended to cause the

harm to one person, but instead harmed another (the doctrine of

transferred intent).

ii.On the other hand, when either the tort intended or the one accomplisheddoes not fall within the trespass action, the doctrine of transferred intent

does not apply.

iii.Anyone who is in harms way can make a claim. The could make a claimeven if the stick did not hit either of the children.

B. BATTERY

1.The intentional infliction of harmful or offensive contact upon the person of another(intentional striking of someone, with intent to harm, or in a rude manner even if injury is

slight)

a.A battery is the knowing or intentional touching of one person by another in a rude,insolent, or angry manner

2.Elements:a.Intentb.To causec.Harmful or offensive (physical) contactd.With the person of another

3.A victim does not need to be aware of battery at the time it is committed, a battery can becommitted when someone is unconscious

4.Can be committed if a persons actions cause mental suffering in another; invasion of apersons dignity

5.Doesnt require anger6.Any touching, however slight, may constitute an assault and battery.7.The intent with which tort liability is concerned is not necessarily a hostile intent, or a desire

to do any harm. Rather it is intent to bring about a result, which will invade the interests of

another in a way that the law forbids.

8.Restatement (Second) of Torts (1965)a.13. Battery: Harmful Contact

i. An actor is subject to liability to another for battery if: He acts intending to cause a harmful or offensive contact with theperson of the other or a third person, or an imminent

apprehension of such a contact (scaring them), and

A harmful contact with the person of the other directly orindirectly results

b.18. Battery: Offensive Contacti. (1) An actor is subject to liability to another for battery if:


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He acts intending to cause a harmful or offensive contact with theperson of another or a third person, or an imminent apprehension

of such a contact, and

An offensive contact with the person of the other directly orindirectly results

ii.(2) An act which is not done with the intention stated in Subsection (1,a)does not make the actor liable to the other for a mere offensive contactwith the others person although the act involves an unreasonable risk of

inflicting it and, therefore, would be negligent or reckless if the risk

threatened bodily harm

9.Notes from book:a.Grabbing the breast of someones coat, spitting in their face, forcibly removing their

hat, etc. are all offensive touching, therefore a battery.

b.Tapping someone on the shouldernot offensive, not all unwanted touching is abattery.

c.Even if someone is trying to help, after they have been asked to stop, anysubsequent touching after that is a battery.

d.Knowing someone is allergic to smoke and still blowing it into his or her face is abattery.

e.You must be conscious for an assault (you must be aware of the imminentharmful/offensive danger), but you do not have to be conscious for a battery to

occur. (sleeping beauty would have a cause of action for battery but not for assault)

f. Security guard operating under the Shopkeepers Privilege can search or patdown someone reasonably suspected of stealing this wouldnt be a battery

g.If it is unreasonable to assume the person is stealing and you snatch a package,then that is a battery.

10.Cases:a.Cole v. Turner(old casetrespass)

i. Rule: The evolution of the definition of batterytouching in anger isbattery; brushing past someone is not; however if force or struggle is

caused while brushing past, then a battery.

b.Fisher v. CarrouselMotor Hotel, Inc. (refused to serve black man; slapped plate outof his hand. This is an offensive invasion of his person)

i. Rule: To constitute an assault and battery, it is not necessary to touch thes body or even his clothing; knocking or snatching anything from s had

or touching any thing connected with his person, when dome in an

offensive manner, is sufficient.

ii.Only have to intend to touch something immediately related to anothersperson, not the actual body for a battery to exist.

c.Wallace v. Rosen i. Contact is offensive if a reasonable person would determine the contact

was offensive. This is an objective standard used.

C. ASSAULT

1.Intentionally causing apprehension of imminent harmful or offensive bodily contact to theperson of another.

2.Elements:a.Intentional actb.Causingc.Apprehension

i. Imminent bodily contactii.Apparent ability to affect the act

d.Harmful or offensive contact


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3. must have reasonable apprehension of assault, therefore must have the apparent (notactual) ability to carry out the act; battery is imminent

4.However lewd or crude, absent a movement toward the , an assault has not occurred.Preparation of an assault is not enough; some overt act must accompany it.

5.If A finds out after the fact that while his back was turned that B had pointed a gun at him,there is no assault

6.Doesnt have to have an attempted battery component in tort law7.Fear is not required, only apprehension8.Awareness of the act can be achieved through any of the senses; must be aware of the

assault

9.While every battery includes an assault (in criminal law), an assault does not necessarilyrequire a battery to complete it.

10.A major distinction between a criminal assault and an assault in tort is that for criminalassault, a victim need not have an apprehension of contact.

a.A criminal assault occurs if the intends to injure the victim and has the ability todo so.

b.For the tort of assault, the victim must have an apprehension/worry of contact, andit is not necessary that the have the actual ability to carry out the threatened

contact.

c.Depending on the jurisdiction, a could be subject to either criminal prosecution orcivil damages, or both.

i. Words alone cannot constitute assault, there must also be an act that areasonable person would find as an imminent apprehension of bodily

contact.

11.Cases:a.I de S et ux. v. Wde S (hatchet at window, woman scared)

i. Rule: Doctrine of transferred intent (from trespass to property to assault)allows an attempted battery on a house to be transferred to an assault of a

woman looking out its window.

ii.Assault in tort law is NOT an attempted battery, you can intend just topersuade someone

b.Western Union Telegraph Co. v. Hill(clock; woman verbally assaulted)i. Rule: Only threat of harm is necessary to constitute assault. Dont have to

fear the contact, but feel that it is imminent.

ii.Assault requires only apprehension or anticipation of fear because itintrudes on your emotional security

iii. claimed he lack the apparent ability

D. FALSE IMPRISONMENT

1.Unlawful restraint through force or threat of force to confine someone to an area2.Elements:

a.Intentb.To cause c.Confinement (actual or apparent barriers)d.To a bounded area

3.Dont have to ask to leave, can be an implied threat that one cant leave; have to have actualor physical barriers; one has to be aware that they are confined

4.There are several ways that confinement can occur:a.Actual or apparent physical barriersb.Overpowering physical force or submission to physical forcec.Submission by threat of physical forced.Submission by threat of harm to anothere.False Arrest


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5.A false imprisonment claim is not taken away if the only means of escape would cause bodilyharm

6.In N.Y., awareness is a requirement, everywhere else its just harm.7.Cases:

a.Big Town Nursing Home, Inc. v. Newman ( not allowed to leave nursing home)i. Rule: False imprisonment exists when there is a direct restraint of ones

physical liberty/or threat of without adequate legal justification.ii. may request punitive damages if the act causing actual damages is a

wrongful act done in violation of their rights.

b.Parvi v. City of Kinston (drunk taken to golf course to dry out)i. Rule: No liability for intentionally confining another unless the person

physically restrained knows of the confinement or is harmed by it.

c.Hardy v. Labelles Distributing Co. (employee coerced to office, then accused oftheft)

i. Rule: Moral persuasion is not enough to constitute falseimprisonment(force or threat of force), wanted to stay to clear name.

Restraint must be compelled.

d.Enright v. Groves ( taken to jail for not showing license; violation of leash law)i. Rule: Conviction of a crime which one is specifically arrested for is acomplete defense to a subsequent claim of false arrest or imprisonment.

e.Whittaker v. Sandford(cult; boat ride back to America)i. Rule: is guilty of false imprisonment if out of duty, promise to provide

transportation to America, he fails to provide a means to leave ship.

E. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

1.One who, without privilege to do so, intentionally causes severe emotional distress toanother; liable for both emotional distress and any bodily harm resulting from it

2.Compensation is given because the assault to the person is the emotional harm3.Intent exists when act is done with the purpose of causing distress or one has knowledge

that distress is substantially certain to follow

4.Elements:a.Intentional or reckless conductb.Extreme or outrageous conduct that is beyond bounds of human decency, atrocious

and utterly intolerable in a civilized society (s sensitivities may be a factor in

determining this)

c.Causal connection between conduct and distressd.Distress must be severe e.Must show actual damages, not necessarily physicalf.What constitutes extreme and outrageous conduct is a function of the times

5.Notes from book:a.States vary on the extent of emotional distress that needs to be present.b.Intent to cause emotional distress can be intentional or reckless.c.Many courts require the presence of the person claiming the emotional distress

during the act that caused the harm.

6.Cases:a.State Rubbish Collectors Assn v. Siliznoff(trash collector; signed notes; threat of

beating)

i. Rule: One intentionally subjected another to mental distress withoutintending to cause bodily harm, is nevertheless liable for the resulting

bodily harm if he shouldve foreseen that the mental distress may have

caused such harm.

b.Slocum v. FoodFairStores ofFlorida (employee told customer they stunk)i. Rule: Emotional distress must be severe to recover.


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c.Harris v. Jones (stuttering GM employee teased by boss)i. Rule: Action must be extreme or outrageous compared to the normal

surroundings and standards of society to recover. The vulnerabilities of

the must also be taken into effect.

d.Taylor v. Vallelunga (girl sees dad get beat up)i. Rule: In order for 3rd party to recover from witnessing physical harm of

another, must prove that there was intent to cause distress to 3rd

partyand that distress to 3

rdparty was certain to follow from witnessing the

physical harm of another.

F. TRESPASS TO LAND

1.Intentionally causing physical invasion (by person or thing) of anothers immovable property.2.Dont need actual damages3.Trespass must be the result of a voluntary act (if someone trips and falls onto anothers land,

it is not a trespass)

4.A mistake is not a defense to trespass to land (if you do not know its there land, butvoluntarily enter)

5.Elements:a.Intentb.Physical invasionc.Real property

6.Dont need to show damages for a trespass to land claim; consequential damages can alsobe recovered

7.Notes from book:a.A privileged entry onto the land of another may be limited not on in time and

space, but also by purpose.

b.Damages from a trespasser need not be foreseeable to be compensable.8.Cases:

a.Dougherty v. Stepp ( enters s unenclosed land to survey; property unharmed)i. Rule: Actual damages arent required to be found liable for trespass (allows

to protect his right to control landaction belongs to possessor).

b.Bradley v. American Smelting andRefining Co. (microscopic airborne particles)i. Rule: When particulate matter, to recover for trespass on land must show

actual damages. Only type of trespass to land case where damages must

be proven (exception to intentional trespass when substantial damages are

required).

c.Herrin v. Sutherland(guy shoots duck across s land)i. Rule: Ones property is considered to extend above and below the earth.

d.Rogers v. Board ofRoadComrs for KentCounty(county fails to remove stake,husband hits with tractor and dies)

i. Rule: Permission to trespass can be limited by scope and/or duration. Afterconsent is taken away, either verbally or by the completion or a consented

act, a trespass occurs if either or his things stay on the land.

G. TRESPASS TO CHATTELS

1.The intentional interference with the right to use of personal property2.Elements:

a.Intentional actb.Causationc. Interference with right to possess chatteld.Actual damages

3.In order to prove trespass to chattels, must show that: (only need to prove one of three)a.Chattel is impaired (condition, quality, or value)


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b.Owner is denied use of chattel for a significant amount of time (ex: borrowsomeones car and keep it for a week)

c.Bodily harm is caused to the possessor or harm is caused to the person or thing thatthe possessor has a legally protected interest (ex: steal someones car)

4.MUST show actual damages to recover, either harm, dispossession for significant time orcomplete dispossession

a.Can only recover for the damages suffered; actionable even if property is returnedb.Good faith and reasonable mistake do not relieve someone from responsibility or

act as a defense

5.Cases:a.Glidden v. Szybiak(dog bites kids nose)

i. Rule: Must have actual damages to chattel to recover.b.Compuserve v. CyberPromotions, Inc.

i. Rule: Electronic signals sent via a computer are sufficiently tangible to formthe basis of a cause of action for trespass to chattels, and interference

therewith can be actionable.

H. CONVERSION

1.Nature of the Torta.Restatement of Tortsi. 222A. What Constitutes Conversion

Conversion is an intentional exercise of dominion or control overa chattel which so seriously interferes with the right of another to

control it that the actor may justly be required to pay the other

for the full value of the chattel

In determining the seriousness of the interference and the justiceof requiring the actor to pay the full value the following factors

are important:

01.the extent and duration of the actors exercise ofdominion or control;

02.the actors intent to assert a right in fact inconsistentwith the others right of control;

03.the actors good faith;04.the extent and duration of the resulting interference with

the others right to control;

05.the harm done to the chattel;06.the inconvenience and expense caused to the other

b.The ways in which an actor may convert a chattel include the following:i. Acquiring possession of it (stealing the chattel)ii.Damaging or altering it (intentionally running over an animal and killing it)iii.Using it (a bailee seriously violates the terms of bailment)iv.Receiving it (obtaining possession after a purchase from a thief)v.Disposing of it (a bailee wrongfully sells the chattel)vi.Misdelivering it (delivery to the wrong person so that chattel is lost)vii.Refusing to surrender it (bailee refuses to return the chattel)

c.Exists only when damages to movable property are serious enough (significantdeprivation) to effect a forced sale to converter for entire value of property (can

recover for full value of property)

d.It is more substantial and physical interference with a chattel than tort of trespassto chattels

e.Hypos:i. If A mistakenly takes Bs chattel and shortly thereafter returns it. Not

conversion because no harm is done


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ii.Same facts, but A destroys the chattel. The deprivation is permanentiii.If you purchase stolen property in good faith, this is acts of conversion on

both the buyer and seller because of the deprivation of the chattel

f. Cases:i. Pearson v. Dodd(took papers from senators office; published articles with

info from papers)

Rule: In order to recover for conversion must be deprived of useof chattel or it must be subject to protection from conversion, i.e.,

literary property, scientific invention, secret plans for the conduct

of commerce, or instruments of commercial competition.

2.Effect of Good Faitha.Good faith is not excuse or defense to conversionb.An individual may be subject to liability for conversion although he was not

subjectively at fault. This can occur in at least 2 ways:

i. When intends to affect the chattel in a manner inconsistent with the sright of control, the fact that he acted in good faith, and under a mistake,

does not prevent liability for conversion

ii.An innocent purchaser cannot obtain title from a thief. The purchaser actsat her peril and may be sued for conversion by the true owner

iii.Because a bona fide purchase cuts off equitable rights, this right to rescindfor fraud it terminated when a bona fide purchaser acquires both title and

possession from the defrauding party

3.Necessity ofDemand; Return of Chattela.Demand

i. In some states, possession by a bona fide purchaser or other innocentconverter is not in itself a sufficiently serious defiance of the owners

rights, and the possessor is liable only if refuses to return the goods on

demand. In most states, however, a conversion occurs as soon as the

takes dominion and control over the goods in the manner inconsistent

with s ownership. In these states, there may be a separate act of

conversion for an initial taking of possession and for a later refusal to

return on demand, and the owner can elect between themb.Return

i. When a converter offers to return the converted goods and the owneraccepts, the return does not bar the action for conversion, but it must be

taken into account to reduce the damages recovered. If the chattel is in

the same condition as when it was taken, has not changed in value and the

has suffered no special damage through being deprived of possession,

the effect may be to reduce his recovery to nominal damages

4.Damagesa.The measure of damages for conversion is the value of the property converted

(market valuewhat the property could have been sold for in the open market by a

willing seller to a willing buyer)

b.Market value is determined at the time and place of conversionc. If there is no market value, other method may be used, such as manufacturing costless depreciation

d.Sometimes the property destroyed or damaged has little market worth, but has aparticular value to the owner. Damages cannot be recovered for sentiment alone,

but if a s conduct is outrageous, may be able to recover damages for emotional

harm suffered from the loss

e.Punitive damages may be allowed when the conversion was malicious but not whenit was done innocently

5.What may be converted


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a.Anything that is capable of being lost and found (not land)b.Therefore trees, minerals, crops or fixtures attached to land can not be converted.

However once there is a severance from the land, the goods become chattels and

they can be converted

c.There is permit to recover for conversion of intangible rights of a kind customarilymerged with a special instrument, such as those of a stockholder, without any

conversion of the stock itself6.Who may maintain the action

a.Anyone in possession of the chattel at time of a conversion can maintain an actionfor it, thus a finder can recover for conversion

b.Recovery is permitted even when possession is wrongful, and in defiance of thetrue owner (one converter may recover from another)

c.One can recover without possession if they had the immediate right to the chattel

II.Privileges (Defenses to Intentional Torts)A. CONSENT

1.If consents to s actions, even if unlawful, then acts under privilege.2.Determined by outward manifestations of feelings (objective theory) 3.If there is no battery, then no liability and there is NO CONSENT4.Elements ofImplied consent:

a.Patient is unable to give consent (unconscious, intoxicated, mentally ill orincompetent)

b.Risk of serious bodily harm if treatment is delayedc.A reasonable person would consent to treatment under the circumstancesd.Patient would consent to treatment under the circumstances if not incapacitated

5.Have to have consent to medically treat a person, even if it is to save their lives; if there istime to get consent, then consent isnt implied and will have a cause of action for battery

6.Consent can be nullified by fraud, duress, when goes beyond scope or an illegal activity.7.Consent can be waived in situations that are dangerous or harmful. 8.Notes from book:

a.If during a sporting event, a player gets hurt, he can recover if it is shown that theact was intentional and the conduct was outside the rules of the game.

b.If a person is tapped on the shoulder, no consent is necessary because there was nobattery. This is not a harmful or offensive contact under the reasonable person

standard.

c.A medical care provider may act in the absence of express consent if consent isimplied because treatment is necessary to prevent great bodily harm or death and

there is no time to get consent; if not, it is a battery.

d.Must seek parents consent for a childs treatment if there is time.e.Adults are entitled to bodily integrity, they can limit the extent of a surgery and any

attempt to go beyond this point without consent is battery by the surgeon.

f. A competent patient of sound mind can refuse medical treatment that would savetheir life.

i. Every adult has bodily integrityg.In a state where there are criminal penalties for having sex with a minor, consent ofthe minor to sex is held to be ineffective.

h.Fraudulent concealment of fertility status or an STD can negate consent and the can win in a battery action if can show the knew of the condition. It would be a

negligence action if the should have known

i. Consent can be implied by local customj. In the case of a minor child, consent of the parent is necessary for any medical

procedure, except in an emergency


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k.Courts are likely to grant a hospitals application to overrule the parent if thetreatment is for a life threatening condition, but not if it only will improve the

childs comfort or appearance.

l. Depending on the jurisdiction: i. The minority view is that consent to illegal activity is valid consent.

Restatements view- [Louisianas view]

Exception: consent can be nullified if there is a statute to protectcertain classes of people (i.e, prize fighters, statutory rape victims)

ii.The majority view is that consent to illegal activity is NOT valid consent If you choose to engage is an illegal activity and you hurt

someone, they could sue and you would be held liable

9.Cases:a.OBrien v. CunardS.S. Co. (lady vaccinated against will)

i. Rule: Consent can be implied by conduct, doesnt have to be expressed.b.Hackbart v. Cincinnati Bengals, Inc. (severely injured football player)

i. Rule: With contact sports, when injury happens because of actions outsidethe rules of game, consent isnt considered to be implied.

c.Mohr v. Williams (doctor operated on left ear even though consent was for rightear)

i. Rule: Consent can be waived if matter is life threatening or time sensitive.Consent can be nullified when goes beyond scope of the consent. The fact

that the touching was beneficial does not negate the battery

ii.If the condition threatens seriously bodily harm or death, and there is notime to get the consent from the patient, then there is an implied consent

d.DeMay v. Roberts (assistant brought into birthing room)i. Rule: The misinterpretation or omission of a material fact negates any

consent given, even if the fact is found out after the event.

B. SELF DEFENSE** LeCesne said this will be on the exam

1.Very infrequent in tort law; therefore when occurs, criminal law rules are carried over andapplied without much variation

2.Existence of Privilegea.Anyone is privileged to use reasonable force to defend himself against a threatened

battery on the part of another

b.Courts determine if warranted by the facts of the case3.Retaliation

a.The privilege is one of defense against threatened battery, and not retaliationb.When the battery is no longer threatened, the privilege terminates; and thereafter

the original victim himself becomes liable for battery

c.Even if a person initially was an aggressor, once he has retreated, he has a right toself-defense against the person he initially threatened

4.Reasonable Beliefa.The privilege exists when the reasonably believes that force is necessary to

protect himself against the battery, even though there is in fact no necessity

5.Provocationa.Insults, verbal threats or opprobrious language do not justify the exercise of self

defense

b.If the abusive words are accompanied by an actual threat of physical violencereasonably warranting an apprehension of imminent bodily harm, one may be

privileged to defend

c.One does not have to wait for the first blow to fall before acting; whenaccompanied by an overt hostile act, oral abuse may amount to a challenge to fight

and constitute consent


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6.Amount of Forcea.The privilege is limited to the use of force that is or reasonably appears to be

necessary for protection against a threatened battery.

b.Differences in age, size and relative strength are proper considerationsc.To justify resistance with a deadly weapon, must have a reasonable apprehension

of loss of life or great bodily injury

d.Generally, has the burden of proving that the use of force was reasonable underthe circumstances, although some jurisdictions shift the burden to the if the is a

police officer

7.Retreata. may stand his ground and use any force short of that likely to cause serious injury

(minority rule). Majority rule says one may stand his ground even to death.

b.Rather than kill assailant or seriously wound him, must retreat to the wallc.A victim may use deadly force if there is the slightest doubt, if reasonable, that the

retreat can be safely made, and in determining whether his doubt is reasonable

every allowance must be made for the predicament in which his assailant has

placed him

8.Injury to Third Partya.Ex: , defending himself against A, unintentionally shoots B instead.b.In this case the privilege of self defense is carried over, and the is not held to be

liable to B in the absence of some negligence toward him

c. In determining whether there is negligence, the emergency and the necessity ofdefense against A, are still to be considered

C. DEFENSE OF OTHERS

1.Nature of Privilegea.Privilege similar to that of self defense is recognized for the defense of third

persons

b.Early common law recognized privilege for a master of the household to defendmembers of his family and servants against attack

i. Issue here is whether D used reasonable force in the circumstances2.Reasonable Mistake

a.Some courts hold that the intervener steps into the shoes of the person he isdefending; and is privileged only when that person would be privileged to defend

himself;

i. if it turns out that he has intervened to help the aggressor, he is liableb.Other courts hold that the is privileged to use reasonable force to defend another

even when he is mistaken in his belief that intervention is necessary, so long as his

mistake is reasonable

D. DEFENSE OF PROPERTY

1.Can use reasonable force necessary under the circumstances as it appears to the to defendproperty

2.Cant use excessive forcedeadly force can never be used (however can use if safety ofperson or family is threatened, ex: burglary at night)3.In the case of a peaceful invasion, can use force after first asking trespasser to leave,

however the request does not need to be made if there is no time

4.Notes from book:a.A person acts at his own peril in defending his property and will be liable if the

invader is on the land as a matter of right.

5.Cases:a.Katko v. Briney(shot gun in farm house)


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i. Rule: Deadly force can never be used to defend property, unless theintrusion threatens death or serious bodily harm to the users or occupiers

of the premises. Mistake is no excuse. Human life outweighs property

rights

You can use force that is reasonably necessary under thecircumstance, which is determined by the jury

E. RECOVERY OF PROPERTY

1.Can use reasonable force according to the circumstances to recover property immediatelyafter it is taken (fresh pursuit); any lapse of time destroys the privilege and then must resort

to law.

2.Cannot use force that inflicts serious bodily harm; limited to reasonable force under thecircumstances.

3.Shopkeepers are given privilege to conduct an investigation if they have reasonable belief ofa theft (must be for a reasonable amount of time and in a reasonable manner, privilege only

extends to false arrest, not slander)

4.Unless otherwise agreed a secured party has on default the right to take possession of thecollateral. In taking possession a secured party may proceed without judicial process if this

can be done without breach of peace. UCC 9-503

5.Cases:a.Hodgeden v. Hubbard(fresh pursuit - stove bought on bad credit)

i. Rule: A person has the right to take back their property within a certainamount of time and to use a reasonable amount of force after requesting

the possession be returned.

ii.This is an example of the fresh pursuit doctrine. A person has the right touse force to recapture chattel in fresh pursuit. One is not entitled to use

deadly force or create a breach of the peace, however.

iii.Privilege is limited to reasonable force under the circumstancesb.Bonkowski v. Arlans DepartmentStore (police stopped suspected shoplifter)

i. Rule: If store has reason to believe that shoplifting has occurred, there isreasonable privilege to detain them for a reasonable investigation of the

facts; shopkeepers privilege.

F. NECESSITY

1.Public necessity provides privilege to abridge private rights if there is imminent danger;relieves liability. Some jurisdictions may allow for compensation for damages caused by that

public necessity.

2.Private necessity does not relieve trespasser of liability.3.Cases:

a.Surocco v. Geary(s house blown up to save burning neighborhood)i. Rule: There is no duty to provide compensation to a person whose

property was destroyed as a result of privilege of public necessity.

ii.As long as the city acted reasonably to protect the public, they will not beheld liable for damages

b.Vincent v. Lake Erie Transp. Co. (s boat docked on someone elses property duringstorm)

i. Rule: One is allowed to take actions necessary to survive (private necessity)however they are liable for damages.

G. JUSTIFICATION

1.A person in a position of authority can use reasonable restraint or detention of those inones lawful custody to prevent harm or damage to others or to property.

2.Circumstances may arise where ones otherwise illegal acts are legally justified.


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3.Case:a.Sindle v. New YorkTransit Authority(kid on school bus that was vandalized)

i. Rule: s actions to restrain others were justified since they werereasonable to protect others or property from injury; not liable.

IV.NegligenceA. History

1.Negligence is an unintentional tortB. Elements of Cause of Action (determined by a preponderance of the evidence)

1.Negligence is a breach of duty to use reasonable care causing damage to another.a.Elements (must meet all to be held liable):

i. Duty have a duty to act as a reasonably prudent person under average

circumstances; duty to use reasonable care (statute can define

what duty is)

ii.Breach breach of that duty; must act with the parameters of the standard

of care with in the circumstances; a failure to conform to the

required standards (see factors below)

iii.Causation a reasonably close causal connection between the conduct andthe resulting injury

y In factowhether the s negligent conduct is the factual

cause of the s injury (but for s breach of

duty, would not have been injured)

y Proximate causeo had a reasonably foreseeable risk of the

action; must decide whether or not to impose

liability on who it is proven through a

negligent act caused the s injury

iv.

Damage

actual loss or damage resulting have to the interest of another;proof of damage is essential to s case; cant recover if there are

no actual damages; however if s risk-creating negligent conduct

threatens but doesnt harm , he may be able to obtain an

injunction and stop the activity as a nuisance

C. A Negligence Formula

1.There are a range of possible risks associated with any conduct; juries will look at this todetermine negligence in a certain circumstance

2.Factors of Negligence (within breach, next look to factors)a.Likelihood of harm

i. How likely is it that harm will occur? (H/L)b.Gravity of harm

i. How bad will harm be if it happens? (H/L)c.Social utility of s conducti. Benefit of action or object to society (H/L)

d.Burden preventioni. What would it take to minimize or reduce the harm? (H/L)

3.A court or jury will balance the 4 factors to determine what a reasonable person could do orshould have done under the circumstances presented

4.A may assert the affirmative defense of contributory negligence, claiming the s conductwas negligent and that the s negligent conduct also contributed to the cause of s injuries


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a.In Louisiana comparative fault reduces the amount of the award to the based onthe percentage of harm attributed to the

5.The standard of reasonable care applies to all parties in a particular case (both and )6.Notes from book:

a.With the operation of machinery, such as planes, trains, automobiles andsnowmobiles, containing risks, juries will decide whether the risk is a reasonable

one under the circumstances.7.Cases:

a.Lubitz v. Wells (kid hits another with golf club)i. Rule: In order to be liable, object left on ground must be intrinsically

dangerous that it is unreasonable and negligent to leave it lying around;

golf club is not unreasonable to leave lying around.

b.Blyth v. Birmingham Waterworks Co. (busted pipes from freeze)i. Rule: Cannot be negligent for actions resulting in extreme circumstances

that a reasonable person would not have foreseen.

c.GulfRefining Co. v. Williams (faulty gas cap container)i. Rule: Each person has the duty of care to reasonably anticipate

consequences of their actions.

d.Chicago, B. & Q.R. Co. v. Krayenbuhl(no lock on railroad turntable)i. Rule: If danger outweighs the cost and inconvenience of making somethingsafe, precautions should then be taken to minimize risk of harm.

e.Davison v. Snohomish County(driver lost control of car and broke through bridgerailing, falling to ground)

i. Rule: If burden of prevention is too high with respect to the likelihood ofharm, action does not need to be taken to minimize harmcost/benefit

analysis.

f. UnitedStates v. CarrollTowing Co. (tug hits tanker; flour leaks out, then sinks)i. Rule: The test for negligence is the same whether applied to the or .

also has a standard of care, if found to not have used care, will also be

responsible for part of damages.

8.Restatement of Tortsa.291. Unreasonableness; How Determined;Magnitude ofRisk and Utility ofConduct

i. When an act is one which a reasonable man would recognize as involving arisk of harm to another, the risk is unreasonable and the act is negligent if

the risk is of such a magnitude as to outweigh what the law regards as the

utility of the act or of the particular manner in which it is done

b.292. Factors Considered in Determining Utility of Actors Conducti. In determining what the law regards as the utility of the actors conduct for

the purpose of determining whether the actor is negligent, the following

factors are important:

the social value which the law attaches to the interest which is tobe advanced or protected by the conduct;

the extent of the chance that this interest will be advanced orprotected by the particular course of conduct;

the extent of the chance that such interest can be adequatelyadvanced or protected by another and less dangerous course of

conduct

c.293. Factors Considered in Determining Magnitude ofRiski. In determining the magnitude of the risk for the purpose of determining

whether the actor is negligent, the following factors are important:

the social value which the law attaches to the interests which areimperiled;


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the extent of the chance that the actors conduct will cause aninvasion of any interest of the other or of one of a class of which

the other is a member;

the extent of the harm likely to be caused to the interestsimperiled;

the number of persons whose interests are likely to be invaded ifthe risk takes effect in harm

D. The Standard of Care

1.The Reasonable Prudent Persona.This is a question of fact for the jury to decide; custom can be a starting pointb.Notes from book:

i. While custom is evidence of what can be done, it is not conclusive of whatshould be done.

ii.There are certain circumstances where one is required to anticipate anemergency such as when driving past a school and a child comes darting

out into the street.

iii.More may be required of a child of superior intelligence; some courts setarbitrary age limits.

iv.In most jurisdictions, the general rule is that mentally-able adults are heldliable for their actions regardless of their ability to comprehend.

v.A person under the influence of drugs are alcohol is held to a reasonableperson standard with no exceptions.

c.Cases:i. Vaughan v. Menlove (hayrick exploded, caused neighbors house to burn)

Rule: Acting in good faith doesnt relieve one of negligence if notacting as a reasonably prudent person; test is what a reasonable

person would do in the circumstance, not what would have

done.

ii.Delair v. McAdoo (bald tires caused accident) Rule: A reasonably prudent person operating a vehicle should

know of all physical defects and will be held liable for proceedingto drive with a defect that causes harm to another.

iii.Trimarco v. Klein (glass shower door breaks) Rule: A custom can be evidence of what a reasonable person

would do under the circumstance, but not conclusive. Custom

can give the jury a point of reference to make decision.

iv.Cordas v. Peerless Transportation Co. (lady hit by hijacked cab) Rule: The standard of care in an emergency is determined by

whether the action is proportionate to circumstances involved. If

under normal circumstances an act would be considered

negligent, if may not be considered so if the person is acting

under an emergency, not of his own making, where he is suddenly

faced with patent danger with very little time to react. However,

if you create an emergency, you are liable for the accident you

caused.

v.Roberts v. State of Louisiana (blind man trips man at post office) Rule: A person with a physical disability is measured by the

standard of care for a reasonable prudent person with the same

disability.

vi.Robinson v. Lindsay(kid driving snowmobile; passenger gets hurt) Rule: The standard of care for a minor is evaluated by the

reasonable standard of a minor of l ike age, intelligence and


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experience unless they are engaging in adult or dangerous

activity, then standard is that of an adult.

vii.Breunig v. American Family Ins. Co. (lady thought she could fly; drove carinto another)

Rule: Mental disability is not an excuse for negligence. Somestates make exceptions if person did not know they were crazy by

showing that the insanity affected their: (1) ability to understandand appreciate the duty or (2) ability to control car in a prudent

manner.

2.The Professionala.Notes from book:

i. The standard of care for specialists in a profession holding themselves outto have higher skills is modified; they are held to a higher standard.

ii.The standard of care is not modified for professionals providing theirservices pro-bono; they are held to the same duty of care whether being

paid or not.

iii.Disclosure by physicians to patients for procedures: reasonable physiciantest, a physician must disclose those risks which a reasonable prudent

physician would disclose under the circumstances; and reasonable patient

test, information that a reasonably prudent patient would need to know in

order to make a determination on consent.

b.Cases:i. Heath v. SwiftWings, Inc. (pilot crashes plane; kills family)

Rule: Standard of care is not affected by the training a person has.Professional standard of care is objective according to the

knowledge, training and skill of an ordinary member of the

profession in good standing.

ii.Hodges v. Carter(attorney failed to personal serve company; actedaccording to custom)

Rule: An attorney engaging in practice implies that he has therequisite degree of learning, skill and ability necessary to practice

his profession. If he acts in good faith and in the honest beliefthat his advice and acts are well founded and in the best interest

of his client, he is not negligent for a mere error in judgment or

for a mistake in point of law not settled by the highest court of

the state.

iii.Boyce v. Brown (doctor failed to x-ray fractured ankle) Rule: A licensed medical practitioner is presumed to possess the

degree of medical skill and practice that is possessed by the

average member of the medical profession in good standing with

the community in which he practices, and to apply that skill and

learning with ordinary and reasonable care to cases which come

to him for treatment, and if he does not possess that skill and

learning, or does not apply it, he is guilty of malpractice. Evidence

of malpractice must be established by expert testimony unless it

is obvious even to a lay person.

iv.Morrison v. MacNamara (UTI test done by lab while patient was standing) Rule: 3 standards of care: strict locality, standards in locality or

community; geographical boundary, standards in similar

communities in similar circumstances; and national, according to

national standards. If a lab/doctor is nationally certified, must use

national standard of care.


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v.Scott v. Bradford(doctor didnt inform of material risks, therefore gainedconsent through fraud)

Rule: Oklahoma uses patient-focused test for informed consentmalpracticewhat would a reasonable person want to know

before consenting to test? Other states use physician-focused

test or reasonable person testwhat a reasonable physician

would do when disclosing information.vi.Moore v. The Regents of the University ofCA (doctor failed to tell patient

he was using cells from spleen for research)

Rule: A physician must disclose personal interests, economic orresearch-related, unrelated to the patients health that may affect

the physicians judgment; failure to disclose the interests may give

rise to cause of action for lack of informed consent or breach of

fiduciary duty.

E. Rules of Law (may determine what a person should do)

1.An applicable statute satisfies 2 of the 4 negligence elements(duty & breach)2.With a statute, based on the facts of the case:

a.Determine the class of persons the statute is trying to protectis the injuredperson a member of that class?b.Were they injured by a hazard that the legislature was trying to protect against?

3.A statute doesnt have to be used in place of the reasonable person test; if a statute doesntapply, use the reasonable person test

4.Statutes are unenforceable because of technical or procedural deficiencies5.Case:

a.Pokora v. Wabash Ry. Co. ( approached railway, didnt hear/see anything, crossedand was hit)

I. Rule: Rules of law shouldnt be mechanically applied to every situation;different situations require different levels of precaution; level is for jury to

decide.

F. Violation of the Statute1.Violation of a statute is negligence per seas a matter of law, you had a duty and you

breached it

2.With negligence per se, skip duty & breach (b/c already established by statute) and go on tocausation & damages

3.Notes from book:a.There are times when the rule of law does not apply because of exceptional

circumstancesconsistent with Cordozos view.

4.Case:a.Osborne v. McMasters (unlabeled bottle of poison sold, consumed by , who died)

i. Rule: An applicable statute establishes what the standard of care is; usedover reasonable person standard. If statute is violated, standard is not met

and negligence exists.

5.Applicability of the Statutea.Cases:

i. Stachniewicz v. Mar-Cam Corp. (barroom brawl in state where there is astatute against serving intoxicated persons)

Rule: To determine whether statute is applicable must prove that(1) party seeking to prove violation is a member of the class of

persons that the statute is trying to protect; and (2) the hazard

that occurred was one that the legislature intended to prevent

with the statute. If successful in proving, court must then decide


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whether it is appropriate to impose liability for violation of the

statute.

ii.Ney v. YellowCab Co. (thief stole cab and crashed into another car, statutesays cant get out of car and leave running)

Rule: As long as part of statute is to protect this class of personsfrom this type of act then that part of statute can be applied and

rest can be disregarded.iii.Perry v. S.N. andS.N. (daycare owner sexually assaulted kids; s knew of

acts and did not report; statue says you must report child abuse)

Rule: As a matter of law, there is no preexisting duty to warnsomeone about criminal acts or intentions of a 3

rdparty on

another.

6.Effect of Statutea.In a rebuttable jurisdiction, violation of a statute is prime facie evidence of

negligence, but it can be rebutted or overcome by presenting evidence sufficient

(unequivocal, strong & credible) to rebut the presumption

b.Notes from book:i. Violation of a statute is excused when: it is reasonable because of the

actors incapacity; he neither knows or should have known of the occasion

for compliance; he is unable after reasonable diligence or care to comply;

he is confronted by an emergency not due to his own misconduct;

compliance would involve a greater risk of harm to the actor or others.

ii.Compliance with a statute is never reasonable care per se.c.Cases:

i. Martin v. Herzog (couple in buggy without lights are hit by car) Rule: There must be a causal connection between the violation of

the statute and the accident to find negligence. Majority rule

when a statute applies to the facts, an unexpected violation is

negligence per se which must be declared by the court and not

left to the jury. Minority rulea violation is only evidence of

negligence which the jury may reject or accept as they see fit.

ii.Zeni v. Anderson (woman hit on snowy day when walking on path, insteadof sidewalk)

Rule: When the court adopts a penal statute as the standard ofcare in an action for negligence, violation of that statute

establishes a prime facie case of negligence it can be rebutted or

overcome by presenting sufficient evidence. If it is determined

that a sufficient excuse exists, the appropriate standard then

becomes that established by the common law.

G. Proof of Negligence

There are 3 types of evidence: direct, circumstantial and res ipsa loquitur (none)

1.Court and Jury: Circumstantial Evidencea.Cases:i. Goddard v. Boston & Maine R.R. Co. (fell on banana; no proof of

how long it had been there)

y Rule: There must be evidence of sufficient notice of adangerous condition so that the operator can have a

reasonable amount of time to fix the dangerous

condition; here no direct evidence.

ii.Anjou v. Boston ElevatedRailwayCo. (lady tripped on bananapeel, peel was black and flat, indicating it had been there for a

while)


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y Rule: There was circumstantial evidence(which isnothing more than one or more inferences which may

be said to arise reasonably from a series of proven

facts) to prove that a dangerous condition existed for

some time and should have been attended to before

someone was injured.

iii.Joye v. Great Atlantic andPacificTea Co. (slipped on banana peelin grocery store)

y Rule: Must be evidence of sufficient notice of adangerous condition; was circumstantial evidence but

not sufficient.

y If by exercise of reasonable care, the owner would havediscovered the condition, he is liable for failing to correct

it.

iv.Jasko v. F.W. Woolworth Co. (slipped on pizza; pizza served onwaxed paper where people stood around to eat it)

y Rule: When the operating methods of a proprietor aresuch that dangerous conditions are continuous or easily

foreseeable, the basis for the notice requirement

disappears; actual or constructive notice of the

dangerous condition need not be proved.

v.H.E. Butt Groc. Co. v. Resendez (slipped on grapes around asampling display)

y Rule: To recover, must prove01. had actual or constructive knowledge of a

condition on the premises

02.the condition posed an unreasonable risk ofharm

03. did not exercise reasonable care to reduce orto eliminate the risk, and

04.s failure to use such care proximately causeds injuries2.Res Ipsa Loquitur (the thing speaks for itself)(no evidence)

a.It provides the injured with a common-sense inference of negligencewhere direct proof of negligence is wanting, providing certain elements

consistent with negligent behavior are present, rarely used

b.2-fold requirement to meet res ipsa:i. Whatever agency caused harm, was in exclusive control of itii.Event doesnt happen in the absence of negligence

c. If requirements are met, procedural effects must be analyzed. Proceduraleffects res ipsa has on a case (3 treatments, vary by state):

i. Warrants an inference of negligenceii.Raises a presumption of negligence which must rebut or loseiii.Not only raises a presumption, but shifts burden of proof to the

d.Doesnt apply to multiple s (Ybarra is the exception)e.With res ipsa, doesnt have to eliminate or rebut speculative possibilities,

but it is s job to raise these possibilities.

f. Cases:i. Byrne v. Boadle (barrel of flour fell on s head when walking

underneath shop window)


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y Rule: To prove res ipsa loquitur, must prove: (1) was inexclusive control of agency that caused harm; and (2) the

accident was one that would not ordinarily happen in the

course of ordinary events except in the case of

negligence by the .

ii.

McDougald v. Perry(car harmed when spare tire fell from moving

truckwayward wheel case)y Rule: To prove res ipsa loquitur, must prove: (1) was in

exclusive control of agency that caused harm; and (2) the

accident was one that would not ordinarily happen in the

course of ordinary events except in the case of

negligence by the . It is s job to prove res ipsa.

iii.Larson v. St. Francis Hotel(struck by arm chair thrown out of hotelwindow)

y Rule: Res ipsa doesnt apply because hotels cannot beheld in control over their guest to be sure that they do

not harm 3rd

parties through their actions.

iv.Ybarra v. Spangard( operated for appendicitis, came out withpain in arm and lost use of it; sued all involved in surgery)

y Rule: Only applies where there is exclusivity of control.Where a receives unusual injuries while unconscious

and in the course of medical treatment, all those s who

had any control over his body or instrumentalities which

might have caused the injuries may be called upon to

meet the inference of negligence by giving an

explanation of their conduct. Where there is more than

one , the burden of proof shifts to the s to exculpate

themselves.

v.Sullivan v. Crabtree (passenger in truck dies in accident wherevehicle left the road and overturned)

y Rule: There are 3 different procedural effects from resipsa: (1) warrants an inference of negligence which jurymay draw from; (2) raises presumption of negligence

which requires jury to find negligence if does not

produce evidence sufficient to rebut the presumption;

(3) raises presumption, but also shifts the ultimate

burden ofproofto the to rebut the presumption

sufficiently with the preponderance of the evidence.

y The only generalization that can be safely made is that, inthe words of the definition of res ipsa loquitor, it affords

reasonable evidence, in the absence of a explanation

by , that the accident arose from this negligence.

IV.Causation in FactA.Sine Qua Non (without which not)

1.But for causationbut for s action, wouldnt have been harmed2.For non-concurrent causation3.Case:

a.Perkins v. Texas and NewOrleans Ry. Co. (man hit by train because ofobstruction at stop sign; train going 12 miles over speed limit)

i. Rule: Negligent conduct must be what directly caused the injury;but/for doesnt apply here. must prove the did not act as a


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reasonably prudent person, and that the injury was directly

caused by the s negligence.

ii.The railroad had a duty, and breached it by goin 12 mph over thespeed limit

iii.The didnt win bc even if the train was going the speed limit,there was not enough time to prevent the collision

B.Proof of Causation1.Cases:

a.Gentry v. Douglas HerefordRanch, Inc. (man shot and killed wifes friendafter tripping on step)

i. Rule: Negligence must be proven to be the direct cause of theaccident by a preponderance of the evidence.

b.Reynolds v. Texas & Pac. Ry. Co. (woman slipped and fell down unlit stairswithout a handrail)

i. Rule: Where s negligent conduct increases the likelihood ofharm, the fact that the accident might have happened even in the

absence of negligent conduct, is not enough to break the cause

and effect sequence.

c.KramerService, Inc. v. Wilkins (man cut head when broken glass fromtransom; later developed cancer on spot of injury)i. Rule: It is not enough that the negligence of one person and the

injury to another co-existed, the injury must have been more

likely than not caused by the negligence. Where issue goes

beyond the knowledge of laymen, courts and juries must depend

on the undisputed testimony of reputable specialists.

d.Wilder v. Eberhart( developed problems after surgeon stapled herstomach)

i. Rule: must prove causation that injury more likely than not wascaused by s negligence. , in order to avoid liability, must

produce credible evidence that which discredits or rebuts the s

evidence. He need not prove another cause only convince the

jury that the alleged negligence was not the legal cause of theinjury. He may produce other possible causes that dont have to

be right, only probable

e.Herskovits v. Group Health Cooperative ofPugetSound( claimedreduction in chance of survival b/c of delayed diagnosis

i. Exception when under 51%: some states allow s to recover forloss of chance of survival it is very difficult to put a value on

lost chance, this is a problem many courts face.

ii.Rule: under certain circumstances the may be able to recoverfor the lost chance of survival if the loss is significant enough

C.Concurrent Causes1.Conduct combines to cause injury where neither cause alone would have been

sufficient, or either alone would have been sufficient. (seeHill v. Edmonds)

2.To prove cause in fact (*most important):a.*But/for causation

i. when separate acts of negligence combine, each tortfeasor isliable even if injury wouldnt have happened without the action;

or

b.*Substantial factori. when but/for fails, both sources are liable as long as either was a

substantial factor to the injurywas s action a substantial factor

in causing s harm? (see Anderson v. Minneapolis); or


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c.*Alternative theory of liabilityi. each has more probably than not to be but/for cause of the

injury, shifts burden to s to show that his individual act could

not have caused the injury; all s must be before the court (see

Summers v. Tice)

d.Enterprise liability theoryi. when there is no way of knowing which company made the

product, 2 requirements: (1) small number of s that make up

entire industry and are named in suit, and (2) all conspired

together to make identification difficult (see Hallin Sindell

opinion)

e.Market share liabilityi. is held liable for the % of market share held as long as the

named s control a majority of the market share (DES in Sindell)

f.ON AN EXAM:i. Start w/ but/for causationii.Then move to substantial factor test when but/for does not

work

iii.Then say why using c,d,e3.Cases:a.Hill v. Edmonds (guy leaves tractor in middle of road, although lady sees it,

she still runs into it)

i. Rule: Where separate acts of negligence combine to producedirectly a single injury each tortfeasor is responsible for the entire

result, even though his act alone might not have caused it.

b.Anderson v. Minneapolis, St. P. & S. St.M. R.R. Co. (forest fire caused by merged with another fire and burned down s house)

i. Rule: Substantial factor test is used to determine whether boths actions were a substantial in causing the harm; both parties

are liable as long as both were a substantial factor. Cant say

but/for b/c either could have caused the house to burn down.

D.Problems in Determining Which Party Caused the Harm1.Cases:

a.Summers v. Tice (both s shot at deer and accidentally shot ; impossibleto tell which bullet hit )

i. Rule: where both s acted negligently but only one caused injury,in order to relieve the of choosing one of the s, burden shifts

to the s to prove they are not the guilty party, and if neither can

prove they werent negligent, then both are liable to the .

ii.s are not join tortfeasors because only one caused the harmiii. must prove that his negligence did not cause the s injuryiv.Compare to Ybarra, whercourt thought the s knew which one

was negligent and just werent talking. However inSummers,

where there are 2 persons, and you cannot determine, which was

the causethe are each as probable of a cause 50/50

v.When there is more than 2 s they are not equally probably liable33.3%

b.Sindell v. Abbott Laboratories (woman wanted to sue all labs that madeDES since she got cancer from her mother taking it when pregnant)

i. Rule: In order to apply Summers, all s must be before the court.Burden shifts to s, if they cant prove their innocence, each is

liable for their share of the damages relative to their share of the

marketmarket share theory. Where there is a relatively small


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industry and all adhere to an industry wide standard and jointly

control the risk to which was exposed (like Hall), all can be held

liableenterprise theory.

VI.Proximate or Legal CauseA.Proximate cause is any cause which in the natural and continuous sequence, unbroken by an

efficient intervening cause, produces the result complained of and without which the result

would not have occurred.1.Legal doctrine used by courts to decide whether or not to cut off liability to whose

negligent act caused s harmwould it be fair and just to make this pay for the

harm that his negligent act caused?

a.A court will cut off liability if the harm of the negligent act wasunforeseeable and it would be unfair to hold the l iable for the

subsequent harms

b.A court will cut off liability if an intervening cause is found to have actuallycaused the harm, therefore the is not held liable

2.There may be more than one proximate cause of an injury.3.Cause in fact v. Proximate Cause

a.Cause in facti. The s conduct is a cause of the event if the event would nothave occurred but for that conduct

b.Proximate Causei. Concerns a determination of whether legal liability should be

imposed where cause in fact has been established

B.Unforeseeable Consequences1.Unforeseeability focuses on whether the could have reasonably foreseen the

result or the type of harm. The precise manor in which the harm occurs does not

have to be foreseeable and there cant be any superseding intervening act.

2.A negligent actor is legally responsible for that harm, and only that harm, of whichthe negligent aspect of his conduct is a cause in fact.

3.There are 4 major approaches to proximate cause (*must go through all 4):a.Direct/Indirect Injury Distinction

i. is responsible (proximate cause) for all direct injury caused bythe negligent act as long as the harm is foreseeable, it can be

traced to the negligent act, and there was no intervening or

superseding causes (see Polemis).

y Type of harm is not important, as long as some kind ofharm can be foreseen.

b.Reasonable Foreseeability of Type of Harmi. No proximate cause unless the can foresee the type of damage

from his action, not just that some damage would occur (see

Wagon Mound #1) must foresee that type of damage

y A reasonable man would foresee type of harm andprevented the risk therefore one is liable for foreseeing

the type of harm and not preventing the risks.

y Elements (like Learned Hand with breach of duty):01.Burden of precautions02.Probability of event happening03.Gravity of the injury or Loss

a.Liability depends on whether B < PL IfB< PL, liability IfB > PL, no liability

c.Cardozo Approach


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i. Proximate cause extends liability to those whose conduct harmspersons within the zone of the reasonably foreseeable (see

Paslgrafopinion).

y Elements:01.reasonably foreseeable 02.

reasonably foreseeable harm

03. is in the zone of dangerd.Andrews Approach

i. Extends liability (proximate cause) to all persons who are harmedfrom an unbroken sequence of events caused by with no

intervening or superseding acts (see Palsgrafdissent).

ii.Factors: (pg. 314)y Was there a natural and continuous sequence between

cause and effect?

y Was the one a substantial factor in producing the other?y Was there a direct connection between them, without

too many intervening causes?

y Is the effect of cause on result not too attenuated?y Is the cause likely, in usual judgment, to produce theresult?y By exercise of prudent foresight, could the result be

foreseen?

y Is the result too remote from the cause?iii.Cases:

y Ryan v. New YorkCentralR.R. Co. (railroad caused fire toa woodshed and it spread to house 130 feet away)

01.Rule: s are not liable for unforeseeabledamages caused by their conduct, but this varies

by jurisdiction.

y Bartolone v. Jeckovich (man in wreck; got whiplash;suffered mental breakdown because he couldnt work)

01.Rule: is liable for all the consequences flowingfrom a physical injury, caused by the negligent

conduct, whether or not foreseeable; take your

victim as you find them. It is foreseeable that

you may injure someone with a pre-existing

condition and you are responsible for those

damages. (Thin SkullDoctrineresponsible for

the unforeseen consequences of an physical

injury to the ; some courts apply it only to pre-

existing physical conditions. Ie. Not for mental

illness or religious belief).

02.APPROACHES TO ESTABLISHING PROXIMATECAUSE:

03.In Re Arbitration Between Polemis andFurnessWithy & Co., Ltd. (plank dropped on ship caused

spark that set ship on fire)

a.Rule: Case of direct/indirect injurydistinction. liable because it was

reasonably foreseeable that some kind

of damage would directly occur from

his negligent act of dropping a plank as


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long as some harm is forseeable, does

not matter that fire damage wasnt

foreseen.

04.Overseas Tankership Ltd. v. Morts Dock &Engineering Co., Ltd. (Wagon Mound #1) (dock

set on fire from oil from tanker workers and

molten iron from dock workers; for dockdamages)

a.Rule: Found direct/indirect injurydistinction lackingoverruled Polemis

because deals with type of harm, but

not Thin Skull Doctrine, which deals

with consequences of harm still

applies. It is not enough for to

anticipate some damage, as in Polemis.

must foresee the type of harm

caused to have proximate cause

(Reasonable Foreseeability Test), which

is an objective test. While could

foresee some damage, not the type

that happened, fire.

05.Overseas Tankership Ltd. v. MillerSteamshipCo.(Wagon Mound #2) (dock set on fire from oil

from tanker workers and molten iron from dock

workers; for damages to 2 boats)

a.Rule: Reasonable forseeability testrequires that the must foresee the

type of harm caused by the act for

proximate cause to attach. s were

able to emphasize the foreseeability of

the type of damage that might occur

(fire). In #1, s couldnt focusattention on type of damage because it

would draw attention to their own

negligent behavior.

06.Palsgraf v. Long IslandR.R. Co. (man getting intotrain is helped up; drops package with fireworks;

explosion causes scale to fall and hit woman)

a.Rule: Cordozo approach says that a isliable to the reasonably foreseeable

within the zone of danger whose harm

can be reasonably foreseen as a result

of the s conduct. Type of harm was

not reasonably foreseeable because

was not in the zone of danger; too

remote to have been proximate cause

of injury.

07.Yun v. FordMotorCo. (man gets hit by car whiletrying to pick up spare tire from side of highway)

a.Rule: Sometimes the issue of proximatecause is held to be so intertwined with

issues of policy that it is treated as a

matter or law for the court to decide


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rather than a question of fact for the

jury. The court acted as a gatekeeper

since it was obvious that the harm was

not foreseeable because of the 2

superseding and intervening causes,

not fixing the spare tire and going into

traffic to get the spare.C.Intervening Causes

1.Whether the act of a third person intervenes and supersedes the originalnegligence depends on whether the injury was of a standard foreseeable

consequence or something completely unforeseeable and independent related to

the original negligence.

2.Cases:a.Derdiarian v. FelixContracting Corp. (car drives into an unprotected

construction site; man burned)

i. Rule: Contractors failure to secure site caused injury, not whysomeone entered into the site.

ii.Proximate cause doesnt exist if there are intervening causes thatactually cause the harm to happen. The test to determine if the

act is superseding or intervening

iii.If the result of the act is a normal, foreseeable consequence ofthe situation created by the s negligence, then the act is not

intervening or superseding and does not break the causal link.

iv.If the result of the act is extraordinary, not foreseeable in thenormal course of events or independent of or far removed from

the s conduct, then the act is intervening or superseding and

does break the causal link.

b.Watson v. Kentucky & Indiana Bridge & R.R. Co. (train leaked gas, man litmatch igniting gas)

i. Rule: The intentional criminal act of a third party is generally notsomething that the is responsible for or must anticipate because

it is extraordinary (intervening/superseding). Exceptions to thisrule where is responsible for intervening criminal acts of a third

party include: when has a contract duty to protect; s

affirmative act destroys or defeats protection that has placed

around his person or property; brings into association with a

person he knows to be a criminal; where fails to restrain a

dangerous criminal that he has taken custody of; and with minors

committing intentional acts that should foresee as causing

danger.

ii.It is a question of fact for the jury whether the action of the thirdparty was negligent/inadvertent or malicious/wanton. If third

party negligently lit match, then is liable; if the third party

maliciously lit the match, is not liable because an intervening

criminal act in not foreseeable.

c.McCoy v. American SuzukiMotorCorp. (rescuer asked to put out flares,instead directs traffic and gets hit by car)

i. Rule: The Rescue Doctrineallows an injured rescuer to sue theparty which caused the danger requiring the rescue in the first

place; applies to product liability cases. Doctrine serves: to give

notice to tortfeasors that they are liable to not only the person

they are harming but also their rescuer and to negate the

assumption of risk on the part of the rescuer as long as they were


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Torts I Outline LeCesne Page 27 of 27not rash. There is a 4-part test to achieve the rescuer status: 1)

was negligence to the person rescued and the negligence caused

peril; 2) the peril or its appearance was imminent; 3) a

reasonable person would have thought that peril existed; and 4)

rescuer acted with reasonable care in the rescue. To recover, the

rescuer must show that the s negligence proximately caused the

injuries, not just danger that subsequently caused the injuries.ii.At present, defect of car did not cause s injury.

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