Torts 2011 Summary Outline

TORTS – Short Outline – Fall 2011

Table of Contents

INTENTIONAL TORTS....................................................................................................................................... 1

DEFENSES TO INTENTIONAL TORTS........................................................................................................... 3

NEGLIGENCE........................................................................................................................................................ 4

DUTY (NEGLIGENCE FORMULA)................................................................................................................... 5

BREACH and PROOF of NEGLGIENCE......................................................................................................... 9

ACTUAL AND PROXIMATE CAUSE.............................................................................................................. 10

RESPONDEAT SUPERIOR & JOINT TORTFEASORS...............................................................................15

AFFIRMATIVE & LIMITED DUTIES............................................................................................................. 15

DEFENSES TO NEGLIGENCE......................................................................................................................... 18

STRICT LIABILITY – Liability Without Showing of Fault....................................................................19

(STRICT) PRODUCTS LIABILITY................................................................................................................. 21

DEFAMATION................................................................................................................................................... 23

INTENTIONAL TORTSPRIMA FACIE CASE - Brown v. Kendall

1. Act that is voluntary2. Intent: purpose (Ranson v. Kittner, Vosberg) or substantial certainty

(Garratt)a. Subst. Certainty: (a) reasonable person test; (b) not “substantially

different”b. Transferred Intent – (Talmadge v. Smith)

3. Causation: act was substantial factor in bringing about harm. Indirect ok (Garratt)

BATTERY1. (a) bodily contact/touching that is (b) intentionally imposed upon π that

is (c) harmful or offensive (i.e. unconsented to) R2T § 13, 18 (offensive contact) p 34

a. π need not be aware (Sleeping Beauty)b. indirect contact counts (Garratt) if it’s an “instrumentality under ∆’s

control”2. Interest: complete immunity of physical person from physical interference;

inviolability of body3. Extended Liability: ∆ is on the hook for all harms causally related

(Vosberg) (see prox. cause)4. Defenses: consent (crowded world, express, implied), or self defense

ASSAULT

1


1. (a) Apprehension (rational expectation of contact) of an (b) imminent bodily contact that is (c) intentionally imposed

a. Apprehension: must expect contact (no fear needed) (I de S et Ux)b. Iminent: π must be reasonable in believing ∆ has present ability to

effectuate (W. Union)i. Words Alone Don’t Count ii. Words can Negate Assault (if it weren’t Assize Time - Tuberville

v Savage)c. Bodily contact: need not be direct (Garratt)

2. Interest: being free from imminent apprehensions of unwanted physical contact.

FALSE IMPRISONMENT1. An (a) intentional act that directly or indirectly results in (b) the

confinement of another and (c) the π is aware of or harmed by the confinement

a. Reasonable Means of Escape: not physically dangerous, no coercion (Hardy v Labelle)

i. Hardy: woman never asked to leave, “cop” did not coerce herb. Reasonable Belief: π must be reasonable in believing she can’t escapec. Seizing Property: holding chattel hostage sufficient to compel

confinement (Bonkowski) d. Desire to Clear Name: insufficient as “compulsion” (Hardy)e. Conscious / Harm: drunk Weisberg in circus cage – no F.I. unless

harmed or aware. 2. Interest: protects interest in freedom from unwanted physical confinement3. Extended Liability: if results in harm, then yes.4. Defenses: (a) consent (Hardy), (b) reasonable, temporary detention to

investigate (Bonkowski)a. Must be: short no coercion reasonableb. Can be off premises (Bonkowski) (Montgomery Ward) c. POLICY: only way to prevent loss/shoplifting, too small crime, cops

won’t help

IIED1. Conduct that is (a) intentional and (b) extreme and outrageous that (c)

causes (d) π’s severe emotional distress a. Intent: objective standard. Recklessness falls short of subs. certainty

(Harris); there is no transferred intent (Taylor v. Vallelunga) unless ∆ is aware a familial witness is there

b. Extreme/Outrageous: speech act! Only threats have succeeded.i. Threats: Siliznoff (but distant…not assault)ii. Insults: Slocum (you stink to me), Harris (stutter bully), Phelps

c. Severe: "Distress so severe that no reasonable person could be expected to endure it"

i. Physical Outgrowths Help : Siliznoff vomiting (hold over from old rule)

2


1. Harris – didn’t visit doctor many times, so questionable severity

ii. Reasonable Person Standard: no liability for specific sensitivities Harris

iii. “Toughening of Mental Hide” (distrust) R2T § 46 com. D: "The rough edges of our society" are still rough: thus, "plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language."

2. Interest: Freedom from severe emotional distress, protects emotional well-being. IN PRACTICE—it only means freedom from threats to bodily harm, though not imminent.

3. Common Carriers & Burials: higher standards (insults might suffice) are held for CCs, Innkeepers, etc. can be liable for interference with burials

4. Parasitic Damages: “Pain & Suffering” are more easily recovered if attached to other tort

5. Defenses: 1st Amendment privilege (Snyder v. Phelps) a. Public v. Private Individuals (Status Distinction) –not argued in Phelpsb. Public v. Private Speech: (Subject Matter) we can’t protect subjectively

“productive” speech, but all speech. (Phelps)6. POLICY: over-deterrence: too many false claims; under-deterrence: π is

undercompensated

TRESPASS TO LAND1. An (a) act or omission that was (b) intended (Serota) and resulted in (c)

s/t or s/o entering or remaining on land without consent. NO HARM NEEDED. (Dougherty v. Stepp)

a. Act: must be voluntary (i.e. if you’re forced onto land under duress, no liability)

b. Intent: intent to act in a way that turns out be trespassory (Serota) (Weisberg driving over Tomatoes after Hurricane fells log)

c. Enter/Remain: (a) entry onto land by s/t or s/o; (b) failure to remove object (status shift) (c) failure to leave when invitation expires (status shift) (d) particles, gasses & airspace count

2. Interest: Protects right to property, to exclude others from occupying or using property.

3. Extent of Liability: liable for all consequences (Serota) 4. Damages: Can recover for NOMINAL DAMAGES (Dougherty – weeds

trampled by chains)

TRESPASS TO CHATTEL1. Any (a) intentional interference with (b) someone’s use or possession of

a chattel that is (c) harmful in some way.a. Intent: transferred intent counts and mistake no excuse (Ranson) b. Harmful: Chattel must be harmed (Szybiak – no harm to dog) OR

(Ranson v. Kittner)c. Harm in Recovery: person must be harmed in trying to recover chattel

(finger broken while trying to recover laptop)d. Deprivation of Use: must be for a “substantial period of time”

3


2. Interest: Protects our Possessory interests in exclusive rights to our moveable property.

DEFENSES TO INTENTIONAL TORTSGENERAL

1. Burden of Proof: if ∆ alleges a privilege, ∆ has burden of proof2. Factual Disputes over Privileges: Jury Decides

I. CONSENT1. Express Consent: a speech act. Outward, verbal manifestation of consent.

We are not mind-readers. a. Specificity: consent must be specific to intrusion (Mohr v. Williams) b. Fraud: consent induced by fraud is invalid (De May v. Roberts)

2. Implied Consent: consent can be implied provided objective manifestations

a. Outward actions, taken in light of the circumstances (O’Brien v. Cunard)

b. Inaction: generally not considered consent except special circumstances:

i. Silent Kiss on Park Bench (context) OKii. Weisberg punching in rows NO CONSENT (probably)

1. Standing ground in Hockey Fight (not leaving) NO CONSENT (Overall v. Kadella) WE CAN HOLD OUR GROUND. Hypo.

3. Imposed Consent: Consent is imposed when are either (a) unable to consent; or (b) necessary to live our lives

a. Inability to Consent [Emergency Consent]: π lacks capacity to consent, law permits if:

i. π is incapacitatedii. Immediate Action necessary to save life or limbiii. No indication that π would decline (medical bracelet saying

“no blood”)iv. Reasonabl person would’ve consented

(Mohr v. Williams)b. CROWDED WORLD: consent necessary for ordinary, customary

contacts necessary to common intercourse of life. (Wallace v. Rosen) i. POLICY: Social imperatives forces implied consent upon us in

circumstances where there might've been a technical battery (Wallace)

4. Informed Consent: See Med Mal.5. Exceptions (Invalid Consent):

a. Exceeding Scope: if s/o consents to an act, if ∆ exceeds scope, will be liable (Mohr)

b. Athletic Consent: Athlete impliedly assents to those contacts permitted in the rules

4


i. EXCEEDING RULES: π entitled to remedy when ∆'s conduct exceeded bounds of rules (Hackbart v. Bengals)

c. Illegality: (Hart v. Geysel) i. CONSENT INVALID (Majority): Tossing case out will deter others

like this who might be hurt (by denying compensation). BUT it legitimizes the illegal act by allowing the law to recognize consent to something that is illegal.

ii. CONSENT VALID (Minority): Not allowing consent might also deter others by showing that consent is invalid. However, this permits plaintiff (fighter) to benefit from participation in an illegal act. In Pari Delicto

d. Fraud: if “full truth” isn’t presented, consent is invalid (De May) i. LIMIT: “fraudulent inducement” is ok. Law school/Prof/Dunk Tank

(102 n4)e. Coercion/Duress: invalidf. Drunk: consent can be invalid if π too drunk to express rational will

(103 n8)

II. NECESSITY1. Private Necessity: Excuses violations of others’ interests (i.e. land/chattels)

to prevent harm to one's personal property is ok if ∆ is (a) exercising reasonable care and (b) there’s no less harmful way.

a. Indemnification: ∆ is held responsible for value of goods taken (Vincent v. Lake Eerie)

b. Wrong to Interfere w/ Necessity: wrong to interfere w/ s/o’s exercise of necessity privilege (Ploof v. Putnam)

c. POLICY: Encourage people to make economically efficient choices (boat costs more than a dock) but force reimbursement as consequence of making that value decision

2. Public Necessity: Interference with land or chattels to prevent harm to the greater community (or a person) is privileged.

a. Preventing Greater Harm to Others: Vincent v. Lake Eerie recognized that no reimbursement would’ve been required if they were rescuing seamen

III. RECAPTURE CHATTELS1. General: right to recapture chattels if reasonable 2. Shoplifters: See Trespass 2 Chattels above3. Entry onto Land: can enter land to repossess if reasonable

NEGLIGENCEGENERAL

1. How 2 Start: Can π prove ∆ created an unreasonable risk that resulted in π’s harm? Judge determines if proof sufficient. Then Jury decides “reasonability”.

2. Negligence Proceeds in Court:a. Π must make reasonable showing of ∆’s careless risk creation (Brown

v. Kendall)

5


b. Judge: decides if π’s proof meets requirements (causation, duty)c. Jury: decides about “reasonability” of ∆’s conduct

3. Characterizing Fault:a. An ordinary, reasonable person under the circumstances would

recognize that an instrument so potentially harm-causing as a water pipe would need to be installed with such a degree of care to be able to withstand numerous weather conditions, including a mere frost.

4. Prima Facie Casea. A DUTY on part of the ∆ to conform to specific standard of conduct to

protect π against an unreasonable risk of harmb. A BREACH by the ∆ in failing to conform to that standard of conductc. CAUSATION: ∆’s breach is the actual and proximate cause of π’s inuryd. HARM

DUTY (NEGLIGENCE FORMULA)PRE - BPL

1. Burden on Society: reasonable conduct that has low probability of harm should not incur liability, else burden on society too great (Lubitz v. Wells)

2. Likelihood of Harm: time, type of instrument, location all matter (Lubitz) 3. Foreseeability: always possible to do more to prevent harm (pipes

bursting), but ∆ is only responsible to do what a reasonable, prudent person would have done in those circumstances (Blyth v. Birmingham)

a. Pipes Bursting after Extreme Frost (Blyth) b. Grabbing Steering Wheel 2nd Time (Pipher v. Parsell)c. NO FORESEEABILITY if seizure never happened before: (Cohn v. Petty

note)4. Cost of Prevention: duty may turn on whether benefit to society is great,

and how great costs of prevention are:a. Low cost of locks on RR turntable attractive nuisance: (Krayenbuhl)b. Cost of erecting strong pylons/guardrails too high (Davison v.

Snohomish)

BPL and BEYOND1. Negligence Formula: IF Burden to the ∆ [AND SOCIETY] < (F)likelihood x G

gravity ---> THEN THERE IS A DUTY TO NOT BE NEGLIGENT.a. Burden: of precaution: costs, responsibilities, sacrifices, not only of ∆

but also like-situated ∆s. How our lives would have to change in the community

b. Foreseeability / Likelihood that risks of harm that were created are at least SOMEWHAT foreseeable [matter of degree]

c. Gravity: how serious is the potential, foreseeable harm?d. BALANCING: The higher the gravity, the lower the foreseeability

needs to be, and vice versa.2. U.S. v Carroll Towing: Bargee absent from ship for 22 hours; barge

negligently tied drifts away and rams into another ship. B/c bargee was not on board, there was no assistance when it started sinking. Held: while barge ≠ bargee’s prison, unreasonable to be away for 22 hours.

6


STANDARD OF CARE1. General: ∆ has duty to conform to a specific standard of conduct to protect

π against unreasonable risk of injury. Breach = failure to live up to that standard.

a. Jury Q: What is the standard of care? Reasonable care under the circumstances.

2. Reasonable Person Standard: Reasonable person under like circumstances (Vaughan v. Menlove)

a. OBJECTIVE STANDARD. Care “to someone’s best judgment” doesn’t count.

b. POLICY: to judge by subjective standard is too variable; could encourage fraud & deception; promotes due care by all; promotes RECIPROCITY and PARITY so we can predictably gauge behavior of those around us.

3. Children: judged against child of like: 1. Age, 2. intelligence, 3. Experience (maturity & training) unless they're engaging in an adult-like activity (see Robinson v. Lindsay)

a. Age Standards:i. 0-6 years old irrebuttable inability to be negligentii. 7-13 rebuttable inability to be negligentiii. 14-21 rebuttable ability to be negligent

b. CHILD POLICY: we adjust standard b/c (a) kids are less sophisticated in calculating risk; and (b) we want kids to be kids

c. RECIPROCITY RULE: b/c we require a greater degree of care when adults are around kids (i.e. driving in a school zone, Adult can't blame the child for behaving in a way that is appropriate for a child but not an adult.), we similarly raise the degree of care required for children when they are undertaking adult-like activities.

i. Activities Undertaken by Adults: Dellwo motorboats ii. Role of Community Customs: Purtle v. Shelton hunting not

“adult”

4. Emergency: in the event of an unforeseen emergency not caused by ∆, ∆ will be held to the standard of a "reasonable person under like [emergency] circumstances," with like circumstances being "emergency".

a. Lower Degree of care: ∆ is not required to exercise judgment that would be expected in normal circumstances. (Cordas v. Peerless)

5. Physical and Mental Characteristics: interpreted through “under the circumstances”

a. Permanent Disabilities: what a reasonable person with that disability would do (Robertson v. State of Louisiana)

b. Temporary Disabilities: If ∆ didn’t know about the disability, NOT liable, otherwise yes (Hypo: ∆ drives after taking drug that Dr. not disclose side effects)

7


c. Mental Disabilities: Generally no lowering of standard (Vaughan v. Menlove) unless unable to appreciate risk (Lynch v. Rosenthal: no cont.neg. for handicapped Man arm in machine)

6. Professional Standards: objective standard of an "ordinary member of the profession" of like (a) Learning (b) skill and (c) ability.

a. NOT Average: Otherwise ½ of profession would be negligentb. Subjective Experience / Training Irrelevant: what matters is the

reasonable expectation of the profession (Heath v. Swift)c. Good Faith Professional Errors OK if Lawyers: (Hodges v. Carter)

otherwise, liability if:i. Want of degree of knowledge & skill ordinarily possessed by

similar profs.ii. Omission to use reasonable care and diligenceiii. Failure to exercise in "due care" his best judgment in applying

his skill

7. Custom: Custom ≠ Reasonability. Compliance with custom = evidence of LACK of negligence, but not dispositive (TJ Hooper); Departure from custom = evidence of negligence but not dispositive (Vaughan v. Menlove)

a. Compliance with Custom: helps juries determine whether ∆ is negligent, but not dispositive. Still subject to “reasonable” standard. Trimarco v. Klein: J/∆.

b. Custom that Lags: custom often lags behind “reasonable” care (TJ Hooper)

c. Departure from Custom: not dispositive (Vaughan)

8. Statutory & Rule of Law Violation: Statues & judge-made rules that apply to the facts of a case can be used to show that a violation of such rules constitutes negligence. It may be (a) negligence as a matter of law, (b) a rebuttable presumption of negligence, or (c) a mere inference.

a. APPLICABILITY OF STATUTE: for facts to apply, following five criteria must be met

i. ∆’s conduct violated statute: 1. Osborne v. McMasters - Poison

ii. π is member of the class the statute is intended to protect 1. Stachniewicz v. Mar Cam. Statute = no, Regulation = yes

(“boisterous”)2. Chiropractor, Brown v Shyne, p 229 no licence. License

statute not designed to protect peopleiii. the hazard that caused injury was type legislature intended to

protect against 1. Ney v. Yellow Cab key statute intended to prevent thefts?2. Gorris v. Scott - Sheep overboard – no liability3. Moore v Myers (224n8) – anti-pit bull statute, girl runs

away hit by car. J/πiv. It is appropriate to impose tort liability

8


1. Perry v. SN – not appropriate if (a) there’s no existing common law duty; (b) inappropriate to impose civil liability from criminal statute (crime against state v. against person)

2. Clinkscales v. Carver (213 n 1) - Statute providing for criminal liability does not automatically create a civil liability.

v. Violation of statute proximately caused the injury1. Ney v. Yellow - ∆ cabbie still had duty to prevent harm

even tho thief was intervening harmb. WEIGHT OF STATUTE / RULE OF LAW

i. Negligence Per Se: Helling v. Carey Glaucoma; B&OR v. Goodman (stop, look, get out, listen rule by L. Hand, overruled by Cardozo)

1. Disfavored: unrealistic & impractical, rigid when fact-dependent; jury should determine

ii. Rebuttable Presumption of Negligence (MAJORITY)1. Martin v. Herzog – Buggy Driver negligent unless excused 2. Valid excuses = (a) incapacity; (b) lacks knowledge or

constructive knowledge of need for compliance; (c) unable to comply even after reasonable diligence; (d) emergency; (e) compliance would cause greater risk than violation.

3. Zeni v. Anderson – statute provided excuse: walking in specific spot “when practicable”

iii. Mere Inference (MINORITY)1. 232 n4 - mere inference that jury can use as they see fit.

9. Medical Malpracticea. BATTERY

i. Violation of informed consent is battery in Pennsylvania. Intentional touching that results in a harmful or offensive contact that is unconsented to.

1. De May, Mohr v. Williams

b. INFORMED CONSENT: In order for a π be a Co-partner (RECIPROCITY) with the doctor in making decisions, we need to know what the risks inherent in the decisions are to be. Whether standard is the (a) MAJORITY "reasonable patient" objective standard (Canterbury v. Spence); (b) the MINORITY subjective patient standard (Scott v. Bradford); or (c) the reasonable physician standard (196 n3).

i. ELEMENTS: Dr. has (a) a duty to inform patient of all material risks/ alternatives; (b) failure to disclose must’ve caused injury; (c) harm

1. Canterbury v. Spence: majority approach: REASONABLE PATIENT STANDARD (what a patient would say = material) majority

2. Scott v Bradford: minority approach: SUBJECTIVE PATIENT what would THIS PATIENT want to know (in Oklahoma)

9


3. Causation: evaluated in same way as material risks.4. Expert Witnesses: needed to prove material risks

(maybe)5. DEFENSE/PRIVILEGE: "where full disclosure would alarm

an emotionally upset or apprehensive patient." (Scott v. Bradford) & Roman Catholic Hypo

ii. Fiduciary Duty1. a Dr. has a duty, based on what a reasonable person

under the circumstances would want to know, to inform a patient of all economic, research or other interests that the Dr. might have prior to receiving consent to a given therapy. (Moore v. Univ. Calif. Selling samples of π’s liver for genetic research)

c. NEGLIGENCE: Doctors are held to the prevailing industry custom as a standard of care (Boyce v Brown ankle), but no longer restricted to their city or region (Morrison v. MacNamara urethral smear). Moving towards a NATIONAL standard of medical care.

i. TEST: Boyce v. Brown – 1. Prevailing industry custom is the standard of care that

must be applied2. “Negligent act” must be recognized as s/t forbidden, or

omission must be something that is “required”3. Standard of Med. Community must be shown by Expert

evidence4. Negligence never presumed, but must be proven5. Deviation from standard of care must be shown by Expert

evidence6. Testimnoy that another Dr. would’ve done s/t different is

insufficient.ii. Expert Testimony: Expert testimony must show a deviation

from the medical standard, and not what an expert personally would have done. (Boyce v. Brown)

iii. Nat’l v Local v Similar Community: 1. Majority: "similar community" (balances need to avoid

evaluating a GP in a rural area by same standards as a specialist in an urban teaching hospital; also helps plaintiff access expert testimony).

2. Minority: national (DC, Morrison) or purely local3. POLICY: "Strict Locality Rule" is bad: discourages rural

Drs. (who have nationally-certified education) from being held to the same standard as urban Drs and thus may serve to foster substandard care. Also reduces availability of Dr. Expert Witnesses.

a. COUNTER: if rural Docs held to nat’l standard, will not stay in rural areas.

iv. Negligence Per Se: rare but possible (Helling v. Carey)

10


v. 3rd Party: May be liable to 3rd parties if harm caused by Dr's Negligence (202 n 6) (Doc polio vaccine doesn’t tell parents they can contract it).

d. RES IPSA LOQUITURi. Doctors & Nurses in hospitals can be held to RIL when "acting

collectively" and in a "highly integrated system of activities.” (Ybarra v. Spangard)

1. Problem: unconscious, can’t prove “exclusive control”2. Strict Liability? Too draconian. 3. POLICY: Burden shift Drs. Have J&S Liability

BREACH and PROOF of NEGLGIENCEBurden on π: must adduce enough evidence to show (a) what happened and (b) that ∆ acted unreasonably (carrying the Brown v. Kendall burden)

a. 1st: π must convince judge that there is sufficient evidence to go to jury (production)

b. 2nd: π must convince jury that evidence weighs in her favor (burden of persuasion)

c. 3rd: judge must agree with jury (no JNOV etc.)

Direct Evidence1. Always best. “MIGHT” bar π from using other evidence (or RIL) (DISSENT in

McDougald v. Perry: car cradle coming loose)

Circumstantial Evidence1. Inferences of Breach: Ripe (Goddard) vs. Blackened (Anjou) Banana Peel.

a. Goodard is inadequate, where Anjou is sufficient.2. Actual vs. Constructive knowledge: duty imposed if enough evidence to show

∆ had sufficient time to discover hazarda. Joye – no proof of how long peel on floor; no constructive noticeb. Ortega – self service milk + unknown duration = sufficient to support

inference3. Conditions Leading to Increased Foreseeability of Harm

a. Jasko/Terazzo – operating methods (wax paper + tile floor + standing) such that harm is highly foreseeable

b. H.E. Butt/Grapes – insufficient evidence b/c took precautions4. BURDEN SHIFTING? (A move away from Brown v. Kendall)? - What links

Banana Cases to Res Ipsa Loq.dfd. Forcing Mouth of ∆ Open: Ortega – Employer has “greater

knowledge”i. Anti-Burden Shift: Forcing ∆’s to prove no negligence (244n2)

upsets Brown v. Kendall balance.

Res Ipsa Loquitur: creates a strong inference of negligence, but in most cases it does not necessarily result in a directed verdict for π. (Sullivan v. Crabtree Truck Brake Failure). Nevertheless, burden shifts to ∆ to prove absence or rebut. π makes out a P.F. Case!!!

11


1. ELEMENTSa. Instrumentality under Exclusive Ctrl of ∆b. Inference of Negligence: injury doesn’t normally happen w/o

negligencei. Expert Testimony: helps determine if these things “normally”

happen without negligene1. R2T § 328 comm. D makes distinction between "Normal

Accidents" and "Abnormal Accidents" (McDougald tire hitting windshield)

2. Normal: happens in ordinary course of things3. Abnormal: negligence is likely

2. THREE OPTIONSa. Rebuttable presumption of negligence (Byrne v. Boadle, Ybarra)b. Inference of negligence. (Sullivan v. Crabtree truck loses control,

bad breaks?)c. RIL Negligence as a matter of law (Trains colliding on the same track

- 266 n3)d. Drug Seeking Elderly Consuming Diabetes Drugs (266 n2): depends on

what information can be provided: 3. BURDEN SHIFTING ∆

a. Byrne v. Boadle when no evidence of the manner in which the ∆ was negligent (i.e. how ∆ was negligent), but there is an inference that the injury would not have occurred without some negligence, the BURDEN SHIFTS to the ∆ to prove absence of negligence.

4. APPROPRIATE WHEN AFFIRMATIVE EVIDENCE OF NEGLIGENCE AVAILABLE?a. Dissent in McDougald – there’s affirmative evidence of negligence

5. RIL FAILUREa. Larson v. St. Francis Hotel – couch not under “exclusive contrl” of ∆

6. “HIGHLY INTEGRATED” ACTIVITIES / ACTING IN COLLECTIVEa. Ybarra v. Spangard – burden shift to help unconscious P

7. INDEPENDENT ACTIONa. Wauwatosa Turkey Salad – 9 moms, 9 turkeys, no collective action.

8. ACTING IN CONCERTa. Bierczynski v. Rogers NOTE: 2 drag racers. 1 person crashes into π.

When 2 or more individuals are wrongdoers acting in concert and their actions injure a third party, all may be liable for concurrent negligence.

9. CHINA RULEa. All in building Liable for injuries unless they can prove they are not at

home when injury happened. Rebuttable presumption + joint & several liability.

ACTUAL AND PROXIMATE CAUSECAUSATION IN FACT

1. But For Test: For ∆ to be liable for negligence, the π must establish that but for the ∆'s fault-laden risk-creation the π, more probably than not (50% +1) would not have been injured.

12


a. Perkins v. Texas RR: fails but-for test despite ∆’s negligent speed b/c π couldn’t prove that the car would’ve crossed the tracks had the train not been speeding

b. Lifesaver Hypo: no liability b/c no causal linkage man disappears below surface and never comes up for air, thus boat not liable for negligently failing to have lifesaver

2. Proof of Causation (50%+1)a. Inference from Multiple Factors: Reynolds v. Texas Pac.Ry.Co: narrow,

dark stairs + no handrail + yelling + rushing = sufficient inference that ∆’s negligence caused injury.

i. SPECULATIVE ALTERANTIVES cannot defeat this proof.b. “Mere Possibility” ≠ Probability:

i. Gentry v. Douglas Ranch - the “chance” that the man stepped on poorly maintained stairs insufficient proof to prove caused gun to discharge. As matter of law

ii. Kramer Service v. Wilkins - cancer from falling glass. Best π can do is 1:100 chance < 50% chance. Possibility ≠ Probability.

3. Substantial Factor:a. Concurrent But For Causes: Hill v. Edmond Truck + bad driving = both

liableb. Combined Indep Causes: Anderson v. Minneapolis RR: each fire is

independently capable of causing injury when combine, both are J&S liable

4. Proof Issues & Alternative Liabilitya. Single Cause, Concurrent Actors: Summers v. Tice: 2 shooters, 1 bullet,

1 injury Burden Shift to ∆s to prove which one wasn’t liable. J&S liability.

i. POLICY: this burden shift is ok b/c (a) both shooters are careless, and (b) wrong to deny injury to π (fairness)

5. Industry Wide Liabilitya. Joint Control of the Risk: Hall v. Dupont blasting cap manufacturers

acted in concert, delegated some aspects to industry association6. Market Share Liability

a. RULE: despite the fact that π can’t identify either the specific or probable cause of her injury…as long as she can join a "substantial share" of the market that created the harmful product, manufacturer may be liable for its percentage of the DES market at the time of the π's exposure. Thus, each defendant pays each plaintiff the damages its culpable conduct has inflicted proportional to its share of the market. (depending on jurisdiction). (Sindell v. Abbott Labs)

i. Distinctions from RIL & Industry Wide: no “exclusive control” and no “collective action”

ii. California: Joint & Several; Must have "substantial Share" of market

iii. NY: No Joint & Several - just Several (responsible for their "share" of the national market)

iv. Minority: explicitly don't follow Sindell, requiring π to show proof of cause

13


v. π - Friendly Deviations: ∆'s cannot exculpate themselves; 1∆ can join others; ∆ must prove their own market share (not π); Joint & Several

vi. ∆ - Friendly Deviations: 1∆ can join others not named; π may not get 100% if some ∆'s can prove innocence; no joint & several, just several.

b. 2nd Generation DES: NY doesn’t support 2nd gen DES cases Proximate Cause issue. (Enright v. Eli Lily)

PROXIMATE CAUSE1. General: “Proximate” or “legal” cause adds to the requirement that the ∆’s

culpable conduct be the actual, but-for cause of the plaintiff's injury and will preclude recovery when the causal relationship between the defendant's conduct and the plaintiff's injury does not justify imposing tort liability on ∆. Proximate Cause = "Scope of Liability"

2. Remoteness: sometimes liability limited by “remoteness” of negligence to harm

a. Temporal (Time), Spatial (Ryan) and Interventions of others (Ryan, human/non-human)

3. EX POST Direct & Natural Causation: Limitations based on Remotenessa. Spatial Remoteness + Intervening Causes: Ryan v. NY RR: ∆ fire-starter

only liable for immediate consequences (1st adjacent house). Law limits liability b/c of spatial remoteness (distance) and b/c of wind/fire/water (intervening natural causes)

i. Kansas: liability far stronger where crops are at stake vs. NYii. Insurance: holding ∆ liable would make them insurers and π’s

need to be incentivized to insure themselves.b. Direct & Natural (Unbroken Seqence): In re Polemis: ∆ liable for

consequences that are directly traceable back to original harm-causing injury (some harm was foreseeable, that’s all that mattered).

i. Andrews Dissent: once there is an act of negligence to SOMEONE -- then as long as there is a direct causal link ("Direct & natural") that is unbroken by remoteness (Unbroken, Natural Sequence) -- there is liability

4. EX ANTE Foreseeability Test: limitation based on foreseeability of:a. Plaintiff: If ∆'s risk creation does not create a foreseeable risk of injury

to the P or class of Ps, then no liability.i. Palsgraf: RR owed duty not to avoid foreseeable risk to her; this

act did not create a foreseeable risk of injury to her. ThusNO DUTY.

ii. Shrimp 1: Woman fed bad shrimp, pukes. π2 slips on vomit. No duty to π2

b. Type of Harm / Scope of Risk: If the type of damage is not foreseeable within the scope of ∆'s risk creation (environmental

14


damage is foreseeable, but exploding oil is not), the ∆'s liability may be limited.

i. Statutory Violations: think of cows on ship w/o pens. “Scope of the Risk”

ii. WM 1: Liability must be proportional to the risk created. Accountability must be for the "probable" consequences of an act, not the remotely foreseeable ones. Slight foreseeability = no foreseeability.

iii. Shrimp 2: Woman slips on her own vomit. Unforeseeable type of harm.

c. Extent of Harm: ∆ is liable for the full Extent of the harm (Bartolone, Polemis) even if unforeseeable, provided the harm is the direct consequence (Polemis) of ∆'s negligence.

i. Bartolone: Extent of liability based on π’s subjective issues.d. Manner of Harm: Unforeseeable manner of harm will not limit

liability, if the plaintiff is foreseeable as is the general "type" of harm envisioned by the negligent risk-creation.

i. Why? we don't care how the negligent act (the instrumentality that ultimately creates the harm) finally accomplishes its negligent end.

ii. Train Hypo: Train conductor drives too fast on a track where he knows/should know there are passengers that cross. In screeching to a halt, it backs up along the track and hits the very same class of people that the "negligent" prevention was trying to protect.

5. Intervening & Superseding Causesa. GENERAL: ∆ is liable for the negligent acts of 3rd persons where the

negligence was a foreseeable risk created by the ∆’s conduct, unless the 3rd person's act as too remote.

b. BURDEN OF PROOF: rests with ∆ to prove intervening actor = superseding

c. TWO METHODS OF ANALYSIS: mirror Prox Cause.i. Foreseeability: Q of fact for jury

1. if "highly extraordinary" (R2T § 435) no negligence as matter of law.

ii. Causally Independent/Remote: (Direct & Natural) modeld. FORESEEABILITY

i. NO LIABILITY for Highly unforeseeable act: Yun v. Ford: unforeseeable that person would unreasonably run across 4 lanes of highway. Matter of law.

1. Dissent: best to let comparative negligence settle the score

ii. LIABILITY for foreseeable acts: Felix v. Deridarian: car crash was foreseeable, site mgr. should’ve erected barriers & moved boiling liquid to other place, even though epileptic driver was cause of harm.

e. CAUSAL INDEPENDENCE

15


i. Intentional Intervening Acts: Duerr: if lit match intentionally, is superseding cause b/c although act could’ve been avoided, it wasn’t

1. Yun v. Ford: daughter’s negligence in failing to get cradle repaired “quieted” earlier negligence by installer/manufacturer

f. ACTS OF GODi. Can analyze this under foreseeability model -- i.e. Blyth or Amory

v. Golden.g. CRIMINAL ACTS

i. R3T § 34 - General rule "intervening acts that are unforeseeable, unusual or highly culpable may be outside the "scope of the risk". I.e. if it's a criminal act, it's more likely to be seen as unforeseeable. But cf. Ney v. Yellow Cab

h. SOCIAL HOST LIABILITYi. Liability if:

1. knows the individual is intoxicated, (virtual scienter)2. knows the individual is going to drive, and3. continues to serve alcohol....

ii. Kelley v. Gwinnel: [NJ] it is reasonably foreseeable that s/o might be injured if host knows driver is drunk and going to drive; thus host should not be exempted from liability as a matter of law.

iii. POLICY DISSENT: (a) Hard for hosts to assess drunkenness (not their job) (b) Host can't exercise complete dominion over the alcohol like a bar (c) Not clear what responsibilities are imposed on host if drunkard won't stop, and (d) NO COST SPREADING….b/c social hosts don't get insurance for this type of stuff.

iv. Majority: no liability for social hosts, unless guest is a minor, despite high degree of foreseeability.

i. SUICIDEi. Fuller v. Price: Because π's suicide is "no longer a voluntary act"

it is NOT a superseding cause and ∆ is still liable for the car crash that caused his mental damages leading to his suicide.

ii. Liability if: π succumbs to an "irresistible impulse" but not if π can control

6. Particularized Foreseeabilitya. Standard of Foreseeability based on:

i. ∆'s particular knowledge or "special reason to know" that s/t is a risk (more than constructive knowledge)

ii. The risk is posed to a particular or identifiable class of plaintiffs

iii. The π would suffer a particular type of harmb. J.S. v. R.T.H.: Wife's particularized foreseeability is sufficient to support

that her omission was a proximate cause of the injuries of the girls.

16


c. POLICY: Want to avoid imposing broad duty (unfair, contra. “stable marriage” value) while protecting society from threats of harm.

7. Policy Considerationsa. Proximate Cause as Liability Limiting Doctrine: Determines,

somewhat arbitrarily, when the line should be drawn determining when a negligent actor should or should not be held responsible for harm. This includes issues such as:

i. judicial stability / predictabilityii. fairness

b. Role of Judge and Jury: The above cases are all decided as a matter of law (with the exception of Andrews in Palsgraf). One consideration is whether these causation determinations should go to the jury--who can also decide on issues of proximate cause

i. Thus - Questions of proportionality, culpability, and common sense can be used to determine the final outcome.

c. Insurance: Proximate Cause STABILITY is necessary to predictability of insurance rates.

8. R2K 433-45a. The Restatement utilizes the substantial factor requirement to

encompass both actual cause-in-fact and causation in “the popular sense, in which there always lurks the

b. idea of responsibility.” c. Combines both ex post and ex ante approaches.

NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS1. Independent Duty

a. Direct Impact: Horse Poop Case, Victorian RW Commissioners v Coultas: must be physical contact to π for NIED recovery (or parasitic NIED Pain & Suffering damages)

2. Bystander & Derivative Actions [Fear of Harm 2 Oneself or Another]a. Physical Sequelli Test: Majority π must prove (a) objective physical

injury; (b) resulting from severe emotional distress that is (c) proximately caused (ex post/ante)

i. Daley v. LaCroix [∆-friendly] [skepticism remains in majority jurisdictions] woman wins b/c suffered verifiable injury / headaches.

ii. Molien (476n2) Direct Victim. Man recovers when Dr. negligently diagnoses wife with syphilis

b. Zone of Danger: Majority no recovery unless possible risk of injury to πi. Anaya (Cited in Thing) [∆-friendly] [arbitrary limits to π's

recovery: majority]

c. Dillon Rule [Minority]: [ π friendly-er ]

17


i. the higher the "foreseeability" by ∆ that hurting s/o will result in NIED to s/o else, the greater the change for recovery. Depends on 3 factors:

1. Proximity (near the scene)2. "sensory and contemporaneous observation"3. 3Closeness of Relationship to π

d. Thing v La Chusa Rule: Constricted Dillon Rule [∆-friendly]i. Constricted Dillon Rule: foreseeability requirement

constrained by 4 requirements:1. π is closely related to the victim of the injury (Family

only)2. π is present at the time of AND is aware of injury-

producing event and the fact that event is causing injury.3. π suffers serious emotional distress4. the emotional distress is a proximate cause of the harm.

3. Wrongful Death, Birth, Lifea. Wrongful Death – Decedents

i. Statutory COA. But must be decedent. (Endresz) NY Mom can sue for physical injury of miscarriage and NIED but no action for Wrongful Death.

ii. Majority: can recover for miscarriage caused by ∆’s negligence

b. Wrongful Birth – Parentsi. Parent's claim damages due to the negligently caused birth of an

unhealthy child. (Berman v. Allen) Parents can recover for emotional distress of wrongful birth + special damages but no NIED for child because a "life with serious defects is more valuable than non-existence"

ii. Pre Roe: Policy issue. No Proximate Cause b/c birth illegal. Gleitman

c. Wrongful Life – Childi. Infant plaintiff who likely would've been terminated but for the

Dr's negligence may recover special damages for the extraordinary medical expenses he will incur, but may not recover general damages for emotional distress or for an impaired childhood. (Procanik)

RESPONDEAT SUPERIOR & JOINT TORTFEASORSRESPONDEAT SUPERIOR

1. Employers: ∆-employer may be responsible for negligent and possibly intentional torts of employees as long as act w/in scope of employment.

a. TEST: (a) Doesn’t work on his own time (b) doesn’t work in his own way (c) is under direction from employer (Murrel v. Goertz – Newspaper IC slapping woman)

18


2. Indep. Contractors: No liabilyt for indep. Contractors (murrel v. Goertz). Same test. Also (Rylands v. Fletcher)

i. Policy: Risk is allocated to contractor as responsible for his own enterprise.

JOINT & SEVERAL LIABILITY1. Sindell: J&S = all liable for 100% of the injuries collectively; whoever is

solvent pays 100% and then sues the remaining ∆s. 2. Hill v. Edmunds: Both parties 100% responsible3. DES Offshoots: Several liability = only pay what % is allocated to you in

court.

AFFIRMATIVE & LIMITED DUTIESAFFIRATIVE DUTIES by ACTS or OMMISSIONS

1. No Duty to Rescuea. Cardozo’s Misgivings: " A rule so divorced from morals was sure to

breed misgivings."b. Yania v. Bigan: Goading s/o to jump into a quarry, even though person

was a licensee, not liable.2. No Duty to Regulate Conduct:

a. Hegel v. Langsam No duty on part of the university to regulate conduct of π (even though she ended up getting into heaps of trouble. Not liable for omission to act.

3. ∆ Starts an Undertakinga. Voluntary Undertaking that is Relied On DUTY!

i. 438 n. 11 and 13: Marsalis v LaSalle - Voluntary promise to keep a cat indoors…but it escapes. Creates a quasi-contractual situation that is dealt with in TORT LAW.

ii. Crossing Guard HYPO: on the hook if mom knows he's always there and relies on him; not on the hook if mom never knew he was there

4. ∆ Innocently Caused some Harm or Riska. 437 n 8 - Innocent Injury by Defendant: man runs over cow. DUTY to

move cow or alert drivers to its presence in the road5. ∆ Has Special Relationship with Victim or Perpetrator

a. Tarasoff: Psychologist who knows or should've known of a 3rd party patient's intent to injure a specific individual has a duty to warn the foreseeable victim in breach of ∆'s patient/Dr confidentiality expectations. Policy: confidentiality over safety?

6. ∆ Has Power of Control over 3rd Party Harm Causera. J.S. v. R.T.H.: affirmative duty can be imposed if ∆ has a special

relationship to the harm-creator that enables them to exercise some control over them-->failure to do so = breach of such a duty.

b. Barmore IF father had known, would’ve had duty to warn/prevent harm.

c. Kelly v Gwinnel: social host can control drunk driver (ish)7. ∆ Has Power over Instrumentality of Harm

19


a. L.S. Ayres Finger in Escalator: Both an injury resulting from π's use of [a] an instrumentality under the control of the ∆, such as an escalator, [b] as well as being an invitee, can give rise to a legal duty to render such aid as may be necessary to save life or prevent serious aggravation of injuries.

8. Rescue Doctrinea. Rescue is Always Foreseeable Result of Negligent Risk Creation

i. Elements (McCoy v. Suzuki) 1. ∆ must be negligent to person rescued and such

negligence caused the appearance of peril2. Peril or appearance of peril was imminent3. Reasonable person would've concluded that peril existed4. Rescuer acted with reasonable care in carrying out the

rescueii. Wagner v. Int'l RW : “Danger invites Rescue” – Cardozo

OWNERS & OCCUPIERS1. Trespassers: enter or remain on land without permission of owner.

a. Discovered Trespassers: Duties Owed: (a) to abstain from willful or wanton misconduct; (b) to refrain from entrapment (bear trap hypo)

b. Undiscovered Trespassers: Duty: (a) to exercise reasonable care to avoid injuring them (Sheehan v. St. Paul RR Foot caught) (b) i.e. exercise ordinary care if you see them heading towards injury (warning) (c) no willful/wanton injury

i. HYPO: bear trap. Trespasser walking towards it. DUTY to use care to stop him.

c. UK Common Humanity: new “duty” to use common humanity. Hard to manage.

d. Exceptions:i. FREQUENT Trespassers: “a well defined path”: ∆ has duty to

anticipate trespassers and use reasonable care in their protection

ii. TOLERATED Intruders: Hines v. RR ∆'s continued toleration amounts to "permission" to use land---turning π into a quasi-licensee.

iii. ATTRACTIVE Nuisance: Krayenbuhl: duty if (a) kids nearby / likely 2 trespass, (b) there is risk of injury; (c) kids won’t realize risk; (d) burden of eliminating is slight compared to risk of harm.

2. Licensees: Advantage = value neutral. S/o who enters land by permission and for their own purposes. Companionship, entertainment, or diversion).

a. DUTY OWED: i. Duty to Warn of KNOWN Hidden Latent (Passive) Dangers

(Majority) Minority = no duty (California pre Rowland). Turns on whether ∆ has actua knowledge of Latent Danger.

1. Barmore v. Elmore: duty voided b/c 10 years had passed since last "incident"; thus could not have had active

20


knowledge and thus no duty to warn. Latent harms = cracked handle, crazy son

2. HOWEVER: R2T § 342 uses a "reason to know" standard that is far more liberal than the actual knowledge test. Might've made Barmore reverse.

ii. Duty of no Willful or Wanton Conduct Producing an Injuryiii. Duty of Ordinary Care for "ACTIVE" Harms

1. IF ∆ engages in negligent "active" behavior on his land…the rules of owners & occupiers do not protect ∆

b. PERMISSION: Status Changes if licensee goes outside of space permitted by scope of permission. (Temporal, Spatial, Purpose)

i. Spatial: Old Eli – outside area of permission when peeing.ii. Time: stays too long.iii. Purpose changes: Whelan v. Van Natta: man getting box for kid

after buying cigarettes changes from invitee to licensee, when the "purpose for which the land is held open" changes.

c. Own Purposes: advantage is value-neutral (i.e. neither benefit nor detriment to either party) (Barmore, masonic lodge)

d. TYPES of Licensees:i. Bare – PIRG/ Canvasserii. Ordinary – social guest (higher duty)

3. Invitees: Benefit to π. Enters by permission for land-owner’s purposesa. DUTIES OWED:

i. Reasonable Care under the Circumstances (Ordinary negligence standard)

1. May be actual or constructive knowledge2. Duty to keep the premises safe (inspect)3. Duty extends to "improving" the land if needed4. Rowland: duty to exercise "reasonable care" breached

when woman went to bathroom although ∆ knew the handle on the sink was cracked.

Campbell v. Weathers: man in cigar shop; toilet might've been outside of space but here was treated as public b.c. it induced buyers to come in and was treated as such by employees and customers

4. Rowlands Dissolution of Categoriesa. DUTIES OWED: normal negligence standard. Ordinary care under the

circumstancesb. CONTROVERSY: protects trespassersc. Rowland might be more palatable when looked at more narrowly,

that there is only a duty when (A) ∆ knows that there's an unreasonable risk of harm…AND (B) is aware that a person on the premises is about to come in contact with it.

d. 2 CATEGORY MERGER: Just merging licensees & invitees

21


e. POLICY: Rules are arbitrary and unjust; Distinctions are indeterminate between categories (status changes as an example); It might be far more foreseeable that harm will come to a licensee than an invitee, but licensees might be barred

DEFENSES TO NEGLIGENCECONTRIBUTORY NEGLIGENCE

1. Rule: If you negligently contribute to your injury in any way, you cannot recover. (Butterfield v Forrester)

2. Purpose: a. Penal: π denied recovery as punishment for his own negligenceb. Incentives: we want the π and the ∆ to both exercise due care. c. Clean Hands: π should come into court with "clean hands" (like K law)d. Proximate Cause is Hard to Pin Down: Intervening causes – prox c.

more remote e. RECIPROCITY: corrective justice (π's negligence stops ∆'s negligence)

3. Jury Comp Neg: Precursor to contributory negligence damage award left to jury

4. Burden of Proof: ∆ must make out P.F. case for π’s negligence5. Ways Courts Mitigated Harshness: 1. Last Clear Chance; 2. Allowing Jury

to Decide (helped if π was just "a little" negligence); 3. Shifting Burden of Proof to the ∆

LAST CLEAR CHANCE1. Rule: if the ∆ had the opportunity to avoid the accident after the opportunity

was no longer available to the π, the ∆ is the one who should bear the loss. (Davies v. Mann Poor Donkey!)

2. Purpose: way to mitigate harshness of Contrib. Neg.

COMPARATIVE & MODIFIED COMPARATIVE NEGLIGENCE1. Rule: Comparative Neg. reduces the π’s recovery by the percentage of

responsibility for the injury attributable to the plaintiff.2. Origins: Admiralty Law & Louisiana Civil Law (Carroll Towing) 3. Four Different Regimes:

a. Pure- 12 Jurisdictions [Very π friendly]b. Modified: 50% or less - 20 Jurisdictions [π Friendly] -- Remnants of

"punition" c. Modified: 49% or less - 12 Jurisdictions ["Fault"] + TN + keeps "fault"

but reduces harshness i. McIntyre v. Balentine, TN: Drunk Truck Drivers on Rd- Transition

to Comparative Negligence TN 49%. ALSO no J&S Liability.d. Slight Comp Neg - 1 Jurisdiction [Retains "Fault" and ∆-

favorable]4. Informing Jury: most courts inform jury of consequences of a “split” result5. Joint & Several Liability: apportionment of fault is akin to apportionment

of damages. Would be inconsistent (unjust) for each ∆ to be fully liable after allocating only a portion of the fault to him/her. (McIntyre)

a. Jurisdiction Split: Some say no J&S, others say J&S stands

22


ASSUMPTION OF RISK1. Elements:

a. Actual Knowledge (not constructive knowledge)b. π Appreciates Magnitude (Scope) of Risk c. Voluntarily encountered (Rush v. Commercial – not forced to find other

bathroom)2. Express: explicitly stated. (Seigneur)

a. Consent must be validly and voluntarily acquired b. Exceptions: (a) can’t contravene public policy (unequal bargain

power) (Seigneur) (b) doesn’t exculpate willful/wanton/gross negligence; (c) can’t be an activity of “public interest”

c. Scope of Consent = specific to activity (woman on big motorbike)3. Implied – Old – (Rush v. Commercial) 4. Implied – Primary, Post Blackburn

a. NO DUTY: ∆ didn't act negligently (Steeplechase) (Baseball game w/ seats) (Train)

b. Dangerous Jobs: fall into “hole” of reasonable AOR5. Implied Secondary: ∆ owes duty of care (and ∆ has acted negligently), but

π encounters risk anyway.6. Implied - Secondary - Reasonable

a. ∆ was negligent; π not neg [Rescue Doctrine / Rush ]7. Implied - Secondary - Unreasonable

a. ∆ was negligent; π also careless [Comp. Neg. Reigns / Blackburn hat hypo]

8. Blackburn Merger in COMPARATIVE NEGLIGENCE (adopted by R3T)a. Implied - Secondary - Uneasonable Comparative negligence

analysis.b. Implied - Secondary - Reasonable AOR Defense Abolished:

treated within general doctrine of "negligence". Because π is not negligent, π can recover even if risk was assumed. Why? Because assumed reasonably.

9. PROBLEM: Blackburn analysis too simplistic. Many jobs are dangerous and reasonable, yet AOR will still serve as complete defense.

10. Seatbelt / Helmet Defense: duty to “mitigate” (like K law). Courts won’t impose ex ante precaution requirements on their own, but legislatures do.

STATUTES OF LIMITATION & REPOSE1. Statute of Limitation: Limits the time during which a cause of action can

be Brought.2. Statute of Repose: Limits potential liability by limiting time during which a

COA can arise.3. Purpose? (A) Evidentiary challenges (Holocaust); (B) Intervening Causes; (C)

“Quiet” wrongs incentive to act in a timely fashion4. Accrual:

23


a. Majority: Starts when plaintiff becomes "aware"; or when "actual injury" occurs. (in Teeters, when woman got pregnant = injury). Tempered by “constructive notice”

b. Minority: When negligent act occurs5. Equitable Tolling: Minors and FRAUD/CONCEALMENT: Statutes “tolled” 6. “Time of Discovery Rule”: helps ameliorate/ mitigate harshness of

statutes.

STRICT LIABILITY – Liability Without Showing of FaultGENERAL

1. Defined: Plaintiff is able to proceed in holding ∆ liable for harms in court even though π cannot prove the ∆ was negligent

2. Focus on the THING: Inevitability of Harm ("ultra hazardous") - R1K and Rylands 1

3. Focus on the PLACE: Thing out of Place (abnormally dangerous) - R2K § 520 and Rylands 2

4. Strict vs. Absolute: a. Strict: defenses are possible, liability is not complete, there are s/t

outside of ∆'s controlb. Absolute: ∆ is insurer against all, no matter what

ANIMALS1. Farm Animals: Owners responsible for their animals. Not for wild “naturally

occurring” onesa. COMMON LAW SL: SL for all damage resulting from keeping animals.

(UK rule)i. Inability to control animal. Inevitability of harm.

b. EXCEPTIONS: Dogs (community standard); Cattle 2 Market; American West (Pastoral customs)

c. FENCING OUT: Liable if your animal breaks through s/o’s fenced. FENCING IN: Liable if your animal escapes YOUR fence and does harm.e. NEGLIGENCE: Negligently maintained your fence.

2. Wild Animal Possessiona. Common Law Rules:

i. Wild Animal: SL if injury to anyone ii. Domestic Animals: SL only if “knows” or “reason to know”

dangerous. SCIENTER.3. Domestic Animals

a. U.S. Law: Scienter: If ∆ knows or has reason to know of this SPECIFIC animal's dangerous propensities - STRICT LIABILITY

i. Often becomes a Q of Fact for jury as π tries to prove SCIENTER.b. R2T § 23 Test: Whether the animal has a "dangerous

propensity/tendencies abnormal to the animal's class/category"c. Warnings: may excuse owner, unless “waived” or not sufficient.

ABNORMALLY DANGEROUS ACTIVITIES1. Rylands 1 – Blackburn: Anything that might do mischief. “Inevitability of

harm”

24


2. Rylands 2 - House of Lords: "non-natural" activity (or use of land) only (elements D+E of R2K § 520)

a. Lords Rule: Non-Natural Use (Thing out of Place): If landowner carries out anything that would be considered a NON-NATURAL USE [i.e. place/action division] of the land, and the ACTION is NOT NATURALLY OCCURRING the ∆ will be held strictly liable

b. Cyanamid: Living near Railway: also a non-natural use of land…where dangerous!

c. Forster v. Preston. Mink farming is non-natural use. Helps in defense.3. R2K § 520 and Balloons:

a. 7 Factor R2T § 520 Test:i. (a) High Degree of Risk: of risk of harm to person, land or

chattel ii. (b) Likelihood & Magnitude of Harm: likelihood that harm will

be great iii. (c) **No Control: inability to eliminate Risk by exercise of

reasonable care iv. (d) Not Common: extent that activity is not a matter of

common usagev. (e) Thing out of Place: Inappropriateness of activity to place

carried outvi. (f) Community: extent to which activity's value to the

COMMUNITY is outweighed by its dangerous attributesb. Guille v. Swan: strictly liable for balloon in garden, people came to

rescue & trampled vegetables. Although risk of harm great, probability high clincher was inability to control it. Could not be prevented by exercise of due care. +++ "C" in R2K

4. Community & Control: a. Miller v. Civil Construction Guns inherently dangerous, too! But

able to control them.5. Can Risk be Eliminated with Due Care?

a. American Cyanamid: “activity” = shipping. Risk can be eliminated with due care.

b. Over Deterrence: risk that SL will over-deter valuable activities6. What is the risk of Overdeterrence?

a. Siegler v. Kuhlman (cited in Cyanamid): now trucks shipping gas in WA are subject to SL

DEFENSES / LIMITATIONS1. Plaintiff Assumes Control: Foster v. Preston π knew blasting coming --

leveling of playing field, Cyanamid2. Scope of Risk Foster v. Preston Minks + Reciprocity (minks

also abnormal)3. Acts of 3rd Parties Watson v. Kentucky RR (Duerr) -- think back to

Negligence 4. Acts of God Golden v. Amory5. Cont. / Comp Neg / AOR: Sandy v. Bushy -- COLT ATTACK!

25


a. Sandy Rule: No Comp Neg. unless “voluntarily & unnecessarily” getting in harms way

b. MAJORITY: Comp. Neg permitted. Why? because why should we permit contributory negligence as a defense when the defendant has in-fact been at fault….and then NOT permit the defense when the defendant isn't at fault?

c. Minority: No comparative negligence: Why? Apples to orangesd.

6. Statues Saying OK! 743 n 5 – Excuses s/t that would otherwise have SL apply

(STRICT) PRODUCTS LIABILITYDEVELOPING THEORIES

1. Negligence: difficult for π to prove. Manufacturing flaw, inspection, design, warn, quality

a. MacPherson v Buick: PRIVITY gone, once prevented recovery, now no longer. Negligently manufactured wheel. Π can recover.

2. Warranty: hybrid tort/K combo. Breach of warranty is absolute liability.a. Express Warranty: Baxter v Ford: Tort remedy for glass in eye even w/o

proof of neg.b. Implied Warranty: Henningsen v. Bloomfield once put into S.O.C.

implied warranty that product is fit for consumer use.3. Strict Liability

a. Disappearance of Warranties, Privity, Negligence: Greenman v. Yuba. i. To Hold MANUF Liable, P need only prove:

1. Manuf. Knows object will be used w/o inspection2. Object has defects3. Cause injury to person

ii. POLICY: Too hard for π to prove negligence. Easing burden of proof for π

PRIMA FACIE CASE1. Defect: π must prove product was defective. (Greenman)

a. MANUFACTURING: deviated from intended designb. DESIGN: No RAD Risk/Utility, RAD+Risk Utility, Consumer Expectations

or Negligencec. FAILURE TO WARN: (a) risks known/knowable (b) risks presented

substantial dangers (c) ordinary consumer wouldn’t recognize the risk; (d) warning was inadequate; (e) product used in intended way

2. Control: defect existed when product left factory3. Cause: direct & proximate cause4. Business Seller: not a casual seller.

Note: identifying defect is sufficient for π’s case to proceed. No need to show negligence.

MANUFACTURING DEFECTS1. Defined: when the product departs from intended design even though all

possible care was exercised in the preparation and marketing of the product

26


a. Rix v General Motors-Truck was bad when came off assembly line (hose)

i. Design defect also alleged: too heavy, should’ve had backup system

b. Cronin: Bread truck hasp was manufactured poorly.i. Proof? Product was defective (deviated from intended design)

c. NO NEGLIGENCE probably no jurisdiction uses neg. standard for manuf. defect

DESIGN DEFECTS1. Defined: exists when a defect is inherent in the design of the product itself.

a. Π’s success wipes out Product Line: If a design defect challenge succeeds, the manufacturer cannot continue to sell the product

2. Risk Utility Test: product is defective if, on balance, the benefits of the challenged design outweigh the risk of danger inherent in the current design. 7-point test.

a. Majority ∆-friendly: require π to present R.A.D. b. Minority π-friendly: do not require π to present R.A.D. NJ O’brien,

CA c. O’Brien v. Muskin: π did not have to show R.A.D. to slippery pool.

3. Consumer Expectations Test (minority test): product is defective if it fails to live up to an ordinary consumer’s expectations of the product’s safety when used in an intended or reasonably foreseeable manner.

a. Barker v. Lull: forklift case. π can choose whether to use this or R.A.D.4. Negligence Test: Michigan Very ∆ friendly

a. Prentis v. Yale: forklift Any design defect is a failure to exercise reasonable care in adoption of a safe plan or design.

5. Drugs: Utility is “high” so SL often not applied to pharmaceuticals in design cases.

6. Unavoidably Unsafe: incapable of being made safer than it is. Not an automatic “free pass” but helps in the Risk/Utility analysis to tip product in favor of the ∆.

Major Diff. btw. Neg & SPL: (A) Focus on Product v. Manufacturer; (B) Burden of Proof on π much higher in Negligence (must prove RAD and more).

WARNING DEFECT: FAILURE TO WARN1. Defined: products that carry inherent, non-obvious dangers which could be

mitigated through adequate warnings to the user.2. Elements:

a. Potential risks were known or knowable with SOTA knowledge at that time

b. Ordinary consumers would not expect those risksc. Manuf. Failed to provide adequate warning of risksd. Product used in a proper or reasonably foreseeable waye. Lack of warnings: caused harm

3. Π Friendly (minority): knowledge of defect is “imputed” to ∆ even if SOTA didn’t permit knowledge at time

27


a. O’Brien – NJ – knowledge of defect imputed to manufacturer at time of production

4. ∆ Friendly (Majority): ∆ not liable for problems not “knowable” by SOTA at the time of manufacture

a. Anderson v Owens Corning Fiberglass Corp-CA (cancer from asbestos) π must prove that the ∆ did not adequately warn of a particular risk that was known or knowable in light of the scientific knowledge of the time.

5. Adequacy of Warning: may be a jury Q whether was “specific” or adequately placed

a. Pilot Light note: Man uses adhesive that warns not to use near open flame. Pilot light ignites it. Sues. Court says: jury question whether the warning was specific enough!

b. O’Brien: small warning insufficient on side of pool6. Allergies: cost/benefit test. Must be either (a) high risk to small %, or (b)

large enough % of users to worry about.7. Open Obvious Dangers: no duty to warn

DEFENSES1. Assumption of Risk / Comp Negligence: π’s misuse (unforeseeable

misuse), failure to read may help the ∆, but often requires a high standarda. CN APPLICABLE: easy for jury to weigh comparative faultb. CN INAPPLICABLE: undermines theory of SPL comparing “fault” to SL

doesn’t work (see Sandy v. Bushy in SL regime) c. AOR Too ∆ Friendly?d. AOR May Dissolve when COMP NEG USED:

i. Daly v. GM: CA Car accident / door latch / π drunk. Comp Neg adopted, but in doing so, CA abolishes AOR and replaces with % fault allocation.

1. More Equitable to All! (including Manufacturer)2. Misuse: if π’s use is unreasonable and unforeseeable, ∆ can use as defense

a. Ford Motor v. Matthews (Tractor), MI: π’s foreseeable misuse of a product will not exempt a product manufacturer from liability if the product is in fact defective, particularly if π's misuse arises in reliance on a specific safety mechanism that is allegedly defective; however, manuf. may not be liable for unreasonable misuse.

b. Using Chainsaw to cut Toenails3. Open & Obvious Danger: danger may be so obvious that there’s no need

to WARN.

PROOFMay use “RIL”-like inference of negligenceCircumstantial evidence might be sufficient (b/c product is harmed in injury) to infer defect:

Friedman v. GM: Circumstantial evidence regarding the accident itself, as well as the state of the product after an accident, can be sufficient to result in a preponderance of the evidence for a jury to infer a defect in a product.

28


DEFAMATIONCOMMON LAW

1. Interest: Dignitary interest in upholding one's own [accurate] reputation (dignity, honor, and value of it), preventing the lowering of one's reputation.

2. Elements:a. A defamatory utterance (DEFAMING)

i. On its face? Matter of law.ii. In Context? “X, a butcher, sells pork” Belli (“FBA had been

taken”) Jury Q1. Extrinsic Facts caused s/o to believe a specific meaning

(Inducement)2. The specific meaning conveyed by the understanding

(Innuendo)3. Special damages (must prove harm) if required (Slander)

iii. Injurious of Reputation: “respect, good will, confidence in π”1. Need not be among "right minded persons"; (Grant v.

Readers Digest)2. 'a core/sizeable group of people' (audience) (Grant v.

Readers Digest) who would think the worse of the plaintiffb. "Publishing" the utterance to a 3rd party (PUBLICATION)

i. Must be to at least one 3rd Party and understood (Economopolous)

ii. Must be understood in the context in which it was intended (Belli)

iii. Must be published Intentionally (894 n5) or recklessly [FAULT]

1. I.e. if someone eavesdrops, no liabilityc. "of and concerning" the plaintiff (COLLOQUIUM)

i. No need to Name: (Neiman Marcus, Killian, Bindrim)ii. Officials in Public Capacity: In order to be "defamed" an

individual must be associated with a defamatory imputation for a reason beyond his/her public capacity or responsibility (Sullivan v. NY Times)

iii. Class-Wide Defamation - (Neiman Marcus)1. Small enough that defaming “reasonably Refers” to πs2. Numerical Approach: 25 or less3. Intensity of Suspicion approach

3. Pre-Sullivan Defense: Only Truth! (827 – JUSTIFICATION) Burden on ∆ to prove. Statement is presumed defamatory. Killian v. Doubleday

SLANDER v. LIBEL Libel = Eyes (print, TV) Slander = Ears (not republicized). Must PROVE Slander Damages unless Slander Per Se b/c damage more

fleetingo Shor v. Billingsley: Telecast that didn’t follow script is libel. Statues

modified it later.

29


SLANDER: SPECIAL DAMAGES1. Special Damages needed for SLANDER = injuries affecting the

reputation that are actionable (Terwilliger, “fornicator”) - emotional responses don't count.

a. loss of marriageb. loss of hospitable gratuitous entertainmentc. preventing a servant or bailiff from getting a placed. loss of customerse. prevented from receiving gratuitously what he otherwise wouldf. shame / shunning / social opprobrium g. Pecuniary damages

SLANDER v. SLANDER PER SE1. Slander: π must prove harm2. Slander Per Se: damages presumed (like libel)

a. Accusing π of a major crime:b. Accusing π of having an STD or other Loathesome Diseasec. Accusing π of Something Likely to Affect π's Business, Trade or

Professiond. Accusing π of infidelity or sexual misconduct in WOMEN

PRIVILEGES1. Conditional Privilege: Viable reasons (inter-familial, letters of rec 2. FAIR COMMENT: must be “opinion” and a matter of “public concern”

ACTUAL MALICE1. Standard: A false statement made intentionally or in reckless disregard

of the truth. [∆'s relationship to the statement uttered]a. Does not suffice for statement to be made negligentlyb.

TIMES v. SULLIVAN STANDARDS 1. Rule: That a public official, suing for libel, has to prove that the factual

falsehood was made with actual malice (i.e. that the statement was uttered knowing that it was false, or with reckless disregard of the truth of the utterance)

a. Protects Factual Falsehoods : Requires a showing of actual malice even if factual falsehoods are uttered

b. Public Officials : Must be of "elevated importance" or "such apparent importance" that the public has an independent interest in the qualifications and performance of the person who holds such office. (914 n3) Tucker v. Kilgore

c. Public Figures & Celebrities: Sullivan extends to more public figures (football coach of GA State; Army General)

d. Matter of Public or General Interest: Actual Malice Standard applies to matters of "public interest" or "general interest"… (915 n 5)

30


1 st Amendment Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Kalven ParadoxDissent: Technique that helps π to endlessly manufacture defamation. Lets plaintiff pick and choose between those statements that are true and similar to π (for likenesses) and false (for defamatory content).Bindrim v. Mitchell: TEST: Whether a reasonable person, reading the book, would understand that the fictional character therein pictured was the plaintiff acting as described.

Belli v. Orlando Daily News, 865; Where statement is capable of 2 meanings (1 defamatory, 1 not) jury decides

General + Utterance Pleading

Grant v Reader's Digest, 869; Liability for harm to reputation not determined by majority (right mindedness)

Reputation (to groups in general)

Kilian v Doubleday, 872; When truth pled as affirmative defense, truth must be specific to allegations made

Truth as Defense (rests with ∆ to prove truth)

Neiman-Marcus, 876; CLASS DEFAMATION: small groups + most defamed = libel; big group = COA fails as MOL.

Colloquium + Class Defamation

Shor v Billingsley, 887; Libel/Slander distinction based on aggravation & enduring nature of defamatory medium

Libel v Slander

Terwilliger v. Wands, 889; Unless π can prove Slander Per Se, π must prove special damages as prox. cause of slander. π loses.

Special Damages - Related to Reputation

Economopoulos v A.G. 893 for harm to reputation, there must be an audience, understand slander

Publication

31

Torts 2011 Summary Outline

Documents

Transcript of Torts 2011 Summary Outline