8/11/2019 Torts Hayden (2008)

1/30

I. Torts between 2 people NOT in a contractual relationshipA. 2 dominant aims of Tort Law

1. Deterrence of antisocial behavior2. Compensation to the inured person

!. " theories of recover#1. Intentional torts $ %ault2. Ne&li&ent torts $ %ault3. 'trict liabilit# NO %ault

C. Dama&es is a factual determination that the ur# ma(es based on other determinations offact so lon& as there is no speculation) the ur# is within its ri&ht to award as much as ur#

determines is compensator# and*or punitive +,olden v. -al$art/1. Compensator# related to the inur# to 0 past) present and future +allowed b*c of

preclusion doctrines/ upon proper proof burden on inured part# court will not award

dama&es which are undul# speculative +1steve v. 3'/i/ Lost wa&es*lost earnin& capacit# len&th of wor( life) diminished earnin&s

due to inur# +what #ou can do and what #ou no lon&er can do/ii/ edical e4pensesiii/ 0ain and sufferin& mental or emotional pain difficult to 5uantif# #et

represents a real loss as freedom from pain bein& an intan&ible asseta/ 6ule of thumb medical e4penses 4 "b/ Attorne#s fees come out of pain and sufferin& cannot be its own line

item b*c of American 6ule +each side bears its own costs/iv/ 'pecial dama&es e.&. convertin& house to handicap friendl#v/ 0resumed dama&es intentiona l torts +see below/ A6! v. 1l(in

2. 0unitive related to the fault of D $ deterrencei/ -hen tortfeasor has acted maliciousl# or willfull# or wantonl#ii/ 7ud&e will first determine whether reasonable people could disa&ree as to

whether or not D acted maliciousl#) if so) will instruct the ur# so ur# can decide

whether or not to award punitive dama&es and how much.

iii/ Not calculated to compensate the 0 but to punish the D and different

dama&es awards are needed to punish different D8s +!ill 9ates v. 7ane Doe/II. Intentional Torts

A. Battery D commits a voluntar# act with the intent to cause a +harmful or offensive/

contact) where contact actuall# occurs and ph#sical harm of offense results1. Protects the interest of freedom from unwanted contact2. 0rima facie case elements 08s burden of proof

i/ Voluntary Actii/ Intent to cause a (harmful or offensive) contact

a/ 'in&le v. dual intent d4+:/

aorit# ; dual intent +-hite v. uni/ must show intent to contact and intent

that such contact be harmful or offensive+2/

inorit# sin&le intent must onl# show intent to contactb/ Definition of Intent +9arret v. Dail#/ important to calculatin& dama&es

b*c if purpose is found) then can &et punitive but if onl# (nowled&e) then onl#

compensator# dama&es

8/11/2019 Torts Hayden (2008)

2/30

+:/

Dual intent purpose to cause a harmful or offensive contact or (nowled&e that

harmful or offensive contact is substantiall# certain to occur+2/

'in&le intent purpose to cause contact or (nowled&e that contact is

substantiall# certain to occurc/ Transferred Intent +,all v. c!r#de D was in &un battle with people

across the street but bullet hit someone else/+:/

Can transfer between intentional torts assault to batter# or batter# to assault+2/

Can transfer between individuals 0erson A to 0erson !+"/

14tended liabilit# principle #ou are liable for all results of the initial act #ou did)

even if unintendedd/ There is no special liabilit# for mentall# infirm +0olatier v. 6uss

mentall# infirm) (illed father b# beatin& and shootin& him. -hile ma# not have

understood what he was doin&) had the intent to cause harmful contact and thatis the onl# thin& the courts re5uire one to show) -hite v. uni mentall# infirm

D hit nurse 0 and will be liable if it is shown that there was an intent to cause

harmful or offense contact b*c dual intent d4/+:/

0olic# Concerns about NOT holdin& mentall# infirm liable

-here there are 2 innocents) the one who occasioned it should carr# the

burden +runs counter to fault re5uirement/

9ives stron& incentive to careta(ers of mentall# infirm to restrain them

Deters people from pretendin& the# are mentall# infirm to escape liabilit#

If not held liable) there is no compensation at all for the sufferin& victime/ There is no special liabilit# for children

+:/

A7O6IT< $ must show the same intent re5uirement as that for adults. Is more

difficult b*c difficult to show purpose or that children +b*c of lac( of e4perience/

(now that harmful*offensive contact or ust contact is substantiall# certain to

occur+2/

INO6IT nontort statutes only +alternativel# stated=

violation of the statute must be a si&nificant cause of the harm/

Tort statute provides a private cause of action. It clearl# states what the

violation merel# applies the statute b# its own terms

1.&. do& bite statutes

Non$tort statute statute without a private ri&ht of action t#picall# criminal

statute. If the statute covers the same conduct that is at issue in a

ne&li&ence per se case) then ma# be used to evaluate the conduct+2/

A7O6IT

8/11/2019 Torts Hayden (2008)

13/30

INO6IT< also loo( at=

-hether statute is the sole source of D8s dut# to the 0

-hether statute clearl# defined the prohibited*re5uired conduct

-hether statute would impose liabilit# without fault

-hether invo(in& the ne&li&ence per se doctrine would result in dama&es

disproportionate to the statutor# violation

-hether the plaintiff8s inur# is a direct*indirect result of the violation of the

statute

If a minor violates a statute) it is NOT ne&li&ence per se but merel# evidence

that can be used as evidence of ne&li&ence

+"/

Chaffin v. !rame discredit the Fne&li&ence as a matter of lawG approach 0

drivin& EJ mph and moved to ri&ht lane b*c blinded b# bri&ht li&hts but there

was a par(ed truc( with no li&hts. Accident.+E/

artin v. ,ero& D &oin& around curve hits a bu& with no li&hts. There is a

statute that re5uires bu&&ies to have li&hts after dar(. D ar&ued 0 was

ne&li&ent per se b*c the statute was desi&ned to prevent ust such harm and

D and 0 were in a class of persons the statute was desi&ned to protect.+B/

6ains v. !end of 6iver 0) :K #r old) stole a &un and bou&ht bullets from D and

(illed himself. 0arents of 0 sued D under ne&li&ence per se b*c there was a

statute that made it ille&al to sell &uns to under 2:. ,owever) it is not clear if

the statute intended to protect people from commitin& self$destructive act nor

to prevent people from doin& such thin&s. Thus) this cannot be ne&li&ence

per se+/

-ri&ht v. !rown do& is released from 5uarantine earl#) in violation of statute)

and bites someone. 0 ar&ues ne&li&ence per se 0 is within the class ofindividuals intended to protect but it seems this is NOT the t#pe of inur# the

statute is intended to protect a&ainst b*c not intended to prevent all do& bites

but a&ainst the transmission of disease+/

,aver v. ,inson D pulls over on wron& side of the street to spea( to 08s mom.

After loo(in& in all directions) D drive off) runnin& over 0. 0 ar&ued ne&li&ence

per se in violation of statute a&ainst drivin& on wron& side of the street but)

while 0 falls into the cate&or# of people intended to protect +the &eneral

8/11/2019 Torts Hayden (2008)

14/30

public/) the t#pe of harm would have occurred even if D had not violated the

statute.c/ -cuses to ne!li!ence #er se (noc(s the statute out of

consideration but ur# must still decide if the conduct was ne&li&ent under the

&eneral common law standard+:/

@iolation is reasonable because of actor8s incapacit# +e4cept child and mental

capacit#/+2/

Doesn8t (now nor should (now of the occasion for compliance if #ou don8t (now

what #ou8re doin& so #ou don8t (now #ou8re brea(in& the law +bro(en tail li&ht/

but i&norance of the law is no e4cuse+"/

3nable after reasonable dili&ence or care to compl#+E/

Confronted b# an emer&enc# not due to D8s own misconduct+B/

Compliance would involve a &reater ris( of harm to the actor or others than non$compliance

+/

Impson v. 'tructural etals D passed another car within :JJ feet) in violation of

a statute. D tried to &ive e4cuses but none of them came even close to fallin&

into an acceptable e4cuse and therefore ud&e did not let ur# decide the

issue2. ", $y $ehavin! ne!li!ently, $reached that duty D is not actin& in a wa# that a

reasonable and prudent person would have under the same or similar circumstancesi/ !reach of dut# anal#sisii/ 0e!li!ent conduct conduct that imposes an 3N61A'ONA!L1 ris( of

harm+:/

3nreasonable when a 600 would %O61'11 that harm mi&ht result and

-O3LD A@OID COND3CT that creates the ris( of harm evaluated at the

time D was in the situation) &iven the circumstancesb/ Anal#sis=

+:/

-hat conduct was alle&edl# ne&li&ent+2/

-hat alternatives are there to the behavior of D &iven the situation

+"/

-hich of the 2 alternatives is ris(ier If the proposed alternative conduct is ris(er

than the conduct the person en&a&ed in) then there is no ne&li&ence+E/

3' v. Carroll Towin& formula=

! > 0Lne&li&ence

8/11/2019 Torts Hayden (2008)

15/30

!urden *cost of the alternate conduct > 0robabilit#*fre5uenc# of harm Cost of

harm +probabilit# that an inur# will occur multiplied b# the reasonable

foreseeabilit# of the harm*e4tent of the liabilit#*cost/+B/

%actor in the social utilit# of the alle&edl# ne&li&ent conduct

'ummer camp child fell in wet &rass

9iant %oods 0 (noc(ed down b# shoplifter b*c D chased him

0arsons v. Crown D operatin& &arba&e truc( spoo(ed 08s horsec/ Indiana Consolidated Insurance v. athew lawnmower cased/ 'tinnet v. !uchele doctor hires 0 to repair roof. 0 had a dut# of care

to himself that a 600 in ''C would have assumed 0 to havee/ !ernier v. !oston car accident leads to pole fallin& and hittin& 2 08s.

08s sue pole compan# for ne&li&ent desi&n of pole

iii/ 9oint 'ortfeasorsa/ Traditional minorit# rule= 7oint and 'everal Liabilit# with contribution

oint tortfeasors are held ointl# and severall# liable for the commission of a sin&le

inur# that all contributed to such that if found liable) each D is potentiall# liable

for the entire dama&es award+:/

1ach D will pa# pro rata M but 0 can enforce the entire ud&ment a&ainst a

particular D in the case that other D8s are insolvent. ,owever) that D can now

file a contribution claim to &et others D8s to contribute their pro rata share to

D. If there is an insolvent D) the other solvent D8s must carr# the burden

b/ odern aorit# 6ule= 'everal Liabilit# with NO contribution+:/

ust determine the whole dama&es amount and the percenta&e of liabilit# that

each D has. 1ach D will pa# his M of the total dama&es. If there is an

insolvent D) 0 will not be able to enforce that amount a&ainst the others and

so will not &et the full dama&es awardc/ 'ome states li(e CA have oint and several dama&es for medical

e4penses and lost wa&es but several for pain and sufferin&. ore important for 0

to be compensated for what 0 paid out*lost due to inur# than some immaterial

factor as pain and sufferin&

iv/ *es I#sa ?o4uitora/ 0roof and ur# evaluation that which is not 6es Ipsa Lo5uitor b*c

there is either sufficient factual evidence of the ne&li&ent conduct to determine

ne&li&ence throu&h inference or there is not enou&h factual evidence

+circumstantial evidence that permits a reasonable inference of another fact/ to

ma(e an inference at all where the inur# ma# have occurred without an#

ne&li&ence at all+:/

!us accident case no evidence as to ne&li&ent conduct and the inur# could

have occurred without an# ne&li&ence at all

8/11/2019 Torts Hayden (2008)

16/30

+2/

3pchurch v. 6ottenberr# alle&edl# ne&li&ent conduct was identified and b*c

there was enou&h factual evidence throu&h witness*e4pert testimon#) could

ma(e a reasonable inference as to whether the conduct was ne&li&ent

14pert testimon# onl# allowed when testif#in& on a subect that the ur#

could not understand on its own +if the ur# could ma(e a determination

without e4pert testimon#) then cannot have e4pert testimon# common(nowled&e e4ception/

+"/

Thoma v. Crac(er !arrel " theories of liabilit# in Fslip and fallG cases based off

of circumstantial evidence=

D created the dan&erous condition

D had (nowled&e*constructive (nowled&e and failed to cure it

ethod*mode of operation made it all to li(el# that others would create a

dan&erous condition+E/

Customar# 0ractices manuals and other customar# practices should not seat

the le&al standard of care but ma# be introduced as evidence of a standard of

care that either D promoted but violated or that was standard in the industr#

but D fell below the standard of

-al$art v. -ri&ht manual on safet# in &ardenin& area actuall# set a hi&her

standard of care than that of a 600 b*c wanted to strive for perfection and

so should not be evaluated based on a perfect standard but such standard

could be introduced to see how far below it -al$art fell

T7 ,ooper D used custom as a shield to show that it was not actin&

ne&li&entl# but accordin& to the standards set in the industr# ,O-1@16

an entire industr# ma# be actin& ne&li&entl# and so industr# standards

should not set the le&al standard of careb/ 6e5uirements of 6es Ipsa Lo5uitur

+:/

Traditional Approach

Inur# causin& event is of a (ind that ordinaril# does not occur without

ne&li&ence

Instrumentalit# within D8s e4clusive Control tr#in& to eliminate other causes

0 did not contribute to the accident+2/

6.2d approach

8/11/2019 Torts Hayden (2008)

17/30

Inur# causin& event is of a (ind that ordinaril# does not occur without

ne&li&ence

Other responsible causes +other than D8s ne&li&ence/ sufficientl# eliminated

b# evidence

Ne&li&ence is within the scope of D8s dut# to 0+"/

In CA) res ipsa lo5uitor provides a rebuttal presumption once it is shown) then

burden is on D to show b# a preponderance of the evidence that it was not

due to D8s ne&li&ence. !ut in O'T 'TAT1') merel# allows for the ur# to

ma(e an inference as to the ne&li&ence of D but it is at the determination of

the ur#+E/

If the evidence discloses the circumstances to the e4tent that nothin& is left to

infer) then res ipsa lo5uitur is not needed b*c all inferences have been made.

6es ipsa lo5uitur will not be applied when the evidence presents a complete

e4planation of the accident+B/

Cases

!#rne v. !oadle !arrel rolls out of 2ndstor# buildin& hittin& 0. Traditional

approach $ A barrel rollin& out of a 2ndstor# window is an event that usuall#

doesn8t occur without some ne&li&ence and it is unli(el# that an#one other

than D could have caused and 0 obviousl# did not contribute to the barrel

rollin& out. 6.2d approach same first step. It is within D8s dut# of care to

ensure that barrels don8t fall out of the window and there is no other

reasonable e4planation other than D8s ne&li&ence for causin& it.

@alle# 0roperties D rented space in 08s warehouse and fire started in there.

'ome sort of ne&li&ence must have caused the fire but there were other

causes of the fire such as fault# electrical wirin& that could have caused it

that were not sufficientl# eliminated

9iles v. Cit# of New ,aven 0 inured when 1levator malfunctioned in such awa# that it was unli(el# to occur without ne&li&ence) no one else8s

ne&li&ence could have caused it) includin& 0

Collins v. 'uperior Air$9round Ambulance 0 admits mom for health services

after which she has a bro(en le& and is deh#drated onl# others in

contact were hospital and ambulance carriers. -hen 2 D8s and inur#

li(el# to occur due to ne&li&ence of at least one of them and both are

named in the complaint. ,ow man# D8s are too man#

8/11/2019 Torts Hayden (2008)

18/30

-arren v. 7effries cannot use the doctrine b*c car rollin& bac( into the la(e

rollin& over the bo# could have been due to other causes but 08s failure to

e4amine the car didn8t allow to rule out other causes

Lambrecht v. 1state of acmarc#( could invo(e the doctrine b*c since

heart attac( could have happened before durin& or after accident) there

are reasonable ne&li&ence ar&uments the ur# could ma(e3. P suffered actual dama!e :/ actual harm occurred and 2/ it is le&all# co&niable

i/ uestion arises when emotional or economic loss +rarel# reco&nied/ii/ 0reston v. Cestaro bus accident but 0 barel# inured and turns out that it

was due to prior inur#) not to accident6. "+s ne!li!ence was an actual cause of the dama!e > CA/- I0 &AC'

i/ The !ut %or Cause but for the D8s conduct) the inur# would not have

occurred onl# wor(s when attributable to a sin&le persona/ 'o lon& as the harm is divisible between different D8s such that each

inur# is attributable to one D) it will also wor(

b/ 'alinetro v. N#strom 08s fetus died durin& e4$ra#s where D didn8t as(if 0 was pre&nant. -hile this was ne&li&ent of D) 0 did not (now she was

pre&nant and therefore) had D not been ne&li&ent) the same result would have

occurred and therefore is not the actual causec/ Dillon v. Twin 'tate (id loses balance) &rabs electric wirin& and

electrocuted. %irst need to establish that (id wouldn8t have fallen. If he wouldn8t

have fallen) then D caused the entire inur#. If he would have fallen) need to see

what D8s ne&li&ent act caused. If he would have died an#wa#) then not the but

for cause. If determined that wouldn8t die but be severel# inured) then D8s

ne&li&ence caused him to be robbed of a life as a badl# inured person the but

for cause of the additional harm the difference between the life of a badl#inured person and death.

ii/ 'ubstantial %actor Test when 2 or more 0ersons are liable for the same

inur#a/ !ut for test doesn8t wor( because if 2 people are causin& the harm)

even if one weren8t ne&li&ent the harm would still occur.b/ Landers v. 1ast Te4as 'alt -ater Disposal : D contaminated la(e

with salt) the other with oil and fish died. ,ere) not actin& in concert and since

actin& independentl# a prima facie case must be established a&ainst each

separatel# but with the Fbut forG test) cannot show actual cause. 1stablishes the

'ubstantial %actor Testc/ Anderson v. inneapolis 08s propert# was burned b# a fire combined

from several) one of which caused b# D. If the ne!li!ent conduct,

inde#endently would have caused the in

8/11/2019 Torts Hayden (2008)

19/30

show that one or the other wasn8t liable and otherwise hold both liable. Concern=

holdin& one person liable that otherwise wouldn8t be liable.e/ Doe v. !a4ter if there is more than one D that could be liable) must

have both before the courtiii/ Loss of Opportunit#*Chance doctrine= " approaches=

a/ Traditional if deprived of &reater than BJM chance of a more

favorable outcome) then D will be liable for the whole inur#b/ 'ubstantial Chance If the chance of recover# would have been

substantial e4cept for the ne&li&ent conduct) then allows for a full recover#c/ Defines the harm as the loss of chance itself where due to the

ne&li&ent conduct the person loses the chance of recover#) then will &et

dama&es e5ual to the M loss of chance from a full wron&ful death dama&es

award@. "+s ne!li!ence was a #roimate cause of this dama!e > /CP- & *I/

i/ Is the harm within the scope of ris(s foreseeable to a 600 in ''C as resultin&

from the ne&li&ent conduct in which D en&a&ed %oreseeabilit# from the perspective

of D and the 600 standard in ''C as determined based on that D.a/ Is the 0laintiff within the class of foreseeable persons affected b# the

alle&edl# ne&li&ent conductb/ Is the t#pe of harm a t#pe reasonabl# foreseeable to a 600 in ''C as

resultin& from the D8s ne&li&ent conduct+:/

0recise manner of harm does not need to be foreseeable if the t#pe of harm is

foreseeable otherwise an#thin& can be ar&ued unforeseeable do to so

man# nuances is how thin&s can happenii/ Thin '(ull 6ule if D8s ne&li&ent act would have caused an inur# to someone

without a thin s(ull) then if the e4tent of the harm is &reater because of the Fthin

s(ullG condition) D will be liable for all dama&es.

a/ It is not a defense to sa# that the e4tent of the harm was unforeseeableb/ ,owever) if a person without this condition would NOT be harmed at

all) then the harm is unforeseeable and outside the scope*pro4imate causeiii/ 'upervenin&*intervenin& causes

a/ -hen D2 acts intentionall#+:/

Traditional rule if D2 acts intentionall#) then cuts off*supervenes D:8s liabilit# a

person is not bound to foresee criminal acts*intentional acts of others+2/

aorit# rule was it reasonabl# foreseeable that this (ind of criminal intervenin&

act would be ris(ed b# #our ne&li&ence would the harm resultin& to 0 be aforeseeable t#pe of harm resultin& from the ne&li&ent act.

b/ -hen D2 acts ne&li&entl# where the acts of a "rdperson intervene

between D8s conduct and 08s inur#) the causal connection is not automaticall#

severed.+:/

" formulations of the rule=

In such a case) liabilit# turns upon whether the intervenin& act is a normal or

foreseeable conse5uence of the situation created b# D8s ne&li&ence

8/11/2019 Torts Hayden (2008)

20/30

Did D:8s ne&li&ent act cause 0 to be in a position of dan&er when the

intervenin& cause came in

,ad the ris(s created b# D:8s ne&li&ence terminated) then there should be

no liabilit# b*c no additional ris( created b# D28s conduct.I@. Affirmative Defenses to Ne&li&ence

A. Contri$utoryCom#arative &ault D must prove the whole 0%C of ne&li&ence a&ainst 0to ar&ue contributor# ne&li&ence. -hen loo(in& at 600) 600 assumes that others e4ercise

reasonable care as well and so the 600 standard does not re5uire actin& under the

assumption that others have no dut# of care this would be duplicitousl# precautionar#1. P has a duty to self D must show 08s ne&li&ence burden on D2. Contri$utory ne!li!ence

i/ Butterfield *ule > 6 states there is a complete bar to recover# if 0 is

ne&li&ent with respect to 08s own safet# and such breach is a cause of 08s harm or 0

en&a&ed in an ille&al activit#a/ !ased on the principal that one must use ordinar# care in order to sue

someone else for breachin& their dut#b/ -ce#tion; If ne&li&ence of 0 leaves him in a helpless position and D)

who had the last clear chance to avoid inur# ne&li&entl# inflicted it an#wa#.+:/

?ast Clear Chance"octrine if D discovered or should have discovered 08s

peril and could reasonabl# have avoided it) 08s earlier ne&li&ence would not

bar or reduce recover#.+2/

"iscovered Peril "octrine re5uires ACT3AL discover# and does not allow for

constructive*should have (nown discover#

+"/If D acted intentionall#*rec(lessl#) split some states allow a comparison of

rec(lessness to ne&li&ence +loo(in& at comparative responsibilit#/+E/

Bei!a "octrine -hen D owes dut# to protect 0 from 08s own fault

Common characteristic= when D8s fault imposes a ris( upon 0 but that 08s

fault imposes no similar ris( upon D

08s vulnerabilit# pla# a part in determinin& responsibilit#

D (nows of 08s disabilit# which prevents*inhibits 08s care for himself

08s ris(# conduct endan&ers himself but not others

Comes up in product liabilit# cases3. Com#arative 0e!li!ence

i/ 0ew :or= *ule > 12 states > Pure Com#arison *ule$ even if 0 is

contributoril# ne&li&ent) will recover the M of total dama&es that is attributable to D8s

fault.

8/11/2019 Torts Hayden (2008)

21/30

ii/ isconsin *ule > 36 states > odified com#arison rule$ so lon& as D8s

fault is &reater than that of 0) 0 will recover the M of total dama&es that is

attributable to D8s fault. If D8s fault is less than that of 0) then 0 cannot recover6. *escue "octrine one who sees a person in imminent dan&er caused b# the

ne&li&ence of another cannot be char&ed with contributor# ne&li&ence unless actin&

ne&li&entl# otherwise comparative fault principle would deter rescuei/ 6escuer cannot be contributoril# ne&li&ent unless actin& ne&li&entl#

ii/ Ne&li&ent D is liable to rescuer for an# inur# to rescuer!. Assum#tion of *is= most common in wor(place inur# or sports cases1. -#ress Assum#tionContractual Assum#tion

i/ !ars a claim entirel#ii/ Is the contract enforceable 3nconscionable

a/ Is the release conspicuous and une5uivocall# e4pressedb/ 0ublic polic# concerns= essential service Non$voluntar# +emplo#ment

calls for such ris(*activit#/ Contract of adhesion 3ne5ual bar&ainin& poweriii/ If the release of liabilit#*contract is valid) loo( at its scope does the release

cover the act that caused 08s harm Does the contract cover what happeneda/ Ambi&uities are found*enforced a&ainst the drafter +usuall# the

ne&li&ent D/2. Im#lied Assum#tion > can #ou infer from the situation that 0 was in fact a&reein& to

the D8s conduct +ne&li&ence version of consent/i/ 3suall# between 2 participants) when 0 &ets inured b*c other part# violates a

ruleii/ If there8s a rule a&ainst such behavior then it must happen often enou&h so

that it is li(el# an inherent ris(iii/ " splits= -hat ris( are #ou assumin& and is harm within the scope of ris(

a/ Traditional*!utterfield d4= serves as a complete bar to a 08s recover#

when 0 (nows of the ris( of dan&er) 0 appreciates the ris( and 0 voluntaril#

e4poses self to that ris( +whether #ou8re compelled to do it or not) if #ou havealtneratives/

b/ 0rimar#*'econdar# assumption of ris(+:/

0rimar# assumption of ris( when there is a complete bar b*c either 0 impliedl#

freed D of a dut# owed or impliedl# b*c of 08s (nowled&e) D didn8t breach a

dut# of care failure of 0%C+2/

'econdar# assumption of ris( essentiall# the comparative fault anal#sisc/ odern approach eliminate implied assumption of ris( as a separate

defense b*c of redundanc#iv/ 'ports cases deal with inherent ris( associated with the sport $ 2

approachesa/ Allow D to ar&ue 0 assumed the ris( essentiall# no dut# or no breachb/ Allow tort suit ONL< if D acts rec(lessl# or worse doesn8t allow

ne&li&ence suits at all within sportsc/ ore efficient) draws a bri&htline rule

C. /tatute of ?imitations bars valid FstaleG claims not timel# brou&ht1. CA 2 #ears for ne&li&ence2. -hen does the claim be&in to accrue*start*become operative

8/11/2019 Torts Hayden (2008)

22/30

i/ Traditional rule date of D8s act since ne&li&ence that causes no harm is

not actionable until inur# occurs) the C*A onl# accrues when that inur# resultsii/ Discover# rule 0 has to (now*should (now the nature of 08s inur# and (now

should (now what role D pla#ed in the inur#a/ D ma# be estopped from assertin& 'OL defense if D

conceals*obstructs 08s filin& of an actionb/ Continuous treatment 'OL would start to toll*accrue until the

treatment stops+:/

9ood rule for doctors &ives doctors time to fi4 the problem resultin& in no

problem at allc/ There is a subective and obective element to the anal#sis

D. Com#liance with a /tatute not a complete defense but a factor in anal#in& D8s conduct1. -here D is in compliance with a statute2. !ut statute and ordinances usuall# ust set floors) but are not) on their own terms)

standards of care1. Preem#tion when federal law trumps state law +consumer products subect to much

federal re&ulation/

1. %ederal statutes essentiall# destro# state tort law completel# &ood for corporationsb*c federal law would preempt and therefore immunie them a&ainst state tort law

claims@. ?imitin! "uties $ased on Class or /tatus of Parties

A. ?andowners "uty when 0 is inured on D8s land and 0 claims inur# due to D8s

ne&li&ence1. Issue= sets up a situation where different people are owed different duties of care

even thou&h all 08s actin& in the same wa#. Classifies 08s differentl#) &ivin& them

different ri&hts.i/ Carriers ,ost Drivers almost strict liabilit# when 0 is a pa#in& customer

and &eneral dut# of care when non$pa#in& customerii/ 9uest statutes remove liabilit# when pic(in& up hitchhi(er and no

consideration is &iven onl# dut# owed is not to act willfull# or wantonl#a/ At what point is the person a &uest -hen enterin& or e4itin&b/ -hat constitutes consideration if person contributes monetaril#

Non$monetaril#2. 3 varia$le;

i/ " must $e the landowneroccu#ierii/ In

8/11/2019 Torts Hayden (2008)

23/30

+"/

Trespasser an# person who has no le&al ri&ht to be on the land and enters

without the e4press or implied consent of the landownerb/ "rules

+:/

2B states distin&uish between Invitee +600 in ''C/) Licensee Trespasser +onl#

dut# not to act willfull# or wantonl#/

+2/:*E states treat invitees licensees the same +600 in ''C/ but trespassers with

a lesser standard of care +onl# dut# not to act willfull# or wantonl#/+"/

:*E states treat all entrants onto land the same such that all are owed the same

standard of care +600 in ''C/+E/

"ual nowled!e *ule-ce#tion applies in those d4 where treat entrants

differentl#

1lements=

D (nows*has reason to (now of the hidden haardous condition on the

land

D (nows of the presence of the entrant

'plit outcome if dual (nowled&e is met=

Then create a dut# of care for the landlord +600 in ''C/

Then evidence of willful and wanton conductc/ /#ecial Child 'res#ass *uleAttractive 0uisance "octrine Dut#

e4ists when+:/

It is foreseeable that a child would trespass due to an attractive nuisance+2/

Landlord (nows or has reason to (now of the dan&erous*attractive condition on

the land+"/

Child8s a&e precludes him from protectin& himself a&ainst the dan&erouscondition

+E/

burden on Landlord to show that made reasonable effort to avoid the harm

+based on the Carroll Towin& anal#sis of breach and alternative conduct/d/ #en and $vious "octrine >

+:/

aorit# failure to warn of an open and obvious haard is not a breach of dut#

and entrant has no claim

8/11/2019 Torts Hayden (2008)

24/30

+2/

inorit# a claim will not be automaticall# barred b*c the haard is open and

obvious) but depends on what D could have foreseen and whether could have

done an#thin& to ma(e a differencee/ &irefi!hter+s rule e4panded to all professional rescuers

+:/

Traditional rule firefi&hter cannot sue D for ne&li&entl# startin& fire

0olic# concern disincentive to call for help) professional rescuers assume

certain de&ree of ris() compensated throu&h wor(ers8 comp.) seen as

licensees and therefore lesser dut#

!ut allowed to recover for ne&li&ent conditions unrelated to their purpose on

the land+2/

minorit# rule firefi&hters and other professional rescuers owed the same dut# of

care as others when on those parts of the land that are open to others) ma#

be allowed to recover when violation of fire*safet# statute*ordinance!. 7overnmental -ntities 5 fficers traditional immunities

1. 9enerall# presumed immune unless=i/ Ta(in&s) under due process clauses of Bthand :EthAmendmentii/ unicipal immunit# municipalities are not soverei&ns but corporations

chartered b# the soverei&n liable for ta(in&s) nuisances) torts committed in the

course of proprietar# activities2. 'ued under state tort law3. %ederal Immunit# now ualified %ederal Tort Claims Act

i/ 6etained immunit# for most intentional torts) di&nitar#*economic tortsii/ e# conditions to waiver must &ive &ovt a&enc# mo. To respond) onl# then

can be brou&ht to federal court) ONL< bench trialiii/ %eres 6ule active militar# can8t sue the 3' &ovt. for an#thin& if inur# was

FincidentG to servicea/ 0olic# concerns undermine militar# discipline b*c now civilians are

adudicatin& militar# discipline procedures) udicial branch has no ri&ht to tell

e4ecutive branch what to do) re5uires militar# to be subect to different tort

laws*re&ulations in different statesiv/ Discretionar#*basic polic# immunit# if the ne&li&ent act alle&ed is an act of

discretion +a polic# ud&ment/) then the claim cannot succeed for want of d4a/ Concerns about separation of powers udiciar# should not be

involved in polic# decisionsb/ !3T 9overnment doesn8t have discretion to violate a mandator#

statute*re&ulation= if 0 is claim operational issue with respect to le&islation

Con&ress has alread# spo(en on) then &overnment no lon&er has discretion not

to follow it but must follow it@I. "uty $ased on relationshi#s or their a$sence

A. Nonfeasance 1. common law; there is no duty to act affirmatively

i/ civil law countries have an implied dut# to protect*rescue

8/11/2019 Torts Hayden (2008)

25/30

ii/ polic# behind nonfeasance rule= difficult to drawn line of potentiall# liable

nonrescuers) fear for liabilit# mi&ht actuall# reduce altruistic responses) protects

interest in autonom# and the ri&ht to do nothin&iii/ D is subect to liabilit# for misfeasance +ACTIN9 !ADL

8/11/2019 Torts Hayden (2008)

26/30

a/ 0laces a &reater dut# on business owners for foresee ris( on their

propert#ii/ inorit# rules

a/ 'pecific harm rule landowner does not owe a dut# to protect patrons

from violent acts of "rdparties unless aware of specific) imminent harmb/ 0rior 'imilar Incidents Test 600 would foresee b*c similar thin&s

have happened in the past+:/ Too arbitrar# to appl# uniforml# between cases

c/ !alancin& Test foreseeabilit# and &ravit# of harm balanced a&ainst

commensurate burden imposed on the business similar to Carroll Towin&

anal#sis but anal#ed under dut#) not under breach.2. 6elationship between D and 0

i/ 'ee list aboveii/ 1.&. -al$art to customer) 'hoppin& Center to customer) 'ept :: securit#

failure at airports) ne&li&ent construction*maintenance*operation of towers to families

when foreseeable ris( of plane crash3. 6elationship between D and "rdpart# and such relationship is the source of harm

i/ ,in&es on facts of control over "rdpart# behavior and (nowled&e as to that

behaviora/ Landlord has a dut# to "rdpersons to do all that he le&all# can to &et rid

of dan&erous condition on the leased premises) even if it means &ettin& rid of the

tenantb/ Custodial control*foreseeabilit#

ii/ Dut# to control children that has to be almost a '3016 foreseeabilit#a/ 9eneral rule= onl# liable for failure to control some specific behavior

parent (nows or should (now child would doiii/ Therapist patient relationship focus on therapist8s abilit# to control*prevent

the harm to the 0laintiff) rather than control over the defendant

a/ !alance several consideration foreseeabilit# of harm to 0) de&ree ofcertaint# that 0 suffered inur#) closeness of the connection between D8s conduct

and inur# suffered) the moral blame attached to D8s conduct) polic# of preventin&

future harm) burden to D and conse5uences to the communit# of imposin& a dut#C. Ne&li&ent 1ntrustment Theor# liabilit# for &ivin& a dan&erous instrumentalit# to someone

that #ou (now or should (now that would use that to harm themselves or others1. Dram 'hop laws protectin& from " rdpersons

i/ odern rule dut#) if it is foreseeable) and relationship between D and "rd

part#@II. 1motional ,arm stand alone nonph#sical inur# 0361 1OTIONAL DI'T61'' protects

an interest in mental states compensate for mental distress intentionall#*rec(lessl# caused that

doesn8t fit into a tort alread# protectin& it +offensive batter#) assault) false imprisonment/A. Intentional Infliction of 1motional Distress

1. elementsi/ Intent to or rec(lessness in inflictin& severe emotional distressii/ !# e4treme and outra&eous conduct some d4 re5uire D to intend the

conduct to be e4treme and outra&eous some d4 re5uire one of the followin&

patterns) some re5uire a combo of them) some don8ta/ 0ower d#namics in the relationship abuse of power b/ %re5uenc#) duration of conduct repeatedc/ nowled&e*use of particular facts that ma(e 0 particularl# susceptible

8/11/2019 Torts Hayden (2008)

27/30

8/11/2019 Torts Hayden (2008)

28/30

1. 0urpose emplo#ers would tr# harder to ma(e emplo#ees careful to avoid liabilit#)

have certain amount of control over emplo#ee) if emplo#er &ains benefits of the

emplo#ee8s wor() should bear the burdens as welli/ 1nterprise liabilit# losses caused b# a business8 emplo#ee should simpl# be

seen as the cost of doin& business. 1mplo#ers are in a better position to cover

themselves and spread the cost of such inur# throu&h insurance if insurance &oes

up) then the# char&e more for the product) thereb# spreadin& the ris(. Competition

will incentivie emplo#ers to (eep accidents down to (eep costs down and sta#competitive 3ND16L

8/11/2019 Torts Hayden (2008)

29/30

b/ Activit# cannot be made safe no matter how much reasonable care is

bein& usedc/ Not a matter of common usa&e most cases turn on this element

ii/ Le&all# co&niable harmiii/ Actual and pro4imate cause

C. 0roducts Liabilit# strict liabilit# in part onl# multiple theories of recover# such that if one

fails) can alwa#s sue on another1. !reach of warrant# must be in privit# with manufacturer of the product2. Ne&li&ence re&ular claim must show that conduct fell below conduct of 600

under ''C3. 'trict Liabilit# claim modern trend to sue an#one in the chain of distribution and

then &iven a ri&ht to indemnif# self b# impleadin& all the wa# bac( to the manufactureri/ ust show defect T,AT 1RI'T1D AT TI1 L1%T AN3%ACT36168'

CONT6OL substitutes for dut# and breach of dut# anal#sisa/ In part a matter of rulin& out intervenin& causes and partl# related to

res ipsa lo5uitor+:/ 0 is as(in& ur# to draw inferences about the fact that this is a defect that

happened before it left the manufacturin& process

b/ T#pes of defects+:/ anufacturin& defect +when ne&li&ence claim) rel# on res ipsa lo5uitor claim/

Consumer e4pectation test how a reasonable consumer would e4pect

the product to perform durin& re&ular use

6.2d approach ph#sical departure from the product8s ori&inal desi&n

even thou&h all possible care was e4ercised in preparation and mar(etin&

references frustration of consumer e4pectations but as a factor+2/ Desi&n defect if defective desi&n) then ever# sin&le product in that line is

defective and potentiall# ever# product out there can be the basis for a

product liabilit# claim

aorit# ris($utilit# balancin& test 0 must show that the ris(s of productdesi&n +the precise desi&n defect/ outwei&h the utilit# of the precise

desi&n of the prices part alle&edl# poorl# desi&ned

6e5uires proof of a reasonable alternative desi&n +6AD/

6easonable alternative $ safer

%easible alternative could be made and could be sold

Difficult to show b*c usuall# manufacturer has alread# tested

alternative desi&ns best evidence is e4pert testimon# of a

competitor sa#in& it can and the# do actuall# do it differentl#

'ome states onl# do Consumer 14pectation Test

'ome states let 0laintiff choose between the 2 theories

CA and other states 0 chooses between the 2 theories but on the ris($

utilit# balancin& test) burden of proof is on D. Also do not allow consumer

e4pectation test for comple4 desi&ns+"/ -arnin&*Informational defect product ma# be perfectl# fine in the wa# it was

manufactured and desi&ned but ma# still be defective if comes with

inade5uate warnin& or dan&ers or how to use it

1ssentiall# a ne&li&ence test where product8s foreseeable ris(s of harm

could have been reduced or avoided b# a provision of a reasonable

8/11/2019 Torts Hayden (2008)

30/30