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    Torts Outline Mk. II

    Table of Contents

    Writs and the common law .................................................................................................................................. 3

    Intentional torts..................................................................................................................................................... 3

    Intent .................................................................................................................................................................. 3

    Transferred intent......................................................................................................................................... 3

    Mistake............................................................................................................................................................... 4Insanity........................................................................................................................................................... 4

    Torts to the person ............................................................................................................................................ 4

    Assault............................................................................................................................................................ 4

    Battery............................................................................................................................................................ 5

    False imprisonment....................................................................................................................................... 5

    Intentional infliction of mental distress ...................................................................................................... 6

    Torts to property ............................................................................................................................................... 7

    Trespass to land............................................................................................................................................. 7

    Trespass to chattels ....................................................................................................................................... 7

    Conversion ..................................................................................................................................................... 7

    Defenses to intentional torts ............................................................................................................................. 8Consent........................................................................................................................................................... 8

    Self-defense .................................................................................................................................................... 9

    Defense of others ........................................................................................................................................... 9

    Defense of property....................................................................................................................................... 9

    Recovery of property .................................................................................................................................. 10

    Detention for investigation ......................................................................................................................... 10

    Public necessity............................................................................................................................................ 11

    Private necessity .......................................................................................................................................... 11

    Discipline...................................................................................................................................................... 11

    Justification ................................................................................................................................................. 11

    Punitive damages ................................................................................................................................................ 12Negligence ............................................................................................................................................................ 13

    The Hand formula........................................................................................................................................... 13

    The reasonable person .................................................................................................................................... 14

    Custom ............................................................................................................................................................. 14

    Physical impairments...................................................................................................................................... 14

    Children ........................................................................................................................................................... 15

    Insanity............................................................................................................................................................. 15

    Professional standards of care ....................................................................................................................... 15

    Medical malpractice........................................................................................................................................ 16

    Informed consent ............................................................................................................................................ 16

    Automobile guest statutes............................................................................................................................... 17Rules of law...................................................................................................................................................... 17

    Negligence per se ............................................................................................................................................. 17

    Res ipsa loquitur ............................................................................................................................................. 19

    Burden of proof in res ipsa loquitur.......................................................................................................... 19

    Causation ............................................................................................................................................................. 19

    Actual causation .............................................................................................................................................. 19

    Loss of chance.................................................................................................................................................. 20

    Scientific testimony ......................................................................................................................................... 21

    Concurrent causes....................................................................................................................................... 21

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    Substantial factor test ..................................................................................................................................... 21

    Proximate causation........................................................................................................................................ 22

    Direct causation........................................................................................................................................... 23

    Foreseeable consequences .......................................................................................................................... 23

    Intervening and superceding causes ......................................................................................................... 24

    Rescuers ........................................................................................................................................................... 25

    Social host liability .......................................................................................................................................... 25

    Failure to act.................................................................................................................................................... 26

    Contributory negligence ................................................................................................................................. 26Last clear chance......................................................................................................................................... 27

    Comparative negligence ................................................................................................................................. 27

    Assumption of the risk.................................................................................................................................... 27

    Express assumption of risk ........................................................................................................................ 28

    Implied assumption of risk......................................................................................................................... 28

    Primary versus secondary assumption of risk ......................................................................................... 28

    Joint tortfeasors .................................................................................................................................................. 28

    Joint and several liability ............................................................................................................................... 28

    Contribution .................................................................................................................................................... 29

    Liability for subsequent injuries.................................................................................................................... 29

    Statute of limitations........................................................................................................................................... 29Landowner liability............................................................................................................................................. 30

    Outside the premises....................................................................................................................................... 30

    Artificial versus natural conditions ............................................................................................................... 30

    Categories of entrants onto land.................................................................................................................... 30

    Trespassers .................................................................................................................................................. 31

    Licensees ...................................................................................................................................................... 31

    Invitees ......................................................................................................................................................... 31

    Child trespassers ............................................................................................................................................. 32

    Strict liability ....................................................................................................................................................... 32

    Animals ............................................................................................................................................................ 32

    Abnormally dangerous activities ................................................................................................................... 32Vicarious liability ............................................................................................................................................ 33

    Respondeat superior ................................................................................................................................... 33

    Coming and going ....................................................................................................................................... 34

    Independent contractors ............................................................................................................................ 34

    Nondelegable duties .................................................................................................................................... 35

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    Introduction

    A tortis a civil wrong or injury caused by a breach of duty that arises by operation of law rather than

    agreement. What is a civil wrong? A wrong that courts or legislatures have determined are actionable. What isa breach of duty? When someone has a legal duty towards you (other than in a contract) that they breach.

    Writs and the common law

    Initially, you had to have a writ from the King in order to have a claim in court. There were two writstrespassand case. Trespass was actionable due to direct harm; a preview of intentional torts. Case lets you recover on

    something that isnt immediate; sort of the precursor to modern negligence.

    Now we have a fault view of the law. The law of intentional torts doesnt change over time as much. Reasons

    for the fault concept: (1) We want to protect the growth of industry. (2) We want to be fair to defendantswe

    no longer think its fair to hold people liable in the absence of fault. (3) We also want to be fair to plaintiffs

    they dont need to depend on selecting the correct writ or that their harm is direct to be able to recover. (4) We

    want to promote economic efficiencythis comes up again and again and again. We want to create incentives

    for companies to invest in the optimal amount of safety. For example, most prescription drugs help people

    while a few drugs harm people. We dont want to let harmful drugs on the market, but then again, we dont

    want to keep all drugs off the market.

    Intentional torts

    Prima Facie Caseproving the face of itthe burden of proof in almost all tort cases is the preponderance

    of the evidencethat is, greater than 50%. The jury will be told that the plaintiff has to prove that its more

    likely than not the thing happened rather than didnt. To prove a prima facie case, the plaintiff must prove

    that: (1) an act occurred, (2) the defendant intended to do the act, and (3) the act caused damages. We protectagainst dignitary harms in intentional torts.

    Tips from Mr. Gilbert: (1) Identify all the possible intentional torts. (2) Consider the prima facie case of each

    tort and see if all the elements are present. (3) If a defendant has committed a particular tort, consider whetherthe defendant has some privilege or defense that might limit or el iminate their liability. (If they dont have any

    possible defense or privilege, theyve been a bad person!)

    Intent

    We dont hold people liable for intentional torts when they dont have intent. A person acts with the intent to

    produce a consequence if: (1) The person has the purpose of producing that consequence, or (2) the person

    knows to a substantial certainty that the consequence will ensue from the persons conduct. The defendantsmotive is immaterial.

    The test of whether a defendant had a certain purpose or knew the likelihood of a result to a substantial certaintyis a subjectivetest. The question isnt what a reasonable person would have desired or believed, but what thisparticular defendant desired or believed.

    Egg shell or thin skull rule if you intend to cause harm to somebody, and the harm is greater than you

    expected it to be, youre responsible for the full consequences of your actions. How do we justify this rule? Itseasy to administer and helps ensure full compensation for accident victims. Finally, the law places a high value

    on human life.

    Transferred intent

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    Intent can be transferred among the five torts that derive from the original writ of trespass: battery, assault, false

    imprisonment, trespass to land and trespass to chattels. If the tort that was intended or the one that was

    accomplished is not one of the five, transferred intent does not apply. The court finds that the intent of assaulttransfers to the battery that actually occurs.

    Transferred intent can only be transferred among a certain group of torts: assault, battery, false imprisonment,

    trespass to land and trespass to chattels. Neither conversion nor intentional infliction of emotional distress is

    covered.

    What if the defendant had accidentally hit someone on the plaintiffs land while firing at ducks? The defendantwould be liable for battery. The plaintiff gets to the defendant by using the doctrine of transferred intent. If the

    defendant intended to trespass on the plaintiffs land, but ended up committing battery, then the intent properly

    transfers between the two torts.

    Mistake

    Ranson v. KitnerAre the defendants liable for trespass to chattels if they intended to harm a fox and not adog? A person is liable for damages caused by a mistake, even if it is made in good faith. The defense is that

    they did not intent to harm a dog, they intended to harm a wolf. The court says the defendants are liablebecause even though it was in good faith, youre still liable.

    Why would we have a rule like this? We might fear fraudulent claims of mistake. We also want to see the

    harmed person recover. If you have intent to harm, but harm someone or something else, youre still liable. We

    want defendants to bear the risks of their own mistakes. Therefore, mistake does not negate intent.

    Insanity

    Are insane people liable for their torts? Yes, because you do the tort, you do the time. We favor the injuredperson over the injurer. What other justifications exist for holding an insane person liable? If youre capable of

    forming the intent to cause harm, even if the intent is totally divorced from the reality of the situation, youll beliable.

    But why hold someone who has been committed to a mental institution liable? The intentional tort issue exists

    apart from negligence. Are relatives going to try to restraint the insane person? The court suggests we want therelatives to be responsible for keeping the person from hurting others.

    This is a practical, utilitarian compensation rule. We dont want to get into fault here, and we dont want courts

    to get too deep into the question of insanity. As long as you have the intent to do harm, even if you think youreNapoleon harming an enemy, youll be liable. The law doesnt care what delusion the insane person is under

    when he commits the battery.

    Torts to the person

    Assault

    Assaultis an act (volitional movement) intended to cause apprehension of an imminentharmful or offensive

    contact, which directly or indirectly causes reasonable apprehension of such contact.

    You cant create an assault with just words. However, if you say look out, theres a rattlesnake behind you!and theres no rattlesnake behind you and your intent is being mean, many jurisdictions and the Restatement

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    would find that its an assault because the impactof the words may create a sufficient apprehension of contact

    as to constitute assault. Some jurisdictions might find that it isnt the threat ofimminentharmful or offensive

    touching because no touching is actually going to take place.

    Apprehensionthe sense that a harmful or offensive touching is about to happen. The plaintiff must be aware

    of the threat at the time it was made. Thats different than the rule for battery. Why does it matter if your

    apprehension is reasonable or not? You might be an extra super sensitive plaintiff. It depends on the

    jurisdiction. Apprehension doesnt mean fearit means the sense of about to be touched. Most of the time, the

    damages for assault will involve offense rather than harm. Apprehension is necessary for assault. Contact isnot. Once you get contact, you move to battery. But not all batteries include assault.

    Intentthe defendant must have the intent to cause apprehension of harmful or offensive contact or actually

    causethat contact (although thats more a transferred intent issue). Intent is broader than I want to do this; it

    could also be Im doing something thats likely to create a certain harm.

    Why is there an assault tort? Courts have decided that psychological injury without any accompanying physical

    injury is compensable. We also want the legal system to protect mental tranquility. We do not want actors to

    use threats of force to get economic gain. Finally, the assault tort must be applied in order to be consistent withthe battery tort.

    Battery

    Defendant must intend to cause harmful or offensive contact with the person of another which actually doescause harmful or offensive contact. Its battery to touch someone who doesnt want to be touched, once you

    know they dont want to be touched, even if youre trying to help. We make an exception for doctors treatingunconscious people.

    The touching has to be things connected to you. This is called the extended personality doctrine. Were

    looking for an intimate association with your body to find liability.

    Fisher v. Carrousel Motor Hotel, Inc.Can a plaintiff have a cause of action for battery if he or she was neithertouched nor in apprehension of physical injury? How far does your person extend? The basis of an action for

    battery is the unpermitted and intentional invasion of the plaintiffsperson and not the actual harm done to the

    plaintiffs body.

    Why do we have a battery tort? We want to protect peoples dignity. We also believe that a persons bodydeserves protection from invasion. We want to deter socially undesirable conduct.

    False imprisonment

    The elements of false imprisonment are (1) intent to confine, (2) bounded area, and (3) awareness of

    confinement by the plaintiff.

    ConfinementThere must be a specific area in which the plaintiff is completely confined without a reasonable

    means of escape. You must be actually confined; moral persuasion is insufficient for false imprisonment.

    ForceOnlyforce or threats offorce constitute false imprisonment. The possible methods of confinement

    include threats of physical force, actual force, duress of goods, and threats to your family members. The law

    values your property very highly. Its more important than we might have imagined before. This comes fromcommon law notions about how important land and possessions are to people. This is called duress of goods.

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    AwarenessDo you have to be aware of your confinement at the time of trial in order to collect damages? No,but you must have been aware of the confinement at the time it happened. The Restatement of Torts says that torecover for false imprisonment, you must be aware of the imprisonment, or you must be harmed by it.

    DamagesWhat kinds of injuries must you suffer to be able to recover for false imprisonment? You need to

    have physical, mental, or economic damages. You could even make a claim for nominal damages, but you

    probably wouldnt want to bother.

    We have false imprisonment claims because we want to ensure personal freedom and dignity, and we want todeter abuse by authority figures. We put limitations on the tort because we want to protect property rights and

    allow public officers to make appropriate decisions.

    Enright v. GrovesFalse arrest arises when one is taken into custody by a person who claims but does not

    have proper legal authority. Courts rarely reach verdicts of false imprisonment against police officers. Thereis a pretty heavy presumption that police officers have legal justification to make arrests.

    Intentional infliction of mental distress

    It must be intentional or reckless. There must be severe emotional distress. The defendants conduct must be

    extreme and outrageous. The plaintiff must suffer actual damages. There is no transferred intent withintentional infliction of mental distress. Intentional infliction of mental distress has a higher standard of proof

    than other intentional torts.

    Extreme and outrageousTo determine whether conduct is really beyond the pale, courts will look at the

    totality of the circumstances rather than a single incident in isolation. Insult by itself is not a tort because it isnot entirely beyond the pale of acceptability.

    Severe emotional distressOne way to prove severe emotional distress is to show physical signs of emotional

    harm. You can also show emotional harm that was treated by a psychiatrist or psychologist. You mustprove,for example, that you were unable to work due to significant stress stemming from the claimed injury.

    Things that make intentional infliction of mental distress more likely to lie: (1) Repetitive, continued conduct,(2) unequal power or abuse thereof, (3) exploitation of known sensitivities or picking on immutable

    characteristics, (4) use of a racial epithet, (5) the defendant is a common carrier, or (6) the plaintiff is a woman,

    especially a pregnant woman.

    Why is it a good idea to have an intentional infliction of mental distress claim? (1) We want people to be free

    of severe emotional distress. (2) A mental or emotional injury is a real injury. (3) The defendants behaviorhas no social utility and thus there is no reason to protect it. (4) We award damages for mental suffering in

    other torts.

    On the other hand, why do others think its a bad idea to recognize this tort? (1) Its hard to quantify damages.(2) Its hard to prove damages. (3) Juries arent qualified to assess the damages from mental and emotional

    suffering. (4) You may open the floodgates to many potentially fraudulent or weak claims. (5) There is no

    basis in the common law for intentional infliction of mental distress. It wasnt recognized under the trespass

    writ.

    Liability to bystanders and the presence ruleIs the presence of a bystander necessary for intentional

    infliction of mental distress to lie with respect to that bystander? The benefit of the presence rule is that itgives you a bright line; its predictable. The presence requirement isproofthat you intended to cause emotional

    distress. The Restatement requires presence, but not all jurisdictions require it. The presence rule cuts off

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    certain people we might be better off covering. If a member of your family is present at the time you areharmed, and the defendant knows that some third party is there, the third party need not show physical harm to

    show damages. If its a friend instead, they would have to show physical consequences. We figure if you

    intend to inflict emotional distress on someone, they have to be here.

    Torts to property

    Trespass to land

    This is trespass with the intent to enter the property of another. Its not an intent to cause harm or anything

    else. Everyauthorized entry onto the land of another is trespass. When we say land of another, we mean landwhich the plaintiff possesses or to which the plaintiff is entitledto immediate possession.

    What if the defendant tripped and fell onto the plaintiffs property? Mistake does not negate intent, except

    when you cant stop yourself from doing something because youre tripping. Its a technical trespass. Its of

    such minor importance that we wont allow a suit. Tripping counts as a voluntary act. The only thing that

    doesnt count as a voluntary act is when somebody pushes you onto someone elses property.

    Bradley v. American Smelting and Refining Co.Can trespass lie when it does not involve anything visible to

    the naked eye? Even the slightest bit ofharm, including by the vibration of the soil or by the concussion of theair constitutes trespass.

    Herrin v. SutherlandIf you physically invade the air above someones land, is it trespass? The air space near

    the ground over your land is as much your property as the land itself. Everything thats directly under my place

    is also part of my place. You own a reasonable space above and below your property.

    Trespass to chattels

    Chattels are personal property. Trespass to chattels is the intermeddling with your stuff. With trespass tochattels, you must show actual damages. We care more about you being hurt than your stuff being hurt. As far

    as damages go, you look at the amount of damages to the good.

    Glidden v. SzybiakSomeone cannot be held liable for trespass to chattels unless some harm comes to the

    chattel. There must be actual damages, which are construed to include taking stuff away if you put it back later.

    CompuServe Inc. v. Cyber Promotions, Inc.Trespass to chattels occurs when the defendant intrudes upon the

    plaintiffs chattel such that damage results. The standard set down in this case is that trespass to chattels may

    lie for sending unwanted e-mails if the value of the computer equipment involved is diminished and the plaintiffcan show actual damages. In this case, the plaintiff shows that they have lost business because of the spam.

    Note that trespass to chattels typically involved tangible property. This is a clever use of the tort to apply to

    intangible property.

    Conversion

    In order for conversion to occur, some property must be interfered with in a complete or very substantial way.

    The difference between conversion and trespass to chattels is that conversion means you recover the marketprice of the item converted, but you dont get the item itself back. So if you use a chattel in a way you werentauthorized to and you mess it up badly, you could be liable for the entire replacement cost of that chattel. Sowatch out!

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    Conversion of a chattel is the forced sale of that chattel. It gets sold, and then you get the proceeds from the

    sale. When a piece of property gets converted, you get damages, but you dont get the thing back. If you wantto keep the chattel, you must go for an action of trespass to chattels.

    Conversion is an inefficient way to get your goods back because you force the sale of the goods. Generally, the

    further away goods move, the more likely a jury will call it conversion. The question is: at what point is it so

    inconvenient that the plaintiff can sue for conversion? An alternative action to conversion is to replevin the

    goods, which means to get the stuff back rather than forcing it resold. If somebody took a lottery ticket or a

    special pet, the situation would suggest using an action for replevin instead of an action for conversion.

    Defenses to intentional torts

    How does the defense part of a torts case work? The plaintiff has the burden to establish the prima facie case.

    If the plaintiff fails to do so, the defendant can file a motion for a directed verdict. If this motion fails, then the

    defendant has the burden to prove one of the defenses or disprove an element of the prima facie case. Then itsup to the jury to make factual determinations.

    Consent

    Consent is a defendant to intentional torts based on the plaintiffs conduct. The defendant will argue (and hasthe burden of proof to show) that a reasonable person would have taken the plaintiffs actions as consent to the

    defendants act. Consent can be determined from: (1) The circumstances of the act, (2) implied acts or words,(3) a prior course of conduct between the parties, (4) custom, (5) whether a reasonable person would believe

    that the plaintiff consented, and (6) whether the defendant exceeded the scope of the consent given.

    When there are words that indicate consent or lack thereof, you have an easier case to decide than if you

    consider the circumstances in general. An unlawful or unreasonable demand that is made of a plaintiff will not

    lead us to conclude that their silent constitutes consent.

    OBrien v. Cunard S.S. Co.If the plaintiffs behavior indicated that she consented, then the physicians act

    was justified. How would a reasonable person view what the plaintiff did? She mentioned in passing that shehad already been vaccinated, and did not protest when he said that he didnt see a mark.

    Custom and circumstances weigh heavily in determining whether someone has consented to a particular action.

    If the circumstances indicate implied consent, the plaintiff needs to explicitly withdraw consent. Otherwise, theplaintiff is responsible for her own protection, for example, through insurance. You can infer consent from the

    existence of a relationship through action or words. You can also imply consent from a course of dealing that

    the parties have had in the past. Finally, conduct that is normally accepted in society will not be called battery.

    Hackbart v. Cincinnati Bengals, Inc.Can there be a tort action for an injury from an intentional blow in a pro

    football game? If there are rules in the game to prevent the infliction of serious injuries, then the plaintiff

    cannot be construed to have given up his rights by playing. If the injury happened outside the course of playingthe game itself, its not governed by the rules of the game and you can be held liable for battery. Its presumedthat players consent to conduct thats within the rules, but not conduct thats outside the rules of play. In

    football, you may have an intentional tort in conduct that is outside the rules or normal customs of the game.

    Mohr v. WilliamsIn medicine, you consent to the procedure you consented to when you were capable of

    doing so. In other words, you have to wake a patient up and make sure that theyre okay with the new, different

    thing youre planning to do. If you dont, you may be found liable for technical battery. Consent may beimplied if a procedure is necessary to preserve life or limb and the person is unable to give express intent.

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    De May v. RobertsIs the plaintiffs consent valid if she was misled about one of the defendants being adoctor? The plaintiff had a legal right to privacy. Consent which is obtained through fraud is not valid consent

    Hart v. GeyselCan an action for wrongful death be brought when both parties consented to the fight eventhough it was unlawful? There are two views. The majority view says that both parties are liable to each other,

    while the minority view says neither can collect because they were both engaged in an illegal act. A plaintiffsconsent to an illegal act is not valid if the statute against the act exists to protect him.

    The minority rule tends to discourage illegal activity more. However, the majority rule might create anincentive for the winning fighter to pull back instead of risking a lawsuit for beating his opponent up too much.

    The incentives are not a whole lot different between the two rules under consideration in Hart. At best, we cansay there are two principles: (1) We discourage illegal activity. (2) We do not reward wrongdoers for their

    wrong conduct.

    If the person participating in the unlawful behavior is a person who is protected by statute, we wont holdconsent against them if they engaged in that behavior. License requirements for boxers are meant to protect the

    boxers. If they participate in illegal boxing, they can still sue because the statute was written to protect them.

    Self-defense

    You can use reasonable force in amount and duration based on the circumstances to protect your person . The

    force you use must beproportional in some sense. There must be an immediate threat of harm to trigger theself-defense privilege. Transferred intent does not hold in self-defense situations. You must have a reasonable

    belief that force is necessary, but you can be mistaken. Words are insufficient provocation to trigger the

    privilege of self-defense because language doesnt constitute assault.

    Self-defense rules: (1) You can only use deadly force to counter deadly force. Circumstances will vary:

    Detached reflection cannot be demanded in the presence of an uplifted knife. Juries will take into account

    that your behavior came about during an emergency and will judge you accordingly. (2) If you are in your ownhome, you have no obligation to retreat from deadly force in any jurisdiction. In some jurisdictions, there are

    so-called make my day laws that let you use deadly force against burglars and other trespassers. (3) There isno obligation to retreat if there is non-deadly force; you may use non-deadly force in response. (4) There is an

    obligation to retreat if youre confronted with deadly force outside your home, but the circumstances may vary.

    Defense of others

    In a defense of others situation, there are two different standards. One approach is that you stand in the shoes

    of the person who is attacked, and thus you will be treated like that person insofar as you have exactly the sameprivilege as that person. If you defend someone under attack, you have privilege, while if you defend the

    aggressor, you have no privilege. Some jurisdictions will allow a reasonable mistake under the circumstances.

    If you tried to help the aggressor thinking that he was under attack, you may maintain the privilege.

    Which rule is better? Is it a good policy to encourage people to get involved and stop a fight? You may not

    want to encourage vigilantism, and you want people to call the police. We generally want to discourage

    violence, especially against an adversary who is behaving peacefully.

    Defense of property

    When you defend property, what methods may you use? (1) You may use reasonable force under thecircumstances. (2) You cannot use a spring gun unless that is reasonable force. This is legally risky in a non-

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    dwelling house. (3) A balance must be maintained between protecting innocent persons and minimizing harmfrom dangerous interactions.

    Katko v. BrineyYou do not have the privilege to use force that may cause death or serious injury againsttrespassers unless the trespass itself threatens death or serious injury. So mistake does negate the privilege of

    defense of property. The force involved is limited in particular by the requirement that the peaceful trespasser

    first be asked to depart, except when the intruder is acting in such a way that a reasonable person would find

    that such a request is useless or cant be made in time. Most states have outlawed the use of spring guns and the

    like.

    What if you give fair warning of the spring gun? Does that make it more legal? No, the warning that there isdeadly force on the premises is not sufficient if the deadly force is unreasonable. It may help you legally to give

    notice if you have a vicious dog. What about barbed wire or spiked railings? They may be considered fair

    warning in and of itself.

    When can deadly or serious force be used to defend property? Such force can be used when your personal

    safety or that of your family is threatened. Such force can be used to prevent a crime. The more serious the

    crime, the greater the force that may be used.

    You cant eject a trespasser if doing so would put that person in unreasonable physical danger. This mightapply to making a drunken guest get in their car if the person is too drunk to resist. If personal safety is at risk,

    ejection is a more absolute right. There may be policy problems, however, if you apply this to a case wheresomeone is ill with a contagious disease.

    People cant do indirectly what theyre not allowed to do directly. Thus, spring guns and the like are illegal, ormore properly, if someone is hurt by oneyou will be liable. The problem is that machines do not have

    discretion like people do. The goal is to have safe ways to protect your property that provide notice of their

    danger, for example, barbed wire.

    If youre privileged to use deadly force in your home, reasonable mistake is a defense to shooting the wrong

    person.

    Recovery of property

    One who is wrongfully dispossessed of a chattel by force or fraud has the privilege to repossess that chattel withreasonable force through fresh or hot pursuit. This is a circumstantial decision made case-by-case by a

    defendant and judged case-by-case by a jury. Deadly force will probably neverbe justified to recover property.

    If you wait an hour or a couple of days before pursuing someone, its no longer hot pursuit and you must resortto the legal system to regain your property instead. If you voluntarily relinquished your goods to someone else,

    you have no right to take them back by force.

    Can a repo man use force to take back your stuff? We want to discourage them from being violent and instead

    have them go to court. In general, we dont want to increase the number of violent interactions that take place

    in society. We want to generally discourage self-help. Repo men must be peaceable.

    Detention for investigation

    A shopkeeper can reasonably detain someone who they reasonably believe stole an item from the shopkeeper.

    Whats reasonable is by and large a question for the jury. But what constitutes reasonable detention? The place

    where you are arrested should matter. The farther away from the store you are, the less likely we are to view

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    the detention as reasonable. The amount of force used would also affect the reasonableness of the detention.We also consider what the plaintiff said, the value of the item, whether an alarm went off, whether the person

    started running, and other relevant facts. We have the shopkeepers privilege because of the problem of

    shoplifting. If you find out someone took something several days later, you cant go after them yourself. Youmust use the legal system.

    Public necessity

    Public necessity kicks in when there exists a great danger that affects a whole community. The action taken inpublic necessity must be reasonable and done to protect the public. If the government takes your stuff, you

    must be compensated, unless you were the one doing the wrong that caused the taking.

    A private citizen will be put into this position very rarely. Public necessity is not a privilege only for public

    officials. Public necessity justifies any act that is necessary for the public good whether performed by a publicor private official. Private citizens may not be so quick to act because they insure.

    Surocco v. GearyIf you destroy someones house in good faith and out of necessity, can you be held liable for

    damages? The common law says that when it is necessary to give up one house in the interests of society(publicnecessity), the person whose house is sacrificed cant sue. Government officials often have immunity.

    Why do we hold private citizens to a higher standard of liability? We generally dont want citizens to take thelaw into their own hands. We also dont want to punish public officials for doing their job.

    Private necessity

    This is a complete defense to trespass. The rule is that you pay for the harm you cause. You can take

    advantage of someone elses property to protect your own property, but you must pay for the harm caused. This

    rule forces people to make an economically efficient decision. Actors will balance the value of their own

    property that they are protecting with the harm that will be caused to another persons private property. The

    rule is that you mustnt harm someone elses property just to gain for yourself. If a public highway is blocked,you can cut through adjacent land to get around the obstruction.

    Vincent v. Lake Eric Transp. Co.Does the defendant have the privilege by necessity to moor the ship suchthat the defendant is not liable? The defendant has apartial privilege to protect its private property from

    serious harm. The defendant will be subject to liability to anyone who is injured.

    Discipline

    What kind of force can you use in an educational setting? You must use reasonable force. In the old days, theteacher would stand in loco parentis (in place of the parents), and thus you could use the same force parents can

    use. Nowadays, we look at teachers as agents of the state who must do what is educationally reasonable. Also,

    in the old days, there was parent-child immunity, whereas nowadays children can sue their parents. Most

    people today believe that teachers have less of a privilege to discipline children than parents do.

    Justification

    Dont use this as a defenseunless youre really sure it fits the parameters of the case. This defense pops up

    when no other defense to the tort will work but for some reason we dont think it would be fair to hold thedefendant liable. If there is no serious harm to the public, the defendant is not justified.

    Sindle v. New York City Transit AuthorityThe plaintiff was trying to crawl out the window of the bus to

    escape when the bus driver was taking the bus to the police station because the passengers were vandalizing the

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    bus. The bus driver is protecting public property. The court seems to be interested in the fact that the bus driverdoes not have a private interest at stake except for the safety of his person. You cant protect the bus at theexpense of the children. However, you can reasonably weigh harm to public property with inconvenience to

    persons.

    What factors are relevant in determining whether the bus driver was justified in his actions? (1) What is the

    manner and place of occurrence? (2) Are other courses of action feasible? Intentional torts should be your last

    resort. (3) Was the defendant acting in the public interest, protecting persons and property? (4) Did the

    defendant have the duty to aid in the apprehension of a wrongdoer? (5) Was the defendants conduct acceptableand reasonable under the circumstances?

    Punitive damages

    These are sums of money that are awarded in addition to any compensatory damages. These damages areavailable for intentional torts, but not for negligence. In order to get punitive damages, you must show

    intentional or reckless behavior. The judge decides whether the jury gets to consider punitive damages.

    Statutes by state are limiting or eliminating punitive damages. States also adopt different standards of proof in

    awarding punitive damages. Not very many states use the preponderance of the evidence standard of proof

    for punitive damages, but rather use clear and convincingevidence which falls between preponderance andbeyond a reasonable doubt.

    Purposes for punitive damages: We want to deter morally reprehensible behavior of a particular defendant and

    discourage others from doing the same in the future. Its like a criminal punishment or fine. It is an incentive

    for a plaintiff to bring a suit and an incentive for lawyers to take the case. It can also help finance sociallybeneficial litigation that a plaintiff might not otherwise be able to afford. It is alleged that compensatory

    damages are systematically insufficient. Money is merely a benchmark for what the harm is.

    Whats bad about punitive damages? We think awards should be proportionate for fairness reasons. When youpunish a wealthy defendant, the plaintiff gets a windfall and the plaintiff gets the benefit of the defendants

    wealth. This windfall may harm other plaintiffs who have claims against the defendant. If youre punishing thecompany, there are probably better places for the money to go than the plaintiffs pocket. We impose whatamounts to a criminal sanction without the protections of the criminal law. The jury has no firm guidance as to

    the determination of punitive damage awards. Punitive damages are often so large that while they may not

    cause a company to go bankrupt, they may discourage companies from acting at all. There may be aconstitutional Due Process problem of notice.

    Gryc v. Dayton-Hudson Corp.The plaintiff sued the manufacturer in a product liability suit. Focus on the

    extent to which the defendants are subject to federal safety regulation. What were the federal standards at thetime? It turns out that the product met the standards; however, that doesnt make you immune from suit. You

    cant totally trust the government to tell you what to do. Its not sufficientto be in compliance with federal

    standards.

    BMW v. GoreIf you can only prove economic harm, you will not get as big of a punitive damage award as ifthere were other types of harm.

    Price v. Hartford Accident and Indemnity Co.Prices insurance company refused to pay a claim. Price triedto sue to get them to pay.

    Why should punitive damages be excluded from insurance coverage? The costs of punitive damages should not

    be passed along to the general public. The punishment effect of punitive damages should not be diluted by

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    being able to pass them along to your insurer. Why should we allow punitive damages to be covered byinsurance? We should not impede the right of private individuals to collect the benefit of the bargain from

    existing contracts with insurance companies.

    Negligence

    What is negligence? (1) A duty to exercise reasonable care under the circumstances, (2) a breach of duty, (3)

    causation (cause-in-fact/but for causation and proximate/legal cause)evidence that the breach of duty

    causeddamages, and (4) the damages themselves, which must be actual, not presumed from the factof the tort.

    Damages for negligence: (1) Lost wages, (2) medical expenses, (3) pain and suffering (amorphous, the targetfor tort reform), and (4) future losses (not related to your inability to work or medical expenses). Pain and

    suffering are the meat and potatoes of tort practice.

    Blyth v. Birmingham Water Works Co.The defendants are negligent only if they fail to do what a reasonable

    person would have done or do something a reasonable person would not have done. Its an amazing frost! Isthere negligence? The court says no because the frost was not foreseeable. One may not be found liable for

    negligence unless you fail to do something a reasonable person would have done, or do something that no

    reasonable person would have done. You dont build water mains to withstand a once in a lifetime event.

    Duty is what a reasonable person does under the circumstances. Reasonableness is based on the circumstances:

    (1) Foreseeability of harm, (2) feasibility of protecting against harm, (3) costs of precautions, and (4)availability of alternatives. The Hand formula provides another way to think about reasonableness: is a certain

    precaution efficient under the circumstances? If the probability of a certain harm is very low, it may not be

    economically efficient to take precautions, even if after the fact we know it would have been good to prepare forthat harm.

    According to Hand, you must consider whether the burden of adequate precaution is less than the expectation

    value of the loss (probability of the loss times the actual value of the loss). Scholars say that the only trulyquantifiable term in this equation is the cost of the precautions. The plaintiff must prove that there is a solution

    that would have prevented the harm. There are a lot of different ways to prevent harm. The formula is justguidance to help us decide whether conduct was reasonable under the circumstances. Its not a hard and fastrule.

    The Hand formula

    United States v. Carroll Towing Co.If no one is working on a barge and the barge causes injuries to others, is

    the owner of the barge liable? Learned Hand says that the owners duty depends on three variables: (1) Howlikely is it that the barge will break away from its moorings? (2) How big an injury did it cause? (3) How

    expensive would precautions be? If the expense of precautions is less the expectation value of the injury, then

    the court will conclude that the owner had a duty that was breached.

    How does foreseeability play into reasonableness? Reasonable people foresee harm. Reasonable people only

    take precautions against harms that are foreseeable. You can only take precautions against foreseeable harms.

    If we know someone is negligent, we hold them responsible for all the foreseeable harms from that negligence.

    Davison v. Snohomish CountyWas the county negligent in failing to install guardrails that are capable of

    preventing a car from leaving the road? As a matter of public policy, we want roads to be built and maintained,

    and thus we cannot require safety measures that would make roads generally unaffordable. In this case, youmust weigh the cost of making roads 100% safe against the benefit of having any roads at all.

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    The reasonable person

    A reasonable person takes precautions againstforeseeable harm. The first question, therefore, is: ex ante, was

    there foreseeable harm? Even if there was foreseeable harm, there still may be a finding of no negligence. If

    we feel that its not feasible to take the precaution and thus protect against the harm, we may let you off thehook. This is both a cost question and a technology question.

    What a reasonable person does is weigh the costs and benefits of a particular action. Reasonableness requires

    preparations for normal circumstances. The reasonable person considers the alternatives available to preventharm. Reasonable people adhere to community norms. Being reasonable is relative to the community in which

    you live. That means that we do not start with a blank slate. There are matters of common knowledge weexpect reasonable people to know and hazards we expect reasonable people to take into account.

    The reasonable person standard is an objective rather than a subjective standard. An objective standard isclearer and better defined. It creates an incentive for people to discover what the fixed standard of care is. An

    objective standard provides precedent for future cases. On the other hand, an objective standard is more

    demanding of the defendant.

    On the other hand, if the standard is subjective, theres a problem of notice because its impossible to find out

    just what is expected of you in particular. If you use a subjective standard, each case is basically a whole newcase that can be decided any way you want.

    Custom

    Custom is not dispositive of what reasonable behavior is. It can be evidence of negligence or the lack thereof,

    but its not the end of the story. It may be that compliance with custom is sufficient, but if the court thinks the

    custom itself isnt reasonable, you can still lose.

    Trimarco v. KleinAn accepted practice can be shown to be a legal duty. Does the custom require thelandlord to replace the glass? The custom seems to be that when it breaks, you fix it. What do we learn about

    custom from this case? (1) The custom must show evidence of negligence. (2) The custom must be directly onpoint. (3) Sometimes we may use custom, while other times we will use B < pL.

    Custom can cut both ways: the judge will decide whether custom evidence comes in. If it gets in, it will usually

    resolve the case against the defendant if it shows that the defendant did not comply with custom. If thedefendant didcomply with custom, the defendant may not get off the hook if the custom itself is negligent.

    Custom does not set the standard of care.

    If there is a custom, we shall assume it is relatively easy and cheap to comply with; that is, we assume that

    customs dont arise unless there are substantial dangers to be avoided.

    Physical impairments

    Physical impairments are treated differently than mental impairments.

    Roberts v. State of LouisianaThe blind concessionaire bumps into an old man who sues the state ofLouisiana, which employs the blind guy. Even though a physical impairment may not be observable, we will

    take it into account. A blind person must act as a reasonable blind person would do under the circumstances.

    Having physical ability that is superior means you must exercise your abilities.

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    What if the plaintiff is intoxicated and is harmed? Thats a decision that you make. You may be negligent if

    you dont adhere to the reasonable person standard while drunk. We dont want to encourage people to argue

    intoxication, and some would argue that we think drinking to get drunk is an anti-social behavior.

    Children

    Generally, children are judged against other children of like age. The only time we dont follow that rule is

    when a child engages in an adult activity. Some courts will hold children engaged in an adult activity must

    satisfy the standard of care of a reasonable adult. Other courts find that children only must satisfy this standardwhen they participate in an inherently dangerous activity.

    Why a different standard than adults?

    Robinson v. LindsayBilly Anderson was riding a snowmobile and he was pulling a girl on an innertube. Thegirl lost her thumb and she sues the owner of the snowmobile. Should a child be held to an adult standard of

    care? The trial court inRobinson said no. The appeals court says that children must be held to an adult

    standard when they are doing something inherently dangerous.

    When children act like children, they should be judged as children. But when they act like adults, you should

    hold them to an adult standard of care. Or, when they engage in inherently dangerous activities, the court mayhold a child to an adult standard of care.

    Can I, as an adult, adapt my behavior so that a child doing an adult activity wont harm me? In other words, can

    you tell who is engaged in the activity?

    For example, if a nine-year-old drives a car and gets into an accident, to what standard shall we hold him to?

    You may argue that driving is an inherently dangerous activity because we cant tell who is driving the car.

    You also may argue that the child should be held to a childs standard.

    Insanity

    Whats the standard for people with mental disabilities? Its the reasonable person under the circumstances

    standard. We want to compensate plaintiffs. Also its hard to prove whethersomeone is insane or not. Also,

    potential plaintiffs may have trouble telling just who is insane or not insane. Mental capacities are not treated as

    exempting circumstances. You will always be held to the reasonable person standard. In general, the insane do

    not get very good treatment if they commit a tort.

    There is no jurisdiction that would rule that if you know youre insane, and you get on the road, youre not

    liable. How is this different from heart attacks, strokes, and so on? Well, you cant prove that you had a sudden

    bout of insanity, and we dont want to have to sort out the truth of insanity pleas. We leave that to the criminal

    courts. Its hard to distinguish true incapacity from merepoor judgment.

    Is it fair to treat people with mental impairments one way and people with physical impairments differently?

    This is a practical decision derived from the fear of false claims. The court does not want to get into the

    business of distinguishing real from fake mental impairments. On the other hand, we will bend over backwards

    not to interfere with the independence of a person with a physical disability. Were not too concerned,however, that someone with a mental disability is liable every time.

    Professional standards of care

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    The objective standard is the typical reasonable person under the circumstances. The professional standard isdifferent than that. The standard of care used in cases involving professionals is acting with the knowledge,training, and skill of an ordinary member of the profession in good standing. The standard for doctors is not

    what a reasonable doctor would do. Professionals get a different standard of care: its what an ordinarymember of the profession in good standing would do.

    Heath v. Swift Wings, Inc.The issue was whether the jury instruction was correct in this negligence case. The

    controversy was whether the pilot, Heath, should have been held to the standard of a reasonable pilot in general

    or a reasonable pilot similar to Heath.

    Hodges v. CarterAttorney malpractice claims have been more successful than teacher malpractice claims, but

    they are still tough. We dont want to tie the hands of attorneys against making any decisions. But what are therequirements? (1) You must act with the knowledge and skill of an ordinary person in your profession. (2) You

    mustnt fail to use reasonable care and diligence. (3) You mustnt fail to exercise your best judgment inattending to your work.

    Medical malpractice

    Boyce v. BrownBasically, this is a case where it appears the cure was worse than the sickness. But is it

    negligence? Custom is important to the determination of a medical malpractice case. Its almost dispositive insuch cases. In most areas, custom alone is not evidence, but in medical malpractice, it is feared that juries dont

    know enough to decide if malpractice happened. Were not sure if this is a fair result. Outside of the medicalprofession, custom is not controlling or necessarily even admissible.

    Is it logical to think that doctors get a slightly better standard for themselves because they have professionalobligations that prevent them from setting a lower standard to serve other interests? Do doctors have an

    incentive to collectively lower their standards to keep from being liable? In other professions, we do not allow

    their own custom to state the standard. Why dont we do that with doctors? Should doctors be given more

    freedom?

    Morrison v. MacNamaraShould the defendant be subject to the local standard of care or the national standardof care? The defendant must exercise the degree of reasonable care and skill expected of members of the

    medical profession under the same or similar circumstances. The locality rule says that doctors should only bemeasured against other doctors in their community. This court abandons the locality rule for the first time in

    this jurisdiction. The court rules that nationally certified medical professionals should be held to the nationalstandard of care.

    Informed consent

    Informed consent has three different standards: (1) The reasonable doctor standard (the majority standard), (2)

    the reasonable patient standard, and (3) the subjective patient standard (small minority).

    In a reasonable doctor jurisdiction, a doctor testifies as to what doctors would do. In a reasonable patientjurisdiction, its a little trickier because its hard to contemplate such a thing as a patient expert. In this case,

    you use a reasonable man or reasonable person standard. The so-called subjective patient standard says

    that the patient can say what they would have said and its up to the jury to consider the credibility of theplaintiff.

    Only material risks must be divulged. But how can you judge this? Do you judge material risks by the

    subjective view of the patient? The patient might say that this would have been a material riskto me. Or, onthe other hand, we may set an objective standard and ask what would constitute a material risk for a reasonable

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    patient or doctor. So the questions are: (1) Is this a material risk? (2) Would the patient have agreed to gothrough with the procedure if this risk had been disclosed? The material risk must be something that really

    matters to the health of the patient. Can we quantify material risks? In determining materiality, it matters

    both the probability of the risk and the gravity of the possible harm (think of pL in the Hand formula). Thedoctor must provide information about alternative treatments as well as the risks of non-treatment.

    The strict locality rule has been largely abandoned. Some jurisdictions use a rule that says doctors can be

    judged against doctors in a similar community under similar circumstances. Other jurisdictions use a national

    standard of care, especially when the doctor in question is nationally certified.

    Exceptions to informed consent: (1) You dont need to tell the patient anything the patient knows or should

    know. (2) You dont need to disclose information that would be detrimental to the overall best interests of the

    patient. (3) You dont need to disclose in an emergency situation where consent is impossible to obtain.

    Moore v. The Regents of the University of CaliforniaDoes a physician have a duty to inform the patient of his

    economic interest in a particular course of treatment? A physician must tell the patient if he has personal

    interests that may affect his professional judgment. If he fails to do so, he may be liable for malpractice based

    on breach of informed consent.

    Automobile guest statutes

    There used to be legislation that prevented private passengers (i.e. not cab fares) from suing drivers in anaccident. The theory was that this was necessary to prevent insurance fraud. Ultimately, these statutes were

    found unconstitutional because they treated some people differently than others. The importance of these

    statutes is a demonstration of negligence plus, aggravated negligence or gross negligence.

    If you drive negligently and you get into an accident, no punitive damages will be allowed. However, if you

    drive negligently and are drunk, this could be negligence plus, and you could be subject to punitive damages.

    Automobile guest statutesGuest statutes are where legislation prohibited passengers from suing drivers of the

    vehicles in which they were guests. The thinking was that guests and drivers would likely conspire to bilkinsurance companies for money. Guests couldnt sue drivers for negligence, but could sue for negligence plus.These statutes are unconstitutional, but these statutes helped define extreme negligence or willful or wanton

    misconduct, which could get you punitive damages.

    A classic example is where youre driving carelessly andyoure drunk. That would be an example ofnegligence plus and could amount to wanton or willful misconduct.

    Rules of law

    Pokora v. Wasbash Ry. Co.Did the plaintiff meet the legal standard of duty when he approached the railroad

    crossing? The existing rule was that a driver must stop, look, and listen, as well as get out of his car and lookaround if necessary. This Court limits the rule by saying that this plaintiff had no such duty unless he could

    have safely stopped such that he could have gotten out and looked around. The Supreme Court suggests that

    questions like this should go to the jury. The Court is willing to hear evidence of what is customary, and thats

    good information, but it is not dispositive to the case. The jury will hear evidence in cases like this of whetherthe rule was right in a given case or if it doesnt really apply correctly.

    Negligence per se

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    Negligence per se sets up two elements of the negligence cause of action: duty, and breach of duty. The judgemakes the determination of whether a particular statute applies based on what harm the statute was designed to

    prevent and who it was designed to protect.

    Negligence per se satisfies the negligence part of the negligence formula. You still need to prove causationand damages in order to win. To test for negligence per se, you must find out what injury a criminal statute is

    intended to prevent and who youre trying to protect from that injury. If the plaintiff is actually the person you

    were protecting and suffered the injury you were trying to prevent by the statute, then youll have negligence

    per se. On an exam, make sure to put these questions down and answer them.

    You must convince the judge to adopt the statute to set the standard of care. The judge must consider whetherthe statute describes behavior that is what a reasonable person would do under the circumstances. Then you just

    have to show causation and damages. If the statute applies, you may consider as the defendant whether there

    are any excuses from the Restatement you can use. If the statute doesnt apply, that doesnt mean the claim willautomatically be dismissed.

    The majority rule is that an unexcused violation of statute is negligence per se. This is the majority rule. Otherjurisdictions may argue that an unexcused violation of statute is a rebuttable presumption of negligence. This isthe minority rule. This will likely include the Restatement excuses. Very few jurisdictions merely accept

    violation of statute as evidence of negligence. Evidence of negligence means that it is evidence; it is someinformation to the jury that the defendant was negligent. But it is not the whole story; rather, it is just evidence

    for the jury to weigh.

    Factors to consider for negligence per se: (1) Does a common law duty prohibit this conduct? (2) Does a statute

    clearly define the prohibited conduct? (3) Does application of negligence per se yield strict liability? (4) Will

    liability result in financial ruin that is disproportionate to the seriousness of the defendants conduct? (5) Didthe injury result directly or indirectly from violation of the statute?

    The Restatement excuses: (1) The violation is reasonable because of the actors incapacity. (2) The actorneither knows nor should know of the occasion for compliance. (3) The actor is unable to comply after

    reasonable diligence (impossibility defense). (4) The actor is confronted by an emergency not due to his ownmisconduct. (5) If the actor complied, greater risk of harm would result.

    Is it negligence per se when a child violates a statute? Say the child jaywalks. Should the child be judged as an

    adult? The child may be able to make the argument that the child doesnt have the capacity to know. The child

    would also be judged on a childs standard rather than an adult standard. The childs standard would be lower

    than the adult standard.

    Why have negligence per se? (1) It would be weird for a court to approve conduct as reasonable if it violates a

    criminal statute. (2) If the legislature sets the standard of care, you dont need the jury to say what behavior is

    reasonable. In other words, there is better evidence of societys views on what behavior is reasonable and

    unreasonable. (3) Negligence per se also deals well with cases of recurring conduct. If certain statutes will betreated as the standard of care, society will be on notice of how they have to act in order to be considered

    reasonable.

    Should the absence of a required license, by way of negligence per se, automatically make you liable for any

    harm you cause? Courts wont accept the absence of a license as negligence per se, but it can be used as

    evidence. Its dangerous to say that the licensing statute sets the standard of care, because the license may not

    have anything to do with how good the person is at their profession. Legislatures can circumvent thispresumption.

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    Ney v. Yellow Cab Co.What was the intent of the statute? Did the violation of the statute cause the injury, ordid the act of the thief intervene such that the violation was not the proximate cause? A standard of conduct

    established by statute will be adopted when, among other things, it is designed to protect against the harm that

    actually resulted.Note that you wont be held responsible for a tort if an intervening criminal act actuallycauses the harm exceptwhen the criminal act isforeseeable.

    Perry v. S.N. and S.N.The absence of an equivalent common law duty should be considered when decided

    whether negligence per se applies to the statute in question. Beyond this, there are a variety of factors a court

    may consider in deciding whether to create a new legal duty.

    Res ipsa loquitur

    Res ipsa loquitur is a doctrine that applies to cases when there is little doubt that the defendant is at fault. For

    example, barrels dont just fall by themselves in the absence of negligence. Res ipsa loquitur shifts the burden

    of proof to the defendant by saying this doesnt happen unless theres negligence. Res ipsa loquitur isintended to cure the unfairness of the defendants superior knowledge. However, its a double-edged sword and

    it could result in actually creating unfairness. Res ipsa loquitur is a last resort claim. Only rare cases trigger

    res ipsa loquitur. If you have direct evidence in regard to the alleged negligence, you dont need and wont getres ipsa loquitur.

    Three factors for res ipsa loquitur: (1) The accident does not happen in the absence of negligence. (2) The

    defendant had exclusive control of the instrumentality that caused the injury. (3) The plaintiff has done nothingto contribute to his or her injuries. Note that all three of the elements must be present in order to use a res ipsa

    loquitur theory at trial.

    Ybarra v. SpangardUsually, you cant do res ipsa loquitur when there are multiple defendants. However, we

    are sympathetic to Mr. Ybarra because it seems there is no other way for him to recover and because the

    defendants have such superior knowledge. Whats the problem with multiple defendants in a res ipsa loquitur

    case? You cant prove which particular person was negligent. What other problem do you have? You cantprove which instrumentality caused the injury. The plaintiff has no information at all.

    These are the defenses: (1) There are lots of defendants. (2) There are lots of instrumentalities. (3) The controlof the instrumentality that caused harm is uncertain. Therefore, as a consequence of having many defendants, it

    is hard to prove the element ofexclusive control.

    The real justification is that we feel that the defendants have superior knowledge and we want to use res ipsa

    loquitur to smoke out the defendants and make them testify.

    Burden of proof in res ipsa loquitur

    Res ipsa loquiturthree views of burden of proof: (1) Res ipsa loquitur creates a permissible inference of

    negligence: the jury can say we agree with you and find for you or we disagree with you and find againstyou. (2) Res ipsa loquitur creates a rebuttable inference of negligence that the jury can reject: the defendant

    must affirmatively rebut the inference. (3) Res ipsa loquitur shifts the burden of proof to the defendant: the

    defendant has to prove that they didnt do it.

    Causation

    Actual causation

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    Actual or but-for causation asks the question: Did the defendants negligent conduct cause the plaintiffs harm?

    But for the negligent conduct of the defendant, the plaintiffs harm would not have occurred. We dont wantdefendants to be negligent; however, we wont hold them liable if the harm would have happened either way. If

    the accident would have happened even in the absence of the defendants negligence, then the defendant is off

    the hook. In some sense, the defendant causedthe accident, but its not theirnegligence that caused the

    accident. Just because someone causedsomething doesnt mean that its their fault. On the other hand, we may

    hold some defendants liable if their negligence significantly increases a risk.

    Perkins v. Texas and New Orleans Ry. Co.Was the trains excessive speed the actual cause (cause-in-fact) ofthe collision? You cant sue for negligence unless such negligence was an actual cause of the harm.

    Negligence is an actual cause if it was a substantial factorin bringing about the harm.

    Gentry v. Douglas Hereford Ranch, Inc.Were the defendants negligent as a matter of law? There must be

    proof of causation in order for a negligence action to lie. Furthermore, mere speculation or suspicion is not

    enough to sustain an action or to defeat a motion for summary judgment. There may well be faulty stairs in

    this case, but were they the actual cause of the accident?

    Reynolds v. Texas & Pac. Ry. Co.[W]here the negligence of the defendant greatly multiplies the chances ofaccident to the plaintiff, and is of a character naturally leading to its occurrence, the mere possibility that it

    might have happened without the negligence is not sufficient to break the chain of cause and effect between thenegligence and the injury. How much is the likelihood of falling increasedby no lights and no handrails?

    This is the operative question for the jury. They find that this increase is significant. The jury finds that, morelikely than not, the lack of lights and railing caused the accident rather than the weight of the plaintiff.

    Kramer Service, Inc. v. WilkinsWas the hotels negligence the actual cause of the skin cancer? The plaintiff

    must prove as an element of the negligence cause of action that the defendants negligence was the actual causeof the harm done to the plaintiff. How is this case different thanReynolds (the fat lady falling down the steps)?

    It could be argued that not lighting the stairs is far more likely to cause a fall than a cut could cause cancer.

    There is an expert testimony issue here: the plaintiffs expert says that there may be causation, while the

    defendants expert says there is no causation.

    Wilder v. EberhartThe plaintiff had her stomach stapled. Her esophagus was injured. She sued for medicalmalpractice. The plaintiffs experts said that the injury could have only been caused one way. The defendantsexperts were going to say that there may be otherpossible explanations. The court did not allow the latter

    testimony, focusing on the idea that the explanations are onlypossible. You cant let the plaintiff control the

    case by having an expert who is willing to say that this is theway it happened and thus short-circuiting the

    defendants opportunity to explain alternative causes. The explanation does have to add up to a rebuttal of the

    plaintiffs case.

    Loss of chance

    You can recover for increased risk of harm. If you can establish by expert testimony that your risk of someharm is increased by a certain percentage, you can recover for that. Its really hard to prove, though. You can

    either show that (1) the harm was more likely than not, or (2) there was a loss of the chance that the harm would

    be avoided (less than 50%).

    Under the traditional rule, you must show at least a 50% loss of likelihood of life. Under the rule ofHerskovits,

    you canpartially recover for a less than 50% loss of likelihood. In order to sue under the loss of chance

    theory, the loss of chance must be substantial: it cant be 1% and probably cant be 5%.

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    How do you calculate the damages? You could multiply the loss of chance times the full damages. In some

    jurisdictions, on the other hand, its up to the jury. Still other jurisdictions say that the chance lost is preciselythe loss that should be awarded.

    Scientific testimony

    Daubert v. Merrell Dow Pharmaceuticals, Inc.This case deals with what expert testimony we will allow in

    negligence suits. This case supercedes an older rule that came from Frye: Expert testimony must be based on

    scientific principles that are generally accepted in the scientific community. Under the newDaubertrule, thetrial judge must be satisfied that the scientific knowledge is (1) helpful to the jury and (2) derived from a decent

    scientific method (based on good grounds). This is a pretty broad standard. A trial court judge is thegatekeeper. If he or she doesnt let in the scientific evidence that the plaintiff or defendant want to present, itwill have an impact on proof of causation.

    The Supreme Court also gives some factors to be taken into account: (1) whether the theory or technique is

    generally accepted, (2) whether the theory has been subject to peer review, (3) whether the theory can be tested,

    and (4) whether the error rate is acceptable.

    Concurrent causes

    The biggest problem with but-for causation is having two causes acting at the same time. When two negligent

    forces act at the same time, how do you figure out liability? How do you establish that either one is the but-forcause? When separate acts of negligence combine to produce a single injury, each tortfeasor is liable even

    though neither act alone would have caused the injury.

    If you have two forces acting at the same time and both forces are the possible cause, you just sue both and sort

    it out later. When two separate acts of negligence combine to produce a single injury, each tortfeasor is liable

    even though neither act alone would have caused the injury.

    Substantial factor test

    The but for test doesnt work when two actors are negligent and act at the same time. When you have two

    negligent actors or one negligent actor and one innocent force, you must use the substantial factor test tofigure out who is at fault. In cases like this, the but for test fails. What constitutes a material or substantial

    factor? What do we mean by material or substantial?

    Anderson v. Minneapolis St. P. & S. St. M. R.R. Co.Say there is a negligent actor and an innocent actor. A

    fire that was started negligently by the defendant combined with a fire of unknown origin. Is the railroad liable?

    Is the defendants fire a but for cause of the plaintiffs injury? Clearly no. We dont know which fire did it,so how do we decide who to hold responsible? In this case, the defendant is found 100% responsible.

    There are some alternatives to charging the defendant with the full liability. The Restatement allowsapportionment between the defendant and the innocent cause. The defendant can argue that he should be, at

    most, 50% liable for example.

    Summers v. TiceCan both defendants be held liable when only one was in fact responsible? Both defendantsmay be held liable if both were negligent. This is a very important case that is followed throughout the country.Summers is a theory of alternative liability. The burden of proof shifts to the defendant if: (1) Each defendant is

    shown to be negligent, (2) the actual wrongdoer is one of the defendants, and (3) the nature of the accidentmakes it impossible to prove negligence either way. The Summers theory is universally accepted.

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    How can the plaintiff win in a case like this? The court decides to shift the burden of proof to the defendants.

    How does the court justify this? If they dont shift the burden of proof, the plaintiff will be without a remedy.Compare this situation to the one in Ybarra, where there was asymmetric information between the plaintiff and

    defendants. However, you can distinguish this case from Ybarrabecause the two hunters arent working as ateam. Theres more reason to shift the burden when the defendants are acting in concert.

    If we force the defendants to fight each other, they might come forward with information they would otherwise

    be unwilling to provide. There are several reasons to shift the burden of proof to the defendants. The view is

    that, as in res ipsa loquitur, defendants have better access to information and they will be better able to establish,for example, which bullet hurt the plaintiff. We know these defendants were both negligent. We know that the

    defendant who didnt hit the plaintiff is still culpable in some sense because they were responsible for obscuringthe evidence.

    Sindell v. Abbott LaboratoriesThe plaintiff alleges that DES caused her to get cancer. The plaintiff sued fivedrug companies that represented 90% of the market, but the plaintiff cant prove which manufacturer made the

    particular DES that the plaintiffs mother took. The trial court dismisses the action and the plaintiff appeals.

    There are several possible theories: (1) The Summers theory shifts the burden to the defendants if all thedefendants are found to be negligent. (2) The companies worked together in a conspiracy to sell a dangerous

    drug. (3) The theory of enterprise liability says that if the plaintiff can show by the preponderance of theevidence that all the defendants are before the court and that one of the defendants manufactured the DES then

    the court will shift the burden of proof to the defendants. (4) The theory of market share liability says that allthe manufacturers would be held liable, but only in proportion to their market share in the drug.

    In this particular case, not allof the defendants are before the court, so we cant use enterprise liability.

    Why should there be liability in Sindell, according to the court? (1) We shouldnt let wrongdoers off the hook

    and leave the innocent without relief. (2) The court claims that defendants are better situated to bear the cost or

    risk of harm. (Cole thinks this is a little bogus.) (3) We should deter other companies from selling dangerousdrugs by raising the specter of liability down the road.

    In DES cases, the theory ofmarket share liability is used. All the manufacturers of a substantial share of DESare brought before the court. Each defendant is liable for the portion of the judgment that is proportional to

    their market share unless the defendant can rebut the connection between their particular drug and the harm

    done. How is market share liability different from Summers? In market share liability, you dont have all of thedefendants in front of you.

    Proximate causation

    Actual causation is usually very easy to prove, but were not going to hold defendants liable solely on this basis.

    We only want to hold defendants liable when we think they could have foreseen orpreventedthe harm they

    caused in some sense.

    The rationale for proximate cause is that were trying to changedefendants behavior. We should only hold

    defendants responsible for harm that they could reasonably foresee, with some exceptions and limitations.What kinds of harm might I reasonably expect to occur if I am negligent in a particular way? The goal of the

    law is to keep individua