Torts I Outline BaumanGeneral Notes:Tort o A civil wrong, other than a breach of contract, for which the law provides a legal remedy Legal remedy= monetary damages Law designed to give compensation to parties that suffered on the hands of others Tort Law represents the problem of harm between two relative strangers. Goal of Tort System o Make people think about what they are doing before they do it

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Procedural Steps for a typical Tort Case - See notes 3 Types of Torts: - Intentionally caused harm - Negligence o Harm caused by a lack of due care - Strict liability o Does not require any fault to be placed on the defendant Liability based on fault - Fault based system of Tort Liability o Harm that is intentionally caused o Harm that is caused as a result of carelessness (negligence)

OutlineI. II. III. IV. V. VI. VII. VIII. IX. X. Intentional Torts Defenses to Intentional Torts Negligence Negligence (Odds and Ends) Multiple Tortfeasors Defenses to Negligence Limited Duty Premises Liability Damages for Personal Injuries Wrongful DeathFITTED CAB 1

I. Intentional Torts

o False imprisonment, Trespass to chattels, Trespass to land, (Intentional Infliction) Emotional Distress, Conversion, Assault, and Battery Intent o What is the meaning of the intent necessary for an intentional tort? Intent as purpose or desire to accomplish a particular result. Knowledge that a result is substantially certain to occur o No intent, then it is negligent and you cannot be intentionally negligent!!! o Requires an affirmative action that at its undertaking had an intent to harm or cause offensive contact (Shaw- Second Hand Smoking Case) Intentional acts are: o A voluntary act with the intent to cause a specific action o Act has to be a voluntary muscular contraction Ex. Sudden fainting not an intentional act o Might not have actual intent, but substantial certainty of result is sufficient to consider the act intentional (Dailey-Child Moving Chair Case) Transferred Intent o Intent can transfer from person to person, as where A intends to hit B, misses, and hits C by Mistake. o Intent can transfer from tort to tort, at least in some circumstances. Compare the intent element of Battery with the intent Elements of Assault. o Hypo: Someone is in an extremely crowded room and purposely fires a gun, substantially certain that the bullet fired will strike someone o Doctrine applies to FIT BAT False imprisonment, Trespass to chattels, Trespass to land, Battery and Assault o Ex. Gun was pointed at woman, but her niece experienced the fear that the gun would eventually be pointed at her (Wachovia- Repoman Case) Intent transferred from the woman to her niece

1. BatteryThe intentional tort which protects a persons interest in freedom from unwanted bodily contact Unexcused and harmful or offensive physical contact intentionally performed

The Elements of Battery An actor commits battery if he acts intending o to cause a harmful or offensive contact OR o to cause imminent apprehension of such contact AND Harmful or offensive contact actually results The meaning of Contact - Contact with Ps body or something closely connected to it. - Lack of consent to contact is often the key to offensiveness. Determining liability for Battery o Are all elements present? o Was there consent? o Was the contact privileged? Ex. Police offer

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Examples: - Man carrying a lunch tray has it snatched up in an offensive manner (Fisher-Plate Touching Case) - Bumping in to someone in the hall is not a battery - Two boys on the playground and one playfully kicks the other in the shin, not knowing that the boy had a wound under his jeans. The kick caused the wound to open and became infected. Considered battery by the court - A punches at B but instead hits C o Battery due to transferred intent Defenses (See II. Defenses) a. Consent b. Self-defense c. Defense of Others d. Defense of Property

2. AssaultThe intentional, unexcused act that creates in another person a reasonable apprehension of immediate harmful or offensive contact

Elements of Assault An actor commits assault if he acts intending o to cause a harmful or offensive contact OR o to cause imminent apprehension of such contact AND The actor has the apparent present ability to inflict the contact, AND Apprehension of harmful or offensive contact actually results. What does apprehension mean? - They wanted to steer clear of using the word fear, but mean to say that a person anticipates a harmful or offensive act. Examples: - Pointing a gun at someone is assault - A man comes up from behind you with a gun pointed at you, but you never see him. This is not an assault because you never saw him and therefore have no apprehension of the battery. Must have all elements for it to be an assault. - Words alone are not enough to constitute an assault unless they are a case like the man causing another to jump off cliff because he told him there was a rattlesnake on his foot. - If someone says he is not scared of a certain action, this does not wipe out his cause of action for assault. (Apprehension is not the same as fear in the law) - If it is a conditioned statement then it is not an assault ( if you do that again, then I will hit you) = no assault due to no immediate apprehension - You are a big guy and a little girl comes up to you with a couch cushion to hit you. Not assault because apprehension must be reasonable. Defenses (See II. Defenses) a. Consent b. Self-defense 3

c. Defense of Others d. Defense of Property

3. False ImprisonmentProtects an individuals rights to move freely from place to place as he/she sees fit. The direct constraint by one person of another against their will, without legal justification

Elements of False Imprisonment An actor commits false imprisonment when 1. He acts 2. Intending to confine the plaintiff 3. Plaintiff is in fact completely confined 4. Plaintiff is aware of the confinement or suffers actual injury from the confinement. Meaning of Confinement Confinement means that P is effectively restrained from movement in any direction. o Confinement can be achieved by: Physical barriers Threats of physical force Confiscation of important possessions that practically prevent plaintiff from leaving (e.g., clothing, car keys.) Plaintiff is not confined if a practicable exit (one not involving great danger) is available. Examples: - Confine the wrong person on accident o Mistake is no defense - FI can be in a state, country, etc - If there are other reasonable ways out then no FI o Person does not have to take unreasonable or dangerous risks to get out - One must know that they are being confined to constitute FI o Exceptions to this are children and adults that have been injured - Shopkeepers Rule o As shoplifting increases we see that the law allows store owners to hold those who they have reason to believe have stolen Can hold them for a reasonable amount of time and must use a reasonable method to do this - Holding one aboard a ship and not letting them use a boat to go ashore is considered FI o Denial of only means out is sufficient - Must actually ask or express your intention to leave, you cannot assume that you cant (Teichmiller- Supervisor Confinement Case) - P. has burden of showing confinement Defenses (See II. Defenses) a. Consent b. Self-defense c. Defense of Others d. Defense of Property 4

e. Shopkeepers rule f. Justification o Ex. Lawful arrest- necessity to hold the person g. Lack of protest o Kind of like an implied consent

. Trespass to LandIntentional torts also can protect a plaintiffs property interests Person, without permission, enters onto, above or below the surface of land that is owned by another; causes anything to enter onto the land; or remains or permits anything to remain on the land after being told to leave

One is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest to the other, if he intentionally: a) Enters land in the possession of the other, or causes a thing or third person to do so, or b) Remains on the land, or c) Fails to remove from the land a thing which he is under a duty to remove. Trespass to land The Traditional View An Actor commits trespass to land when he intentionally enters or causes an entry onto the land of another. Entry can be made above or below the surface of the land. Actual harm to the land is not required. (the original writ of trespass was designed to vindicate owners exclusive possession of land) Trespass to Land: Modern Approaches Trespass interferes with the owners right to exclusive possession. Trespass can occur by means of a physical invasion of microscopic particles if the result is an interference with the right of exclusive possession. When the invasion involves microscopic particles, the plaintiff must show actual damage to the property. Examples: - Every unauthorized and therefore unlawful entry into anothers land is considered trespass. - Interference with the use and enjoyment of the land owners land - MISTAKE IS NO DEFENSE TO TRESPASS - Negligent trespass can only happen if the trespasser does not intend to enter the land o Ex. Ones car is out of control and it swerves into anothers property. In negligent trespass one must show actual damage to have cause of action. - Nominal damages awarded if you prove your cause of action but there are no damages to your land. - If one enters anothers land for an extended period of time with no contest by the owner, one can eventually gain the right to enter the land. - Trespass- interferes with the possession of the land o Nuisance- interferes with the use and enjoyment of the land. o Can bring both actions in one case - The airspace above the immediate reaches of the land is public domain (Eastern Airlines case) o Extent to what the landowner can make practical use of the space 5

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It is trespass if one stays on anothers land longer than the owner has consented them to do so. To recover damages under trespass when dealing with gaseous particles the owner must show actual and substantial damages to his land. (Smelting Co.- Particle Matter Trespass Case) Must be a tangible invasion o Ex. Light does not constitute a trespass to land because it is not tangible

Defenses a. Consent from the person who is in lawful possession of the land b. D. enters the land to reclaim his own property that was on P. land c. Necessity - Private Necessity - Public Necessity d. Entry to abate public or private nuisance

5. Trespass to ChattelsChattel o Movable or transferable property Taking away of or damage to personal property. Usually Trespass to Chattels is used when the interference or damage is not serious enough to amount to conversion. Actual damage to or loss of use of chattel required. Damages: value of loss of use or cost of damage to the chattel. Using or intermeddling with another persons chattel o Dispossess (I dont have it anymore) the other of his chattel o Chattel is impaired o Possessor is deprive of use of substantial time o Bodily harm is thereby caused to a person in which S has a legally protected interest

Examples: - A chattel is any object that is not real estate or an improvement to real estate. Something that is removable - Taking away of or damage to tangible personal property - Can interfere even if you are not physically interfering with the chattel (CompuServe- Junk Email Case) - Not as serious as conversion - No interference= no claim Substantial interference= trespass to chattels Denying owner of chattel for substantial time= conversion Defenses (See II. Defenses) a. Consent b. Self-defense c. Defense of Others d. Defense of Property e. Necessity

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6. ConversionIntentional exercise of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay for the full value of it. Conversion is used when a defendant completely dispossesses the plaintiff of and interest in personal property. Two important wrinkles to this rule A defendant need not physically damage a plaintiffs property to convert it. Courts historically have allowed a plaintiff to recover the full value of the converted property, even if the defendant has not damaged the property. Entitled to recover full value of chattel at time of conversion. Applies only to tangible personal property. Conversion is the wrongful exercise of dominion over the personal property of another. Dominion includes taking, substantial use, altering, destroying, selling, and buying. This tort only applies to tangible personal property. Damages: D must pay P the full value of the property at the time of conversion.

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Ways to convert a chattel: stealing it damaging it/altering it using it receiving it (buying it from a thief) disposing of it (selling it) misdelivering it (chattel is then lost) refusing to surrender the chattel Multiple Factors Test - Restatement: determining so seriously interferes as to... (Case by case basis) The extent and duration of the actors exercise of dominion or control The actors intent to assert a right in fact inconsistent with the others right of control The actors good faith The extent and duration of the resulting interference with the others right of control The harm done to the chattel The inconvenience and expense caused to the other. Examples: - If you buy something from a thief, then you are a converter - Mistake of authority does not dispose of liability (Wiseman- Towed Truck Case) - Actor may be liable where he has in fact exercised dominion or control, although he might be quite unaware of the existence of the rights with which he interferes Defenses a. Consent of the owner of the property the D. is converting b. Necessity - Private - Public

7. Intentional Infliction of Emotional Distress7

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One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.

An actor commits this intentional tort when: o The actor engages in extreme and outrageous conduct; o Intending to cause extreme emotional distress, or with recklessness regarding the infliction of such distress; and o Severe emotional distress results. Outrageous! Outrageous conduct can include: o Harassment of a vulnerable individual; o Abuse of a position of power; o Mistreatment of dead bodies Mere insult is NOT outrageous conduct. No Transferred Intent - No transferred intent; D. must be at least reckless with regard to the infliction of emotional distress on bystanders - This usually requires, in the case of bystanders, that the D. at least be aware of the likelihood of inflicting the emotional distress on the victim Examples: - Subjective test- depends on the life of a certain person, used on a case by case basis - Casual connection between wrongful conduct and emotional distress - Transferred intent does not work for Emotional Distress - Severity measured by intensity and duration of emotional distress (Caldor- Boy/Employee Theft Case) - If you take advantage of someones vulnerability the courts will be harder on you - If you abuse your position of power (ex. Doctor/Patient) the courts will be harder on you - Feeling bad and being embarrassed are not sufficient (Caldor- Boy/Employee Theft Case) Defenses - D. lack of knowledge that the P. was present at the time - D. lack of knowledge of the P. unusual susceptibility to emotional upset - D. needs to be aware of the likelihood of inflicting the emotional distress on victim, especially if victim is just a bystander

II. Defenses to Intentional TortsJust because a plaintiff establishes a prima facie case, they are not automatically entitled to compensation. o Defendants can justify their actions through a series of various defenses. D. has burden of proof when presenting a defense

1. ConsentCan be verbal or non-verbal, which must be considered in connection with surrounding circumstances 8

An objective manifestation of consent forecloses a claim that might otherwise exist. Consent may be shown by conduct. Consent bars recovery if there is consent to the act done, even though there is no consent to the resulting injury. A consent obtained by fraud or concealment of important information is not effective. The scope of the consent is important; if the actor goes beyond what was agreed to, the consent will not bar recovery. Consent to Contact in Sports By participation in a sporting contest, one consents to the contacts normally a part of the game. The limits of this consent are important; does every contact that is outside the rules result in battery? On the other hand, is consent to normal illegal contact also presumed? What, then about hockey? Consent to a Criminal Act Per the restatement, consent to a criminal act is effective and bars recovery for injuries received from the act. o The important exception is where the criminal statute is designed to protect the class of persons to which the plaintiff belongs. o Allowing consent as a defense would tend to frustrate the purpose of the criminal statute. Three most important examples: o Statutory rape People under age are not deemed capable to give consent o Illegal prize fights o Voluntary euthanasia Examples: - Express o One actually says they consent to a certain action - Implied o By ones action they consent to the action o Ex. Person holds out there arm to get a shot - Person consenting must know what they are consenting to - Fraudulent consent is not consent at all o Ex. Doctor brought his friend to the delivery of a baby and husband and wife thought the friend was an assistance - In medical field, if it is a life threatening emergency, and patient is unconscious, we hold that the patient would give consent in an ordinary situation - If a women consents to surgery on her right ear but the surgery is done on the left ear, there was no consent - Person must have sufficient mental capacity to consent (Peterson- Pseudo-Religious Girl Confinement) o Minors, intoxicated persons, and the mentally disabled cannot effectively consent - Just because you play in a violent game like football, some conduct can go beyond the normal consented to contacts of the game (Hackbart- Cheap Shot Case) 9

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D. has burden of affirmative defenses

2. Self DefenseAn actor is privileged to use reasonable force, not intended or likely to cause death or serious bodily harm, to defend himself against unprivileged harmful or offensive contact or other bodily harm which he reasonably believes that another is about to inflict intentionally upon him.

Self Defense is based on the reasonable appearance of need for defense. The actor is limited to only the amount of force needed to repel the attack. Excessive force results in loss of the privilege. Examples: 1) Existence of privilege a. Anyone is privileged to use reasonable force to defend himself against a threatened battery 2) Retaliation a. Once the battery terminates the privilege of self defense also terminated i. The self-defense must be an immediate reaction to the threat; one cannot wait 30 min. and then claim they were using self-defense b. Even if a person initially was an aggressor, once he has retreated he has a right to self defense against the person he initially threatened 3) Reasonable belief a. Privilege exists when the def reasonably believes that the force is necessary to protect himself against battery even though there is in fact no necessity 4) Provocation a. Insults, verbal threats, or opprobrious language do NOT justify the exercise of selfdefense b. If the words are accompanied by an actual threat of physical violence reasonable warranting an apprehension of imminent bodily harm then you may exercise selfdefense 5) Amount of force a. Privilege is limited to the use of force that is or reasonable appears to be necessary for protection against a threatened battery. Differences in age, size an relative strength are proper considerations b. To justify resistance with a deadly weapon, the D. must have a reasonable apprehension of loss of life or great bodily injury c. The D. has the burden of proof that the use of force was reasonable under the circumstances. Some jurisdictions shift the burden to the P. if the D. is a police 6) Retreat a. He may stand his ground and use any force short of that likely to cause serious injury if there is the slightest doubt that he can safely retreat. b. Common law says that rather than kill his assailant or seriously wound him the D. must retreat to the wall 7) Injury to a third party a. If he is defending himself and accidentally hurts a third party then he is NOT liable to the 3rd unless there is some negligence to the 3rd.

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3. Defense of Others A privilege similar to that of self defense arises for the defense of others. The same limitations on the use of force apply. The actor must reasonably believe that the other is being attacked and would have the privilege of self defense. The actor must reasonably believe that intervention is necessary to protect the other.

4. Defense of PropertyA person may use reasonable force to protect property when she reasonably believes that force is necessary to prevent the intrusion.

Ones privilege to defend ones property is more limited than the privilege to defend oneself. For example, one usually must ask a trespasser to leave before using force. Deadly force is not permitted simply to protect property (In other words, when there is not threat to human life). However, one can threaten more force than can actually be used. Recapture of chattels requires hot pursuit. (has to be immediate response) Examples: - If the person intervening is mistaken in his belief that intervention is necessary, he is not liable so long as his mistake was reasonable - There is no privilege to use any force calculated to cause death or serious bodily injury to repel the threat to land or chattel (Briney- Spring Gun Defense Case) - Time limit to this defense o Must be in hot pursuit

5. Necessitya. Private NecessityProvides D. with a qualified privilege to interfere with property to protect their own interests, or those of a small group of others Private Necessity is a qualified privilege. Private Necessity permits entry on land of another to protect oneself from imminent peril. The actor is not liable for trespass and the owner has no privilege to eject him. The actor is liable for any actual damages caused by his entry.

Examples: - Boater needs to dock his boat at a private dock because of a storm (Putnam- Boat Docking Necessity Case) - Steamship moors to unload cargo. Storm comes and keeps the ship from leaving the dock. Storm causes ship to damage the dock. Ship had private necessity to stay at dock but it is responsible for the damage that was done (Vincent- Dock Damage Case)

b. Public NecessityProvides defendants with an absolute privilege to interfere with the property of others to avoid a public disaster. 11

Public Necessity is an absolute privilege. One is privileged to commit trespass to land, trespass to chattels, or conversion, where the action reasonably appears necessary to prevent a public disaster. When the privilege applies, the actor is not liable for actual harm caused in the course of preventing the public disaster. Examples: - Must be done in good faith and must be apparent - Tearing down a persons house to keep the fire from spreading and destroying all of the buildings in the city - U.S. Army destroys oil depots to stop Japs from using them (Caltex- Army Demolition Case)

III. Negligence1) 2) 3) 4) Negligence is behavior that requires less than intent, but is deemed blameworthy because a jury finds that the D. behavior falls below a defined standard of care To succeed in a negligence action, a P. must prove the following elements Duty Breach of Duty Causation Damages

Negligence: The Prima Facie Case DUTY: Usually a Duty of Due Care BREACH: Defendants conduct does not meet the standard of Due Care. CAUSATION: o Actual Cause (or Cause in Fact). o Legal Cause (or Proximate Cause). Damages: Actual Damages required.

1. Duty-

A person must behave as a reasonably prudent person under the same or similar circumstances In general, a duty exits if the defendants conduct foresee ably creates unreasonable risks of harm.

A. Standard of Care and Circumstances1. Reasonably Prudent Person The Duty of Due Care Tort duties arise out of a relationship between P and D that imposes on the latter a duty of due care. This duty requires D to recognize and avoid unreasonable risks of harm to P. The risks in question are those that a reasonably prudent person (RPP) would recognize as unreasonable. Once recognized, D must exercise the care that the RPP would exercise to eliminate or 12

reduce the risk. The Standard of Care Defendant is held to the standard of the reasonably prudent person under all the circumstances. The amount of care that defendant is expected to exercise varies depending on the circumstances. Under All the Circumstances Some circumstances are external to the Actor: o The extent to which the risk is reasonably foreseeable. o The existence of an emergency. Some circumstances are found in the actors own characteristics. o Physical limitations of the actor. o Mental limitations on the actor. 2. Minor - In most cases, children are not held to the standard of care of an adult The Circumstances of the Actor Age: In most case, children are not held to the standard of care of an adult. The standard is that of a child of the same age, intelligence and experience. The child standard usually applies to both child victims and child tortfeasors. Exception: The adult standard applies when the child is engaged in an adult activity. Adult activities almost always involve an internal combustion engine. 3. Elderly - The weakness of age is treated merely as part of the circumstances under which a reasonable person must act. Age: It is not presumed that the elderly are unable to conform to the standard of care. It may be proved, however, that an elderly person was physically incapable of exercising due care, due to the infirmities of age. 4. Physical Disabilities Physical Disabilities are usually taken into account as part of the circumstances faced by the actor. The actor must take the disability into account. Where disability or illness strikes without warning, the actor is not negligent for failing to take precautions against it. 5. Mental Disabilities Mental Disabilities: Insanity and Alzheimers Disease General Rule: Insane persons are liable for their torts, unless incapable of a particular state of mind, such as malice, required by some torts. Limited Exceptions exist: o Sudden onset of mental disability 13

o Where the plaintiff has accepted the risk As a general rule, the insane are not excused from their torts or their negligence. However, a sudden mental disability for which a person did not have warning may excuse a person from what would have been a violation of the SOC and therefore, negligence. If the person is on notice of the occurrence of mental illness, then he is liable. THREE POLICY REASONS WHY INSANE ARE LIABLE FOR TORTS: (1) Where 2 innocent people must suffer loss, it should be burdened to the one who caused the accident. (2) To induce those interested in the estate of the insane person to restrain & control him. (3) A fear that insanity defense would lead to false claims of insanity to avoid liability.

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6. Drunkenness, Blackouts, Seizures, and Sudden Mental Illness An individual who voluntarily becomes intoxicated is still held to the standard of the reasonable prudent person. Thus, the actor can be held liable even if incapable of conforming to the standard because of intoxication. On the other hand, the actor is not negligent simply because intoxicated; the actors conduct must actually breach the standard.

B. Standard of Care and Custom1. Custom - One tool that courts allow juries to use in determining the reasonableness of the plaintiff actors behavior is to refer the jury to the custom of actors similarly situated. If it is typically done, it is reasonable to do it If it is typically not done, it is not reasonable to do it Custom Is the usual way of doing things the measure of due care? Failure to Comply with Custom: is evidence of failure to follow custom sufficient to establish a prima facie case of negligence for the plaintiff? May the trier of fact ignore compliance with custom and find the defendant negligent? 2. Professional Standard of Care Professional Standard of Care - Jury doesnt know what the standard of care is - P. has to prove what the standard of care is in a particular situation Custom and Malpractice The Standard of care imposed on professionals (doctors, lawyers, engineers) is a special example of the use of custom to establish the standard of care. The Standard is the degree of care and skill ordinarily possessed by members of the profession. o P. has the burden of proof to show standard of care o Prove the practitioner violated standard of care 14

o Because of that error, the victim was injured (causation) If the professional claims special skill or knowledge, the higher standard of the specialist will apply. 3. Locality Rule - Rule states that one is held to the SOC of the practioners in your local area - No longer applied in most jurisdictions - With new technology and meetings, professionals will have similar standard of care that is a national standard The Professional Standard of Care The Locality Rule is no longer applied in most jurisdictions. How does the plaintiff establish the standard of care? What affect did the Locality Rule have on the ability of the plaintiff to prove the standard of care? The General Practitioner Is any accommodation made for the small rural practitioner with limited resources? How does the standard take these circumstances into account? o Material circumstances can be taken into account What is the obligation of the general practitioner when faced with a particularly difficult case? o Might not have a specialty in every situation However you can know when you are in over your head Courts rarely substitute their own judgment of what the standard of care should be. 4. Informed Consent Informed Consent A physician seeking a patients consent to treatment has a duty to inform the patient of the risks and benefits of the procedure. The physician must disclose material risks: Risks that a reasonable person in the plaintiffs position would want to know before deciding whether of not to undergo the procedure. Informed Consent: Liability The physicians failure to inform the patient of a material risk is a breach of duty. Liability also required the plaintiff to prove causation by showing that if properly informed, the plaintiff would have refused to undergo the procedure. Liability also requires that the risk not disclosed be the cause of harm to the patient. Informed Consent: Exceptions The defendant bears the burden of proving exceptions to the requirement of disclosure. The first exception is the emergency where the patient is unable to give consent and lifesaving treatment must be given at once. The second exception is where the disclosure itself would be harmful to the patient.

2. Breach of DutyCalculus of Risk If the probability of injury multiplied by the extent of the expected injury is less than the 15

cost to the actor to prevent the conduct then the actor is responsible any injuries resulting. Reasonable Risks Risk of harm low, benefits significant Risk of harm low because danger is obvious (P can easily avoid the danger) Risk of harm high, but benefits outweigh the danger Unreasonable Risks Risks are unreasonable when the risk of harm is high, and the benefits from the activity are low. FORMULA: An attempt to express this notion can be found in the risk utility balance of United States v. Carroll Towing Co. Carroll Towing: The Hand Formula The Hand Formula states that a party is negligent when B>Explosion Case - Brauer- After a train wrecked his wagon his goods were stolen o The act of a third person intervening and contributing a condition necessary to the injurious effect of the original negligence will not excuse the first wrongdoer, if such act ought to have been foreseen f. Rescuer Doctrine Rescuer Doctrine The rescuer doctrine says that a defendant is liable to one who attempts to assist a person placed in peril as the result of the defendants negligent conduct. In other words, the defendant owes a duty to the rescuer, foreseen or not, based on the status of the rescuer. Examples - Problem 2 (p.251)

4. DamagesThe plaintiff must prove that actual injury resulted form the defendants conduct. Nominal damages are not awarded for negligent conduct that does not cause injury 21

IV. Negligence (Odds and Ends)1. Negligence Per SeWhen a legislative statute is used to specify a duty to the P. A. Overview - In addition to custom and calculus of risk, another tool to help the jury set the reasonable person standard of care is whether there are any criminal or civil statutes which already address the blameworthiness of the conduct of the defendant or plaintiff. Negligence per se Sometimes courts find that it is necessary to specify a particular duty, rather than simply leaving the question open ended. One source of specific duties is a statute enacted by the legislature, which specifies what the defendant must do in particular situations. (Find out correct thing here) When a statute is used to specify a duty to the plaintiff, that is known as negligence per se. Examples - Osborne- Failure to Label Poison Case Where a statute imposes upon any person a specific duty for the protection or benefit of others, if he neglects to perform that duty he is liable to those for whose protection or benefit it was imposed for any injuries of the character which the statues was designed to prevent, and which were proximately produced by such negligence B. Is the Statute Designed to Protect this Particular P. from this Risk of Injury When to use the Statute The statute must: o Impose on the defendant a specific duty for the protection and benefit of others. Defendant will be liable for harm caused by a breach of that duty: o If the plaintiff is a member of the class of persons that the statute was intended to protect, and o The plaintiff suffered the type of injury the statute was intended to prevent. Compare these two with the proximate cause rules Examples - P. had shipped a number of sheep with the D. ship owner. Ship owner failed to pen them and the animals were washed overboard in the storm. A Contagious Disease Act required ship owners to pen. (Gorris- Animal Pen Case) D. not liable because Act was enacted to prevent the transmission of diseases not the damage of animals being lost C. How the Relevant Statutes are Applied? Avoiding the Statutory Standard Legislative specification of duty may be avoided: 22

o By finding the violation excused. o By interpretation of the statute. o By the existence of other policies that render the legislative standard inappropriate. Statutes Often Invoked Statutes that forbid leaving the keys in the ignition of an automobile o What was the statutes purpose? These are safety statutes for the purpose of keeping an unauthorized person from taking the car. o Who was the statute designed to protect? Statute that forbid giving the alcoholic beverages to an obviously intoxicated person (getting cut off) D. Negligence Per Se Applied (Licensing Statutes) Licensing Statutes Licensing statutes are a special case. Violation of a licensing statute is not usually considered negligence per se. The plaintiff must prove that the defendant in fact caused the injury by failing to meet the standard of care.

2. Proof of NegligenceProof of Negligence Proof that the defendant was negligent begins by proving what the defendant did. o One method is to use direct proof, such as an eyewitness. When not available look at circumstantial evidence o Generally, proof of specific conduct is required. Evaluating the credibility of the witnesses is the task of the jury. Evaluating the conduct as negligence or not is also for the jury

A. Direct EvidenceSuch as an eyewitness Generally, have to prove specific conduct

B. Circumstantial EvidenceCircumstantial Evidence Sometimes direct proof is not available; plaintiff must then use an indirect method to prove what the defendant did. Such indirect proof is often called circumstantial evidence. Tire skid marks, for example, may be an indirect way of proving how fast a party was driving. Examples: - Goodman- Look and See Railroad Crossing Case - Pokora- Delivery Truck Railroad Crossing Case - Wilkerson- Slippery Board Across Pit Case 23

V. Multiple TortfeasorsIndivisible Injury Where the misconduct of two (or more) combines to inflict an indivisible injury, the two tortfeasors will be jointly and severally liable. Injury is indivisible when you cannot separate the harm done by each wrongdoer. Joint and several liability means that the plaintiff can sue any or all of the tortfeasors and collect the full amount of damages from any one of them who is found liable.

A. Joint and Several LiabilityWhere there are several concurrent negligent causes, the effects of which are not separable, though due to independent authors, either of which is sufficient to produce the entire loss, all are jointly or severally liable for the entire loss (Carolina, C. & O. RY. v. Hill (Va. 1916) p. 293) Liability is several only where defendants cause distinct or separable components of a plaintiffs harm.

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B. Theories of Joint Liability1. Concert of ActionConcert of Action If two or more wrongdoers are acting in concert and one of them causes an injury, all the actors are liable for harm inflicted by any one of them. Acting in concert means acting together, with at least a tacit understanding of a common goal or purpose. No formal agreement is required in order to act in concert. Bierczynski v. Rogers (Del. 1968) p. 297 - It is also generally held that all who engage in a race on the highway do so at their peril, and are liable for injury or damage sustained by a third person as a result thereof, regardless of which of the racing cars directly inflicted the injury or damage. - The authorities reflect generally accepted rules of causation that all parties engaged in a motor vehicle race on the highway are wrongdoers acting in concert, and that each participant is liable fore harm to at third person arising from the tortuous conduct of the other, because he has induced and encouraged the tort.

2. Enterprise LiabilityEnterprise Liability Sometimes the plaintiff cannot identify which one of a number of possible defendants was the cause of the harm. Enterprise liability imposes liability on all members of the group of possible defendants. Plaintiff must prove: o Joint awareness of the risk. o Joint capacity to control the risk. Hall v. E.I Du Pont De Nemours & Co. (E.D.N.Y. 1972) p. 300 24

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13 children were injured by blasting caps in 12 unrelated accidents

3. Alternative LiabilityAlternative Liability Again, the plaintiff cannot identify which of two or more negligent defendants in fact caused the harm. Alternative liability holds both negligent defendants liable unless one or the other can exonerate himself. In effect, the burden of proof is shifted on the issue of causation, rather than exonerate both negligent defendants. Summers v. Tice (Cal. 1948) p. 304 - A, B, and C go hunting, A and B shoot at quail but in the direction of C - C is struck but can not say if it was A or B but definitely had to be A or B

4. Market Share LiabilityMarket Share Liability: The DES Cases Plaintiff must join manufacturers representing substantial share of the market for the product. Plaintiff must be unable to identify the manufacturer of the particular product that caused her harm. The burden shifts to the defendant. Market Share: Sindell If unable to show it did not make the product that caused the injury, defendant is liable for the percentage share of plaintiffs damages represented by its market share of the product. NOTE: this approach does NOT result in joint and several liability. Sindell v. Abbott Laboratories (Cal. 1980) p. 307 - P. injured as a result of a drug administered to her mother during pregnancy, who knows the type of drug involved but cannot identify the manufacturer of the precise product o Can she hold liable the maker of a drug produced from an identical formula? Yes, each manufacturers liability for an injury would be approximately equivalent to the damages caused by the DES it manufactured After Sindell Some courts eliminate the requirement that plaintiff sue manufacturers representing a substantial share of the market. (Martin, Collins) Other courts eliminate a defendants ability to exonerate itself and escape liability. (Hymowitz) One court extended market share liability to products other than DES. Hamilton v. Accu-Tek (E.D.N.Y. 1999) p. 317 - Relatives of six people killed by handguns, as well as one injured survivor and his mother, sued 25 handgun manufacturers for negligence

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C. Indemnity and ContributionIndemnity Indemnity is a rule that requires one tortfeasor to fully reimburse another tortfeasor who has paid the plaintiffs judgment. Where the rule applies, it usually requires full reimbursement regardless of rules such as comparative negligence. An obligation to indemnify arises out of the relationship between the two tortfeasors. Indemnity: When? Indemnity may be required by a contract between two parties. A defendant who is only vicariously liable may seek indemnity from the party who was actively at fault. A retailer held liable because of a defective product may seek indemnity from the manufacturer. National Health Laboratories, Inc. v. Ahmadi (D.C. App. 1991) p. 322 - Dont get indemnity when you are actively negligent. - Now have two negligent parties and the issue is contribution. Bervoets v. Harde Ralls Pontaic-Olds, Inc. (Tenn. 1994) p. 326 - By getting rid of joint and several liability, no defendant should be made to pay more than his share. - Court says that in retrial the jury will determine the percentage of fault attributable to each of the defendants, and contribution will be ordered accordingly. Contribution Contribution refers to a sharing of responsibility between two tortfeasors. Contribution usually requires that the two (or more) tortfeasors be jointly and severally liable for an indivisible injury. Before comparative responsibility, the tortfeasors usually shared pro rata. With comparative responsibility, shares are based on the relative percentage of fault. Examples: Problem 1 page 331 - Does defendant #2 have to pay the remaining $700 or only its half of $500? - Dollar for dollar credit defendant 2 would be given $300 dollars credit and have to pay $700 to fulfill damages. Does #2 have a right to go after #1 for the other $200? If you did, then it would discourage settlement. So as long as the settlement was in good faith, then there would be no reimbursement. - Pro Rata Credit When plaintiff settles with one of two jointly liable defendants, then plaintiff has settled half the case. So under this approach, defendant #2 would only pay half or $500 so plaintiff would end up with $800. - Most jurisdictions adopted the dollar for dollar credit. Problem 2 page 331 - Now defendant #1 settles for $700. - Does defendant #1 have a right of contribution towards two? No, unless defendant settled the entire case. 26

VI. Defenses to NegligenceA. Defenses Based on the Plaintiffs Conduct1. Contributory Negligence The plaintiffs failure to use due care for his or her own safety was a total bar to recovery in negligence. In most jurisdictions, contributory negligence was an affirmative defense on which the defendant had the burden of proof. Butterfield v. Forrester p. 525 - Well established rule that you could not put up barriers on publics roads - However, had the P. used due care in riding his horse he would have seen the obstruction Avoiding the Bar Several doctrines mitigated the harshness of the all or nothing rule of contributory negligence: o Last Clear Chance o Contributory Negligence was not a defense to intentional torts or to willful and wanton misconduct. o Defendant may have a duty to protect the plaintiff from the plaintiffs own carelessness. Problems (p.529) 1. Mental patient falls while trying to escape mental hospital and suffers some injuries. Hospital had a duty to protect the P. from the P. own carelessness. Sometimes certain people (mental hospital, product liability) have a duty to protect others from carelessness

2. Comparative Negligence All Comparative Negligence rules are aimed at avoiding the harshness of the Contributory Negligence doctrine, by reducing rather than barring the recovery of the negligent plaintiff. The two basic types of Comparative Negligence Rules are pure and modified. Bradley v. Appalachian Power Company p. 530 - Court adopts a modified version - Provides that a party is not barred from recovering damages in a tort action so long as his negligence or fault does not equal or exceed the combined negligence or fault of the other parties involved in the accident Rule Choices Pure comparative negligence allows some recovery so long as the plaintiff is not 100% at fault. Modified systems reinstate the total bar to recovery once the plaintiffs negligence exceeds some defined level, usually 50% or 51%. 27

o If you have a 50% bar, when a jury delivers a 50/50 split, P. cannot recover o If you have a 51% bar, and a jury delivers a 50/50 split, P. can recover Possible Affect on other Rules Joint and Several Liability o Has not changed Last Clear Chance o Recently, most courts have said that there is no longer an independent doctrine to allow a P. who was at fault, to be allowed to collect in full Assumption of the Risk Multiple Tortfeasor Cases Settlement with some defendants before trial What are we comparing? - One hand- fault of P. - Other hand- strict liability of D., which is liability without fault - TX - Adopts a scheme called comparative causation - Dont compare fault, but the causation of the accident o How much did each party contribute? - Proportionate Responsibility (See Handout) o FINAL KNOW WHAT THE BAR IS FOR A PLAINTIFFS RECOVERY and KNOW WHEN D. CAN BE JOINLTY AND SEVERALLY LIABLE o A claimant many not recover damages if his percentage of responsibility is greater than 50% (51% bar to recovery) Percentage of responsibility (See Proportionate Responsibility Handout) y Comparing the responsibility for causing the harm Law v. Superior Court (Ariz. 1988) p. 537 - Concluded as a mater of public policy that the law must recognize the responsibility of every person to anticipate and take reasonable measures to guard against the danger of motor vehicle accidents that are not only foreseeable but virtually certain to occur sooner or later. - Rejection of the seat belt defense can no longer be based on the doctrine that one need not anticipated the negligence of others. The Seatbelt Defense y How should the courts treat the failure to wear a seatbelt? o Is it contributory negligence? o Assumption of the Risk? o Avoidable Consequences?

3. Assumption of Riska. Express Assumption of the Risk Express Assumption of Risk

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y y y y

Express assumption of risk is a contractual agreement allocating certain risks to the potential plaintiff The scope of the release must be construed. o What was it that was actually released? The court will examine the release to determine whether it offends public policy. o Typically, P. will say it shouldnt be enforced because it offends public policy When you are reading a release need to know rules of your jurisdiction

Wolf v. Ford (Md. 1994) p. 545 - Wolf had Ford manage her investments - After a while she did not like the results, she terminated her agreement so she sued saying the negligence of the investor made her suffer losses b. Implied Assumption of the Risk Implied Assumption of the Risk y Implied assumption of the risk was once thought of as an implied contract to allocate certain risks to the plaintiff y It required a subjective awareness of the reasonable nature of the risk created by the defendant, plus conduct that showed a voluntary decision to encounter the risk y Such conduct constituted consent to allow the defendant to impose the risk on plaintiff Murphy v. Steeplechase Amusement Co., Inc. (N.Y. 1929) p. 551 (The Flopper Case) - P. suffered a fractured kneecap when he fell on the Flopper - A fall was foreseen as one of the risks of the adventure. Knight v. Jewett (Cal. 1992) p. 554 - P. is injured by D. while playing in a casual yard football game Contributory Negligence Compared y If the plaintiff voluntarily encounters a risk known to be unreasonable, is that really contributory negligence? y If the plaintiff voluntarily encounters a risk that is not unreasonable, is that really a no negligence situation for the defendant? And Comparative Negligence y With the arrival of comparative negligence, courts had to decide whether assumption of risk survived as a total bar to recovery y The alternative was to treat it as a form of contributory negligence that could be considered in assigning a percentage of fault to the plaintiff Secondary Assumption of Risk y Secondary of assumption of risk occurs when the conduct of the plaintiff consists in voluntarily encountering the unreasonable risk created by the defendant y This is treated today as a form of comparative negligence Primary Assumption of Risk 29

y y

Primary assumption of risk occurs when we determine that the duty owed by the defendant to the plaintiff is limited, because the plaintiff is deemed to accept certain risks When the defendant meets the limited duty, the doctrine is a bar to recovery because the defendant is not negligent

VII. Limited Duty: Special Limitations on the Scope of DutyA. Introduction- Non-feasance and Special RelationshipsLimited Duty Limited duty means that the court, usually for some reason of policy, adopts as a legal rule that only a limited duty of care is owed by the defendant, that is, something less than the usual duty of care In some cases, the limited duty is actually no duty If not duty of care exists, then the plaintiffs negligent action fails at the first element. Yania v. Bigan (Pa. 1959) p. 379 - D. asked two fellow miners to help him start the pump. One of the miners jumped in the water in the pit and drowned. The wife of the deceased filed suit against the defendant for negligence. - The court ruled that the deceased was aware of the risks of his actions and the was under no legal duty to rescue him from a situation in which the was not responsible.

B. Misfeasance vs. Non-FeasanceWeirum v. RKO General, Inc. (Cal. 1975) p. 382 - The is a radio station that was having a contest where the first person to get to an unknown location and find a DJ that was roaming around and could claim a monetary prize. While chasing the DJ to a location, one of two cars ran a fourth car off the road and killed the driver. The driver of the crashed car sued the radio station for negligence. - Did the owe a duty to decedent arising out of its broadcast of the giveaway contest? - The s claimed they did nothing wrong and did not owe a duty, and if they did owe a duty, they did not breach it. - Misfeasance exists when the defendant is responsible for making the plaintiffs position worse, i.e., defendant has created a risk. - Conversely, non-feasance is found when the defendant has failed to aid plaintiff through beneficial intervention. - The court ruled that the contest is naturally dangerous and causes an unreasonable and foreseeable risk to people driving on the roads during their contest. - Here the committed an act of misfeasance, so the Good Samaritan rule (314) is inapplicable. Liability is not based on s failure to intervene, but rather upon its creation of an unreasonable risk of harm to the decedent. Non-feasance (Not doing something) 30

Non-feasance means no-action, and usually refers to the conclusion that the defendants conduct amounted to a failure to act, as opposed to an action that may have been performed without due care. In some situations this will mean that the defendant is not liable because defendant had no duty to act. Misfeasance (Doing something but badly) Misfeasance usually expresses the conclusion that the defendant acted and acted badly (without due care). It is often possible to argue that what appears to be mere non-feasance is actually misfeasance: acting and acting badly. Notes (p.387)

C. Exceptions to the No Duty RuleCreating a Duty to Act Another way of attacking a Non-feasance claim is to argue that defendant in fact did have a duty to act and was negligent in breaching that duty. One situation in which a duty is created is when the defendant, although under no duty to act, in fact undertakes to do something and does so badly.

1. Defendants Negligence Places the Plaintiff in a Position of PerilDay v. Waffle House, Inc. (Okla. Ct. Civ.App. 1987) p. 388 - One of the s was cut in the mouth when she tried to eat her food. The waffle house claimed it did not have a phone to call an ambulance, so the other was going to drive her to the hospital. When leaving the waffle house the s car was hit by another car as the was passing though a green light. The sues the waffle house for negligence and then sues under the rescue doctrine. - The court of appeals reversed on the grounds that the incident occurred in the midst of a rescue that the s were responsible for. Duty Creation: Examples Ones negligent (or even non-negligent) conduct injures another. One may have a duty to aid, and a duty to rescuers.

2. Voluntarily Assumed DutiesEven when there is otherwise no legal duty to act in a given situation, a duty may arise where the defendant voluntarily undertakes to render some type of aid or assistance and does so negligently

Duty Creation: Examples Ones voluntary assumption of a duty may create a duty to continue to perform, or at least to warn that it will be discontinued, where one knows that others have come to rely on the performance of the duty. Florence v. Goldberg (N.Y. 1978) p. 391 31

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A 6 year old child was crossing the street at a crosswalk on the way home from school and was struck by a taxi and resulted in severe brain damage to the infant. The first two weeks of school, the childs mother walked him to and from school. She observed a police officer at the intersection every day. Two weeks into school she received a job and determined that since the police officer was present then there was no need for her to assist her child across the street. By undertaking to do something you create expectations and when you with withdraw, other people are put into danger. In this case the court ruled that the police department had undertaken the responsibility to protect a certain class of people, young children in this case. Since the plaintiff relied on this assumption, than the failure to perform the duty put the child in greater danger than otherwise would have been in.

3. Special RelationshipsOne of the most frequently asserted justifications for imposing an affirmative duty to render aid to persons in peril is based upon the existence of some type of special relationship between the affected parties. There is no duty to control the conduct of a third person as to prevent him from causing physical harm to another unless (a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third persons conduct, or (b) a special relation exists between he actor and the other which gives to the other a right to protection.

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Special Relationships Special relationships create a duty to act. Courts find special relationships in certain traditional categories, such as the common carrier-passenger relationship, which creates a duty to protect the passenger from others. o Other traditional categories: Business invitor-invitee, Custodial relationships, Landlord-tenant relationships, and Employer-employee relationships Courts also recognize special relationships where the actor has a duty to control another to prevent harm. Farwell v. Keaton (Mich. 1976) p. 396 - The decedent was beaten up and his friend/ put ice on his head and drove him around to other drive through restaurants and then attempted to drop him off at his grandparents house. He could not awake his friend in the back seat so he left him in the car and left. The decedent died three days later from injuries resulting from the fight. - The knew or should have known that his friend would not be found and was aware of his peril, and could render assistance without endangering himself. So he owed his friend a duty to provide reasonable care because they had a special relationship. Tarasoff v. Regents of University of California (Cal. 1976) p. 398 - The informed the psychiatrist at school that he was going to kill Tarasoff. The police were notified, but the was released form confinement when it appeared he was not a danger. The indeed killed Tarasoff and her family sued the regents of the school claiming there was a special relationship between the doctor and the patient to protect a third person. - The court ruled that if a doctor discovers that a patient is going to injure a third party it has 32

a duty to exercise reasonable care to protect the foreseeable victim of that danger. Tarasoff: An identifiable victim In the Tarasoff case, the duty to warn was based on: o The therapists actual prediction of the attack; and o The therapists knowledge of the victims identity.

F. Negligent Infliction of (solely) Emotional InjuriesNegligent Infliction of Emotional Distress plaintiff seeks to recover for purely emotional distress injuries that are allegedly caused by the actors original negligence toward some other person with whom the plaintiff claims some type of close or other special relationship. A courts task in determining duty is not to decide whether a particular plaintiffs injury was reasonably foreseeable in light of a particular defendants conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed on the negligent party.

In the Beginning: Originally the common law did not recognize a cause of action for conduct that caused only emotional injury, unless it could be fit within an existing cause of action such as offensive battery. (Remember the Fisher Case?) On the other hand, the law did allow damages for mental suffering if it was the result of a physical injury. Searching for limits The continuing concern has been how to set reasonable and reliable limits on an action for purely emotional harm. First, what sorts of conduct by a defendant that cause emotional distress should result in liability? Second, what guarantees of the genuineness of the plaintiffs injury should we require? Dziokonski v. Babineau (Mass. 1978) p. 425 - Daughter is hit by a car, on the way to the hospital the mother dies, and the father later sues for emotional distress - Looks at whether a person who negligently causes emotional distress which leads to physical injuries may be liable for those injuries even if the injured person neither was threatened with nor sustained any direct physical injury The Impact Rule An early attempt at setting limits was the impact rule. The defendants negligent conduct would not lead to liability for emotional harm unless the plaintiff suffered some physical impact on his or her person. o Does not have to be physical injury Maybe just touched y Ex. A car speeds by and your sleeve is brushed 33

o The legal effect of the rule is to deny recovery by even the closest relatives of the victim of a negligently inflicted injury case where they merely witnessed or learned nearly contemporaneously of the victims injury but were not themselves physically harmed by the actors negligence The impact itself did not have to cause physical injury. Negligence was judged in the usual sense of creating unreasonable risk of physical harm. Zone of Danger Courts then began to allow recovery if the plaintiff, although not physically touched, was placed in danger by the defendant. o Person is so closely situated to the accident scene that they could have been physically impacted Under this test, the courts began to allow recovery for persons who suffered fright at the threat to their own personal safety. The Physical Injury Requirement Some courts also adopted a requirement that the plaintiffs emotional distress must result in physical injury to the plaintiff. This often gets watered down to a requirement that the plaintiff show objective physical symptoms caused by the emotional distress. o Objective physical symptoms Dillion v. Legg (Cal. 1968) p. 429- Dziokonski - A mother witnessed her minor daughters death in a motor vehicle accident caused by the D. negligence, and who sustained emotional disturbance and shock to her nervous system which caused her physical and mental pain and suffering Bystander Recovery The next extension allowed recovery by bystanders to an accident. Bystanders are close relatives of an accident victim who suffer emotional distress at witnessing the injury to the victim. Recovery is allowed even though the bystander was not in the zone of danger. Dillon Factors Was the bystander at the scene of the accident? o Contrasted with one who was a distance away from it Did the bystander witness the accident and injury to the victim? o Contrasted with learning of the accident from others after is occurrence Were the bystander and the victim closely related? o Contrasted with the absence of any relationship or the presence of only a distant relationship Thing v. La Chusa (Cal. 1989) p. 434 - Whether a mother who did not witness an accident in which an automobile struck and injured her child may recover damages from the negligent driver for the emotional distress she suffered when she arrived at the accident scene - P. may only recover damages for NIED caused by observing the negligently inflicted injury of a 3rd person if but only if, said P.: 1) Is closely related to the injury victim 34

2) Is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim 3) As a result suffers serious emotional distress, a reaction beyond that which would be anticipated in disinterested witness and which is not an abnormal response to the circumstances Molien v. Kaiser Foundation Hospitals p. 438- Thing - The wife went to the doctor and was diagnosed with siphilys (which she did not have), and the doctor told her to tell her husband. She did and they both freaked out and it ruined their marriage. The question was if the husband could recover for NIED. The Molien Case In the previous situations, the defendants conduct was negligent in the usual sense of creating an unreasonable risk of physical injury. The present frontier of emotional distress litigation involves whether there should be liability for conduct that creates only an unreasonable risk of emotional harm.

VIII. Premises Liability: Duties of Owners and Occupiers of LandA. Common Law Status Categories of EntrantsLandowners & Occupiers The Traditional Views Limited Duties The rules about the duties owed by owners and occupiers of land to those entering onto the land can be thought of as a highly developed variation of limited duty. In this case, the scope of the landowners duty depended on the status of the plaintiff who comes on the property. Holzheimer v. Johannesen (Idaho 1994) p. 444 - H. contends that he was injured in the warehouse while retrieving fruit packing boxes which he was purchasing from J. - Court found that H. was a licensee thus entitled to a lower standard of care than an invitee The Categories Trespasser: One on the land without permission: owed only a duty not to willfully and wantonly injure. o If you know a trespasser is on you property and you see that they are about to step into a quicksand pit, you might have to warn him. Licensee: One on the land with permission but not for the benefit of the owner: owed only a duty to warn of known dangerous conditions. o Doesnt owe a duty to make it safe, just to warn about circumstances Invitee: One on the land for the benefit of the owner: owed a duty of due care. o May have an obligation to make the premises safe. o Eliminate dangers, warnings may not be enough o Ex. Grocery store 35

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Cannot just have a sign-watch out for banana peels, you have a duty to make sure the peels do not remain on the floor

After the duty is determined, you have to ask if that duty had been breached Makes a difference in how the cases get tried pay attention to the number of summary judgments approach the case by starting with the duty element but to solve the duty issue, the first thing you have to do is figure out the status of the victim

The Prima Facie Case Categorizing the plaintiff establishes the duty of care, if any. Plaintiff must still prove that the duty was breached. Plaintiff must still prove that the breach of the duty was the actual and proximate cause of the harm to the plaintiff. Palmtag v. Gartner Construction Co. (Neb. 1994) p. 448 - Mrs. P. fell through this piece of plywood because it did not support her weight and she suffered injuries Conflict of categorization Foleys example - Modern interpretation most people in Foleys are there the shop that is the standard of care owed to everyone that of an invitee o Thats not to say that status cant change grocery store example where there are restricted areas and the once invitee/licensee doesnt have permission anymore (trespasser)

B. Special Categories of Entrants1. Trespassing Children Duty of care is owed to children even if they are trespassers if: o The defendant has reason to know of the childrens presence; o The defendant has reason to know of the existence of a dangerous condition. o The defendant should realize that the children will not recognize the danger. o The defendant fails to use due care. Mozier v. Parsons (Kan. 1995) p. 455 - Most jurisdictions now do not require that the dangerous condition entice the child onto the property. - According to the restatement the condition must be one in which is an artificial condition of the property. - Attractive nuisance is a principle that is not really used anymore

2. Firefighters, Police Officers, and Other Public Officials: The Fighters RuleBars recovery by an injured firefighter or police officer for those injuries which have been caused by the same conduct or activity that was reasonable for the entrants original presence at the scene, just as any true licensee would be barred. The landowner may still have a duty to warn firefighters and police officers who enter the 36

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premises as to the presence of certain hazards which are know to exist, as well as to refrain from inflicting any willful or wanton injury. The Firefighters Rule A landowner owes no duty of care to a firefighter with respect to the condition that made the firefighters presence necessary. However, a landowner does owe a duty to the firefighter with regard to other distinct hazards that may be present on the property. Chapman v. Craig (Iowa 1988) p. 462

3. Social GuestsA social guest is one who has been expressly invited onto the premises for some social, non-business purpose. Despite the fact that such persons have been invited to enter the premises, the majority of American Jurisdictions treat them as mere licensees, to whom the landowners duty is to provide a warning of known, hidden dangers.

Social Guests A social guest receives an invitation, and so is claissified as: o A Licensee The rationale is that social guests are on the premises with permission but not for a business purpose, and so must be licensees. Some courts are willing to classify guests as invitees if some incidental business purpose or benefit to the landowner can be shown. Hambright v. First Baptist Church-Eastwood (Ala. 1994) p. 466 - Mrs. Hambright was injured when she slipped and fell on an oily like area while attending services at FBC-Eastwood

C. Recreational PremisesTraditionally people that came onto someones land for recreational purposes were classified as invitees. Although legislatures in almost every state have enacted statutes (recreational statutes) that expressly articulate a lesser duty. These statutes treat recreational entrants as licensees rather than invitees, and impose only a duty to refrain form intentionally inflicting an injury to the recreational entrants. (ch. 75 civil practice and remedies code)

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Reed v. Employers Mutual Casualty Co. (La. Ct. App. 1999) p. 470 - A tree stand with Reed on it falls and Reed suffers some injuries - He sues Gimber for negligently installing the tree stand - Gimber assert the Recreational Use Statute Recreational Premises Recreational use statutes limit the duties of owners and occupiers of property who make their land available, without fee, for recreational uses such as hunting, fishing and hiking. The duty owed may actually be less than that owed a licensee, since some statutes eliminate even a duty to warn. Statutes must be construed, The defendant must show that the statute in fact applies. 37

D. Criminal AssailantsCriminal Attacks A business may owe an invitee a duty to take reasonable precautions against criminal attack. Usually the business must be aware of criminal activity in the area, which makes the possibility of such an attack foreseeable. Reasonable precautions is open to interpretation regarding what must be done, and over what area. Remember: B