Travis Risvold Final Outline

8/4/2019 Travis Risvold Final Outline

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Torts Fall 2009

I. INTENTIONAL TORTS

A. PRIMA FACIE CASEa. Act by

i. Requires volitional movementii. Hitting someone during a seizure does not count

1. Cohen v. Pettya. has seizure while driving, wrecks and hurts

iii. Do not have to intend injury; liable for any consequenceb. Intent

i. Specific1. The goal in acting is to bring about specific consequences

ii. General1. The actor knows with substantial certainty that these consequences will result

a. Spivey v. Battagliai. pulled into hug and knew she was averse to being touched, th

battery

iii.

Transferred Intent1. Applies when the intends to commit a tort against one person but insteadcommits:

a. A different tort against same personb. Same tort against different person

i. Talmage v. Smith:1. threw stick to scare boy A, hit boy B

c. Different tort against different person2. May only be invoked if tort intended AND tort resulting are one of the following:

a. Assaultb. Batteryc. False imprisonmentd. Tresspass to lande. Trespass to chattels

iv. Everyone is capable of intent.1. Incapacity is not a defense, even for:

a. young childreni. Garrat v. Dailey

1. Child pulls chair out from under adult.b. the mentally incompetent.

i. McGuire v. Almy1. Home nurse harmed by mentally disturbed

2. Exceptions:a. Institutionalized mentally disabledb. Very young children

v. Mistake does NOT negate intent.1. Ronson v. Kitner

a. was hunting wolves, mistooks dog for wolf and shot it. Honest mistakyet still liable.

B. Causationa. Result must have been legally caused by s act or something set in motion.b. Satisfied ifs conduct was asubstantial factorin bringing about the injury.


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C. Battery

a. Elements of Prima Facie case:i. Harmfulor offensive contact

ii. Tos personiii. Intent; andiv. Causation

b. Harmful or Offensive Contacti. Judged by Reasonable Person Standard

1. Harmful or offensiveness are judged by a reasonable person is same or similarcircumstances

a. Offensive means non consentedb. Hypersensitivity does NOT count unless knew about it BEFORE

i. Wallace v. Ronson1. Oversensitivewho claims teacher committed battery

while trying to get out of the way during a fire drill.

c. Crowded World Theoryi. Normal bumps and brushes dont count

ii. Cole v. Turner1. If two people in small hallway and brush into each otherwithout violence, no battery. With violence, battery.

2. Direct or Indirect Contacta. Directstriking theb. Indirectsetting a trap for to fall into

ii. s Person1. includes anything connected to the

a. purse, clothing, etc.b. Fisher v. Carrousel Motor Hotel

i. at conference when plate is ripped out of his hands while beingverbally abused

D. Assaulta. Elements of prima facie case:

i. An act by creating a reasonable apprehension inii. Ofimmediate harmful or offensive contacttos person

iii. Intentiv. Causation

b. Distinguish Feari. Apprehension should not be confused with fear or intimidation

a. Weak person can cause apprehension in a bullyc. Apparent Ability Sufficient

i. If has apparent abilityto commit a battery, this will be enough to cause reasonableapprehension

1.

Western Union Telegraph v. Hilla. makes lewd suggestion and reaches to grab . acting outside employmand is behind counter. WU would have been liable if within scope of

employment, plus he couldnt reach her. No apprehension.2. I de S et ux. v. W de S

i. owns bar, tries to beat down door and hits it with axe afterwife tells to stop. can recover although no physical harm to wife

d. Effect of Wordsi. Words alone not sufficient. For to be liable ,words must be coupled with conduct.

HOWEVER, words can negate reasonable apprehension


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1. Shake fist but state will not hit

e. Requirement of Immediacyi. must be apprehensive that she is about to become victim of immediate battery

E. False Imprisonmenta. Elements of Prima Facie case:

i. An act or omission on part of thatconfines or restrainsii. To a bounded area

iii.

Intentiv. Causationb. Sufficient Methods of Confinement or Restraint

i. Physical barriersii. Physical force or Threats of force

1. Hardy v. LaBelles Dist. Co.a. accused of stealing stays to clear her name, absent force or threat of fo

there is no FI

iii. Failure to release1. Enright v. Groves

a. arrested for not producing ID, falsely arrested arrest w/o proper legauthority is FI

iv. Invalid use of legal authority1. Big Town Nursing Home v. Newmana. escapes nursing home direct restraint w/o legal justification is FI

c. Insufficient Methods of Confinement or Restrainti. Moral pressure

ii. Future threats (economic, employment threats)d. Time of Confinement

i. Doesnt mattere. Awareness of Confinement

i. Mustknowof the confinement or be harmedby it1. Parvi v. City of Kingston

a. Police drop off drunk near a highway, wanders onto highway and isby a car

f. What is a bounded area?i. Multidirectional, limited freedom of movement withNOreasonable means of escape kno

to

1. Whittaker v. Sanforda. not allowed to go ashore physical barriers

F. Intentional Infliction of Emotional Distressa. Elements of prima facie case:

i. Act by amounting to extreme and outrageous conductii. Intent or recklessness

iii. Causationiv. Damagessevere emotional distress

Infliction of Emotional DistressIntentional Negligent

Conduct Required Extreme and outrageous

conduct by the D

Subjecting P to threat of

physical impact or sever

emotional distress likely to

cause physical symptoms

Fault Required Intent to cause severe

emotional distress or

Negligence in creating risk of

physical injury to P


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recklessness as to the effect of

conduct

Causation and Damages Ds conduct must cause severeemotional distress

Ds conduct generally mustcause tangible physical injury

(i.e. miscarriage)

Bystander Recovery when

Another is Physically Injured

P bystander must be present

when injury occurs and be

close relative of the injuredperson and the D must know

these facts when he

intentionally injures the other

person or D must have intent to

cause P distress

P bystander must be within in

the zone of danger created by

Ds negligent conduct must besubjected to threat of impact.

Modern trend allows recovery

based on foreseeability factors

b. Extreme and Outrageous Conducti. This is conduct that transcends all bounds of decency.

1. Slocum v. Food Fair Stores of FLa. Employee insults customer NOT IIED

ii.

distress alone suffices as extreme and outrageous if severe1. State Rubbish Collectors v. Siliznoffa. Trash collector threatened by Association

2. Harris v. Jonesa. Coworkers ridiculed about speech impediment distress must be severe

iii. Conduct that is not normally outrageous may become so if:1. Continuous in nature2. Directed toward a certain type of

a. Children, elderly, known supersensitive people3. Committed by a certain type of

a. Common carriers, innkeepersc. Damages

i. Actual damages required; no nominalii. Physical injury not requirediii. More outrageous activity, less proof necessary

***Only Intentional Tort that REQUIRES damages***

d. Causation in Bystander Casesi. Taylor v. Vallelunga

1. witnesses fathers beating by ii. When intentionally causes physical harm to 3rdparty and suffers severe emotional

distress because of it,may recover by showing eitherprima facie case elements of IIE

OR

1.

Present when injury occurred2. Close relative of injured person3. knew facts 1 and 2

**IIED is a FALLBACK tort position. If other tort will allow recovery, use it instead**

G. Trespass to Landa. Prima facie case

i. Physical Invasion ofs real propertyii. Intent

iii. Causation


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I. Conversiona. Elements of a prima facie case

i. Act by thatinterferes with s right of possession in a chattelii. The interference isso serious that it warrants requiringto pay the chattels full valueiii. Intentiv. Causation

b. Acts of Conversioni. Wrongful acquisition (theft)

ii. Wrongful transferiii. Wrongful detentioniv. Substantially changing, severely damaging, or misusing a chattel

c. Seriousness of Interferencei. The longer the withholding period and the more extensive the use, the more likely it is t

conversion

1. LESS SERIOUS INTERFERENCES IS T to CHATTELSd. Subject Matter of Conversioni. Only tangible personal property and intangibles that have been reduced to physical form

are subject to conversion

1. Pearson v. Dodda. Employees remove and copy files ideas on paper are not subject to

conversion unless they are intellectual property

2. Promissory notee. Potentials

i. Anyone with possession or the immediate right to possession of the chattel may maintaithis action

f. Remediesi. may recover damages (fair market value)

ii. or possession (replevin)II. DEFENSES TO INTENTIONAL TORTS

A. Consenta. s consent to s conduct is a defense

i. MAJ: One cannotconsent to a criminal actb. Express (Actual) Consent

i. Not liable if expressly consents to s conductii. Exceptions

Trespass to Chattels Conversion

Act by Defendant An interference with Ps right

of possession of chattel (either

intermeddling or

dispossession)

An interference with Ps right

of possession so serious as to

warrant that D pay the chattelsfull value

Intent Intent to do the act that brings

about the interference

Intent to do the act that brings

about the interference

Remedy Recovery of actual damagesfrom harm to chattel or loss of

use (if dispossession, damages

based on rental value)

Damage award of fair marketvalue of chattel at time of

conversion (i.e. force sale of

chattel) may instead recover

chattel (replevin)


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1. Mistake will undo express consentif knew of and took advantage of the

mistake

iii. DeMay v. Roberts1. misrepresents himself while is delivering a baby2. Consent induced by fraud will be invalidated if it goes to an essential matter,

not a collateral matter

iv. Consent obtained by duress will be invalidated unless the duress is only threats offuture action or future economic deprivationc. Implied Consent

i. Apparent consent1. OBrien v. Cunnard S.S. Co.

a. Immigrant vaccinated by a ship doctorb. That which a reasonable person would infer from custom and usage

s conduct

2. Hackbart v. Cincinnati Bengalsa. Normal contacts inherent in body-contact sports, ordinary incidental

contact, etc.

3. Consent implied by lawa. Mohr v. Williamsb. doctor operates on wrong ear of c. When action is necessary to save a persons life or some other impor

interest in person or property

d. Capacity Requiredi. Individuals without capacity are deemed incapable of consent

1. Incompetents, drunken persons, very young kidsii. This requirement differs from the rule for the intent element of intentional torts, wh

incapacity is no defense

1. EVERYONE has the capacity to commita tort, not everyone has capacity toconsentto a tort

e. Exceeding Consent Giveni. If exceeds the scope of consent and does something substantially different, he may

liableB. Self-Defense, Defense of Others, and Defense of Property

a. When discussing defense of self, others, or property, ask:i. Is the privilege available? Must be present or immediate future tort, past tort does n

qualify

ii. Is a mistake permissible as to whether the tort being defended against is actually beicommitted?

iii. Was a proper amount of force used?**Keep your parties clear. The conduct of the was prompted by the commission/apparent

commission of a tort by . This tort is NOT AT ISSUE. The issue is whether s response itself

constituted a tort against the or instead was privileged by one of these defenses.***

b. Self Defensei. When a person reasonably believes that she is being/is about to be attacked, she m

use such force as is reasonably necessary to protect against injury.

ii. *When is Self Defense available?1. Need not attempt to escape.

a. Modern trend imposes a duty to retreatbefore using deadly force ifretreat can be done safely, unless in home.

2. Self-defense is generally not available to the initial aggressor.3. Self-defense may extend to 3rd party injuries caused while defending herse


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a. At common law, one could use force to reenter land only when the other came into possessio

tortiously. Under modern law, there are summary procedures for recovering possession of r

property. Hence, resort to self-help is no longer allowed.

D. Recapture of Chattelsa. The basic rule is the same as that for reentry of land at common law: when anothers posses

began lawfully (a conditional sale), one may use only peaceful means to recover chattel. For

may be used to recapture a chattel only when in hot pursuit of one who has obtained posses

wrongfully, e.g. by theftb. When is Defense Available?i. Timely Demand Required

1. A timely demand to return the chattel is first required unless clearly futile ordangerous.

ii. Recovery Only from Wrongdoer1. The recapture may be only from a tortfeasor or some third person who know

or should know that the chattels were tortiously obtained.

2. One may not use force to recapture chattels in the hands of an innocent party3. Entry on Land to Remove Chattel

a. On Wrongdoers Landi. When chattels are located on the land of the wrongdoer, the

owner is privileged to enter on the land and reclaim them at areasonable time and in a reasonable manner, after first makin

demand for their return.

b. On Land of Innocent Partyi. Similarly, when the chattels are on the land of an innocent pa

the owner may enter and reclaim her chattel at a reasonable

and in a peaceful manner when the landowner has been given

notice of the presence of the chattel and refuses to return it.

ii. The chattel owners right of recapture supersedes thelandowners right to defend his property.

iii. The chattel owner will be liable for any actual damage causedthe entry.

c. On Land Through Owners Faulti. If the chattels are on the land of another through the ownersfault there is no privilege to enter on the land.

1. Letting cows wanderii. They may recover only through legal process.

c. Is Mistake Allowed?i. No, generally no mistake regarding defendants right to recapture the chattels or ent

on the land is allowed.

ii. However,shopkeepers may have a privilege to detain for a reasonable period of timeindividuals whom they reasonably believe to be in possession of shoplifted goods.

1. Bonkowski v. Arlans Dept Storea. detained for suspected shoplifting by s security guard

d. How Much Force May Be Used?i. Reasonable force, not including force sufficient to cause death or serious bodily harm

may be used to recapture chattels.

1. Hodgent v. Hubbard- buys a stove from on bad credit use of force in hpursuit

E. Privilege of Arresta. Depending on the facts, the actor may have a privilege to make an arrest of a third person.b. Invasion of Land


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i. The privilege of arrest carries with it the privilege to enter anothers land for the

purpose of effecting an arrest.

c. Subsequent Misconducti. Although the arrest itself may be privileged, the actor may still be liable for subseque

misconduct

1. Failing to bring the arrested party before a magistrate, unduly detaining theparty in jail.

F.

Necessitya. A person may interfere with the real or personal property of another when it is reasonably aapparently necessary to avid threatened injury is substantially more serious that the invasio

that is undertaken to avert it.

b. There are two types of necessity:i. Publicwhen the act is for the public good

1. Surocco v. Gearya. blows up s house to prevent the spread of a fire

ii. Privatewhen the act is solely to benefit any person or any property from destructor serious injury.

1. Vincent v. Lake Erie Transp. Co.a. Boat damages a dock during a stormb.

Under private necessity, the actor must pay for any injury caused

**Necessity is a defense ONLY to property torts**

G. Disciplinea. A parent or teacher may use reasonable force in disciplining children.

H. Justificationa. Last resortdefense were it would be unfair to hold liable but facts do not meet

requirements of traditional defenses/privileges

i. Sindle v. NYC Transit Authority1. Bus driver refuses to let destructive kids off bus. Takes them to the cops.2. May exceed the scope of consent but must be reasonable action to protect

persons or property from damage

III. NEGLIGENCE

A. PRIMA FACIE CASEa. Elements

i. A dutyon the part ofto conform to a specific standard of conductfor protection ofagainst an unreasonable risk of injury

ii. A breach of that duty by iii. Damage

B. DUTY OF CAREa. A duty of care is owed to all foreseeables.

i. Lubitz v. Wells - man leaves golf club in yard, son injures neighbor w/ it1. TEST for Foreseeabilityif its likely to happen an individual must foresee t

it could happen. If likelihood is remote, but seriousness of injury is great m

foresee serious injury

b. The extent of the duty is determined by the applicable standard of care.i. Blyth v. Birmingham Waterworks water main break during record frost

1. Failure to do what a reasonable person would do and doing something that areasonable person would not do

c. When confronted with a negligence question, always ask:i. Was the foreseeable?

ii. IF so, what is the applicable standard of care?


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d. Foreseeable/Unforeseeables

i. A duty of care is owed only to foreseeable sii. A problem arises where breaches a duty to one and also causes injury to another (po

unforeseeable).

iii. There are two possible outcomes: (Palsgraf)1. Cardozo View (MAJ)Foreseeable Zone of Danger

a. -2 can recover ONLY if she can establish that a reasonable person woulhave foreseen a risk of injury to her under the circumstances

i. Located in the foreseeable zone of danger2. Andrews View (MIN)Everyone is Foreseeable

a. -2 may establish the existence of a duty extending from to her by ashowing that has breached a duty owed to -1.

e. Foreseeable Harmi. Gulf Refining Co. v. Williams - defective bung cap on gas drum explodes

1. Threat of Serious Injury- the more serious the potential injury the lessprobable its occurrence need be before will be held liable for not guardinagainst it

f. Specific Situationsi. Rescuers

1. A rescuer is a foreseeablewhere negligently put himself or a third person inperil

a. Danger invites rescueii. Prenatal Injuries

1. A duty of care is owed to a viable fetus.2. In cases of failure to diagnose a congenital defect or properly perform a

contraceptive procedure:

a. No recover by child for wrongful lifeb. Yesthe parents may recover damages in a wrongful birth or wrong

pregnancy action fori. Any additional medical expenses

ii. Pain and suffering from laboriii. No recovery of ordinary child rearing expenses

iii. Intended Beneficiaries of Economic Transactions1. A 3rd party for whose economic benefit a legal or business transaction was made

may be a foreseeable

a. Ex. Beneficiary of a williv. United States v. Carrol Towing run away barge w/o an employee on board

1. HAND BALANCING TEST - B< L x Pa. B burden which the would have had to bear to avoid riskb. L gravity of the potential injuryc. P probability that harm will occur from s conduct

g. Standards of Carei. Basic StandardThe Reasonable Person

1. Vaughn v. Menlovea. Dry hay bale of the catches fire built to his best ability and his best

knowledge violates reasonable person standard

2. An objective standard3. DeClair v. McAdoo

a. s tire blows out causing collision w/ - cannot escape liability simply the doesnt know

b. Ones conduct measured against what the average person would do4. Breunig v. American Family Ins.

a. Insane crosses hwy. median hitting


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b. A s mentaldeficiencies and inexperience are not take into accountc. i.e. stupidity is no excuse

5. Roberts v. State of Louisanaa. Blind person knocks down man while walkingb. Reasonable person is considered to have the samephysicalcharacteris

as

c. REMEMBER one is expected to know ones physical handicaps and toexercise the care of a person with suck knowledgei. A blind person should not fly a plane

6. Trimarco v. Kleina. landlord installs glass shower door which shatters injuring b. Evidence of custom or industry practice may be used as evidence of what

reasonable person would do under the circumstances

c. Not conclusive evidenceii. Particular Standards of Care

1. Professionala. A professional or someone with special occupational skills is required to

possess

i. The knowledge and skillii. of a member of the profession or occupationiii. In good standingiv. in similar communities

b. Boyce v. Brown ankle trouble follows after a breakc. Morrison v. MacNamara man injured during lab testing

i. Medical specialists are held to a higher, national standard of cared. Duty to Disclose Risks of Treatment

i. Scott v. Bradfordwomans hysterectomy goes awryii. A doctor has a duty to disclose the risks of treatment to enable a

patent to make an informed consent

e. Heath v. Swift Wings Inc. faulty takeoff leads to plane crashi. Expert testimony must be used to est. as a professional who

departed from all courses of conduct of that profession unleits something thatcould be known by law jurors

f. Hodges v. Carter lawyers improperly serve insurance companyi. Professionals who meet the standard of care are not liable fo

mere errors in judgment

2. Childrena. Robinson v. Lindsay - child driving a snowmobile injures another childb. Children are held to the standard of a child of:

i. Like ageii. education

iii. intelligenceiv. and experience

c. This is asubjective testd. A child under 4 is generally without the capacity to be negligent.e. Children engaged in adult activities may be required to conform to an

adult standard of care3. Common Carriers and Innkeepers

a. Held to a very high degree of carei. Liable for slight negligence

**For higher common carrier/innkeeper standards to apply, theMUST bpassenger or guest**


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4. Automobile Drivers

a. A guest in an automobile is owed a duty of ordinary careb. In the few guest statute states, one is liable to nonpaying passengers only

reckless tortious conduct

5. Emergency Situationsa. Cordas v. Peerless Transportation taxi driver abandons car after bein

held at gunpoint

b.

must act as a reasonable person would under the same emergencyconditions

c. the emergency is NOT to be considered if it ofs own makingiii. Owners and Occupiers of Land

1. The extent of the liability of owners and/or occupiers of land depends on where injury occurred and on the status of the

a. Also applies to those in privity with owner/occupier2. Duty of Possessor to Those Off Premises

a. There is no duty to protect one off the premises from natural conditionsthe premises

b. There IS a duty for unreasonably dangerous artificialconditions orstructures abutting adjacent land

c. One must carry on activities on property so as to avoid unreasonable riskharm to others outside the property**In urban areas, the owner/occupier is liable for damage caused off the premises b

trees on the premises, such as falling branches**

3. Duty of Possessor to Those On Premisesa. In most states the duty owed a on the premises depends on the s sta

as trespasser, licensee, or invitee

4. Attractive Nuisance Doctrinea. Chicago B &QR v. Krayenbuhl child injured by unlocked RR turntable

public good v public nuisance

b. must showi. a dangerous condition on the land that the owner is or shouldbe

aware of

ii. the owner knows or should know children frequent the vicinity othe condition

iii. the condition is likely to cause injury; is dangerous because of chinability to appreciate risk

iv. the expense of remedying the situation is slight compared with thmagnitude of the risk

**the child does not have to be attracted onto the land by thedangerous condition NOR is the attraction alone enough for liability


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Invitee (i.e. member ofpublic, business visitor)

Campbell v. Weathers -man falls through trap doorwhile walking to rest room

Licensee (includingsocial guest) Barmore v.Elmore - man's son attacks

visitor with a knife - notliable b/c social guest

licensee

Child (if presence onland foreseeable -

attractive nusiancedoctrine)

Discovered orAnticipatedTrespasser

UndiscoveredTrespasser Sheehan v.

St.Paul - train runs over amans foot when caught in

tracks

Status of Entrant

Duty of Posseor ofLand To Those on the

Premises

DutiesOwed

ArtificialConditions

No Duty

Duty to warn of ormake safe knownconditions if non-

obvious and highlydangerous

Duty to warn of or

make safe ifforeseeable risk tochild outweights

expense ofeliminating danger

Duty to warn of ormake safe known

conditions ifnonobvious and

dangerous

Duty to makereasonable

inspections todiscover nonobviousdangerous conditionsand warn of or make

them safe

Natural Conditions

No Duty

No Duty

No Duty (unlessChild also qualifiesas licensee or

invitee)

Duty to warn of ormake safe known

conditions ifnonobvious and

dangerous)

Duty to makereasonable

inspections todiscover nonobviousdangerous conditionsand warn of or make

them safe

Active Operations

No Duty

Duty of ReasonableCare





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5. Modern Trends Rejects Status Rulesa. Strong MIN of stats reject the distinction between licensees and invitees

simply apply a reasonable person standard to dangerous conditions on laiv. Negligence Per Se

1. A statutes specific duty may replace the more general common law duty of due cif:

a. The statute provides for a criminal penaltyb. The statute clearly defines the standardof conductc. iswithin the protected classd. the statute was designed to prevent the type of harm suffered by

2. Osborne v. McMasters- lady swallowed unlabeled poison and diesa. Specific conduct required by the statute substitutes for more general

reasonable person standard

3. Excuse for Violationa. Violation of some statutes may be excused where compliance would caus

more danger than violation or where compliance would be beyond scontrol

4. Effect of Violation or Compliancea. Martin v. Herzog - car rounds curve hits buggy w/o lightsb. Stachniewicz v. Mar-Cam Corp. bar brawl and stampeded cause injur

i. administrative regulation does not have same force as statutec. MAJan unexcused statutory violation is negligence per se

i. Establishes first two requirements of prima facie caseii. A conclusive presumption of duty and breach of duty

d. Even though violation may be negligence, compliance does not necessariestablish due care

5. Rebuttable Presumptiona. Zeni v. Anderson nurse uses snow path instead of sidewalk and is hit b

car snow path was customary

i. Statute est. a rebuttable presumption - can introduce evidence due care to rebut the presumption of negligence

h. Duty Regarding Negligent Infliction of Emotional Distressi. The duty to avoid causing emotional distress to another is breached when creates a

foreseeable risk of physical injuryto, either by:

1. Causing a threat of physical impact that leads to emotional distress2. Directly causing severe emotional distress that by itself is likely to result in phys

symptoms

ii.

Thing v. LaChusaman hits womans son w/ car causing emotional distress1. Injury Requirementa. can recover damages only ifs conduct caused somephysical injuryb. While pure emotion distress may be insufficient, a severe shock to the

nervous system that causes physical symptoms IS sufficient

c. Physical Injury NOT required wheni. An erroneous report of a relatives death

ii. A mishandling of a relatives corpseiii. Zone of Danger Requirement


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1. Ifs distress is caused by threat of physical impact, most courts require that the

threat be directed at the or someone in her immediate presence

2. a bystander outside the zone of danger of physical injury who sees negligentinjuring another cannot recover damages for her own distress

3. a strong modern trend allows recovery based on foreseeability factors rather thazone of danger if:

a. and the person injured by are closely relatedb. was present at the scene, andc. observed or perceived the injury

**Torts for emotional distress are not the only means of recovering damages for emotion

distress. If physical injury has been caused by commission of another tort, can tack ondamages for emotional distress as a parasitic element of his physical injury damages,

without the need to consider the elements of the emotional distress torts**

i. Affirmative Duties to Acti. L.S. Ayers & Co. v. Hicks boy gets fingers caught in escalator duty to rescue may be

owed where controls the instrumentality causing the injury

ii. Generally, one does not have a legal duty to act.iii.

(Hegel v. Langsom) University co-ed becomes promiscuous and uses drugs. University liable, only duty to keep safe in classroom and on campus. Not responsible for off campu

responsibility.

iv. Exceptions:v. Assumption of Duty by Acting

1. One may assume a duty to act by actinga. One comes to aid, he must do so with reasonable care

2. Exception: many stats have enacted Good Samaritan statutes, which exemptdoctors, nurses, etc., from liability for ordinary, but not gross, negligence

vi. Peril Due to s Conduct1. One has a duty to assist someone he has negligently or innocently placed in peril

vii. Special Relationship Between Parties1. A special relationship may create a duty to act.a. Parent-child2. Common carriers, innkeepers, shopkeepers, and others that gather the public f

profit owe duties of reasonable care to aid or assist their patrons.

3. Places of public accommodation have a duty to prevent injury to guests by thirdpersons.

4. Tarasoff v. Regents of U. of California- man tells psychologist hes going to killwoman, months later he kills her

a. Therapists must have a relationship with the actor to be held to havduty to act not just the victim

viii. Duty to Control Third Persons1. Generally there is no duty to prevent a third person from injuring another.2. An affirmative duty may be imposed, however, if one has the actual ability and

authority to control a persons actions, and knows or should know theperson is

likely to commit acts that would require exercise of this control.

C. BREACH OF DUTYa. Where s conduct falls short of that level required by the applicable standard of care owed to th

.

i. Whether the duty of care has been breached in an individual case is a question for the trof fact

ii. Main problem is proof of breachb. may use one of the following theories:


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b. Actual Cause (Cause in Fact)

i. Kramer Service v. Wilkins glass injury is blamed as cause of cancer1. Before s conduct can be considered a proximate cause ofs injuries, it must fi

me a cause in fact of the injury. Use these tests:

ii. Perkins v. Texas and New Orleans RR - car hit by negligent train1. But For Test

a. Act or omission is the cause in fact of an injury when the injury would nohave occurred BUT FOR that act.i. This test applies where several acts (each insufficient to be sole

cause) combine to cause injury

2. Joint CauseSubstantial Factor Testa. Where several causes bring about injury, and any one alone would have

been sufficient to cause the injury, s conduct is the cause in fact if it wasubstantial factor in causing the injury

b. Here BOTH parties caused the harm.c. Hill v. Edmonds - car crashed into parked car on the highway

i. Each is responsible for the entire result even though his act alonemay not have caused the injury

3. Single Indivisible Injury Rulea. Summers v. Tice - two hunters negligent 1 bullet injured b. This test applies when there are two acts, only one of which causes injury

but it is not known which one.

c. Burden of proof shifts to s, and each must show that his negligence is nothe actual cause

d. Here BOTH parties negligent, only ONE caused harm-** Rear View Mirror - s own negligence is not a but for cause of the s injury b/c even if the had checked t

mirror the would still not have been in view and the would still have been injured

**Act of Nature if the intervening force is an act of nature that is truly extraordinary and unforeseeable act o

nature merely produces the same result as the threatened by the s negligent conduct the may still be liable

c. Proximate Cause (Legal Causation)i. In addition to being cause in fact, s conduct must also be the proximate cause of the inj

Even though the conduct actually caused s injury, it might not be deemed to be theproximate cause. Thus the doctrine of proximate causation is a limitation of liabilityan

deals with liability or nonliability for unforeseeable or unusual consequences of ones acii. General RuleScope of Foreseeable Risk

1. Ryan v. New York Central RR RR woodshed fire spreads to surrounding housevery person is liable for the consequences of his own acts but NOT remote dam

2. A generally is liable for all harmful results that are the normal incidents of andwithin the increased risk caused by his acts. This is aforeseeabilitytest.

***Questions raising proximate cause issues will not require you to make a

judgment call on foreseeability in a close case. If the answer turns on the

proximate cause issue, the correct choice will almost always be phrased in if

unless terms. Otherwise the facts in the question will be so clear-cut that

common sense will tell you immediately whether the harm that occurred was

foreseeable***


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Proximate Cause Rules

Foreseeable Harmful Result

Unforeseeable Harmful

Result

Direct Cause CasesIndirect Cause Cases

D Liable D liable D liable unless

intervening

force is crime or

intentional tort

D not liable D not Liable D not liable;

Intervening force

is Superseding

3. Liability in Direct Cause Casesa. Where there is an uninterrupted chain of events from the negligent act to

s injury, is liable for all foreseeable harmful results, regardless of

unusual manner or timing. (Wagon Mound 2)

b. is not liable for unforeseeable harmful results not within the risk creaby s negligence. Most harmful results will be deemed foreseeable in dicause cases.(Wagon Mound 1)

4. Liability in Indirect Cause Casesa. Bortolone v. Jeckovich car crash exacerbates s schizophreniab. An affirmative intervening force comes into motion after s negligent ac

and combines with it to cause s injury

i. Act of God, Act by a third personc. Foreseeable Results Caused by Foreseeable Intervening Forces

Liablei. Derdiarian v. Felix Contracting Epileptics car crashed into

unprotected worksite

ii. Watson v. Kentucky and Indiana Bridge - match ignites gas frospill after RR cars derail

iii. is liable where his negligence caused a foreseeable harmfulresponse or reaction from a dependent intervening force or creat

a foreseeable risk that an independent intervening force would h

iv. Common Dependent Intervening ForcesThese intervening forces are almost always foreseeable:

1. Subsequent medical malpractice2. Negligence of rescuers (McCoy v. American Suzuki)3. Efforts to protect the person or property of oneself or

another

4. Injuries caused by another reacting tos actions5. Subsequent diseases caused by a weakened condition6. Subsequent accident substantially caused by the original

injury

v. Independent Intervening Forces

Foreseeable

intervening

Unforeseeable

intervening


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Are not a natural response or reaction to the situation created by

s conduct may be foreseeable ifs negligence increased the risharm from these forces:

1. Negligent acts of third persons2. Crimes and intentional torts of third persons3. Acts of God

vi. Foreseeable Results Caused by Unforeseeable InterveningForces

Usually Liable1. Neg increased risk of a foreseeable harmful result

2. Does not apply where the unforeseeable force was a crimintentional tort by third party

vii. Unforeseeable Results Caused by Foreseeable InterveningForces Not Liable

1. Rareviii. Unforeseeable Results Caused by Unforeseeable Intervening

Forces Not Liable1. If results not within the increased risk created by s

negligence, deemedsuperseding

5. Unforeseeable Extent or Severity of Harm Liablea. Eggshell-Skull Ruleb. takes as he finds him; is liable for all damages including aggravation

an existing condition, even if extent unforeseeable

E. JOINT TORTFEASORSa. Apportionment Damages

i. Causal one cased a particular or identifiable share of the loss and should held to nomore than that liability

ii. Comparative Faulteach is held liable for a percentage of the s damages in proporto that s percentage share of the fault

iii. Joint and Several Liability - may sue each tortfeasor separately, sue both in a singleaction, obtain judgment against one alone and enforce it, obtain judgment against both a

enforce it may NOT collect more than one full compensation

1. Indivisible Injury where negligence of 2 or more persons concur in producingsingle, indivisible injury tortfeasors are jointly and severally liable although ther

was no common duty, design or concert of action

2. Divisible Injury where there are independent concurring acts that cause distinand separate injury no joint and several liability

iv. Bruckman v. Pena mans injuries exacerbated in 2nd car accident1. Jury must allocate btwn the two injures

v. Miche v. Great Lakes Steel Division families harmed by pollutants from severalcompanies emissions

1. Indivisible jury cannotreasonable apportion damages between the sF. DEFENSES TO NEGLIGENCE

a. Contributory Negligencei. Butterfield v. Forrester is required to specifically plead contributory negligenc

as an affirmative defense - is held to same standard as - reasonable person

ii. Negligence on the part of the that contributes to her injuries. Same standard of care aordinary negligence.

iii. No Defense to Intentional Torts1. Not a defense to wanton and willful misconduct or intentional tortious conduct

iv. Effect of Contributory Negligence1. Completely barreds right to recover at common law. Almost all Js now favor

comparative negligence system

v. Last Clear ChanceAn Exception to Contributory Negligence (Davies v. Mann)


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I. Products Liability

A. Basic Principles P/L is the liability of a supplier of a defective product to someone injured by said prod1. 5 Theories of Liability

a. Intentb. Negligencec. Strict liabilityd. Implied warranties of merchantability and fitness for a particular purposee. Express warranty and misrepresentation

Products Liability TheoriesNegligence Strict Liability Implied Warranties

Who Can Sue? Any foreseeable P Any foreseeable P Purchaser and his

family, household and

guests

Who Can Be Sued? Any commercial

supplier (i.e.

manufacturer,

wholesaler, retailer)

Any commercial

supplier

Merchantability: a

merchant dealing in

the kind of goods sold

Fitness for a Particular

Purpose: any seller of

the goods

What Constitutes

Breach?

Negligent conduct that

results in the

supplying of a

defective product

The supplying of a

defective product

Merchantability: sale of

goods not generally

acceptable or fit for

ordinary purposes

Fitness for a Particular

Purpose: sale of goods

not fit for purpose that

seller knows or hasreason to know of (and

knows that buyer is

relying on sellersjudgment

What Damages can

be Recovered?

Personal injury and

property damage (no

recovery for economic

loss standing alone)

Personal injury and

property damage (no

recovery for economic

loss standing alone)

Personal injury and

property damage

(recovery solely for

economic loss

permitted)

What Defenses are

Available?

Assumption of risk and

any contributory

negligence

Contributory

Negligence States:

assumption of risk and

unreasonable misuse

(failure to discover or

guard against defect is

NOT a defense)

Comparative

Negligence States: any

type of fault under

states comparative

Contributory

Negligence States:

assumption of risk,

unreasonable misuse,

failure to give

reasonable notice of

breach

Comparative

Negligence States: any

type of fault under

state


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negligence rules

B. Strict P/L Prima Facie Elementsa. Knowledge that the D manufactured or sold product

i. The P must show that the D manufactured the item or placed it in the stream ofcommerce

b. Defect existedi. The p must show that the product was defective

c. Causationi. The P must show that the product and its defective aspects were the cause-in-fact

the proximate cause of the Ps injuries

d. Defect existed when the Ds handsi. The P must show that the defect existed at the time the product left the Ds hands

C. Types of Defectsa. Manufacturing Defects if a product emerges from manufacturing different and more dangerou

than products made properly

i. Rix v. General Motors - faulty brake system1. P must provea. Product was in a defective conditionb. Product was expect to and did reach the ultimate consumerc. Defective condition in the product was proximate cause of injury to

b. Design Defect all products of a line are the same but have dangerous propensitiesi. Prentis v. Yale Mfg. Co. forklift power surge injures worker

1. Pure Neligence Risk Utility Test -liability is predicated upon defective design, lto negligence of manufactures in designing product

c. Inadequate Warnings manufactures failure to give adequate warnings of the risks involved inusing the product danger must not be apparent to users

i. Anderson v. Owens-Corning - asbestos1. must demonstrate that had actual or constructive knowledge of the potentia

risk or danger that caused the injury to

2. DEFENSE: Evidence ofState of the Artwas such that the could not have knowthe risk

D. Proof of Defecta. Manufacturing Defect - D will be liable if P can show the product failed to perform as safely as an

ordinary consumer would expect

b. Design Defect - P must show that the D could have made the product safer w/o serious impact oproduct price or utility

c. Non compliance with government safety standards will establish defect compliance is evidencbut not conclusory

d. State of the Art D will not be held liable for dangers not foreseeable at the time of marketing duto scientific or technological limitations

e. Unavoidable unsafe product manufacturers will not be held liable if the danger is APPARENT athere is no safer way to make the product (i.e. knives)

E. Defect must have existed when product leftF. Liability based on Negligence

a. Duty of care owed to anyforeseeable plaintiff


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i. Users, consumers and bystanders can sue if foreseeable P

ii. Commercial suppliers can be held liable i.e. manufacturers, wholesalers and retailers.(Garage sales are not commercial suppliers)

b. Breach of Duty is shown byi. Negligent conduct of the D that leads to

ii. Supplying of a defective productiii. Proof same as standard negligence case P may invoke Res IpsaLoquituriv. Retailers and Wholesalers can satisfy duty w/ a reasonable inspection

c. Causation intermediary in the chains failure to discover a defect is not a superseding cause untheir conduct exceeds reasonable negligence

d. Damages physical or property injury must be shownG. Defenses

a. Ford Motor Co v. Matthews tractor runs over man due to faulty switchb. Misuse -s misuse of a product will not prevent recovery IF the s abnormal and unintended

of his product was not reasonably foreseeable or should have been foreseeable to the

c. Forseeability manufacture is not liable for injures resulting from abnormal or unintended usethe product if such use was not reasonably foreseeable

d. Failure to Discover Danger if the s contributory negligence lies in failing to inspect theproduct or otherwise failing to become aware of the danger this is NOT a defense for

e. Unreasonable Exposure to Riskif learns of the risk and nonetheless voluntarily submto the risk assumption of risk

f. Abnormal Use if s contributory negligence consists of abnormal use or misuse this MAY bedefense but depends on the degree of foreseeability of the use of the product

g. Independent Negligence if s contributory negligence is an independent concurring cause othe harm the will probably be able to recover if can show that the effect of the independent

event was not foreseeable or bizarre that it should be considered a superseding act

H. Liability based on S/La. Duty D has a duty as a commercial supplier to supply safe goods

i. Product must reach P w/o substantial alterationii. Applies only to products not services

iii. Any commercial supplier can be held liable casual sellers will not usually be held liable(i.e. garage sales)

b. Breach of Dutyi. P must show product is defective defect must make product unreasonably dangerous.

Retailers may be liable even if no opportunity to inspect

c. Causationi. Actual cause P must show that the defect existed when product left Ds control

ii. Proximate Cause same for negligence casesd. Defenses

i. Contributory Negligence is no defense where P merely failed to discover the defect or guagainst its existence or where misuse was foreseeable

ii. Comparative negligence jurisdictions apply appropriate rulese. Disclaimers irrlevent if negligence or S/L if personal injury or property damages occur

I. Implied Warrantya. Merchantability whether goods are of average acceptable quality and are generally fit for the

ordinary purpose for which the goods are used


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b. Fitness for a particular purpose seller knows or has reason to know the particular purpose for

which the goods are required and the buyer is relying on sellers skill and judgment in selecting

goods

c. Breach of Warranty - if product failes to live up to either (a) or (b) warranty is breached and D isliable

i. P does not have to prove any fault by Dd. Causaiton actual and proximate cause as in negligencee. Defenses

i. Assumption of riskii. Failure to give notice of breach

iii. Contributory negligenceJ. Express Warranty

a. Any affirmation of fact or promise concerning goods (i.e. claims or advertising)i. Anyone that is part of the bargain can sue

b. Breach P need only show that product didnt live up to advertisementc. Disclaimer will only be effective if consistent with the warranty

VI. Nuisance

A. Private Nuisancea. Substantial and unreasonable interference with another private individualsb. Use or enjoymentof property that he actually possess or has a right to immediate possession

1. Substantial interference interference that is offensive, involvement, or annoying to the averageperson in the community. Not substantial if it is result of Ps hypersensitivity or specialized use of

property

2. Unreasonable Interference based on intent or negligence severity must outweigh the utility of Dconduct

a. Balancing test every person is entitled to use his own land in a reasonable way** Nuisance questions will often flag the correct choice w/ a key term from the definition of nuisance. i.e. D is lia

b/c the activity created a substantial or unreasonable interference w/ Ps use of land

B. Public Nuisancea. An act that unreasonable interferes with the health, safety or property rights of the communi

C. Defenses1. Legislative authority i.e. zoning ordinance not absolute defense but is persuasive2. Conduct of Others no one actor is liable for all damage caused by concurrence of his acts and other

i.e. ten steel mills are polluting a stream. Each is responsible for the pollution it creates

3. Contributory Negligence no defense unless Ps case rests on negligence theoryVII. General Considerations for all Cases

A. Vicarious Liability -one person commits a tortious act against a 3rd party and another person will be liabto the 3rd party for this act.

1. Respondeat Superior employer vicariously liable for employees tortious act if w/in thescope of hemployment

2. Partners and Joint Venturers each member of a partnership or joint venture is vicariously liable fotortious conduct of another member committed in the scope and course of the partnership or joint

venture


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3. Parent/Child parent is not vicariously liable for the tortious conduct of a child

a. There are statutory exceptions to thisi. Child acting as an agent for the parents

ii. Parents may be held liable for her own negligence in letting child do something4. Tavern keepers

a. C/L no liability on venders of intoxicating beverages for injuries resulting from drunkenneb. Modern law dram shop act liability to 3rd party b/c of drunken patrons actions

B. Multiple Defendants/ Parties1. Joint and Several Liability 2 or more negligent acts combine to proximately cause an indivisible

injury each negligent actor is held jointly and severally liable. If divisible injury - each D is liable

only for the damages they caused

a. D acting in concert are held jointly and severally liable even if injury is divisibleb. Statute of Limitations many states have abolished joint liability either

i. For Ds less at fault that P ORii. All Ds regarding non-economic damages

1. Liability in these cases is proportionate to Ds fault2. Contribution and Indemnity determine how joint tortfeasors allocate damages

** Generally for Contribution to apply both Ds must have a miserable degree of culpability for the tort. Indemni

usually applies when one party is much more responsible than the other. Neither of these doctrines affects Psamount of recovery, they only determine how much EACH D must pay

a. Contribution - allows multiple Ds to apportion responsibility and damages amongst themsei. Not applicable to intentional torts and D must be originally liable to P

b. Comparative Contribution contribution imposed in proportion to the relative fault of thevarious Ds

c. Equal Shares (Minority) apportionment is in equal shares regardless of degree of faultd. Indemnity shifting entire loss between or among tortfeasors. Only available:

i. By contractii. In vicarious liability situations

iii. Under strict products liabilityiv. In some jurisdictions where there has been an identifiable difference in degree of fau

C. Wrongful Death grants recovery for pecuniary injury resulting to the spouse and next of kin.a. A decedents creditors have no claim against reward

Deceaseds contributory negligence reduces recovery in comparative negligence standard

Travis Risvold Final Outline

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