TORTS. Prof. Kalt Fall I. Intentional Torts Chapter 1 Intentional Torts Chapter 2 (Affirmative) Defense II. Negligence...

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1 TORTS Prf. Kalt Fall 2017 I. Intentinal Trts... 2 Chapter 1 Intentinal Trts... 2 Chapter 2 (Affirmative) Defense... 6 II. Negligence... 9 Chapter 4 Negligence (Duty and Breach)... 9 Chapter 8 and 9: Duty t Care Chapter 5 Causatin in Fact Chapter 6 Prximate Cause Chapter 12 Defense III. Negligence (Part II) Chapter 7 Jint and Several Liability Chapter 13 Vicarius Liability: in the scpe f Chapter 10 Damage and Wrngful Death IV. Strict Liability Chapter 14 Strict Liability Chapter 15 Prduct Liability... 35

2 Chapter 1 Intentinal Trts A. Intent I. Intentinal Trts 1. Intent: plaintiff must shw that defendant acted with the intent t cause a particular cnsequence. It is never enugh simply that defendant intended. 2. Defendant intends the cnsequences f his cnduct if 1. his r her purpse is t bring abut thse cnsequences; OR 2. he r she knws with substantial certainty (KSC) that the cnsequences will result frm his actins. Fr KSC, it is that defendant knew that it wuld happen--nt just that it might happen r even that there was a high risk that it wuld happen-- and he did it anyway, even if plaintiff can t prve that that was why he did it. 3. In many states, yung children are deemed incapable f having the intent t cmmit intentinal trts until a certain age. N majrity rules (justificatin: unable t have intent ; t many law suits.) 4. Mistake des nt vitiate intent. If smene had intent, the fact that it was based n mistaken pretenses is irrelevant. Dn't take this t far--nt everyne wh makes a mistake has intent. Yu still need t shw either the requisite purpse r knwledge t a substantial certainty. Intent means intent t d alleged trt, nt intent t hurt smene. But if yu can shw intent, then mistake desn t change it. Mistake (sht a dg thugh he thught that s a wlf) v. Accident (accidently trigger the gun) 5. Insanity des nt vitiate intent. S lng as defendant had intent (the requisite purpse r knwledge t a substantial certainty) --> it des nt matter that he acted based n sme insane perceptin f the wrld. This des nt mean that insane peple always have intent; it just means that peple with intent might be basing it n smething insane(irrelevant), and if s we dn't care. 6. Transfers (transferred intent) Nrmal Pattern: If defendant intended t cmmit ne f the five classic intentinal trts (battery, assault, false imprisnment, trespass t land, and trespass t chattels) against A, and ended up cmmitting it against B ==> Defendant will be liable t B. Varieties: e.g. tried t hurt A, but hurt B Even D did nt intend t against B, the intent t cmmit it against A transfers. If defendant intended t cmmit ne f the five classic intentinal trts, but ended up cmmitting a different ne f the five ==> he will be liable fr cmmitting the ther trt The intent t cmmit the first trt transfers. Nte that sme statements f this rule nly mentin transfer between assault and battery. e.g. A assaulted B, but due t sme accidents, he actually hurt B (battery) 2

3 B. Battery 1. The elements f battery: Intentin: defendant acted with an intent t cause a harmful r ffensive tuching t plaintiff s persn; AND Result: that intentinal act caused a harmful r ffensive tuching t plaintiff s persn. 2. Actual Damage v. intended damage Once there is battery (intentin and result), D is liable fr the full extent f damages, n matter whether the actual damage is far mre serius than the intended. The fact that the actual damages are far mre serius than defendant intended is irrelevant. Because defendant meets the elements f the trt, he is liable fr the full extent f damages that he ended up causing. Determining what defendant caused will be clarified in Chapters 5 and Tuching: Des nt necessarily need t be directly n plaintiff's persn; it might include smething that plaintiff is hlding r wearing. The tuching must be ffensive t an rdinary persn nt unduly sensitive as t persnal dignity based n the circumstances when the tuching happened. (smetimes the tuching is inevitable) If yur friend tld yu nt t tap him r her, yu still did it liable C. Assault 1. The elements f assault are that acted with an intent t cause a reasnable apprehensin in plaintiff f an imminent battery; AND intentinal act caused plaintiff t suffer a reasnable apprehensin f an imminent battery. 2. Reasnable: lts f ther questins If P was nt actually in danger f suffering a battery, it might still be an assault if plaintiff reasnably thught therwise. e.g. unladed gun: even thugh P may nt have knwn whether a gun pinting at her was laded r nt. If P did nt see the actr, she culdn t reasnably believe she was in danger 3. Imminent means imminent. Plaintiff must be in range and defendant must be vertly acting. general future battery, r is merely preparing t, r is n his way t cmmit it, is nt enugh. Wrd in themselves, n matter hw threatening, d nt cnstitute an assault. 4. Apprehensin P expected the imminent battery, nt necessarily that she feared it. D. False Imprisnment 1. The elements (1) D acted with an intent t cnfine r restrain P in a bunded area; (2) that act caused P t knwingly be cnfined r restrained in a bunded area; and (3) D lacked legal authrity t d this (withut legal justificatin) 2. Cnfinement r restraint: Means: physical barriers, frce r threat f frce, 3

4 (invalid) use f legal authrity, and maybe even threat f damage r lss t reputatin r prperty. Case ntes Mere refusal t admit nt false imprisnment Wrngfully arrest int a car is FI Mral persuasin (fear f lsing his r her jb): may r may nt be relevant The pint at which D s actins amunt t actual restraint may be hard t pin dwn Threat f frce r physical barriers are easy; threat f damage t reputatin r prperty is tugher but at sme pints may rise t the level f FI This leaves lts f discretin t the jury. P is nt cnfined if he r she knws r reasnably shuld knw f a reasnable means f escape. Even if P desn t knw abut the escape pprtunity, D might think he r she des n intent t D. If plaintiff stayed in the space f her wn vlitin N cnfinement 3. Knwledge f cnfinement r restraint Sme states (n majrity): actual injury t substitute fr knwledge f cnfinement. P were harmed + yu dn t knw/remember P culd still win Whether P remember the prcess desn t necessarily matter as lng as P were aware at the time the FI happened. 4. Lack Legal Authrity False arrest is a subset f false imprisnment. if D mistakenly take P imprisn withut legal justificatin, D is liable. Fr he nly needs the intent t retrain, whether his intent at that time was justified is irrelevant. D can shw that an arrest was prper if D had lawful authrity t arrest and P was later cnvicted f the ffense fr which he was arrested. many reasns why P might nt be guilty f the crime even if the arrest was prper. D can shw he had warrant r prbably cause t arrest. Prbable cause: whether that is reasnable. e.g. suspect lks exactly like smene else and etc. If P was arrest willing, he r she cannt win FI, like P willingly cme with plice t plice statin. But if resisting arrest is nt a reasnable means, then the element f cnfinement is satisfied n defense. 5. Nte: Fr clse call cases, the curt has t lk at the whle circumstance. E. Intentinal Inflictin f Emtinal Distress 1. Elements: 1) extreme and utrageus cnduct by the defendant; 2) with intent t cause plaintiff t suffer severe emtinal distress; In sme jurisdictins, recklessness, a lwer standard than intent, suffices fr the intent element f IIED. There is n majrity rule n this pint. 3) causing plaintiff severe emtinal distress. Scrambled factrs: Causatin: freseeability (pre-existing cnditin?) Intent r KSC: 2. Nte: hard t prve 4

5 Curts set the bar fr this trt high nt just by requiring extreme and utrageus cnduct and severe emtinal distress, but als by being much mre likely t take cases away frm juries. A certain tughness f the mental hid is a better prtectin than the law culd ever be. Develpment: Assault: requires threat f frce nt mere verbal threat Battery: requires tuching nt just verbal saying IIED 3. Transfer: des nt apply Defendant must have intent t cmmit this trt against this plaintiff. e.g. A daughter cannt sue fr IIED fr bserving his father being beaten by Ds. (battery cannt transfer int IIED, and frm her father t her.) F. Trespass t Land 1. Elements a. intent by defendant t invade real prperty; b. invading plaintiff s real prperty; c. withut plaintiff s authrizatin. 2. Nte: Whse land? pssessr f the prperty; if there is n ther pssessr, the wner f the prperty see the definitin f landlrd in chapter 9 that s why the tenant culd sue his landlrd fr trespass. Hw t invade? by defendant s persn r by any ther persn r bject that defendant causes t g nt the prperty. N damage is needed: every unauthrized entry int the clse f anther is a trespass. Why bther t bring a suit? 1) establish wnership; 2) it may lead t subsequent cases, causing punitive damage r injunctin; 3) it may cntain cmpensatry damage and cnsequential damage. Even emtinal distress culd be recvered in absence f physical injury. 3. Abve the land: invasin f small znes f air abve the land and grund belw. Hw far abve r belw this ges is subject t balancing that turns n the extent f the interference with plaintiff s use r enjyment f the land. Nte: G. Trespass t Chattels Old rule used t be whse is in the sil, his it is als unt the sky and the depths. After inventin f flight, the remedy fr grund damage as the airline crashes are cnsidered as negligence and/r strict liability. 4. Elements: (1) intent by defendant t use r intermeddle with a chattel; (2) chattel was in pssessin f anther; (3) this results in either (OR) (a) impairing the chattel s cnditin, quality, r value; (b) depriving plaintiff f the use f the chattel fr a substantial perid f time r cmpletely dispssessing plaintiff f the chattel; r (c) harm t plaintiff r a legally prtected interest f plaintiff s. - hurt des nt necessarily mean actual huge damage. 5

6 H. Cnversin 1. Definitin: Cnversin is an intentinal exercise f dminin ver a chattel that s seriusly interferes with the right f the wner t cntrl it that the defendant may justly be required t pay the plaintiff the full (prir) value f the chattel. - Nte: it nly applies t tangible bject and culd be stlen secret des nt apply here 2. If D purchased in gd faith, this may defeat P s cnversin claim. (i.e., having n gd reasn t think that it was rightfully plaintiff s) - D has t shw either P did nt lse it thrugh theft, r D just brught it frm (frmal) business f selling chattels. - But if the chattel was stlen, and if gd faith purchasers bught it frm less frmally (like n Craigslist) D will lse regardless f his gd faith. - Nte that nne f this prevents plaintiff frm suing the first persn wh gt it away frm him. 3. Difference frm trespass t chattels: - It culd be bth trespass t chattels and cnversin at the same time analyze separately Trespass t Chattels Cnversin Nature Categry Remedy Classic intentinal trts transferred intent encmpass lessthan-cmplete dispssessin r destructin cmplete dispssessin r cmplete r nearcmplete damage Nt classic n transfer 1. Amunt f diminutin in value 2. mre easily give rise t ther damages (emtinal harm) Frce sale Same remedy: Fr cmpletely dispssesses r cmpletely destrys full value f the chattel Cnversin is distinct frm trespass t chattels because f the remedy: frced sale instead f just recvering the amunt f the diminutin in value. Cnversin is als nt a classic intentinal trt, s transferred intent des nt apply. Nte that in several srts f cases, the remedy will be the same fr trespass t chattels as it is fr cnversin. If defendant cmpletely dispssesses plaintiff f the chattel and there are n ther damages, fr instance, the remedy in bth cases will be fr the full value f the chattel. The same is true if defendant cmpletely destrys the chattel. The difference is that trespass t chattels can encmpass less-than-cmplete dispssessin r destructin as well, and it can mre easily give rise t ther damages (emtinal harm, etc.) that result frm the trt. Cnversin will always invlve cmplete dispssessin r cmplete r near-cmplete damage t the chattel. Chapter 2 (Affirmative) Defense A. Cnsent 1. Meaning: a. if plaintiff cnsent t defendant s act. whether defendant reasnably thught plaintiff cnsented. b. Cnsent can be expressly spken r written, but it can als be implied by cntext. 2. Applicatin / Case Nte: 6

7 a. Objective and reasnable standard t decide if there is a cnsent if P did r said nthing, it culd be cnsidered as cnsent b. Ftball Game itself did nt render a cnsent t team fight (there is usually an intent, since ne party may act with KSC t hurt) jury questin c. Lcal custm: unless the P expressively his rejectin twards an intentinal trt actin. d. Medical Emergency: Dctr can perate withut cnsent frm patient. Fur elements (AND) Patient is unable t give cnsent (uncnscius, intxicated, mentally ill, incmpetent), and Risk f serius bdily harm if it's delayed, and A reasnable persn wuld cnsent t treatment, and Physician has n reasn t believe this patient will refuse treatment under the circumstances 3. Mistake Cnsent: a. Cnsent given by mistake is valid, b. Exceptin: unless defendant induced the mistake (e.g., thrugh misrepresentatin, fraud, r duress) r therwise knew r shuld have knwn that plaintiff was giving cnsent based n a false pretense. E.g. A had sex with B; A later knew B had STD B has t have intent and knwledge 4. Criminal Cnsent: a. In mst states, cnsent t a criminal act is nt valid. b. Sme states disagree and allw cnsent t be pled by defendant Exceptin fr them: criminal statute was intended t prtect peple in plaintiff s psitin e.g., statutry rape, in which case it is less apprpriate t use the victim s cnsent t prevent her recvery in trt. c. Nte: fr illegal activities like bxing Maj.: nt a valid defense P wins; (minr is n the ppsite) B. Defense 1. Self-defense: (usually battery) Elements it was perfrmed under a reasnable belief by defendant that he r she is being attacked r is abut t be attacked; and it cnstituted reasnable frce. that it was reasnable t use frce, and that the amunt f frce used was reasnable. Exceptin: Retaliatin is nt allwed, fr the actin that retaliatin twards has dne, nt present; (Verbal) prvcatin is irrelevant it s abut defend persnal physical safety, nt hnr; This is abut a reasnable respnse t an imminent physical danger. Reasnable mistake des nt vitiate the privilege. Retreat: (minr) sme states require retreat when ding s is reasnably safe, thugh even these states typically dn t require defendant t retreat frm his r her hme. Maj.: Even this requirement is nt a frmal/autmatic, a jury might still find defendant acted unreasnably in a particular case by failing t retreat. 7

8 Deadly frce: When there is alternative r yu are nt receiving deadly threat nt reasnable It depends n the situatin 2. Defense f thers: If a third party wuld have been privileged t use self-defense, D is privileged t use reasnable frce n the third party s behalf. 3. Defense f prperty: Defendant is privileged t use reasnable frce t prevent the cmmissin f a trt against his prperty Once the trt is cmplete, the rules fr recvery f prperty apply instead. The amunt f frce is less than self-defense; deadly frce will almst never be reasnable. 4. Recvery f prperty: Defendant may be privileged t use reasnable frce t recver a chattel, as ppsed t relying n legal prcess. Defendant must be in an uninterrupted fresh pursuit f plaintiff. Mistake--even a reasnable ne--vitiates the privilege, except fr shpkeepers wh reasnably suspect shplifting. 5. Frce Hierarchy mre things are reasnable t defend a persn (including yurself and third party) than are reasnable t defend prperty. Recvering prperty allws fr even less frce, all ther things being equal. Defend a persn > defend prperty > recvery prperty C. Necessity 1. If reasnably necessary t avid injury r damage. 2. The threatened damage must be (1) natural/external; (2) substantially mre serius than the interference with plaintiff s interests; and (3) sudden, unexpected, and temprary if it weren t all f these things, the parties wuld be able t just negtiate. 3. Public Necessity: If defendant is acting t prevent threatened damage t the public at large, the privilege is an abslute ne; and defendant need nt pay fr damages caused t plaintiff s prperty. The executr f public necessity des nt have t be fficials, it culd be private citizen. 4. Persnal Necessity: If defendant is acting t prtect a persnal interest, he must cmpensate plaintiff fr actual damage t plaintiff s prperty, but he is still privileged t act as he did. Any privilege that plaintiff wuld therwise have had t eject defendant will be trumped by defendant s necessity. D. Authrity f Law 1. if perfrmed pursuant t legal authrity (such as by plice r wardens), D s trtius acts may be rendered nn-trtius. the perfrmance shuld be reasnable, in gd faith and with due diligence. 2. Parents, teachers, etc., t use reasnable frce t discipline their children, students, etc., withut being liable fr intentinal trts. it als applies t smene wh is temprarily respnsible, like babysitter. 8

9 II. Negligence Chapter 4 Negligence (Duty and Breach) A. Intr Negligence: 1) duty t exercise sme level f care, and what level f care the law requires 2) breached that duty factual shw 3)causing damage t plaintiff causatin-in-fact and prximate cause The mst cmmn duty is the duty t exercise the level f care that a reasnable prudent persn wuld use, duty f rdinary care / duty f reasnable care. Duty: Reasnable Prudent Persn (reasnable r rdinary care) - child Prfessinals/specialty Negligence Per Se Chapter 8 and 9: LL, Failure t Act, Emtinal Distress, Privity f Cntract, Unbrn Children B. Reasnable Prudent Persn 1. Learned Hand Test Cnduct falls belw reasnable cares when B < PL The burden f aviding a risk f harm was less than risk itself party is negligent in undertaking that burden. B: burdens equals bth 1) the cst f taking steps t avid the risk, and 2) benefits sacrificed as a result if there are ther way t substitute the benefit, this will reduce B. PL: risk f harm = the prduct f 1) magnitude f harm if it ccurs (L) times 2) the pssibility f it ccurring (P). Nte: Nt abut precise numerical quantificatin: t many are impssible t quantify, the best way is t cmpare csts t benefits. This nt the nly way t prve it. Custmary Practice: evidence f the care exercised by a reasnable persn in that cntext. It des nt frm the standard itself, it is neither necessary nt sufficient evidence as a matter f law. But it can be persuasive evidence. The inquiry shall always be what a RPP wuld have dne. Peple culd be wrng/bad at accessing just because yu did nt fllw the lcal custm des nt mean yu are negligent. Objectiveness: bjective with sme subjective cmpnents. A persn f rdinary intelligence, perceptin and memry, with the physical characteristics, abilities, and disabilities f the actr, and relevant additinal specialized knwledge skills. Physical Characteristics: a) If smene is strnger than usual, he r she is required t exercise a higher standard f actin Like superir knwledge 9

10 b) Intxicatin: if P is intxicated, D is required t exercise a higher level f care. A drunken man is as much entitled t a safe street as a sber ne, and much mre in need f it. c) Vluntarily Intxicatin: nt a defense, nt a physical characteristic. Relevant specialized knwledge skills: Peple are required t exercise these superir skills r knwledge t avid harm t thers. e.g., if D s hbby is aut mechanics, D shuld be judged by a higher standard f care r inspectin. the actr s general mental characteristics are nt taken int accunt, and neither are any deficiencies in the actr s specific knwledge and experience. Nt by hw smart r dumb yu are if D argued that was based n his r her best judgement, yet it still caused the accident, D cannt win by arguing this way. Nt by yur wn experience if yu never see a mule r the frzen lake, D shuld be judged by RPP, nt his r her wn experience. Cnstructive knwledge: what yu shuld have knwn P culd argue this is what yu shuld have knwn. Cntext f the specific situatin in which D fund must be cnsidered as well Emergency Law des nt hld ne in an emergency t the exercise f that mature judgment required f him under circumstances where he has an pprtunity fr deliberate actin. It fund defendant's actins reasnable under the circumstances. (nt P s fault; P did smething invluntarily; P faced emergency.) 2. Children: mst subjective standard Children: the level f care f a reasnable child f the similar age, intelligence, maturity and experience. (many states children under a certain age cannt be held negligence at all) i.e., if the child is smarter higher standard; if he is dumb lwer standard. Children engaged in adult activities are heled t the mre bjective adult standard. e.g. mtrized vehicles r heavy equipment Nt adult activities: bicycle riding, building a fire utdr, dwnhill skiing. Ratinale: 1) prtect children; 2) P culd sue their parents anyway. Insanity r invlving general mental cnditins is nt a defense t negligence, t the same standard f a persn f rdinary intelligence, perceptin, and memry. Exceptin: A sudden mental incapacity shuld be treated alike and nt under the general rule f insanity. a sudden heart attack, epileptic seizure strke, r fainting. If it s an all-time insanity physical characteristics, applies special standard. Like a lng-time Alzheimer's Disease. 3. Prfessinal/Specialty Prfessinals are gverned by detailed and cherent internal standards, r bjective standard that dispenses with the usual language f reasnableness, standard f an rdinary member f the prfessin. They are expected t exercise the skill, 10

11 knwledge, and care nrmally pssessed and exercised by ther members f their prfessin. Dctrs, nurses, pharmacists, lawyers, accuntants, pilts, architects, clergy, teachers and thers in jbs that requires lts f training and educatin. Applicatin standard: NOT an rdinary prudent pilt having the same training as Fred Health(D) Just an rdinary prudent pilt. Nte: Dctrs: a) In an emergency situatin, a dctr may be negligent fr taking a patient withut health insurance card since he might be liable anyway, just chse a lighter ne statute prtect: cap prtectin. b) Best Judgement: If a dctr made his best judgement, the prcedure s result is nt what he expected nt liable fr negligence. If a dctr made a decisin that n ther dctr will make, like nt cllecting sme date he is liable. Lawyers: a) If it s custm fr a lawyer t d s, it might nt cmply with law, but the lawyer might nt be liable. b) This standard als applies t pr bn case. Specialists: subject t the standards f ther rdinary members f their specialty, if the specialty is relevant t the case partially subjective standard. Custm f prfessin is dispsitive f the duty f a prfessinal, regardless f its reasnableness defendants wh cmply with the prfessinal custms are nt negligent, vice versa purely bjective (expert witness) 4. Malpractice/Infrmed Cnsent Nt mere disagreement r failure ver technique r tactics. Prfessinal standard as rdinary dctrs in the same r similar lcality d. Similar cmmunity in similar circumstances Lansing dctrs as defendant, dctrs frm Chicag/St. Luis culd testify. Ratinale: if just same cmmunity, n expert witness will testify against D. Mdern Rule: Diversity in practice allws lwer standard f in areas with fewer medical resurces r natinal standard. Infrmed Cnsent: a patient may sue if she is nt tld f a risk f injury frm a medical prcedure (she has the prcedure, and she then suffers that injury) Baseline prfessinal duty: shw that rdinary level f prfessinal care (i.e. the custmary practice) mandates disclsure failure t disclse the risk breach Reasnable patient rule (Canterbury rule): disclse material risk what a reasnable patient wuld want t knw and wuld carefully cnsider. N Majrity Rule. Causatin fr IC Whether the disclsure wuld have changed a patient s decisin Objective shwing (ther persn) AND subjective shwing (the patient his r 11

12 herself) What a reasnable patient in plaintiff s psitin, upn learning f the risk, wuld have changed her mind and nt had the prcedure. Patient herself wuld have changed her mind had the disclsure ccurred. e.g. If the pssibility f the harm is 1 ut f 100,000, will a reasnable persn change her mind? Others: duty t disclse any prfit r research interest f their underlying their treatment. Fr even if it s nt relevant, a reasnable patient is likely t change her mind. A lt f states limit n what recvery yu culd get frm physician. C. Negligence Per Se Definitin: vilatin f criminal r regulatry statute r an administrative regulatin may establish the duty and breach elements f negligence (aka the breach f duty) It is usually an easier way t establish; but nt an exclusive way (separate) Duty 1 and duty 2 verlaps --> g fr duty 2 Duty 1 nt duty 2: what a RPP wuld d, but n statute. (dg as a dangerus weapn) Duty 2 nt duty 1: a RPP might nt d this, but technically vilate the statute. The transprtatin regulatin says that yu cannt drive ver 45m/hr. Everyne in this cmmunity drive 70m/hr. a) If yu want t sue, sue fr negligence per se (duty 2) b) This is prbably r nt what a RPP wuld drive (duty 1). Inquiry: 1) Is the srt f injury and victim the statute aimed t prevent/prtect? 2) Des the statute fit as a negligence duty? Causatin nt an inherent prblems / creating a new duty is bad/ vague (nt clearly defined) is bad / strict liability is bad/ disprprtinate liability is bad. Elements: 1) Injury at issue is f the srt that statute meant t prevent; 2) The victim is f the srt that statute meant t prtect. a. if a pisn s bttle hurt yur feet nt prevented. b. The victim des nt have t be the ne wh directly brught the pisn. c. A statute culd have mre than ne purpses, like the car shuld nt be unattached withut stpping depends n whether the statute aims at antitheft r anti-traffic jam. 3) If the statute is apprpriate fr translatin int a civil duty: a. Whether it creates difficulty in prving causatin; P sued D fr selling him alchl, fr he was bviusly drunk hard 12

13 t prve causatin it's hard fr P t prve it's the 19th sht that the bar sld t smene that caused the injury r accident b. Whether it creates a new duty; [imprtant] being specific is nt new, it nly redeems nt being careful enugh; e.g. Perry, there's n duty t prtect ther persns E.g. Under RPP, yu cannt drive t fast, causing accident. A statute says yu cannt g ver 45 m/hr. --> nt new ne D s friends have n duty t prtect r rescue P s children c. Whether it prvides liability that is t strict (i.e. t detached frm D s level f care); leads negligence even when yu're careful enugh. liability that des nt depend n actual negligence r intent t harm. d. Whether it prvides fr disprprtinate liability; small criminal pen drs fr eminent trt duty e. Whether it represents t vague f a duty. 4) Nte: even if a negligence per se claim failed, the vilatin f statute culd still be relevant t the duty argument. Applicatin: Majrity: prvide excuse duty and breach are established autmatically fr unexcused vilatins f a usable statute duty shifted t D an unexcused vilatin is negligence per se, unless yu culd prvide with a lawful excuse. Minrity: rebuttal the presumptin burden shifts t D t shw mre generally that he exercised reasnable care in practice, it des nt lead t all that different. A small minrity: NPS nly the evidence f unreasnableness. Lawful Excuse 1) Actr s incapacity; 2) Reasnable lack f knwledge f vilatin: ignrance f facts, nt law A driver drve withut tail light n. He did nt knw it went ut the driver was cncealed frm the view f intersectin and there was n sign at the intersectin neither knew r shuld have knwn. 3) Reasnable inability t cmply unable after reasnable diligence r care t cmply A child wh is t yung t knw r appreciate the statute vilate the statute But des nt wrk fr an adult, fr ignrance f law is nt an excuse 4) Emergence cnfrnted by an emergency nt due t his wn miscnduct the driver drve left and induced an accident, but he did s t avid a child n the rad 5) Greater ham frm cmpliance than vilatin Learned Hand Test N nn-negligence per se defense, just because f cmpliance with statute. D. Evidence and Res Ipsa Lquitur Direct Evidence: nt required (fr if there is any, there will be n case r trial) 13

14 smene culd pint ut at what time and hw lng time this banana peel has been drpped, yet the cmpany did take reasnable care t it. Circumstantial evidence: prves thrugh inference. If a reasnable jury culd draw the inference (r chain f inference) that a party is trying t establish, then it is permissible fr the jury t rest its decisin n evidence that prduced thse inferences, n matter hw circumstantial that evidence may be. Applicatin: Failure t take actin r ntice: Lack f evidence: being pssible is nt enugh, has t be likely. N ne saw the banana until after P fell n it nt enugh P culd shw D "never inspect" the flr enugh t shw negligence "if the plaintiff culd shw an inspectin was nt made within a particular perid f time prir t an accident, they may raise an inference the cnditin did exist lng enugh fr the wner t have discvered it. " Cntinuus and systematic cnditin: when the perating methd f a prprietr are such that dangerus cnditins are cntinuus r easily freseeable, the lgical basis fr the ntice requirement disslves. If D had taken a reasnable care f ntice t prevent the accident, P has t she manner f display create such a risk. Res Ipsa Lquitur: extreme circumstantial evidence If a plaintiff cannt allege what exactly D has dne, it may suffice t allege D s negligence thrugh negative inference that a. The accident is f a type that nrmally wuld nt ccur unless smene was negligent; cannt happen in absence f negligence b. D exercise substantial cntrl ver whatever caused the injury, s it wasn t smene else s negligence here a) dn t have t be exclusive cntrl; c. Therefre, the accident mre likely than nt was caused by D s negligence. b) it s Defendant s negligence, nt thers. c) The pssibility is mre than 50% (equals 50% is nt enugh) 14

15 The Green and Blue slices culd verlap. If the green + blue slices are less than 50% (equal is nt enugh) --> Res Ipsa Lquitur Prf: Usually need expert witness: t establish that event des nt rdinarily happen in the absence f negligence But if that is within the range f cmmn sense, n need f expert witness. Applicatin: When a heavy tl falls ff a shelf at a stre and injures a shpper's ft, a stre emplyee was negligent. N. P must shw it happened due t negligence AND it's due t defendant's negligence. P s airbag was deplyed, P sued dealership it culd be thers fault. When an autmbile leaves the travelled prtin f a highway and verturns r crashes int a statinary bject, the driver was at fault Yes, but still needs t lk at the cntext. EXCEPTION: a) Tw cars cllided each ther, injuring a passenger; b) Neither f the drivers are RIL, fr the defendant's fault are happened t be 50%. (Yu dn't knw wh is in cntrl, driver A r B) Cncurrent Cause will discharge bth D s liability, unless P culd shw any f them is substantial cause f the accident (Yet that will prbably nt RIL) D (dctr) fund a wire was disldged during the surgery. After a 20- minuutes' searching yet failing t find the wire, D intentinally left the wire inside P's bdy, fr he thught that was fr the P's best interest. a) If D intentinally left the wire --> nt RIL, applies general malpractice standard (within his best judgement/discretin) --> P needs expert witness t shw it was derived frm nrmal standard + prximate causatin. b) If D unintentinally left the wire --> applies RIL --> P needs t shw it wuld nt happened withut negligence + it was defendant's negligence --> there're t many peple in the surgery. This will help P survive a mtin t dismiss r summary judgement, when P has s little evidence, but nt trial r directed verdict. Once the evidence will nt be viewed in the light mst favrable t P, a jury may decide that D shuld win. Chapter 8 and 9: Duty t Care A. Privity f Cntract General: Plaintiff C culd recver frm the negligence f A when A breached nly a cntractual duty it wed t B Yu wes duty t thse wh might freseeably be injured by yur negligent affirmative acts. general negligence cnceptin, but als applies t cntract case that yu are nt directly respnsible Exceptins: lawyer wes a duty nly t their clients Even thugh P might pay the lawyer directly still nt his attrney. unless he and his client s interest are allied intended beneficiary. Fr MacPhersn v. Buick Fact: Buick did nt inspect their prduct when part f it was manufactured by thers P was injured. 15

16 This case culd be sued by negligence, fr manufacture wes duty t anyne wh may freseeably buy the prduct regardless f cntract relatinship. This case culd be sued by prduct liability, fr manufacture is liable nce P culd prve defect when the prduct left manufacture. Nnfeasance: nt perfrming the cntract sue nly in cntract, nt trt. Misfeasance: prefrming cntract imprperly, but als fraud r partial perfrmance, can be addressed in a trt actin, t. Lying abut nnfeasance, r entering a cntract with n intentin f perfrming Trts have cnsequential and punitive damage N cannt break the misfeasance int pieces and then claimed there were nly nnfeasance. B. Failure t Act Failure t act: take n actin at all. Duty t rescue: n general duty, except: 1) When t rescue? 1. Persn creating the harm (even if the D is inncent); E.g. Yu dn t we a duty t recue smene in the trap, but wes a duty when yu are the ne wh made the trap. Ratinale: (fr inncent party) t induce the cst and get mre help frm thers 2. (Special Relatinship) Business tward their custmers; 3. (Special Relatinship) Bsses and their helpless emplyees; 4. (Special Relatinship) Persn cntrlling the instrumentality f harm; Anther way t say yu create the risk but just the aggravated part. 5. Persn wh has undertaken a recue (nce yu started the rescue, yu have t perfrm it nn-negligently) 2) What is the duty? reasnable r rdinary care (RPP) Duty t prtect r warn: n general duty, except: 1) When t warn: 1. A special relatinship between D and P legal respnsibility e.g., D is a cmmn carrier, custdian(kids), parent, emplyer; 2. A special relatinship f cntrl r respnsibility between D and third party freseeability Actual knwledge f risk rising ut f relatinship; Special reasn t knw (r fresee) rising ut f relatinship. e.g., psychiatrist and patient wh kills P, bss and wrker wh hurts custmers. 2) What is the duty: duty t warn a knwn r reasnably freseeable danger. Applicatin fr schl: 1) Mral supervisin: P s mther sued university fr letting her child pair with D. 2) Facilities prvided: University is respnsible fr a rape happened in drmitry. 1. Once univ. prvides facilities, they need t prvide it unnegligently. 3) Ratinale: wh is in the best psitin t prtect? 1. First case: the student herself. 16

17 2. Secnd case: the university. C. Emtinal Distress: NIED General, t recver frm emtinal distress, there needs t have physical injury. Nw, P culd recver frm emtinal distress but n physical injury P n lnger need t have a cntempraneus physical impact frm the thing that upset them. If there IS cntemprary physical harm, P can recver fr the cncmitant emtinal harm withut extra shwing. If there is NO cntemprary physical harm: (like causatin f Infrmed Cnsent) 1) Direct Cause: 1. the emtinal reactin must manifest itself with definite and bjective physical effects befre P can recver (subjective shwing with bjective evidence by myself) 2. it must be shwn that a nrmal persn wuld suffer an emtin reactin passing that same threshld crss the same threshld Thugh nce that is shwn, P can recver fr the entirety f his emtinal reactin t D s trt. (Objective shwing with subjective evidence by myself) 2) Bystander Plaintiff (extra shwing): 1. The ne witnessing an injury t anther caused by D s negligence 2. Zne f Danger: zne f danger f physical injury. Nearness: clse enugh t be it s almst me + survival guilty 3. Dilln Factrs (trend): P witness the actual impact n the victim; A clse family member f the victim; Suffer mre distress than a typical bystander wuld. 4. Ratinale: T prve the damage, P needs t maintain his r her damage at the time f trial (at least after half a year) affect P s ability t recver But if that s a family member, he r she will nt easily recver easily anyway. 5. N majrity rules. D. Unbrn Child If the child is brn alive: it culd recver fr injuries suffered in uter; If the fetus is NOT brn alive: it culd recver fr pst-viability injuries, and maybe previability injuries if there is sufficient evidence f causatin. Viability: if yu are develped enugh and brn at that time, yu culd be alive. Ratinale: P culd have greater incentive fr greater harm. Line drawing: have difficulty in damage and prximate cause. Parents culd recver fr the damage that they suffer in either case. D nt impse duty t pregnant mther: fr she has immunity and abrtin right. Claims: 1) Wrngful birth: t parents 17

18 1. If the child is brn alive, but fr D s negligence, parents wuld have abrted him r her because f defect parents culd sue fr wrngful birth 2. Damage: emtinal injury, extra cst f child-rearing caused by the defect, r in sme places, the entire cst f child-rearing. 3. But the plusses f parenting shuld be subtracted frm any f these damage 2) Wrngful life: nly small minrity 1. but fr D s negligence, P s parents wuld have abrted him r her. 2. Damage: limit damages t the medical expenses presented by the defect; nt fr recvery fr the existential trment f a traumatic life, because the alternative f nn-existence is cnsidered t be even mre wrse (r at least incmmensurable) as a matter f law. 3) Wrngful pregnancy t parents: majrity rule 1. Usually frm infrmed cnsent (IC) vilatins r btched sterilizatin. 2. Damage: cst frm pregnancy and labr, including pain and suffering sme allws fr child rearing cst, nly when the parents reasn fr nt wanting a child was ecnmic. E. Landlrd Landlrd means the ccupier f the land t whm these standards apply in mst cases. 1. Outside the Premises: Natural ccurrences n r frm D s land, Landlrd has n duty t prtect P ff f the premises. Fr things invlving human agency, LL wes a duty f reasnable care. Exceptin: trees duty f human agency If LL has actual r cnstructive knwledge that a tree may cause damage, LL wes an rdinary care. Nte frm cases: smetimes D is nt liable fr even after reasnable care, he cannt prevent the accident e.g., he cannt chp dwn every pssible tree t check. 2. On the Premises 1) Trespasser Duty f wantn r r. care: fr knwn r anticipated trespassers, LL wes a duty nt t wantnly injure reasnable care; r sme kind f duties in between. Duty f rdinary care: A majrity require a duty f rdinary care fr active peratins t actuallyknwn trespasser. Duty f rescue: fr every trespasser as the ne wh create the risk. 2) Licensee Definitin: smene n D s prperty fr his wn purpse, including scial guests, slicitrs, and basically anyne wh is nt an invitee. A scial guest culd becme invitee, but nt mere by prviding an incidental service. 18

19 Duty: 3) Invitee A scial guest assumes the risk assciated with their visit, thugh they are usually invited. 1) nt be willful r wantn, and 2) warn f hidden dangers that are unknwn t the licensee but actually knwn t LL 3) when the licensee cnducts active peratins n LL s prperty, LL wes a duty f rdinary care. a. "active peratins:" injury frm sme activity b. usual "cnditins:" e.g., injury frm stuff lying arund, like a puck. Definitin: business visitrs: custmers, emplyees, delivery, repair, etc. business is nt the cmmn use: hmewner have invitee like delivery and repair; sme persns fr business purpses are licensees like slicitrs. Transfer: If yu past the basis f yur invitee status, r g past the physical areas f yur invitee status, yu may becme a licensee r even a trespasser. Duty: rdinary care duty. Business Visitrs: Ratinale: affirmative care t make the premises safe is the price fr prspective ecnmic benefit. Business visitrs are invitee regardless f whether they buy anything. Smene at the premises f business wh slicits is still licensee. Invitee at Public Land: Gvernment wes duty t all persns cming upn the land, even fr their wn purpse, a duty t reasnable care t keep it safe. E.g. free public meeting, visitrs in natinal park. Natural/Obviusness: snw r rain Mst states will at the envirnment takes everything int cnsideratin But inviter wes nt duty t any invitee wh slips r falls because f the bvius hazard. Duty t recues: t anyne wh is n LL s premises. 4) Peple utside the categries Attractive Nuisance: Fr children, LL s duty t trespasser may be heightened if: 1) The dangerus cnditin is artificial; 2) D/LL had actual r cnstructive knwledge that: a. Children are likely t be n the premises attracted by the attractive nuisance, which is nt necessarily the thing that is dangerus; b. The dangerus cnditin must prevent a very unreasnable risk f serius bdily harm. 3) The child must be unware f the hazard r the level f risk it presents because f his r her yuth. LL shuld exercise the rdinary care, P still need t prve breach and causatin. Rejectin r Merging: Difference between invitee and licensee 19

20 Sme ablish the categries f licensee versus invitee, sme trespasser/nntrespasser distinctin, t. Majrity: Trespasser v. Nn-trespasser (trespasser des have different duty) N majrity: Nn-trespasser might all applies t rdinary care (n distinctin between invitee and licensee) Nn-trespasser might have tw different cares, set by the distinctin between invitee and licensee. Gvernmental Officials: Fireman/Plice: licensee (cmes at sudden) If defendant knws they are present, D needs t warn hidden danger. Sanity/Safety Inspectr: invitee (nt at sudden) Fr a purpse cnnected with D s business and is essential t D s interest. 5) Lessr and Lessee Majrity: LL wes n duty t guests f its tenants, ther than 6 exceptins. When t take the duty? 1. LL knws r shuld have knwn the hazard, which is nt disclsed t T (knwledge) 2. Danger utside the land, LL knws the risk yet des nt tell T and shift the pssessin; (knwledge) The liability is the same regardless whether the danger is inside r utside the premise T might be liable, t 3. Admissin t the public: LL shuld inspect and repair befre shift. 4. Cmmn area that LL cntrls and T is entitled t use (cntrl) 5. LL cntract t repair yet des nt repair (cntrl) 6. LL negligently repair regardless f cntract and T desn t knw (cntrl + knwledge). Minrity: this dctrine has been largely swept away; LL wes the general duty f reasnable care. 6) Case Therem Assuming n transactin csts, the same final result in a system will ccur regardless f the initial allcatin f rights/duties/liability; In the real wrld, there are transactin cst, s it makes sense t impse liability n the least cst avider, the party with the lwer transactin csts assciated with it. E.g., if the LL des nt have a burglar system and spread the cst t its tenants, the tenants will eventually make it by their wn. Yet the cst will be tremendusly high. Chapter 5 Causatin in Fact 1. Sina Qua Nn: but fr causatin, 99% Definitin: A shwing but fr the party s trt, the damages at issue wuld nt have ccurred. Oppsing: there is n causatin-in-fact because even if the party had nt cmmitted the trt, the damage will wuld have ccurred. Mre than ne causatins: 20

21 It culd be mre than ne causatins prving ne des nt prevent prving anther causatin prving ne is just necessary, nt sufficient. If it s mere cincidence, a but fr cause will nt be enugh t establish causatin-infact causal link is nt a but fr cause r causatin-in-fact. Case Nte: "if the cllisin was the causatin in fact f P's death, why D is nt liable?" Wrng questin, the cllisin is nt the issue. The questin shuld be whether D's ver-speeding cause P's death. Nte 4: TEST is "if D did nt cmmit that act, wuld the accident happen?" If D dug a hle n the grund, P fell --> Yes If D dug a hle, a third party negligently bumps P int the hle? --> Yes If the third party intentinally bumps P int the hle --> N. Nte 6/8: P cut ice n a lake. P did nt put fence, nt put ntice, and nt rescue. D's hrse ran int it, but the hrse was uncntrllable. Nt liable --> such a fence wuld have been ttally inadequate t prevent the accident. Nte 2: Driver was driving cars at 30 mph at a 25-mph zne. A tree fell dwn. If he drve faster r slwer, the fallen tree wuld nt fall n Driver's car Nt causatin in fact --> cincident, n causatin link 2. Prf f Causatin: Prepnderance f Evidence : P must prduce evidence t argue that D mre likely than nt caused the injury Mre than 50% pssibility that it was D wh caused the accident. D s trt culd pssibly have caused the injury will nt suffice by itself t get the case t a jury. mre likely than nt. T fight P s causatin argument, D can try t use any evidence f pssibility, prbability, r what have yu, that casts dubt n P s explanatins. Case Nte: Causatin can be prven even if it is nt knwn hw the harm ccurred, but nly if there is sufficiently cmpelling prf that the defendant must have caused the harm smehw. If the evidence shws that expsure t certain drug will increase the chance f sme disease, it s unfair fr bth P and D t prve. The riginal chance is 4 ut f 1,000; after the expsure is 6 ut f 1,000. P: hard t prve that she is the 2 D: unfair fr him t cmpensate all P, it triples D s pprtunities (2 fr 6) Nte 4: P fell ff when she was getting ut f a bathtub, and she claimed it was due t space between anti-skid strips n the grund (her feet culd fit int that space) Hlding: even if the curt need t infer in P's favr, her feet culd fit between strips is nt an apprpriate inference t be drawn. The pssibility des nt tend t prve its prbability. (Expert Testimny: (1) the testability f the thery/methdlgy, (2) whether the thery has been published and subject t peer review, (3) any ptential rate f errr and (4) whether the knwledge has reached general acceptance in the field.) 21

22 3. Cncurrent Cause Material Fact Test Exceptin: if there are tw causes, bth f which are sufficient causes f the injury cancel each ther ut as but-fr case; bth defendants wuld avid liability. (Only) Under this exceptin: causatin can be based instead n whether an individual cause was a substantial factr in causing the harm An alternative t the but-fr test, and it avids allwing a defendant wh therwise wuld be liable frm getting ut f it just because anther defendant did smething negligent t (and vice versa). Case Nte: jint and severe liability Substantial Factr Test: tw r mre actively perating frces cmbine t bring abut the harm, while each alne wuld have been sufficient t bring abut the harm each is liable fr the entire case. If I did nt cmmit trt, the ther D s trt will cause the accident he is nt sufficient 4. Burden f Prf: shift t Ds (Summer v. Tice exceptin: if P cannt prve which D is liable shift the burden t D t prve he is nt liable, r he will be liable.) Sindell exceptins: extensin f Summer Multiple pssible trtius causes and n pssible way fr plaintiff t pinpint which it was. The inability t srt ut which it was will nt necessarily deprive P f the ability t recver. The curt may simply shift the burden f prf n causatin t the multiple negligent Ds. Sindell use market share t apprtin liability, if the D cannt prve he is nt liable this is nt cmmn and is limited t Sindell-like cntexts nt majrity Chapter 6 Prximate Cause Prximate cause: scpe f liability Less a matter f fact and lgic A matter f hw bradly the curt wishes t allw a D t be held respnsible fr damages that he r she cause-in-fact: scpe f liability Nte: sme curts express such limitatin n liability in terms f duty. A. Freseeability Definitin: whether the injury was a freseeable result f D s negligence / was it within the scpe f the risk that D created Type f accident is what must be freseeable, rather than the precise methd f tis ccurrence r the magnitude f the injury. The mre freseeable it is, the mre likely D was the prximate cause The precise methd: a stray match; a running muse with gasline. If yu drive negligently, there will be damage -- t general If yu drive negligently, yu will hit the pedestrian and hit smene happened pass by and bleeding t death -- t specific Physical harm fr peple invlved in an accident -- in the middle Magnitude f injury: minr burns v. fatal burns (s des intentinal trt) 22

23 eggshell skull: as lng as yu prve duty, breach, causatin and damage. The magnitude f injury / pre-existing cnditin is irrelevant. The harm needs t be its wn way, nt an accidental way. Serving awful shrimp it will cause smene ill, nt cause sb. slip n it. Defective dg cllar Owner lst his dg, nt smene was bitten by dg. Sign f nt swimming t prevent disease it will cause smene ill, nt smene will be drwned. Psitinal Sense: sliding scale If D negligently crashes his car int anther car, a pedestrian wh gets mangled n the sidewalk next t the accident is within the scpe f the risk A pedestrian wh is three blcks away and gets injured by shattering glass is less likely t be within the scpe f risk. These cases culd g t either way dn t be s sure. Questin f Fact, nt law: Summary judgment is usually nt apprpriate. e.g. Manufacture is prbably liable fr its unattached tire smene might be killed n his r her way t get that unattached tire. Dctr is liable fr failure t prevent pregnancy, nt fr a defective child (if he did nt negligent in diagnsis) (Duty) Unbrn Child: wrngful pregnancy NOT wrngful birth(defect). (Causatin) prximate cause (Duty) Prfessinal B. Intervening Cause/Directness Intervening Cause: causes-in-fact f an injury that arise subsequent in time t D s negligence; may r may nt supersede D s negligence. Superseding Cause: an intervening cause that cuts ff D s respnsibility r frces a cnclusin that D s negligence was nt a prximate cause f the injury. Factrs: 1) An intervening cause is mre likely t be superseding if it s freseeable Whether the ccurrence f the intervening cause is within the scpe f risk f D s negligence Define freseeability with enugh generality- nt specific way that smething ccurred, but the type f harm it nly type matters. gasline-saked rat catching n fire v. smething igniting gasline fumes in a rm with an pen flame. 2) An intervening cause is mre likely t be superseding if it s independent f D s negligence as ppsed t flwing frm it mre like act f Gd. least weighty f the factrs Independent: smething wuld have happened regardless f D s negligence; Dependent: D s negligence is the cause in fact f the intervening cause. Battery in which the intended target ducked and P was hit instead because the ducking was caused by D s initial trtius act, the duck is a dependent intervening cause. Even an act f Gd des nt necessarily make IC be SC P did nt check his telephne ple fr 14 years. Due t a 12-inch snwfall, it fell and injured D 23