LAW SCHOOL ESSENTIALS TORTS PROFESSOR SHERMAN CLARK UNIVERSITY OF MICHIGAN LAW SCHOOL

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1 LAW SCHOOL ESSENTIALS TORTS PROFESSOR SHERMAN CLARK UNIVERSITY OF MICHIGAN LAW SCHOOL CHAPTER 1: INTENTIONAL TORTS INVOLVING PHYSICAL INJURY A. In General 1. Three Elements 2. Vluntary Act Defendant must have the state f mind that directed the physical mvement. 3. Intent Defendant acts with the f causing the cnsequence; OR Defendant acts knwing the cnsequence is t result. Example 1: In a battery, what must be intended is the tuching. It is nt necessary that the defendant intend t cause further physical harm as lng as the defendant intended t d the thing that is a trt. and mentally incmpetent persns can be held liable fr intentinal trts if they act with the requisite intent. intent Persn intends t cmmit an intentinal trt against ne persn but instead cmmits: A different intentinal trt against the same persn; The same intended trt against a different persn; OR A different intentinal trt against a different persn. Applies t: False imprisnment Trespass t land

2 Trespass t chattels DOES NOT apply t (IIED) 4. Causatin Defendant s cnduct was a in creating the harm. B. Battery 1. Definitin Defendant causes a r cntact with the persn f anther; and Acts with the intent t cause that cntact OR the f that cntact. 2. Cnsent N battery if there is express r implied cnsent. 3. Harmful r Offensive Cntact a. Harmful Causes an, physical impairment, pain, r illness b. Offensive A persn f rdinary sensibilities (reasnable persn) wuld find the cntact ffensive. Defendant might be liable if aware that victim is, but acts nnetheless. c. Plaintiff s Awareness Des NOT need t be aware f cntact when it ccurs Example 2: smene. Uncnscius medical patient is inapprpriately tuched by 4. Plaintiff s Persn Cntact with anything cnnected t the plaintiff s persn qualifies as cntact with the persn. E.g., the persn s clthing, a cane they are using 5. Damages Liable fr ANY damages that ensue, even if nt intended r unfreseeable Themis Bar Review, LLC Law Schl Essentials Trts

3 Called the r rule N prf f is required. Can recver damages Many states allw damages if the defendant acted: Outrageusly; r With. C. Assault 1. Definitin Plaintiff s f an harmful r ffensive bdily cntact caused by the defendant. 2. Intent Defendant must act with the intent t either cause: That apprehensin; r The cntact itself. 3. Plaintiff s Apprehensin Must be Plaintiff must be r have knwledge f the defendant s act. Actual fear is NOT required nly reasnable apprehensin f an imminent cntact. 4. Imminent Must be withut significant delay Threats f are nt sufficient, nr are threats made by a defendant wh is nt in a psitin t carry ut the threat. 5. Mere Wrds Curts smetimes say mere wrds d nt cnstitute an assault. Hwever, wrds cupled with the circumstances can indicate an imminent threat f a harmful r ffensive cntact. 6. Damages N prf f damages is required. Plaintiff can recver nminal damages and, in apprpriate cases, punitive damages. Plaintiff can als recver damages frm physical harm (e.g., plaintiff suffers a heart attack) Themis Bar Review, LLC Law Schl Essentials Trts

4 CHAPTER 2: INTENTIONAL TORTS: IIED, FALSE IMPRISONMENT, AND DEFENSES A. Intentinal Inflictin f Emtinal Distress (IIED) 1. Definitin A defendant is liable fr intentinally r acting with r cnduct that causes the plaintiff severe emtinal distress. 2. Intent des NOT apply. 3. Extreme r Outrageus Cnduct Exceeds the limits f s as t be intlerable t sciety Mere, indignities, r are nt enugh. Curts are mre likely t find cnduct r language t be extreme r utrageus if: Defendant is in a psitin f r ver the plaintiff; r Plaintiff is a member f a grup that has a. 4. Cnduct Directed tward Third Party Cnduct directed at third-party victim, nt the persn wh suffers the distress Defendant is liable if he intentinally r recklessly causes severe emtinal distress t: A member f the wh is at the time f the defendant s cnduct; r Any ther bystander wh is present IF: The defendant is aware f the ther bystander; AND The distress results in. 5. Severe Emtinal Distress Plaintiff must prve severe emtinal distress beynd what a culd endure. Hypersensitive plaintiff: n liability UNLESS the defendant and intended t take advantage f that heightened sensitivity Themis Bar Review, LLC Law Schl Essentials Trts

5 6. Damages Physical injury is NOT required (except in the case f a bystander ther than a family member, discussed abve). B. False Imprisnment 1. Definitin Defendant acts intending t r anther within bundaries fixed by the defendant; The actins directly r indirectly result in cnfinement; and Plaintiff is f the cnfinement OR by it. 2. Cnfined Within Bunded Area Plaintiff s freedm f mvement in all directins must be limited. Area can be large Des nt have t be statinary Nt cnsidered bunded if there is a reasnable means f 3. Methds f Cnfinement Use f, physical frce, threats, invalid use f legal authrity, duress, r refusing t prvide a safe means f escape Shpkeeper s Privilege a shpkeeper can detain a suspected shplifter fr a reasnable time and in a reasnable manner withut being cnsidered false imprisnment. A curt may find that the defendant has cnfined the plaintiff when the defendant has refused t perfrm a t release the plaintiff frm existing cnfinement r t prvide a means f escape. Example 3: A persn has accidentally lcked himself in the bathrm at yur business. Yu refuse t help the persn get ut. This might cnstitute false imprisnment. 4. Intent Defendant must act: With the purpse f cnfining the plaintiff; r that the plaintiff s cnfinement is substantially certain t result. Cnfinement due t defendant s negligence defendant will nt be liable under the intentinal trt f false imprisnment (culd be liable under negligence). Transferred intent applies t false imprisnment Themis Bar Review, LLC Law Schl Essentials Trts

6 5. Knwledge f Cnfinement Plaintiff must be aware f the cnfinement at the time it ccurs OR suffer actual harm frm the cnfinement. 6. Damages Actual damages are nt required. Nminal damages can be recvered unless the plaintiff is nt aware f the cnfinement. Punitive damages may be awarded in apprpriate cases. C. Defenses t Intentinal Trts Invlving Persnal Injury 1. Cnsent a. Express Cnsent Plaintiff, by r, manifests a willingness t submit t the cnduct. Cnsent by mistake - unless defendant caused the mistake r knew f it and tk advantage. Cnsent by fraud - if it ges t an matter. Cnsent btained under duress (threats f physical frce) -. Threats f ecnmic duress will nt make cnsent invalid. b. Implied Cnsent Plaintiff is in a situatin where a reasnable persn wuld bject; OR Plaintiff participates in an envirnment where the cntact is an expected and rdinary part f the peratin. Emergencies when immediate actin is required t save the life r health f a plaintiff wh is f cnsenting t treatment, cnsent is unnecessary (it is implied). Injuries arising ut f athletic cmpetitins cnsent is implied by custm, usage, r participatin. Can nly recver if the injured player is a victim f the defendant s fr safety. Bxing r prizefighting plaintiff cnsents t trts f battery and assault. c. Capacity Lack f capacity (due t yuth, intxicatin, incmpetency, etc.) may undermine the validity f cnsent Themis Bar Review, LLC Law Schl Essentials Trts

7 2. Self-Defense a. Use f Reasnable Frce A persn may use reasnable frce t defend against an ffensive cntact r bdily harm. Must be t the anticipated harm A mistake des nt invalidate the defense. b. Use f Deadly Frce Can nly be used if defendant has a reasnable belief that she has been threatened with deadly frce r frce sufficient t cause serius bdily injury c. Duty t Retreat Until recently, mst curts required retreat befre using deadly frce unless the defendant was. Tday, many states have adpted statutes. N duty t retreat in ANY place the defendant might legally be. d. Initial Aggressr NOT entitled t claim self-defense unless the ther party has escalated the cnflict by respnding t nn-deadly frce with deadly frce e. Injuries t Bystanders The actr is fr such injuries as lng as the injuries were accidental and the actr was behaving reasnably (nt negligent). 3. Defense f Others Frce must be reasnable Must have reasnable belief that the ther party (party being defended) wuld be able t use self-defense Must be prprtinate t harm anticipated Nt liable fr mistaken belief s lng as the belief is 4. Defense f Prperty a. Reasnable Frce May be used if the persn reasnably believes it is necessary t prevent trtius harm t the prperty Themis Bar Review, LLC Law Schl Essentials Trts

8 b. Deadly Frce be used A persn may never use deadly mechanical devices t defend prperty (e.g., a spring gun). c. Intrusin upn Land Reasnable frce may be used t prevent r terminate an intrusin upn land. Frce cannt be used if the visitr is acting under. d. Recapture f Chattels Reasnable frce may be used t reclaim persnal prperty that has been wrngfully taken by anther. If the riginal taking was lawful and the current pssessr has merely retained pssessin beynd the time cnsented t, then nly means may be used. e. Frce t Regain Pssessin f Land Cmmn law reasnable frce permitted. Mdern rule use f frce is n lnger permitted. 5. Parental Discipline Parent may use reasnable frce r impse reasnable cnfinement as necessary t discipline their child. 6. Privilege f Arrest a. Private Citizen Permitted t use frce t make an arrest in the case f a IF: The felny has actually been cmmitted; AND The arresting party has reasnable grunds t suspect that the persn being arrested has cmmitted the felny. Reasnable mistake as t is permissible, but nt a mistake as t whether the felny was actually cmmitted. b. Plice Must reasnably believe a felny has been cmmitted and that the persn arrested cmmitted it. An fficer wh makes a mistake as t whether a felny has been cmmitted is Themis Bar Review, LLC Law Schl Essentials Trts

9 c. Misdemeanr Arrest may nly be made if a breach f the peace Themis Bar Review, LLC Law Schl Essentials Trts

10 CHAPTER 3: HARMS TO PERSONAL PROPERTY AND LAND A. Trespass t Chattels 1. Definitin An intentinal interference with the plaintiff s right t tangible persnal prperty either by: the plaintiff; r r with the plaintiff s use f the chattel. 2. Intent Only the intent t d the interfering act is necessary. Defendant need nt have intended t interfere with anther s pssessin f tangible prperty. Mistake abut the legality f the actin a defense. 3. Damages a. Dispssessin Plaintiff may recver caused and. b. Use r Intermeddling Plaintiff can nly recver. These include diminutin in value r the cst f repair. B. Cnversin 1. Definitin Defendant intentinally cmmits an act depriving the plaintiff f pssessin f his r her chattel r interfering with the plaintiff s chattel in a manner as t deprive the plaintiff entirely f the use f the chattel. 2. Damages Plaintiff can recver the chattel s at the time f cnversin. 3. Intent Defendant must nly intend t cmmit the act that interferes. Intent t cause damage is NOT necessary Themis Bar Review, LLC Law Schl Essentials Trts

11 Mistake f law r fact a defense. Accidentally damaging the plaintiff s chattel is nt cnversin if yu had t use the prperty. 4. Interference Can ccur by exercising r ver the plaintiff s chattel. If the riginal acquisitin was nt wrngful, plaintiff must first demand return f the chattel befre suing fr cnversin. 5. Actin fr Replevin Alternative t damages Actin fr the return f the chattel 6. Trespass t Chattels vs. Cnversin Matter f degree f seriusness Curts cnsider: The f the interference; Defendant s intent t assert a right incnsistent with the rightful pssessr; Defendant s ; Expense r incnvenience t the plaintiff; and Extent f. Cnversin interference t such a degree that the defendant shuld have t pay the full value. C. Trespass t Land 1. Definitin Defendant intentinally causes a f smene s land. 2. Intent Defendant need nly have the intent t enter the land r cause the physical invasin. NOT the intent t cmmit a wrngful trespass Mistake f fact a defense. 3. Physical Invasin Failure t leave the plaintiff s prperty after a lawful right f entry has expired cnstitutes a physical invasin. Defendant need nt persnally enter nt the land flding the land, thrwing rcks n the land, etc. wuld cunt as trespass Themis Bar Review, LLC Law Schl Essentials Trts

12 4. Trespass vs. Nuisance Trespass always invlves an actual physical invasin r intrusin upn the land. Nuisance may r may nt invlve a physical invasin r intrusin. Trespass prtects pssessr s interest in the land. Nuisance prtects the and f the land. N physical bject enters the land may be a nuisance; NOT a trespass. 5. Damages N prf f damages is required. 6. as a Defense t Trespass a. In General Available t a persn wh enters the land f anther r interferes with their persnal prperty t prevent an injury that is substantially mre serius than the invasin r interference. Applies nly t intentinal trts t prperty b. Private Necessity Right t use the prperty f anther t save their wn lives r mre valuable prperty Incmplete privilege plaintiff can recver any. Plaintiff cannt recver nminal damages. c. Public Necessity Private prperty is intruded upn r destryed when necessary t prtect a large number f peple frm public calamities. privilege NOT liable fr any damage t the prperty. D. Nuisance 1. Private Nuisance a. Definitin An activity that and interferes with smene s and f land Themis Bar Review, LLC Law Schl Essentials Trts

13 b. Nature f Defendant s Cnduct Interference can be intentinal,, reckless, r the result f an abnrmally dangerus activity. c. Examples Terrible drs, lud nises, excessive light, etc. d. Substantial Interference An interference that wuld be, incnvenient, r annying t a nrmal, reasnable persn. If it nly bthers smene f special sensitivity, there is n nuisance. e. Unreasnable Interference Unreasnable if the caused by the defendant utweighs the f the cnduct. Invlves a balancing test f. Nt a Nuisance Histrically, curts have refused t find the blcking f r the bstructin f views t be a nuisance. Exceptin: the spite fence If a persn puts up a fence with n actual purpse except t blck their neighbr s view r sunlight, curts will smetimes find that t be a nuisance. g. Defenses t Private Nuisance Turn n whether the defendant s cnduct was negligent, intentinal, r abnrmally dangerus. Negligent cnduct assumptin f the risk r cmparative negligence might apply. Cmpliance with state r lcal administrative regulatins a cmplete defense. This is evidence as t whether the activity is reasnable. Cming t the nuisance Curts care abut wh gt there first less likely t win if yu mved in knwing that the activity was taking place. NOT a cmplete defense ne factr cnsidered by the curt Themis Bar Review, LLC Law Schl Essentials Trts

14 2. Public Nuisance a. Definitin An unreasnable interference with a right cmmn t the. Example 4: highway Air pllutin, pllutin f waterways, blcking f a public Individuals generally cannt sue fr public nuisance. Statutes empwer public agencies t take apprpriate actins. b. Private Citizen s Claim fr Public Nuisance A private citizen can sue fr public nuisance nly if he r she suffers harm that is frm that suffered by members f the general public. 3. Remedies fr Nuisances a. Damages Usual remedy Reductin f prperty value, persnal injury, harm t prperty, and inchate interference with the use and enjyment f land b. Cntinuing Nuisance If curt deems it permanent and is nt willing t grant an injunctin, the curt will award all past and future damages. Called damages Smetimes the curt will award temprary damages plaintiff will return t curt if harm cntinues. c. Injunctin Mnetary damages inadequate Nuisance wuld cntinue Curts balance the equities utility f the activity, cnsequences f injunctin, relative hardships, etc. 4. Abatement a. Private Nuisance A persn may enter anther s land t abate a private nuisance AFTER giving the defendant f the nuisance and the defendant refuses t act. Amunt f frce used must be reasnable t abate the nuisance Themis Bar Review, LLC Law Schl Essentials Trts

15 b. Public Nuisance Will be abated by a public agency/authrity Themis Bar Review, LLC Law Schl Essentials Trts

16 CHAPTER 4: NEGLIGENCE: DUTY AND STANDARD OF CARE A. In General 1. Definitin The failure t exercise the care that a in that situatin wuld exercise and acting in a way that breaches the t prevent freseeable risks f harm t thers. The unreasnable breach f the duty must be the cause f plaintiff s harm. Cnduct that falls belw the minimum degree f rdinary care impsed by law t prtect thers against unreasnable risk f harm. Traditinal apprach: what wuld a reasnably prudent persn have dne under thse circumstances? 2. Elements B. Duty 1. General Rule A duty f care is wed t all persns wh may be injured by the defendant s failure t fllw a reasnable standard f care. Actr has a duty t exercise reasnable care whenever the cnduct creates a risk f physical harm. 2. Failure t Act General rule NO duty t act Even if it appears unreasnable 3. Freseeability f Harm If acting affirmatively, the freseeability f the harm t anther by failing t use reasnable care is sufficient t create a t act with reasnable care. 4. Freseeability f Harm t the Plaintiff a. Cardz View Palsgraf case Themis Bar Review, LLC Law Schl Essentials Trts

17 Duty f care wed t plaintiff nly if plaintiff is a member f the class f persns wh might be freseeably harmed by the cnduct. Only liable t plaintiffs within the b. Andrews View Dissent in Palsgraf Prximate cause terms if defendant can fresee harm t, a duty is wed t everyne harmed as lng as prximately caused. 5. Rescuers A persn wh cmes t the aid f anther is a freseeable plaintiff. If the rescuer s effrts are unreasnable, cmparative fault (negligence) principles apply. Firefighter s rule emergency prfessinals are frm recvering damages frm the party whse negligence caused the prfessinal s injury if the injury resulted frm a risk. 6. Affirmative Duty t Act In general, n affirmative duty t help thers. The fllwing are exceptins t that rule: a. Assumptin f Duty A persn wh vluntarily aids r rescues anther liable fr any injury caused by the failure t act with reasnable care in perfrming the aid r rescue. Gd Samaritan statutes prtect and frm liability fr rdinary negligence when they vluntarily aid r rescue anther. b. Placing Anther in Duty t exercise reasnable care t prevent further harm c. By Authrity Persn with the ability and actual authrity t cntrl anther (e.g., parent-child, emplyer-emplyee) has a duty t exercise reasnable cntrl. d. By Relatinship Defendant has special relatinship with plaintiff. Such as business-patrn, cmmn carrier-passenger Duty t aid r assist thse persns and prevent reasnably freseeable injuries Themis Bar Review, LLC Law Schl Essentials Trts

18 C. Standard f Care 1. Reasnably Prudent Persn under the Circumstances standard a. Mental and Emtinal Characteristics Defendant is presumed t have average mental abilities and knwledge. Special knwledge r skills defendant is held t a higher standard. b. Physical Characteristics Particular physical characteristics taken int accunt. E.g., blindness c. Intxicatin Intxicated peple are held t the same standard as sber peple unless the intxicatin was. d. Children Standard f care is that f a reasnable child f similar, intelligence, and. Mre subjective Children engaged in (e.g., driving a car) held t same standard as adults. Many curts hld that very yung children, such as under age 5, are incapable f negligence. 2. Cst-Benefit Analysis Curts balance the freseeable likelihd f harm and the severity f the harm against any precautins that shuld have been taken. 3. Custm Admissible as evidence t establish the standard f care NOT evidence 4. Prfessinals Expected t exhibit the same skill and knwledge as anther practitiner in the. Specialist may be held t a higher standard. 5. Physicians Standard: reasnably cmpetent physician Themis Bar Review, LLC Law Schl Essentials Trts

19 Traditinal rule physician in the same r similar lcality Mdern trend - standard Must prvide Must explain risks f medical prcedures Nt required if risks are cmmnly knwn, patient is uncnscius, patient waives the infrmatin, patient is incmpetent, r the patient wuld be harmed by disclsure (e.g., it wuld cause a heart attack). 6. Negligence Per Se a. Basic Rule A statute (criminal law r regulatry) impses a particular duty fr the prtectin r benefit f thers. Statute will establish the standard f care. Plaintiff must be in the class f peple intended t be prtected, the accident must be the type f harm that the statute was intended t prtect against, and the harm was caused by a vilatin f that statute. b. Cmpliance Nt Dispsitive Des nt necessarily prve the absence f negligence Cmpliance with certain federal regulatins might be dispsitive (preemptin). c. Defenses Cmpliance was r an justified vilatin f the statute. Vilatin was reasnable under the circumstances Defendant exercised reasnable care in attempting t cmply with the statute. d. Vilatin by Plaintiff Cunts as cmparative r cntributry negligence Themis Bar Review, LLC Law Schl Essentials Trts

20 CHAPTER 5: NEGLIGENCE: STANDARD OF CARE (CONT D) AND RES IPSA LOQUITUR A. Standards f Care fr Specific Classes f Defendants 1. Cmmn Carriers and Innkeepers Traditinal rule: duty f care cnsistent with the practical peratin f the business. Culd be held liable fr slight negligence Majrity f curts tday: Cmmn carriers held t higher standard. Innkeepers liable nly fr rdinary negligence (nt higher standard). Cmmn carriers and innkeepers have a duty t act affirmatively based n the special relatinship with passengers and guests. 2. Autmbile Drivers Owe rdinary care t their guests and passengers Sme jurisdictins have guest statutes : impse a duty t refrain nly frm,, r willful miscnduct. Prf f simple negligence will nt result in recvery fr the plaintiff. 3. Bailrs and Bailees Bailment bailee temprarily takes pssessin f anther s (the bailr s) prperty. E.g., driver leaves car with a valet Duty f care depends n the circumstances. Gratuitus bailee bailr must infrm bailee f dangers r defects in the prperty. Bailee fr hire bailr must infrm bailee f defects that are r by the bailr. Bailee s duty: When a bailr receives the sle benefit frm a bailment, bailee is nly liable if. When the bailee receives the sle benefit frm a bailment, bailee must exercise. Bailment fr mutual benefit bailee must exercise Themis Bar Review, LLC Law Schl Essentials Trts

21 4. Emergency Situatins Standard f care is that f a reasnable persn in the same situatin. B. Pssessrs f Land 1. Tw Appraches Half f all jurisdictins cntinue t fllw the traditinal rules standard f care wed t peple wh cme nt the land depends n whether the persn is an invitee, a licensee, r a trespasser. Other half f jurisdictins reasnable standard f care is wed t ALL invitees and licensees. 2. Trespassers Ablished distinctin between invitees and licensees On the land withut cnsent r privilege a. Traditinal Apprach Pssessr is bligated t refrain frm,, reckless, r miscnduct tward trespassers. Use spring gun r anther trap will result in liability r trespassers: Must warn these trespassers f,, cnditins. Must exercise reasnable care when cnducting activity n their land. Undiscvered trespassers n duty wed. Dctrine Pssessr f land may be liable t injuries t trespassing n the land if: An artificial cnditin exists in a place where the wner r has children are likely t trespass; The land pssessr knws r has reasn t knw the artificial cnditin pses an unreasnable risk f r ; The children, because f their yuth, d nt discver r cannt appreciate the danger; Themis Bar Review, LLC Law Schl Essentials Trts

22 The utility t the land pssessr f maintaining the cnditin is slight cmpared t the risk f injury; and The land pssessr fails t exercise reasnable care. b. Mdern Apprach A few states Land pssessr wes a duty f reasnable care under the circumstances t anyne n their land. Curts will cnsider whether the persn was a trespasser in deciding whether the land pssessr tk reasnable care. 3. Licensees Enters the land with express r implied permissin Example 5: Scial guests, emergency persnnel, r ther persns land pssessrs allw t use their land. Traditinal rule: land pssessr has a duty t either r the licensee f cncealed dangers that are knwn r shuld be knwn t the land pssessr. 4. Invitees N duty t fr dangers Must exercise reasnable care in cnducting activities n the land Owed the highest level f care invitee: smene invited t enter and remain n the land fr the purpses fr which the land is pen t the public. Example 6: Guests in a museum invitee: smene invited t enter and remain n the land fr the purpse f cnducting a business transactin. Example 7: Custmer in a stre Pssessr wes a duty f. Duty des nt extend beynd the scpe f the invitatin invitee becmes trespasser if exceeds the scpe. Nn-delegable duty Recreatinal land use landwner wh pens his land up t the public is nt liable fr injuries t a recreatinal user unless the landwner charges a fee r acts willfully, maliciusly, r with grss negligence Themis Bar Review, LLC Law Schl Essentials Trts

23 5. Landlrds and Tenants Tenant assumes any duty wed by the landlrd. Landlrd remains liable fr injuries t the tenant and thers in, injuries frm hidden dangers abut which the landlrd did nt warn the tenant, injuries as a result f the landlrd s wn negligence, r injuries frm a hazard the landlrd has agreed t repair. 6. Off-premises Victims Land pssessr generally nt liable fr injuries resulting frm natural cnditins. Exceptin: trees in urban areas Artificial cnditins must prevent unreasnable risk f harm t persns nt n the premises. Must exercise reasnable care in cnducting activities n the land. 7. Sellers f Real Prperty Duty t disclse t buyers cncealed and unreasnably dangerus cnditins knwn t the seller. C. Res Ipsa Lquitur 1. General Principle Under sme circumstances, evidence f negligence is sufficient. 2. Elements The accident was f a kind that usually des nt ccur in the absence f negligence; Caused by an agent r instrumentality within the f the defendant; and Was nt due t the fault. 3. Medical Malpractice Cases Dctrine has been extended. Shifts the burden by hlding ALL defendants jintly and severally liable unless they can exnerate themselves Themis Bar Review, LLC Law Schl Essentials Trts

24 CHAPTER 6: NEGLIGENCE: CAUSATION A. In General Plaintiff must shw that the breach was the cause f his r her harm. Causatin has tw cmpnents: B. Cause in Fact 1. Test Plaintiff must shw that the injury wuld nt have ccurred but fr the defendant s negligence. If the injury wuld have ccurred despite the defendant s cnduct, then there is n factual causatin. 2. Multiple Trtfeasrs The but-fr test can be prblematic in the fllwing circumstances: There are several trtfeasrs and it cannt be said that ne particular defendant s trtius cnduct was necessary t cause the harm; There are multiple ptential f the harm and the plaintiff cannt prve which defendant caused the harm; r There is a negligent misdiagnsis in a case where it is likely that the plaintiff wuld have died anyway. Many curts use the test. Was the defendant s cnduct a substantial factr in causing the plaintiff s harm? 3. Specific Situatins a. Cncurrent Trtfeasrs Cntributing t an Individual Injury When the trtius acts f tw r mre defendants are each a factual cause f an injury t the plaintiff, and liability applies. Each defendant is ptentially liable fr the whle harm. Example 8: I negligently cver up a stp sign n my rad. Smene else negligently drives t fast. As a result, a child is hit. Bth acts were the causes f the harm. Thus, jint and several liability applies Themis Bar Review, LLC Law Schl Essentials Trts

25 b. Alternative Causatin Plaintiff s harm was caused by nly ne f a few defendants (usually tw) and it cannt be determined which ne caused the harm. Curts will shift the burden t the defendants will impse liability n bth unless they can shw which ne f them caused the harm. c. Cncert f Actin If tw r mre trtfeasrs were acting tgether pursuant t a and that causes the plaintiff s harm, all defendants will be and liable. d. Lss f Chance f Recvery Physician negligently fails t diagnse a disease and thereby reduces the plaintiff s chance f survival, but the plaintiff s chance f survival was less than t start with. Curts allw a partial recvery fr the lst chance f survival. 4. Causal Linkage Typically, nce plaintiff prves cause in fact, he als implicitly prves that the cnduct increased the chance f harm. Hwever, smetimes this is just cincidental. Example 9: Smene is negligently speeding. I cut a tree that happens t fall n his car negligently. Was his speeding a but-fr cause f his wn harm?. Hwever, speeding did nt increase the risk that his car wuld be hit by a falling tree. It was purely cincidental. Thus, prximate cause must als be shwn. C. Prximate Cause 1. In General In additin t cause in fact, plaintiff must prve prximate cause. Sme curts use the phrase scpe f liability. Mdern Rule: Liability is limited t thse harms that result frm the risk that made the defendant s cnduct trtius. Other curts fllw Andrews dissent in Palsgraf. They lk t a set f factrs: Is there a natural and freseeable? Was ne a substantial factr? Themis Bar Review, LLC Law Schl Essentials Trts

26 Was there a direct cnnectin withut t many intervening causes? Was the cause likely t prduce the effect? Culd the defendant have the harm? Was the cause t remte in time and space? 2. Extent f Damages Need nt be Eggshell plaintiff rule Liable fr full extent f damages even if mre severe than expected. 3. Intervening and Superseding Causes a. Intervening Cause Factual cause that cntributes t the harm the defendant s negligence. b. Superseding Cause A particular intervening cause that the chain f causatin, preventing the defendant frm being liable. intervening cause is a superseding cause. intervening cause is NOT a superseding cause Themis Bar Review, LLC Law Schl Essentials Trts

27 CHAPTER 7: NEGLIGENCE: DAMAGES AND SPECIAL RULES OF LIABILITY A. Damages 1. Actual Damages Plaintiff must prve. Persnal injury r prperty damages damages cannt be recvered. Plaintiff wh suffers nly ecnmic lss withut any related persnal injury r prperty damage generally recver in negligence. 2. Mitigatin f Damages Plaintiff must take steps t damages. Limitatin n recvery Cntributry negligence jurisdictin failure t mitigate can recvery by the plaintiff fr any additinal harm cause by aggravatin f the injury. Cmparative negligence jurisdictin failure t mitigate is taken int accunt but des nt categrically prevent recvery, even fr the additinal harm. 3. Persnal Injury: Categries f Damages 4. Prperty Damage a. General Rule Plaintiff may recver the difference between the f the prperty befre and after the injury. b. Harm t Persnal Prperty Mst curts allw recvery f the cst f. c. Husehld Items Curts ften use value as the measure f damages Themis Bar Review, LLC Law Schl Essentials Trts

28 5. Cllateral-Surce Rule a. Traditinal Rule Payments t the plaintiff frm utside surces, such as medical insurance, credited against the liability f any trtfeasr. NOT admissible at trial b. Mdern Trend Mst states have eliminated r substantially altered the rule. Payments made t the plaintiff by the defendant s insurer are NOT cnsidered cllateral-surce payments. These are credited against defendant s liability. 6. Punitive Damages Recverable if plaintiff can shw defendant acted, wantnly, recklessly, r with. Als available fr inherently malicius trts, such as IIED B. Special Rules f Liability 1. Negligent Inflictin f Emtinal Distress (NIED) a. Rule Plaintiff can recver frm a defendant whse negligence creates a freseeable risk f t the plaintiff if the defendant s actin causes a threat f that in turn causes emtinal distress. Generally, the emtinal distress must result in. Example 10: A persn thinks they are abut t get run ver by a negligent driver. They d nt get run ver. Hwever, they are very frightened and that fear manifests itself as a heart attack. The plaintiff can recver. Misdiagnsing a patient with a terminal illness is anther way NIED can ccur. b. Zne f Danger Generally, the plaintiff must fear fr their wn safety. c. Recvery fr Witnessing Smene Else Get Hurt Only allwed t recver if the plaintiff is: t the persn injured by the defendant; Themis Bar Review, LLC Law Schl Essentials Trts

29 Present at the scene; and the accident. Example 11: A mther sees her child negligently run ver right in frnt f her. 2. Wrngful Death and Survival Actins a. Wrngful Death Decedent s spuse, next f kin, r ther persnal representative brings suit t recver lsses suffered as a result f the decedent s death. Actins created by state statutes Damages include lss f and lss f cmpaninship and sciety. b. Survival Actins Created by statute Allw the persnal representative f the decedent s estate t pursue claims that the decedent herself wuld have had at the time f her death. Claims include damages resulting frm persnal injury r prperty damage. 3. Recvery fr Lss Arising frm Injury t Family Members a. Spuses May recver fr lss f and services if ther spuse is injured. b. Parent-child Parent can smetimes recver fr the lss f services if a child is injured. Parent can recver fr lss f cmpaninship in a wrngful death actin if child is killed. Only a FEW jurisdictins allw a parent t recver such damages if a child is injured but NOT killed. Many jurisdictins allw the child t recver fr the parent s cmpaninship in a wrngful death actin. c. Limitatins Recvery is reduced by cmparative fault in a cmparative fault jurisdictin and precluded in a cntributry negligence jurisdictin. 4. Wrngful Life and Wrngful Birth Claims a. Wrngful Life Actins by the child Themis Bar Review, LLC Law Schl Essentials Trts

30 NOT permitted in mst states Based n failure t perfrm a cntraceptive prcedure r diagnse a cngenital defect b. Wrngful Birth Actins by the parents Many states d permit recvery. Mther can recver fr medical expenses f labr, as well as and. Disabled child may be able t recver damages fr additinal medical expenses Themis Bar Review, LLC Law Schl Essentials Trts

31 CHAPTER 8: NEGLIGENCE: VICARIOUS LIABILITY, IMMUNITIES, AND SHARING LIABILITY AMONG MULTIPLE DEFENDANTS A. Vicarius Liability 1. In General One persn is held liable fr anther s negligence. 2. Respndeat Superir Emplyers are liable fr the trts (negligence and smetimes intentinal trts) f their emplyees. Emplyer is liable fr emplyee trts that are within the. Includes: Things the emplyee is emplyed t perfrm; Activities that are intended t r benefit the emplyer; r Intrinsic t the emplyment relatinship. Careful instructins by the emplyer t the emplyee are nt enugh t insulate the emplyer frm liability. Liability fr intentinal trts if such trts are part f the jb (e.g., a buncer). Detur emplyer is still liable. Frlic emplyer is nt liable (nt within the scpe f emplyment). Emplyer can als be directly negligent. Negligent hiring 3. Trts Cmmitted by Independent Cntractrs A persn wh hires an independent cntractr is generally vicariusly liable fr the trts f the IC. Independent cntractr hired t perfrm a task but the emplyer has n right f. MAY be vicariusly liable fr the trts f independent cntractrs in the fllwing situatins: activities; duties; Duty f an peratr f premises t keep the premises safe fr the public; and Duty t cmply with Themis Bar Review, LLC Law Schl Essentials Trts

32 4. Business Partners Partners in a jint enterprise, when tw r mre parties have a cmmn purpse and mutual right f cntrl, may be liable fr the trtius acts f each ther that are cmmitted within the scpe f the business s purpses. 5. Autmbile Owners a. Negligent The wner f a vehicle may be liable fr the negligent acts f a driver t whm the car was entrusted IF the wner r f the driver s negligent prpensities. b. Dctrine Many jurisdictins The wner f an autmbile may be liable fr the trtius acts f any family member driving the car with. c. Owner Liability Statutes Many jurisdictins have enacted statutes that prvide that the wner f an autmbile may be liable fr the trtius acts f driving the car with permissin. 6. Parents and Children a. General Rule Parents vicariusly liable fr their minr children s trts. b. Exceptins Child cmmits a trt while acting as fr the parent. State statutes prvide fr the liability f parents fr their children s specific acts. Parent signing applicatin fr child t get his license can be liable under state statute. c. Negligence f Parents May be liable fr their OWN negligence with respect t their children s cnduct A parent is under a duty t exercise reasnable care t prevent a minr child frm intentinally r negligently harming a third party, prvided the parent: Has the ability t the child; and Knws r shuld knw f the necessity and pprtunity fr exercising such cntrl Themis Bar Review, LLC Law Schl Essentials Trts

33 7. Shp Liability Recgnized by many states in statutes r by case law Can sue a seller f intxicated beverages if a third party is subsequently injured by the buyer s intxicatin. If the bartender r ther seller acts negligently in selling intxicated beverages, they may be liable. B. Immunities 1. In General Traditinally, gvernments,, and family members were immune frm liability. Mst immunities have been eliminated. 2. Federal and State Gvernments Generally immune t lawsuits under Immunity is ften waived thrugh varius statutes. a. Federal Trt Claims Act Federal gvernment waives immunity in trt actins. Exceptins: Certain enumerated trts -, assault, false imprisnment, and ; functins; Assertin f gvernmental immunity by a cntractr if the cntractr cnfrmed t gvernment specificatins; and Traditinal gvernmental activities (tax cllectin, admiralty, military activity, etc.). b. State Gvernments Mst have waived immunity t sme extent. Exceptins and limits apply State trt claims acts vary greatly. c. Municipalities Traditinally, immunity attached t the perfrmance f traditinal (e.g., plice and curt systems). NO immunity when the municipality perfrmed functin usually perfrmed by private citizens (e.g., running a parking facility). rule: Themis Bar Review, LLC Law Schl Essentials Trts

34 N liability t any particular citizen fr the failure t fulfill its duty wed t the public at large unless the citizen has a. Needs t be sme srt f reliance by the individual n the municipality d. Gvernment Officials Immunity applies if perfrming a functin, s lng as nt dne with malice r an imprper purpse. NO immunity fr High-ranking fficials (judges, legislatrs, and executive fficials) are abslutely immune frm persnal liability in perfrming their functins. 3. Intra-Family Immunities a. Interspusal Immunity Prevented ne spuse frm suing the ther in a persnal injury actin Has been eliminated in every jurisdictin b. Parent-child immunity Traditinally, parents were immune frm trt claims by their children. Recent trend restrict parental immunity. Curts allw liability but NOT in activities. 4. Charitable Immunity Traditinally, immune frm liability. Restricted r eliminated in almst every state C. Sharing Liability Amng Multiple Defendants 1. Jint and Several Liability Each f tw r mre defendants liable fr a single indivisible harm is liable fr the whle harm. Plaintiff can cllect against any defendant. Cannt recver duble 2. Cntributin If tw r mre trtfeasrs are subject t liability and ne f the trfeasrs has paid the plaintiff mre than his fair share f the damages, that trtfeasr can cllect sme prtin f that payment frm the ther trtfeasrs. Calculated differently in different jurisdictins ONLY applies t harms Themis Bar Review, LLC Law Schl Essentials Trts

35 3. Pure Several Liability Available in sme jurisdictins Each trtfeasr is nly liable fr his f the damages. 4. Indemnificatin Shifts the frm ne party t the ther Generally arises under vicarius liability Themis Bar Review, LLC Law Schl Essentials Trts

36 CHAPTER 9: NEGLIGENCE: DEFENSES A. Cntributry Negligence 1. In General Plaintiff fails t exercise due care fr her wn safety. 2. Traditinal Rule Still applies in 4 r 5 states Cntributry negligence is a t recvery. 3. Last Clear Chance Dctrine In a cntributry-negligence jurisdictin, plaintiff culd still recver if the defendant had and did nt take the. Designed t mitigate the harshness f the cntributry negligence rule Defendant had the last pprtunity t avid the harm and did nt take it. A plaintiff wh due t his wn cntributry negligence was in peril frm which he cannt escape is called a plaintiff. Defendant is liable if she r f the plaintiff s peril and culd have avided harming the plaintiff but fr her wn negligence. plaintiff plaintiff, due t his r her wn negligence, is in peril frm which he r she culd escape if he r she was paying attentin. Defendant is liable nly if he had f the danger. B. Cmparative Negligence 1. In General Fllwed in mst jurisdictins Plaintiff s wn negligence will but nt necessarily eliminate the defendant s liability. 2. Pure Cmparative Negligence Plaintiff s negligence is nt a cmplete bar. Plaintiff s damages are reduced by the f the plaintiff s fault Themis Bar Review, LLC Law Schl Essentials Trts

37 Example 12: If the plaintiff was 10% at fault, he can recver 90% f the damages. If the plaintiff was 90% at fault, he can nly recver 10% f the damages. 3. Mdified Cmparative Negligence Majrity f cmparative fault jurisdictins Rules: Plaintiff is LESS at fault than defendant: plaintiff s recvery is by his percentage f fault. Plaintiff is MORE at fault than the defendant: plaintiff recver. Mst jurisdictins: Plaintiff and the defendant are EQUALLY at fault - plaintiff recvers f his ttal damages. A few jurisdictins: Plaintiff and the defendant are EQUALLY at fault plaintiff recvers. 4. Multiple Defendants Plaintiff s degree f negligence is cmpared t the degree f negligence f ALL f the defendants cmbined. 5. Imputed Cntributry Negligence One persn s fault is imputed t the plaintiff t prevent r limit his recvery. Example 13: Emplyers and their emplyees and business partners. Dctrine is disfavred. Des NOT apply in the fllwing circumstances: A married plaintiff whse spuse was cntributrily negligent in causing the harm, in a suit against a third party (spuse s negligence nt imputed); A child plaintiff whse parent s negligence was a cntributing cause f her harm, in a suit against a third party (parent s negligence nt imputed); An autmbile passenger suing a third-party driver if the negligence f the driver f the car in which the passenger was riding als cntributed t the accident (driver s negligence nt imputed); r An autmbile wner in an actin against a defendant driver fr negligence when the driver f the wner s car als was negligent (driver s negligence nt imputed). 6. Distinguishing Cmparative Fault, Cntributin, and Several Liability a. Cmparative Fault Always invlves cmparing the fault f the plaintiff against the fault f the defendant(s) Themis Bar Review, LLC Law Schl Essentials Trts

38 b. Cntributin Invlves cmparing the degree f fault f Des NOT affect the liability f any f the defendants t the plaintiff c. Several Liability Invlves cmparing the level f fault f the defendants DOES affect hw much the plaintiff will receive frm each f the defendants C. Assumptin f the Risk 1. In General Plaintiff has knwingly and willingly accepted a risk f harm and as a result, cannt recver. 2. Exculpatry Clauses in Cntracts Plaintiff explicitly assumes the risk by cntract. Curts will hesitate t enfrce exculpatry prvisins if: They disclaim liability fr reckless r wantn miscnduct, r negligence; There is a grss disparity f ; The party seeking t enfrce the prvisin ffers services f great imprtance t the public (e.g., medical services); r The prvisin is subject t cntract defenses (e.g., fraud r duress). Generally,,, and cannt disclaim liability fr negligence. 3. Participants and Spectatrs in Athletic Events These persns assume the risks f certain injuries and accidents that are inherent in the game r activity Themis Bar Review, LLC Law Schl Essentials Trts

39 CHAPTER 10: STRICT LIABILITY A. In General Plaintiff des NOT need t shw that the defendant was negligent. If the defendant causes harm, he r she will be liable even thugh due care might have been exercised. Three categries: activities B. Abnrmally Dangerus Activities 1. Definitin f Abnrmally Dangerus Classic example: explsives An activity: Creates a and highly significant risk f physical harm EVEN when is exercised; and Is NOT a matter f. Curts als cnsider whether: The activity is apprpriate where cnducted; and If it has great value t the cmmunity. Classic abnrmally dangerus activities:,, fumigating, hazardus waste dispsal, etc. 2. Scpe f Risk Harm that ccurs must result frm the risk that made the activity abnrmally dangerus in the first place. Example 14: I have a jar f nitrglycerin and I put it n the edge f a table. The jar expldes. I am strictly liable. Hwever, if the jar falls ff the table and breaks smene s te, I am nly liable if I am negligent. Strict liability is impsed as t nitrglycerin due t its explsiveness. Breaking smene s te is nt the kind f harm fr which strict liability is impsed n nitrglycerin Themis Bar Review, LLC Law Schl Essentials Trts

40 3. Airplanes Traditinal rule wners and peratrs f airplanes were held strictly liable t peple and bjects n the grund fr bjects that fell ff the airplane. Mdern trend apply law. C. The Rule f Rylands v. Fletcher Case invlved a dam bursting. Judge argued fr brad rule f strict liability: Anyne wh brings smething nt his land that is capable f ding harm if it escapes is liable even if he has taken due care. This rule been fllwed. Narrw rule frm the case: Dangerus accumulatins f gives rise t strict liability. This rule been fllwed in many jurisdictins. D. Animals 1. Wild Animals Pssessr f a wild animal is strictly liable fr harm dne by that animal even if he tk all precautins t cnfine the animal r prevent the harm IF the harm arises frm the that is: Characteristic f such wild animals; r Which the wner has. Plaintiff must nt d anything t bring abut injury. Wild animals as a species r class, nt devted t dmesticatin. Example 15: Tamed, dmestic tiger is still a wild animal. Strict liability applies t bth the actual injury AND injuries caused by the plaintiff s. Licensees r invitees can recver in strict liability. NOT strictly liable t Exceptin: injuries inflicted by a vicius watchdg. 2. Dmestic Animals Only strictly liable if wner r has f the animal s dangerus prpensities Themis Bar Review, LLC Law Schl Essentials Trts

41 Dg bite statutes: Enacted in a number f states Hld wners f dgs r ther dmestic animals strictly liable fr certain kinds f injuries 3. Owner s Animals n Anther s Land Owners f wild r dmestic animals (ther than husehld pets) are strictly liable fr any damage caused by his animal while. Exceptin fr husehld pets des nt apply if the wner knws r has t reasn t knw the pet is ging n anther s prperty. 4. Plaintiff s Cnduct Plaintiff s cntributry negligence may reduce recvery in cmparative fault states. Will NOT eliminate recvery in a cntributry negligence jurisdictin If the plaintiff is aware f the dangerus prpensity f an animal and the animal, he may be prhibited frm recvering under the dctrine f assumptin f the risk. 5. Landlrd s Liability NOT liable fr harm caused by tenant s animals Sme jurisdictins liability impsed n landlrd if landlrd is. E. Defenses t Strict Liability 1. Cntributry Negligence Jurisdictin Plaintiff s cntributry negligence a defense t strict liability. 2. Cmparative Fault Jurisdictins Defendant s liability shuld be by plaintiff s cmparative fault. Only in a minrity f jurisdictins Editr's Nte 1: The prfessr misspke here. Only a minrity f cmparative fault jurisdictins hld that the defendant s liability shuld be reduced by the cmparative fault f the plaintiff. 3. Assumptin f the Risk t recvery 4. Statutry Privilege Party perfrming an essential public service is exempt frm strict liability Themis Bar Review, LLC Law Schl Essentials Trts

42 Culd still be liable fr negligence CHAPTER 11: PRODUCTS LIABILITY A. In General A prduct can be defective due t: A defect in ; A defect in ; r An. IF a prduct is defective, there are three kinds f lawsuits that can be brught: Strict liability prducts liability lawsuit B. Negligence Must shw duty, breach, causatin, and damages 1. Duty Duty t exercise reasnable care Owed t the users f the prduct and bystanders 2. Breach Failure t exercise reasnable care in the,, r sale f a prduct 3. Causatin Plaintiff must prve that the defect exists AND that the defendant s negligent cnduct caused the prduct t be defective. Must shw the defect caused the plaintiff s harm 4. Damages Entitled t recver damages fr persnal injury r prperty damage Cannt recver fr purely lss 5. Defenses Standard defenses t negligence apply Themis Bar Review, LLC Law Schl Essentials Trts

43 C. Strict Prducts Liability 1. In General The,, r seller (retailer) f a defective prduct may be liable fr any harm t persn r prperty caused by the prduct if the defendant is in the business f selling such prducts, even if the defendant has exercised due care. 2. Elements Plaintiff must shw: The prduct was ; The defect existed at the time the prduct left the defendant s ; and The defect the plaintiff s injury. 3. Defective Prduct a. Defect Any deviatin frm what the manufacturer intended the prduct t be that causes harm t the plaintiff. Test: cmpare the prduct against the manufacturer s wn specificatins. b. Defect test: defective if the prduct is less safe than the rdinary cnsumer wuld expect, causing it t be unreasnably dangerus. test: the risks utweigh the benefits. Plaintiff must shw there is a feasible that wuld have made the prduct safer. c. Failure t Warn Essentially a design defect claim Prduct shuld have had a mre adequate warning. This defect exists if there was a freseeable risk f harm, nt bvius t the user, which culd have been reduced r avided by reasnable warnings. Failure t include the warnings makes the prduct nt reasnably safe. Learned intermediary rule: Themis Bar Review, LLC Law Schl Essentials Trts