Torts Outline New DUTY. ii) * youth defendant will be held to standard of someone their age, but those

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1 TORTS Page 1 Torts Outline New Friday, December 04, :22 PM I. DUTY a. b. c. d. e. f. Standard of care i. When an individual engages in an activity, he is under a legal duty to act as an ordinary, prudent, reasonable person, taking precautions against creating unreasonable risks of injury to other persons. 1) Reasonable Person 1) Objective Standard: the same physical characteristics as the defendant, including disabilities, age*, superior knowledge, and is in the same situation. i) not considered: mental illness, limited intelligence, clumsiness/lack of skill, lack of common knowledge. ii) * youth defendant will be held to standard of someone their age, but those engaged in "adult" activities will be held to an adult standard. Foreseeability i. Negligence cannot be imputed to a defendant when he conducted himself or service using ordinary caution and ordinary caution did not involve thought of extraordinary peril. Unforeseeable Plaintiffs i. The problem that arises when a defendant breaches a duty to a foreseeable plaintiff (P1) that also causes injury to an unforeseeable one (P2). There are two approaches to the problem: 1) Zone of Danger (majority rule): Cardozo's answer to the problem, the unforeseeable plaintiff can only recover if she can establish that a reasonable person would have foreseen a risk of injury to her under the circumstances, i.e., that she was located inside the foreseeable "zone of danger." 1) Foreseeability thus creates the duty. 2) Proximate Cause (minority rule): Andrews' answer to the Unforeseeable Plaintiffs problem, negligence is not defined by a relationship between one and who he might injury, but between one and who he actually does injure. It does not matter that the victim or injury was unusual, unexpected, unforeseen, unforeseeable, so long as the damages are so connected with the negligence that the latter may be said to be the proximate cause of the former. 1) Proximate cause of injury creates the duty. Hand Formula i. Also a way to measure breach, a defendant's duty to provide against resulting injuries is a function of three variables: 1) The Probability that the incident causing injury will occur. 2) The gravity or Liability of the injury, and 3) The Burden of adequate precautions. 1) B < PL = duty/negligence 2) B > PL = no duty/no negligence Custom i. Customary practice can enact a duty to perform to higher standards to avoid negligence claims. When certain dangers have been removed by a customary way of doing things safely, this custom may be proved to show that the defendant fell below the required standard. 1) This also means that when defendant can show he conformed to custom, he may establish due care. Dram Shop i. Commercial Vendors are liable for personal injury or property damage to 3rd parties caused by an intoxicated person resulting from sales of alcohol made to obviously intoxicated persons and minors. 1) liability to intoxicated minors themselves widely permitted 2) liability to intoxicated adults themselves less frequently permitted 3) California Rule: no liability, except for sales to obviously intoxicated minors which proximately cause personal injuries. ii. Social Hosts: 1) have no duty to intoxicated adults and 3rd parties they injure 2) owe a duty to intoxicated minors and 3rd parties they injure

2 TORTS Page 2 g. h. 3) California Rule: no liability whatsoever for social hosts Landowner Liability i. I/L/T 1) Invitee: a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land, or person who is invited to enter or remain on the land as member of the public for a purpose for which the land is held open to the public. 1) Duty: reasonable care to warn or otherwise protect from known dangers, and reasonable care to inspect for and discover such dangers. Also must employ reasonable care not to injure negligently. 2) Examples: store patrons, postal carriers, public swimming pools, job applicants. 3) Note: when invitee goes beyond the area of invitation, he drops down to a licensee or even trespasser 2) Licensee: a person who is privileged to enter or remain on land only by virtue of the possessor's consent. 1) Duty: reasonable care to prevent or warn of dangers on the property which they know of or have reason to know of if the possessor should expect the licensee will not discover or appreciate the conditions or danger associated. There's a duty not to injure negligently using reasonable care. 2) Examples: social guests, firefighters, salespeople (until business is conducted) 3) Trespassers: a person who enters or remains upon land in the possession of another without a privilege to do so created by the possessor's consent or otherwise. 1) Duty: no duty to protect a trespasser from harm attributable to conductions or activities on the property, subject to exceptions 2) Known or Constant Trespassers: reasonable care under the circumstances 3) Attractive Nuisance Doctrine: a duty is imposed on the landowner to exercise ordinary care to avoid reasonably foreseeable risks of harm to children caused by artificial conditions on the property if: i) possessor knows or has reason to know children are likely to come across the condition ii) possessor knows or has reason to know that the condition involves an unreasonable risk of death or serious bodily harm iii) the children, because of their youth, will not discover the condition or appreciate the risk it entails, or iv) the utility to the possessor of maintaining the condition and the burden of eliminating it are slight, relative to the risk it poses. 4) Recreational use of land: must be "willful misconduct" to find liability on the part of the landowner ii. Reasonable under the circumstances (California Rule) 1) Use the I/L/T distinctions, as well as the Rowland Factors to apply this rule. iii. Rowland Factors: used by California Courts to help ascertain whether the defendant owes the plaintiff a duty to use reasonable care to protect them from a specified injury. 1) the foreseeability of harm to the plaintiff 2) degree of certainty plaintiff suffered injury 3) the closeness of connection between the defendant's conduct and the injury suffered 4) the moral blame attached to the defendant's conduct 5) the policy of preventing future harm 6) the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability of breach 7) the availability, cost, and prevalence of insurance for the risk involved iv. Posecai: Protecting Patrons From Criminal Acts of 3rd Parties: business owners have a duty to implement reasonable measures to protect their patrons from criminal acts when those acts are foreseeable. Determining when a crime is foreseeable is the critical inquiry. One may use the: 1) Hand Rule: B v PL 2) Specific Harm Rule: landowner must be aware of the specific harm about to befall patron 3) Similar Incidents Test: landowner must be aware of previous crimes on or near the premises. 4) Totality of the Circumstances Test: incorporates "specific harm rule" and "similar incidents test" as factors to consider, while also taking into account the physical characteristics of the premises, the nature of the business, and the owner's observations regarding criminal activity. Common Carriers

3 TORTS Page 3 i. i. California Rule: Common carriers are required to exercise a very high degree of care toward their passengers and guests, i.e., they are liable even for slight negligence. ii. Bethel Ruling: common carriers are subject to the same duty of care as any other potential tortfeasor --> reasonable care under the circumstances of the particular case. Affirmative duties: as a general matter, no legal duty is imposed on any person to affirmatively act for the benefit of others i. Special Relationships (2nd Rest.): a heightened duty of care applies to: 1) common carriers 2) innkeepers 3) possessors of land who hold it open to the public, and 4) persons who have custody of another person under circumstances in which that other person is deprived of normal opportunities of self-protection. ii. Special Relationships (3rd. Rest.): a heightened duty of care applies to: 1) common carriers with their passengers 2) innkeepers with their guests 3) businesses or other possessors of land who hold it open to the public with those who are lawfully on the premises 4) an employer with its employees who are: 1) in imminent danger, or 2) Injured and thereby helpless 5) a school with its students 6) a landlord with its tenants, and 7) a custodian with those in its custody, if 1) the custodian is required by law to take custody or voluntarily takes custody of the other, and 2) the custodian has a superior ability to protect the other. iii. Assumption of Duty to Act by Acting: One who, being under no duty to do so, takes charge of another who is helpless is subject to liability caused by: 1) the failure of the actor to exercise reasonable care to secure the safety of the other while within the actor's charge, or 2) the actor's discontinuing of his aid or protection if by so doing he leaves the other in a worse position than when the actor took charge of him. 1) Good Samaritan statutes typically exempt healthcare professionals who render gratuitous aid from liability for negligence, while liability still exists for gross negligence. 3) 2nd Restatement Version: 1) The failure of the actor to exercise reasonable care to secure the safety of the other while within the actor s charge, or 2) The actor s discontinuing his aid or protection, if by so doing he leaves the other in a worse position than when the actor took charge of him 4) 3rd Restatement Version: Requires an actor to exercise reasonable care in discontinuing aid for someone who reasonably appears to be in imminent peril. iv. Gratuitous Promise (minority rule): An actor who undertakes to render services to another that the actor knows or should know reduces the risk of physical harm to the other has a duty of reasonable care to the other in conducting the undertaking if: 1) the failure to exercise such care increases the risk of harm beyond that which existed without the undertaking, or 2) the person to whom the services are rendered or another relies on the actor's exercising reasonable care in the undertaking. v. Creation of Risk or Peril: when an actor's prior conduct, even though not tortuous, creates a continuing risk of physical harm of a type characteristic of the conduct, the actor has a duty to act with reasonable care to prevent or minimize the harm. vi. Utilities have a duty to warn its customers of dangers which it knows, even if due to devices it did not install, depending on the circumstances of the injury. vii. Subsequent Knowledge of an Unreasonable Risk may constitute a duty of reasonable care to prevent the risk from occurring even though at the time the actor had no reason to believe that his act would create such a risk. viii. Statutory Requirements: several state codes require drivers of vehicles involved in car accidents to render aid, even in situations in which the common law made it clear no negligence applies to those omitting aid. 1) violation of such a statute would constitute negligence per se. 2) plaintiff, however, must demonstrate lack of aid exacerbated injury and can only collect for

4 TORTS Page 4 j. k. that exacerbation. ix. Psychotherapists have a duty to warn or protect by making reasonable efforts to communicate the threat to the victim or victims and to a law enforcement agency; only where the patient has communicated to the therapist a serious threat of physical violence against a reasonably identifiable victim or victims. Parental immunity: standards vary based on the state. Examples include: i. full immunity for injuries to child ii. no immunity; rather a "reasonable parent" standard iii. no immunity; except as to injuries incurred during supervision iv. no immunity; except when act involves: 1) exercise of parental authority, or 2) exercise of parental discretion involving food, clothing, housing, medical and dental services, and other care. v. full immunity; except as it relates to specific claims, like negligent operation of an automobile. Orbit of duty: the court has the responsibility of establishing an orbit of duty to limit the range of liability one may have based on the number of individuals he might injure as a result of his negligence. II. BREACH a. b. c. d. e. Permissive Inference i. An inference the jury may, but is not required to, draw from the evidence presented. It will often allow a plaintiff to get its case to a jury, rather than having the action dismissed by the court on summary judgment or directed verdict. Rebuttable Presumption i. A presumption that the jury shall draw, unless rebutted by proof to the contrary. Stronger than a permissive inference, if a rebuttable presumption arises, then the burden shifts to the opposing party to produce evidence to the contrary of whatever is being presumed. Res Ipsa Loquitor i. Majority Rule: a permissive inference can be drawn if the judge concludes that the jury could reasonably find that: 1) the harm-causing event is a kind that typically does not occur in the absence of negligence 2) the harm-causing instrumentality was in the exclusive control of the defendant(s), and other possible causes have been eliminated, and 3) the indicated negligence is within the scope of defendant's duty to the plaintiff. ii. Minority/California Rule: res ipso loquitor creates a rebuttable presumption of negligence Negligence Per Se i. Majority/California Rule: Negligence is presumed (but rebuttable, absent excuse) if defendant's conduct violated an applicable statute, regulation or ordinance that: 1) protects a class of persons that includes the plaintiff 2) protects the particular interests of the plaintiff being invaded 3) protects against the kind of harm that resulted, and 4) protects against the particular hazard from which the harm results. ii. Despite negligence per se, plaintiff must still show causation + damages. iii. Minority Rule: negligence per se is some evidence of negligence. iv. Safety Statutes: violation of a safety statute is per se negligence if the injury that results from the violation is the specific type of injury the statute itself was designed to prevent. 1) Unless, one deviates from the statute to prevent the specific harm the statute is meant to prevent. v. Other Statutes: 1) Violating a public order statute is not negligence per se. 2) Violating a licensing statute is not negligence per se. 3) Violating a compliance statute of the state is negligence per se regardless of the federal standard. Hand Formula i. Also a way to measure duty, whether a defendant breached its duty to provide against resulting injuries is a function of three variables: 1) The Probability that the incident causing injury will occur. 2) The gravity or Liability of the injury, and 3) The Burden of adequate precautions. a) B < PL = duty/negligence b) B > PL = no duty/no negligence

5 TORTS Page 5 f. Negligent Entrustment: one who supplies directly or through a 3rd person a chattel for the use of another whom the supplier knows or has reason to know to be likely (because of youth, inexperience, or otherwise) to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them. i. California Rule: liability for negligent driver even if the driver was not known to be incompetent or risky. g. Premises Liability i. Constructive Notice (20/20 rule) 1) Defendant breached its duty to patrons if the defect was: a) visible b) apparent, and c) existed for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it. ii. Mode of Operation (20/20 rule) 1) To decide whether defendant breached its duty of care to patrons, one looks to a business's choice of a particular mode of operation and not the events surrounding the plaintiff's accident. The plaintiff is not required to prove constructive notice if the proprietor could reasonably anticipate that the hazardous conditions would regularly arise. iii. Actual Notice 1) Given actual notice, the defendant acted unreasonably, typically by not fixing the known peril. iv. Business Practice 1) A merchant that uses such a self-service method of sale in a retail environment like produce must bear the burden of showing what steps were taken to avoid the foreseeable risk of harm. h. Negligent Infliction of Emotional Distress: i. Rule: the duty to avoid NIED is breached when the defendant creates a foreseeable risk of physical injury to plaintiff, either by: 1) causing a threat of physical impact that leads to emotional distress, or 2) directly causing severe emotional distress that by itself is likely to result in physical symptoms ii. No Impact: liability will only adhere if (1) defendant's negligence, (2) causes severe emotional distress, and (3) a reasonable person in plaintiff's position would likewise suffer. One applies either the Dillon Factors or Zone of Danger (Plus) to analyze. 1) The Dillon Factors: the plaintiff, in addition to establishing the elements of direct emotional distress, must also establish: a) the plaintiff was located at the scene of the accident when it occurred b) the plaintiff's shock resulted from a direct emotional impact upon the plaintiff from the sensory and contemporaneous observance of the accident, and c) the plaintiff and the victim were "closely related" d) some states also require that the immediate victim die or suffer severe physical injuries in the accident. e) California considers these not just factors, but rules. f) In California, "closely related" means a relative living in the same household, parents, siblings, children and grandparents. 2) Zone of Danger: plaintiff must establish that he or she also was threatened with bodily harm due to the defendant's negligence. Defendant owes plaintiff a duty of care since he or she was also within the area of risk created by the defendant's conduct. 3) Zone of Danger Plus: plaintiff must also establish that the victim was a member of the plaintiff's immediate family. i. Accountants: one who supplies false information for the guidance of others in their business transactions is subject to financial liability caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information. j. Negligent Interference w/ Prospective Economic Advantage (should be analyzed like typical negligence claim): i. Economic relationship between plaintiff and 3rd party containing probable future economic benefit. ii. Defendant knew of this relationship iii. Defendant engaged in wrongful conduct

6 TORTS Page 6 iv. Reasonably foreseeable this conduct would disrupt this relationship if defendant failed to exercise due care v. Economic relationship was interfered with or disrupted vi. Plaintiff suffered damage due to defendant's negligence III. CAUSATION a. b. c. d. e. Cause: to be liable for negligence, a defendant's conduct must be found to be both the cause in fact and the proximate cause of the injury. But-for: an act or omission to act is the cause in fact of an injury when the injure would not have occurred but for the act. i. Concurrent Causes: the but for test applies where several acts combine to cause the injury, but none of the acts standing alone would have been sufficient. ii. Loss of a chance iii. Daubert Expert testimony: i. testimony must be: 1) relevant, and 2) rest on an adequate foundation, and 3) the exert must be qualified and the substance of their testimony must be, in some way, beyond the common experience of the jury. ii. Daubert Factors: 1) whether the theory can be (and has been) tested according to the scientific method 2) whether the theory or technique has been subjected to peer review and publication 3) in the case of a particular scientific technique, the known or potential rate of error 4) whether the theory is generally accepted, and 5) other considerations, as appropriate Loss of a Chance: the defendant's negligence failed to prevent an unfavorable outcome, but the plaintiff cannot meet the traditional burden of demonstrating by a preponderance of the evidence that had the defendant acted non-negligently, the harm would not have occurred. Proximate Cause: defendant is liable for all harmful results that are the normal incidents of an within the increased risk caused by his acts. i. There are four approaches to analyzing this, including: 1) Direct Results: the plaintiff's harm represents a direct consequence of the defendant's negligent act. Whether the damage is the type of damage that one would expect is immaterial. 2) Foreseeability: a reasonable person in the defendant's position would have been able to reasonably foresee at the time of the negligent act or omission that harm of the sort suffered by the plaintiff could result from the negligent act or omission. 3) Harm within the Risk: the risks that made the defendant negligent in the first place include those that resulted in the plaintiff's harm. If the harm resulted from a different kind of risk, the defendant will not be liable. 4) Andrews Factors: the court will respond to several questions: a) was there a natural and continuous sequence of events between cause and effect? b) was the one a substantial factor in producing the other? c) was there a direct connection between them, without too many intervening causes? d) is the effect of cause or result not too attenuated? e) is the cause likely, in the usual judgment of mankind, to produce the result? f) by the exercise of prudent foresight, could the result be foreseen? g) is the result too remote from the cause, considering, among other things, remoteness in time and space? ii. Types of Harm 1) Egg-Shell Plaintiff: a defendant who negligently injures the plaintiff is liable for the full extend of plaintiff's injuries, no matter how fragile they are. 2) Unexpected Manner of Harm: defendant's conduct creates a foreseeable risk of a kind of harm, and that harm manifests itself, but the manner in which the harm occurs is unforeseeable. Defendant is liable for the harm, even though the precise mechanics of its occurrence could not have been foreseen at the time. 3) Unexpected Type or Kind of Harm: defendant's negligent conduct creates foreseeable risk of a certain type of harm to plaintiff, but plaintiff is in fact injured by another, unforeseeable type or kind of harm caused by defendant.

7 TORTS Page 7 iii. iv. 4) 5) Unforeseeable Plaintiffs: plaintiff is not the person or persons seemingly imperiled by defendant's negligence. Defendant is not liable if the harm that befalls plaintiff did not result from the risks that made defendant's conduct negligent. Add-on Harms: defendant is liable for innocent or negligent add-on injuries, but not ones intentionally inflicted or are the result of gross negligence. Intervening Causes: An intervening cause is a new cause that appears after defendant's negligent conduct and contributes in some way to plaintiff's injuries. To determine whether something is an intervening cause, consider: 1) plaintiff's harm in the scope of the risk of defendant's conduct 2) intentions of intervening actor 3) extent to which defendant's conduct had an effect on intervening cause 4) foreseeability of intervening cause Superseding Cause: an intervening cause that is unforeseeable and thus relieves the defendant of liability IV. DAMAGES a. Intentional Torts i. Nominal Damages: token damages signifying the infringement of a legal right b. Any Tort i. Actual Damages: actual loss suffered by plaintiff due to defendant's negligent hiring ii. Punitive Damages: recoverable upon a showing of malice, oppression, or fraud. Must demonstrate through clear and convincing evidence that defendant engaged in conduct with malice, oppression or fraud. 1) Malice: conduct intended to cause injury or willful disregard of the rights or safety of others 2) Oppression: despicable conduct subjecting the person to cruel and unjust hardship in conscious disregard of the person's rights. 3) Fraud: intentional misrepresentation, deceit or concealment of a material fact known to the defendant w/ the intention of depriving plaintiff of property, legal rights, or otherwise causing injury. c. Survival Statutes: permits recovery for damages suffered by the deceased prior to death. i. Punitive damages are available (Calif.), but not pain & suffering. d. Wrongful Death Statutes: permits certain relatives of decedent to recover for damages realized after the deceased passes away. i. Punitive damages are not available (Calif.) e. Pain & Suffering: compensates the victim for the physical and mental discomfort caused by the injury f. Hedonic Damages (min rule): compensates victim for the limitations on the person's life created by the injury. i. Some states call this "loff of enjoyment." g. Consortium: nominally "loss of service" damages, but in reality they're designed to compensate plaintiff for lost companionship, sex, housework, earnings, etc. h. Parasitic Damages: one cannot recover for economic damages resulting from a construction mishap at a neighboring building. There must be physical damages to which one would tack on parasitic economic damages. i. Post-Life Expectancy: a victim's post-accident life expectancy should come into play when calculating damages owed to plaintiff. V. MULTIPLE TORTFEASORS a. Concerted Action: joint and several liability applies to all defendants having an understanding, express or tacit, to participate in a "common plan or design to commit a tortious act." b. Market Share Liability: multiple defendants are liable for their negligence in proportion to their share of the market for the product they produced. The requirements are: i. there must be fungability (a good or a commodity whose individual units are capable of mutual substitution) ii. joinder in a single lawsuit of all manufacturers iii. collectively produce a substantial share of the product iv. effectively identical as produced by all defendants v. product creates identical harms vi. neither plaintiff nor defendant can identify which defendant produced the product

8 TORTS Page 8 c. d. e. f. Burden Shifting: burden of proof shifts to multiple defendants when multiple defendants are in a far better position to offer evidence to determine which one caused the injury, so long as: i. plaintiff has made a sufficient case one must have done it ii. defendant has better access to the evidence iii. number of defendants is low enough that the probability is high that one is responsible iv. the points is to shift the burden to the party presumed to have supreme ability to prove the facts Respondeat Superior: strict liability for torts caused by employees in the course and scope of employment. i. Court uses the following criteria: 1) employee's conduct is of a general kind employed to perform 2) occurs within the hours and spatial boundaries of employment 3) conduct motivated in party be serving employer's interest ii. 3rd Restatement (more restrictive) 1) must occur performing task assigned by employer, subject to employer's control, and not be any independent act outside scope of employment iii. Independent contractor: respondeat superior typically does not apply unless one of the following arguments can be made: 1) Apparent Agency: plaintiff may argue respondeat superior if: a) there's representation by the purported principal b) plaintiff relies on that representation c) change in position by plaintiff in reliance on the representation. 2) Peculiar risk: defendant hirer may be found liable for the contractor's negligence in performance "intrinsically dangerous" activities 3) Negligent hiring: negligence of the employer in selecting, instructing, or supervising the contractor 4) Non-delegable duty: one is vicariously liable for the negligence of those he hires to complete work for which he is responsible, such as fixing brakes on his car. Joint & Several Liability: each defendant is responsible for plaintiff's indivisible harm is responsible for the entire damage award associated with the harm (even that of intentional tortfeasors), so plaintiff can obtain full recovery from any defendant. i. California Rule: defendant's liability J&S for plaintiff's economic harms, however several only for non-economic damages. There is not comparable fault for intentional tortfeasors. Several Liability: defendant need only pay share of total damage award, even for indivisible harms VI. DEFENSES a. Contributory Negligence: bars recovery. i. Last Clear Chance: plaintiff may still recover if defendant had last clear chance to prevent injury ii. Recklessness: contributory negligence is no defense for reckless behavior b. Comparative Fault: i. Pure (Calif. Rule): plaintiff's recovery reduced by amount commensurate to his or her share of overall fault. 1) Intentional Tortfeasors: defendant is not liable 2) Seat Belts a) Negligence: defendant may use plaintiff's lack of seat belt to demonstrate comparative fault b) Strict Products Liability: defendant may use plaintiff's lack of seat belt to reduced damages for "enhanced injury." c. Avoidable Consequences: plaintiff's recovery may be reduced to the extent he failed to exercise due care to mitigate harm. i. Surgical Treatment: plaintiff liable for refusing treatment necessary to avoid harm, unless it's too risky. ii. Religious Beliefs do not justify refusing treatment iii. Seat Belts (Calif.): reduces damages but burden is on defendant to demonstrate reduction iv. Healthy Lifestyles: smoking and obesity can reduce damages if they contribute to damages and/or injury d. Assumption of the Risk: plaintiff who is aware of the risk and knowingly decides to encounter it accepts the responsibility for consequences and cannot hold defendant who created risk liable for resulting injuries. i. Express AoR allows participants to agree in advance to accept the risk of injury from high risk activities by insulating providers from liability, so long as:

9 TORTS Page 9 1) consent is freely given, and 2) plaintiff accepted the particular risk that led the injury ii. Exculpatory Agreements (Tunkl Factors): An agreement is invalid if it exhibits some or all of the following characteristics: 1) It concerns a business suitable for public regulation 2) The service engaged in is of great importance to the public. 3) The party holds itself out as willing to perform this service for the public 4) The party invoking exculpation possesses a decisive advantage of bargaining strength 5) The party gives the public a standardized adhesion contract of exculpation with no option obtain additional protection against negligence 6) The purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or the seller s agent. iii. Primary Implied AoR: plaintiff may accept risks simply by engaging in an activity with knowledge that it entails certain risks. Plaintiff assumes the risk of injuries and cannot sue defendant for injuries sustained participating in these activities, unless: 1) dangers are obscure or unobserved 2) dangers are so dangerous that some precaution should have been employed to avoid them, or 3) accidents are so frequent, the inherent nature of the activity is too dangerous iv. Firefighters Rule: a firefighter or police officer who enters private property in the exercise of his duties occupies the status of a licensee and, therefore, is owed a duty of care by the property owner that is less than that owed to an ordinary invitee. Thus, the landowner generally owes the firefighter injured on his property only the duty not to injure him wilfully or wantonly. 1) California Exceptions: a) negligent/willful conduct causing injury occurs after defendant knew or should have known of officer's presence b) conduct causing injury violates statute, ordinance, or regulation and was not the event that precipitated response of firefighter c) conduct causing injury was intended to injure firefighter d) conduct causing injury is arson v. Secondary Implied AoR: defendant argues plaintiff's free choice to encounter risk should bar recovery. VII. STRICT LIABILITY a. Unnatural Conditions/Activities: a defendant who brings and keeps something on his land likely to do mischief is prima facie answerable for all damages that are the natural consequences of its escape, unless escape is owing to plaintiff's fault or escape was consequence of an act of god. "Natural Use" depends on circumstances, i.e., region and climate. b. Abnormally Dangerous Activities i. Strict Liability for Abnormally Dangerous Activities: 1) 2nd Restatement: a) One who carries on abnormally dangerous activities will be liable for harm, despite exercising the utmost care to prevent it. b) This liability is limited, however, to the kind of harm the abnormally dangerous activity makes possible. 2) 3rd Restatement: a) Defendant who carries on an ADA is strictly liable for the harm resulting ii. Determining Whether Something is an ADA 1) 2nd Restatement: a) Does the activity involve a high risk of serious harm? b) Is there no way to perform the activity with complete safety regardless of how much care is taken? c) Is the activity not commonly engaged in in the particular community? d) Does the activity's danger outweigh its utility to the community? 2) 3rd Restatement: a) Activity creates foreseeable and highly significant risk of physical harm, even when reasonable care is exercise, and b) Activity is not a matter of common usage iii. ADA Defenses 1) Plaintiff's harm is the result of own participation in ADA

10 TORTS Page 10 2) Primary AoR 3) Contributory negligence not a defense unless plaintiff's conduct involves "knowingly and unreasonably subjecting himself to the risk of harm from the activity." 4) Comparative Fault: plaintiff's negligence that is a legal cause of an indivisible injury to plaintiff reduces plaintiff's recovery in proportion c. Animals i. Domesticated: animal that by custom is devoted to the service of mankind at the time and place in which it is kept. The fact the animal is incapable of self control does not affect its classification. 1) SL Applies to the owner/possessor of domestic animals where injury is caused by animal's known, abnormally dangerous propensities (analyze under 2nd Rest. factors) ii. Wild Animal: animal that is by custom not devoted to the service of mankind at the time and place in which it is kept. The fact it is kept under close control and effective supervision does not affect its classification. 1) SL Applies to those who harbor, own, possess or keep a wild animal for injuries attributable to the wild animal's dangerous propensities. iii. Defenses 1) unknown adult trespassers 2) plaintiff knowingly subjects self to harm 3) comparative fault 4) PAoR or "veterinarian's rule": no duty owed to protect one who is employed to confront danger, unless the risk was abnormally dangerous and not known to plaintiff, but should have been known by defendant d. Strict Products Liability i. 2nd Rest.: 1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if a) the seller is engaged in the business of selling the product, and b) it is expected and does reach the consumer without substantial change 2) This applies although: a) The seller has exercised all possible care in the preparation and sale of the product, and b) The user or consumer has not bought the product from or entered into any contractual relation with the seller. ii. 3rd Rest.: 1) One engaged in the business of selling or otherwise distributing products is liable for selling a defective product if the defect causes injury. The defect must result from: a) manufacturing b) design, or c) an inadequate warning. iii. Policy Considerations: 1) responsibility should be fixed wherever it will most effectively reduce hazards 2) manufacturer can anticipate some hazards 3) risk injury can be insured by the manufacturer 4) responsibility for reaching the market 5) consumer no longer has means or skill enough to investigate for himself the soundness of a product 6) consumer relied on manufacturer iv. Enhanced Injuries: once the plaintiff establishes the defect was a substantial factor causing injuries, defendant has the burden of showing which injuries resulted from the initial accident and which were from the product defect. v. Manufacturing Defects: a plaintiff recovers by demonstrating that: 1) a product does not meet the manufacturer's own specifications for the product, and 2) as a result, the product was dangerously defective, causing injury. vi. Design Defects: 1) a design is defective when: a) the foreseeable risks of harm posed by the product could have been reduced or avoided by adopting a reasonably alternative design, and b) the omission of this design rendered the product unreasonably unsafe. 2) Courts judge this based on either the consumer expectations test or a risk/utility analysis, or both. 3) Consumer Expectations Test (min. rule): the product sold is dangerous to an extend

11 TORTS Page 11 vii. beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics. 4) Risk/Utility Analysis (maj. rule): relevant factors to consider are the Camacho Factors, which include: a) usefulness and desirability of the product b) likelihood and seriousness of the injury c) feasibility of safer alternative d) ability to make safer without impairing usefulness, choice or adding excessive cost e) user's ability to avoid danger f) user's anticipated awareness of danger g) Feasibility of spreading loss through insurance and/or price hikes 5) California Rule (Soule): a) Consumer expectations test applied only when jury and plaintiff could legitimately analyze the product and its dangers. b) Otherwise, risk/utility applies c) Plaintiff may proceed under both theories 6) Reasonably Alternative Design: factors to consider include: a) magnitude and probability of foreseeable harms b) instructions and warnings accompanying the product c) nature and strength regarding consumer expectations d) advantages and disadvantages of product as designed and as it could be alternatively designed. This includes: i) production costs ii) effects on longevity, maintenance, repair, or aesthetics iii) range of consumer choice among products e) plaintiff must prove RAD would have prevented injury 7) Unavoidably Dangerous Products: a) negligence: B v PL b) strict liability: i) no liability for design defects ii) strict liability w/out risk/benefit analysis if PL is sufficiently high iii) if jury concludes risk outweighs benefit, no need to consider RADs. 8) Crashworthiness Doctrine a) manufacturer may be liable in negligence or S.L. if injuries sustained were caused or enhanced by design defects, even if the defects were not the cause of the accident. b) manufacturers have a duty to reasonable care to avoid enhancing injuries. Warning Defects (3rd): 1) a product suffers from a warning defect when: a) foreseeable risk of harm could have been avoided or reduced by reasonable instructions or warnings by the seller or other distributor, and b) the omission of warning rendered the product unsafe. 2) Adequacy of Warning: a) Reasonable under the circumstances b) Court weighs benefit of more detailed warning vs. the possibility it will render the label too detailed as to cease to be effective. 3) Adequacy of Warning Content: should contain: a) scope of danger b) extent of seriousness of harm that could result from misuse c) physical aspects enough to alert reasonably prudent person to the danger d) consequences of failing to follow warning e) adequate means to convey warning 4) Warning Defect Defenses: a) Obvious Danger Rule b) Learned intermediary rule: when consumer relies more on the professional dispensing the product than the manufacturer c) Heeding presumption d) Sophisticated user doctrine e) Foreseeable misuse f) Risk unknown g) Product not defective h) State of the art

12 TORTS Page 12 viii. ix. i) Discovery of danger after distribution j) Contributory negligence: only a defense when plaintiff continued to use product once defect was discovered k) Comparative fault: conduct other than mere failure to discover defect is subject to comparative responsibility l) Assumption of Risk m) Substantial Modification Rule: substantial modifications are typically barred from recovery unless: i) modification was foreseeable, and ii) modification was necessary to make the machine perform Damages 1) You can recover for: a) personal injury, and b) property damage 2) You can't recover for: a) damage to the product itself, and b) pure economic loss Immunities 1) Calif.: Design defect immunity for prescription drugs and medical devices 2) The product is unsafe and known to be so by the average consumer 3) Product is common like sugar, alcohol, castor oil or butter VIII. INTENTIONAL TORTS a. Battery: i. an actor is subject to liability to another for battery if he engages in a: 1) volitional act 2) intending to cause 3) a harmful or offensive contact 4) with the person the of the plaintiff 5) or a 3rd person, or an imminent apprehension of such contact, and 6) such a contact directly or indirectly results ii. volitional act: an external manifestation of the actor's own will iii. intending to cause: defendant acts with the purpose of causing a contact or with substantial certainty one will occur iv. harmful touching: one that injures, disfigures, impairs, or hurts the plaintiff v. offensive touching: one that would offend a reasonable person's sense of dignity vi. with person of the plaintiff: includes extensions of the plaintiff's person, such as a camera lens or hat. 1) Does not require awareness by plaintiff at the time of incident vii. or a 3rd person, or an immanent apprehension of such contact: transferred intent applies if the tort materializes as to a different individual, and different intentional tort. viii. and such harmful contact either directly or indirectly occurs: defendant is liable for full extent of plaintiff's injuries regardless of foreseeability ix. Damages: 1) nominal (presumed), actual (proven), punitive (must prove actual malice) x. Shopkeeper's Privilege 1) (common law): liable for battery if use of force is applied and goods were obtained legally 2) (via statute): no liability if: a) person was detained in a reasonable manner, and for a reasonable time, and b) there was reasonable grounds to believe person committing or attempting to commit larceny. b. Assault: i. a volitional act by the defendant 1) words alone will typically not suffice, but they could under the right circumstances ii. intended to cause a harmful or offensive contact with plaintiff or a 3rd person, or an immanent apprehension of such contact 1) purpose or substantial certainty 2) transferred intent applies 3) the required intent is to create the apprehension, not just the conduct that leads to it iii. plaintiff's reasonable apprehension of an immanent harmful or offensive contact.

13 TORTS Page 13 1) objectively harmful or offensive 2) belief contact will occur without intervention 3) no assault of plaintiff is unaware 4) words can negate apprehension 5) harm apprehended must be imminent iv. causation 1) must show proximate and but-for causation for intentional torts, just like negligence c. Intentional Infliction of Emotional Distress i. extreme and outrageous conduct by defendant that 1) Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim "outrageous!" ii. intentionally or recklessly 1) Conduct may be a) designed to inflict severe emotional distress b) known to the actor to be substantially certain to do so, or c) Recklessly performed, i.e., in deliberate disregard 2) No transferred intent for IIED iii. causes iv. severe emotional distress to another d. Trespass to Land: i. any intrusion which invades the possessor's protected interest in exclusive possession. One commits trespass by: 1) intruding on property (land), 2) remaining on property, or 3) causing someone or something else to intrude or remain on land. ii. Elements: 1) physical invasion 2) intent 3) causation (no harm necessary) iii. Damages: actual, nominal, punitive e. Trespass to Chattels: i. intentional interference with one's possessory interest in chattel, which results in damage. 1) Elements: a) intent b) interference with possession c) chattel d) damage ii. Damages: actual harm, punitive damages, no punitive damages f. Conversion: i. Defendant, acting intentionally, so substantially interferes with plaintiff's ownership of property that it's fair for defendant to pay full market value of the property. ii. Damages: forced sale, special damages, emotional distress g. Public Nuisance: i. an unreasonable interference with a right common to the general public, including: 1) public health, safety, comfort or convenience 2) conduct proscribed by statute, ordinance, or regulation 3) of a continuing nature, or producing permanent or long-lasting effects. ii. Damages: plaintiff must show: 1) Harm suffered of a different kind and degree than the general community a) Exception: some environmental harms h. Private Nuisance: i. a substantial, unreasonable interference with another private individual's use or enjoyment of property he possesses, view objectively. ii. there are three way the court judges the unreasonableness of the interference. 1) gravity of harm vs. utility of the D's conduct a) Gravity of Harm Factors: i) extent of harm ii) character of harm iii) social value of enjoyment invaded iv) suitability of enjoyment invaded compared to locality, and

14 TORTS Page 14 IX. v) burden on person harmed of avoiding harm b) Utility of Conduct Factors: i) social value of preliminary purpose ii) suitability of conduct to locality iii) Impracticability of preventing and avoiding invasion 2) the harm is substantial and the financial burden of compensating for this and other harms does not render infeasible the continuation of the conduct. 3) harm caused by defendant is so substantial that plaintiff can't reasonably be expected to bear it with out compensation i. Nuisance Defenses: i. Zoning: conduct consistent with the zoning laws ii. Coming to the Nuisance: not a defense anymore, purchaser is entitled to reasonable use and enjoyment of land so long as he buys in good faith and not to launch a harassing lawsuit. 1) Liability Rule: one of the parties in the conflict purchases an entitlement at an objectively determined price 2) Property Rule: party who wishes to obtain entitlement purchases it at a price determined by the holder. j. Negligent Nuisance: applies when defendant doesn't know or have reason to know his activities present a nuisance Defenses to Intentional Torts a. Consent i. Express: plaintiff expressly demonstrates willingness to submit to defendant's tortuous conduct, unless consent was induced by fraud ii. Apparent Implied: consent a reasonable person would infer from plaintiff's conduct iii. Implied by Law: doctor comes upon unconscious person and delivers treatment. b. Self Defense: defendant must reasonably believe that: i. the other is about to inflict intentional harm, and ii. he is thereby put in peril of death or serious bodily harm which can be prevented only by immediate use of force iii. Reasonable Defense of Others applies the same criteria to the individual being defended. c. Public Necessity: one is privileged to commit an act which would otherwise be a trespass to a chattel, persons, or a conversion of property if the act is or is reasonably believed to be necessary for the purpose of averting a public disaster d. Private Necessity: one is privileged to commit an act which would otherwise be a trespass to the chattel or another or a conversion of it, if it is or is reasonably believed to be reasonable and necessary to protect the person or property of the actor, the other or a 3rd person from serious harm. i. One is liable for any actual damage they cause, and ii. The landowner is liable for injury to the trespasser proximately caused by kicking him off his land. e. Protection of Property: one may use reasonable force in the protection of his property, subject to the qualification that one may not use such means of force as will take human life or inflict great bodily injury unless, the trespasser was committing a felony of violence, or a felony punishable by death, or was endangering human life with his trespass X. WRONGFUL DEATH/LIFE/PREGNANCY a. Wrongful Pregnancy: parents of child born following the negligently performed sterilization procedure bring suit for the costs of having an unplanned child b. Wrongful Birth: parents of unhealthy child born following negligent genetic counseling or negligent failure to diagnose a fatal disease or defect bring suit for the costs of having to raise and care for an impaired child, arguing they were wrongfully deprived of the ability to avoid or terminate the pregnancy. c. Wrongful Life (min. rule): unhealthy child born following either a negligently performed sterilization procedure or negligent genetic counseling or testing argues that he or she has been damaged by being born at all. d. Damages: i. Limited Recovery: Medical expenses of the ineffective sterilization procedure, medical and hospital costs of the pregnancy, expense of a subsequent sterilization procedure, for the loss of wages, and sometimes for emotion distress arising out of the unwanted pregnancy and loss of consortium to the spouse arising out of the unwanted pregnancy, and medical expenses for prenatal care, delivery, and postnatal care. ii. Full Recovery w/ Offset: All of the above plus the cost of child rearing minus the "cost of