TORTS

Types of Harm – There are three (3) different types of harms which are viewed and punished differently according to their intent.

Intentional Torts – Torts that individually intentionally inflict to cause harm to the others. These are the worst and have punitive damages. The individuals desire to harm others [or they are substantially certain that harm will result]. This area of the law includes the eggshell plaintiff rule where the tortfeasor will be liable for all other injuries incurred related to the first one. This area also includes other physical harms such as trespass to property [chattels], and to land and emotional harms such as: assault, false imprisonment, infliction of emotional distress and others. There generally isn’t a deep pockets argument here but finding criminals liable for their actions or their wrongdoing. Negligence – Something you don’t intend but caused harm anyways. This is your fault but it wasn’t that you “intended” to do it. Ex: Not tying your shoe and falling and hurting someone. Should you have thought about it? Yes, but you didn’t and it was your duty not to hurt the common person. Yu were not careful, but in fact, careless! You were risking your safety and everyone else’s. To show negligence, you need to show that someone was not careful and did not consider the safety of others. Mutual negligence exists (as well).

Strict Liability – you caused me harm, now you must pay me. Negligence could be a background rule here. Negligence is prevalent as the background rule and strict liability has some carve outs such as: wild animals, ultra hazardous and dangerous activities, and vicarious liability You don’t need to show carelessness or intention because there are some laws/rules that just have a penalty. There’s less to prove and it’s easier to win. Plaintiffs prefer strict liability because it’s easier to win. Intentional is the worst one. Only certain situations have this, such as: having a tiger in your backyard. You run a super high risk and you were carless – it’s more than negligence. Ex: dynamites (b/c risk to others nearby).

Three (3) Policy Considerations / Tort Goals They are not speaking the same voice and they are usually contradicting each other. Why do you need juries and cross examinations if we just compensate?

Corrective Justice – Judgmental: you were harmed and because the other person was wrong, the imbalance will be fixed and they will pay you. If you are partly at fault, you shouldn’t get anything. Three (3) Reasons For Tort Law

1. Compensation/Caretaking:. The victim of the tort needs money because they won’t be taken care of. Ex: If they need money for medical services but don’t have the funds. Government has assistance programs, but those don’t cover everything. They are entitled to be funded how much they were harmed. This is to make sure that the victim will be okay. Ex: lost wages, medical bills, pain and suffering (corrective too)

2. Corrective Justice: Judgmental – you were harmed and others people wronged you so the imbalance will be fixed and we shall make them pay. Torts also has a moral standpoint where it’ about fairness and what that person deserves. You deserve the money for having your personal space invaded and that person deserves to be punished. We could fine the defendant, but the victim would still feel attacked and it wouldn’t correct the situation.

3. Deterrence: Instrumental approach where it uses individuals as “lessons” to wrong-doers. Torts and criminal law are parallel and they both want to makes sure people don’t continue

Theories of Torts

Intentional Neglience Strict Liability

Theories of

Recovery

Deterrence Corrective Jusitce

Compensation/ ���Caretaking

Preponderance of evidence/ the burden of proof: Unlike criminal law, you just need to be more than 50% (more likely than not) that something happened or someone is liable.

bad behavior and use torts to deter people. You can also have criminal proceedings and tort proceedings at the same time. Ex: OJ Simpson. Lost the criminal, but won the civil. Torts have more leeway because you need to be “beyond a reasonable doubt” and you take a person’s life. Torts is just fines and you just need the “burden of proof.” We deter through general and specific. General is so that doesn’t happen again in society (and scares people) and specific is so that one person won’t do it all the time. The wrongdoer pays you and they won’t do it again. They are helping everyone else to not hurt future “maybe” victims. The twist on this is the law and economics and efficiency theory.

• Law of economics: maybe it is better to let the person suffer because we want to have society prosper at he expense of the individual because it’s an isolated event.

Other Considerations: Deep pockets – Flooding the courts – influx of a lot of claims will reduce access to courts of people with real injuries. It would be delayed and they won’t get the help they need. Applicable to the setting – Vosburg v. Putney – It’s inappropriate for kids to kick each other and even playfully when another kid loses their leg. What message would it bring to America if we allow kids to kick each other. A tort decision may be turned into the policy of classrooms. We encountered examples of how we implement the rules and it must be applied to the setting we’re looking at. Damages— Victims get compensatory damages when they sue for civil lawsuits to pay for pain and suffering. There’s also something called punitive damages. This is when the court adds an extra fine (given to the plaintiff) and only happen when the offense is bad. The court wants to punish them further and this is usually for really bad intentional / negligent torts which are (grossly negligent) and usually have the words wanted, wicked, and willful conduct.

Intentional Torts Physical Harms

Elements: Intent to cause [or be substantially certain that harm will follow] a harmful or offensive contact with another.

• Transferred intent- you see to punch someone but you missed and someone else was punched. You can’t say that it wasn’t the person I directed it so you’re still liable because you still had intention to harm.

• Intention: ∆ just needs to intend the act, but not the effect – the harm that results [eggshell plaintiff rule]

o Intent, while transferrable must have been for a specific person § Case: suing tobacco industry for causing cancer but tobacco

industry fired back with that they did not intend to cause “x” harm because they didn’t know they were. Need intent [even for someone else] to count.

• Causing: it can be direct or indirect of what was desired or intended but the key idea is that a harm was created and caused by this “intent”

• Contact: Touching MUST occur for the battery of offensive or physical to have occurred. o Offensive: offensive contact is judged from an objective societal standpoint [without special knowledge]. o Indirect or Direct: Contact can be either directly from the act (being punched or kissed or grabbing your

collar) or indirect through something else (chair, table, horse). § Garrat v. Dailey – little kid (5 years old) pulled a chair underneath a lady and she broke her hip.

He didn’t intend anything than a prank but the fact he intended to move the chair [eggshell plaintiff] he’s liable for everything.

§ Smoke in Face- There needs to be some contact and in an another case smoke was blown directly into some lady’s face and that was offensive enough for her to sue because it was “particles”

• Eggshell plaintiff rule: tortfeasor intentionally harmed plaintiff and even if the injury is greater than foreseen, they must pay because of caretaking policy and they caused the incident.

• Harm: the ∆ caused the π harm and thus is liable but there are certain considerations to take place such as knowledge and age

o Society: if society presumes something to be harmful [from a reasonable person] then it will be deemed so and liability will usually follow.

§ Vosburg v. Putney: another kid kicked a kid [after recess was over] and his leg was infected worst by the kick and he was liable when the leg later had to come off became sick

− ∆ kicked π [unwanted and intended harmful contact] and CAUSED his leg to become damaged and infected.

Intentional Causation Harmful OR Intentional Act

Intentional: To commit a battery, you need to have the desire or be

substantially certain it will happen. To desire something, you

have to have ill will. To be substantially certain, you don’t have to desire it but you have to know

it’ll happen.

Ex: Concert going and walking through a crowded group of people. You don’t desire to hit anyone but you are substantially certain that you will when you walk. You don’t have to be malicious, but

callous enough (and knowingly doing so).

Causation: There are two types: indirect and direct. You can

intend to cause something or you can indirectly do so by your actions.

Ex: (indirect) little kid who pulled the chair from under the lady

(Garratt v. Dalley). He desired to make her fall, and indirectly broke

her bones.

Ex: (direct) Kid annoyed another kid and kicked him and it made him lose his leg. He desired to annoy

him and directly was the reason he can’t walk now.

Harmful or Intentional Act: This is something that is not desired. Ex: someone kissing you (randomly).

There’s a reasonable way we interact and live with people around us. If the act was perceived as harmful or was intentional, then it constitutes as a

battery.

Trespass to land – Intentionally entering the land [real and not personal property] of another [desire to enter or be substantially certain] without permission.

• How far does this stretch? If someone throws you onto someone’s land, you haven’t trespassed, the person who threw you did. If you jump out of a car, and your car goes onto someone’s hand (you were substantially certain it could happen) constitutes as trespass. It’s the land of another – even the air above, but now the FHA has regulated that and how far beneath the ground is your land. If your neighbor did a tunnel 5ft. above your land, that counts as trespass but to a degree.

• Damages: even if you walk on their grass and you leave, and still nominal damages – they don’t have to have actual damages. If they harm or destroy the property in any way, they can be charged with punitive damages.

o If people go through your stuff and overstay their welcome, punitive damages may be applicable depending on what they did.

• Consent- you can give consent but you can make it constrained. How far people can go, and what they can and can’t do on your land

o Surveyor: Doughery v. Stepp: ∆ surveys land [unbeknowlst to him it’s not his land] but he intended to walk through there and it still counts as trespassing even thought there was no knowledge.

o Kids burning stuff: Brown v. Dellinger- the kids who mess with the charcoal burner and set it on fire. The plaintiff wins not on negligence on the kids, but we’ll turn to that. Negligence is hard to make out on kids (because of the kids’ standard). They got – you trespassed on my land and everything happens, wouldn’t happen but for your trespass onto my land. It traces out subsequent events. Proximate cause is still a requirement in the context of intentional torts. People think it is okay to hold an intentional tortfeasor on a wider range than negligence because they “intended” to do such harm.

o Permission overboard: Kid had permission to be at a pool but put a rubber ball and destroyed the system and is still liable. He didn’t have permission to destroy it.

• Intangible trespass – music and wires—you can se for it but you HAVE to show some physical harm from it. • that neither damages the system or its functioning. There was no “damage” so the tort was not there.

Trespass to Chattel – Chattels are moveable property which can be personal that are moveable.

• Elements: the intent to cause harm or the interfere of the property of another that places the original owner at a substantial disposition. Example: [take a book without thinking it’s yours for a log time]

o Damages: Paid only for the damages caused to items. § Example: someone falling with untied shoes and breaks someone’s laptop = negligence because

you still need intent. § If you took someone’s book by accident, there was the intent to take the book, even though it

was an honest mistake THAT IS trespass to chattels. • Insignificant harm [harmless intermeddling] ≠ recovery [unlike trespass to land]

o Unlike trespass to property there are no nominal damages unless there was some destruction. • Intangible Trespass

o In Hamidi, emails were read and the court said that the tort of trespass does not encompass electronic communication

Defenses to Intentional Torts Consent – defense to the intentional tort. You can’t sue (trespass to person) if you consented to it. It works with land too, and on conduct and not jut words. Example: Person who was holding up their hand for the vaccination shots.

• Emergency settings: consent is implied. Someone who is helping on the side of the road or in an emergency is not liable

• Substituted consent: minors and their parents can give consent to them. Teens are a bit more confusing (depending on their age).

o Ears the lady consented to operating on one ear, but the doctor was in there and decided to operate on the other ear unbeknownst to her while she was asleep and the other ear got worst. He was sued with batter because: the intentional contact with another that caused harm.

• Consent to a crime?: how does that work? Hudson v. Craft – the illegal prizefighter and consent is never good. Other courts hold the restatement view and say you can’t sue from the blows in the illegal prizefight, but you have twist that if you have exploited class that consent is no good [minority view].

• Sports: the law of sports it hat you consent to play the sport but you want to play it well played. If we allow negligence to sports, then who would play a game of sports. The policy of sports is tailored to the rule. We introduce a new concept, which is recklessness, which is extreme gross negligence or “risk taking,” in regards to their safety. If you’re playing soccer, no one can kick you in the face and the question is, “what are the rules of the game?” We talked about hockey and how much fighting is “fair play” within hockey. It applies to kid games too.

• Doctors Insanity – the law is a lot very tough on the insane because it’s just money and not jail. The insanity defense does not work and the courts will likely find them liable.

• Driven by policy consideration to harsh decisions for the insane and hold them liable for policy reason. o Insanity is almost like strict liability in that if they cause harm, they are going to liable

Compensation/caretaking – leads to harsh rules on the insane. o Deterrence – people need to take care of the insane and deters fraud.

• Old Lady in her Room: violent episode and attacked her nurse who tried to prevent it. The nurse [caretaker] sued and she won because they want to incentivize estates and people’s guardians to take better care of them and put them in the right institution.

Self-Defense – you re allowed to use force if you reasonably perceived a threat. Even if you are wrong or mistaken, you can use force (the police riot example), however the level of force has to be proportionate that you perceive. In this area the difference between seriously bodily harm or death level of force, you can blow them away. If someone is coming at with you at knife (Beth – The Walking Dead) is serious enough that you could perceive that you were going to be harmed.

• Defense of Others – if you reasonably thought it was an attack, even if you are mistaken and they are actors, you can protect them. Re-listen here [3:08pm]

Defense of Property – Deadly force or concealed traps are not allowed to protect land or property. Non-deadly methods are adequate. Property is not as valuable as human life and shouldn’t be taken to be so.

Ex. The spring guns loaded and ready to go, or another gun to the stomach. Person who paid damages to the criminal who was robbing them. The law does not give your reasonable mistake doctrine. If you use force against them, you will be held liable. The case for this is the one with the ascot tie – they delay him and hold him back (false imprisonment). They can’t have defense of property because they “unreasonably detained him.” The shopkeeper’s privilege says you can delay someone if you “reasonably anticipate” that they are stealing.

• Recapture of uation. Someone walks away with your laptop and you can chase them down. If they punch you in the face, and they whip out a knife, you can shoot them because self defense and you are protecting yoru own life.

• Recapture of land – where and when can landowner can get their land back. Necessity – you’re in an emergency situation to protect property (and especially life), you need to use someone’s land. This is a privilege doctrine.

• Private Necessity – Ploof v. Putnam: the servant didn’t have authority to exclude them from the dock and without authority is tortious and they can be held liable for the injuries.

o Just Compensation – you need to pay for the damage that your [3:15] of being privileged to use the stuff there.

• Public Necessity – someone is acting on behalf of the whole public and they won’t be held liable for the things that they do. To incentivize someone and step up for the public, and if you are acting up for the public, you don’t have to page damages for anything that you do. There’s no law if that is reasonable or not.

• Trolley problem - Necessity doesn’t work for people. It’s only for land.

Emotional Harms Assault – intentionally putting someone in an apprehensive state of an oncoming battery OR “the intent to cause reasonable apprehension of imminent harm that the π is aware of.

• You don’t have to be afraid because they have to be apprehensive of an oncoming batter. Ex: the little lady coming at the wrestler. No one should live under threat of any battery or oncoming damage.

• You have to look at the setting [assize time]. That wasn’t assault then, and today “If I wasn’t tired, I would shoot you with this gun,” would be enough today for assault.

• Unloaded gun – the people who perceived the threat didn’t know and could sue because there was the imminent apprehension of that attack.

• Imminent: It has to be imminent and can’t be like “I’ll come back in 30 years.” • Known ailments: make others liable even though it’s not reasonable because it’s borderline malicious and mere

words are not assaultive unless there’s something greater. It can add into reasonableness though. False Imprisonment – The intention to physically restrict another’s liberty to move or ability to leave with their knowledge, and against the will. To physically confine another with their knowledge to a fixed set of boundaries for a length of time without legal means). You can still be falsely imprisoned if you need to climb out of a 20 feet wall and jumping because the risk to you is so great and it’s unfair limit of your liberty. They’re imposing the unfair risk to you. “If you move, I will shoot you.” You are not supposed to be subject to threats because you’re restricted (unless you submit) to not get harm. Your movement is limited.

• Mistake – if someone locks you, it is not intentional and could be negligent. If someone negligently got you, you would need some physical injury to show it.

• Old Man +Ascot - wrongfully detained and “unreasonable” because he had to submit or was limited in his abilty to leave and the amount of force used was “unreasonable” on him.

• Kids – abducting kids for their own benefit. Intentionally Inflicted Emotional Distress – it has to be outrageous and the emotional reaction has to be severe. Today, psychological diagnosis would probably be applicable but back then, it was less likely

• Practical joke: subsequent physical reactions and emotional from really bad emotional jokes. It’s either intentionally or reckless (to the possibility that you would get upset).

• Public figures: 3:24 [Intentional Torts]

Negligence Elements – duty breach causation and damages

Reasonable care factors: common sense intuitive, cost benefit, custom, and statutes and regulations. Duty for what?– breach of the duty (didn’t meet the duty of reasonable care)

• Objective and not subjective – it’s not what is subjective for you because it has no standard on for deterrence. It’s a social judgment about safety. It’s objective. Do we take any subjective considerations

• Subjective considerations: o Physical disabilities are things we take into account. They should act reasonable in light of those

disabilities. § Ex: someone with limited vision and didn’t “look.” You can still be negligence but they look at it

from your area. § Someone who was blind and couldn’t hear and hit the kid – judged from someone who can’t or

hear, but a reasonable blind or deaf person wouldn’t get in the car. o Kids: they look at kids actions compared to those at the same time. However, if they are doing an adult

activity where they had interesting cases, because they can be held to the adult standard. Ex: firearms with kids – are they adult level or kids? This is confusing because of regional differences and if the area has a lot of kids doing it, there’s a lot to do.

o Beginners: they do not get special standard because people shouldn’t suffer because you are learning. However, experts can get a higher standard of care.

o Insanity: Lady who could drive off because Batman could – the policy is pretty harsh on the insane here! Reasonable Care (main considerations)

Common Sense – most applicable – the reasonable man and what you’re supposed to do and what’s in your bones • Reasonable Man: this is what we should do and we don’t do it. It’s the reasonble person standard. A

Calculus of Risk (Cost Benefit) – whatever is economically more feasible. If the cost-justified then the company shouldn’t be liable. If it is cheaper for the company to let the injury happening versus paying for prevention, then they shouldn’t be liable. Comparing the burden of cost of preventing harm > harm percentage x cost of harm.

• Hand Formula: what is the better world? How much does it to prevent the harm, and doesn’t and runs the risk. If the harm isn’t certain to happen then what’s the reasonable method? Should they spend 10K to prevent a 1% chance harm at $5 – it makes more sense to do it this way. Carroll Towing.

• Common Carrier: entities that are entrusted with public safety and as a result have a higher standard of care the [utmost care] because people surrender control to common carrier. How does common carrier interact with cost-benefit? It doesn’t take into account of cost-benefit and more of a common snese.

Custom – JUST A FACTOR: if it’s what we do in society – it’s common sense, but this is what doctors (guild), profession, industry do in a specialized way. Should we defer it to what they do or should we do it how we think it should be done. Overall the law is very mixed on what to do with custom and it could go either way (with strong policy arguments).

• Train pain!: In Titus, the employee died when he was putting two cars onto the car that were supposed to be round bottomed, but were actually square bottomed, and the takeaway was the employer was not negligent in complying with custom (and evidence of the worker doing the same thing for many years and thus consented each time he got his check) – the unbending test of negligence – TOTAL CUSTOM WIN (without just application)!

• Mayhew - Custom has no place.: In this case, the worker was a hired contractor and the employer did not notify him that he cut a huge whole inside the ladder where he was working from (inside the platform) . The π fell and injured himself and sued. Custom not used or analyzed because it’s common-sense and shouldn’t excuse injuries for unreasonable behavior. Strong policy arguments. ADD MORE FORM BLACK FOLDER (SPIRAL BOUND + BOOK NOTES

• Cases are all over the place in deferring what we do for safety. • Tug boats: T.J. Hooper – the whole industry may lag (lacking radios)– they may be slackers and what do we use to

judge them and it’s Hand’s formulate. Radio on boats are less costly than not and if everyone else is doing it, why aren’t you? Cost benefit becomes the ruler with some influence by common sense.

• Employee Manuals? Before we didn’t allow employee handbooks (regulations) that weren’t complied with to be sued on because of fear that employers wouldn’t make such things anymore. New and more reent standard is to allow plaintiffs to bring such cases in èThe restatement is very helpful that says custom is a factor and it’s unpredictable. It’s not the factor.

Medical Malpractice – the exception to the custom rule. Doctors are given more leeway and custom applies (directly) to them and their reasonable care and isn’t just a factor in analyzing reasonable care.

• Outlier Dr. Case: In Lama, the plaintiff had a back pack and the doctor didn’t do what regular (industry norm) of other doctors or prescribe “conservative treatments” such as staying in bed. His symptoms got worse and he came back with more pain and infections. For medical malpractice, custom is the standard and the norm we look to. Doctors get deference because we trust them as a group and don’t think of them as conspiring against us (like manufacturers or businesses). This could be analyzed with custom and could even be seen under just common sense intuitive.

o Too complicated for juries • Binding test: doctors and emotions to plaintiff who are in front of them. Maybe this is a way to keep medical

costs down to let doctors avoid liability – b/c they can refer to customs and what they can do. We revere doctors and give them some leeway.

• Informed consent: In Cantebury v. Spence, the doctors have to disclose all the possible risk that would be that a reasonable patient would want to know so they can give meaningful consent to the operation. It’s not what doctors want to them. What are the chances of life (and death) and other examples.

o Localities: In Cantebury-– this is what we do in this region and now the standard is national because of the ease of information. One carve out – is that some local areas don’t have the same level of devices. If we made them be liable and there’s no business and no rural health care.

o We take into account how bad the bad thing is – the chance of death – and if we want to disclose it (even if it is super rare—varies on how complicated the situation is)

• School of Thought: if there are multiple school of thoughts, we can defer to it (even if it’s minority) but it can’t be a complete outlier or something this doctor thought about it.

Statutes and Regulations – legislature proscribes some conduct is not right or legal then we have to defer to what legislature would say. What respect to legislature would say “it was reasonable to like speed?” Statute will come in some times to determine negligence. It comes in when it is to protect these kinds of plaintiffs [class] from these types of harms.

• Excuse: you can disregard sometimes if it was reasonable – walking on the wrong side of the road. • Statutes: can also create different things from negligence. There can be statute for sexual harassment. That’s not

tort law but the statute has its own claim (not torts class). • Licenses: harm without license – the license is there to make sure people are safe and if the doctor didn’t make

the fee on time. When it comes down to licenses, the court looks to why the license was there. Maybe the lack of is reasonable, and it’s not likely to be negligent.

• Host Liabilities: Serving people who are intoxicated – are they liable – the party people? Are you liable if you’re the host?

Proof of Negligence – • Circumstantial evidence: infers evidence for liability—not direct facts/evidence/context indicates negligence. Does

not require direct testimony. • Direct Evidence: eye witness testimony (concrete) of negligence. • Problems of Negligence • Prosecuting or defending negligence depends on what the parties can prove at trial • Proving Negligence plaintiff has to prove:

o what defendant did o How dangerous it was o Defendant’s opportunity to discern danger o Availability of safer alternatives o Defendant’s opportunity to know about safer alternatives.

Res Ipsa Loquitur – The thing speaks for itself. Ex: the barrel out of the upper window and didn’t happen but for negligence. I don’t have to show you but the fact that it happened shows there was something. It speaks for itself. We have various formulations of it.

Three (3) Requirements: 1.) The event is something that wouldn’t occur without someone’s negligence. 2.) It’s caused by the agency or instrumentation within exclusive control of the ∆. 3.) The plaintiff didn’t contribute to the accident at all, nor was it in the voluntary action of the plaintiff. It is tied to

notions of contributory negligence (v. comparative fault).

• Under the control of Defendant: apparent authority • Civil Burden of Proof: Preponderance of fault (more than 50% -- and more likely than not!). • Colmenares • RST 3rd—it’s just circumstantial evidence: the fact it happened you can infer from it. • Special application to Medical: conspiracy of silence – you wake up and you don’t know what happened so

everyone (has to defend themselves) and show they were’t beause something happened.

RESULT: despite the fact the plaintiff got himself in harm’s way… the train is the last person who could avoid the harm or the accident and is liable b/c they still could’ve used reasonable care… and we don’t want to deter defendants from using any reasonable care. ∆ should know or have reasonable knowledge of predicament.  

Plaintiff’s Conduct Was the plaintiff conduct and what was the effect of their lack of care. You still have to go through the motions and ask if they did it with reasonable care: common sense, custom, cost-benefit, statutes/regulations, and was it foreseeable? Also causation!

Contributory Negligence – if they caused it they are barred. It was harsh and got softened over time. It was lessened a little bit by last clear chance. Then the person wouldn’t be barred. It wasn’t enough so they moved to comparative fault (in some jursidictions).

• Horse +Pole: Butterfield – defendant was repairing something on his house and put a pole across the road and created an “obstruction.” The π was riding especially fast at night and didn’t see the obstruction. No reasonable care because it was foreseeable and he should not have been going fast at night. It was risky behavior. Plaintiff’s conduct caused his damage. He didn’t use ordinary care.

• Brakesman: Beems – employee tried to uncouple two cars and told one car to slow down but did not wait for his reaction (assumed he would). Reasonable care—common sense – he didn’t use common sense.

• NOT CN- Fishmeal (loading!): Gyerman – π was stacking up fishmeal in a pattern, but a marine clerk told him to do it a certain way. He told the marine clerk that was not the standard way and it was unsafe but the clerk told him to keep going. He was injured. The proximate cause was the warehouse’s negligence BUT he didn’t comply with the company and alert his supervisor. Lack of reasonable care. Warehouse was still liable though (b/c it was the PROXIMATE CAUSE).

o EMERGENCY: Not liable because they are acting reasonable “at the time,” to the best of their ability. Example: car driving and blows up and plaintiff drives pasts it and hits someone else. Only split second to think. (note 4, p. 314)

Contributory Negligence Comparative Fault All or nothing doctrine – Either

• the plaintiff 0 fault% à gets 100% • the plaintiff is more than 0% à 0%

Elements

1.) Plaintiff’s conduct falls below the line of “reasonable care”

2.) Lack of care is the FACTUAL (ACTUAL) and PROXIMATE cause of the injuries (along with the defendants)

LAST CLEAR CHANCE- exception to contributory negligence because ∆ had the “last clear chance” to stop the accident and did not use reasonable care—policy to deter negligence and “maybe” intentional behavior because no liability

Most jurisdictions have abandoned contributory negligence for comparative fault. Not all-or-nothing. Plaintiff’s negligence will not bar and last clear chance and assumption of risk does not apply. Each party bears the cost of their negligence. Pure Comparative Fault Plaintiff’s recovery is reduced by his own percentage allocation of fault. Plaintiff is at fault 60% and only gets 40% (blue) Partial (Modified) Comparative Fault If plaintiff’s fault is equal to or greater than all defendant’s in the case, then their recovery is barred. If less, then it’s the same as above. So.. if 60% liable, gets nothing.

• OUTLIER: Straw burning train: LeRoy Fibre Co. - π put a lot of straw near a moving railroad (regulation said 75, he put it at 100) and it caught on fire from a spark and burned his property. Was he negligent? No, because property owner does not need to worry about actions of other people. But for cause = railway. Proper use of one’s land. Safe distance.

• Driving (illegal left): Derheim - ∆ made an illegal left turn and the plaintiff wasn’t wearing a seatbelt when injured. Seatbelt defense was barred (Policy – caretaking). It allowed, the case would go on longer without helping the π.

• Last Clear Chance (the exception)- The party that had the last chance to avoid the negligence is solely responsible for it. They’re 100% at fault of the negligence and the plaintiff can recover. They’re something more blameworthy because you could have prevented this.

o Why is there last clear chance rule? For deterrence: defendants would be more negligent because the state law in their state has contributory negligence and they can’t be sued so if they’re in the midst of something that, they can get away because it’s the plaintiff’s conduct that will be deemed negligent.

o àYou have the last chance, and you STILL need to do something to NOT be liable. They would be more reckless than negligence. The overtone of this doctrine is that the defendant that has the last clear chance and doesn’t take it, it almost seems to “intend it” and commits battery.

o Two restatements: helpless plaintiff vs. inattentive (327) • Imputed Contributory Negligence: This is about people who are legally responsible for others (surgeon to his staff,

parents to their kids, employee to their employer). We generally don’t impute other than vicarious liability. o Parent kid: not relevant anymore because it’s outdated. Kids can sue (even if parent was negligent) and

the ∆ can sue the parents. There is however joint enterprise doctrine in contributory negligence. o Examples: subdivision – company, husband – wife, getaway driver – felon. There’s some direct chain of

command here. Assumption of risk – knows, sees, and consciously encounters the risk and they are barred from recovery. It’s not being carless but accepting this risk of danger. It’s judging the quality of being dangerous. You just knew it was a risk and proceeded. When you accept the risk, you are barred from suing. “You contractually consented.” Tethered to the idea of consent (from battery-sports)

• Jobs! Axe overhead!: Lamson - Assumption of risk applies knows a specific risk. The π accepts it, and that risk comes to pass. It’s not some general or broad risk. An employee who understands all the inherent and explicit risks of a corporation is not allowed to sue, if he partakes in risks knowingly for negligence. Guy was a long time employee of an ax company and was required to paint new hatchets (axes) but they moved the rack directly above him. He told his supervisor who told him he could leave or keep at his job. He knowingly took the job and stayed with the risk, but he could sue the manufacturer today. If he didn’t know he could recover.

o Note 3: Most jobs have higher pay the more dangerous they are known as risk premiums. They pay you higher so you don’t sue. If there’s no discussion, potentially yes, you can sue.

• Coney Island Rides: Murphy – Coney Island with the gf, and the moving belt ride – dude loses his balance and claimed he “took a chance.” He jerked and fell and broke his knee cap – claimed he feel on wood and not padded area [and the ride went too fast!]. He took the risk and partook in the ride with the girl to seem manly. You’re at an amusement park (consent – you knowingly went in). It’s expected to fall and flop, but it would be different. He could sue if it was something unexpected or the “exact” risk that caused the injuries wasn’t agreed to.

o Note 1: Amusement park – exiting a raft and gets hurt – no liability because there was a sign! o Note 4 (p. 342): Sports spectator – assumption of risk when you go to a sport game – the activity isn’t

negligent but if you get hit by a foul ball, you can’t sue because it’s an assumed risk [for professional sports].

o Note 5 (p. 342): Professional sports – you can’t sue unless there’s additional risk that is not normal. Ice skating rink – if it is poorly maintained on the ice (b/c you only agreed to the basic risks of ice skating and not on poorly maintained ones and you didn’t know). Example 2: muddy field – if he didn’t know but the player still went on (assumption of risk).

§ Primary Assumption of Risk: Inherent risks of activities that you knew and took on. § Secondary Assumption of Risk: Things not in your care, such as ∆’s maintenance of ice or

something. • Ski Resort:

Comparative fault – compare with the defendant and assign percentages. Then they lose the percentage of at fault – and thre was probem at modified (50-50) and some jurisdicitons said they were barred. It was unclear and look at the statute for the effect.

• Li v. Yellow Cab Co. Of California:

Causation Causation – Causation is showing that the defendant was the cause-in-fact (but for the defendant’s actions, this would not occur) and showing that the defendant was who proximately caused the accident). Usually, the but for is the master wrench but there are some exceptions (specialized cases) where the but for method fails and unfairness spouts, so they go a different way.

• Preponderance of the Evidence: It just has to be more likely than not that causation occurred (factual and but-for). • Joint and Several Liability – that’s the two fires and either could cause it • Substantial Factor: Multiple Defendants – if one doesn’t have money the other could pay and they can get

indemnity. Basically there are multiple acts or foces that make it unknown which one is the real “but-for” and either is sufficient.

o Two fires – Natural forces + 1 started by a person. Either fire is sufficient to burn the barn and we don’t know if Bruno’s fire is the but-for because it would have burned down anyway with the other fire. Other courts would see it as a substantial fact and actual causation is met.

þThe But-For Test =”who?” But for the action’s of ∆, this wouldn’t happen: The but for test is the predominate test for causation on how to apply negligence. It’s up teo the discretion of the judges on how to apply the ruling though.

Specialized Cases Alternative Liability [aka Indeterminate Causes]: Plaintiff must prove that at least one of “x” number of defendants caused the harm and if plaintiff can’t determine which one

[and their tort wasn’t joint] then the burden of proof moves to the defendant. Each defendant must absolve him or herself [or face liability] because of policy considerations

[compensation/caretaking]. • Quail-huntin’: In Summers v. Tice, three friends went hunting and two of them shot one quail when the other was at

a top of a hill (triangle formation) and a bullet and the one friend was shot in the eye and mouth. Each had to show that it wasn’t him that shot the friend.

Market share: When a plaintiff can’t determine who in an industry caused the harm, all the companies will be held liable within the industry unless they can exonerate themselves. The measure of damage will be determined by how much they manufactured (market share at the time of the incident). They are going to pay damages according to their share of the market they controlled [unless they can absolve themselves.] The burden of proof shifts again the defendants to absolve themselves of the liability based on policy concern [compensation/deterrence].

• Pharmaceutical Companies: In Sidnell, the plaintiff’s mother was given a pill that was supposed to reduce miscarriage but turned out to cause cancer in fetuses. Under the “but for” test, the plaintiff would lose because she could not determine which company it was that did it. Her case won and set precedent on market share liability.

Neglience

= Breach of duty

Causation

But-For?���Whose actions? Proximate���

What actions?

Damages 1.) Alternative Liability, 2.) Market Share Liability, 3.) Loss of Chance of Survival, 4.) Multiple and Sufficient Causes

Foreseeability test Direct test Superseding Test

o Lead paint: chips and falls off and kids eat it and get sick. -410 o Shipworth v. lead industries associationGuns

Lost of chance of survival: Proof of defendant’s negligence (conduct) in decrease of survivial [increasing risk through misdiagnositc], then the plaintiff is the cause-in-fact and proximate cause, despite there being a background disease.

• In Hershkovitz, the patient goes to the doctor and likely to die from the outsiet (and never win with but-for) the notes have notes. Let the patient win for the decrease in chance

o Damages: o

þProximate Cause Foreseeability Test: Forward looking test that asks whether or not the actions were foreseeable and could have been prevented with reasonable care. This is the test that is most often applied but there are some other tests that can applied too. It is looked at from when the time of the action occurred. Not remote: the plaintiff’s injuries must be the proximate cause from the the defendant’s actions and not a remote consequence of such negligent actions.

• House on fire from RR: In, Ryan v. New York Central RR, the plaintiff’s woodshed which was 130 ft. away was caught on fire and burned down because of a fire from the defendant’s engine. The results were the natural consequences and could be anticipated from the negligent act [foreseeability] and thus the train is liable for the fire.

o Intervening / Superseding Causes - courts go both ways on this issue if there were other actions or causes that could have broken the chain of events.

§ Example: a ship goes down and the actions of the crew—are those actions independent and sever the chain of events of natural progression?

• Emegerncy Situations: π(s) who are acting in an emergency from the negligence of a ∆ do not break the chain of events [superseding/intervening cause] and are still foreseeable consequences. It’s the “zone of danger,” or danger lurks in the air still kind of thinking!

Directness Test: Superseding/Intervening Test: Sometimes the courts will look at whether or not there was an intervening cause [other cause that broke the natural chain of events]. This is referred to as either superseding or intervening.

• Proximate cause – which is also must be met with cause in fact. This is chaotic. It’s hard to predict. Somet things help is foreseeability and that’s foreseeable.

• The second thing is directness (Polemis) • Superseding • Remot

Emotional distress – generally no recovery and there’s a movement int eh law to allow more recovery for negligenty infleicted emotional distress. There’s a touching – you can get it, almost touched- yes California case “danger zone’ of witnessing a family member

Affirmative Duties

Duty to rescue – There is no duty to rescue, except when the omission of an act (which is caused by the defendant) can escalate or result in more accidents/liability.

• Kid Trespassers: In Busch, 8 year old kid walked in a work zone that had a sign that said “no trespassers,” and employees warned the kid to leave but he got in a major accident. Not liable – no duty to rescue.

• Doctor’s moral duty: In Hurley, a doctor didn’t come to see a patient when the family member knocked on his door and asked him to come. No duty to rescue or help because that’s his free time and not a contractual (legal) obligation.

• Car Troubles: In Montgomery, if you put others in trouble by an omission, you can be liable because you caused it (hits causation). Duty not to put others in trouble. Guy had stalled car that you can’t see unless you’re close on a snowy on the mountain area but didn’t put up any warnings. Is liable for resulting accidents (escalating the

• problem). Duty to others to not get them in peril. Landowner Duties: Owners and occupiers – When people occupy your premises, there are three different ranges for guests and they are:

• Trespassers – Owner ≠ Liable no legal duty: In Robert Addie & Sons – The owner of a worksite that had gaps

where people were known to walk through as a short cut and kids were known to be “attracted” to this dangerous wheel which was concealed . One day, a kid came onto the premises. The workers warned the kid that he could be hurt and to leave but he refused. He was seen as a trespasser and no duty of willful, wonton or intentional harm was done from warnings so the workplace is not liable for his death. The only legal duty they had was to avoid willful harm to the trespasser.

o Attractive Nuisance: Landowners have a duty to protect children, if they have knowledge there is something on their property that is attractive to kids and they are pone to playing with it because kids do not have knowledge of their risks and know they can be harmed.

§ the landowner must know of the danger and the attractiveness to the children and it must not be artificial.

• Outlier- California falling behind the times: In Rowland v. Christian, a girl invited her guy friend [social guest] over but didn’t tell him that her sink had a broken fixture and he t and seriously injured his hand. He brought suit

1.) invitees: highest level of care is needed because these are like business associates.

Premises need to be kept reasonbly neat and safe but it's

higher becuase it's business realted.

Example: Walmart Guests expect that every aile won't

be hazardous ith spills. If there is a spill there's usually a gate

and a warning.

2.) social guests: the duty of the host to the social guest (friends/party, etc) is just let them be aware and

warned of concealed dangers.

Example: Hey dude, watch out for that floor board

there because it's broken. Just don't steop there. Oh, don't worry about it bro.

3.) trespassers: there's no duty of care needed for them except not making hazardous or intentional

traps set out. You can't be wicked, wonted or wilful. it's less than intentioal but youc an't set up traps. This would trigger liability. No serious

harm for property.

Example: spring guns.

Neglience

= Breach of duty

To Whom?

For What?

Causation Damages

against her and California, which hadn’t adopted the owner-occupier rules (with invitees, social guests, and trespassers) originally denied him. The court used the process of “reasonable care,” in his appeal to see if his friend was negligent. She was found liable because it was foreseeable her friend would have come and hurt himself but without distinction, this would have ramifications for trespassers and on gong.

Gratuitous undertaking – General rule is that if you start something (that you weren’t legally obligated to do), then you need to finish what you started.

• “I’ll lend you hand”: If you make a promise, you are obligated to follow through because it’s lack of reasonable care. In Coggs, the defendant was a friend of the plaintiff and offered to help him carry some things down the stairs but he forgot and the plaintiff was hurt. Basically the idea was the promisor is then negligent because he owes a duty to the person (and it caused reasonable reliance). It forms a quasi-contract.

• Eerie: Once a party voluntarily assumes a duty, then discontinuance of the duty, without warning, will create liability. In Eerie, RR had watchmen, and one day they weren’t on duty or they didn’t have them and someone was injured and the RR was found at fault. The assumption of a non-legal duty must be maintained or liability exists.

• Cats and rabies: In Marsalis, a cat that was owned by an owner of a store bit someone and the owner said they’d quarantine the cat to find out if it had rabies. Cat got out of the bag and the lady freaked out and did tons of unnecessary (or maybe necessary) rabies procedures that were painful and she had a bad reaction. Liable! Follow through, fucker.

• Fire?: Special relationships – There is no legal duty to another person to rescue or prevent unless a special relationship exists as to warrant a “legal obligation” upon the other person. These situations invite danger or risky situations.

• Fine Line: In Wierum, a radio disk jockey said that the first person who would get to him would win money and two youths got into a drag racking and crashed. Was he liable? The answer was no because he didn’t owe them a duty to prevent the harm from any special relationship. [Note on p. 569]

• Landlords to Tenants: Landlords, and other individuals who have the “exclusive control” over a person or an area have a legal duty to exercise reasonable care and minimize risks or escalations of harm to others in common areas that are not in the control of the subordinate.

o In Line, the landlord had a “legal duty” to make sure the premises were safe in the common area and was the cause of the attack on the tenant. Because there was a prior assault, there was a lack of reasonable care to prevent the harm that occurred. The landlord’s lack of reasonable care was the direct reason for the events. Policy considerations were heavily weighed on here about rent prices going up and etc. There was also evidence of how the apartment conditions deteriorated and lacked reasonable security [train case].

• Psychologists: Psychologists have a legal duty to disclose information discreetly and are liable when a patient might warrant a danger in the following three scenarios: (1) if they know the identity (name and person) of the target (2) if they facilitate the prevent by putting a weapon in the patient’s hand (3) if they breach a promise to a future client [failure to warn]. They did not want to put a strict liability and it is looked on from reasonable care because they don’t want to deter people from seeking mental help.

o Tarasoft - Client told psychologist he wanted to kill a girl who had scorned his affections. The shrink saw him seven times and told him to involuntarily check himself in and was taken off the case by his supervisor. No steps were taken to warn the girl or her family and the issue of whether a duty should be imposed amongst therapists, that now exists today.

Strict Liability Strict liability is a carve out rule to our general rule of negligence. The heart of strict liability is that the activity is so inherently dangerous that we make it a tort without showing causation and negligence like we do in negligence. This generally applies to wild animals (or dangerous animals), hazardous activities, which are dangerous no matter what you do and what precautions, you take. IT also applies to imputed negligence of the employees to their employers. Which Best Serves Tort Goals? (NOT

CLEAR) Strict Liability

(For exceptions only) Negligence

(Background Rule)

Corrective Justice Δ caused Π harm despite reasonable care, therefore need to make Π whole against at expense of Δ.

Lack of reasonable care requirement consonant with corrective justice.

Deterrence Causes people to not want to harm and not take precautions though.

Incentives for people to use reasonable care.

Compensation Allows more compensation b/c them more people can sue.

It goes both ways for businesses (because they won’t be at fault all the time and sometimes they avoid costly litigation and pay a small fee with strict liability.)

Conversion: The intentional exercise of dominion or control over the property of another. The invasion must be so great to warrant damages for the items. This is different than trespass to chattels because chattel damages are awarded in proportion to how much damage was done. This is an offense to your ownership title and not damaging your things. Trespass to chattels is taking something you own and conversion is depriving [offending/breaking your right] you of something you possesses.

• Reasonable mistake ≠ an excuse because there’s a bit more work into doing this and because it’s an offense against title, the payment is in WHOLE and not just damages. “So great of an intrusion to warrant full damages for items.”

• Exercising Dominion: Conversation is exercising unjustifiable and unwarranted dominion and control over another’s property which causes harm to the property owner.

o Barrels – in Poggi v. Scott, the π stored his wine in barrels in someone’s cellar that was resold and resold to the final ∆ who then thought the barrels were empty and sold them (even though they contained the wine!). He is liable because he exercised an unjustifiable and unwarranted dominon and control over the barrels and caused the π to be financially in a pickle!

o Mistake? If you mistakenly take something, it doesn’t count as conversion until it’s complete and you complete the “dominion” of the item, but if you give it back right away then it’s okay… you have to complete the crime first!

o Maye v. Tappan – [add] • Title to the Property: In order to have a suit for conversion, you need and must have a title to what you are suing

for. In Moore – The plaintiff went for leukemia treatments and was not told that they were taking his cells for research that ended up being pretty wealthy. He sued, and he lost because he didn’t have a claim for it (there’s no title) and he won only on lack of informed consent.

Animals: Strict liability only applies to two cases: (1) wild animals and (2) dogs with dangerous propensity or a violent history who are prone to attacking [which is also allowed for negligence]. Otherwise, if the owner knew or should have known and lacked reasonable foreseeability to prevent a harm, they can also be tried for negligence (lack of reasonable care> strict liability). The rationale is that dogs are commonplace and in the reciprocal sphere of society we allow dogs because its common place.

• Trunk Dog attack: Gherts v. Batteen – St. Bernard, who was sitting in a trunk of a car, bit a little girl in the face. The owner agreed to let the girl pet the dog and thus suit for strict liability and negligence was brought. Outlier opinion to show negligence v. strict liability.

• One Free Bite Rule: All dogs get one free “bite,” but it does not necessarily mean they can bite one person and not be liable. This has to do with whether or not the dog has dangerous propensity or a history of violent attacks but the rule covers dogs who were in the wrong place at the wrong time.

• Policy Exceptions: o Zoos: policy reason of providing a good for society (benefit) o Parks: it’s a social benefit for everyone to partake in so it wouldn’t be right… if you think of it that wy.

Intent with foreseeability test  • Minor or major Devication?

Scope of Employment

• What's part of employment? Hiring training   supervising  

Vicarious  Liability  • [strict  liability]  

o Animals on FROM other people’s properties: § Hostage: you can keep them hostage until the owner pays you back and it is strict liability for

the damage caused, because it was someone else’s property § You don’t have to show negligence on the owner’s part, and you could just keep the animal

because it trespassed onto your property. Ultra-hazardous or Abnormally Dangerous Activities are considered a strict liability and are not within negligence because they impose a danger to society as a direct performance. No negligence is needed to be shown. They are outside the social norm and put others in unnecessary danger.

• Abnormally Dangerous Activities Requirements: Strict liability exists when activates are so “inherently dangerous that they fit the following:

1. Even with reasonable care, the activity is still inherently dangerous and such harm is foreseeable . (Can it be made to be “generally safe?” if no, then it’s inherently dangerous or “ultra hazardous”)

2. The activity is not of common usage Common usage? Reciprocal relationship is what we all impose on one another. Strict liability is putting an injunction and stopping an activity because the defendant will always be liable. Cars – we all agree and partake in those risks. Pets § Society is willing to impose a risk… because we all partake, but what about airplanes? Before it

used to not be common usage, but today it is. § Bear in mind that activities change and usage becomes more or less common to warrant strict

liability or not. • Key Example: Dynamite? In Spano – Without negligence being shown, strict liability can exist if the activity is

abnormally dangerous. Using dynamite to blow up rocks is hazardous and these business interests interfered with the possession of a stranger. If a business owner disturbs the interests of a private owner, then the business owner is not negligent, but liable for damages because such activities are so dangerous and carry so much risk of imposing risk of damage on others that just being engaged in them, warrants liability.

• The concern is that if we didn’t have strict liability, some people would keep being negligent and doing the same activities. You don’t have to stop if you’re negligent—it’s like being frowned upon. You just have to pay. If your dangerous activity caused a damage, you are liable. The counter concern is that if something is strict liability, then they have to make a whole new way to do this:

o Accommodates and fosters businesses: Sometimes, no huge lawsuit and just pay a nominal fee, but at the same time, for things that have a bigger penalty, it’s a huge fee that must be paid and new policy reasons must be argued or there must be a new way to go about it.

o Outlier Case for Policy Reasons: Indiana rHabor Belt RR v. American Cyanamid Co. – hazardous material was transported on a train and was not strict liability because it could have been maintained better and was purely negligence.

§ Policy rationale: there are always two ways to go about strict liability cases: this was not the manufacturer’s fault (who is being sued) and they shouldn’t be liable every time. This was the train’s fault for not being careful and [under the law of economics], this is the most efficient means and by creating strict liability, we would deter many people in this business to find less efficient means.

• 1.) negligence – you should have known better • 2.) strict liability – this is something so unreasonable and you are automatically at fault.

Vicarious liability – The employers are held strictly liable for their employee’s actions/torts –which still must be argued to be negligent or not. To see if the employer is liable, the employee must be within the scope of employment and the action must be foreseeable.

1.) Foreseeable Test: proximate cause and duty of employers to foresee if something was within the nature of the employment. We look at foreseeability within vicarious liability in negligence in hiring, training or supervision.

o Detour? if things are not in the scope of employment, they are major deviations from the work tasks but if they are minor detours, they are still in the scope of employment.

• 2.)Intent Test: the intent test is whether or not the employee thought they were serving the employer when the tort occurred and is a much more strict test.

• Imputed Negligence: This is driven by the idea of deep pockets. The negligence of the employee is imputed to the employee to help compensate the victim, as well as to spread the loss. The company is able to absorb the loss better and bale to compensate the damages done to the π.

o Loss Spending – the victimis injured and needs to be compensated for loss wages and medical bills and the burden on one person is too large, but if we spread it out [onto the employer], it is more manageable for society as a whole.

o Classic case: Ira S. Bushey & Sons v. United States – Seamen was drunk and walking back to a ship and damaged the dock where the ship was at. Is the corporation liable? Yes because it was foreseeable and it will be a deterrence for employers to not hire carelessly. This was direct negligence [under supervision]. Was still within the scope of employment.

• Indemnity: corporations usually do not sue their employees for indemnity because they want their employees to be more foregoing through their trial and be a “unified team.”

• Arrangement showing Authority: o Direct: they are directly under this person. o Implied: if they act a s if they have control, as if they are supervisor and limiting or constraining the

conduct [on how they function]. The HMO limited the prescription and did not break causal chain and was the “implied” authority.

o Apparent: To hold yourself out as if you are employed by a corporation § Petrovich – Patient was negligently misdiagnosed with cancer and is holding her HMO liable who

used an independent contractor. The court looked at whether they [doctors] are employees not by formal arraignment or whether they are treated as employees by apparent authority.

§ If the corporation holds someone else out as if they are an employee, THEN it is just to make them liable under a corrective justice standpoint. Under deterrence, we don’t want companies using independent contractors to escape liability. Also, we want to incentivize companies to be more careful and not get into fraudulent “shared physician” territory and give false arraignments. The market needs to be incentivized (by deterrence and corrective justice)/