Table of Contents

Intentional Torts..................................................................................................................................... 2The Concept of Intent....................................................................................................................................... 2Battery and Assault........................................................................................................................................... 2Trespass and Conversion................................................................................................................................. 3Defenses................................................................................................................................................................ 3

Negligence................................................................................................................................................ 4The Standard of Care – Establishing duty...................................................................................................4Special Methods of Creating Standard of Care.......................................................................................5

Causation................................................................................................................................................. 7Cause in Fact / Actual Causation................................................................................................................... 7Proximate Cause................................................................................................................................................ 7Intervening Causes as Superseding Causes................................................................................................. 8

Other’s Conduct as a Contributing Cause........................................................................................ 9Contributory Negligence.................................................................................................................................. 9Comparative Risk.............................................................................................................................................. 9Assumption of the Risk.................................................................................................................................. 10Responsibility for Multiple Parties, Including the Plaintiff..................................................................10Group Liability................................................................................................................................................ 12

Special Situations................................................................................................................................. 12The Failure to Aid........................................................................................................................................... 12The Failure to Warn....................................................................................................................................... 13Owners and Occupiers of Land................................................................................................................... 13Special Immunities.......................................................................................................................................... 15Governmental Immunities............................................................................................................................ 16Negligent Infliction of Emotional Distress.................................................................................................17

Strict Liability..................................................................................................................................... 18Animals............................................................................................................................................................. 18Dangerous Activities.................................................................................................................................... 18

Damages................................................................................................................................................ 20

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Intentional TortsThe Concept of IntentI. Restatement §1: Intent

A. A person acts within intent if the person has the purpose of producing that consequence or the person knows to a substantial certainty that a consequence will ensue from a persons actions

II. Substantial Certainty TestA. Jackson v. Brantley (the horse on the road case): Knowledge of the consequences an act

is certain or substantially certain to occur can constitute intentB. Beauchamp v. Dow Chemical Co. (the agent orange case): Substantial certainty should

not be equated with substantial likelihood

Battery and AssaultI. Elements of Battery

A. A voluntary ActB. Intent to cause harmful or offensive contact

1. Offensiveness: offends a reasonable sense of dignity, unwarranted by social usages then and there prevalent

2. Singer v. Marx (“Watch Barbie” case): A child may have the capacity to intend the violent contact essential to battery and also lack the capacity to know his conduct might foreseeability lead to injury in a negligence case.

C. Transferred intent : If a intends to strike one person and inadvertently strikes πanother, he is liable to the 3rd person (Singer v. Marx: (Watch Barbie case)1.

D. CausationE. Harmful or offensive contact

1. Masters v. Becker (little girl falling off car): must only prove intent to contact, not the intent to injure or cause harm

2. Brzoska v. Olson (AIDS doctor): creates the actual exposure test; a must actuallyπ be exposed to a disease causing agent as a prerequisite to prevail on a claim based upon fear of contracting the disease

II. Elements of AssaultA. Restatement §29(1): A voluntary act with the intent to cause the apprehension of

imminent harmful or offensive contact1. Restatement §31: Words do not make an actor liable for assault unless together

or with other acts put the other in reasonable apprehension of an imminent harmful or offensive contact

2. Dickens v. Puryear (Racial violence and death threat): threats of castration and death while was being beaten constitute assaultπ

III. Intentional Infliction of Emotional DistressA. Restatement §46: One who by extreme or outrageous conduct intentionally or

recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, from such bodily harm

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1. Dickens v. Puryear (Racial violence and death threat): A death threat for the future if he does not leave the state that inflicts serious mental distress could be actionable as IIED.

Trespass and ConversionI. Trespass to Land

A. One is subject to liability to another for trespass if he enters onto someone else’s land or causes a thing or third person to do so1. It does not matter if you cause any harm to the other’s property

B. Implications1. If you make a mistake and trespass, still trespass2. If you are invited, you are not trespassing so long as you remain invited

II. Trespass to ChattelA. Dispossessing another or affecting the use of another’s possession

1. Liability occurs if: dispossession, impairment of the chattel, depravation of use, bodily harm to the possessor or thing which possessor has an interest

B. If not destroyed, damages limited to the diminution in the chattel’s FMVIII. Conversion

A. Intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another that the actor may be required to pay the full value of the chattel1. Factors in seriousness: extent and duration of control lost, intent to assert right

inconsistent with another right, inconvenience and expense to others, harm to chattel, good faith

DefensesI. Insanity

A. Not an affirmative defense, it is a characteristic that may make it more difficult to prove an intentional tort1. Whtite v. Muniz (Grandma hits an orderly): an insane actor must intended the

contact and intended it to be harmful or offensiveII. Consent

A. A privileged defense; ∆ is saying that it was not a battery because there was consent1. Hellriegel v. Tholl (kid paralyzed during horseplay): Consent to action means

consent to accidental injury within the scope of the act consented toa. Limits to what you consent to

B. Limits on consent1. Must be obtained by someone able to give consent2. Cannot be obtained if ∆ knows is operating on an assumption ∆ knows is π

wrongC. Informed Consent

1. Doctor has an obligation to provide information or ensure a person has information

2. Assumed consent to competent medical care if there is an emergency and the person is incapacitated

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a. Mulloy v. Hop Sang (hand cut off by doctor): Doc. overstepped consent when patient’s instructions were clear but not followed and surgery removed hand.

III. Self DefenseA. Proportionality and reasonable fear of injury

1. Lane v. Holloway (bar fight w/ brass knuckles): Self defense not a defense when the act is our of proportion to the occasiona. Provocation can reduce punitive damages but not compensatory damages

B. Defense with a deadly weapon1. Silas v. Bowen (drunk NBA player shot for trespass): Use of a deadly weapon is

authorized if the conduct of a trespasser produces the apprehension of assault involving serious bodily injurya. A property owner may shoot where incursion upon his property is attended

by a threat of personal harm to himself, family, or others he is entitled to defend

2. Restatement §65: deadly force cannot be justified if retreat is possible unless the defender is attacked within his own dwelling

C. Defense of Property1. Brown v. Martinez (watermelon theft shot kid): The use of a gun against a

misdemeanant is impermissible unless there is threat of serious physical bodily harm

IV. DisciplineA. Public schools is a matter of statute, comes down to reasonableness of the act

V. Public NecessityA. Is it for the good of all or for the good of just the governmentB. Example: city drops bomb on radical group inside necessity; not putting the fire

out not a necessityVI. Private Necessity

A. Ploof v. Putnam (mooring boat in sudden storm): The entry onto the land of another may be justified by necessity1. Was the decisions reasonable under the emergency circumstances?

B. Vincent v. Lake Erie Transportation Co. (moored boat runs against dock in storm): Though it was necessary to dock the boat, still liable for damage caused by the boat

C. Restatement §197: Private necessity trumps trespass, but requires compensation if property is damaged

NegligenceThe Standard of Care – Establishing dutyI. A standard below which no one can fall you are assumed (or legally presumed) to have

a minimum sense of what is reasonableA. Example - Delair v. McAdoo: law requires to know the condition of your car, will be

assumed they know of the dangers of not repairingB. Goss v. Allen (skiing accident): the nature of the activity itself should be included in

circumstancesII. Effect of age

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A. Charbonneau v. MacRury: age and stage of development of the individual in the process of his growth are relevant considerations

B. Rule of 7’s1. Under 7 years old: incapable of negligence2. 7-14 years old: presumed incapable3. 14-21 years old: can be negligent with age and experience taken into account

III. Foreseeability and the standard of careA. Haley v. London Electricity Board (blind man falls into manhole): You owe a standard

of care appropriate to persons whose presence are within the scope and hazard of your operations

B. Baker v. City of Philadelphia (truck driver runs over paper, kills kid): failure to exercise reasonable care is not excused because you cannot see the particular results of the negligent act

C. Pitre v. Employer’s Liability Insurance (kid hit by baseball at fair): must exercise standard of care commensurate with foreseeable dangers under the circumstances.

IV. BPL Analysis United States v. Carroll Towing Co.A. Burden = Probability of injury x LiabilityB. Problems with BPL

1. Information costs are expensive and generally not perfect2. How to measure liability

V. Ways of establishing a standard of careA. Common lawB. Statistical evidence showing foreseeability: HaleyC. Expert Testimony: PitreD. BPL: CarrollE. Legislative Enactment

Special Methods of Creating Standard of CareI. Statutory standards of care

A. Categories of statutes1. Per se: conclusive presumption of duty and breach2. Prima facie: rebuttable presumption of duty and breach

a. Example – Martin v. Herzog (failure to use headlight creates presumption of negligence)

3. Some evidence of duty and breachB. Protected classes and exceptions

1. Brown v. Shyne (chiropractor without a license): Breach of statutory duty may be evidence of negligence only if there is logical connection between proven neglect of statutory duty and the alleged negligence

2. Tedla v. Ellman (pedestrian wrong side of the road struck by passing car): Breach of statutory duty is not negligence when observance would subject a person to danger what could otherwise be avoided

3. Barnum v. Williams (rainy day, sliding car accident, cross center): if a party violates a motor vehicle statute, such a party is negligent unless they produce evidence from which the trier of fact could that party was acting reasonable

C. Custom and industry standards

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1. Dempsy v. Addison Crane Co. (boom of crane fell and hit employee): evidence of custom or industry practice is some evidence but does not establish a duty

II. MalpracticeA. Standards of malpractice as shown in Shilkret v. Annapolis Emergency Hospital Assoc.

1. Strict locality2. Similar locality3. National standards

B. Imposing judicial standard of medical care1. Helling v. Carey (imposing glaucoma test case): there are some precautions that

are imperative irrespective of its disregard by standards of professiona. Creates societal benefits/costs

III. Informed Consent Miller v. Kennedy (kidney biopsy loss of kidney)A. Doctors have a duty to provide all relevant material information that the patient

needs to make and informed decisionB. Elements of Informed Consent Claim

1. Physician failed to inform of a material risk2. Patient consented without being aware of material risk of each treatment choice3. A reasonable person probably wouldn’t have consented if informed4. The treatment caused injury

C. Special circumstances1. Emergencies: doctor must act and patient cannot consent2. Given information would be detrimental to patient (don’t see often)

IV. Res Ipsa Loquitur: The thing speaks for itselfA. Elements to invoke of Res Ipsa

1. ∆ had exclusive control of the instrumentality2. What happened reasonably could not have happened without some act of

negligence3. cannot disprove alternativesΠ

B. Must still prove causation and damagesC. Judge as gatekeeper

1. Not enough to take grant res ipsa2. Inferences is enough to take to jury and they may (but are not required to) find

negligence. a. Example - Foltis v. NYC (water mane break case)

3. Inference is so strong judge directs for if ∆ cannot rebutπa. Example – Swiney v. Malone Freight Lines (tire falls off truck of sheared lug

nuts and damages other car)D. Forcing the defendant to explain what happened when the plaintiff cannot

1. Ybarra v. Spangard (patient wakes up from surgery on leg, paralyzed in shoulder): where a receives unusual injuries while unconscious, all ∆’s who πcould have caused may be called to meet the inference of negligence and rebut.

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CausationCause in Fact / Actual CausationI. General principles

A. Kingston v. Chicago & Northwest Railroad Co. (2 fires converge on ’s house): If two πcauses unite and either would have caused the injury, then ∆ is liable1. Even if one cause is not by the ∆2. If both ∆’s act, then joint and several

B. We don’t go to the jury on a possibility1. Kramer Services v. Wilkins (falling glass and cancer develops at site of cut): proof

that a past event possibly caused the injury or that a certain result was possibly caused by a past event is insufficient to go to the jury.

2. Daly v. Bergstedt (grocery store fall, eventual cancer): where expert testimony indicating actual cause falls on both sides, question of cause is left to trier of fact.a. Look to whether the evidence was reliable

II. Exceptions to general principlesA. Creating joint tortfeasors where there was non before

1. Summers v. Tice (hunting trip accident): when two or more persons by their acts are possibly the sole cause of harm, and the introduces evidence that one of πthe two are culpable, then the ∆ has the burden of proving that the other person was the sole cause.a. Different from res ipsa because determining causation, not whether duty and

breachB. Hotson v. East Berkshire Area Health Authority: anything that is more probable than

not is treated as certain1. Anything that is less probable than not, is treated as uncertain2. In this case, judge said 75% chance would have gotten necrosis π he would

have gotten it

Proximate CauseI. Polemis (falling board spark fire sinking)

A. If an act can foreseeably cause some damage, then ∆ is liable for all damages that are directly traceable to the negligent act

II. Palsgraf (man pushes passenger package falls firework explodes scale hits )πA. Cardozo: orbit of danger

1. If we don’t contemplate the orbit of danger to include the , then no recoveryπ2. Drawing the orbit

a. Before the act, around the act (foreseeable risks that come from that act)B. Andrews dissent: stream of foreseeability

1. For a time, you can differentiate between the different causes, but eventually they mix and a line must be drawn

2. Line must be drawn somewhere...matter of convenience or politicsC. Drawing lines

1. Cardozo defines who liable to...more deterrent2. Andrews limiting what liable for...more compensation

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III. Wagon Mound I (oil leak falling molten metal hits debris causes fire)A. The essential factor in determining liability is whether the damages is of such a kind

as the reasonable man should have foreseen1. Judge in the case rule ∆ did not and couldn’t have known the oil would light

IV. Hughes v. Lord Advocate (kids near manhole go in tip lamp explosion damage)A. The injury must be foreseen, the mechanism does not necessarily have to be

1. Though the explosion may or may not have been foreseeable, the burn from the lamp was.

V. Doughty v. Turner Manufacturing Co. (cover falls into chemicals eruption of chemicals)A. Duty is owed in relation to the foreseeable risks

1. Here, the risk was from splashing, not eruption (a new and unforeseeable event)VI. Kinsman: Pinball ships flood river

A. An actor whose negligence has set a dangerous force in motion should not be saved from liability simply because another failed to take action which would have avoided it

B. If there is a big risk of little harm and little risk of big harm, you will be liable if the act to mitigate the big harm is the same as the act to mitigate the little harm

VII. Wagon Mound II: A. If it is clear that the reasonable man would have realized or foreseen and prevented

the risk, then it must flow that he is liable.1. Here, WM leaked oil and fire eventually sank other ships2. Not stopping the oil was unreasonable, it was negligibly foreseeable, therefore

liable

Intervening Causes as Superseding CausesI. Restatement of Torts 2d §439

A. If the effects of negligent conduct is active and continuously operating to bring about the harm, then the simultaneous effects of 3rd party’s act does not preclude

II. Glasgow Reality Co. v. Metcalfe (kid pushes on glass glass falls out stampede below)A. Owner of apartment are liable for failure to maintain (active and continuous) breach

of dutyIII. Brauer v. New York Central and Hudson River Railroad (criminal steals goods after

railroad collision)A. Criminal acts do not supersede the original negligent act if the 3rd party’s act is

foreseeableIV. Other situations

A. Suicide depends on the circumstances leading to the act ex: injury leads to depression

B. Acts of God will not cut responsibility to the extent they are foreseeableC. Rescuers

1. Duty to a rescuer so long as the rescuer is being reasonablea. The wrongdoer is accountable even if he didn’t foresee someone rescuing

2. Does not apply to professional rescuers normally because risk built into fee

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Other’s Conduct as a Contributing CauseContributory NegligenceI. General propositions

A. Butterfield v. Forrester (pole in role, hits pole while riding too fast, injured):π1. If a ’s negligence concurs with the ∆’s negligence, then the is barred from π π

recoveryB. Smithwick v. Hall & Upson Co. ( disregards ∆’s instructions to stay on one end so as π

not to fall, it hit by falling wall)1. The negligent act by the must act as a proximate cause, not merely as a π

conditiona. You assume the risks of the conduct, falling walls were not foreseeable

Comparative RiskI. Types of comparative negligence

A. Pure: assign a % of fault to each and assign damages based on that %B. Modified:

1. recovers if the ∆’s negligence is = or > than ∆’s negligenceπ2. recovers if ∆’s negligence is > than ’s negligenceπ π

a. If 50/50 fault, then no recoveryII. Looking at the two models in Bradley v. Appalachian Power Co.

A. Modified comparative negligence has problems of arbitrary line drawing around 50%1. Jury can make a decision to keep on the hook when they shouldn’t beπ

B. Pure is too extreme when each person contributes and must pay a portion of damage caused

C. Adopts modified so recovers as long as < 50% at faultπIII. Martel (illegally climbing a negligently maintained power pole and falling)

A. Negligence in all its forms (ordinary, willful and wanton, reckless, gross) can be compared to and offset by each other1. Plurality rule: intentional torts not a bar on comparative negligence

IV. Comparative responsibilityA. Look at nature of each person’s risk taking activityB. How unreasonable was the conduct under the circumstancesC. How much did the conduct fall below applicable legal standardsD. What was each actor’s abilities and disabilitiesE. Comparative strength of causal relationship

V. Last Clear ChanceA. Restatement of Torts 2d §479: Last Clear Chance: Helpless plaintiff

1. If through negligence puts himself into a situation of helpless peril which the ∆ πknows or should have known of, ∆’s failure to exercise reasonable care to protect

is negligence barring the use of contributory negligenceπB. Restatement of Torts 2d §480: Last Clear Chance: Inattentive Plaintiff

1. If through negligence puts himself in situation of unknowing peril which ∆ πactually knows about, the ∆s failure to exercise reasonable care to protect is πnegligence barring the use of contributory negligence

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Assumption of the RiskI. La Frenz v. Lake County Fair Board (monster truck death case)

A. Express assumptions of the risk are valid unless1. Against public policy2. K of adhesion, not knowingly made, where bargaining is not free or open, lacking

consideration, or uneven bargaining power3. Affects the public interest...such as public utilities, common carriers, innkeepers4. Extreme form of negligence

II. Elements of implied assumption of the riskA. Knowledge by the injured party of a condition inconsistent with his safetyB. Appreciation of the danger in the conditionC. A deliberate and voluntary choice to expose his person to that danger in a manner to

register assent on the continuance of the dangerous conditionIII. Cases of implied assumption of risk

A. Herod v. Grant (falling out of the back of a moving truck while shooting at deer)1. When one who voluntarily takes a risk, the danger of which is so obvious that

the taking of the risk amounts to a failure toe exercise ordinary care, cannot hold another liable

B. Jones v. Three Rivers Management Corp. (foul ball hits woman in the concourse)1. When the risks of an activity are outside the common, frequent, or expected

risks of an act or event, then a cannot be said to assume the riskπC. Auckenthaler v. Grundmeyer (injury from bad horse kicking the other horse)

1. Implied assumption of the risk is more properly understood within the framework of comparative negligence and should be analyzed under ordinary standard of care

D. Seatbelt defense1. In most comparative states, failure to wear is admissible as a sign of comparative

negligence that can be assigned a %a. Some states limit to a maximum %

2. Most contributory states do not admit failure to wear a seatbelt as evidencea. Treated as concurring events even though the seatbelt does not cause the

actionE. Helmet defense

1. Most see failure to wear a helmet as a % of the damage if there is a law2. If no law, then what is the difference between no helmet and a convertible

Responsibility for Multiple Parties, Including the PlaintiffI. Vicarious Liability

A. A has done something wrong, B has done nothing wrong, but B will be called on to pay for A’s negligence

B. Joint enterprise (ex: 4 friends road trip across country)1. Express or implied agreement2. Common purpose3. Community of pecuniary interest4. Equal right to be heard on direction

C. Permissive use of a car

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1. Family Purpose Doctrine: person owns a car and lets his family use it can have vicarious liability over accidents caused by family members

2. Statutory liability created in some states where there is a rebuttable presumption of permission

3. If owner is in the car, must remonstrate if the driver starts driving poorlya. Not liable if sudden change, but otherwise should remonstrate

II. Respondeat superior: let the master answerA. An employer is vicariously liable for his employee if the employee is acting within

the course and scope of employmentB. Exceptions to the rule

1. Frolic v. detoura. Detours may be still liable, will not for a frolic. A frolic endsb. Intentional torts excluded with a few exceptions

(a) If employer puts employee in a position where employee has control of people (cab driver, teacher, etc.)

C. Independent contractors are generally exempt1. Hired to do the job, IC is free to carry out as they see fit2. Cannot get off the hook if it is a non-delegable duty

III. Indemnification: a right against the negligent personA. Shifts loss from vicarious ∆ to the negligent ∆B. If suing both people:

1. Some states allow a claim for indemnity after the initial case, but could bring during main case

2. Best shot is to say no vicarious, but if I am vicariously liable then negligent ∆ is not liable for negligence

C. If vicariously liable ∆ settles, can still bring suit of indemnity if:1. ∆ had proper and timely notice of the settlement2. ∆ is in fact liable3. The settlement is fair and reasonable

IV. Joint and Several LiabilityA. Common law

1. Joint and several liability imposed if ∆’s acting in concert or in a Summers v. Tice situation

2. can sue any ∆ (or all ∆’s), then collect everything from any ∆Πa. The ∆ can then go after the other ∆’s for payment of pro rata shares

B. Variants on J&S liability1. Several liability: each ∆ pays % of responsibility for the damages2. If ∆ ≥ 50% at fault, then they are joint and severally liable3. Some caps on % owed or max amount owed

C. Modern view: allocate among the parties1. Moving to reallocation among remaining ∆’s and if one ∆ defaultsπ

D. Effect of settlement and release1. If settlement is fair and reasonable and a release is given, then no contribution

a. Parties that do not settle are still liableE. Set off for amount paid in settlement

1. damages > settlement: ∆ pays difference; damages < settlement: ∆ pays nothing

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Group LiabilityI. Sindell v. Abbott Laboratories (DES suit against all manufacturers)

A. Summers v. Tice logic must be limited to where ∆’s are in a better position to give information than the π they weren’t here

B. For a group to be acting in concert, they must be working toward a common tortuous plan/act and support the actual wrongdoer companies working in parallel action are not

C. Enterprise liability cannot be established by a pervasive government standardII. Market Share Liability: as created in Sindell

A. ∆’s liability is based on the market share of that ∆B. If can show injury caused by DES, then can collectπ

1. ∆ can show they did not cause the injury to be releasedIII. Sharkil v. Lederle Laboratories (Vaccine causes retardation no recovery)

A. No shift of burden of proving causation when would still be in position to proveπB. Policy implications: it is very important to encourage manufacture of the vaccine

1. Congress set up fund for adverse reaction, waivedπ

Special SituationsThe Failure to AidI. Yania v. Bigan (∆ allegedly taunted into jumping π drown)

A. No responsibility to rescue unless legally responsible for placing the person in the perilous position

II. Special relationships creating a duty to aid and protect (Rst. 2d. §314)A. Contractual obligation/relationshipB. Common carrier, Innkeeper, CustodianC. Possessor of land who holds it open to the publicD. Promissory estoppel: one who relied on a promise to their detriment

III. Posecai v. Wal-Mart Stores, Inc. (woman robbed in a parking lot)A. Business owners have duty to implement reasonable measures to protect their

patrons from criminal acts when acts are foreseeable. (defines foreseeable w/ BPL)1. Ways to analyze foreseeability

a. Awareness of the specific harmb. Prior or similar incidentc. Totality of the circumstancesd. Balancing test (BPL)

IV. Farwell v. Keaton (drunk guy beat up, friend leaves in back of car)A. When two people engage in a common undertaking, there is a special relationship

between the parties. This created a duty to aid, so long as it did not endanger the ∆.B. Once one undertakes to help an injured person, one is under an obligation not to be

negligent in assisting that personV. The duty to those whose conduct has injured or threatened injury to others

A. Restatement 2d §322: if you made them helpless by your conduct you have a duty to exercise reasonable care to prevent further harm

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B. Restatement 2d §321: If one does an act which at the time he has no reason to believe will involve an unreasonable risk of causing bodily harm to another may have a duty to tae steps to prevent the risk from coming into effect once he realizes or should have realized he has created an unreasonable risk of injury1. Example: hit a golf ball, then someone runs into the fairway. Not unreasonable

to have you yell fore2. Example 2: serve a drink that puts them over the edge, not unreasonable to

impose duty for the bartender to try to prevent further injuryVI. Duty of volunteer rescuers

A. Restatement 2d §324: one who takes affirmative steps to aid a helpless person must take reasonable care and not leave them worse off1. Comment g: cannot fulfill the duty by putting them in an equally perilous

positionB. Parvi v. City of Kindston (cops leave drunks in field, they walk onto road and die)

1. Enough to get to jury because if the was helpless they left him worse offπ2. If not helpless false imprisonment

C. Good Samaritan Laws1. Began as a way to encourage doctors to volunteer w/o incurring liability2. Now, has been expanded to the point where they are not helpful

The Failure to WarnI. Thompson v. County of Alameda (Parolee threatens to kill a kid in neighborhood, does

after released)A. Factors of whether there is a duty to warn

1. Foreseeability of the harm2. The degree of certainty the was injured (actual cause)π3. Closeness of connection between ∆’s conduct and the injury (proximate cause)4. Moral blame attached to ∆’s conduct5. Policy of preventing future harm6. Burden to ∆ and consequences to community of imposing a duty7. Availability, cost, prevalence of insurance

B. For government, also consider1. Extent of agency’s power2. Role imposed by law3. Limitations imposed by budget

C. Holding: no duty to warn because policy of granting parole and no actual, foreseeable victim

II. Eisel v. Board of Education of Montgomery County (suicide of student when counselor may have known)A. School counselors have a duty to use reasonable means to attempt to prevent a

suicide when they are on notice of a child or adolescent’s intent

Owners and Occupiers of LandI. Common Law Designations

A. Invitee (business visitor): one who is invited onto the land for business persons

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1. Duty to warn or fix non-obvious dangersa. Known or should have known testb. Duty of reasonable inspection

B. Licensees (social guests): on the land with consent for their own purposes1. Duty not to be more than ordinarily negligent

C. Trespasser: no invitation or permission1. Duty not to commit an intentional tort

II. Lunny v. Post (woman trips on a Garden Club Tour of ∆’s house ∆ liable)A. Eliminates difference in duty between business visitor and public invitee

1. 2nd restatement says any person on land that is open to the public fall under the first categories as inviteesa. Public invitee is a person who is invited to enter the land as a member of the

public. A business visitor is someone who directly or indirectly connected with business dealings with the possessor of land

III. Nelson v. Freeland ( tripped on a stick when going to pick up ∆) πA. Eliminates the trichotomy entirely

1. Reasonable care is owed to all lawful visitors on the property2. Does not include trespassers, but this creates problems (broken down too)

IV. Restatement 3d DraftA. A duty of reasonable care to entrants of the landB. To use reasonable care to investigate and discover dangerous conditions and use

reasonable care to attend and to know of a reasonably knowable condition on the property

C. Only for dangers the possessor expects entrants will not discover or even if known, will fail to protect themselves against

D. Flagrant trespassers: duty not to act in an intentional, willful or wanton manner to cause physical harm

E. Even for trespassers: duty for reasonable care when the person reasonable appears imperiled and (1) helpless, or (2) unable to protect themselves

V. Bennet v. Stanley: child trespasses and falls into a pool diesA. Restatement 2d §339 Attractive nuisance

1. A possessor of land is subject to liability for physical harm to a trespassing child if:a. He knows or should have known that children are likely to trespassb. The condition is one he knows or should know involves an unreasonable risk

of death or personal injury to childrenc. Children because of their age don’t discover the condition or understand the

risk involvedd. Utility to the possessor of maintaining the condition and the burden of

eliminating the danger are slight compared to the risk to the childrene. The possessor fails to exercise reasonable care to eliminate the danger or

otherwise protect the children2. Comment n: the public interest in the possessor’s free use of his land for his own

purposes is of great significance.a. A particular condition is regarded as not involving unreasonable risk to

trespassing child unless it involves a grave risk to them which could be

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obviated without any serious interference with the possessor’s legitimate use of his land.

3. The child need not be injured by the attractive nuisance itself, now concerned with foreseeable trespassa. If child is contrib. then §339 probably won’t apply

VI. Sargent v. Ross (child falls down stairs of landlord’s property)A. Traditional rule of landlord liability

1. Not liable unless injury is attributable to:a. Hidden danger which landlord knows about and tenant does notb. Premises leased for public usec. Premises retained under landlord’s controld. Premises negligently repaired

B. Holding: Landlords must exercise reasonable care not to subject tenants to unreasonable risk of harm1. Must act as a reasonable person under all the circumstances including likelihood

of injury to others, probable seriousness of injury, burden of reducing/avoidingVII. Restatement 3d §53 Draft

A. a lessor owes a duty of care1. Portions over which he retains control;2. Risks that are created by the lessor in the condition of the leased premises;

B. A duty to disclose to the lessee any dangerous condition that satisfies all of the following:1. (1) It poses a risk to entrants on the leased premises;2. (2) It exists on the leased premises when the lessee takes possession;3. (3) It is latent and unknown to the lessee; and4. (4) It is known or should be known to the lessor;

C. Duty of reasonable care for any dangerous condition when lessee takes control if:a. Lease is for a purpose that includes admission to the public andb. Lessors has reasonable to believe the lessee will have people on the property

without fixing

Special ImmunitiesI. Charitable immunity

A. Societal preference to keep charities in businessB. Exceptions

1. Automobile torts up to insurance coverage2. Often does not cover hospitals or medical facilities3. Some jurisdictions have caps4. Greater than ordinary negligence

II. Inter-spousal immunityA. Mostly gone, but where it still exists there are tons of exceptions

1. Domestic violence, many othersIII. Parent-child immunity

A. Branner v. Hutchinson Divisions, Lear-Siegler, Inc.: child loses hand in grain auger, ∆ files third party complaint against father1. Blanket immunity is gone, but parental discretion and parental provision of food,

clothing, housing, etc. still immune (adopted from Goller)

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Governmental ImmunitiesI. Federal Torts Claim Act

A. US is liable for any acts or omissions a private employer would be liable for in the jurisdiction where the act or omission took place1. Allowed to use any affirmative defenses under the jurisdiction’s laws

B. Procedure for filing a claim1. After exhausting all administrative options, must file Form 95 with the agency. 2. The agency will respond w/i 6 months, then you sue after response.

a. If no response, then can sue after 6 months3. Must file in U.S. Dist. Ct. against the United States, not an employer4. No jury unless judge empanels an advisory jury

C. Feres Doctrine: no claims against the US for injuries arising from or in the course of activities incident to military service1. May not be good law

II. Liard v. Nelms: property damage from sonic boom of SR-71 planA. The government is no liable for damages based solely on the ultra-hazardous nature

of an activity undertaken by the government1. Dalehite holds that the government is liable for negligent act or omission, but

strict liability is not based in negligence at allB. Dissent: Strict liability is not included on the list of exceptions, and it would have

been if it was supposed to be1. Wrongful is a different word than negligent, can impose strict liability on a

wrongful actIII. Discretionary authority

A. In a world of limited resources, it is the government’s prerogative to allocate those resources without being second guessed1. Rare for a to win against the government if there is a question of discretionary π

authorityB. Also seen as a distinction between policy and operational, policy = discretion

IV. State and local municipal immunityA. Most states have waived immunity in certain circumstances and situations

1. Many model the FTC actB. 11th Amendment says Fed. Cts. Cannot be used to sue the states.

1. Doesn’t apply to municipalitiesV. Public Duty doctrine

A. Duty of protection of the public at large, not of individuals unless there is a special duty to protect

B. Tipton v. Town of Tabor: the wolfdog case finding of no special duty1. In determining if the government has a special duty, look at

a. Actual knowledge of dangerous condition(a) Actual knowledge alone is insufficient to create a special duty

b. Reasonable reliance by persons on official representations and conduct(a) Not enough to have a general feeling you will be safe

c. An ordinance or statute setting forth mandatory acts for the protection of a particular class of persons

d. Failure to use due care to avoid increasing the risk of harm

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Negligent Infliction of Emotional DistressI. Spade rule: There is no recovery for physical injuries caused solely by mental disturbance

A. Must have physical contact/impact to recover for injuriesII. Dziokonski v. Babineau: Child struck by car, mother has emotional distress and dies

A. The court created a number of exceptions to the Spade requirement of direct physical injuries1. Fright induces action resulting in injury2. When sustained paralysisπ3. Intentional or reckless infliction of emotional distress4. Emotional fright leads to immediate physical response (scared to a miscarriage)

B. Alternatives to Spade for bystander cases1. Zone of danger: you could have killed me!2. Modified Dillon test of foreseeability

a. Where there is liability for substantial physical injury caused by emotional distress and proof of ∆’s negligence, must consider(a) How did find out about the 3rd party injuryπ(b) Degree of familial or other special relationship

C. Holding: both motions to dismiss denied because mother and father are foreseeable victims of negligent inflictions emotional distress.

D. Notes1. In contrib. state: bystander cannot recover if primary victim is contrib. because

it is a derivative claim2. In comparative state: bystander can collect, but diminished by % victim is found

to be contrib.III. Molien v Kaiser Foundation Hospitals (CA): neg. diagnosis of syphilis marriage

problemsA. NIED can be an independent tort claim

1. Physical symptoms can be proven2. Physical injury requirement is both over and under inclusive

a. Over: allows for emotional injury that causes a cold soreb. Under: leaves out profound emotional injury that do not cause important PI

B. Duty to refrain from NIED1. must show ED is such that a reasonable person would sufferΠ

a. No thin-skulled, overly sensitive ’sπ2. A very broad rule that has been chipped away at ever since

IV. Boyles v. Kerr (TX): ∆ filmed sex, leaked and sues for NIEDπA. Where emotional distress is recognized as an element of damages for breach of a

legal duty, the claimant may recover without demonstrating a physical manifestation of the distress

B. Eliminates NIED as a standalone tort1. Leaves NIED against a bystander because bystander must still show the primary

victim is killed or seriously injuredV. Possible ways to look at NIED

A. Direct victim1. Impact rule2. NIED with important PI that simultaneously or immediately occur after

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3. NIED with important PIa. Inability to sleep, nausea, loss of appetite, and dizziness generally not enough

4. NIED without PI (Molien)a. Stand alone claim only in a minority of states, has been chipped away at

B. Bystander1. No recovery because no impact2. Recovery only if in zone of danger3. Dillon kind of foreseeablity with limits

Strict Liability

AnimalsI. Restatement 2d § 509: Strict liability for domestic animals

A. A possessor of a domestic animal that he knows or has reason to know has dangerous propensities abnormal to its class is subject to liability for harm done by the animal to another, although he has exercised the utmost care to prevent it from doing harm

B. §518: Except for animal trespass, one who possess or harbors a domestic animal that he does not know or have reason to know to be abnormally dangerous is liable for harm if and only if he is negligent in failing to prevent the harm.

C. Duren v. Kunkel: Bull attacks , tries strict liabilityπ1. No strict liability because not known for dangerous propensities abnormal to its

class. It is a bull, everyone knows they’re dangerous2. Allowed to proceed on issue of negligence

II. Wild AnimalsA. Owner or possessor of a wild animal is subject to strict liability for physical harm

caused by the wild animal1. Wild animal defined as one that has not been generally domesticated and which

is likely, unless restratined, to cause personal injury

Dangerous ActivitiesI. Historical Development

A. Fletcher v. Rylands: builds a reservoirleaks into other propertyfloods other property1. A person who for his own purposes brings on his lands and collects and keeps

there anything likely to do mischief if it escapes, must keep it in at his peril.a. Exceptions for vis major (war, rebellion, etc.), acts of god, contrib. negligence

B. Rylands v. Fletcher: the damages remand1. Makes distinction between natural and non-natural uses of land...distinction that

has plagued English lawC. Limits of Rylands

1. Must escape in order to apply, also must be foreseeable after Cambridge Water Co. Ltd. V. Eastern Counties Leather (ruling Rylands is an extension of nuisance)

D. Losee v. Buchanan: runaway boiler through 11 buildings

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1. Autonomy of industry necessitates an ordinary negligence standard if the use is a non-nuisance and not managed to become one

II. Development of the RestatementA. First Restatement § 519 and 520

1. One who carries on an ultra hazardous activity is liable to another whose person, land, or chattels the actor should recognize as likely to be harmed by the unpreventable miscarriage of the activity for harm resulting thereto from that which makes the activity ultra hazardous, although the utmost care is exercised to prevent the harm a. Ultra hazardous is defined as an activity that involves risk of serious harm that

cannot be eliminated by utmost care and is not a matter of common usageB. Second Restatement

1. § 519 is the same except it removes explicitly reference to foreseeability2. §520: To determine if an activity is abnormally dangerous, consider

a. Existence of a high degree of risk of some harmb. Likelihood the harm that results will be greatc. Inability to eliminate the risk by the exercise of reasonable cared. Extent to which the activity is not a metter of common usagee. Inappropriateness of the activity to the palce where it is carried onf. The extent to which its value to the community is outweighed by its dangerous

attributes3. Notes about §520

a. Any 1 is not necessarily sufficient, ordinarily several are required, not necessary that each is there(a) (a-c) is about determining the inherent risk(b) (d-f) is about balancing risk against the need, must consider always

III. Applying the Second RestatementA. Klien v. Pyrodine Corp.: firework explosions

1. Fireworks are abnormally dangerous (a-c) all implicated and it is not a matter of common usage Strict Liabilitya. How you define common usage is really important

2. Complete departure from Rylands because not about land and not about nuisance

B. Indiana Harbor Belt R.R. Co. v. American Cyanamid Co.1. Posner says strict liability is about controlling accidents. Larger risk, the more

we want a mechanism to make someone consider alternativesa. Strict liability is supposed to be about compensating accidents that can’t be

controlled2. Rejects strict liability because negligence can control this activity

a. The evidence was not destroyed, it was easy to determine who did what to whom

C. Application of the Second Restatement to different activities1. Blasting is almost always seen as an abnormally dangerous activity2. Storage of gasoline is mixed (generally around whether it is a reasonable

location)3. Transportation of large quantities of gasoline is often abnormally dangerous

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4. Reservoirs and other bodies of water are mixed, but if escape is something more noisome than water frequently imposed

5. Application of poison depends on the type (fumigation, crop dusting: yes)6. Landfill and toxic wase is subject to strict liability because of Congressional acts7. Atomic energy requires insurance and SL, but capped

D. Very easy for legislature to act when they want to leave no doubtE. Superseding intentional acts may limit strict liability (criminals firing a gun)

IV. The difference between strict liability and res ipsaA. Res ipsa requires ∆ to have exclusive control and must be injured when ∆ knows π

and cannot know what happenπ1. In most SL cases, we know who did it

V. Restatement Third DraftA. A defendant who carries on an abnormally dangerous activity is subject to strict

liability for physical harm resulting from the activity1. An activity is abnormally dangerous if:

a. The activity creates a foreseeable and highly significant risk of harm when reasonable care is exercised by all actors and

b. The activity is not a matter of common usage(a) Comment j: how many people do the activity? Is it pervasive?

VI. Foster v. Preston Mill Co.: blasting vibrations excite mother mink kills kittensA. Strict liability should be confined to consequences which lie within the

extraordinary risk whose existence calls for such responsibilityB. Restatement §524A: abnormally sensitive exception

1. There is no strict liability for harm caused by an abnormally dangerous activity if the harm would not have resulted but for the abnormally sensitive character of the

’s activityπ

Damages

Compensatory DamagesI. Property damage

A. If totally destroyed FMV at destructionB. If can be repaired lesser of replacement cost or cost of repair

1. Can be compensated for loss of use while repairedII. Physical injury

A. Lost wages1. Past lost wages: what the lost from missing work or working lessπ2. Future lost wages: Analyze raise structure, time value of money, work life

expectancy3. Diminished earning capacity: won’t be able to work at same economic level

a. If not working, can show you could have work if you chose and factorB. Past medical bills

1. ∆ normally on the hook for the reduced rateC. Collateral Source Rule: Plaintiff recovers fully for injury and the damage the

defendant caused even if there is another source to support the loss

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1. Allowed because no guarantee available in the future2. Considering abolishing under 3d. Restatement

D. Life Care Plan: what is the plaintiff going to need more likely than notIII. Taxation

A. IRS Codes §104(a)(2): In general except in the case of amount attributable to (and not in excess of) deductions allowed under §213 (relating to medical, etc. expenses) for any prior taxable year, gross income does not include - *** (2) the amount of damages (other than punitive damages) received (whether by suit or agreement and whether as lump sums or as periodic payments) on account of personal physical injuries or physical sickness

B. If emotional injury that is a consequence of physical injury, not taxed1. Solely emotion injury taxed2. Emotional injury w/ physical manifestations and consequences taxed

C. Wrongful death taxed as it relates to lost wages, not for physical injuryIV. Other considerations

A. Most states use some variation of the thin-skulled plaintiffB. Duty to mitigate

Punitive DamagesI. Generally

A. Most states have punitive damages, but many have limitations1. Higher standard of proof2. Limits on the amount that can be recovered

B. Need something worth punishing (more than ordinary negligence)II. BMW v. Gore

A. Three guideposts1. Reprehensibility of the conduct2. Ratio between compensatory and punitive3. Difference between the remedy and those imposed in comparable cases

III. Evolving issuesA. Exxon-Valdez case says 1:1 in a admiralty case

1. Some states have taken to mean 1:1, others working it out, other see it was an admiralty case and don’t apply it

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