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TORTS 1 OUTLINE DEVELOPMENT OF LIABILITY BASED ON FAULT – CH. 1 “TORT” – twisted or wrongful conduct - INJURY - a civil, non-contractual wrong giving rise to a civil action, usually for damages - imposes duty to act in manner that will not injure others Tort law - developed in recent times – middle of 19th century - some ancient undeveloped cases hinting at torts - 1st case in 15th century was Anonymous - tort law now concerns COMPENSATION for injuries - a.k.a. “personal injury” law – includes wrongful death, property losses, invasion of other legally protected interest (defamation to good name; invasion of privacy etc.) -Auto accidents compromises bulk of tort practice in US Legal system – establishes system of rules to distribute rights and wrongs in society 1. Labels conduct as right or wrong 2. Sorts out advantage – provides mechanism/procedural process 3. Substitute for revenge and private self-help which disturbed King’s peace 4 Purposes of Tort Law: 1. TO COMPENSATE VICTIMS – shift loss from victim to wrongdoer 2. Deterrence – punishment = imposition of liability ($$ $damages$$$) – will deter by transferring loss from victim to actor and making wrongdoer pay 3. Non-violent dispute mechanism 4. Encourage Social Responsibility Deter = “ex ante” Compensate = “ex post” Goal in tort law is to find reason to shift loss MAJOR PREMISE: To determine appropriate basis of liability!!! Common Law Writ System – genesis of tort law – form of action - needed writ to bring action **NOTE: distinx not b/t intentional and negligent conduct; emphasis on CAUSAL CONNEX not character of s wrong

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Page 1: TORTS OUTLINE

TORTS 1 OUTLINEDEVELOPMENT OF LIABILITY BASED ON FAULT – CH. 1

“TORT” – twisted or wrongful conduct - INJURY - a civil, non-contractual wrong giving rise to a civil action, usually for damages- imposes duty to act in manner that will not injure others

Tort law - developed in recent times – middle of 19th century- some ancient undeveloped cases hinting at torts- 1st case in 15th century was Anonymous- tort law now concerns COMPENSATION for injuries - a.k.a. “personal injury” law – includes wrongful death, property losses, invasion of other legally protected interest (defamation to good name; invasion of privacy etc.)-Auto accidents compromises bulk of tort practice in US

Legal system – establishes system of rules to distribute rights and wrongs in society1. Labels conduct as right or wrong2. Sorts out advantage – provides mechanism/procedural process3. Substitute for revenge and private self-help which disturbed King’s peace

4 Purposes of Tort Law: 1. TO COMPENSATE VICTIMS – shift loss from victim to wrongdoer 2. Deterrence – punishment = imposition of liability ($$$damages$$$) – will deter by

transferring loss from victim to actor and making wrongdoer pay 3. Non-violent dispute mechanism 4. Encourage Social Responsibility

Deter = “ex ante” Compensate = “ex post” Goal in tort law is to find reason to shift loss

MAJOR PREMISE: To determine appropriate basis of liability!!!

Common Law Writ System – genesis of tort law – form of action - needed writ to bring action**NOTE: distinx not b/t intentional and negligent conduct; emphasis on CAUSAL

CONNEX not character of s wrong 1. Writ of trespass

-criminal character = no proof of actual damages-purpose to punish-LIES ONLY FOR DIRECT AND FORCIBLE INJURIES

2. Writ of trespass on the case-developed from no writ applicable and applied to Chancellor-through this action on the case, most of tort and contract law developed-purpose to award civil damages = must prove indirect injury was done w/ fault – prove damages-LIES FOR OTHER INDIRECT/TANGIBLE INJURIES TO PERSON OR PROPERTY

**NOTE: In modern law, must prove actual damages EXCEPT for assault, offensive battery, false imprisonment, and trespass to land

OLIVER WENDELL HOLMES – “The Path of the Law” – 1897 Harv. L. Rev.o General principle of Tort Law: Loss from accident must lie where it falls and principle not

affected b/c human is instrument of misfortune, UNLESS a good reason exists to shift loss from where it fell

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o No case or principle can be found or if found can be maintained subjecting individual to liability for an act done without fault on his part…..all case concede that an injury arising from an inevitable accident (no fault) or which in law or reason is the same thing from an act that ordinary human care and foresight are unable to guard against is but the misfortune of the suffered and lays no foundation for legal responsibility

o “inevitable accident” is misfortune of sufferer and has no foundation in legal responsibilityo BASIC PRINCIPLE FROM HOLMES TO NOW OF AMERICAN TORT LAW: --Let loss lie where it fell even though human being is victim UNLESS there is a “good reason” to shift the loss ------THE “GOOD REASON” TO SHIFT LOSS IS FAULT per Brown v. Kendall!!!)

TIMELINE

-1466 - ANONYMOUS = NO FAULT SYSTEM FACTS - timber falls on house of neighbor Timber fell “w/o intent” == “w/o fault” - subjects individual to liability w/o fault Sets up no fault regime and strict liability system for direct injury No injury or damage be inflicted on the other and intent doesn’t matter Contrary to Holmes’ common law – this is a case that can be found that subjects individual to liability

w/o fault where timber dropped on neighbors house This strict liability system is trying to accomplish goal of compensation and deterrence = policy Achieve max compensation and max deterrence – ok in 15th cent. BASIS OF LIABILITY = FULL RESPONSIBILITY REPARATIONS SYSTEM = NO FAULT OR

STRICT LIABILITY Defense = “I didn’t do it”

-1616 - WEAVER v. WARD = STILL NO FAULT S/L ESCAPE IF PROVES UTTERLY W/O FAULT Age of Enlightenment/exploration/discovery FACTS – soldier shot another soldier during exercise Same problem as Anonymous – Both have DIRECT injury - shoots Under Anonymous, wins b/c was DIRECT cause of injury Strict Liability system But now want to relax strict rules of strict liability – Defense = “utterly without fault” can escape strict liability from direct injury with these MAGIC WORDS – UTTERLY WITHOUT

FAULT No fault system with fault based escape – mixing oil and water Transitional phase from old rule to new one – part of system development, very pragmatic

-1850 - BROWN v. KENDALL = ALL LIABILITY IS BASED ON FAULT Represents new scheme/value – coming out of transition Identical fact pattern to Weaver and Anon. – writ of trespass form b/c “directly” injured FACTS: separating two dogs – and hit in eye with stick If apply Anon: wins – Kendall strictly liable for direct injury in no fault system – no escape If apply Weaver: wins but excuse available (“utterly without fault) – since Weaver, legal system

developed this excuse to be “high care or extraordinary care” as excuse for liability – if could prove was doing necessary or required act, could escape if exercising extraordinary care

Now escape is extraordinary care – but incorrect statement of Holmes FAULT IS BASIS OF LIABILITY & BASIS TO SHIFT LOSS – reverse of where we started in Anon All liability is based on fault – forms premise of Holmes’s Common Law –

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Shaw sets up PARADIGM OF LIABILITY: see page 8#4 = LIABILITY - wins

Not negligent or no fault Not negligent or no fault #1 = NO LIABILITY: Inevitable Accident - NO FAULT –no one Liable - loses

Negligent Negligent#3 = negligent and can’t recoverno matter how slight – loses

#2 = NO LIABILITY: No negligence - denies liability and sues - is liable and loses

COMPARATIVE NEGLIGENCE- A party’s negligence reduces the parties damages by the % of that parties negligence-Mass. is a modified comparative negligence state-“Greater Than Not Less than Jurisdiction” – if ’s neg is not , 51% +, the may recover but damages are reduced by % of fault:

= 50% neg and neg = 50% ------------- can recover 50% of damages = 49% neg and neg = 51%-------------- can recover 51% of damages =6% and =94% --------------------------- can recover 94% of damages

-WEST VIRGINIA IS COMPARATIVE NEGLIGENCE STATE: -WV IS LESS THAN STATE–parties negligence reduces damages by % of his fault if it is combined neg of all other parties in accident-if 50% - 50% no one recovers ----must be 49% or less at fault

PURE COMPARATIVE NEG – 15 jurisdictions-Party may recover damages reduced by % of fault as long as his fault is not total-e.g: California - =99% and =1% ---- recovers 99% and recovers 1%

CONTRIBUTORY NEGLIGENCE – 5 jurisdictions – any neg by is complete bar to recovery -these states stuck in 19th cent. Of Butterfield v. Forrester -impt to WV b/c are much traveled states: NC, MD, D.C., Alab, Va = Primitive Jurisdix

-In Brown v. Kendall - wins only 1 out 4 times

THERE HAS NEVER BEEN A SOCIETY THAT DID NOT IMPOSE LIABILITY FOR FAULT!!!

Philosophical Interpretations of Brown v. KendallA. MARXIST: -THESIS OF SHAW – HE DIDN’T SEE THIS AS PURELY PRIVATE MATTER:

Saw industrialization emerging in Mass. and America MARXIST interpretation of Shaw: decision was subsidiary to business

-decision was a SUBSIDY TO CAPITALISM-gave mills and employers greater leeway to maim, kill, etc. w/o fear of liability for direct injuries – maximizes industry’s freedom

Brown allowed dirty dangerous plant owners to be found not liable

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#3= Contributory Negligence - 1809 Landmark case isButterfield v. Forrester - ’s neg no matter how slight is a complete bar to recovery by - case overruled in all but 5 jurisdictions with Comparative Negligence

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Under Weaver v. Ward – employer would have to compensate worker for all direct injuries unless could prove he was “utterly without fault”

B. ARISTOTILIAN: MORAL CONCEPTS IN BROWN V . KENDALL –** Ethical and moral foundation of Brown v. Kendall found in Aristotle’s philosophy“what has been taken away should be replaced”

2 Kinds of Justice accdg to Aristotle:1. Macro – Societal – Distributive

In just society all rewards based on merit – how society allocates money, honors, awards, etc.

2. Retributive – “corrective” System provides remedy for wrongs ALL LIABILITY IS BASED ON FAULT – reason to shift loss is fault

C. UTILITARIAN -PRAGMATIST Dominant legal view among academics John Stuart Mill-“justice is rule which produces greatest good for greatest number” = Greatest

Social Happiness Jeremy Bentham – “social utility”

- 1969 - SPANO v. PERINI CORP.= STRICT LIABILITY FOR EXTRAHAZARDOUS ACTIVITY Throws hazard of what is at once desirable and inevitable upon actor (Public Profits from individual acts that enrich society) Some Aristotilian corrective justice issues BOOTH CASE w/in Spano – 1893 – Stupid Rule: makes distinx (as in 15th cent.) b/t direct and indirect

damages: direct – rocks hitting property – no need for proof of damages; indirect – vibrations – need proof of damages -----similar to trespass v. case = DUMB ancient way!

PROBLEM IN SPANO is choosing the correct liability regime:o 3 Possibilities in NY for decisional tree:

1. Change to Strict Liability for all blasting/extrahazardous activities2. Stay the course with Booth as stare decisis – and make silly distinx3. Change to Fault –use Brown v. Kendall

Court choses #1 – rejects Brown and Booth Booth makes no good sense in contemporary age – direct/indirect injury outdated ideas Apply UTILITARIAN Concepts: many injured by very dangerous, although socially beneficial, blasting

– Greatest good for greatest # by imposing liability on blaster How does imposing S/L produce good? (ENTERPRISE LIABILITY UTILITARIANISM)

-Economic Interpretation of Utility: internalize cost to enterprise –-Business can better bear loss and risk-Loss is widely distributed through loss system = mechanism of tort system’s imposition of S/L-FAULT IS IRRELEVANT-greatest good for greatest # by shifting loss = HALLMARK OF MODERN WELFARE SYSTEM!!-enterprises must assume cost of their activity

Ex. of corrective justice borrowing from distributive justice

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3 BASIS OF TORT LIABILITY:1. Intentional Conduct2. Negligent Conduct creates unreasonable risk of

causing harm3. Conduct that is neither intentional or negligent

but subjects actor to strict liability b/c of public policy (e.g. Spano)

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Target s = McDonalds – Deep Pockets are Key 3 GLOBAL ISSUES OF ANY DISPUTE (not just torts)

1. LIABILITY – What are rules that render liable to shift loss and collect? What did do WRONG? - Must break rule to have any liability = substantive rule of law

2. REMEDY – What can get to right wrong? -2 kinds of remedies:a) specific – designed to remedy problem specifically (i.e. divorce, injunx)b) substitute – ALWAYS $$$ Damages – most often sought in tort

3. ENFORCEABILITY of remedy – a) specific performanceb) collectability – assets/insurance

More philosophy:1. Aristotle - analysis in terms of pure morality and ethics – individual corrective justice

-shift loss only when wrong done2. Posner – pragmatist/utilitarian theory

-law analysis based on economic analysis: Justice produces maximum economic efficiency or wealth maximization- required to spend sufficient amt of $ to avoid unreasonable accidents-not care about morals, but est good for #-loss is distributed based on WHO is better distributor in economic terms-Hammontree v. Jenner – Note 5 pg. 12 = liability should not be based on fault but rather on utilitarian ideas of loss spreading and who is more effective loss distributor – “all liability is based on insurance”-Spano – was all about LOSS DISTRIBUTION

Note: Ethical vs. Utilitarian Principles pushing tort system

COHEN v. PETTY – 1933-FACTS: s were riding as guest in s car - fainted and wrecked injuring s- won - not negligent for fainting-in fault based system must prove fault ----no fault here therefore no liability----no reason to shift loss even though victim injured-Rule of society here says injurer can escape liability – seems hard hearted-Is it “just” for a person NOT at fault to be held liable? --DIFFERING ATTITUDES ABOUT WHAT IS JUST:

-Under Anonymous 15th cent– YES – S/L or No fault system for direct injuries – -Direct injury is proper loss shifter

-Under Weaver – 17th cent. – YES - liable UNLESS “utterly w/o fault”-Under Brown v. Kendall – 19th cent. – NO – b/c all liability is based on fault – dominant value system dictated – era of INDIVIDUALISM-Under Spano – 20th cent -Yes – Strict liability for ultrahazardous activity – concerned with loss repair=Solidarity Century-In 21st Cent – concerned with LOSS PREVENTION – reparation – focus on safety regs, etc

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2 BASIS OF LIABILITY THAT ARE JUST or 2 Good Reasons to shift loss1. Liability based on Fault from Shaw – shift where have fault

BASIS OF FAULT:a) intentional conduct

-intent = Restatement 3rd § 1: i. Purpose; or

ii. Knows to a substantial certainty that conseq will ensue from person’s conduct-Rest. 2nd refers to “desire” to cause harm

b) reckless conduct – Restatement 3rd § 2i. knows of risk or knows facts make risk obvious to anyone in situation; ANDii. precaution involves slight burdens relative to magnitude of risk as to make

failure to adopt precaution a demonstration of person’s indifference to riskc) negligent conduct

-definition in Rest 3rd differs from Rest 2nd-Rest 3rd incorporates Carroll Towing Calculus of Risk –compares Burden of Precaution with potential loss-“ A person acts with neg if does not exercise reasonable care under all circumstances…”

2. S/L or NO FAULT under limited circumstances a) extrahazardous activity

WVa CASE: Bailey v. S.J. Groves and Sons - Liability Based on Fault- built highway and flooded s landRULE: All liability is based on fault = modern rule so not S/L to in trespass for land damage- had no fault –no intent-no recklessness-no negligence- no ultrahazardous activity-Direct injury theory of Anon-rejected and not deemed hazardous activity-THEREFORE – no theory of liability to shift loss from to 3 Global Issues: 1. No theory of liability and no case 2. Remedy - ? 3. Collectability = good deep pocket with construx co

2 Ways to Look at Legal RulesA. Ex post – “of after” – does rule accomplish goal of compensation?B. Ex anti – “of before” – does rule produce proper amt of deterrence?

SEE QUIZ

Remember - BURDEN OF PROOF IN FAULT BASED SYSTEM IS ON - Direct/ Indirect Injury has no meaning

INTENTIONAL INTERFERENCE WITH PERSON/PROPERTY – CH. 2“Even a dog understands difference between being kicked and being tripped over” –TC Cady

1. “Intent” - Restatement 2nd §8A – “desires” to cause conseq; or “believes” conseq certain or substantially certain Restatement 3rd § 1 – stylistic change – “purpose”; or “knowledge” to subst. certainty

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Intentional wrong utterly w/o any social utility = highest wrongdoing form = great outrage Legal response to intentional wrong is to punish and ignore excuses of minority, infancy, mistake,

prank, and to EXTEND liability to limits of outrage Nominate/Dignitary/Intentional Torts Include: BATTERY, FALSE IMPRISONMENT, TRESPASS TO

REALTY, CHATTEL, and CONVERSION – new addition of infliction of emotional distressGarrett v. Dailey-Facts: 5 yr old removed chair from under as she went to sit down - fractured hip-INFANCY/MINORITY ARISES AS FIRST EXCUSE to intent-Issue: Whether a child that young could have sufficient mental development to have subjective state of mind sufficient to be labeled intent? Could he know to substantial certainty or have belief that act will cause harm?-INFANCY IS IRRELEVANT AND NO EXCUSE– in theory a child of one day could intend a tort – from legal position b/c intentional wrongdoing has no social utility – legal view is punitive-WHETHER THERE IS SUFFICIENT FACTS TO DETERMINE WHETHER OR NOT HE HAD KNOWLEDGE TO A SUBSTANTIAL CERTAINTY

Spivey v. Battaglia -Facts: friendly hug paralyzed -intent is acting with purpose or knowledge to a substantial certainty-Issue: Was there intent?-Rule: intent is acting w/ of purpose of producing crooked neck or knowledge to substantial certainty -Analyze: did not act with purpose of paralyzing - was only a friendly hug-Conclusion: No intent to cause harm and therefore no battery -Must be a belief to subst certainty of a conseq – none here

Ranson v. Kitner-FACTS: shot ’s dog while hunting, thought it was wolf-MISTAKE DOES NOT NEGATE INTENT – MISTAKE IS IRRELEVANT AND NOT A DEFENSE-Intent not ltd to consequences that are desired – intent refers to conseq of act rather than act itself-May seem harsh but is so B/C INTENT IS ALWAYS IN TERMS OF CONSEQUENCES

-one intends to shoot – did intend to harm something-B/C of punitive purposes for intentional wrong – mistake is no defense-In W.Va. a deer hunter who was shot by a squirrel hunter has an intentional tort action!

McGuire v. Almy-Facts: was nurse caretaker who was struck by insane -INSANITY IS NO EXCUSE b/c

1) civil law not want to deal with “mental capacity”2) insane person has estate – financially able to compensate and may make “keepers” more careful

-Ex ante – may deter - those who have charge of will be careful to retain assets-THIS IS MORE RELEVANT ANALYSIS OF RULE

-Ex post – need to compensate victim

REMEMBER:THESE CASES SHOW: MINORITY/MISTAKE/INSANITY ARE NOT DEFENSES B/C INTENTIONAL WRONGS ARE ANTISOCIAL AND MUST BE PUNISHED

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Rest. 2nd § 8A Rest. 3rd § 1 1. desires consequences 1. purpose –consequences

2. believes substantially certain 2. knows subst. certain

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-Talmage v. Smith-Facts: Trespass action; owner of shed through sticks at boys on rood – stick missed intended target and hit boy on roof unbeknownst to - is father of boy who got eye poked out-TRANSFERRED INTENT THEORY = LEGAL FICTION TO GET DESIRED RESULT-Don’t need transferred intent theory because caused voluntary violence = unacceptable to society - is liable

2. BATTERY See Restatement Concise page 7-10-battery has become exclusively an intentional tort-2 TYPES OF BATTERY:

1. HARMFUL CONTACT – Rest. § 13-physical alteration of physical integrity by:

a) Invasive – bullet - knifeb) non-invasive - bruising

2. OFFENSIVE CONTACT – Rest §18

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5 torts w/in trespass writ:1. Battery2. Assault3. False Imprisonment4. Trespass to Land5. Trespass to Chattel

W.Va. Case – Lambert v. Brewster – WV adopts transferred intent-Facts: pregnant woman sees Dad battered – miscarries-Distinx b/t Talmage:

1. Dealing with INDIRECT harm harm here – no stick in eye - 2. Mental component of INTENTIONAL INFLIX OF

EMOTIONAL DISTRESS3. BYSTANDER LIABILITY – bystanders can recover under

transferred intent theory – even though not in zone of danger – this may be argued as “grotesque” expansion

-INTENT TO HARM FATHER IS TRANSFERRED TO WOMAN-Her fright had physical consequences = spontaneous abortion-WV adopts doctrine of transferred intent: not excused from liability b/c he did not realize conseq of actions-Brewster intended to harm her b/c he intended to harm her father = application of transferred intent doctrine

NOTE: TRANSFERRED INTENT IS TRANSPARENT FICTION – made up to PUNISH and expand liability b/c intentional wrongdoing has no social redeeming value

USABLE RULE FROM LAMBERT:1. Elemental Test 2. Factoring Test-restrictive list of elements: -not as restrictive- oriented/no expansion - orientedIntent Nature of wrongdoing (intentional,Transferred Intent reckless, neg)Physical Conseq Nature of Consequences (physical, closely related mental, permanent, temp)Proximity Nature of Relationship

Nature of information/relationship to location

“Why the Haves Come out Ahead” – by Mark Gallanters-sociology of law One Shotters – little guy

Vs. Repeat Players – big co-RPS have advantages of :1. Sheer size –lg co 2. Better Legal Services3. Institutional Facilities – all from Harvard – boys club – WASP conspiracy – system is rigged 4. They make rules b/c there all time

THESIS: formidable barriers to using legal system as vehicle of reform

REVIEW HARMFUL v. OFFENSIVE – SEE PAGE 30 in text and page 7-10 in Concise Restatement

7 Nominate Torts – protecting personal dignity = Battery Trespass to LandAssault Trespass to ChattelFalse Imp. ConversionIIED

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-offends sense of dignity of reasonable person-(Rest. § 19)

Cole v. Turner-least touching in anger is battery-gently w/o violence is no battery-any violence = battery

Fisher v. Carousel Motor Co.-OFFENSIVE TOUCHING EXAMPLE-Facts: plate snatched out of hand of black - racial epithet also spoken-Intentional grabbing of plate = battery and intentional invasion of person-indirect offensive result - § 18 includes contact with other items of person (cane, bag, purse, dog, bumper, umbrella) ----ltd to items “closely associated”-Still offensive contact w/o epithet-but if only offensive words w/o contact, NO BATTERY

Page 33 Note: Blowing smoke in face of someone allergic is battery accdg to § 18 1(b) – indirect, offensive and harmful

3. ASSAULT -

-I de S v W de S – Great Grand-Dad of Assault cases (1348)-Facts: beat on door w/ hatchet – scared wife of -she thought she would be hit-See concise Rest §21 – was an “imminent apprehension” of harm-HARM WAS DONE – cause of action protecting dignity of mental tranquility, uninterrupted by threats -Western Union v. Hill-Facts: agent of tried to grab woman across counter – “fix her clock” if he could pet her-employer is liable for intentional wrongs of his employees only if the employee is acting within scope of employment-here employee was not acting within scope of employment

Personal dignity protected by assault = mental peacePersonal dignity protected by battery= freedom from harmful or offensive contact

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-Idea of “least touching” changed – do not focus on intent of actor but on the contact and whether it was harmful or offensive

W.Va. Cases – Criss v. Criss-husband raped wife – threatened her etc.-Testimony of wife and wife’s mom only evidence - nothing else introduced – trial court said insufficient evidence given but Sup Ct overruled – was sufficient evidence-Under WV Law in an action to recover for an intentional tort, the is entitled to have elements such as mental anguish, insult, indignity, and humiliation considered by jury in arriving at an award for damages-invoked theory of “outrage” = “iied”

Courtney v. Courtney-husband abusive to wife and son – mother-in-law supplied him with drugs/alcohol-iied can be recovered even though no physical harm suffered-for to be liable for assault, must be in fear or apprehension of imminent bodily harm w/o proof of physical harm-these case represent genre of intentional torts for domestic abuse-can recover for insult to dignity for intentional tort

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4. False Imprisonment-TORT designed to protect individual dignity of freedom of movement or right to travel unmolestedby public/private usurpation of right of locomotion-when imposed by officials = False Arrest

Occurs in 3 Prototypical Situations:A. Shoplifting -

3 Counts of liability v. Shopkeeper1. False Imprisonment or False Arrest

-See Hardy v. LaBelle’s Distributing Co. page 41 – jewelry store case: no false arrestb/c moral persuasion to clear her name

2. Defamation – false and malicious imputation re: character and integrity – stop “thief”3. Invasion of Privacy – intrusion into private thing (purse)

B. Disturbing the Police Peace1. Public intoxication2. Disturbing Peace3. Resist Arrest4. Open Container5. Assault6. Destrux of Property

C. Religious Commune Cases

Restatement § 35-1-a: Essence of false imprisonment:-intent to “confine” within boundaries fixed by actor – as opposed to “excluding” – no basis for false imprisonment by denying access -directly or indirectly results in confinement-other is conscious of confinement or harmed by it

-Big Town Nursing Home v. Newman-Facts: old man committed to home, restrained against will, and escaped-False imp = direct restraint of physical liberty w/o adequate legal justification

-Parvi v. City of Kingston-Facts: cops took drunk to abandoned golf course – he wondered away and got hit by a car- had no memory of events -False imprisonment as dignitary tort is not suffered unless its victim knows or is conscious of dignitary invasion-No liability unless know of confinement – See Restatement § 42-KNOWLEDGE IS KEY TO CASE-Majority: knew at time what was happening – so conscious confinement-Minority: no knowledge now so no knowledge then = no confinement

-Hardy v. Labelle’s Distributing Co.

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W.Va. Case: Rife v. Armstrong – Parallels Big Town - -Facts: involuntary commitment of - interest of freedom of movement/locomotion is protected by dignitary tort of false imprisonment-Cannot restrain w/o legal justification – Dr. faked exam to certify

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-Facts: sales clerk in jewelry store accused of stealing watch – led into room under false pretenses – took lie detector test and passed-2 key elements 1) restraint against will and 2) unlawfulness of restraint- must be w/o ability to leave – or fear harm- here didn’t ask to leave – went willingly to clear her name-fine line between restraint or confinement by duress v. moral persuasion

-Enright v. Groves-ASSERTED LEGAL AUTHORITY-“Disturbing police case” – -Facts: arrested for not producing drivers license – offense – dog w/o leash -abuse of discretion by cop – not entitled to arrest her for not producing driver’s license

-Whitaker v. Sanford-Facts: wife was stranded on yacht – husband member of religious cult – no boat available to get to shore-no contact is required for confinement – all need is physical barrier to escape (in this case, the sea)-If 2nd exit available but not known, still liable for false imprisonment

5. Intentional Infliction of Emotional Distress or “outrage” = IIEDNote: Supreme Court of California dominated tort law in 2nd half of 20th cent. Judge Traynor – led court

IIED--goes beyond assault which is threat of physical violence-tort protecting mental tranquility-SEE REST. § 46-4 Elements:

1. Intentional or Reckless Conduct - *Note – no other intentional tort can be founded on recklessness (which is wrong intentional)

2. Extreme and outrageous conduct3. Causal Connection4. Severe Emotional Distress

1. INTENTIONAL-State Rubbish Collectors v. Siliznoff -LANDMARK CASE – JUDICIAL LAW-MAKING = 1ST AMER. LEGAL ADOPTION OF IIED-Facts: collected trash in territory of other member of garbage union – was threatened and became ill-cause of action is established when one without privilege intentionally subjects another to the mental suffering incident to serious threats to his physical well-being whether or not the threats are made under such circumstances as to constitute a technical assault-intentionally subjecting one to severe emotional distress is anti-social and w/o utility- is liable if conduct is extreme and outrageous and intentionally or recklessly causes severe emotional distress

See Restatement § 46 and comments following Review: “Intent”

R3d § 1 R2d § 8aPurpose DesiresKnows Believes

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Each case explores one element…..Siliznoff – intentional?Slocum – extreme and outrageous?Harris – severe?Taylor – causal connex?

IIED unusual b/c liability based on recklessness – See R3rd §2 -knowledge of risk and -obvious indifference to known obvious risk-See also R.2d§500 – old definition of reckless

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2. EXTREME & OUTRAGEOUS-Slocum v, Food Fair Stores-Facts: woman had heart attack after store clerk told her she stunk-conduct did not exceed bounds tolerable by society-insulting language – not extreme and outrageous = MAJORITY VIEW-WV, VA, MISS – HAVE INSULTING WORDS STATUTES - § 55-7-2 = MINORITY VIEW – makes racial epithets, vituperative etc. actionable-“de minimus non curat lex” – the law does not concern itself with trivialities; of little things there is no legal cure

-Jones v. Clinton-Sitting pres. may be sued-’s theory of liability:

1. Emotional Distress2. Violation of civil rts – sexual harassment in workplace

-Rest. § 46 -See also page 57-58 – Magruder Test – mere solicitation of woman is not assault or any other tort – Magruder incorporates idea that law not concerned with trivial matters-NO TORT OF INSULT – danger in trivial realm of insulting language – no pressing social need to convert to tort – need room to blow off steam-“Extreme and Outrageous” – atrocious and utterly intolerable in a civilized community – See page 15 Concise-Clinton’s conduct was offensive but not extreme and outrageous – was but an odious, brief proposition – no coercion or threats involved-must be more than mere solicitation to be extreme and outrageous

---------2 Kinds of Extreme and Outrageous Conduct1. Abuse of a position (superior to inferior; i.e profs, supervisors)2. Exploitation of some condition making other susceptible to insult

3. SEVERE-Harris v. Jones-Facts: was harassed by supervisor at GM due to his stuttering condition – condition worsened; was on meds for nervous condition-NO CAUSE OF ACTION B/C DID NOT SUFFER SEVERE EMOTIONAL DISTRESS-Rest. 2nd § 46 comment j – Severity determined by 2 factors:

1) Intensity of emotional distress2) Duration

- required to be hardened to certain amt of rough language and occasional acts that are reprehensible and unkind

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W.Va. Case – Covey v. Fields (Insulting Words Statute) -if allege insulting words, must go to jury -Facts: “yellow streak, SOB, MF, etc)-words tended to violence and breach of peace

Middlebrooks v. HillCrest Foods Inc. – 11th Circt –in Ga. –See Rest. § 48 – Spec. Liability for common carrier-Facts: 8 Black H.S students stopped at waffle house – racial epithets spoken by cook –GA no insult statute-Rest. § 46 – was extreme and outrageous as abusive exploitation

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Collection Agencies: No liability for reasonable attempts to collect even if it causes or is expected to cause emotional distress

Insurance Companies and Mental Distress: No liability but there is an obligation of good faith and fair dealing

-Taylor v. Vallelunga-Bystander Liability – same as in Lambert-Facts: daughter saw Dad get beat up-Rest. § 46 limited – where conduct is directed at 3rd person, liable if intentionally or recklessly causes sever emotional distress to: a) member of immediate family who is present at time – whether or not distress results in bodily harm b) to any person present at time if distress results in harm-FAMILY MEMBER’s PRESENCE MUST BE KNOWN = MAJORITY RULE-WV AND MINORITY RULE = DOESN’T HAVE TO KNOW OF BYSTANDERS PRESENCE-In case, did not know of daughter’s presence and therefore no liability***If third person is not family:

a) must be present and presumably knownb) must suffer IIED resulting in phys consequences (as Lambert’s abortion)

WV EXTENDS THIS THEORY OF LIABILITY:

MONTELEONE RULE – 3 WAYS MAY RECOVER FOR EMOTIONAL DISTRESS1. When distress follows physical injury2. If there is intentional wrong doing which does not produce injury but causes emotional distress

which causes physical consequences3. No impact and no injury but emotional distress resulting from s intentional, wanton, reckless or

wrongful act

REMEMBER:

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ESSENCE OF: IS:Battery Harmful or offensive conduct?Assault Imminent apprehension of phys harm?False Imp. Confinement?

In W.Va – Human Rights Act allows to recover for discrimination in Employment or in Public AccommodationsWV CODE § 55-11-2 : “THE NAUGHTY NINE”1. RACE 2. RELIGION 3. COLOR 4. NATIONAL ORIGINA 5. ANCESTRY6. SEX 7. AGE (40+) 8. BLINDNESS 9. DISABILITY 10. FAMILY STATUS11. SEXUAL ORIENTATION (NOT IN WV YET)**All apply to sale, purchase, lease rental, financing of real estate

-Prince v. Pittston “Buffalo Creek Disaster” - Gerald Stern atty for of ARNOLD & PORTER -33 absent ’s who suffered from “survivor syndrome” (one in Fla, one in jail – family members died)-ABSENT ’s in WV may recover – EXTENDS LIABILITYMENTAL DISTRESS RULE IN WV:

1. Mental Anguish – compensable2. IIED = physical consequences3. Monteleone Rule – if no physical consequences or injury can’t recover BUT if emotional distress

caused by intentional wrongdoing or willful, wanton, reckless act can recover-s alleged coal co’s action was willful, wanton and reckless-knew dams were unstable-s developed “survivor syndrome” via Holocaust expert and University of Cincinnati = airtight case of legitimacy-WV LAW UNIQUE IN AREA OF ABSENT S – NOT NEED FAMILY MEMBER PRESENCE TO BE KNOWN AT TIME AS IN BYSTANDER LIAB. – (THINK ABOUT WTC FAMILIES)

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6. Trespass to Land-Dougherty v. Stepp-Facts: entered s land with surveyor – did not cut trees-“Every unauthorized and therefore unlawful entry is a trespass” – infers damage!-“Own surface of land up to heavens and down to center of earth”-What constitutes a trespass? Any physical intrusion = trespass

-Reaching over property line-shooting bullet onto property - and Herrin-Blowing smoke on property – see Bradley

-NONPHYSICAL INTRUSION=NUISSANCE (i.e. lights, noise, odor, molecules)

-Bradley v. American Smelting and Refining Co.-Facts: molecules from heavy metals deposited on s land -“Actionable invasion of a possessor’s interest in the exclusive possession of land is a TRESPASS”-“An actionable invasion of a possessor’s interest in the use and enjoyment of his land is a NUISSANCE”-Cady says case rids silly distinction b/t two – modern law requires proof of damage before allowing cause of action no matter if tangible or intangible – ANALYSIS depends on interest interfered with (possession vs. use and enjoyment)-when particles dissipate – do not interfere with possession = Nuissance-when particles do not pass away = TRESPASS

-“INVERSE CONDEMNATION” - -Trespass to airspace above land from overflights-govt may take property w/o condemnation proceedings -in general, property owner only owns within immediate reaches of land - public rt to navigable airspace----See Rest. § 159

-Herin v. Sutherland-Facts: shot at ducks over ’s property while on property of another-firing gun over another’s land interferes with enjoyment of and committed technical trespass-land extends upwards and downwards – nominal damages at least awarded

-Edward v. Simms (KY)-trespass below surface = SUBTERRANEAN TRESPASS-Facts: developed CAVE below surface of his property and went under s property - earned profit- had remedy in portion of profits earned

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W.Va. Case: Bullman v. Lumber Co. – TREBLE DAMAGES-Facts: lumber co. wrongfully cut down s trees-not necessary to have actual damages – Nominal damages may be recovered to vindicate dignitary tort of trespass – offended dignity of property ownershipNOTE: MISTAKE IS NO EXCUSE TO INTENTIONAL TORT-Unusual b/c granted punitive and “treble” damages – triple compensation-TREBLE STATUTE - §61-3-48a: get 3 times value for and cut, damage or carrying away of flora w/o written permission ---section applies to excessive timbering --Not double recovery b/c treble are compensatory not punitive (punitive + treble = OK)-Statute intended to deter timber and ginseng theft, & protect vs. intentional trespass to property

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***SIMILARITY B/T TRESPASS TO LAND AND BATTERY – both intensely protect from harmful offensive touching – to person or land

SEE CONCISE REST. § 77, 158, 163, 164, 196 – CHAPTER 7

-Rogers v. Board of Road Commissioners Kent Co.-Facts: failed to remove post and and ’s husband was killed when mowing-Rest. § 160 – action in trespass lies for continued presence on land of a structure -post was proximate cause of injuries and death

7. Trespass to Chattel-Rest. § 218 p. 29 -Chattel is lesser interest – not as protected as land-no good chattel cases in WV-§218: ELEMENTAL REQUIREMENTS:

1) Dispossession2) Impairment3) Deprived for Substantial Time 4) Bodily Harm

-Glidden v. Szybiak-Facts: bit by s dog - asserted injured dog as chattel-no trespass to dog by girl b/c dog not injured or meet above requirements

-Compuserve v. Cyber Promotions-Facts: was spamming s subscribers – subscribers complaining – burden on s equipment- asserts trespassing on personal property-EMAILS are sufficiently physically tangible to support a trespass cause of action - has possessory interest in its computer systems-s intrusions harm good will and reputation = Actionable

8. Conversion-“An intentional exercise of dominion or control over chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel

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W.Va. Case – LaRew v. Mon Power – -Facts: Mon Power damaged 300 yr old white oak tree – easement via written permission so couldn’t use §61-3-48a-Kell v. Appalachian applies – broadcast herbicide to rt of way – Power co must obey rule of reason (narrow case) – Rule of reasonably should reasonably and generally apply to trimming trees = broad extension to narrow rule

W.Va. Case: Arnold v. Kelly-Facts: civil war - ’s horse take and used by - when tried to retrieve, horse was wounded- has cause of action for conversion/trover – See Rest. § 222A(1) - committed intentional exercise of dominion or control that “seriously” interferes

Pearson v. Dodd-Facts: Senator v. columnist (who entered office of Sen w/o permission and copied docs then published article)—Not guilty of conversion – forgotten tort--Distinctive feature of conversion MEASURE OF DAMAGES - must treat goods as own-info in files not subject to protex – NO CONVERSION

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PRIVILEGES – Chapter 3*Defenses to intentional torts 1. CONSENT

-(Akin to Assumption of Risk Defense of Negligence)3 Types:-Expressed in fact -Implied-Apparent

-O’Brien v. Cunard S.S. Co.-(APPARENT CONSENT) -Facts: immigrant vaccinated for small pox – alleges assault-dr. did not use force – her overt acts and manifestations indicated that she consented (she stood in line, held out arm, no one forced her, got certificate)

-Hackbart v. Cincinnati Bengals –THE Consent Case in US for Sports Participant Rule-Facts: pro-football player injured by intentional striking in back-What is line for unacceptable Sports Violence?

1) Intentional – 2) Violates safety rule3) Against General Custom of Game – acting beyond normal rough rules of the game

**Sports players consent to normal contacts of game but not to shots beyond custom of sport

-Mohr v. Williams-Facts: Dr had consent to operate on rt ear – found nothing wrong- then operated on left ear when discovered disease w/o reobtaining consent – was a nonemergent situation-was assault and battery b/c unconsented, wrongful, unlawful b/c circumstances not justify operation, and invasive = may have been beneficial but is a strict rule -dr. extended procedure beyond limits of consent-Notes cite Schloendorff v. Society of NY Hospital (1914)

-Cardozo opinion-LANDMARK case for consent re: med treatment-Establishes American baseline of “SELF-DETERMINATION”

“Every one has right to determine what happens to body”

-If Emergent Situation, consent is implied“Informed Consent” Must be sought:

-if time to seek it, must do so-for small kids from parents

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W.Va. Case: King v. Kayak M. Corp-RULE IN WV RE: SPORTS PARTICIPANTS-Assumption of risk unless conduct is : WILLFUL, WANTON, RECKLESS – which goes beyond rules of gameLimited Duty for Sports Participants to avoid injury – must refrain from willful, wanton, reckless injury----Sports Spectator Rule-----Spectator assumes ordinary hazards of sports activity (throwing garbage can on coach=not ordinary)

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-and patient given all info

-Demay v. Roberts-Facts: pregnant woman – told that man with dr was asst when in fact was not – her and husband let him in thinking he was a drs asst-Rule: Consent induced by fraud is no consent – Rest. § 892B-larger application of rule – STD’s

-Hart v.Geysel-Facts: prize fighting – one died and executor of estate sues for wrongful death – can action be brought when both parties consented to misdemeanor of prize fighting-Majority/WV RULE: ILLEGAL CONSENT IS NO CONSENT and there is a valid claim v. - voluntarily engaging in activity is no defense – MAY SUE ----WV case = Royer v. BElcher-MINORITY AND REST §60 – ILLEGAL CONSENT IS GOOD CONSENT – MAY NOT SUE

2. SELF-DEFENSE-may use such force as reasonably appears to be necessary to protect self - well-recognized principle -REST. §63-65

a) Existence of Privilege – anyone may use reasonable forceb) Retaliation – after battery no longer threatens, privilege terminatesc) Reasonable Belief-if believes force is necessary to defend = OKd) Provocation-insults, verbal threats, language are not enough to justify self-defensee) Amount of Force – ltd to what is reasonably necessary – differences in age, size, etc must be consideredf) Retreat – generally not required in home –

-Maj/WV: John Wayne Rule - not require retreat – may stand and defend anywhere-Min and Rest.: must retreat if can before using deadly force –except in home

g) Injury to Third Party – privilege is carried over and not liable unless negligent

3. DEFENSE OF OTHERS-Similar to self-defense but small distinx b/t maj and min rule about reasonable force/ mistake – -REST. § 76-WHETHER IN DEFENSE OF ANOTHER ONE MAY INTERVENE AS GOOD SAMARITAN AND DEFEND WRONG PERSON (AGGRESSOR) – is force reasonable under circumstances?CHECK?-Maj: can act on mistake if reasonably appears other is in duress and defending self-Min: Person (aggressor) must be correct

4. DEFENSE OF PROPERTY

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W.Va. Case: Collins -Facts: swung first -Cannot assert self-defense when provoke or start fight

W.Va. Case: Fink v. Thomas- cracked Fink over head to defend cop- can assert defense of others b/c acted reasonably

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-Katko v. Briney-Facts: s used spring guns in boarded up farm house to protect property and injured -unusual case b/c homeowner almost always wins-classic case b/c may NEVER use deadly force in defense of property-can use reasonable force but not deadly force just to protect property-law values life over property-MAJORITY AND WV VIEW – deadly force impermissible in defense of property-Rest. § 79

5. RECOVERY OF PROPERTY-May use force to recapture property as reasonably appears necessary to recapture property-Reasonable Force is limited to:

-“FRESH PURSUIT”-Property obtained fraudulently by theft or misrepresentation of credit status*Legal remedy must be used after fresh pursuit expires

-Hodgeden v, HubbardFacts: misrepresented assets and took stove - s discovered bad credit, pursued and reclaimed stove- had no rt of possession due to fraudulent misrep of assets – drew knife and became aggressor - s were justified to hold as long as not unreasonable force used

-Bonkowski v. Arlan’s Dept Store-Facts: accused of shoplifting jewelry – detained by private cop-Remanded for determination of owner had reasonable belief of larceny and investigation under the circumstnaces

Law re: shoplifting – based on reasonable belief of shopowner who may retain person for reasonable time and reasonably investigate

---Every state has shoplifting statute – accords merchant privilege to detain on appearances for reasonable time, etcWV CODE: § 61-3A-4:

Merchant not liableNo arrest made = eliminates suits for false arrest as theory of liability v. shopownerNo more than 30 min

Landlord/tenant-must use legal system to evict-Min: can evict-Maj:cannot evict

6. Necessity-Surrocco v. Geary-Facts: destroyed building in hopes of stopping fire raging - s unable to remove all goods-Necessity provides a privilege for private rights-page 636 – King can do no wrong – eminent domain – historical perspective-@ C/L govt could not be sued = immunity

-Vincent v. Lake Erie Transport-Facts: due to storm, had to stay moored to dock causing damage rather than being lost in storm-private necessity = must compensate dock owner-value of shipdock

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W.Va. Case: Taylor v. Chesapeake-doctrine of private necessity differs from public necessity-have privilege to inflict harm on another but MUST compensate

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-trespassing BUT privileged out of private necessity- must pay even though not at fault in terms of negligence-Pay for necessity – prevent unjust enrichhment

7. AUTHORITY OF LAW IF IS DULY COMMANDED BY LAW TO DO WHAT HE DOES = NOT LIABLE PROBLEM IN HOW FAR TO EXTEND LEGAL SANCTION See page 124 – arrests w/ or w/o a warrant

8. DISCIPLINE-MAJORITY: forbids corporal punishment-Other areas: Parent may use – Schools may not under WV § 18-8-5(1)-See WV assignmts page 62 – Parental Immunity (parent immune from suit by child except re

1. auto accident/insurance 2. Courtney v. Courtney – “child-abuse”3. when parent kills child – Coal Case page 62

9. Justification-“catch all”-general privilege where actor justified in using force or violating intentional tort for purpose of protection as is REASONABLE in circumstances-Applies to: Common Carriers, innkeepers, employers, guards, etc.

NEGLIGENCE – CH. 4-BUSINESS OF TORT LAW = Determining if conduct is intentional or NEGLIGENT-Moving discussion from intentional conduct to NEGLIGENT conduct creating unreasonable risk of harm-Negligence as cause of action arose out of liability for those in “public calling” (common carriers, innkeepers, etc…those in which skill is required)-evolved out of Industrial Rev. (19th cent) – 1825 from action on case – Railroads -Intentional torts have no social value – Negligence involves activity that has some utility but is mixed with risk of damage of tort-Recognized generally after 1850 Mass. – Brown v. Kendall-SEE RESTATMENT § 281

-4 ELEMENTS:1. Duty2. Dereliction3. Damage4. Direct Cause

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WRONG – DUMB WAY OF STATING FROM VA LAW STUDENT = 4 Ds---from Harris v. Martin

From Book:4 elements:Duty BreachCausationDamage

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NEGLIGENCE FORMULAS: RST 2d § 282: “Negligence is ‘conduct’….” = not a state of mind as was focus in intentional torts – no

consideration of mental state “which falls below the standard established by law….” = OBJECTIVE STD “for protex of others from unreasonable risk of harm….” = conduct has utility and must not be

unreasonably risky RST 3d § 3: Very difft from 2d – CODIFIES CARROLL TOWING’s BALANCING TEST

-to determine whether conduct is unreasonable must balance foreseeable likelihood conduct will result in harm with the severity of harm“A person acts with negligence if the person does not exercise reasonable care under all the circumstances. Factors are foreseeable likelihood that will result in harm, foreseeable severity of harm, and the burden that would be borne if person takes precautions that eliminate or reduce possibility of harm”-CARROL TOWING – LEARNED HAND’S CALCULUS OF THE RISK: B OR P X LB = BURDEN OF PRECAUTIONP = POSSIBILITY OF HARM (FORESEEABLE LIKELIHOOD TO RESULT IN HARM) (Probability

That loss will occur)L = GRAVITY OF INJURY (SEVERITY OF HARM OR POTENTIAL ACCIDENT COST)

(Magnitude of Loss)

-difft from § 282 b/c neg is “failure to exercise reasonable care” If B PL = NEGLIGENCE If B PL = DUE CARE – have taken adequate precaution If B = PL = EQUILIBRIUM and Due Care (accdg to Posner) – taken exactly enough precaution

to prevent unreasonable risk of harm

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CADY’s SUPER SIX-basic analytical strux to solve most tort problems-Premise from Rest 3d §4,5,6-TAKE THESE SEQUENTIALLY

A. Conduct1. DUTY – to refrain from intentional wrong;

exercise due care; S/L2. BREACH – intent, negligence,

ultrahazardous or S/LB. Causes

3. FACTUAL – in fact 4. PROXIMATE – limit of liability

C. Harm5. INJURY6. REMEDY – damages- $$

1. Duty: Was under a duty to exercise certain amount of care? If so, what?

2. Breach: all persons required to refrain from harmful, dangerous conduct – breach of duty subjects to basic portion of liability

3. Factual Cause: scientific link of conduct to harm – “Neg. must be ‘a’ cause in fact of harm”

4. Proximate Cause: Policy limitation of liability

5. Injury: Law recognizes “interests” as being worthy of protex –

6. Damages: most often $$$a. Compensatoryb. Nominalc. Punitive

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Economic Analysis - if fail to take adeq precaution and are liable = cheap and are projecting cost that should be s upon victiml; if use overcare – too much $ spent and not efficient

-Carroll Towing - -Facts: bargee absent – boat unmanned and came away from dock*Barge Co omitted to take sufficient precaution given likelihood harm would occur*Burden of keeping someone on board was small in comparison w/ costs of potential accident therefore was NEGLIGENT*No excuse for absence in war time – much traffic – situation called for co. to have someoneaboard during working hours-Accident costs outweighs cost of precaution to have bargee aboard

Rest. 2d § 283 – Std of conduct by law is that of REASONABLY PRUDENT PERSON“Unless the actor is a child, the standard of conduct to which he must conform to avoid being negligent is that of a reasonable man under like circumstances”-What would RPP do? In terms of Carroll Towing – would reasonably prudent barge co leave unattended? NO – conduct fell below std of RPP

Rest. 2d § 291 – RISK UTILITY ANALYSIS or “Cost Benefit Analysis” – o If Risk Utility = NEGLIGENCE – unreasonably riskyo If Risk Utility = DUE CARE – reasonably risky

Rest. 2d §292 – FACTORS TO DETERMINE UTILITY OF CONDUCTo Social Valueo Extent of Chance Interest Advancedo Can it be advanced by another alternative, less dangerous one

Rest. 2d §293 – FACTORS TO DETERMINE MAGNITUDE OF RISKo Social Valueo Invasion of Interesto Extent of harmo Other Persons

-Lubitz v. Wells = Not Negligent-Facts: dad left golf club on ground – son hit other child with it - not negligent : WHY? Apply formulas….Calculus of Risk, Definition of Negligence 3d or 2d, § 291-This deals with BREACH – -§282: Conduct was reasonably risky – leaving club in yard not create unreasonable risk of harm-§283: dad acted as RPP-§291: Risk Utility = DUE CARE-§292 and § 293 – facts in considering utility and magnitude of risk-CARROL TOWING: B PL =DUE CARE*Conduct which is reasonable and has low probability of resulting in harm is not negligent-----Cady is not convinced that dad not negligent – simple precaution to pick up club – should be resolved by jury, not rule on as a matter of law-----Key to understanding case: P (potential risk probability) is non-existent = P(0) x L = B = 0 ---Cady doesn’t believe this – understand in historical context – not as safety conscious then

WV Rule of Negligence = McMillen Test:

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Rest. 282 and 291:-In terms of unreasonable risk

-Rest 3d §3 = CARROL TOWING-Rest. § 283 = RPP = McMillen-Rest § 291= Risk/Utility Risk defined in 293Utility defined in 292

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“Negligence is the doing of an act which a reasonably prudent person in the same or similar circumstances would not do, or the omission to do an act which a reasonably prudent person in the same or similar circumstances would have done.”----Did act as a reasonably prudent person under the same or similar circumstances….????--Facts: Motorcycle accident – no witnesses – jury found for ----Cady says case is “pissing match b/t 2 skunks” = unwinnable case- not neg b/c acted as RPP

-Blyth v. Birmingham Waterworks= Not Negligent-Facts: installed fire plugs in water mains – freezing caused water to go into s house-§282 = Reasonable Risk-§283 = acted as RPP ---precaution was reasonable-§291 = Risk Utility ---Utility of conduct outweighed risk-Carroll = B PL --- took sufficient precaution to guard against what was likely-McMillen = acted as RPP under circumstances---unprecedented freezing = contingency against which no reas person could provide---Burden to install totally freeze proof plugs too much---DO NOT WANT OVER PRECAUTION = INEFFICIENT

-Gulf Refining v. Williams = NEGLIGENT-Facts: Spark from cap of oil drum caused explosion – “bung cap”s-BPL; R U; did not act as RPP-failed to exercise due care by keeping bad drum in circulation – created unreasonable risk of harm

-Chicago RailRoad v. Krayenbuhl = NEGLIGENT-Facts: kid got hurt on RR turntable-B PL; Risk Utility; RPP would have locked turntable-minimal burden, great risk of kid getting hurt, little utility in leaving it unlocked; RP RR would have locked

-Davison v. Snohomish Co. = NOT NEGLIGENT-Facts: skidded around turn, broke through railing on ramp; fell to ground = severely injured-B was sufficient and PL --- did enough to guard road – cost to co. would be too much (at the time)(Safety is a function of wealth and technology)

STANDARD OF CARE“Negligence is conduct that falls below the standard established by law”

SEE ALSO REST §283 What is reasonably prudent person?

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Haynes v. City of Nitro = Close to Negligence formula in WV-Facts: mom-in-law sued city, RR, and daughter as driver of car when injured after car drove off street and fell one foot onto RR tracks = Thelma and Louise-Similar formula as Carroll Towing and Rest §3 – most sophisticated and recognized test - RR and city were negligent (not daughter)-road unmarked for 9 years-Cost of prevention is so small compared to probability that harm will occur = NEGLIGENCE-Case is typical of bureaucratic inertia – will accomplish deterrence and compensation

Difference b/tBlyth and Gulf--Water Co would have to replace all plugs---Gulf only had to replace one drum = nominal burden

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-Vaughn v. Menlove = LANDMARK RPP CASE – USING OBJECTIVE STD-Facts: built hay rick near s land – “ said he would chance it”- wanted to be held to subjective std - “judgment”- bona fide or good faith belief std = EMPTY MIND; GOOD HEART-See page 172 – atty case-SUBJECTIVE STD LEFT FOR INTENTIONAL TORTS AND CRIM LAW

-DeLair v. McAdoo-Facts: defective tires on s car blew out = collision-RPP HAS KNOWLEDGE OF COMMON FACTS OF HUMAN EXPERIENCE-Drivers are required to know condition of vehicle – duty to find out

RPP is ideal, std which embodies all qualities of good citizen – who is careful, looks before leaps, informs self of history of things – moderate – precautious **HONEST MISTAKE? – RPP IS ALWAYS CORRECT and NEVER MAKES HONEST MISTAKE---STRICT, OBJECTIVE, EXTERNALLY RIGID STANDARD

CUSTOM:

COMPARE HARLESS WITH:

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W.Va. Case – Crane Equip. Co v. Park Corp.-Facts: loading heavy condenser – dropped on dock and damaged it-MERE FACT THAT SOMETHING GOES WRONG DOES NOT NECESSARILY MEAN NEGLIGENCE-Neutral mishap and has burden of proving negligence and what RPP would have done-Universal Application - Simple Accident does Not mean Negligent ---Must have theory of liability such as what a RPP co. would have done (use expert testimony)

W.Va. Case – Honaker v. Mahon-Facts: widow sues kid who hit her late husband’s car on way to prom = intersection collision ( wants more from own insurance co.)-Case establishes RPP std in WV as an OBJECTIVE STD (has been objective std since Vaughn v. Menlove)-“Negligence is either the failure to do what a RPP would ordinarily have done under circumstances or doing what such a person under existing circumstances would not have done”-SAME TEST AS IN MCMILLAN v. DETTORE

W.Va. Case: Harless v. Workman-Facts: coal co.’s dust was all over s property-NOT NEGLIGENT - attempted to minimize dust-see page 278 of WV Reporter-if state of art equipment available, must use it---what is customary is usually due care but not always

Trimarco v. Klein-Facts: bathtub door shattered on tenant-Quintessential test is what is reasonable conduct under all the circumstances

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-HOLMES: Custom is usually due care – “what usually is done may be evidence of what ought to be done, but what ought to be done is fixed by a std of reasonable prudence, whether complied with or not”-HAND: “In most case, reasonable prudence is in fact common prudence; but strictly it is never its measure; a whole calling may have unduly lagged in the adoption of new and available devices. It never may set its own test, however persuasive be its usages. Courts must in the end say what is required; there are precautions so imperative that even their universal disregard will not excuse their omission.”

SUDDEN EMERGENCY:-RPP std is relaxed to allow for misjudgment or mistake in situation NOT of his own making-most often in traffic situation-Sudden Emerg. Instrux only given in UNANTICIPATED EMERGENCIES – not viable for everyday traffic issues

-Cordas v. Peerless Transportation Co. -Facts: armed hood held up cab driver – he jumped – run-away cab injured s-Question of fact for jury if RPP would do that under sudden emergency-Court did not hold liable even though s were injured

PHYSICALLY DISABLED-Roberts v. State of La – RELAXES RPP STD OF CARE FOR PHYSICAL DISABILITY-Facts: blind worker bumped into = NOT NEGLIGENT-A blind man must take precautions which ordinary reasonable man would take if her were blind-Rest. § 283C – Physical Disability – must conform to std of reasonable man under like disability-ONLY APPLIES TO PHYSICAL HANDICAP – NOT MENTAL-std relaxed for physically disabled at s expense-physically disabled need not use higher std than RPP - only due care in light of disabilityNOTE: Voluntary Intox = no excuse Involuntary Intox = excuse

CHILDREN-Robinson v. Lindsay-Facts: Kid driving snowmobile – severed thumb-Is minor held to adult std of care? Rest § 283A – child held to std of child of like age, intelligence, and experience under circumstances-Exception: std goes up if child is engaged in DANGEROUS ADULT ACTIVITY such as operating snowmobile – held to RPP as adult-applies to cars, tractors, golf carts BUT NOT TO BIKES-MAJORITY RULE: This case & Restatement-MINORITY/WV RULE: RULE OF SEVENS =

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W.Va. Case: Moran v. Atha Trucking-Facts: crashed into parked trucks that blocked slippery road-jury is instructed on sudden emergency-Hunter v. JohnsonFacts: rearended by dump truck - claims brakes went out-Unavoidable accident instrux should not be given – THIS CASE KILLS IT-can’t be given b/c confuses jury and pro- -this is becoming trend in US

W.Va. Case: Pino v. SzuchFacts: 8 year old boy on bike and man on riding mower collided-jury found boy 45% neg – WV Readopted RULE OF SEVENS in 1991:

- O – 7 = conclusively presumed incapable of contributory negligence- 7 – 14 =inconclusively presumed to being capable of contributory negligence - must prove neg by comparing to child of like age, etc. = REBUTTABLE PRESUMPTION- 14 – 21 =Normal std of RPP

-Rule of Sevens most often applied to kid s and contrib. Neg-Dart Out Cases (in front of cars) – if 0-7; must pay all – kid darting out is not sudden emergency-Court says Rest. § 283 too vague and not helpful – then says factors in §283 must be introduced to prove neg

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NOTE: deer hunting is not dangerous adult activity in Arkansas

Mentally Disabled – RPP NOT RELAXED-Breunig v. American Family Ins. Co. = “GOD IS MY CO-PILOT and I AM BATMAN”-Facts: woman driving on wrong side of road – overcome with insane delusion – God was talking to her – BATMAN could do it -RPP std NOT relaxed for mentally disabled -Cady offended by this discriminatory notion-Insanity not allowed to relax std – see § 283B -Should apply same std as physically handicapped

-Too hard to draw line b/t incompetency, temperment, etc-Easy to fake – evidence is bad – do not want confusion of criminal law-compensation for innocent victims-Keepers more responsible

-POLICY: Keepers of insane should take care to guard them-Similar to McGuire v. Almy-THIS IS MINORITY VIEW AND WV IS IN MINORITY

WILL EVAL. ALMOST ALL CASES BASED ON RPP STDREST. § 289(b) – IF HAVE SUPERIOR ATTRIBUTES, THOSE WILL BE CONSIDERED AS SUBJECTIVE CHARAC.

WHEN IS RPP STD RELAXED?1) Sudden Emergency2) Physical Disability3) Childhood – except if engaged in adult/dangerous activity

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Basic Formulas1. RPP2. Judge Hand – Carroll Towing3. R§291 – Risk v. Utility

B or P x L(Burden of (likelihood (extent of Precaution) of accident) injury)

3 Factors to determine degree of care demanded:1. likelihood that conduct will injure others2. seriousness of injury if it happens3. interest must sacrifice to avoid risk

2 BASIC STDS for determining whether or not actor is negligent:1. What would RPP do or not do under circumstances2. Calculus of Risk (Hand) or Restatement § 3--for sophisticated and juries use RPP

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THE PROFESSIONAL---He who holds self out to public to be superior to norm with special qualities must live up to them

-such as attys, drs., vets, teachers, clergy, accts, plumbers, mechanics- any member of “SPECIAL

CALLING”-Rest § 289(b) – lists superior qualities

Heath v. Swift Wings Inc – PILOT case – crashed immediately after take off -MUST USE OBECTIVE STD FOR PROS – what skills norm possesses – no allowance for “Fred Heath’s” subjective characteristics or skill-Must compare to RPP not compare Fred to Fred! – if compare to himself = no negligence

If professional holds self out as being “specialist” then a “superqualified” person is held to higher std – that which he holds himself out to be ––See R§299A cmt d

EXPERT TESTIMONY:-There is NO Common Knowledge when it comes to technical stds of conduct in §299A-Would be STUPID to try any malprax case w/o Expert witness – don’t trust juries “lay” or “common” knoweldge-Totten Case (WV) = only the STUPID rely on the common knowledge exception

-despite Totten, no reasonable atty would try malprax case w/o expert-Expert is required to set std and give an opinion re: some deviation

Hodges v. Carter – atty’s improper service of process – mailed when should have been delivered

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DUE CARE/Reasonable Risk

Risk Utility or Cost Benefit Cost of precation chance of

accident B PL

Negligent/Unreasonable Risk

Risk Utility or Cost Benefit Cost of Precaution chance of

accident B PL

R§299A – Undertaking in Profession or Trade:-Unless he reps that he had or skill or knowledge one who undertakes to render services in prax of a prof or trade or calling is required to exercise the skill and knowledge normally possessed by members of that profession or trade in good standing…… “ in similar

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-Mistake; Atty’s not Negligent b/c did not depart from acceptable std of behavior due to CUSTOM – mistake was not a departure from std b/c norm of profession was to do the same wrong thing-An act in good faith and reasonable belief is Not answerable for a mere error of judgmt or for mistake in arguable point of law-Act from want of knowledge and skill ordinarily possessed by others in trade or omission to act with reasonable care or failure to exercise good faith IS answerable

-COMMON ERRORS FOR ATTYS1. Missing Deadline – MUST FILE W/In 2 years in WV = basic SOL statute

in tort(WV adopted discovery rule – sol not run until discovers injury – and also applies to TOXIC torts – when symptoms manifest, sol begins to run)-failing to file on time = atty neg and malprax

2. Stress/Substance Abuse3. Poor Client Relations4. Suing Clients for fees = client will counterclaim for malprax

Boyce v. Brown – metal screw in ankle-Case discusses expert on setting std: post-op no X-ray was done – dr setting std said this was not departure*GENERAL RULES OF LAW GOVERNING MALPRACTICE:1. Presumption of Innocence: must prove by preponderance - Presumed to possess the degree of

skill and learning possessed by average member of med profession in which he practices and to apply that skill and learning with ordinary reasonable care – if he does not possess skill or not apply it, guilty of malpractice

2. Departure: Before liable, must have done something in treatment which the recognized standard of good medical practice in the community in which he is practicing forbids in such cases or he must have neglected to do something which the std requires

3. Expert Testimony needed: STUPID to rely on common knowledge exception: The std of med qqpractice in the community must be shown by affirmative evidence and unless there is evidence of such a std, a jury may not be permitted to speculate as to what the required std is, or whether the departed from it

4. No inference of presumption from bad result: Negligence is never presumed but must be affirmatively proven and no presumption of neg or want of skill arises from mere fact that treatment was unsuccessful or patient died

5. Expert to establish what std is and if there was an unacceptable departure: Neg by deviation from std of care must be established by Expert testimony unless is so grossly apparent no layman would have problem recognizing it

6. Acceptable Minority Rule: Ok to depart from norm where a dr uses old procedure that is ok or new procedure that he developed:Testimony of other physicians that they would have followed a different course of treatment than that followed by is not sufficient to establish malpractice

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80% v small firms – 33% v. solo25% involve personal injury

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unless it also appears that the course of treatment followed deviated from one of the methods of treatment approved by the std in the profession

Med Profession is Self-Regulating = customary care is due careTJ HOOPER: Boats had no radios and were lost in gale – custom was not to have radios

Learned Hand wrote “In most cases reasonable prudence is in fact common prudence; but strictly it is never its measure; a whole calling may have been unduly lagged in the adoption of new and available devices. It never may set its own tests, however persuasive be its usages. Courts must in the end say what is required, there are precautions so imperative that even their universal disregard will not excuse their omission.

-Customary Care is GENERALLY Due care – trade can’t set std – law will -Statement is true outside profession b/c profession establish care: atty conduct and dr conduct

Morrison v. McNamara – LOCALITY RULE abandoned in Favor of NATIONAL STD-“in similar communities” is stricken from R§299A-Locality rule was norm until change in communication and med ed – -std of care applicable to board certified drs, hospitals, etc is measure by nat’l std

INFORMED CONSENT: interesting alternative theory of med mal Moore v. Regents : sold spleen for valuable cell line research

-advanced theory of med mal = breach of fiduciary duty-duty not to profit privately –

Theories of Med Mal:--Common Variety – unacceptable departure from std of care--Breach of Fiduciary Duty –

-consistent with Self-Determination – rt to do whatever want with body –leading case is Scholendorff v. Society of NY Hospital

--Informed Consent – med equivalent of FOIA/Truth in Lending = Truth in treatment--Lost chance

Cross case sets out exception when no consent needed:1) Emergency2) When telling patient would endanger him

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WV Cases: Buskirk and HowellHowell – arsenic given to her after miscarriage – Common knowledge exception allowed – Buskirk – no need for expert testimony b/c no alternate source of treatment - Abandonment

WV CASE: Cross v. Trapp- estab informed consent in WVTreating Person Shall Disclose:

1) Risk 4.) Risk of Nothing Done2) Alternative Methods 5.) Possibilty of Surgery3) Risks of Alternatives

-Must describe to patient in lay terms -WV ADOPTS OBJECTIVE STD in CROSS and AdamsAdams – what a RPP need to know - this fully realizes rt of self-determination-subjective std places too much risk on dr

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-also Expert testimony is not required under Patient Need Std – Remember Totten said not having expert is STUPID – TC says expert necessary b/c he establisher what a RPPatient needs to know

Scott v. Bradford = SUBJECTIVE STD in Oklahoma-Cause of Action for lack of informed consent has 3 elements:

1) Duty to inform2) Causation – causal connex b/t breach and injury only when

disclosure of material risks incidental to treatment would have resulted in decision against it

3) Injury-does not impose reasonable man standard – backtracks on patient’s right of self-determination

3 Standards of Testing What Must be Done to Inform Patient Fully1) National – norm of profession nationally2) Community – Locality Rule3) Patient Need Std – adopted everywhere – 2 rules are split

a) Objective – reasonable person – WV AND MAJORITY RULEb) subjective - individual patient’s understanding – OKLAHOMA

UNDER INFORMED CONSENT THE NEGLIGENCE IS NOT IN TREATMENT, BUT IN FAILURE TO INFORM!!!-don’t take informed consent cases……

ATTY MALPRAX Sheetz Inc, v. Bowles Rice

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WV Case: Foster – Breach of Implied Warranty of Merchantability:-UCC – when sale of tangible good by a seller, seller impliedly warrants merchantability of Good-Foster got bad blood - no negligence involved so theory was implied warranty-Theory not work b/c hospital is not merchant – blood is not sale by service (incidental transax)-Possible area of reform – case was in 1975

WV Case: Thorton case = VALUE OF A LOST CHANCE – another med mal theory-patient’s problem results in loss and dr misses alternate method of treatment or diagnosis that could save life = PATIENT LOSES THE CHANCE TO OPT FOR ANOTHER COURSE OF TREATMENT-NEG here is missing diagnosis- sues for value of lost chance – complex theory involves causation and neg theories

WV CASE: Pleasants: multiple methods of treatment-more than one method w/in std – can have approved method by a difft school-SCHOOLS OF THOUGHT – R§299A cmt f = if difft schools of thought or difft methods – judged by professional std of group to which he belongs-most appropriate in psychiatry

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-Answers how to test atty mal and prove it - Can lawyers testify as legal experts-ATTY CAN SERVE AS EXPERT WITNESSES

AGGRAVATED NEGLIGENCE– Black’s “of a tort, made worse or more serious by circumstances such as intention to cause harm or reckless disregard for another’s safety

1. Degrees of care – std of care for reasonable person will vary accdg to risk-As danger increases, more caution is also required-if have accepted social responsibility toward others: as in case of common carrier- accepts special responsibility toward others and must exercise more care in accordance with duty undertaken-carrier must exercise HIGHEST Degree of care (as well as person dealing with special danger)-some courts rule no degrees of care but amounts of care, or

-care required of actor is always the same under the traditional formula, that of a reasonable person under like circumstances, danger = care required-NY – common carrier rule no longer viable – only std of reasonable care in circumstances

2. Degrees of Negligence – breaks down difft kinds of conduct with difft consequences-lifted from Roman Law by Justice Holt in bailment case:

--slight negligence – failure to use great care; --ordinary negligence – failure to use reasonable care--gross negligence – failure to exercise even slight care

-Magruder at Harvard – difference b/t “fool, damned fool, and GD fool” – much criticism of distinctions-lines of demarcation difficult to set in practice

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MED MAL REFORM ACT of 1986: See Green Sheet---Central Aspect = Damages Cap: see Verba Case – upholds constitutionality of Act-also Robinson case affirmed $1m cap on non-econ loss--Verba issue is = Protex -$1m out of date – cap denies con rts – held that Leg has power to decide cap

-Dissent said cap uncon--See McGraw Case

WV: has Rocket Docket Provision to speed up processJt and Several Liability: if 25% neg = jt and sev – can recover any damn way

If 25% neg = sev – must pay % of faultSurvey Nationally or Reform

1) Same purpose - crisis exist and needs rebalanced2) WV does not have the following:

a) Review/Filter panels – MD has thisb) Collateral Sources: - 19 jurisdix allow intro of evidence to show costs been paid by

insurance/etcc) Periodic Paymt Plans - allow judgmt to be pd periodically as opposed to lump sum

3) Damage Caps4) Statute of Limitations – Discovery Rule adopted

Statute of Repose – absolute outside limit to # of years that may pass w/o regard to discovery and then suit is absolutely barred – WV HAS 10 yr STATUTE OF REPOSE

5) Addendum Clause - Wherefore demands X amt – WV complaint CANNOT include specific amount

6) Atty Fee Restrix - s atty can only charge contingent fee of 40% 7) Notice of Intent to Sue by letter

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3. Willful, wanton, and reckless conduct – distinx based on ’s state of mind to establish and intermediate class of conduct between negligence and intentional torts-conduct with deliberate and conscious disregard for known high degree of probability of harm

Gross Neg – failure to use high care = GD foolNeg – failure to use due care = damn foolSlight Neg – failure to use high care = Fool

WV Reduced Care Statutes: See ATtachments§16-4c-16 – Damage ltd to $1m for emergency personnel

LEVELS OF FAULT

R2nd R3rd WV

Highest Level= INTENT

§ 8A – desire/believes to subst certainty

§1 – purpose/ knows to subst certainty

No definition in WVLambert case is close

Deliberate Intention – knowledge and appreciation of high degree of risk or subjective realization of high degree of risk to employee

X X

p. 9 WV assignmtsMandolidis – creates exception for employer willful, wanton or reckless –Act then amended to elimate broad definition -2 Methods to prove deliberate intent:1) employer liable if act is

consciously, subjectively, and deliberately performed with intention to produce injury

2) employee can prove:a) condition violates

statuteb) employer’s subj

realization and appreciation of unsafe condition

Willful, Wanton, Reckless

§500 §2-knows obvious risk, fails to minimize

See Mandolidis-uses §500

Negligence- GROSS = GD foolBreach of duty of slight care= willfult

X X Hopkins v. Grubb –uses Va definition: degree of neg shows indifference to others as constitutes an udder disregard of prudence

Negligence-violates due care = Damn fool

§283-RPP in like circum§291-Risk v. Utility§292-Utility§282-unreas risk§293-risk

§3-Carrol TowB PL

McMullen – RPP case

Negligence – slight=breach of duty of high careFOOL

Abdulla – common carrier has duty of high care-See brief

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Pun.May be Awarded – need Malice

No Punitives may be awarded

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§16-4d-1 – What is duty of care owed?§17c-2-5 – EMS vehicle – reduced – allowed to violate traffic§19-25-4 – DUE CARE IS eliminated and liab of land owner open for recreational

use providing dispensation of land – must not be malice-Care reduced to not injuring person

Pokera v. Wabash – hit by train b/c couldn’t see around box cars Holmes Rule vs. Cardozo RuleA. Holmes – uses “Goodman” or Pennsy Rule – “stop, look, listen, get out and reconnoiter if necessary” Rule – driver at RR crossing MUST under All circumstances stop and get out

-Holmes made RULE OF LAW – unvarying – if not comply = contrib. neg -very HARSH, RIGID, Inflexible

B. Cardozo – makes new rule – more flexible – “case by case” reasonable rule-compare ’s actions with elastic RPP under same circumstances-page 198: Guidelines –

1) exercise caution in framing stds of behavior as rules2) human experience too diverse for invarying fact patters – no single

std should be framed in rul3) A rule imposed from w/o is not natural but artificial4) B/c of diversity need flexible std – RPP

Don’t’ Use these rules b/c are too rigid:RADIUS OF THE LIGHTS RULE – not applied in WVAssured Clear Distance Ahead Rule – still on books not used

BUCKLE UP STATUTE – adopted in WV in 1993In all but NH and Maine – NJ 1st to adopt in 1985 = WV §17c-15-49; All states have child law: WV §17c-15-46 -Car industry did not install seat belts voluntarily – rule from w/o was imposed –

LEG did it-Cts must follow Cardozo’s caution to adopt rules

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WV Case: Wright v. Hanley – seatbelt (occurred before required) -Universal Application = WV cautious in adopting rule of law b/c we prefer a flexible elastic std of RPP-use judgmt of behavior under circumstances – less rigid – no need for exceptions to rigid rule b/c with flex std can eval on case by case basis-FLEX STD is preferred to RIGID rule – allows jury to perform its function--Goodman and Wright cases – anti- ---Cardozo did not want rule to penalize by adding new defense for -WRIGHT stands for proposition that is hard enough for to recover and adopting anti- rule is uncalled for – let general RPP std dominate-WRIGHT CALLS FOR PRO- SystemRESTATEMENT §285d – std of conduct compared to flexible std

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-Only 9 states mitigate damages – WV IS IN MINORITY

VIOLATION OF STATUTE:Rest. §285b – Std of conduct of RPP may be adopted by leg enactment or reg

Mar-Cam Case: serving to drunks not allowed -Regulation sets std of care-Purpose of statute not to protect innocents from fights in bars but to AVOID

alcoholpoisoning-Reg prohibits loud, noisy, etc – useful to establish std of care for prudent bars

b/c fightsusually happen when it gets loud-class was anyone in bar – harm to be prevented was fights – statutory purpose

test

Restatement Test - §286 When std of conduct defined by leg will be adopted -to protect class

Yourtee v. Hubbard – WV case -WV statute - §55-7-9: unique to WV – any person injured by violation of any statute may use statute as estab std of care for violator-leaving keys in car - any violation = guilty of negligence – CT weasles out of this and says statute is not applicable b/c decedent was not part of class to be protected (joyriding kids)-uses Hurley test – co not hire mentally handicapped - had symptoms of depression and seeks liability§27-5-9a – “prohibits discrimination v. persons based on mental illness retardation or addiction” = toothless/valentine-REST § 286a = ID to Hurley court test-basis for judicial doctrine of std of care =

1) is of class to which statute applies

2) it there leg intent to create or deny remedy

3) is it consistent w/ leg scheme to apply remedy

4) is cause of action one traditionally relegated to state law so it would be inappropriate to infer a cause of action based solely on federal law?

Ney v. Yellow Cab -thief stole cab with keys left in it

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IMPLICIT IN MAR-CAM AND YOURTEE CASES: 1) CT EXPLORES WHETHER OR NOT STATUTE DESIGNED TO PROTECT CLASS

OF PERSONS (OF WHICH IS A PART) AND TO PROTECT VS. HAZARD ENCOUNTERED – IF SO STATUTE IS ADOPTED, IF NOT STATUTE ISN’T ADOPTED

2) MUST PROVE STATUTE DESIGNED TO PROTECT HIM AND HARM HE SUFFERED

HURLEY ATTACHES REMEDY to Statute – made meaningful a meaningless statuteCt Created Remedy

Leg v. Judicial Activism-cts fill gap where leg lagged-tobacco suit-Hurley was judicial activism

Perry v. S.N and S.N

-Is it appropriate to impose tort liability for violations of statutes?

EFFECT OF STATUTE: Martin v. Herzog

-REPS RESTATEMENT & MAJORITY VIEW OF WHAT VIOLATION AND EFFECT IS = WHEN A STATUTE APPLIES TO THE FACTS, AND UNEXCUSED VIOLATION IS “NEGLIGENCE PER SE”-JUDGE RULES AS A MATTER OF LAW THAT WAS NEG

Zeni v. Anderson -MINORITY RULE = VIOLATION OF STATUTE AS REBUTTABLE PRESUMPTION: Violation of statute provides prima facie evidence of negligence and a presumption which may be rebutted by a showing on the part of the violator of an adequate excuse under circumstances-NEG PER SE = TOO INFLEX AND MECHANICAL

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WV case: Waugh v. Traxler – WV/Minority Rule-crossed center line and hit - icy conditions - violated rules of road as criminal safety statute-Procedural Effect of Violation of Statute: Prima Facie Evidence of Negligence - s neg issue guaranteed to go to jury – creates rebuttable presumption-(Majority uses neg per se – no jury question) -WV gives statement of what kind of evidence may intro to rebut presumption/excuse of why violated

1) may rebut presumption by showing acted as person of ordinary prudenceSEE RESTATEMENT §288A for excuses:

1) violation is reasonable due to incapacity2) not know of occasion for compliance3) unable after due diligence to comply4) confronted by emergency not due to own misconduct5) compliance would = greater harm

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PROOF OF NEGLIGENCEWV CASE: ROACH; CURRY; WISE--SYLLOGISM: Form of reasoning to be used in all lawyering

A) Major Premise – All men are mortal = universal truth – principle of universal application

B) Minor Premise – Socrates is a man = factual micro statement of universal premise

C) Conclusion – Socrates is mortal = incorporates micro fact and universal truth

Goddard – banana peel caseMajor premise – nasty banana peels on s floor are negligentMinor premise - had nasty bananas on floor ----bad! Fact failure – tenuous inferenceConclusion - was negligent

Procedural Hurdles must be overcome by - Avoid being thrown at each stage –level of proof = Preponderance/ 50.00001% / more likely than not / more probable than not

A) Motion to Dismiss - fails to state claim on which relief can be grantedB) Motion for Summary Judgmt – discovery over; no issue of material fact in disputeC) Motion for Judgmt as Matter of Law – at close of case – evidence inadequateD) Instrux GivenE) ArgumentsF) Verdict

Anjou v. Boston El-inference may be drawn b/c proved banana was gritty, trampled, old – good facts = won

Joye v. Great Atlantic- lost – can’t prove minor premise – failed to prove facts-Special Notice Rule Added in 4th Circuit of which WV is a part – -McDonald v. WVU – invitee must show hidden dangers, traps, etc

--adopted notice rule for land occupier liability – slip and fall--must show hidden danger for person to collect --TERRIBLE CASE

BURDENS OF PROOFAdministrative

-Substantial Probative Evidence Rule

Prepoderance = 50.001%-more likely than not-more probable

Clear and Convincing-highly probable-overwhelming-FRAUD or for punitive damages

Beyond Reasonable Doubt-Criminal-doubt causing prudent person to hesitate-moral certainty

In Negligence Case: s burden of proof is PreponderanceMore likely than notProbable50.0000001% +

See Restatement §328 A,B,C

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McMillan case – WV definition of NEGLIGENCE-jury uses RPP std – allows jury to consider what RPP would do in same situation

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Continuim of Function of Judge/Jury:Judge Law Province of Jury – fuzzy area -if reach here winsLaw Issues “Where reasonable minds differ”

Area of ambiguityMay rest on matter of law (excuse)

0%----------------------------------------------------------------------------------------------------------------------------100%

-In old days – jury area was narrow – HOLMES – distrusted jury-Now area is larger – Cardozo – hybrid of judge/jury system

DOCTRINE OF RES IPSA LOQUITOR – “THE THING SPEAKS FOR ITSELF”-Pro- doctrine - s proof is not yet of suff quality to be in jury area-accident speaks for itself-Departure from preponderance = Assist in moving from 1st area of judge law into gray area-pushes minor premise by allowing jury to hear issue normally would not hear

Byrne v. Boadle – barrel of flour on head-RIL allows inference of negligence - rule of evidence applicable to Tort – allows to get to jury on neg issue when otherwise should notRule: HARM IS CAUSED BY Negligence if:

1) There is a neg origin2) controls cause of harm - negligence was the negligence3) No fault – other causes are eliminated

-can infer s neg by application of RIL – w/o it loses

Byrne:-Neg origin-s neg-No fault

§328D-neg origin-s neg-duty to -control

R3rd§17-accident is a type that ord happens b/c of neg of class of actors of which is relevant member

Ybarra v. Spangard –

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Remember: Majority rule of neg per se: no issue for jury to decide b/c matter of lawMinority rule/WV – prima facie – jury then decides

WV Case: Dawson v. Casey- won – area of ambiguity as to what RPP would do-Case illustrates that reasonable minds may differ

WV CASE: Foster v. Keyser-WV rejects old definition of RIL and adopts -R§328D page 57 Concise:

-Normally not occur in absence of neg -other causes ( and 3rd parties) are eliminated

-neg w/in scope of s duty to – in essence eliminating exclusive control element previously required in 4th Crct – Larson case in text-many good cases lost b/c couldn’t prove exclusive control---where divided Responsibility – issue is difficult – REST. and modern cases do not require Exclusive Control

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Hold: where receives unusual injuries while unconscious and in course of med treatment, all those s who had any control over his body or instumentalities which may have caused injuries may properly be called upon to meet inference of neg by giving an explanation of conduct---alternative liability theory – another relaxation-ril – relaxes burden of proof and helps with satisfying preponderance of evidence-HERE: burden of proof is Switched - presumed to be Neg and must disprove neg -b/c of conspiracy of silence in med field-ALTERNATIVE LIABILITY IS LTD TO CASES WHERE?????

WV CASES- inferring liability – Foster and Lipscomb (EPA inspector injured at mine)

CAUSE IN FACT

3rd issue in Cady’s Super Six CONDUCT CAUSE HarmDuty, Breach IN fact Proximate Cause Injury Remedy 1 2 3 4 5 6

WAS THE S NEGLIGENCE “A” CAUSE OF ’S INJURY?Sine Qua Non – w/o which not – “BUT FOR”

Perkins v. RR – speeding trainPrime Issue: Was excessive speed of train “a” cause in fact of collision-may have many causes – was neg “a” cause among perhaps many

Rest. §430 – Necessity of Adeq Causal Relation – legal causal connexRest §431- What is legal cause? – “Proximate Cause”

A) SUBSTANTIAL FACTOR-Rest § 432 – Negligent Conduct as Necessary Antecedent “a” cause of effect – common sense eval of sequence-NECESSARY and comes Before

B) Release Rule – concerns manner in which harm came about

-RR was negligent by speeding BUT Speed was NOT a cause in fact b/c would have hit truck anyway-To solve but for think up hypo where train was not speeding and ask…..”What would have happened if been going speed limit”

-s NEG WAS NOT A CAUSE IN FACT OF S INJURY!

S NEG IS NOT A CAUSE IN FACT OF S INJURY “IF” INJURY WOULD HAVE OCCURRED W/O NEGLIGENCE

S NEG IS A CAUSE IN FACT IF S INJURY WOULD NOT HAVE OCCURRED “BUT FOR” S NEGLIGENCE

INSUFF TO CONNECT CONDUCT WITH RESULT – MUST CONNECT NEG WITH RESULT NEG/FAULT MUST BE A CAUSE IN FACT B/C “ALL LIABILITY IS BASED ON FAULT”

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CAUSE IN FACT

§431a Substantial Factor

Necessary Antecedent

But For

Sine Qua Non

WV Case: Long v. City of Weirton – gas leak – co failed to respond – dug up road w/o maps- must connect escaping gas to house blowing up-Alabama case gives universal definition of cause in fact – Bessemer – classic theory of cause and effect – possibilities are insufficient – must be a probability -In multiple causation cases, the but for test must combine with the others which leads to a false negative-“The” case on proof of causation in WV - bears burden but does not have to disprove other possibilities- does not need to negate all other possible theories – just show one that is more likely than not-ADOPTS BUT FOR TEST IN WV AS TEST FOR CAUSATION – SINE QUA NON TEST-Neg of need not be sole cause but one of causes thereof w/o which injury would not have resulted

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Gentry v. Douglas Hereford Ranch Inc- burden is preponderance – here failed miserably - no proof of causal connex b/t fall and shot

Reynolds v. Texas RR – fat woman fell down stairs-complimentary to Gentry-neg is unlit stairs – neg maintenance – was a substantial factor or BUT FOR cause b/c neg of greatly multiplied accident chances-made it to jury area - s theory of causation moved proof into jury area where reasonable minds differ

PROBABLE – Drs question re: cause and effect – always in terms of probability--Dr, do you have an opinion to a degree of reasonable med probability as to whether or not the…..?----Kramer – cut = cancer? Long – gas = kaboom?------Yes I Do-- What is your opinion?-------The ………….was A CAUSE

CERTAINTY - must prove permanency of injuries – if can’t prove then no damages – frame drs /s in terms of reasonable medical certainty – RULE OF DAMAGES dictates certainty--Dr, do you have an opinion to a degree of reasonable med certainty as to whether or not the s injuries are permanent?----Yes I do--What is your opinion----The s injuries are permanent

Kramer case – cut from glass caused cancer?-not sufficient that something merely came before an injury – must “cause” -post hoc ergo propter hoc – after this therefore b/c of this = logical fallacy of arguing causal connex based on bare causal sequence-POSSIBILITIES ARE NOT ENOUGH – must be PROBABLE

Wilder case (med mal)– stomach staples- may intro other evidence of possible causes

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Hayzlett case in WV (employee inhaled sulphur fumes) “might” = insufficient to prove exposure to gas = means possibility-In med testimony, causation is critical b/c of requirement of PROBABLE

Hovernale – causation problem – proper std is REASONABLE MEDICAL PROBABILITYProbable vs Certainty-rule of civ pro -RULE OF DAMAGES-bearer of burden of proof to prove by probability, -damages must be proved to reas-preponderance, more likely than not onable degree of certainty-RULE OF PROCEDURE

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-s burden of proof is less onerous - bears burden to prove; can weaken-multiple causes may show weakness in s probable explanations- must use PROBABILITIES- can use POSSIBILITIES – to shoot holes in s probabilities

Herskovits – failure to diagnose cancer soon enough -LOST CHANCE THEORY – 14% lost chance – redux in chance of survival -14% is not more likely than not in strict since-no need to prove probable or more than 50.0001% - preponderance – -prima facie was enough – med testimony re: redux in chance of survival is sufficient

Remember WV accepts value of lost chance case – Totten Case?

Daubert – Benedictin and birth defects-RULE OF EVIDENCE CASE – construes Rule 702 of Federal Evidence-Testimony by experts – Rule 702 – If scientific, technical or other specialized knowledge will assist trier of fact to understand evidence-Frye test used prior to 702 – General Acceptance Test – could express opinion if has spec knowledge and if his opinion is generally accepted w/in community

-Daubert Factors – scientific testimony admissible only if:1) Has it been tested?2) Peer Review and publication3) Known or potential rate of error and stds controlling4) Generally accepted (Expansion of Frye)

Gentry case – cop testimony -----“GATEKEEPING FUNCTION”-judge makes initial decision on admissibility of evidence

WV ADOPTS DAUBERT-1999 Daubert applies to all experts not just scientific

CONCURRENT CAUSES-always more than 1 - but for test is absurd here so use Substantial Factor

HILL ANDERSON LONG WV BURDETTE WV-truck parked in road at night-multiple causes - 2s

-2 fires one from one from bog

-city, gas co, construx co-SUBSTANTIAL FACTOR TEST USED

-adoption of comparative neg change causation? NO-From Long – test for concurrent neg is “one of efficient causes w.o which no injury”

-in multiple causation cases but for test is counter-intuitive ---need both causes-TEST IN MULTIPLE CAUSATION CASES:

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WV Case: Hudnall-s theory – decedent would have had chance to live had road not been so steep or warnings -ct rejects extension of lost chance theory beyond med mal – most cases involve pre-existing injury-this case is concurrent neg case

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-SUBSTANTIAL FACTOR see page 92 concise-Was 1 or 2 negligence a substantial factor? YES-both s were “a” cause!!!-BOTH CONCURRENTLY NEG TORTFEASORS LIABLE-WV - JTLY AND SEVLY LIABLE – LIABLE TOGETHER AND SEPARATELY

- MAY COLLECT ANY DAMN WAY THEY PLEASE-In comparative neg jurisdix – juries assess % of fault to all parties of accident-each can seek contribution – crossclaim on same side of “vs” for proportionate share accdg to % of fault from other liable tfs – unfairness of any damn way please modified by Pure Compar Contrib

-Sitzes case WV – contribution shares = comparative fault of each party – WV adopts Pure Comparative Contribution

PROBLEMS IN DETERMINING WHICH PARTY CAUSED HARM:1) Alternate Liability (Ybarra) – to assist in neg case the ct in ltd circumstances can shift burden of proof – presumption reversed = presumed guilty-Same court in Ybarra decides Summer v. Tice – hunter killed – not sure who killed him -both s neg – negligent b/c:

Carrol Towing – burden of precaution was PL – inadequate precation Not RPP under same circumstancesMcMillenRestatementRisk-Utility

-problem for is cannot possibly prove by preponderance who shot him – only gets 50% not 50.01%-who’s neg was a cause? Balance fairness so turn normal presumption around and presume causation = ALTERNATIVE LIABILITY = Restatment § 433b(3)-if s cannot disprove own negligence then both liable-holding one liable whose neg was not clearly a cause is anti – BROWN V. KENDALL-WANT TO GIVE A REMEDY BY NOT ALLOWING WRONGDOER TO ESCAPE LIABILITY

2) MARKET SHARE LIABILITY-Sindell v. Abbot Labs – DES taken by mom

-195 manufax – late developing symptoms -DES daughters sued 5 drug companies – unable to prove that s drug was the drug Mom took-must connect defective product causally to injury

-Court rejected a) alternative liability theory b/c not all s before court – TC says so whatb) concert of action – no conspiracy by cos - may happen in sm industries – not so here

-Hall v. Dupont=Enterprise Liability- needy , bug bus able to bear loss of own risk – larger pocket held liable- entire industry liable

-MKT SHARE LIABILITY: impossible to prove which co was “a” cause-reverse burden and establish that manufax liable to for % of damages as reflected by its % of mkt-radical progressive – used in few states

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WV – NO SMELL OF BURDEN REVERSAL-NO ALTERNATIVE LIABILITY OR CAUSATION IN WV-NEEDS TO CATCH UP

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PROXIMATE CAUSE-WAS THE s NEGLIGENCE A PROXIMATE CAUSE OF s INJURY?3 Sections in book:

1) Unforeseeable Consequences2) Intervening Causes3) Public Policy

Atlantic CoastLine RR -CAUSE AND EFFECT ARE LIMITLESS AND UNKNOWABLE-courts must DRAW THE LINE to LIMIT LIABILITY-cts must be practical -means of limiting cause and effect by drawing lines

PREMISE OF PROX CAUSE – DRAW LINE AND CUT OFF LIABILITY

Francis Bacon says - not remote cause but nearest one

APPROACHES TO PROXIMATE CAUSE:I. RESTATEMENT

Rest §430 – “adequate causal relation” (cause in fact) Rest §431 – proximate cause = legal cause = substantial factor – no one uses legal cause anymore

A) §431b = Rule of Law - there is no rule of law relieving the actor from liability b/c of the manner in which his negligence has resulted in the harm

B) §435(2) = Not a highly extraordinary cause in hindsight – P/C is a cause which does not produce a highly extraord result = Intervening cayse

C) §440 = Superseding Cause – distinguished from intervening cause - intervention of 3rd party prevents actor from being liable for harm to another which his antecedent negligence is a substantial causeSUPERSEDING CAUSE vs. INTERVENING CAUSE – -that which is highly extraordinary is a superseding cause-that which is not highly extraord is intervening force

Restatement does not work – not accepted for analytical flow – still know for schools of thought

II.--------2 other schools of thought:

#1 = PROXIMATE #2 = CAUSE -Deals with negligence/foreseeability -Deals with direct v. indirect

#1 . Emphasizes P/C in context of neg case – #2. Causation Issue – near or direct v. indirect -Neg is doing or not doing what RPP would or would not do under circumstances Emphasizes foreseeability : that which is proximate is foreseeable

III. Public Policy-P/C not related to neg, foreseeability, or causation but rather a POLICY Issue of “line-drawing” to limit liability-Requires sophisticated legal analysis of how far we want system to compensated for negligently causedlosses

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All cases in chapter deal with negligent s – passed all those tests ---and passed but for causation test:Issue here is was s neg a P/C of s injury?

-Will we release a neg person to draw the line

Ryan v. NY RR-RR set fire to its woodshed – sparks caused s house to burn-Anything proximate is anything not remote-How do you determine if proximate or remote?TEST FROM DUMB PART 1 = ANEONU – as statement of that which is proximate – court rules that s neg was not a P/C but was too remote – B/C line must be drawn simply and stupidly and property line

=NY PROPERTY LINE RULE = “tough shit rule” - TCC=DUMBEST APPROACH=even though this is dumb, it is accepted nationally as a norm or one approach

-Part 2 of Opinion is Realistic and Smart = better way = PROPORTIONALITY-need fairness – some risks can be shifted, some cannot – Exodus 22 – eye for an eye principle-PROPORTIONALITY – AS MEANS TO DRAW LINE

-hold liable for his negligence-the extent of liability (# of houses) should be proportionate to his liability of negligence-proportionality is sophisticated: liability is commensurate with negligence or extent of liability is proportionate to basis of liability

Smartest way: Would the imposition of liability be proportionate to basis of liability

-Part 3 Remoteness of damage back to dumber way

THIN SKULL RULE = EXCEPTIONAL RULE Kingdon v. Stanley (WV) – related to Bartolone v. Jeckovich (weightlifter in accident = then had

breakdown)-both s had pre-existing conditions – Kingdon (physical) degeneration after accident– Bartolone (mental) paranoid schizo caused him to change entire life-PRINCIPLE APPLIES TO ALL PRE-EXISTING CONDITIONS = PRE-EXISTING CONDITION RULE-Deliu v. White = THIN SKULL RULE - TAKES AS HE FINDS HIM

-soldier injured and had skull removed-in later accident and died from bump on head – INJURY was an UNFORESEEN CONSEQ=old soldier’s rule = egg shell rule

-WV recognizes Thin Skull Rule = exception to Ryan Rule

Polemis – cargo ship blows up in Morocco-This approach emphasizes Directly Traceable element of cause =Dumb= What kind of causation is proximate under this test?-Proximate cause = direct cause-Remote Cause = indirect cause under this test

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ANEONU-Anticipated-Natural-Expected-Ordinary-Necessary-Usual

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-this test still has degree of elasticity – ct recognizes some degree of indirectness is OK

Wagon Mound #1 – oil spill burned docks ---- Wagon Mound #2 – oil spill burned boats-contrary results in 1 and 2-What neg are proximate causes? Those that are FORESEEABLE= Wagon Mound #2

-emphasizes neg nature of neg action-FORESEEABLE Defines Neg and Therefore Should define extent of liability-achieve proportionality b/t neg wrong and liability (conseq) by looking at foreseeability

- lost in 1 b.c fire not foreseeable- won in 2

-English rule for 1 – framed in terms of proving directly traceable and causal relation – no emphasis on foreseeability

-on appeal rule changed – direct is rejected and foreseeability is adopted-proof below ignore foreseeability so lost

-new rule in #2 - tailored to foreseeability and wonPROX CAUSE = ForeseeableRemote Cause= Unforeseeable

While both results were foreseeable; introduced wrong facts in #1

Palsgraf v. Long Island RR – same ct that decided Ryan, perfect precedent in NY-Cardozo – rejects P/C as analytical vehicle to draw the line = USES DUTY INSTEAD -“The risk reasonably to be perceived defines the duty to be obeyed and risk imports relation; it is risk to another or to others within the range of apprehension” = Cardozo’s Palsgraf Risk Rule- judges decide what risks can reasonably be perceived

Refer to other notes:

Intervening Causes Patterns:

1. Intervening Negligence – Derdiarian case2. Intervening Intentional or Criminal Misconduct – most disruptive of P/C =

Watson3. Suicide4. Rescue

Watson v. Ky and Ind Bridge and RR – threw lit match onto gas on street - as bystander was injured-intervening crim act may cut off liability and usually does – rule as matter of law that chain is broken and orig not liable

Nemo Foundations WV CASE – exec hurt in accident – co suffered loss-no recovery for neg inflix of econ loss=NIELSee also Justy case – economically based line drawing rule

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5 AREAS WHERE DUTY USED AS ANALYTICAL VEHICLE:1) PRIVITY OF CONTRACT – accts, other prof have no liability to those beyond contract for neg docs2) FAILURE TO ACT – @ c/l no duty to aid or rescue – line drawn at failure to act3) PURE ECON LOSS4) MENTAL DISTURBANCE – line drawn at physical harm – if only neg emotional distress, no liab5) UNBORN KIDS – prenatal torts no duty of care

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WV assignments page 19-privity of contract = no defense-WV adheres to C/L rule of no duty to act-NIED is cause of action in WV and duty of care to protect 3rd parties from suing-Marlin case – adopted cause of action -duty to refrain from nef inflix of present fear of future illness-Farley case – 1st - C/L cause of action for wrongful death of non viable fetus

WV ON CUTTING EDGE RE: Med Monitoring and NIEDPUBLIC POLICY

Kelly case – NJ-Holds social host liable to third party injured party if guest neg operates car

4 Liquor Liability Problems:1) Statute in ev state that commercial purveyor “shall not sell” to:

a) Underage – protects from health hazardb) Visibly intox – protects from alcohol poisoning-Issue: is neg of commercial purveyor who sells in violation of statute form a basis of cause of action to 3rd party? NO- cannot go back v. seller --- injured not person intended to be protected by statute

2) DRAMSHOP ACTS-c/l rule = selling was not a P/C of injury to , drunk driving was-to revise c/l, ½ states have these acts - has no cause of action v. seller who sells in violation-NO DRAMSHOP ACT IN WV – NEVER WAS

3) Employer-Employee – holiday X-mas partyEmployer is liable to 3rd party

4) Social host to social guest-NJ only state for social host liability – Leg later modified rule

IN WV: Overbach v. McCutcheon – re: social host-NOT LIABLE B/C of PUBLIC POLICY of no DUTY and NO P/C -is this correct in terms of public policy age of MADD., SADD-imposing social host duty of due care = against social fabric/norm-WV and all other states refuse to impose social host liability b.c too onersous

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Anderson – social hosts are liable for serving to minors b/c code violation

Bailey – violation of code to see to visibly intox

WV STATUTE PROHIBITS SALE TO WHOM:Physically incapacitated Minors/UnderageMentally incompetent

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Enright v. Lily-DES Daughters-Mkt Share Liability – granddaughters cannot sue – only daughters (their moms) -Line drawn after one generation – not suff med data – factor of 2 for scientific causation-Tort system: designed to deter misconduct and compensate-do not want overdeterrence or get disincentive for drug co to make drugs = Slippery Slope Argument-“staggering implications” – Want proportionate not disproportionate liability – next generation is disproportionate – no private fortune adequate = Ryan Riddle

GUN CASES - s theory was Neg Mktg and Distribution-fell into criminals hands – made too many for recreational use-some s won against some s – MKT SHARE LIABILITY-Black Jack Weinstein found: Gun makers had DUTY to exercise due care in selling weapons to responsible retailers-APPEALED to 2nd Circuit Ct of Appeals

ISSUE: Whether s owed s a duty to exercise reasonable care in mktg and distribution of handguns?US FED DST COURT = Found DutyNY ct of Appeals = No Duty to ex due care in distribution of product

FACTORS Both Courts Used to Analyze Issue: WHEN DOES THE DUTY ARISE????

PRECEDENT – to determine when duty arises – used analysis similar to Enright-When Duty Arises - Landmark case = Heaven v. Pender-whenever AFFIRMATIVE CONDUCT – hand @ rest may stay @ rest but when moved to act in affirmative conduct must exercise due care-everyone must exercise due care to avoid unreasonable risk of harm-gun manufax make guns = affirmative act = need due care

WHAT IS THE DUTY?-Enright – must drug manufax ex due care to 2nd level in manufax dangerous drug?-DUTY is NOT FORESEEABILITY:

-duty is complex variety of factors – including reasonableness in light of risk – shifting policy in modern econ of who should bear loss

-POLICY in enlightened America is Reasonableness of Risk Shifting1) Reasonable expectations of parties in society2) Proliferation of Claims3) Likelihood of Unltd Liability4) Disproportionate Risk5) Public Policy

-On basis of reasonableness of risk – Weinstein says should allocate; App Ct says NO-HIGHEST PHILOSOPHICAL ANALYSIS - who should bear risk loss

MKT SHARE LIABILITY:-where s as in Sindell can’t ID manufax b/c gun disposed of -Weinstein says good case for mkt share liability and relax of burden of proof b/c can’t prove more likely than not

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BREACH = based on expert testimony FACTUAL CAUSE = under mkt share PROXIMATE CAUSE = whether the s neg was prox cause? Black Jack Says YES!!!

1) Unforeseen Consequences: 2) Intervening Cause problem of criminals – does crim intervention automatically break chain?

--Intervening Act only breaks chain if it is such an extraordinary nature that responsibility for injury should not be reasonably attributed to them--Weinstein says not break chain b/c a MORAL question

Weihner Case WV – pizza delivery to frat hous-PROX CAUSE IN WV = efficient cause or last neg act-An intervening cause, in order to relieve a person charged with negligence in connex with an injury must be a neg act or omission which constitutes a new effective cause and operates independently of any other act making it and it only the P/C of injury.-In concurrent neg case, the nef of need not be the sole cause of the injury it being sufficient that it was one of the EFFICIENT causes thereof w/o which the injury would not have resulted

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JOINT TORTFEASORS

3 ISSUES:1. Liability that Makes Jointly and Severally Liable Tortfeasors Liable2. Joinder3. When there are joint tfs, what are their liability for damages?

(Text is not up to date)**Adoption of comparative negligence has ed the law dramatically = now very confusing

Issue 1: Liability

-What Rules of Liability Make a Joint TF liable?There are more than one or multiple “causes” of an injury – each is a causeThere may be multiple “proximate causes of an injury”

-ANSWER: ALL OF THE NORMAL RULES OF LIABILITY THAT APPLY TO ONE TF APPLY TO

MULTIPLE TFS: neg is same, cause and prox cause same

-In the Multiple TF situation: ask same questions about each : was he neg? was neg a cause?-Prox. Cause problem occurs in multiple tf case: Wehner – has latest definition of intervening cause or concurrent neg:

-INTERVENING CAUSE = lable of exculpation (lets out) of other tfs and inculpates that one tf-if intervening – cuts off other tfs

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WV CASE: Wehner v. Weinstein (pizza boy) at frat house Many s sued by 3 sLATEST DEFINITION OF INTERVENING CAUSE:-an intervening cause in order to relieve a person charged with neg in connex with an injury, must be a negligent act, or omission, which constitutes a new effective cause and operates independently of any other act, making it and it only, the proximate cause of the injury

-In a concurrent negligence case, the negligence of the need not be the sole cause of the injury, it being sufficient that it was one of the efficient causes thereof, without which injury would not have resulted; but it must appear that the negligence of the person sought to be charged was responsible for at least one of the causes resulting in the injury

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Long case: concurrent neg – neg need not be the sole cause but one of the efficient causes

Issue 2: Joinder-Under old law – to join jt s in one lawsuit, must allege and prove one of the 4C’s

1. concert of action2. conspiracy3. combination4. common design5. cahooted

-Joint tfs also include those acting INDEPENDENTLY – contrary to 4 C’s-MODERN RULE OF CIVIL PROCEDURE: FED R CIV PRO 20(a)

JOINDER = modern rule is allowing one big suit to bring finality to one common ? of law or fact“May” do this – do not have to

Issue 3: What is liability of Jt tfs? Coney v. JLG Industries

Facts: wrongful death – Jasper died while operating hydraulic lift manufax by = products liability action - argued Jasper had committed contrib. neg as did his employer-C/L jt/sev liability holds jt tfs responsible for s entire injury allowing to pursue all, some or one of tfs responsible for his injury for the full amt of damages-Majority of jurisdix that have adopted comparative neg have retained joint and several liability bc

1. feasibility of apportioning fault on comparative basis does not render an indivisible injury “divisible for purposes of jt and sev liability – just b/c can assign % of fault to one neg does not in any way suggest that each s neg is not p/c of the entire indivisible injury

2. would have to bear part of loss if one tf is unable to pay3. s neg is tortious b/c it relates to lack of due care for others - s neg is not

tortious b/c relates to lack of due care re: himself4. Elim of jt and sev liability would have deleterious effect on ability of injured

to obtain compensation-If elim jt and several liability as advocates, burden of insolvent or immune would fall on and s damages would be reduced beyond % of fault attributable to him

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Quartet of Epithets to describe activities of tfs-only under these circumstances could you join

WV RULE ON JOINDER: permissive joinder of parties-the s “may” assert all rts together-Hence in Wehner, 2+1 = 3s – may assert any rt jointly arising out of same transax, occurrence, or series if common question of law or fact-ALL s may join all s in One action – all persons may be joined in one act as s -Thesis: s can co-op to bring in all s in one suit so can have more s pointing more fingers @ more s = more implicit prejudice created due to finger-pointing by s

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-wrongdoers can work out apportionment amongst themselves-HOLDING: 1) comparative fault is applicable to strict products liability actions

2) comparative fault does not eliminate joint and several liab 3) retention of jt and sev liability does not deny s = protex

Bartlett v. New Mexico Welding Supply, Inc hit and runFacts: 3 car accident - #1 - in and out of service station, #2 swerved to miss ()

#3 rear-ended

-jt and sev liab = either of 2 persons whose concurrent neg contributed to cause s injuries and

damage may be held liable for the entire amount of damage = C/L Rule existed in NM prior to

adoption of pure comparative negligence-JT AND SEV Liability NOT to be retained in PURE COMPAR. NEG system on:

a) theory of one indivisible wrong b/c the concept is obsolete; or b) on theory that is favored and must be protected against

uncollectability b/c if only one tf bears risk of insolvency so why should it be difft for 2 tfs?

Note 1 page 363: Joint and Sev. Liability Principles arose from:1) Contributory Negligence – bars from recovery if he bears any

fault – Now been changed to comparative neg which reduces s damages by % of his fault

2) Contribution among tfs – not allowed at C/L but is allowed today either on pro-rata or comparative-fault basis

---contribution would be unnecessary if there were no jt and sev liability

Restatement 2nd Concise § 17:---If indep. tortious conduct of 2+ persons is a legal cause of an indivisible injury, the law of the applicable jurisdiction determines whether those persons are jointly and severally liable, severally liable, or liable under some hybrid of joint and several and several liability---Options for liability of jt tfs are:

1) jtly and sevly liable2) severally – each tf pays no more than his apportioned share and bears

uncollectibility risk3) hybrid

---5 Tracks – no majority rule – scattered among several jurisdix – They represent difft view on what to do w/ JT and Sev Liability in era of Comparative Negligence

HYBRIDSTRACK A

WV RULE - 15TRACK B

16TRACK C

7TRACK D

11TRACK E

8

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contends neg of hit and run #1 driver caused or contributed to cause the accident-jury found s not neg; 30% neg; and unknown 70% neg- damages for $100K

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Jointly and Severally Liable – each is jtly and sevly liable for all or any % of s recovery- MAY RECOVER ANY DAMN WAY HE PLEASES –WHY?B/c under old system jury never assessed % of fault-when compar neg dev. so did tracks BCDE -15 jurisdix 10 modern+ 5 old contrib. neg states (Ala, D.C., MD, Va, NC)-Old and WV rule=most friendly

Severally Liable-each must pay accdg to his % of fault

Reallocation-reallocates damages among all parties if unenforceability of judgment – risk of insolvency on all who bear responsibility for s damages-insolvent’s share is reallocated to other parties in proportion to their comparative responsibility

=Proportionate sharing of uncollectability-most equitable means for coping with insolvency

Threshold-jt and several liability imposed on indep tfs whose % of compar responsibility exceeds a specific threshold

if above=jtly and sev liable----25% in WV-----if below = severally liable

-risk of insolvency on if solvent s below threshold

WV STATUTES – reforming old rule that can collect anyway please:29-12a-7 = pol sub-div55-7b-9 = med mal or health providers--if 25% = Several liab

Kind of Damage-A tf is jtly and sevly liable for ECONOMIC loss (wages/med expenses)-but is severally liable for non-economic loss (pain, loss of consortium)

EXAMPLEA=10% fault, 10K damagesB=20% fault 20K damagesC=30% fault 30K damagesD=40% fault 40K damagesUnder Track A:-A’s damages of $10K will be reduced by % of his fault (10% or $1K) = Total damages of $9K-A may collect all 9K from any, some, or all of BCD w/o regard to their % of fault-B’s damages are 16K (20K – 20% or 20K x 80%)-C’s damages are 21K-D’s damages are 24K

Under Track B:-A collects from B only accdg to his % of fault of 20% - so A collects 2K from B (10K x 20%)-C owes A 3K-D owes A 4K 2+3+4 = 9K (s damage less own fault)

Under Track C:

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-A can join BCD in one suit due to Rule 20A-In KY -pure comp - can recover from BCD –YES b/c % of fault is not TOTAL-C can recover from DAB b/c everyone may recover-can D recover from ABC in Virgin Is – yes b/c no

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-say B, C, D are pol subdivisions or municipalities (cop car, co car, school bus)-B is severally liable b/c his fault is threshold of 25% so only pays his % of fault of 20%-C and D are than 25% and above threshold so are jtly and sevly liable so can collect any damn way he pleases

WV Rule/ Track A is most friendly b/c projects risk of uncollectibility upon s SEVERAL LIABILITY IS UNFAIR in this regard

Track A vs. CA-burden of uncollectibility botn by s - can collect any damn wayC-if one of s is judgment proof – burden of uncollectibility shared by everyone +

IN WV: D only applies to municipalities and medical provider – result of tort reform

*Contributory Neg = s neg no matter how slight is complete bar to any recovery by (old Punitive All or Nothing Rule) – JURIES DID NOT ASSESS % OF FAULT IN THIS SYSTEM – NOW JURIES ASSESS % OF FAULT TO ALL PARTIES TO THE ACCIDENT

*Comparative Neg = s own neg does not necessarily bar recovery but reduces damages by % of

his fault IF……………………….. A) Modified = 36 jurisdix

1) Slight-Gross (only SD) – …….. s neg is slight compared to s neg which is gross(up to 6% slight ------- 94% gross)

2) LESS THAN or 49-51 – WV (13 jurisdix total)-…….s neg is the combined neg of all the other parties to the accident-IF neg of is = to combines neg of all others then no one recovers

3) Not Greater Than or 50-50 (22 jurisdix total)-…….s neg is not the combined neg of all the parties-if 50-50 = both parties get 50-if 49-51 = s 49% neg allows him to recover 51% of his damages-if s neg is 51, recover nothing b/c his neg is and not = to or -ONLY BAR IN NOT THAN IS IF SOMEONE IS 51% NEG!

B) Pure = 14 jurisdix-……..s neg is not TOTAL- 1% at fault gets 99% of damages- 99% at fault gets 1% of damages

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WV CASE: Bowman v. Barnes – JURY MUST ALLOCATE FAULT TO ALL PARTIES OF THE ACCIDENTSimple Rule – Allocation of Fault is to ALL parties to accident whether parties are present, settled, dead or unknownRemember:-if 2+ s whose neg combines and contributes to single indivisible injury then are CONCURRENT TFS OR JOINT TFS-WV has modified Less than Comparative Fault – damages reduced by % of s fault if his fault is combined neg of all other parties-WV adopted Comparative Neg in Bradley case – 1979 – adoption did not anything re: causation-Proof of Causation from Long is still 50.00001 or Prepoderance or More likely than not or Probable(lost chance exception to this – may reduce chances to live by any %)

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EXAMPLE:A=1% at faultB=1% at faultC=97% at faultD=1% at fault

CONTRIBUTION

-Contribution ameliorates harshness of rule of s being able to collect any damn way they please-defined as the “equitable sharing among jtly and sevly liable tfs of the jtly and sevly liable judgment”-OLD RULE: --PRO-RATA or PRO NUMERO Contribution – jury did not assess fault – if w/o fault could

collect anyway he pleased so parties sought contribution among selves on pro-rata basis:

if 3 s – each pd 1/3 if 5 s – each pd 1/5-this was procedure b/c no other way to assess fault!!!

-w/ advent of compar neg and juries assessing fault, more of a basis for pro rata pure compar neg

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WV Case: Lacy v. CSX-put blinder on juries-See example below – B will argue that is unfair for jury to assess him any fault b/c his was so minor – unfair to make him pay since can collect any way-LACY PROHIBITS B from arguing that – jury cannot be told effect of verdict = blindfolds them on theory that they can’t understand policy basis or way s collect

A can collect 99%; B can get 99%; D can get 99% but C gets nothing b/c neg is not combined neg of all other parties

WV Case: Sitzes v. Anchor -CONTRIBUTION SHARES = COMPARATIVE FAULT-WV is Modified Less Than Comparative Neg state with Pure Comparative Contribution = Skewed