Torts- Hasnas; Fall 2013

Definition: A tort is a civil wrong, other than a breach of contract, for which the law provides remedy Purpose of Tort: 1) provide a peaceful means for adjusting the rights of parties who might otherwise “take law into their own hands”; 2) deter wrongful conduct; 3) encourage socially responsible behavior; 4) restore injured parties to their original condition by compensating them; and 5) indicate individual rights of redress

I. INTENTIONAL TORTS

INTENTIONAL TORTS - OVERVIEW: 1) battery; 2) assault; 3) false imprisonment; 4) Intentional Infliction of Emotional Distress (IIED); 5) trespass to land; 6) trespass to chattels; 7) conversions (not really discussed in class)

Intent o I= P or K to cause a harmful or bodily contact o I requires a conscious act + either the purpose to produce the legally relevant

consequence or the knowledge that the legally relevant consequence are substantially certain to occur

Garratt v. Dailey (1955) D dragged chair from under P H: Age is relevant insofar is helps to determine knowledge. R: Knowingly creating a risk that legally relevant consequence

will occur is not intent; recklessness is not intent; however, can still be held liable for battery

Spivey v. Battaglia (1972) D intentionally hug P, P becomes paralyzed H: D did not have intent to bring paralysis; the result was

bizarre –cannot be construed as substantially certain to follow R: Mistakes as to consequences negate intent Intent is a subjective standard: Take into account the D’s

experience, capacity and understanding (see Garatt as well) Ranson v. Kitner (1889)

D shots P’s dog, think it was a wolf

No= No liabilityYes= Go to Q2

Are all elements of alleged tort present?

Yes= No liabilityNo- Go to Q3

Does the D have a legally recognized

privilege? Yes= No liabilityNo= Liability

Was D's action justified?

INTRODUCTION

CHAPTER 2: INTENTIONAL INTERFERENCE WITH PERSON OR PROPERTY

H D intended to kill animal failure to identify right animal does not negate intent.

R: A mistake as to the significance of one’s actions or the circumstances in which one acts does not negate intent (Ranson v. Kitner, McGuire v. Almy)

McGuire v. Almy (1937) Crazy person attacked P w/ chair H: Insane people can be held liable for actions if entertained

intent R: A mistake as to the significance of one’s actions or the

circumstances in which one acts does not negate intent

Talmage v. Smith (1894) D threw stick at boy and hit another P instead H: If D intended to hit any of the boys with unreasonable force,

D was liable for inadvertent injury to another. R: Mistakes as to consequences that indicate a disposition

to commit an intentional tort do not negate intent. o Doctrine of Transferred Intent : If D intends to

commit a tort against one person but a second person is injured, D is liable

o Other way of transfer: If actor intends to commit one intentional tort but commits a different intentional tort, he is held to have the intent necessary for the second tort.

**Nonetheless: Mistakes as to consequences that do not indicate a disposition to commit an intentional tort negate intent**

A. INTENTIONAL TORTS TO THE PERSON: 1) battery; 2) assault; 3) false imprisonment; 4) Intentional Infliction of Emotional Distress (IIED).

1. INTENTIONAL TORTS TO THE PERSON – BATTERY i. General Rule

1. Battery is the intent to cause a H or O contact; H or Offensive contact produced

ii. Elements1. Intent to commit harmful or offensive contact: “Harmful” is

based on the nature of the contact 2. Harmful or offensive contact occurs:

a. Offensive contact is subjective: [example: host on ‘anti-smoking’ radio show]

b. Harmful contact is objective based on nature of contact.

c. P need not be aware: different from assault; d. What if D is trying to help P: Doesn’t matter as long as

they intend the contacte. Not just person to person contact: [Fisher v. Carrousel

Motor Hotel, Inc – D grabs P’s plate]; also [Garratt v. Dailey - D pulls chair out from under P]

iii. Exceptions1. Consent—if P consents than D is privileged to make and there is no

tort iv. Examples/Cases:

1. Cole v. Turner (1704)

a. Rule: The least touching of another in anger is battery2. Wallace v. Rosen (2002)

a. Rosen touches Wallace during a fire drill, Wallace falls down stairs

b. H: Battery is an invasion of another’s bodily/dignitary interests, ordinary contact does not do this

c. R: Touching must be rude, insolent, or angry i. Test for strangers is what would be offensive to an

ordinary person not overly sensitive as to personal dignity.

3. Fisher v. Carrousel Motor Hotel, Inc. (1967) a. D snatched away a plate from a black man in buffet line,

telling him he could not be served.b. H: The forceful dispossession of P’s plate in an offensive

manner was sufficient to constitute a battery.c. R: Actual/Direct contact is not required; indirect contact

such as unpermitted and intentional contacts with anything so connected with the body as to be customarily regarded as part of their person (clothes, held items) is sufficient

2. INTENTIONAL TORT TO THE PERSON— ASSUALT i. General rule

1. An intentional act that creates apprehension of imminent fear for a harmful or offensive contact

ii. Elements 1. Intent to produce a H or O contact2. An attempt to produce a H or O contact that fails (optional)

a. [D shoots at P trying to hit P. P is scared but the shot misses]

3. A well-founded (reasonable) fear of imminent H or O contacta. [Western Union Telegraph Co. v. Hill – D says he’ll fix P’s

clock if she comes behind the desk and ‘loves’ him. Relevance of length of desk, to imminence, etc.]

4. The apparent present ability to produce H or O contact iii. Notes

1. Words alone of insufficient 2. Must be aware

a. [Dr. evil fires on Powers w/ silencer when his back turned – not assault]

3. No hostility is required: [D points a toy pistol hoping to scare P]iv. Exception

1. Conditional threats are insufficient unless the person issuing command has the legal right to make the command; the words themselves negate intent

v. Examples/Cases1. I de S et ux. v. W de S (1348)

a. D slammed a hatchet against the door where P’s wife was standing, narrowly missing her.

b. H: Assault is harm in itself, therefore liability exists.i. Although no harm, committed tort of assault and

is liable c. R: Assault liability does not require physical harm; can get

liability b/c of doctrine transfer of intent2. Western Union Telegraph Co v. Hill (1933)

a. Clerk offered to fix P’s clock, reached for her across the counter.

b. R: Assault is an attempted battery; an intentional attempt to touch in a H/O manner, so as to create a well-founded apprehension of an imminent batter with an apparent present ability

3. INTENTIONAL TORT TO THE PERSON— FALSE IMPRISONMENT i. General Rule

1. FI is the DR of another’s physical liberty w/o legal justification ii. Elements

1. I to restraint liberty of another2. Restraint

a. Physical b. Threat to legally protected interestc. Apparent lawful authority d. Failure to fulfill duty to furnish exit

3. Awareness of restraint or (H) iii. Notes

1. Confinement must be total not a mere inconvenience; reasonable means of exit is not FI (unreasonable if it exposes material harm or danger of substantial harm to another)

2. Cannot be threats to losing of job iv. Examples/Cases

1. Big Town Nursing Home, Inc. v. Newman (1970) a. P entered nursing home voluntarily, tried to leave and was

restrainedb. H: P was restrained in his attempts to leave the nursing

home.c. R: FI is the direct restraint of one person of the physical

liberty of another w/o adequate legal justification.2. Parvi v. City of Kingston (1977)

a. Police took Parvi to abandoned golf course, wandered to NYS Thruway and was hit by a car

b. H: Awareness and recollection of imprisonment are two different things; showing that P had no recollection did not prove he had no awareness at the time.

c. R: FI occurs if there is an awareness of the restraint at the time of the imprisonment, or if actual harm is caused.

3. Hardy v. LaBelle’s Distributing Co. (1983) a. Employee voluntarily brought into office and questioned,

says she remained b/c of threats.

b. H: P was never actually restrained by acts or words that one fears to disregard, entered and remained in room willingly.

c. R: Direct restraint is not necessarily physical restraint; words alone are sufficient in some circumstances where one fears to disregard them.

i. Restraint must be against a legal right4. Enright v. Groves (1977)

a. Officer arrested woman for not presenting license in regards to a leash law violation.

b. H: There were no grounds to arrest Enright, since there was no law requiring her to present her license in such a circumstance.

c. R: FI occurs when one is taken into custody by one who claims but does not actually have proper legal authority.

5. Whittaker v. Sandford (1912) a. P member of religious sect desiring to leave takes D’s yacht

to US, D refuses to give her a boat to get to shoreb. H: Not providing a boat is sufficient to qualify as direct

restraint where P has a person right to go on shore.c. R: Refusal to provide a reasonable means of exit is

sufficient for direct restraint.i. Failure to provide exit constitutes restraint when

there is a duty.ii. No duty to release a passenger until plane reaches

arrival destination absent exigent circumstances. (Abourezk v. NYA)

4. INTENTIONAL TORT TO THE PERSON— IIED i. General Rule

1. I or reckless infliction, by extreme and outrageous conduct, of severe emotional or mental distress, even in the absence of physical harm.

ii. Elements1. Intent to cause SED or recklessness 2. Extreme and outrageous conduct (Determined based on knowledge

of ’s condition)π3. Causal connection between conduct and distress4. Severe emotional distress

iii. Examples/Cases1. State Rubbish Collectors Ass’n v. Siliznoff (1952)

a. Rubbish collectors made threats of future contact, no imminent ones.

b. H: A cause of action exists for intentionally subjecting one to mental suffering.

c. R: Physical harm is not required for liability to exist, infliction of SED is sufficient.

2. Slocum v. Food fair Stores of Florida (1958) a. Slocum, supermarket customer was insulted by D’s

employee, “you stink,” and she suffered heart distress.

b. H: The ED in question was not sufficiently severe, therefore no liability.

c. R: Conduct must be beyond the bounds of any socially tolerable conduct, normal obnoxiousness does not qualify- moderation against floodgates

3. Harris v. Jones (1977) a. P claimed that D’s constant ridicule of his stuttering cause

serve IIEDb. H: Hard to determine if conduct was that serve to cause

SED or exacerbate shuttering c. R: P must suffer severely disabling emotional response to

D’s conduct in order to recover damages for IIED, mere insults, indignities and threats do not give rise to level of extreme/outrages conduct required.

4. Taylor v. Vallenlunga (1959) a. P’s father was beaten, P watched and sued beater b. H: No evidence that D was aware P was presentc. R: Liability for SED caused by other crimes if the criminal

is aware of the presence of the party suffering SED and has the intent to inflict that distress.

i. Hasnas: Cuts off liability for massive events and other indirect causes (T.V.)

5. INTENTIONAL TORT TO PROPERTY— TRESPASS TO LAND i. General Rule

1. Trespass to land is the intentional interference with the exclusive possession of land

ii. Elements1. I to enter2. Entry 3. Lack of Consent

iii. Notes1. Interference must be tangible (not sound or light)2. Even if interference is helpful, P may still claim trespass (i.e.

chasing a bear off).3. If D enters under false premises, or the entrant moves beyond the

scope of the invitation by using the invitation for something other than what is specified by the ∏, their actions constitute trespass.

iv. Examples/Cases1. Dougherty v Stepp (1835)

a. Stepp entered Dougherty’s land w/o permission and surveyed it.

b. R: Every unauthorized entry onto the land of another is a trespass regardless of physical injury to land or not.

i. Mistake as to consequences does not negate intent (Ranson v. Kilner)

2. Herrin v. Sutherland (1925) a. Sutherland while standing on the land of a third party

discharge a shotgun over Herrin’s property

b. H: Can be trespass to land over , or cause an object to pass over, the land of another, even if there has been no touching of soil.

c. R: An action for trespass protects one’s interest in exclusive possession of land, including the space above and below that the owner can effectively use.

3. Rogers v. Board of Road Com’rs for Kent County (1947) a. The city failed to remove a post from the P’s land and P’s

husband struck it when mowing and died.b. R: A trespass may be committed by the continued presence

of a structure on another’s land after consent or privilege has been terminated

i. Can extend to people i.e. overstaying welcome6. INTENTIONAL TORT TO PROPERTY— TRESPASS TO CHATTELS

i. General Rule1. A trespass to chattels (personal possession) may be committed by

intentionally a. Dispossessing another of a chattel, orb. Using or intermeddling with a chattel in the possession of

another.

II. PRIVILEGESConsent, self-defense, defense of others, defense of property, recovery of property, necessity, and justification

A. CONSENT- if there is consent there is no legally protected interest invaded1. Actual consent2. Manifestation of consent 3. Unconscious and faced with life-threatening condition plus no manifestation of lack

of consent.4. What is the scope of the consent defense?

i. What the P actually knows or expected to be included w/in the scope of his or her consent (subjective definition)

ii. What a reasonable person would believe to be encompassed w/in the scope of the consent. (Objective definition)

5. Consent is negated by i. Incompetency ii. Deceit iii. Duress

6. Exceptionsi. Exceeding scope – i.e. left hip surgery instead of right hipii. Sports consent- exceeded by intentional contact which violates rule of game

designed to protect players safety OR iii. Consent obtained by silence- if silence is outward manifestation of will to

consent, ok 7. Examples/Cases

i. O’Brien v. Cunard S.S Co (1891) 1. O’Brien sued for assault; was given a vaccination, had an adverse

reaction, claimed she never gave consent

CHAPTER 3: PRIVILEGES (DEFENSES TO INTENTIONAL TORTS)

2. H: Consent was inferred from P’s actions; she stood in line, raised her arm, did not reject the vaccination, and took the ticket, which she used at quarantine.

3. R: Consent is: Actual consent; or manifestation of consent to the ordinary person

4. Silence in the face of unreasonable demand does not constitute consent

ii. Hackbart v. Cincinnati Bengals, Inc. (1979) 1. D Clark hit P Hackbart in the back of the head during NFL game

after the whistle2. H: Though players consent to be hit, in an inherently violent

situation, it is possible for one to go beyond its customs and be liable for injuries.

3. R: When you engage in an activity, you consent to anything a reasonable person would consider part of that activity.

iii. Mohr v. Williams (1905) 1. D ear specialist was operating on right ear, found no problem there

but found another issue and operated on the left ear successfully. P brought action for battery.

2. H: Specific consent to left ear surgery was necessary and not given; battery occurred.

3. R: Consent will be read narrowly iv. De May v. Roberts (1881)

1. Dr. De May brought friend Scattergood to held deliver baby; was present for birth and held P’s hand.

2. H: Consent was given under false pretenses and therefore was invalid.

3. R: Consent is undermined by deception (material). Also duress and incompetency.

B. Self-Defense -Legally protected interest has been invaded; but it will be allowed by law if: 1. Reasonable Belief (that force is necessary to protect himself against battery)2. Amount of Force (limited to what is reasonable for protection against a threatened

battery)1. The privilege of self-defense is carried over where another party is

injured in defense. D is not liable in the absence of some negligence. Pg. 107 “So far as “transferred intent”…

C. Defense of Others (Third Party) 1. Same as self- defense Except, must be correct, cannot “reasonably perceive

i. Mistake as to necessity to take action is privileged only when that person would be privileged to defend himself

1. Ex. A and B in alteration, C steps in but is mistaken as to the level of force used, if B would be privileged to defend self than C would be justified

D. Defense of Property -a person may use reasonable force to defend her property, both land and chattels

1. Examples/Casesi. Katko v. Briney (1971)

1. Katko broke into Briney’s unoccupied property injured by shotgun spring trip; no signs or warnings; D claims defense of property

2. H: No privilege to use more than reasonable force3. R: Value of human life exceeds owner’s interest in protecting land

(Restatement 85), it is impermissible to use deadly force to defend property, unless the intrusion threatens death (79).

E. Recovery of Property 1. Hodgeden v. Hubbard (1864)

i. H: D was responding to P’s force, was exercising privilege to reclaim property, no liability for D.

ii. R: Recovery of property: (1) Must have a right to recover property; (2) Must be immediate-fresh pursuit; (3) Reasonable force

2. Bonkowski v. Arlan’s Department Store (1968) i. H: There is a right to reasonable measures to recover stolen property, jury

to determine reasonablenessii. R: Merchant has the right reasonably to detain a person reasonably

suspected of shoplifting.1. Policy: Avoid dilemma b/twn losing property and filing suit

F. Necessity 1. Privilege of public necessity: 1) Harm to public; 2) No reasonable

alternative/necessary –individuals who act in a way that is necessary to protect the public is not liable for the damages (they have an absolute privilege)

2. Examples/Casesi. Surocco v. Geary (1853)

1. D blew up P house in an attempt to break a fire. P suing for missed opportunity to recover property (trespass to chattel)

2. H: Alcade cannot be held personally liable for tearing down P’s home to save other homes

3. R: In cases of public necessity, absolute privilege exists w/o liability

ii. Vincent v. Lake Erie Transp. Co. (1910) 1. Storm arose while Lake Erie was unloading cargo, tied ship to P’s

dock to save ship; as a result dock was damaged during storm. 2. H: D chose to protect ship by risking dock, therefore D acted legally

but must still pay damages to P3. R: Private necessity allows privilege to use another’s property, but

there is an obligation to compensate for damage done. Damages but no tort.

a. Conditional privilege.G. Justification -“When you have a situation that doesn’t meet anything but if there was liability

the law would not be serving it’s purpose can claim justification.”1. Examples/Cases

i. Sindle v. New York City Transit Authority (1973) 1. Students damaging school bus, bus driver refuses to make stops

and takes directly to police station. Suit for FI2. R: Justification is a vague concept that allows for justice to be done

when the other rules do not achieve that goal. Works for really hard cases.

OVERARCHING THEORETICAL EXPLANATION FOR TORTS Deter harmful behaviors; see battery & assault

o This does not explain the difference between private and public necessity Corrective Justice Hansas Order & Justice

o Conflicts need to be resolved; therefore put liability on those w/o subjecting people to violenceo Intent defined as P or K; b/c that is the kind of action likely to give rise to a violent responseo Battery defined as H/O because light tap in the past was more likely to give rise to violent

attacko Assault . Trying to harm someone is just as likely to give rise to violent responseo False Imprisonment . People trying to pay rent but prevented so property could be stolen.

Consent is a privilege b/c it is not likely to elicit violent response.

POLICY ARGUMENT FOR INTENTIONAL TORTS

Self-Defense. Violent response likely to decease, b/c if I attack someone in retaliation, they are likely to fight back.

Defense of Property/Recovery- People encouraged to protect themselves but not enough to cause harm, so violence is discouraged here. Some fact situations fall squarely within the confines of a tort, such as battery,

assault, or false imprisonment, others do not; in those situations they may be subject to a new exception.

III. Negligence –Governs intentional tortsA. Negligence

1. Negligence occurs when D’s conduct imposes an unreasonable risk upon another, which results in injury to that other.

2. Elementsi. Duty: a legal duty requiring D to conduct himself according to a certain

standard. ii. Breach: A failure by D to conform his conduct to this standard. iii. Causation: a sufficiently close causal link between D’s negligence and the

harm suffered. 1. Cause-in-Fact: defendant’s conduct directly caused the damages

(“BUT FOR”)2. Proximate Cause: if there is cause-in-fact, how far down the

causation chain should we have liability?iv. Actual Damage: P must suffer actual damages.

3. Reasonable Person Standard: Duty to exercise care sufficient to avoid all reasonably foreseeable harm.

i. Corrective Justice: Duty to act with the degree of care a reasonable person would exercise in the circumstances

1. Rectify a wrong done, restore moral balance between the parties2. Individual Justice3. Equity based4. The reasonable person standard (no Hand standard)

ii. Optimal Deterrence: If the purpose of tort law is the maximization of social wealth and the reasonable person is held to be the efficient person, he/she would avoid reasonably foreseeable risks- can be measured where B<PL.

1. Impose the cost of injury on the least cost avoider

Duty Normative

Breach Empirical

Causation

Cause in Fact Empirical

Proximate Cause Normative

Damage Empirical

Chapter 4: Negligence

2. Collective focus3. Efficiency based (L&E- cost effective safety regulations)4. The greatest good for the greatest number-utilitarian

a. Foreseeability Requirement: A D is not negligent unless he knew or reasonably should have known that his actions posed a risk of harm and a reasonable person would have taken reasonable precautions that the D did not take in order to avoid that risk.

4. Negligence Formula: B<PL R. 292 Utility of Conduct R. 293 Magnitude of Risk

Social values attached by law Social values jeopardized

Extent of chance that his interest will be advance

Chance that interest will be invaded

Alternative less dangerous course of conduct?

# of persons whose interests are likely to be invaded if risk takes effect

5. Examples/Casesi. Lubitz v. Wells (1955)

1. D left a golf club lying around, P hurt by D’s son who swung it.2. R: The burden of keeping the backyard free of all items is high

while the probability of inflicting harm is low (no reasonable person can provide that time of care)

ii. Blyth v. Birmingham Waterworks Co. (1856) 1. D installed water mains, fireplug burst during intense frost, flooded

P’s home2. H: D was obligated to protect only against expected frosts, not

unprecedented/extreme conditions, and was not liable for harm.3. R: Negligence is the failure to do what a reasonable person would

do when acting prudently, and no more.a. There is no duty to prevent all preventable harmb. There is no duty to exercise extraordinary amount of care

to protect fellow citizens from harmiii. Chicago, B. Q.R. Co. v. Krayenbuhl (1902)

1. Child got caught in RR turntable, severed foot. Turntable was not locked.

2. H: D could have cheaply and easily locked the turntable sufficient to prevent its use, liability.

3. R: The duty to take reasonably foreseeable precautions that do not undermine social utility.

a. R.R. provide an important social utility, there is an inherent degree of danger to be accepted as a tradeoff.

iv. Davison v. Snohomish Country (1928) 1. Car skids going around curve on bridge, breaks through railing and

falls.2. H: It would be too expensive to strengthen rails for cars before

allowing any cars on roads; city acted reasonably, no liability.3. R: There is no requirement to take unreasonably expensive

precautionsv. United States v. Carroll Towing Co. (1947)

1. Boat crash leading to loss of flour and boat, barge was away from post.

2. H: Was fair to require that a barge on board b/c the burden is less than the PL.

3. R: Learned Hand’s negligence formula.

a. Negligence if B<PLvi. Golf Refining Co. v. Williams (1938)

1. P was injured when a can of gasoline exploded when P was unscrewing a cap and struck a spark

2. H: Though unlikely, D had a reason to foresee harm as a likelihood and should have taken steps to prevent it.

3. R: Reasonable person must take steps to prevent all foreseeable harm- some real likelihood of damage that would induce a reasonably prudent person to take precautions.

B. Negligence- Standard of Care (Duty) 1. Reasonable Prudent Person- Reasonable person standard is objective and therefore

generally does not factor lower levels of intelligence; however there is an exception to the reasonable person for physical disabilities and children participating in childish activities.

Corrective Justice Optimal DeterrenceUnforeseeable No wrong B>PL – Burden is massiveLow Intelligence

Is there a wrong? Difficult to say this is the casePractical Requirement?This is not PERFECT corrective justice; law cannot accommodate this level of fairness.

B >, but invisible – Δs can’t tell who this coversIndividual knows he is below average intelligence, it is on him to act accordinglyMeasurement costs are too great

Common Knowledge

Wrong – You have a duty to educate yourself enough to act in a safe manner

B<PL – We can’t protect ourselves from someone who doesn’t know what everyone knows

Emergency No Wrong – the standard changes to account for emergency

B>PL – Burden of taking precautions in emergency is very high

Physical Disability

No Wrong – Not a wrong if fail to do something impossible but must be reasonable

B > on Δ, but visible – I can know to be careful hereMeasurement costs <

Children No wrong – can’t appreciate conduct is risky

B >, visible – know to be cautiousMeasurement costs <

Insanity Is there a wrong? – This is unclear herePractical requirement? – May be hard to measure insanityCan’t lower standard – what is a reasonable insane person?

B >, but invisible – I don’t know to be carefulMeasurement costs > – a psychotic is impossible to distinguish

Professionals Wrong – Must act with the level of expertise and training that one holds self out to the public as having

B <, visible – Professional has much better tools to act properly and avoid risk measurement costs < - professional is easily identified – people take less precautions here

1. Examples/Casesi. Vaughan v. Menlove (1827)

1. Hay rick near edge of land, D warned but chose to risk it, the fire ignited and spread to P’s land.

2. H: D did not act as a reasonably person would act, and therefore was negligent.

3. R: The degree of care that a reasonably prudent person would use is an objective standard.

a. D’s intelligence/best judgment is irrelevant.ii. Delair v. McAdoo (1936)

1. D’s tire was bald and blew out causing an accident.2. H: D should have been aware of condition of tires and was

negligent in their maintenance.3. R: There is a duty to know when the flaws or faults or dangerous

instrumentalities would be disclosed by a reasonable inspection.iii. Trimarco v. Klein (1982)

1. P injured when shower door made of regular glass instead of safety glass shatters

2. H: The appropriate standard to apply should be decided by a jury.3. R: Taking customary precautions is not the same as taking

precautions; it is a guideline but does not supersede reasonably prudent person standard.

a. Compliance tends to prove reasonableness; noncompliance tends to prove negligence.

b. Even if it is not an industry-wide custom “there are precautions so imperative that even their universal disregard will not excuse their omission. T.J. Hooper

iv. Cordas v. Peerless Transportation Co. (1941) 1. Chauffeur threatened with having brains blown out, jumps out of

car, car crashes injures P.2. H: D was acting in an emergency to protect his own life, cannot be

held liable.3. R: A normally negligent act performed by a person facing an

emergency (duress or threat of harm) not of his own making may not be negligent.

v. Roberts v. State of Louisiana (1981) 1. Blind man without cane bumps into and injures old man2. H: D was acting prudently for the circumstances; no cane is not

negligence per se, no liability.3. R: A blind person must take the same precautions as a reasonably

prudent blind person.a. Could also cut the other way; whether he should have

taken different or additional precautions to those expected of a reasonable person w/o physical infirmity.

b. The burden on blind person to be held to the exact same standard is too high; burden of seeing people to exercise caution is lower.

vi. Robinson v. Lindsay (1979) 1. Kids on snowmobile, one kid get thumb severed when caught in

towrope.2. H: Snowmobile driving is an adult activity and therefore an adult

standard.3. R: Children participating in adult activities are held to an adult

standard; otherwise not.a. Policy: The potential victims are not the LCA; they have no

way to anticipate which driver of pilot is a child and have no realistic way to exercise the additional self-protective care that is required when one encounters children engaged in children’s activities

vii. Breunig c. American Family Ins. Co. (1970) 1. Woman hallucinates she can fly, hits truck head on.2. H: There was evidence that D was not suffering an isolated incident

of insanity, liable.

3. Rationale: (1) Where one of two innocent persons must suffer a loss it should be borne by the one who occasioned it; (2) to induce caretakers to restrain; (3) false claims of insanity to avoid liability.

4. R: Insanity is no defense against negligence unless it: (1) Makes the individual unable to appreciate the nature of their duty; and. (2) Occurs suddenly w/o warning.

a. Emergency doctrine: when danger arises w/o warning, circumstance may be taken into account; when there was warning of the danger, the fact that there was opportunity for deliberation must be considered.

viii. Heath v. Swift Wings, Inc. 1. Plan crashes, question over pilot error.2. H: P should be held to an obj. standard.3. R: The professional standard is an objective standard that a

competent professional, acting prudently, would meet.B. Negligence- Violation of Statue (Negligence per se)-Most courts apply “negligence per se” that

says a violation of a statute is “negligence per se” and conclusively establishes that D breached a duty to P

1. Whether P belongs to the class that the statute was intended to protect2. Whether the P injury is of a type that the statute was designed to protect

(Stachneiwicz)i. The unexcused violation of a statute designed to promote safety is

negligence “per se”- that is negligence as a matter of law (Martin v. Herzog)ii. Reasonable person is irrelevant (Osborne)iii. Establishes breach of duty, must still show causationiv. Turns on whether a party may be excused (Necessity, incapacity,

emergency)v. Reasonable people do not violate statutes: juries do not decide whether or

not violation was negligencevi. Defense of Limited Statutory Purpose

1. Look to legislative history2. If violation does not increase risk of harm the courts are unlikely to

hold that the P is an intended beneficiary3. Examples/Cases

i. Osborne v. McMasters (1889) 1. Pharmacist failed to label poison in violation of state law, woman

drank it and died2. H: Statute supersedes the common law (under which there is no

duty to label)3. R: When a duty off care is established by statute the common law

duty to act with reasonable care is superseded so that violation of the statute constitutes evidence of negligence per se.

ii. Stachniewicz v. Mar-Cam Corp. (1971) 1. Bar fight, bar was serving drunk patrons who started the fight with

P.2. H: Failure to regulate boisterous conduct constitutes negligence

per se3. R: A violation of a statute or regulation constitutes negligence as a

matter of law when the violation results in injury to a member of the class of persons intended to be protected by the legislation

iii. Ney v. Yellow Cab Co. (1954) 1. Taxi left unattended with key in ignition in violation of state

statute, thief stole it and crashed into Ney, suing the cab co.2. Holding: The law in question is a safety statute; no duty to foresee

theft

3. R: In determining whether the violation of a statute is negligence per se, the court determines the legislative purpose of the statute

iv. Perry v. S.N and S.N (1998) 1. Parents of abused children sue D, who witness but did not report

abuse.2. Holding: No negligence per se, even though protected class and

type of harm are the same, finding this statute gives rise to NPS would be inconsistent with tort law.

3. R: The court has the discretion to determine if negligence per se is appropriate. Considers: Applicability of language of the statute, liability without fault; disproportionately high liability; indirect relationship between conduct and harm; liability inconsistent with the purpose of tort law (not to punish).

v. Martin v. Herzong (1920) 1. P driving a buggy hit by a car, D was over centerline, and P had no

lights on in violation of statute.2. H: No lights in violation of law is contributory negligence per se; no

liability for defendant.3. R: The court not the jury determines if a statute provides a

standard of care and how to apply.vi. Zeni v. Anderson (1976)

1. Lady gets hit by a car while walking on street, when statute requires that she walk on sidewalk

2. H: it was during a snowstorm and the sidewalk was more dangerous; no liability for P

3. R: Statutory violation was excused, as long as the statute itself does not show that no excuses are permitted.

a. D in emergency not of his own making; b. Compliance would have involved a greater risk of harm;c. D made a reasonable and diligent attempt to comply

C. Negligence- Proof of Negligence (Breach): Circumstantial Evidence 1. Burden of Proof: in negligence cases, P bears the “burden of proof.” P must prove

each element by a “preponderance of the evidence.” 2. Function of Judge and Jury

i. Judge decides law: judge decides all questions of law. ii. Jury decides facts: jury is the fact finder. Jury typically decides

“reasonable person” standard. 3. Kinds of Evidence

i. Direct Evidence: evidence that comes from personal knowledge or observation

ii. Circumstantial Evidence: proof that requires drawing an inference from other facts

1. What is the proposition to be established?2. What evidence is present?3. Can the evidence, viewed in its most favorable light lead a

reasonable juror to conclude that the proposition is more likely to be true than false?

4. Constructive notice : should have known but didn’t but you will be treated as if you knew.

5. Cases/examplesi. Goddard v. Boston & Maine R.R. Co. (1901)

1. P slipped on a banana peel getting off train, no other evidence.2. H: No way to show that banana peel had not been dropped

immediately before P tripped. Opt. Deterrence- Too burdensome for the D to provide 100% protection

3. Rule: If negligence is only one of several possible explanations such evidence will not be submitted.

ii. Anjou v. Boston Elevated Railway Co. (1911) 1. P slipped on old dirty, trampled banana peel.2. H: There is evidence that the platform was not properly cleaned

and maintained, RR liable.3. R: Circumstantial evidence may substantially prove negligence

when the evidence establishes a reasonable chance that the actor was negligence

iii. Joye v. Great Atlantic and Pacific Tea Co. (1968) 1. P slipped on banana in supermarket, floor swept regularly, was no

more than 35 minutes since.2. H: Cannot tell how long the banana may have been on the floor, P

has not established constructive notice.3. R: One may be liable for negligence based on circumstantial

evidence only if one had constructive notice of a dangerous condition.

iv. Ortega v. Kmart Corp. (2001) 1. P slipped on puddle of milk2. H: It remains a question of fact for the jury whether, under all the

circumstances, the defective condition existed long enough so that it would have been discovered and remedied by an owner in the exercise of reasonable care.

3. R: If P can show an inspection was not made within a particular period of time prior to an accident, they may raise an inference the condition did exist long enough for the owner to have discovered it.

v. Jasko v. F.W. Woolworth Co. (1972) 1. P slipped on a piece of pizza sold on waxed paper2. H: D’s business created extra risk that created notice in and of

itself; liability3. R: When operating methods are such that dangerous conditions are

continuous or easily foreseeable the owner is negligent even without actual notice of the particular condition; the business has created a burden constantly to clean.

a. Rationale: If you engage in risky behavior, constant caution is reasonable; question of caution is one for the jury.

vi. H.E. Butt Groc. Co. v. Resendez (1999) 1. P slips and falls on grapes at sampling display; precautions

surrounding display2. R: There must be actual evidence to show a lack of reasonable care;

just the existence of a situation from which accidents can be foreseen is not sufficient.

D. Negligence: Proof of Negligence: Res Ipsa Loquitur -“the thing speaks for itself”1. Doctrine of res ipsa loquitur allows P to get into court with little evidence

i. The mere fact that an accident or an injury has occurred usually is not evidence of negligence on the part of anyone; RIL allows the P to prove negligence sufficiently to get to the jury in appropriate cases

ii. RIL is a type of circumstantial evidence; jury may reasonably infer both negligence and causation.

iii. Rationale: Avoids injustice by preventing responsible D from escaping liability b/c P has no direct evidence; allows the jury to explain the unexplained; smokes out D with superior knowledge of the event.

iv. Judge decides whether to instruct the jury as to Res Ipsa as a matter of law, then jury can decide whether to draw the same inference.

2. Circumstantial Evidence

i. (1) Event causing P’s injury does not ordinarily occur in the absence of negligence

ii. (2) Instrumentality causing injury must be within the exclusive control of the D (McDougald)

1. Injury must not be due to any voluntary action or contribution by the P

3. Examples/Casesi. Byrne v. Boadle (1863)

1. Barrel of flour falls out of flour co. onto P, no other evidence.2. R: RIL- in cases where an accident would not happen without

negligence, the harm itself could be sufficient evidence thereof.ii. McDougald v. Perry (1998)

1. Spare tire fell off back of truck, hit P’s windshield.2. R: RIL requires (1) Instrumentality be in exclusive control of the D;

(2) Harm would not occur without negligence; then the harm itself is sufficient to get to a jury; P wins.

iii. Larson v. St. Francis Hotel (1948) 1. Furniture falls out of hotel window, injuring P2. R: RIL applies only where the instrumentality of the injury is

shown to be under the exclusive control of the D.a. Third party intervention (Furniture in part control of

guest). b. If RIL applies, the mere possibility that another party

might be involved is for the jury to decideiv. Ybarra v. Spangard (1944)

1. P had appendicitis and woke up unable to move his arm. 2. R: In a narrow exception RIL can apply to all who had any control

over the instrumentalities.a. Burden of proof shifted b/c the P is unconscious and it

would be impossible for him to ever bring a claimv. Sullivan v. Crabtree (1953)

1. Truck drives off road and overturns, kills P, jury rules for D2. H: RIL does not prove liability, just allows evidence to go to jury,

jury can find no negligence.3. R: RIL gets you to the jury, but it can have various effects at trial,

including:a. Inference of negligence which the jury is free to draw or

notb. Presumption of negligence that must be rebuttedc. Presumption and shifts burden of proof so that D must

rebut with preponderance

I. Cause in fact A. “BUT FOR” Test: majority of the time, P shows “cause in fact” by showing that D’s conduct

was a “but for” cause of P’s injuries – “but for” the defendant’s negligence, plaintiff would not have been injured

B. SUBSTANTIAL FACTOR: it is not sufficient for there to be “but for” causation to prove “cause in fact”.

1. Cases/Examplei. Perkins v. Texas and New Orleans R. Co. (1962)

1) Perkins passenger in car crossing RR track against warning signals struck by speeding train.

Chapter 5: Cause in fact

2) H: Collision would have occurred without speeding; therefore breach was not cause in fact.

3) R: If harm would have occurred even if D were not negligent, then negligence is not a substantial factor and therefore not the CIF.

II. Proof of Causation: Evidentiary Standardii. Reynolds v. Texas & Pac. Ry. Co. (1885)- increased risk

1) Fat lady fell down stairs at train station without lights or railing2) H: Fat lady fell down stairs at train station without lights or

railing3) R: Rule for D: The possibility of occurrence without negligence is

insufficient to break causal connectioniii. Gentry v. Douglas Hereford Ranch, Inc. (1998) -Speculation as to cause

1) Bacon holding a gun, slipped on steps, accidentally shot woman, evidence that steps are poorly maintained

2) H: Without specific evidence that Bacon slipped because of the condition of the steps, no CIF

3) R: P has burden of showing that the negligence did in fact cause the harm; Proof that it is possible that P’s injury would not have occurred in the absence of negligence does not establish BFC.

iv. Kramer Service, Inc. v. Wilkins (1939 )- Possibility not enough; probability required

1) Glass falls from above a doorway and cuts P’s forehead, P develops skin cancer at the spot

2) H: It is not enough that the negligence of one person and injury to another coexisted but the injury must have been caused by the negligence.

3) R: Must be sufficient evidence to establish CIF; showing that something is possible is not enough.

A. Exceptions to “But For”1. Increased Likelihood of Harm from Another Source: If P fails to protect D from

harm from another source AND it increases the likelihood of that harm. [Herskovits v. Group Health Cooperative: P had cancer. Doctors misdiagnosed it. His chance of survival was <50%, but chances were reduced 14%.]

i. Herskovits v. Group Health Cooperative of Puget Sound (1983) 1) R: Rule: Causation can be found even if not a substantial factor if:

D (1) increases risk of harm to (2) Threat from an outside source (3) D’s negligence is a failure to protect when obligated to do so

2. Concurrent Causes: sometimes D’s conduct can meet a “cause in fact” even though it is not a “but for” cause. This happens when two events concur to cause harm, and either one would have been sufficient to cause substantially the same harm without the other.

i. Hill v. Edmonds (1966)1) P was passenger in a negligently driven car that hit D’s unlit

truck which was parked in middle of the road, no lights2) R: When multiple tortfeasors combine to cause worse damage

than either would alone, each is liable for the total resultii. Anderson v. Minneapolis, St. P. & S. St. M. Ry. Co (1920)

1) A fire caused by D’s negligence combined with a second fire and destroyed P’s property

2) Rule: A tortfeasor may be held liable for injury resulting from combined negligence even though one’s negligence could have caused an injury by itself, substantial factor test

III. Problems in Determining which Party Caused the Harm

A. If P can show that each of two or more defendants was at fault, but only one could have caused the injury, the burden shifts to defendants to show that the other caused the harm.

1. Examples/Casesi. Summers v. Tice (1948)

1) A bullet struck P when two D negligently fired their rifles at the same time

2) H: Each D was probably as not the “but for” cause of P’s harm; impose alternative liability

3) R: Two negligent parties who act in concert are jointly liable for an injury only one of them could have committed unless they are able to prove which of them caused the injury.

ii. Sindell v. Abbott Laboratories (1980) 1) 200 manufacturers make drug DES. P shows her mother took the

drug while pregnant and it caused her to develop cancer.2) H: it was up to D’s to prove they could not have produced the

particular dose taken by P’s mother or they would pay the percentage of their market share at the time

3) R: Market Share Liability a. Where P brings D representing a substantial share of the

market each is liable for an injury to the proportion of the judgment represented by its share of that market unless it demonstrates that it could not have made the injury causing product

i. Substantial share of the market at the time it was produced

ii. Impossible/unduly burdensome for P to identify the actual party who did produce the harm-causing drug

iii. Clear that the injury was due to the product

I. Proximate Cause A. Normative Element (Jury Question)

1. Corrective Justice - Is the harm done by this party attributable to the harm suffered?2. Optimal Deterrence - Place burden of avoiding harm on LCA; impose liability where

it would incentivize the LCA (least cost avoider) i. Foreseeability- The D’s negligence is a PC of the P’s harm if causing that harm

was a foreseeable result of acting as the D didB. Unforeseeable Consequences

i. Atlantic Coast Line R. Co. v. Daniels (1911) 1. R: When CIF is established, courts must determine if the wrongful

act was also the proximate cause before allowing recoveryii. Ryan v. New York Central R.R. Co. (1866)

1. RR Co. negligently set fire to own shed, adjacent house caught fire too

2. R: A D is only liable for immediate results and not liable for remote damages that do not necessarily follow from the occurrence of an accident, but rather from accidental and varying circumstances.

a. Corrective Justice: R.R. liability for all damage would no longer be the righting of wrongs but providing insurance

Chapter 6: Proximate or Legal Cause

b. Optimal Deterrence: Liability for the first few provides an incentive for the R.R to avoid fires and homeowners to self-insure

2. Unforeseeable extent of harm DOES NOT server PC i. Bartolone v. Jeckovich (1984) – Egg Shell Doctrine

1. P mild injuries from car accident, then massive psych breakdown stemming from pre-existing condition

2. R: Unforeseeable extent of harm does not cut off liability.a. There must first be some foreseeable injury that is

natural/probableb. Could lead to over-deterrence and under deterrence

3. Unforeseeable type of Harm (servers PC) or similarly Foreseeable type of Harm does not server PC

i. In re Arbitration Between Polemis and Furness, Withy & Co., Ltd. (1921) 1. OVERRULED BY WAGON MOUND 1

a. Plank fell into hold in which petrol was stowed causing explosion that destroyed entire vessel.

b. R: Unforeseeable type of damage does not sever liabilityii. Wagon Mound 1

1. Furnace oil spilled onto water from ship, caused minor damage then was ignited and burned docks.

2. R: Unforeseeable type of harm severs PCa. D has no duty to prevent harm of a type he couldn’t predict

iii. Wagon Mound 2 1. Holding: Ship’s engineer should have foreseen harm and taken

steps to avoid it, therefore PC exists2. Rule: Test for foreseeable type of harm is similar to the test of

whether there is a duty4. Unforeseeable Manner of Harm (does not sever PC)-i.e. Rat catches fire runs and

lights up building 5. Unforeseeable Plaintiff servers PC

i. Palsgraf b. Long Island R.R Co. (1928) 1. Passenger tried to jump onto train, attendant pushed him to help,

package fell, contained fireworks, knocked a scale onto P at the end of the platform

2. R: Unforeseeable P servers PC C. Intervening/Superseding – in order for an intervening cause to server PC it must be a

superseding intervening cause. 1. Corrective Justice - Duty only exists to protect society from harm that you expect

your actions to risk2. Optimal Deterrence - Too expensive to protect against unforeseeable events

i. Yun v. Ford Motor Co. (1994) 1. Old man gets tire on highway 2. Rule: An intervening superseding cause must take place between

the negligence and the damage and must be the CIF of the injuries. ii. Derdiarian v. Felix Contracting Corp. (1980)

1. P was hit by a negligently driven car. The driver had lost consciousness from not having taken his medication.

2. H: The type of harm presented by the intervening cause was the same hazard associated with the D’s negligence of failing to safeguard the site; the injuries suffered would constitute unforeseeable manner of harm.

3. R: Where the risk of the intervening act occurring is the very same risk, which renders the actor negligent it is not a superseding cause relieving the actor of liability.

iii. Watson v. Kentucky (1910) 1. A R.R. negligently spewed gasoline onto a street but a third party

ignited the gasoline by throwing a match, injuring the P.2. R: Intentional intervention may relieve the defendant from liability

because it is less likely to be foreseeable and may constitute a superseding cause.

3. Rationale: You should not be responsible for the criminal acts of other people.

iv. Fuller v. Preis (1974) 1. Lewis suffered traumatic damage to his brain after a car accident

with the D. Seven months later he committed suicide.2. Rule: If the first harm is foreseeable, liability for any subsequent

harm (reiteration of eggshell-skull rule)v. Wagner v. Int’l Ry. Co.

1. Cousin fell into water, P went after cousin and injured in process. 2. R: Wrong to victim extends to reasonable rescuer; the rescue does

not sever PC.3. Rationale: If you negligently expose someone to danger, it is

foreseeable that others will try to rescue him; it is an intentional act, but does not sever PC.

I. Failure to ActA. Advance Duty/ Limited Duty

1. Cases/Examplesi. Hegel v. Langsam (1971)

1) P turned into druggie criminal whore at college, parents sued univ. for failure to supervise

2) R: There is no duty to protect others from harm, which we are not causal agents. No duty to prevent all reasonably foreseeable type of harm a. Corrective Justice: We don’t harm other people by respecting their

autonomy and free willb. Optimal Deterrence: Unless you are the LCA (least cost avoider);

but how do you determine this? (Exceptions for bright-line cases)ii. L.S. Ayres & Co. v. Hicks

1) Hicks fell and caught his fingers in the D’s escalator.2) H: Liability for aggravation.3) R: There is a duty to aid when the P is an invitee and the initial

harm is caused by an instrumentality under the control of the Da. Corrective Justice: If you don’t take reasonable care to prevent

the injury from being exacerbated by an instrumentality under your control you are wronging them

b. Optimal Deterrence: No duty, unless the person who can effectuate rescue is the LCA; in general people can protect themselves from harm at a lower cost than the cost of rescue

iii. Tarasoff v. Regents1) R: If therapist determines that a patients is a risk to third party, there is

a duty to warn iv. State of Louisiana v. M/V Testbank

1) Rule: No duty to prevent others from suffering purely economic losses a. w/o this rule there would be too much liability

Chapter 8: Duty of Care

v. Linder v. Bidner1) D parents fail to restrain son from assaulting children, knowing his

violent naturea. H: Parents had a duty of reasonable care to prevent definite

harm by childb. R: There is a duty to restrain from definite specific harm when:

1) There is a special relationship to threatening party giving power to exercise control; 2) there is a special relationship providing the D with knowledge as to the necessity and opportunity to exercise control

vi. Daley v. LaCroix1) P sought damages for ED caused as a result of D negligent driving which

led to an explosion on P’s property 2) R: If definite and objective/physical injury caused by ED resulting from

negligence, P can recover even if there was no impactvii. Thing v. La Chusa (1989)

1) Child struck by car, mother was nearby but didn’t see hit, P sued for NIED

2) H: P must have seen the accident to recover, therefore no liability.3) R: P can recover for NIED if (1) Closely related to the victim; (2)

Present at the scene and aware of harm caused to victim; (3) Suffer serious ED beyond expected in a disinterest witness

viii. Endresz v. Friedberg (1969) 1) Car crash involving pregnant woman led to stillbirth2) R: Harm to Unborn Children is NOT recoverable as such, except as

harm to mother (P&S and emotional distress).ix. Procanik v. Cillo

1) Parents of P brought action against Dr. for negligently failing to diagnose P’s mother during pregnancy, thereby depriving her from the choice of aborting

2) H: Can recover for special damages b/c parents would not have incurred extra expenses

3) R: There is no wrongful life claim

I. Contributory NegligenceA. D’s burden to proveB. Does not defend against intentional torts; negligence per se and the statute prohibits it;

when the case-in-chief is reckless/willful & wanton conduct1. Cases/Examples

i. Butterfield v. Forrester 1) The P was thrown from his horse when the horse hit a pole left in the

road by the D. The P was riding very fast.2) R: Contributory negligence on the part of the P, which is the CIF of the

injury, bars recovery.3) Rationale: It is reasonable only to protect reasonable P’s from harm, as

we are the LCA against our own carelessness.

Chapter 12: Defenses to Negligence