Area of Torts Sub Area Rule of Law Sources of Law Exceptions Defenses PolicyBasis of Liability General Principle All of tort law is an exception

Vicarious Liability Employer Liability

Vicarious Liability Liability through Agency

Negligence General Principle

Negligence: Duty Standard of Care

Negligence: Duty Standard of Care

Negligence: Duty Reasonable Person

Negligence: Duty Reasonable Person Restatements 2nd §283 comment c

Negligence: Duty Roles of Judge/Jury

Negligence: Duty Role of Custom

Loss from accident must lie where it falls, and this principle is not affected by the fact that a human being is the instrument of misfortune

Hammontree v. Jenner, CA Appeals, 1971 (p.3)

Respondeat Superior: employers are vicariously liable for torts committed by employees while acting within the scope of their employment (strict liability for the negligence of employees)Three part test (Birkner test):1) employee's conduct must be of the general kind he is hired to perform2) employee's conduct must occur substantially within hours and spatial boundaries of employment3) employee's conduct must be motivated by the purpose of serving employer's interest

Christensen v. Swenson, UT Supreme, 1994 (p.18)

Independent Contractors generally do not impose vicarious liability

Employee was on a frolic of their own

Intentional torts, without employer notice, will only attach liability to the employee

A principal may be liable to a third party for acts of its agent which are within the agent's apparent authority. Apparent authority is authority which a principal knowingly tolerates or permits, or which the principal by its actions or words holds the agent out as possessing

Roessler v. Novak, FL Appeals, 2003 (p.24)

Non-delegable duty: some duties are too important and cannot be delegated

Negligence is the failure in using due care and all proper precautions necessary to the exigency of the case, to avoid hurt to others.

Brown v. Kendall, MA Supreme, 1850 (p.35)

if the injury was unavoidable and the conduct of the defendant free from blame, then there is no liability

The duty of care owed is to adopt all reasonable precautions to minimize the resulting perils.Chance of harm, though remote, may betoken negligence, if needless. Facility of protection may impose a duty to protect

Adams v. Bullock, NY Appeals, 1919 (p.39)Braun v. Buffalo, NY Appeals, 1911 (p.41, n2)AW v. Lancaster School Dist., NE Supreme, 2010 (p.211)

Liability depends upon whether the Burden is less than the Loss multiplied by the Potential for loss (B<L*P) Learned Hand Formula

United States v. Carroll Towing Co, USCA 2nd, 1947 (p.43)

Duty upon common carriers: exercise of the utmost care, so far as human skill and foresight can go (less applicale now, but the industry still informs the type of duty owed; this is more of a duty in fact, while the common carrier rule was a duty in law)

Negligence Standard: Reasonable care under the circumstances

Bethel v. NYC Transit Auth, NY Appeals, 1998 (p.49)Andrews v. United Airlines, USCA 9th, 1994 (p.65)

Mental disability is no defense (Vaughan, p.55n7)Physical disability is only a defense if the conduct in question was beyond the defendant's control (Roberts, p.55n8)

The reasonable person standard provides sufficient flexibility and leeway to permit due allowance to be made for all of the particular circumstances of the case which may reasonably affect the conduct required

Emergency Doctrine: a person confronting an emergency not of his or her own making is required to exhibit only an honest exercise of judgment (Levey, p.59n12); NOT universally adopted

Generally, the question of due care is left to the jury

If the jury verdict be deemed by the appellate court to be against the weight of the vidence, that court's power is limited to ordering a new trial

Baltimore & Ohio Railroad v. Goodman, US Supreme, 1927 (p.60)Pokora v. Wabash Railway, US Supreme, 1934 (p.62)Negri v. Stop and Shop, NY Appeals, 1985 (p.86)

When dealing with a standard of conduct, and when the standard is clear, it should be laid down once for all by the courts

When certain dangers have been removed by a customary way of doing things safely, this custom may be proved to demonstrate the standard of care.Customary practice and usage need not be universal; it suffices that it be fairly well defined and in the same calling or business

Trimarco v. Klein, NY Appeals, 1982 (p.68)

Common practice or usage is not necessarily a conclusive or even a compelling test of negligence--the jury must be satisfied with its reasonableness

Area of Torts Sub Area Rule of Law Sources of Law Exceptions Defenses PolicyNegligence: Duty Role of Statutes

Negligence: Duty Notice

Negligence: Duty

Negligence: Duty

Negligence: Duty Policy Basis for No Duty

Omission of the statutory signals is more than some evidence of negligence, it is negligence in itself

Lack of a license is irrelevant to a tort claim (p.83n9)

Martin v. Herzog, NY Appeals, 1920 (p.74)Tedla v. Ellman, NY Appeals, 1939 (p.77)

Statutes are not an inflexible command that the general rule intended to prevent accidents must be followed even under conditions when observance might cause accidents

Violation of a statute does not establish liability if the statute is intended to protect against a particular hazard, and a hazard of a different kind is the occasion of the injury (p.81n6)

To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant to discover and remedy it

Negri v. Stop and Shop, NY Appeals, 1985 (p.86)Gordon v. American Museum, NY Appeals, 1986 (p.86)

Business practice rule: a customer need not establish actual or constructive notice when the business practice of the merchant provided continuous and foreseeable risk (p.89n7)

Landowner & Occupier Duty

Possessor owes a trespasser no duty of care (Restatements 2nd §333, p.191n3)

Possessor owes a licensee the duty to make safe dangers of which the possessor is aware

Possessor owes invitees the duty to exercise reasonable care to protect them against both known dangers and those that would be revealed by inspection. (Restatements 2nd §342, p.192n5). An entrant becomes an invitee whent he possessor invites with the expectation of a material benefit from the visit OR extends the invitation to the public generally (Restatements 2nd §332, p.189)

Landlord/Tenant: landlord liable in tort only if the injury is attributable to 1) a hidden danger that landlord knew, 2) leased for public use, 3) retained under landlord control, 4) negligently repaired by landlord

Carter v. Kinney, MO Supreme, 1995 (p.188)Heins v. Webster County, NE Supreme, 1996 (p.194)

Exceptions for trespasser: when persons constantly intrude; reasonable care for the safety of a known trespasser

Child trespassers: attractive nuisance (p.193n8, Restatements 2nd §339)

Some jurisdictions do not distinguish between classes of entrants and hold that the duty is uniform

Policy for abolishing the categories: an entrant's status should not determine the duty that the landowner owes to him (Rowland v. Christian, CA Supreme, p.196 middle)

Landowner: Business Duty

Business owners have a duty to take reasonable precautions to protect invitees from foreseeable criminal attacks

Tests to determine foreseeability:1) Specific harm rule--most restrictive, least liability to business owner2) Prior similar incidents test--previous crimes on or near the property3) Totality of circumstances--like 2), but adds nature, condition, location of land and other relevant factual circumstances. Does not require a prior4) Balancing test--balances foreseeability of harm with burden to protect against criminal acts of third persons

Posecai v. Wal-Mart, LA Supreme, 1999 (p.204)

Recovery is limited to a known group possessed of vested rights, marked by a definable limit and made up of certain components

Implications of social host liability are wide sweeping and unpredictable in nature…and would touch most adults on a frequent basis

Designated driver duty to third persons: the duty only arises if performance begins--a broken promise is not a basis for a duty (p.181n7)

Strauss v. Belle Realty, NY Appeals, 1985 (p.168)

Reynolds v. Hicks, WA Supreme, 1998 (p.176)

Some "take home" asbestos cases ie: NJ (p.174n7)

"the more persons injured through a tort-feasor's gross negligence, the less the responsibility for injuries incurred" (Dissent, p.172)

Same action has different liability imposed based on who performed the action (Dissent, p.179)

Area of Torts Sub Area Rule of Law Sources of Law Exceptions Defenses PolicyNegligence: Breach Res Ipsa Loquitur

Negligence: Breach Medical Malpractice

Negligence: Breach Medical Malpractice

Negligence: Breach Medical Malpractice

Doctrine: in rare instances an injury may permit an inference of negligence if coupled with a sufficient showing of its immediate, precipitating cause. Three conditions:1) the accident must be of a kind which ordinarily does not occur in the absence of someone's negligence2) it must be caused by an agency or instrumentality within the exclusive control of the defendant3) it must not have been due to any voluntary action or contribution on the part of the plaintiff

All that is required is evidence from which reasonable persons can say that on a whole it is more likely that there was negligence than that there was not

The number or relationship of the defendants alone does not determine whether res ipsa loquitur applies. Every defendant in whose custody the plaintiff was placed for any period was bound to exercise ordinary care and would be liable for failure thereof

Byrne v. Boadle, Exchequer, 1863 (p.90)McDougald v. Perry, FL Supreme, 1998 (p.92)Restatements 2nd §328D (p.94)

Res ipsa loquitur allowed when there are several possible people liable for the negligence because, if not, then a conspiracy of silence would prevent recovery and to achieve equity courts would have to invoke absolute liability

In medical malpractice, the specialized knowledge and skill of the defendant must be taken into account

Board certification represents a national standard of care which is uniform throughout the medical specialty

Testifying experts must have knowledge, skill, experience, training or education in the field of alleged malpractice

In medical malpractice, expert testimony is an essential requirement in proving the standard of care

Robbins v. Footer, DC Cir, 1977 (p.106)Sheeley v. Memorial Hosp., RI Supreme, 1998 (p.107)

Unless the lack of care is so obvious as to be within the layman's common knowledge

When a physician treats or diagnoses a patient, he is under a duty to exercise the same degree of diligence and skill which is commonly possessed by other members of the profession engaged in the same type of practice

Similar localities rule: above applied within similar localities (old rule)

National Standard: new rule, uniform standard of care across the nation

Sheeley v. Memorial Hosp., RI Supreme, 1998 (p.107)

A plaintiff in a medical malpractice case can proceed on a res ipsa loquitur theory where the plaintiff offers a medical expert's opinion that the injury would not have occurred in the absence of negligence by the defendant

Sides v. Anthony's Med. Ctr, MO Supreme, 2008 (p.115)Restatement 2nd §328D comment d

Rebut the inference with evidence that defendant was not negligent

Area of Torts Sub Area Rule of Law Sources of Law Exceptions Defenses PolicyNegligence: Breach

Negligence: Breach Duty to Act

Negligence: Breach

Medical Malpractice: Informed consent

Doctrine of Informed Consent: requires a physician to obtain the patient's consent before implmenting a course of treatment

Physicians have a duty to evaluate the relevant information and disclose all courses of treatment that are medically reasonable under the circumstances; ultimate decision is for the patient

Physicians do not adequately discharge their responsibility by disclosing only treatment alternatives that they recommend

For consent to be informed, the patient must know not only of alternatives that the physician recommends, but of medically reasonable alternatives that the physician does not recommend

Informed consent requires material risks inherent in a procedure or course of treatment. Test for materiality is whether a reasonable patient int he patient's position would have considered the risk material

Consumer Protection Act is broad enough to cover services provided by a doctor to a patient--applies to misrepresentations (Williamson v. Amrani, KS Supreme, 2007; p.125n6)

Matthies v. Mastromonaco, NJ Supreme, 1999 (p.119)

No requirement to inform about experimental alternatives (Moore v. Baker, USCA 11th, 1993; p.124n3)

Cannot misrepresent experience and credentials (Howard v. University, NJ Supreme, 2002; p.125n5)

Not required to inform patients of information not directly related to procedure (Albany Clinic v. Cleveland, GA Supreme, 2000; p.125n5)

A competent adult may refuse life-saving treatment. If, and only if, the patient is unconscious or otherwise incapable of giving consent, and either time or circumstances do not permit the physician to obtain the consent of a family member, may the physician presume that the patient, if competent, would consent to life-saving medical treatment (Shine v. Vega, MA Supreme, 1999; p.127n11)

Harm that was proximately caused by a medical professional's breach of duty in a prolongation of life case was the benefit of life, a harm which courts have repeatedly refused to compensate (Anderson v. St. Francis, OH Appeals, 1997; p.128n11)

An affirmative duty to act only arises when a special relationship exists between the parties

Special relationships normally giving rise:1) common carries2) innkeepers3) possessors of land who hold it open to the public4) persons who have custody of another person(If the actor knows or has reason to know that by his conduct, whether tortious or innocent, he has caused such bodily harm to another as to make him helpless and in danger of further harm, the actor is under a duty to exercise reasonable care to prevent such future harm. Restatement 2nd §322)

Actual knowledge of a dangerous condition tends to impose a special duty to do something about that condition

Harper v. Herman, MN Supreme, 1993 (p.131)

There are many dangers, such as those of fire and water which under ordinary conditions may reasonably be expected to be fully understood and appreciated by any child (Resatement 2nd §339 comment f)

Duty to Act: Common Undertaking

If the actor attempts to aid, and takes charge and control of the situation, he is regarded as entering voluntarily into a relation which is attended with responsibility and is therefore liable for a failure to use reasonable care to protect the other

Must exercise reasonable care in discontinuing aid for someone who reasonably appears to be in imminent peril (Restatement 3rd §43)

Farwell v. Keaton, MI Supreme, 1976 (p.136)

Usually a legal duty only attaches to common undertakings when the undertaking is hazardous and the parties understand that each is mutually dependant upon the other for their own safety

Area of Torts Sub Area Rule of Law Sources of Law Exceptions Defenses PolicyNegligence: Breach

Negligence: Breach Psychiatric predictions are unreliable

Negligence: Breach

Negligence: Breach Negligent Entrustment

Causation Cause in fact

Duty to Act: Misrepresentation & Third Party

One who negligently gives false information to another is subject to liability for physical harm caused by action taken by the other in reasonable reliance upon such information, where such harm results:1) to the other, or2) to such third persons as the actor should reasonable expect to be put in peril by the action takenSuch negligence may consist of failure to exercise reasonable care:1) in ascertaining the accuracy of the information or2) in the manner in which it is communicated

Major considerations are:-Foreseeability of harm to the plaintiff-Degree of certainty that plaintiff suffered an injury-Closeness of the connection between the defendant's conduct and the injury suffered-Moral blame attached to the defendant's conduct-Policy of preventing future harm-Extent of the burden to the defendant and consequences to the community of imposing a duty with resulting liability-Availiability, cost, and prevalance of insurance for the risk involved

Randi v. Muroc JUSD, CA Supreme, 1997 (p.142)Restatement 2nd §311

Full disclosure or no comment are alternatives to avoid liability

Duty to Act: Third Party / Doctor-Patient

A duty of care is owed to all persons who are foreseeably endangered by his conduct, whith respect to all risks which make the conduct unreasonably dangerous

Restatement 2nd §315: A duty of care may arise from either:1) aspecial relation between the actor and the third person which imposes a duty on the actor to control the third persons conduct or2) a special relationship between the actor and the other which gives to the other a right of protection

A physician may not reveal the confidence entrusted to him in the course of medical attendance unless he is required to do so by law or unless it becomes necessary in order to protect the welfare of the individual or the community (Principles of Medical Ethics of the AMA, p.155)

Tarasoff v. Regents of UC, CA Supreme, 1976 (p.151)Restatement 2nd §315

Private Enforcement of Statury Requirements

A statutory command does not necessary carry with it a right of public enforcement

To determine if a statute carries a right of public enforcement, courts ask:1) whether the plaintiff is one of the class for whose particular benefit the statute was enacted2) whether recognition of a private right of action would promote the legislative purpose, and3) whether creation of such a right would be consisten with the legislative scheme

Uhr v. East Greenbush Central School District, NY Appeals, 1999 (p.161)

No liability from voluntarily adopted safety rules

Statutory limitations on liability: medical and emergency personnel who in good faith render emegency aid without compensation may be shielded from liability (p.167n10)

One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them (Restatements 390)

Vince v. Wilson, VT Supreme, 1989 (p.182)Restatements 2nd §390

If X had not occurred, Y would not have occurred

If two or more possible causes exist, for only one of which a defendant may be liable, and a party injured establishes facts from which it can be said with reasonable certainty that the direct cause of the injury was the one for which the defendant was liable, the party has met the required burden of proof

Stubbs v. City of Rochester, NY Appeals, 1919 (p.335)Zuchowics v. United States, USCA 2nd, 1998 (p.343)

Two-disease rule (p.339n7a)Substantial Factor test: when two independent parties each cause the full harm (Anderson v. Minneapolis, MN Supreme, 1920; p.342n9)

Futile warning (Rinaldo, p.334)Extraordinar circumstance (p.334)Proof: cannot be left to jury speculation (p.341n9)

Area of Torts Sub Area Rule of Law Sources of Law Exceptions Defenses PolicyCausation Joint and Several

Causation Market Share

Causation Proximate Cause

Several rules:1) Standard joint and several--all liable for whole amount2) ~12 states hold a solvent defendant responsible only for his percentage of fault share of damages3) ~12 states only allow when defendant is greater than a specified threshold percentage at fault (usually 50%)4) Some states (including CA) retain J&S but abolished for non-economic damages5) Some states allow J&S except when the plaintiff is partially at fault6) Some retain J&S but reallocate share of insolvent defendants amongst other defendants7) Some states abolished in many areas while retaining for some other areas (NY retains for motor vehicle cases, recklessness, and enviro)

Where a group of persons are hunting or otherwise using firearms, and two of them are negligent in firing in the direction of a third person who is injured thereby, both of those so firing are liable for the injury suffered by the third

If plaintiff cannot show precide damages attributable to defendant's negligence, a rough apportionment may be used (p.371n8)

Summers v. Tice, CA Supreme, 1948 (p.367)

Shifts the burden to the defendants to figure out who caused an injury OR holds defendants liable J&S because plaintiff couldn't possibly determine which caused the injury

Modern method allots damages across the defendants; may result in less than full recovery--several liability

When a particular defendant cannot be identified: Apportioning liability based on market share will result in liability on the part of a defendant roughly equal to the injuries the defendant actually caused

Joint and several liability attaches to all defendant's unable to exculpate themselves (DISSENT ONLY)

Hymowitz v. Eli Lilly, NY Appeals, 1989 (p.372)

Impossibility--if a defendant can prove it was not a member of the market, that defendant can be removed from liability

Eggshell Plaintiff: the defendant takes the plaintiff as he finds him, even if that means defendant must compensate for harm an ordinary person would not have suffered

Thin-skull Plaintiff: claims for emotional distress must be such that it would cause distress to the ordinarily sensitive person, however, damages that are greater than foreseeable because of preexisting physical or mental conditions may be recovered in full (p.398n6; Restatements 3rd §31)

A tortfeasor whose act, superimposed upon a prior latent condition, results in an injury may be liable in damages for the full disability

Consequences which follow in unbroken sequence, without an intervening efficient cause, from the original negligent act, are natural and proximate; and for such consequences the original wrongdoer is responsible, even though he could not have foreseen the particular results which did follow (Christensen v. Chicago, MN Supreme, 1896, p.395)

Precipitating Factor: a defendant is liable when he causes a precipitating factor which activates the plaintiff's predisposition. The existence of the predisposition may affect damages (Steinhauser v. Hertz, USCA 2nd, 1970; p.396n3)

The consequences which may reasonably be expected to result from a particular act are material only in reference to the question whether the act is or is not a negligent act (Polemis)

Benn v. Thomas, IA Supreme, 1994 (p.394)

Polemis, Court of Appeal, 1921 (p.399)

Overseas Tankship v. Mort's Dock, Privy Council, 1961 (p.402)

Smith v. Leech Brain, 1962 (p.406n5)

A man must be considered to be responsible for the probably consequences of his act (Overseas)

Area of Torts Sub Area Rule of Law Sources of Law Exceptions Defenses PolicyCausation Superseding Causes

Causation Unexpected Victim

Defenses Restatements 2nd §500 (p.435)

Defenses Uniform Comparative Fault Act (p.440)

A negligent defendant, whose conduct creates or increases the risk of a particular harm and is a substantial factor in causing that harm, is not relieved from liability by the intervention of another person EXCEPT where the harm is intentionally caused by the third person AND is not within the scope of the risk created by the defendant's conduct (Restatements 2nd §442B)

To be within the scope of risk, the harm actually suffered must be of the same general type as that which makes the defendant's conduct negligent in the first instance

Doe v. Manheimer, CT Supreme, 1989 (p.409)

Criminal acts may in themselves be foreseeable, and so within the scope of the created risk (Restatements 2nd §448-449, p.412)

Dependent intervening force is a predictable response or reaction to the stimulus of a situation for which the actor has made himself response by his negligent conduct (Restatements 2nd §441 c)

Plaintiff's culpable conduct may constitute a superseding cause

"If official description of the facts of the case as formulated by the court is detailed, the accident can be called unforeseeable; if it is general, the accident can be called foreseeable." (p.416n6)

The risk reasonably to be preceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others wihin the range of apprehension. This does not mean that one who launches a destructive force is always releived of liability if the force, though known to be destructive, pursues an unexpected path

Palsgraf v. Long Island Railroad, NY Appeals, 1928 (p.418)

If an act has a tendancy to harm some one, it harms him a mile away as surely as it does those on the scene (Dissent, p.422)

Contributory Negligence

Plaintiff's negligence must be an actual and proximate cause of the plaintiff's harm; if so, then contributory negligence bars recovery

Last Clear Chance: defendant fails to utilize the last clear chance to avoid injury to plaintiff (p.435)

Comparative Negligence

A negligent plaintiff's recovery depends on how serious the plaintiff's negligence was compared to defendant's

Any contributory fault chargeable to the claimant diminishes proportionately the amount awarded as compensatory damages for an injury attributable to the claimant's contributory fault, but does not bar recovery

Area of Torts Sub Area Rule of Law Sources of Law Exceptions Defenses PolicyDefenses

Defenses

Strict Liability General Principle Custom

Assumption of Risk: Express

The law does not favor contract provisions which relieve a person from his own negligence

A party cannot be released from liability for injuries resulting from its future negligence in the absence of language that expressly so provides

Exculpatory agreements violate public policy if they affect the public interest adversely (Tunkl Test). Factors relevant:1) the agreement concerns a business of a type generally thought suitable for public regulation2) the party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public3) the party holds himself out as willing to perform this service for any member of the public who seeks it (at least within certain standards)4) As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bragaining strength against any member of the public seeking to use the service5) In exercising a superior bargaining pwer the party confronts the public with a standardized adhesion contract of exculpation and makes no provision where a purchaser may pay additional reasonable fees and obtain protection from negligence6) as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents

Hanks v. Powder Ridge Restaurant, CT Supreme, 2005 (p.459)

Gross negligence or recklessness may never be disclaimed by agreement no matter what words are used (p.468n4)

Unilateral disclaimers are not effective unless brought to the attention of plaintiff (p.469n6)

The average person is capable of reading a release agreement and deciding not to snowtube because of the risks that he or she is asked to assume (Dissent, p.467)

The societal expectation that family oriented activities will be reasonably safe if important

Assumption of Risk: Implied

Volenti non fit injuria: One who takes part in such a sport accepts the dangers that inhere in it so far as they are obvious and necessary

Participants: To detemine negligence in a sport, consider such material factors as the sport involved, the rules and regulations of the sport, the generally accepted customs and practices of the sport (including types of contact and level of violence), the risks inherent in the game and those that are outside the realm of anticipation, the presence of protective equipment, and the specific facts of the case including the ages, skill, knowledge of the game and physical attributes of the participants (p.473n5)

Spectators: provide as much protection for as many spectators as may reasonably be expected to desire such (p.474n6)

Murphy v. Steeplechase Amusement, NY Appeals, 1929 (p.470)

The person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril. If it does escape and cause damage, he is responsible, however careful he may have been, and whatever precautions he may have taken to prevent the damage

Rylands v. Fletcher, Exchequer Chamber, 1866 (p.507)Rylands v. Fletcher, House of Lords, 1868 (p.512)

Necessary and common uses of the land do not attach strict liability (p.514n4)

Though there are many hazardous activities that are socially desireable, they should pay their own way (p.514n4)

Area of Torts Sub Area Rule of Law Sources of Law Exceptions Defenses PolicyStrict Liability Abnormally Dangerous

Strict Liability

Strict Liability

Strict Liability

When the damage was the necessary consequence of just what the defendant was doing, and it was just as much liable as if it had done the deed by any other means

One who carries on an abnormally dangerous activity is subject to liability for harm resulting from the activity although he has exercised the utmost care to prevent the harm (Restatements 2nd §519)

In determining whether an activity is abnormally dangerous, consider six factors (Restatements 2nd §520):1) existence of a high degree of risk of some harm to the person, land or chattels of others2) likelihood that the harm that results from it will be great3) inability to eliminate the risk by the exercise of reasonable care4) extent to which the activity is not a matter of common usage5) inappropriateness of the activity to the place where it is carried on6) extent to which its value to the community is outweighed by its dangerous attributes

Sullivan v. Dunham, NY Appeals, 1900 (p.516)

Restatements 2nd §519-520

When the injury is not direct, but consequential, such as is caused by concussion, there is no liability in the absence of negligence

Who should bear the cost of the resulting damage? (p.519n4)

Abnormally Dangerous (when negligence applies)

When it is a workable regime because the hazards of an activity can be avoided by being careful, there is no need to switch to strict liability

Accidents that are due to a lack of care can be prevented by taking care, and when a lack of care can be shown in court, such accidents are adequately deterred by the threat of liability for negligence

Indiana Harbor Belt Railroad v. American Cyanamid, USCA 7th, 1990 (p.520)

Common carriers are not subject to strict liability for the carriage of materials that make the transportation of them abnormally danger, because a common carrier cannot refuse service to a shipper of a lawful commodity (Restatements 2nd §521)

Products Liability: Manufacturing Defects

If the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, and if there is knowledge that the thing will be used by persons other than the purchaser and used without new tests, then irrespective of contract, the manufacturer of this thing is under a duty to make it carefully

The retailer, even though not equipped to test a product, is under a strict liability to his customer for the implied warranties of fitness for proposed use and mechantable quality include a warranty of safety of the product

One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer or his property if (Restatements 2nd §402A):1) the seller is engaged in the business of selling such a product AND2) it is expected to and does reach the consumer without substantial change in the condition in which it is sold-the above rule applies regardless of care by the seller or privity of contract

MacPherson v. Buick Motor Co, NY Appeals, 1916 (p.551)

Escole v. Coca Cola Bottling Co of Fresno, CA Supreme, 1944 (p.557)

Restatements 2nd §402A (p.568)

The strict liability element in products liability law comes from the fact that a seller subject to that law is liable for defects in his product even if those defects were introduce, without the fault of the seller for failing to discover them, at some anterior stage of production (p.570)

Types of defects: Manufacturing defects (single unit); Design defects (all units); Inadequate instructions or warnings (Restatements 3rd Products Liability)

Products Liability: Design Defects

A product may be found defective in design if the plaintiff demonstrates that the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner

Alternatively, a design defect could be shown if through hindsight the jury determines that the product's design embodies excessive preventable danger (aka: if the danger inherent in the challenged design outweighs the benefits of such design). The jury considers: gravity of the danger, likelihood of such danger occurring, mechanical feasibility of safer alternative, cost of an improved design, adverse consequences that would result from an alternative design

Barker v. Lull Engineering, CA Supreme, 1978 (p.572)Soule v. GM Corp, CA Supreme, 1994 (p.573)

RAD must be proved by plaintiff (Products Liability Restatement §2 cmt f; p.580n6)

Area of Torts Sub Area Rule of Law Sources of Law Exceptions Defenses PolicyStrict Liability

Strict Liability

Intentional Harm Trespass

Products Liability: Safety Instructions

A warning need only be one that is reasonable under the circumstances

A reasonable warning conveys a fair indication of the dangers involved, but also warns with the degree of intensity required by the risk. Factors to determine warning adequacy (p.603n1):1) warning adequately indicates scope of the danger2) warning reasonably communicates the extent or seriousness of harm3) physical aspects of the warning must alert a RPP to the danger4) a simple directive warning may be inadequate when it fails to indicate the consequences that might result from failure to follow it5) the means to convey the warning must be adequate

Pictoral messages required if product likely to be used by non-English speakers

Hood v. Ryobi America, USCA 4th, 1999 (p.600)

Warnings aimed simply at avoiding consumer carelessness should not absolve a manufacturer of the duty to design reasonable safeguards for its products (p.607n9)

Costs of change may outweigh benefits of additional warning (clutter cost) (p.602, 604)

Sophisticated user doctrine: relieves a manufacturer of warning when the class of users are sufficiently knowledgeable that they already know or appreciate the danger (p.606n7)

Products Liability: Defenses

A consumer has no duty to discover or guard against a product defect

A plaintiff's conduct should be considered to reduce a damages recovery if it fails to conform to applicable standards of care (Restatements 3rd §17a)

Disclaimers and limitations of remedies, waivers, and contractual exculpations do not bar or reduce otherwise valid products liability claims against sellers or other distributors of new products for harm to persons (Products Liability Restatement §18, p.635)

GM Corp. v. Sanchez, TX Supreme, 1999 (p.628)

When the defendant claims that the plaintiff failed to discover a defect, there must be evidence that the plaintiff's conduct in failing to discover a defect failed to meet a standard of reasonable care (Restatements 3rd §17 cmt d, p.630)

Plaintiff's conduct other than a mere failure to discover or guard against a product defect is subject to comparative responsibility

Third party responsibility may be a defense to allot some of the responsibility to another negligent party (p.633n6)

Statute of repose: like a statute of limitations after product is first sold (p.636)

An actionable invasions of the interest in exclusive possession of land, usually awards money damages only

Trespass is any intrusion which invades the possessor's protected interest in exclusive possession, whether that intrusion is by visible or invisible pieces of matter or by energy

Requisite intent is only to enter the land and does not require intent to harm the other's interest in exclusive possession or even to invade another's property (p.675)

Martin v. Reynolds Metals, OR Supreme, 1959 (p.676)

Area of Torts Sub Area Rule of Law Sources of Law Exceptions Defenses PolicyIntentional Harm Nuisance Coming to the nuisance

Damages Non-compensable harm Physiologic changes that cause no impairment is not compensable

Damages Compensatory Damages

Damages Punitive Damages

Intentional Harm Intent

An actionable invasion of the interest in the use and enjoyment of the land, usually awards an injunction

Where a nuisance has been found and where there has been any substantial damage shown by the party complaining an injunction will be granted (Boomer, p.685)

One is subject to liability for conduct that is a legal cause of an invasion of another's interest in the private use and enjoyment of land if the invasion is either a) intentional and unreasonable, or b) unintentional and arising out of negligent or reckless conduct or abnormally dangerous conditions or activities (§822)

An intentional invasion satisfies the unreasonableness requirement if a) the gravity of harm outweighs the utility of the actor's conduct or b) the harm caused by the conduct is serious and the financial burden of compensating for this and similar harm to others would not make the continuation of the conduct not feasible (§828)

Gravity of Harm: Factors involved (§827): 1) extent of harm, 2) character of harm, 3) social value of the type of use or enjoyment invaded, 4) suitability of the use or enjoyment invaded to the locality, 5) burden on the person harmed of avoiding the harm

Utility of conduct: Factors involved (§828): 1) social value of the primary purpose of the conduct, 2) suitability of the conduct to the locality, 3) impracticability of preventing or avoiding another invasion

Martin v. Reynolds Metals, OR Supreme, 1959 (p.676)

Boomer v. Atlantic Cement, NY Appeals, 1970 (p.683)

Who is best able to address the nuisance claimed? If legislative, courts may shy away from an injunction.

What is the value of the defendant's conduct? Courts also shy away from negatively impacting the local economy through injunctions

Paz v. Brush Engineered, USCA 5th, 2009 (p.341n7c)

The amount of damages is a question of fact. An appellate court can interfere on the ground that the judgment is excssive only if it shocks the conscience

Pecuniary damages include past and future, and are generally easily calculable

Non-pecuniary damage include pain and suffering, humiliation, and anxiety (past and future)

Seffert v. LA Transit Lines, CA Supreme, 1961 (p.711)

Court must reverse if damages are inadequate or excessive (Dissent, p.716)

Punitive damages may be recovered where the defendant has been guilty of oppression, fraud, or malice, express or implied

Punitive damages may be based upon the defendant's concious disregard of the safety of others

Taylor v. Superior Court, CA Supreme, 1979 (p.750)

Something more than the mere commission of a tort is always required for punitive damages

An additional award or fine from the defendant may constitute unjust enrichment, double punishment, nullifies insurance (Dissent p.753); Pinto case (p.756n5)

When a minor has committed a tort with force, he is liable to be proceeded against as any other person would be

An actor who intentionally or recklessly causes physical harm is subject to liability for a broader range of harms than the harms for which the actor would be liable if only acting negligently (Restatements 3rd §33(b), p.902n6)

Garratt v. Daily, WA Supreme, 1955 (p.898)

Restatements 3rd §33(b) (p.902n6)

Insanity does not establish a defense to liability (p.903n8)

Parents not generally liable for torts of their children (p.903n9)

Area of Torts Sub Area Rule of Law Sources of Law Exceptions Defenses PolicyIntentional Harm Assault and Battery

Intentional Harm False Imprisonment

Intentional Harm

An assault is a physical act of a threatening nature or an offer of corporal injury which puts an individual in reasonable fear of imminent bodily harm It is the apprehension of injury which renders the defendant's act compensable

Battery is an act that was intended to cause, and did cause, and offensive contact with or unconsented touching of or trauma upon the body of another, thereby generally resulting in the consummation of the assault. An intent to injure the plaintiff is unnecessary in a situation in which a defendant willfully sets in motion a force that in its ordinary course causes the injury.

Battery: Offensive Contact (Restatements 2nd §18, p.908), An actor is subject to liability to another for battery if:1) he acts intending to cause a harmful or offensive contact with the person of the other or a third party, or an imminent apprehension of such contact and2) an offensive contact with the person of the other directly or indirectly resultsAn act which is not done with the intention does not make the actor liable to the other for a mere offensive contact with the other's person although the act involves an unreasonable risk of such contact (then it would be negligent or reckless)

Offensive Contact (Restatements 2nd §19 p.909): a bodily contact is offensive if it offends a reasonable sense of personal dignity

Picard v. Barry Pontiac-Buick, RI Supreme, 1995 (p.904)

Wishnatsky v. Huey, ND Appeals, 1998 (p.907)

In order that a contact be offensive to a reasonable personal sense of dignity, it must be one which would offend the ordinary person and as such one not unduly sensitive as to his personal dignity. It must be a contact which is unwarranted by the social usages prevalent at the time and place at which it is inflicted

Busy world--not every unwanted touch is a battery

False imprisonment is an unlawful restraint of an individual's personal liberty or freedom of locomotion.

Imprisonment is any unlawful exercise or show of force by which a person is compelled to remain where he does not wish to remain or to go where he does not wish to go.

In order for a false imprisonment to be present, there must be an actual or legal intent to restrain

Confinement may be fulfilled by (Restatements 2nd §38-41, p.913):1) actual or apparent physical barriers2) overpowering physical force, or by submission to physical force3) threats of physical force4) other duress5) asserted legal authority

Lopez v. Winchell's Donut House, IL Appeals, 1984

Confinement must be against the plaintiff's will, and if a person voluntarily consents to the confinement there can be no false imprisonment (p.913)

Confinement within a country does not constitute false imprisonment (p.915n3)

If a suspected theft occurs int he presence of a store employee, the shopkeeper still arrests at his own peril--the arrested person must be proven guilty

Intentional Infliction of Emotional Distress

A cause of action is established when it is shown that one, in the absence of any 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 (p.918)

One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodliy harm (Restatements 2nd §46)

Four elements to emotional distress unaccompanied by physical injury:1) wrongdoer's conduct was intentional or reckless2) the conduct was outrageous and intolerable in that it offends against the generally accepted standards of decency and morality3) There was a causal connection between the wrongdoer's conduct and the emotional distress4) the emotional distress was severe

Womack v. Eldridge, VA Supreme, 1974 (p.919)

Title VII and 42 USC §1981: alternate avenues to pursuing what may not otherwise be outrageous conduct. Title VII limits damages, §1981 does not limit damages (p.926)

First amendment rights (don't worry about this)

Emotional distress provides no clear definition of the prohibited conduct (p.922n4)

Turns the passions of the moment into law (p.923n5)

Area of Torts Sub Area Rule of Law Sources of Law Exceptions Defenses PolicyIntentional Harm Defenses: Consent

Intentional Harm Defenses: Self-Defense

Intentional Harm Katko v. Briney, IA Supreme, 1971 (p.952)

Intentional Harm Defenses: Necessity

One who sufficiently expressed his willingness to suffer a particular invasion has no right to complaint if another acts upon his consent so given

Hart v. Geysel, WA Supreme, 1930 (p.946)

Custom (p.948n3)The scope of the consent may limit this defense (p.948n4)

Where a defendant attempts to justify on a plea of self-defense, he must show not only that he acted honestly in using force, but that his fears were reasonable under the circumstances and also as to the reasonableness of the means made use of

Courvoisier v. Raymond, CO Supreme, 1896 (p.949)

Defenses: Protection of Property

In determining the reasonableness of force used to protect property, consider the following (Posner, p.956n3):1) value of property at stake measure against the costs of human life and limb2) existence of an adequate legal remedy alternative to using force3) location of the property in terms of diffiuclty of protecting by other means4) kind of warning given5) deadliness of the device used6) character of the conflicting activities7) cost of avoiding interference by other means

The only time when such conduct of setting a dangerous device is justified would be when the trespasser was committing a felony of violence

Acts of god are not compensable; acts of people are compensable

Public necessity may require the taking of private property for public purposes, but compensation must be made

A private mischief is to be endured rather than a public inconvenience (p.962n9)

Vincent v. Lake Erie Trans., MN Supreme, 1910 (p.858)