Torts Outline Turely Spring 2011

8/4/2019 Torts Outline Turely Spring 2011

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Torts Outline_Turley_Spring 2011

I. Intentional Torts

o

Intent refers to

a) a persons desire that certain consequences result from his action;

or

P plans to harm someone

b) his knowledge that those results are substantially certain to occur

as a result of his action (even if he doesnt intend those results)

o Intent can also be established by violating a rule

Vosburg v. Putney

11 years old boy kicks 14 years old below the knee;

causes inability to use limb normally for the rest of his life

Held: D did not intend to cause harm but he broke a rule.

Liable

If the tort had occurred on the playground and not during

class decision may be different (violated a rule no implied

license of playground

Hockey Case

In a hockey game, when you hurt someone, you are

consenting to a rule

o Transferred of Intent:

a) Between victims: when an actor intends to commit a tort against

one victim but injures another instead

D intends to hit one person with a baseball bat and misses

that person but hit another in the process, Ds intent willtransfer from the intended victim to the actual victim

b) Between Torts (mostly assault and battery): when an actor

intends to commit a specific tort, but commits another instead

D intends to hit a person with a baseball bat (battery) but

missed and instead only causes the imminent apprehension


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of such harmful contact (assault)

c) You can combine both in one case

o An act is a voluntary muscular movement

If you hit someone while sleeping or while having an epileptic

seizure, you havent committed an act

1. Battery

o An intentional harmful or offensive bodily contact

o Battery is an act (voluntary) with the intent to cause a harmful or

offensive bodily contact, and a harmful or offensive to a

reasonable sense of personal dignity results either directly or

indirectly.

o Element a) voluntary act:

Being pushed into someone or fainting and falling on

someone is not voluntary

o Element b) intentional:

desire that certain consequences result from his action orOR

Know that those results are substantially certain to occur

as a result of his action

i. Intending to step off a busMaybe Intentional

ii. IF intent is to step off onto someones

footIntentional!

iii. IF intent is to step off and D knows that stepping off

at that moment will almost certainly injure someones

footIntentional!

iv. IF intent is simply to step off and walk to

workNot Intentional!

Might be Negligence, but not Battery

Important: D just need to intend any harm, not the

actual harm that takes place

D intends to hit P over the head with a gun and the in the

act of doing so the gun accidently discharges and shoots P,


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D is liable for the gun shot under battery

o Element c) contact:

D does not have to directly touch Ps body

An indirect contact is sufficient (i.e., through Ps clothes,

Pen he is holding or anything closely connected with his

body, like a car she is in)

D does not have to directly touch P with his body

D hits P with a bat

D sets a wire on the ground knowing that P will run over it

(with the desire or substantial certainty that P will

encounter it and fall down)

o Element d) harmful or offensive to a reasonable sense of personal

dignity (objective):

Causing illness or pain is harmful

Spitting on someone is offensive

Flicking someones ear possibly offensive

Tapping someone on the shoulder is neither

Rubbing against someone on the subway is neither

o However, has a subjective element???? IS It??

Jon and Rob joke around all the time at work, one would not

be justified to sue the other for flicking his ear

o Eggshell-thin skull rule: take the victim as you find him; doesnt matter

if D didnt know p was hypersensitive

2. Assault

o D is liable for the tort of assault if:

a) He acts intending to cause a harmful or offensive contact with

another, or an imminent apprehension of such a contact; and


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b) The other is thereby put in such imminent apprehension

o

o Elements:

a) D committed a voluntary act with intent

b) to place P in apprehension of a harmful or offensive contact or to

make such contact

c) That Ds act created in P a reasonable apprehension of such contact

o Element a) intent:

D acts with the desire to cause apprehension of contact or

knows that the apprehension of contact is substantially certain

to occur as a result of his acts

Transfer intent

o Element c) reasonable apprehension of a harmful or offensive

contact:

Pointing a toy gun in someones face may be assault if the

gun looks real

Mere Words: mostly not if not accompanied with actions

But could be depending on the circumstances: (i.e.,

P knows D is a hit mob, D tells him I will kill you now

thats an assault even if P doesnt display a weapon.

Conditional threats: usually not

If you werent so old, I would knock your teeth notassault

If you dont get off my block, I will beat you up assault

Future threats: mostly not has to be imminent

P doesnt have to afraid to prove assault confidence is


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irrelevant

P cant recover if the for threats made to third

persons?????

At tavern in middle of the night, D struck P with a hatchet

but missed. Held: D is liable for assault

3. False Imprisonment

D falsely imprisons P if D

a) Acts intending to confine P within fixed boundaries,

b) His act directly or indirectly results in such a confinement of P;

and

c) P is conscious of the confinement or is harmed by it

Additional to consider: P has no knowledge of a safe (or

reasonable) path to escape (the existence itself is not enough)

Doesnt have to be a physical restraint; restraint can be in the form of

imminent threats of force if P tries to leave (i.e., if you leave I will kill

you

The larger the area of confinement the more likely it is that there is a

reasonable escape

A mere moral or social threat is not enough if you leave I will telleveryone you are a liar

Shopkeepers privilege: If someone is reasonablysuspected of

shoplifting, he can be held for a reasonable amount of time in a

reasonable place

D holds P an old man, suspecting he stole something, P

gets a heart attack

Held: Not enough evidence to make the suspicion

reasonable and it was not reasonable to detain P because of thecircumstances, including his age

If D holds Ps property, then Ds intentional act could be indirectly

resulting in Ps confinement

4. Intentional Infliction of Emotional Distress


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D is liable for intentional infliction of emotional distress if D

commits

a) An extreme or outrageous act

b) with intentional or recklessness in causing P to suffer

severe emotional distress; and

c) the act causes P to suffer severe emotional distress

o D is liable for intentional infliction of emotional distress if D by

extreme or outrageous act intentionally or recklessly causes

severe emotional distress to another, and if bodily harm results,

the defendant is liable for this harm

o Element a) extreme and outrageous act:

Rest Test: Must be severe and beyond all possible bounds

of decency in society

Not just insults, threats, etc.

D tells P untruthfully that his son is dead

D, collection company, calls P every day in the middle of

the night and threatens him to run an ad .

The level of outrageousness is lowered for:

a. members with heightened sensitivities (children,

mentally ill, pregnant or elderly)

b. When D knows of the victims special sensitivities

c. When D is a public utility (innkeeper or common

carrier) and P is a customer

Limited transfer of intent:

Only applies to select third parties:

1. Immediate family members who are present at the

time of the act; or

2. A third person who is present at the time of the act

and suffers a bodily harm as a result of witnessing Ds

act


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Intermeddling: brief touching or harming the chattel w/out any

disruption in possession

Requires a showing of actual harm/damage as a result of

intermeddling

Ex: touching your car without causing harm is not

trespass, but breaking your headlights is;

or D sitting in Ps car w/out taking it even temporarily

(temp is like preventing P from getting in)

Even, if D returns the chattel w/out harm, D is still liable

Applies to lessee, or any possessor of the chattel

7. Conversion

D is liable for conversion if Ds:

a) Intentional interferences with Ps personal property

b) Is so substantial that

c) its fair to require D to pay the propertys full value

Mistaken belief in a right to take control is no defense, like trespass to

land

A conversion will result in a forced sale in that D will have to pay Pthe market value of his property and keep it

Factors to consider when determining whether trespass to chattel or

conversion

1. The extent of Ds dominion or control

2. The duration of loss

3. Whether D acted in bad faith

4. The degree of harm to the item; and

5. The degree of inconvenience and expense to P

D takes Ps hat for 6 months, thinking its his (good faith) still

conversion

You dont have ownership to your organs after they are removed, so


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cant sue for conversion

Poggi v. Scott

D sold barrels of wine that belonged to P to a 3rd party, unbeknownst

that they belong to P

Held: liable for conversion

II. Defenses to Intentional Torts

Mistake is not a defense in intentional torts

Insanity is not a defense to intentional torts

1. Consent:

a) Express consent:

P tells D, its ok to come on my property

b) Implied consent: where P makes an objective manifestation

that D reasonably interprets as consent (objective not subjective)

Could be implied using custom or the circumstances

Even silence can constitute consent where a reasonable

person would speak if she objected

Ex: P takes part in a boxing competition, this constitutes

implied consent to any contact normally associated with the

sport

c)Consent implied in law/ emergency consent: in emergency

situations, consent is implied if

1) P is unable to consent;

2) a reasonable person would consent in the circumstances; and

3) their is an indication that P would consent if able to

d)Substitute consent: the consent of a guardian of a


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minor/incompetent may amount to consent by that minor/incompetent

But if the guardian does not consent to a procedure that would

save the life the of the minor, then a court might interfere and

overrule guardians wishes

e)Medical/informed consent: doctors must get patients consent and

make them aware of any risk involved in the surgery

If during the surgery, the doctor need to do something critical

outside the scope of the consent, he can get consent from:

a) Substitute consent of a family member;

b) If no family member, doctor can extend surgery within the

area of the initial incision, so long as it does not destroy abodily function

Ways to negate consent:

a) Consent to criminal acts (consent to rape) (an illegal fighting

game)

b) Consent obtained by fraud (relating to an essential matter, not

collateral)

c) By duress (threat of imminent and serious harm to P or family)

d) P didnt have capacity (drunk, infant, mentally incompetent)

e) Outside the scope of consent (see above)

Consent must be specifically to the act causing the tort

P consents to have a tooth removed; doesnt consent to

have 6 teeth removed

Mohr v. Williams

P consents to an operation on right ear; the doctor

realizes left ear is the one infected and does a successful

procedure; Battery no specific consent.


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2. Self-defense Privilege

Is the use ofreasonable force to prevent threatened

harmful/offensive contact or confinement

Amount of force allowed: only what reasonably

appears necessary to protect yourself

Deadly force: you can use deadly force only if you

reasonably believe that the other person is about to kill you or

seriously injure you

Threat must be immediate (and not just verbal threats)

You cannot use to retaliate after the other person

commits the act

Conclude with: Because D did not use more force thanthe situation reasonably required, she qualifies for the privilege

of self-defense

No duty to retreat???

3. Defense of others privilege

Is the use of reasonable force (same standard as self-defense) to

protect third parties who are threatened with any kind of immediate

harm

Two views

a) A person may defend a third party ifhe reasonably

believes that defense is necessary to prevent the third party

from getting harmed

You defend someone in a fight and turns out he is the

attacker, you are not liable as you reasonably believed

he was going to get harmed

b) A person may defend a third party ifthe third party

reasonably believes that defense is necessary to prevent the

third party from getting harmed

You defend someone in a fight and turns out he is the

attacker, you are liable as he didnt reasonably believe it

was necessary to avoid harm

You try to defend someone against attack, but the reality


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is he in the middle of an act scene, you are liable

4. Defense of Property Privilege

It is a privilege to use reasonable force to defend property againstintrusion as long as:

a) The intrusion isnt privileged

b) You reasonably believe force is necessary to prevent or

terminate the intrusion

c) You demand that the intruder leave the property before

you use force

You dont have to make the demand if it appears

that it would be dangerous or futile

You cant use this privilege to regain property in

dispute (not legally yours, or yours but lessor didnt pay)

5. Recapture of Chattels

D can use reasonable force to recapture chattels if he is

a) Entitled to immediate possession

b) He has already demanded for their return

c) force used is reasonable under the circumstances; and

d) P who has the chattels is at fault

He is the one who wrongfully disposed you of the

chattels; or

A Third party that knows or should know that the

chattels were wrongfully taken from you

No mistake is permitted (as opposed to defend of property) so youhave to be sure the chattel is yours

6. Necessity

a) Private necessity mainly trespass

It involves an action taken to protect any person from death


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1. Duty: a duty to act as a reasonable person would act under similar

circumstances, so as to avoid unreasonable risk of harm to others (The

reasonable person standard of care).

2. Breach of duty: Breach is a persons failure to conform to the

reasonable person standard of care, in a way that creates anunreasonable risk of harm to others.

3. Causation: There must be a causal connection between Ds act or

omission and Ps injuries

4. Damages: P has to suffer actual damages (i.e., no nominal damage

claims permitted for negligence)

A.Proving a negligence claim by direct evidence:

1. The standard of reasonable care:

o What a reasonable person would do under similar circumstances, so as

to avoid unreasonable risk to others:1) External circumstances:

a) The environment or situation:o Reasonable person in a hospital in an small town

o Driving fast to pick up more liquor v. driving fast to get a

seriously injured person to the hospitalb) Custom in a community or industry: relative but notconclusive cause the whole community might be negligent

o Ex: A custom in the cruise industry to have

lifeboats in a cruise for only half of the passengers might beunreasonable, despite that it is an industry custom

c) Knowledge: what the person know about thecircumstances

o If you hold yourself to be a professional/expert and you

are not, you are still held to the standard of a professional ifyou dont meet that standard, you are negligento Driving fast to pick up more liquor v. driving fast to get a

seriously injured person to the hospital2) Personal circumstances or attributes:a) Physical attributes:

o Blindness, retardation, deafness

o The standard is for example, a reasonable blind person

o The only exception is intoxication, the standard is areasonable sober person

b) Minors under 18:o Standard: a reasonable person of like age, intelligence,


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and experience under similar circumstanceso Exception when minor is engaging in adult activity like

driving or firing a gun (i.e., usually requiring a license)c) Mental illness:

o No consideration to mental illness;

o Exception: Someone is overcome by unforeseen, suddenmental illness

Breunig v. American Family Ins. Co.o D is driving overcome by sudden mental illness

thinks god is driving the car crashes in to Po Because the mental illness is unforeseen, it is

treated like a sudden disability (Ex. Seizure, HeartAttach)o D is not negligent

d) Intelligence, poor judgment and old age:o Not considered

Roberts v. Ring.

o Elderly man hit a 7 year old with caro The man is negligent because he chose to engage

in this activity knowing that his age might affect hisjudgment. He is held to a reasonable person standard.

e) Examples:

Vaughn v. Menlove:o D placed hay stack and cottage next to cottages

that sat on Ps propertyo P asked D to remove haystack for risk of fire, but D

refusedo Ds haystack caught fire and spread to Ps property

o Holding: A reasonable person would remove the

haystack to ensure that Ps property is not endangered Stone v. Bolton:

o D hit a cricket ball which struck P in the headonly

6-10 balls have ever been hit as far away as P wasstandingo Holding: Although the act was extremely rare, itwas foreseeable and D is liable

2. Calculus of Risk: Pre-accident snapshot;keeping this picture in mind,what would a reasonable person do to avoid the accident?

o Post-remedial repair rule : P cannot bring in post-remedial repairevidence against D (i.e., the second product is evidence that the first isdeficient) - based on the idea that we want companies to repair orupdate technology (you can only use it in impeachment)

o Factors to consider:

1. Foreseeable risk of injury

2. The extent of these risks: how significant? How many people will


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be affected?

3. The likelihood/probability that these risks will occur

4. The available alternatives

5. The cost of reducing risk

o Cheapest Cost avoider factors:

The one who 1) has the most knowledge about this specific situation or

this type of situations, 2) has the best ability to use this information to

prevent any harm, and 3) is most capable of spreading the cost (i.e.,

through insurance)

1. The who has more Knowledge about the specific/type of

situation

2. The one most capable of spreading the cost

3. ,, ,, ,, ,, ,, of preventing the harm

o Calculate Risk According to Normal and Usual Conditions, notextremes

Blyth v. Birmingham Water Works (England 1856) D installedpipes in neighborhood; installation was professional and workedwell for 25 years; one a night of one the coldest frosts on record,pipes burst and let water into Ps home. Held, D was notnegligent. Standard is how a reasonable man would actw/reference to average circumstances of the temperature inordinary years, not this very cold year. This was rather anaccident. Also, Ds act must be unreasonable at the time, notin hindsight.

o Emergency

Eckert v. Long Island RR Ps decedent was killed by D RRwhen trying to rescue kid sitting on tracks. D argued that contribNeg barred P from recovering. Ct ruled for P; Held, a Ps calculusof risk is not unreasonable if in time of emergency (w/o time tothink) he puts himself at risk to save another as long as it wasnot reckless or clearly futile to an average person in his place.

o

Calculus of risk must consider related risks to others Cooley v. Public Service Co. (N.H. 1940) - D power companymaintained power lines that were damaged in storm; causedloud noise in Ps ear; she suffered neurosis and physical injuries;P said D should have used safety measures that might havereduced her chance of emotional harm. Supreme Ct reversedtrial Cts verdict for P b/c her suggested changes would havedecreased her risk of emotional harm but increased risk ofphysical harm to pedestrians, which were a more foreseeable


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class of plaintiffs.o THE HAND FORMULA:

a. A reasonable person is expected to go through a calculation of risk andif the economic costs of taking a certain action are lower than the costsof not taking an action then negligence may exist. This is explained bythe Hand Formula

b. The Hand Formula if B < PL, D is liableDs duty in controlling his barge is a function of 3 variables:

- B the burden of taking adequate precautions to avoid the risk ofharming

another- P the probability that the accident will happen- L significance/seriousness of the resulting injury or loss

- if B < PL, D is liable(if burden/cost of precautions is less than the probability of accidenttimes the seriousness of the injury, then the reasonable persontakes the precaution)

c. Burden: it focuses on the actors level of care in carrying out anactivity, rather than on the social utility of the decision to engage in anactivity. D who carelessly engages in a socially useful (and low risk)activity is likely to be liable for negligence; whereas one who carefullyengages in a risky and socially useless activity is not likely to be liable.

d. Very popular with Posner and law/economics crowd they prefer thisover Strict Liability: economic theorists, including Posner, preferthe hand formula as they see negligence as a means ofregulating social conduct to promote efficiency, while strictliability advocates criticize the formula for being inefficient inthat it does not consider the cheapest cost avoider, as itconsiders that the defendant is always the cheapest costavoider. As such, they prefer strict liability which lowers costsdramatically by making people liable for torts on a muchreduced scale

e. Criticism: The formula is bloodless o Pinto case: Ford discovered that B was more expensive than PL

(resulting in loss of life). They argued this in court; jury gave crazypunitive damages

f. Calebresi says that B < PL is inefficienti. because if the plaintiff was contributorily negligent in any way

then the plaintiff cant recover, which lets the defendant whomight have been negligent off the hook. Thu contributorynegligence should be removed

ii. Additionally the Hand Formula only shows that the defendantcould have avoided the risk at a low cost without looking to whocould avoid the cost the cheapest

iii. Calebresi would therefore ask for a strict liability regime whichlowers costs dramatically by making people liable for torts on amuch reduced scale.

g. How to argues hand formula:o Expand or decrease any of P/L/B that benefit you

o Sometime you dont have control over P. A lot of times L is


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locked in. So, can only deal with B by showing that the costs arevery high, or very low

Andrews v. United Airlineso Woman hit in the head by falling luggage from overhead bin;

airline not liable because the burden of having safety nets isvery high

U.S. v. Carroll Towing Co. (2d Cir. 1947) P (United States) lost one ofits barges when D (Carroll) allowed it to break loose and sink b/c D didnot have any employees on board at time to watch it. Harbor wascrowded; it was foreseeable that work might not be done carefully.

o The conditions at the time increased P

o The risk of not having an employee (loss of barge) was high

high Lo The cost of having an employee on duty was low low B

o D is negligent

3. Custom

1.General:oThe majority rule Custom is not controlling just another piece

of evidence. As customs are sometimes unreasonable

The T.J. Hooper:o 2 Tugboats and their cargo were lost in a storm

o All tugboats in the area received shelter after

receiving storm warning on their radios; D did not havea radioo Holding: Although no law or industry customrequires radios, custom is not controlling.o Radios are inexpensive and risk is very high (Handformula Analysis)o Injuries resulted directly from lack of radio; D is

negligent2. Malpractice:o The failure of one rendering professional services (i.e., doctors,

lawyers, accountants) to exercise the level of skill commonlypossessed by minimally qualified members of the profession in goodstanding.o Its about poor doctoring not poor outcomes.

a) Locality:o Older cases compared doctors only to those in the same

or a similar locality. But modern courts now tend to impose anational standard, especially for specialists. Why?

More uniform standard of education for doctors

National Journal and increased communicationb) Duty to disclose:

o Doctors have a duty to disclose to their patients all

information that a reasonable doctor would discloseo Enables patients to give informed consent


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o But, doctors dont have a duty to ensure that patients

comprehend the infoo Exceptions to disclosure (1) when theres no time to

explain, and (2) when disclosure itself might harm health ofpatient. But doctor CANNOT simply avoid disclosure b/c it mightmake patient refuse surgery.

Cantebury v. Spence (1972)

D operated on P but did not tell him that theoperation had a 1% chance resulting in paralysis

P was left unattended and fell off the bed duringoperation is paralyzed

Holding: D breached his duty to disclose and isnegligent

B.Negligence per seo Meant to promote safety by establishing standard of conduct for

particular situations

1. Criminal Statutes

o D complies: This is evidence that D acted reasonably, but its not

conclusiveo D violates: This will create negligence per se if3 elementsare met:

1. The statute provides a penalty2. The statute was designed to prevent the kind of harm thatbefell P3. P is a member of the class intended - by the legislature -to be protected by the statute

Fireman gets burned in building with malfunctioning fire

sprinklers. There is a statute that requires buildings to haveworking fire sprinklers. Held: the Statute is intended to protect(1) Tenants from (2) Noxious gases, so does not apply to thefirefighter or the harm that befell him.

o D can avoid liability by proving either one of the following:1. D was unaware of the need to comply

Tailgate goes out before you realize it2. Compliance posses higher risk than violation

Driving on the left because there is construction3. D reasonably attempted to comply but was unable

Blizzard makes it impossible to keep driveway clear4. D faced an emergency that prevented compliance

swerve over center line to avoid hitting a kid5. Incapacity

Actor is a minor

o Once youve established the standard of care, you have to

determine if D breached that standard using the Hand Formulao If a statute is found not to apply, D can still be liable innegligence if he acted unreasonable using the Hand formula, but


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cannot establish negligence per se in this caseo A causal connection between negligence per se and the injury

must be showno Statutes can be used to establish Ps duty of care, or to establish

contributory negligence

Martin v. Herzog

At night, D crashes in to P who is driving without headlights on

Statute requires drivers to use headlights on cars at night

Holding: Because there is a causal connection betweenhaving lights off and the accident, P is contributorily negligent.

o Creating a private right of action based on a statute?????

Uhr v. East Greenbush Cent. Sch. Dist . (1999)

Statute in NY public schools requires that all students betweenthe ages of 8 and 16 be examined by the school annually forthe Scoliosis

At 14, P diagnosed with Scoliosis that was very serious due to latediagnosis.

Holding: There is no private right of action against theschool district, as private right of action would be inconsistentwith Legislative Intent in enacting the statute which providedthe Commissioner with authority to withdraw funds from schoolnot complying. Cannot sue for Negligence.

C.Proving a negligence claim by circumstantial evidence

(Res Ipsa Loquitur)o The thing speaks for itself

o Allows P to point to the fact of an accident and create an inference that

D was negligent with out showing direct evidence of negligence

o Elements: P must prove that:

1. There is no direct evidence of how D behaved in connection with

the event that caused the injury;

2. The event is of a kind that would not normally occur but for

negligence

New born baby matched with the wrong mother

Chunk of glass found in a can of tune

A chair falls on P while walking (typical RIL)

3. D was in exclusive control of the instrumentality causing injury

4. P did not voluntarily contribute to the event that caused her

injury

o RIP is not cause in fact: sponge left in body during procedure, there is

res ipsa but the injury of cancer was not the cause of the sponge,

o If P proves res ipsa, then P met her burden of producing evidence of

Ds negligence (presumption of negligence) and a jury can then decide


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o Cause in fact is the determination under either the

but for test (single cause) or substantial factor test that (multiple

causes) of whether D brought Ps injuries.

1. But for test:

o Ds conduct is considered a cause in

fact of an event if the event would not have occurred but for Dsconduct.

o Take a look at the Snapshot. If you

take Ds conduct away, would the accident still occur?

o Expert witnesses help to lessen the

speculation and improve certainty

New York Central R.R. v.

Grimstad(1920)

P was on Ds barge which

contained no lifejackets

Ds barge was hit byanother tugboat P falls offs and Drowns

Held: The accident was

not but for the lack of lifejackets. D is negligent but no

factual causation

Zuchowicz v. United States

(1998) Calabresi.

D negligently prescribed

P an overdose of a drug; P suffered a lung disease and died

after taking the drug

Ps expert testified thatthe overdose likely caused the lung disease, but did not

eliminate other factors

Held: The court used a 2

part test to satisfy factual causation: (1) Ds negligence

increases the chance of an injury; and (2) the injury actually

occurs. So D was negligent as his negligence increased the

chance of the lung disease

a) Joint and Several Liability (Joint Tortfeasors)

o Situations where an injury results from more than one negligent

act(or) and if you were to remove just one of the acts, the accident

would not have occurred

o Rule: It is not necessary that the act of each D be the sole but

for cause of the injury, so long as each act is a but for cause of the

injury, they will be liable

Ex:

o Damages: Each joint Tortfeasor is liable for the undivided


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consequences of his own actions

If we can identify one Tortfeasor He is liable for all

damages, then D can sue the other D to recover his share

If we identify all Tortfeasors Damages divided

appropriately

Ex: Property destroyed by 20 cows trespassing. 15 cowsowned by D1, 5 cows owned by D2. D1 pays 75% and

D2 pays 25%.

b) Two or more Ds; each D alone could have caused the

injury????

o Either of Ds action would have accomplished the same result, so

neither was truly a but for cause of the injury.

o Test: Substantial Factor was Ds negligence a substantial

factor contributing to Ps injury

o Rational:

Kingston v. Chicago (1927) D railway started one fire which united with another

fire of unknown origin. The joint fire destroyed Ps

property

Held: So long as Ds fire was a substantial factor

in the injury, D may be held liable for the injuries caused

D is liable for full damages if neither of 2

wrongdoers is the but-for cause, they cant just get off the

hook both are jointly liable (its not really a but for test

here)

c) Burden-Shifting or alternative liability:o Situations where more than one D is negligent but only one

caused Ps injury and it is impossible to know which one of them

caused the injury, the burden shifts to each individual D to prove

that his action wasnt the cause-in-fact of Ps injury

o If no D can meet the burden, all Ds will be liable

Summers v. Tice (1948)

Facts: Ds were both hunting quails. They accidently shot

P in the eye and in the lip. It was unclear whose shot hit P in

the eye.

Both parties are individual tortfeasors but they will be

looked at jointly because there is no way to determine whose

shot was whose

Held: The burden shifts to them to prove who is not

liable. They did not meet the burden, so they are both liable.

Public Policy:

1) This a remedy because of the practical

unfairness of denying an injured person redress


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simply because he cannot prove how much damage

each party did, when it is certain that between them

they did all.

2) On the other hand, it is controversial

because it makes one D who is might not be

negligent bear the burden of showing that he is notliable; and it sometimes, a D that is not liable but

cannt prove himself out might be screwed

d) Market Share Liability DES cases -Sindell

o DES was a chemical used in many different brands of a medicine

taken by women and had negative effects on their daughters after

birth

o DES was fungible (a component chemically identical) and it is

very hard to determine which brand was taken by each woman;

with traditional but for, the women cant recover

o

Solution: P can sue all manufacturers who contributed to thecreation of a general risk of energy, and divide damages based on

the market share of each manufacturer.

Michigan: any defendant may avoid liability by proving

that it did not manufacture the product that injured the

plaintiff

California: regional market share is used

NY: national market share is used, so the plaintiff can

recover from any defendant who participated in the US

market

Sindell has forced companies to keep records of theirsales so that they can limit their liability or sever liability;

does this suffice, ask???

In contrast:

Skipworth v. Lead Industries Association (1997)

P, a baby, suffers lead poising from lead paint used

in Ps house

Unclear which brand of paint was being used

Held: P cant use market share liability because:

1) Some Ds werent members of the industry

when house was painted; and2) Different Ds use different chemicals/methods

(not fungible)

e) Lost Chance doctrine:

o Rational: We do not want to

disincentive proper care of patients who are unlikely to be cured so

we must hold individuals accountable for negligence regardless of a

patients chance of survival


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Herskovits v. Group Health

Coop. (1983)

D diagnosed Ps lung

cancer later than it should have, which decreased Ps

chance of survival from 39% to 25%. P then dies.

Rule: Cause in fact canbe established if Ds negligence is the but for cause of a

decrease in likelihood of survival (lost chance doctrine)

D is liable.

If the loss in chance is

very slim, some courts will not apply it

If the loss is great, you

can use a substantial factor test

P can only sue if the

injury takes place (i.e., death), however, if no injury takes

place, few courts recognize that P can recover for the lossof chance (i.e., recover 20% of death damage, for a 20%

loss in chance)

B. Proximate Causation:

1. General:o Was Ps injury within the scope of the riskcreated by Ds negligence?

o Working from the action forward: was the injury which resulted from

Ds conduct foreseeable, natural or probable at the time D acted

o Working from the injury backward: did anything occur along the chain

of events from the injury to the act which would cut causation? Ex: Actions of 3rd party or P

o If a foreseeable injury results from a negligent conduct, D is liable for

the full extent of injury what matters is foreseeability of injury, not

foreseeability of its magnitude

o Rescuers are always foreseeable, so if D created a risk and a rescuer

got injured, D is liable

o Eggshell Thin Skull Plaintiff D takes P as he finds her If

someone is particularly weak and fragile, and they get injured from a

minor foreseeable harm, D is liable for all of the injuries suffered

Ryan v. New York Central R.R. (1866) D created a large fire which spread to and destroyed Ps house -

two houses away.

No liability too remote. D is only liable for damage that is the

probable and natural result of his acts - foreseeable damage

damage to ONE HOUSE was foreseeable, but damage to others required

addl elements of wind, heat, conditions of houses, etc. P was second

house so no recovery. MORE OF A POLICY CASE AS HE WOULDNT PAY


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FOR THE WHOLE CITY IF IT GETS

Berry v. Sugar Notch Borough (1899)

P was driving a car when the wind blew down a tree that landed

on Ps car. There was evidence that D was going over the speed limit

D argued that speeding was the proximate causation Held: Court rejected Ds argument; said tree is prox. Cause - city liable

for not trimming it

Rule: An individuals ability to recover for injury caused by negligence

is not automatically precluded by his violation of an ordinance

Herbert v. Enos (2004)

P was lawfully on Ds property to water flowers. Ds negligent

repairs of toileT caused overflow, which resulted in water contacting

electric system and shocks P

Held: Ps injury was so remote and unforeseeable. No proximate

cause. YOU COULD ARGUE BOTH WAYS

2. Intervening/Superseding causes:a) Intervening Causes:

o Def: It is a cause:

1) Coming into active operation;

2) In producing the result;

3) After Ds negligence

4) From a source independent of Ds negligence

o Ps negligence is a proximate cause, despite an intervening cause,

if the intervening cause if foreseeable, that is:

1) A reasonable person would anticipate; or2) D should reasonably anticipate under the circumstances

o The intervening act itself must be foreseeable, not the result of the

act

b) Superseding Causes:

o Def: An unforeseeable intervening cause that cancels Ds liability

by breaking the chain of causation from Ds act to Ps injury.

o It is not considered within the risk created by D

o Usually you can argue both ways, as to whether the any act is

intervening or superseding

o All tortfeasors should anticipate further injury from medical

malpractice, so they are liable for injury they caused and the

malpractice injury (however, grossly negligent malpractice might not

be foreseeable, and thus, not superseding)

o Typical Superseding acts are generally:

1) Criminal or malicious, intentional tortious intervening acts, in

some instances;

2) Intervention by one with higher ethical duty to the victim (i.e.,


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parent or guardian);???

3) Extraordinary negligent intervening conduct

4) Acts of God (i.e., floods, tornadoes)

Brower v. New York Central (1918)

P owned horse and cart that was struck by Negt train; driver was

stunned and couldnt prevent theft of barrels. Ds detectives on the train did not stop theft.

Held: D is liable because natural and probable result is THEFT. Its a

dangerous world. The risk of theft was foreseeable to D as D itself

had detectives.

Wagner v. International Ry. Co. (1921) Cardozo - Danger invites

rescue!

Ps cousin was thrown from Ds railway car D is negligent. P went

to search for cousin and sustained injuries in the process

Rule: Negligent parties are liable to those who are injured in the

course of reasonable rescue attempt (when need to rescue was due

to the negligence)

3. Change of Harm:o Majority Rule: D is liable for direct consequences of his act,

foreseeable or not, if there are no other intervening causes (Polemis)

liberal

In re Polemis & Furness, Withy & Co. (England 1921)

Ds servants negligently let a wood plank drop causing a

spark, which ignited petroleum and burned Ps ship. D could

NOT have reasonably anticipated that the falling plank would

cause a spark. Held: It doesnt matter whether D could have anticipated the

type or extent of damage resulting from his negligence; if he

has acted negligently, hes liable for all direct

consequences of the act. (And here, the Arbitrator found

that the spark and fire were direct consequences of the

negligence dropping).

It is no defense to say that the damage was not the natural

and probable result.

Under Polemis, most courts will determine an act as a direct

causation, despite the presence of a subsequent intervening

act

On the other hand, Wagon Mound accounts for intervening

acts, because if it was not foreseeable, it will cut the chain of

causation

Most American JDs have adopted the Polemis rule Does this

mean we dont need foreseeability, just direct cause?????

o Minority Rule: D is liable only for direct consequences that are


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foreseeable conservative

Overseas Tankship v. Morts Dock & Engineering (Wagon Mound #1)

(Australia 1961)

Ds boat spilled oil, which damaged Ps dock; Wind

brought oily water to another place and caused an explosion

Held: P would be liable for damaging the dock, butnot for the resulting fire, as this was not anticipated by D

unforeseeable when he spilled the oil. No proximate cause

(Polemis is wrong).

4. Unforeseeable Plaintiff:

Palsgraf v. Long Island R.R. (1928)

Employees of D railroad negligently pulled man onto speeding train as

he tried to board; he dropped his box containing fireworks (which

employees had no reason to think contained them); they exploded,

tipping over scales in station and injuring P.

Cardozo (Majority): D is only liable to all Ps within the reasonablyforeseeable zone of harm a reasonable person wouldnt have seen

the mere dropping of a parcel would result in this injury; no proximate

cause.

The man trying to board was a foreseeable P, but the injured man was

an unforeseeable P

Andrews (dissent): If the injury was a direct result of the negligent

act, then there is proximate causation, even if P is not in the zone, or

unforeseeable. Agrees with Polemis.

DOES ANDREWS ALLOW AN INTERVENING CAUSE NEGATE NEGLIGENCE

UNLIKE POLEMIS IF THE HARM IS A DIRECT CONSEQUENCE OF THE

NEGLIGENCE

V. Negligence Infliction of Emotional Distress:

A. Elements:

1. P sees someone else become the victim of a tort \

Construction worker sees co-worker crushed by a crane

Parent learns by telephone that his son has just been killed in a

fire

2. Ps distress is both foreseeable and severe

B. Additional one of 3 tests:

1. The Impact Rule (Traditional rule by early courts): NIED is limited to

claims by those who were subject to physical contact by D.

2. Zone of Danger Rule: Someone who is not physically contacted, but

is in the zone of danger at the time of the tort my collect damages for

NIED

3. Limited Forseeability Rule (Dillon): for a D to liable to a 3 rd party for


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NIED:

I. 3rd party actually witnessed the accident

Is watching a video instantly enough? Is watching a video after a

month enough?

II. The distress results directly from witnessing the accident, and

III. 3rd

party is a direct family member to the victim

Dillon v. Legg (1968)

P was hit by D while crossing a public street. Ps mum and

sister were with her and witnessed the entire accident. They

sued for NEID.

Held: Used the limited Foreseeability test and held that D is

liable for NEID.

A reasonable person standard should be applied to the

foreseeability of the injury. Driver would reasonably foresee that

mother of a child he kills in front of her eyes will suffer from

emotional distress.

Affirmative Duties:

o Situations where liability is established due to an individuals failure to act

A. No Duty to Rescue:

o Unless you are the cause of Ps harm or injury (whether you are

negligent or not), you do not have a duty to rescue her

o Critiques:

Leslie Bender (Feminist): This bright line, individualist rule is a

byproduct of male dominated legal theory; patriarchal emphasis

on individual needs reflects a more masculine way of life. Women

would care about the community.

Posner: This rule is inefficient as it is causes a huge social loss and

prevents people from using their information/ability to gain wealth

(People would pay a lot of money to have their life saved).

However, this approach seems infeasible because the market is not

perfect in many situations (cant freeze the moment)

Yania v. Bigan:

D urged P to get in to the water. The rocks around the water were

so slippery that P couldnt get out. D refused to help him and P


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drowned.

Held: D has no duty to rescue. Not liable for Ps death.

o Exceptions:

a) Special relationship (see C below) or

b) RST 324: When A starts rescuing by aid or protection B, A is

liable to B for any injury caused to B by:

1. Failure to exercise reasonable care while rescuing; or

2. Discontinue the rescue, leaving B in a worse position than

when he started rescuing him

B. BUT Duty to Warn:

o Rest. 39: When an actors prior conduct, even though not tortious

creates a continuing risk of physical harm of a type characteristic of the

conduct, the actor has a duty to exercise reasonable care to prevent or

minimize the harm. Codified Montgomery.

Montgomery v. National Convoy & Trucking Co. (1937)

Ds truck stalled on an down the hill of an icy road w/out fault.

Cars passing the crest of the hill would not have time to stop before

hitting Ds truck because of the icy conditions.

D did not put a warning sign by the crest. P crashed into Ds

truck.

Held: using the standard used in Rest. D had a duty to warn to

prevent the harm, but D negligently failed to warn and therefore is

liable (here the act of negligence was failure to act, as opposed to

negligently performing an act that causes the accident).

C. Landowners Duty:

o A tenant is also considered a landowner

o A landowner duty to the people that enter her property is determined

based on the status of the entrant; 3 levels of entrants:

1. Trespassers: have no permission/privilege to enter

Duty: no duty to warn, inspect or repair


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Except if:

I. Under the attractive nuisance doctrine, which requires the

landowner to:

1) Exercise ordinary care to avoid harm to

children;

2) Which is due to a reasonably foreseeable

risk;

3) Caused by a dangerous artificial condition on

the land;

4) In an area where children are likely to

trespass.

5) Also, the risk of injury must outweigh thecost of remedying the dangerous condition.

II. If the trespasser is anticipated owner has knowledge of

frequent use:

Regular passage ways in ones property used by

others

Incentives companies to cut off passageways

Duty: to warn of any known artificial conditions

that are likely not to be discovered by the trespasser

Is this the same as discovered trespasser???

III. Witnessed trespassers (only in some states)

2. Licensee: A person who has express or implied permission by the

owner to enter the land or remain on it, but does not have a

business purpose for entering.

Ex: social guests, emergency personnel (firemen, policemen),

uninvited sales people and someone getting in the propertyto escape the rain.

Duty:

The landowner has a duty to warn them of

hidden/latent dangers but not patent dangers, when

you see an obvious danger say that it is unlikely that P


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will be able to recover because the danger was

obvious and D has no duty to warn of patent dangers

Some courts reject the classification of firemen as

licensees

And a duty to avoid any acts of gross negligence with

regard to any activities that the owner has undertaken

on the premises

But is not under a duty to licensee to repair or inspect

any defects, only provide a reasonable warning

3. Invitee: either (a) enter land by express or implied invitation to

conduct business; or (b) enters for purposes for which the land is

held open to the public.

Ex: Store customers and patrons of places open to the public

(i.e., airport, museum, etc.), and non-emergency public

servants, like postmen and garbage men.

Duty:

The landowner

The landowner has a duty to warn them of

hidden/latent dangers and patent dangers.

And to remove the danger if a warning would not besufficient

And a duty to act with reasonable care regarding

activities that the owner has undertaken on the

premises

Although, firemen have been traditionally treated as

licensees (as they are aware of the danger of their job), some

jurisdictions are moving towards classifying them as invitees.

Areas open to the public generally constitute non-delegable duties or duties that the owner cannot

discharge through an independent contractor

agreement.

The trend is moving for a single reasonable care standard

for both invitees and licensees.


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o Landowners liability to outsiders FC 295.

4. Easement: have express or implied permission to enter, but does

not have a business purpose for entering.

D. Special Relationships:

o RST 315 General Principle (p. 548)

There is no duty to control the conduct of a third party as to prevent him fromcausing physical harm to another unless:

a) A special relation exists between the actor and the third party (i.e.,Father: actor, Child: 3rd party) which imposes a duty upon the actor tocontrol the third persons conduct, or

b) A special relation exists between the actor and the plaintiff which givesthe plaintiff a right to protection

A. Respondeat Superioro Employers can be liable for accidents caused by their employees if theconduct that caused the accident was within the scope of employment

B. Landlord-Tenanto No duty as a matter of law, but landlord has a reasonable duty to

protect against criminal liability in the common areaso Landlord is responsible for criminal actions if they are foreseeable, but

only liable if they are not reasonable (i.e., provide enough security in thelobby)o Standard of care is the level of security as when the tenant arrived

(Kline v. 1500 Massachusetts Avenue Apartment Corp.)o Cheapest cost avoider?

o Colleges and universities have a duty to protect students against

reasonably foreseeable criminal assaulto Kaldor-Hicks efficiency: net benefit even though individual landlords

are losers prevents crimeC. Doctor-Patient

o There is a duty to warn another if one reasonably (held to standard of

reasonable doctor) believes that a patient might cause harm to another(Tarasoff v. Regents of University of California)

Tarasoff v. Regents of University of California (1976)

Student told psychologist that he intended to kill P. Psychologistdid not warn P and did not take further action.

Held: The privilege of Psychologist/patient must be broken if it is

essential to prevent dangers to others. The privilege ends whereperil begins.

Doesnt give doctors a very good standard from which todetermine what is really dangerous, and what is actually just anempty threat (People often express anger by saying I am going tokill him all the time).

D. Lawyer-Cliento Attorney/client privilege, except:


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1. If you are withholding information about a crime or a fraud2. If you know that your client is lying/guilty, you cannot put him on

the stando Journalists have same. But see shield laws (in state only, not fed)

E. Promotional liability:

Weirum v. RKO General Inc.

DJ on a teeny bopper radio station announced that the first

people to find him in his radio van would get concert tickets. Kids

get in accident with P while speeding to get to DJ. P sues DJs

employer.

Knowing audience is all teenagers, and knowing they were going to

try and get there ASAP, radio station should have reasonably

known that they were creating a foreseeable danger by running

this promotion. RKO has a special relationship with its audience.

RKO is Liable!

Filenes Basement Wedding Dress Sale It is Forseseeable that people are going to run around like crazy,

creating a dangerBUT your company still wants this. What do

you as a lawyer do?

Get rid of glass displays, make aisles larger, have more security

guards, have security and blankets outside for the people who

sleep overnight outside your store, traffic directors, etc.Be

Creative!!!

F. Bailment:

o

When you handover goods to someone elses possession, though youretain ownership

o Subject to Statutory Laws (Usually)

Statutes require reasonable care by the party who takes temporary

possessions

Types:

1. Dry Cleaners

2. Parking Garages

3. Valets

G. Dramshop Liability:o Liability for those who sever alcohol to, or encourage consumption of

alcohol by others

ExA bar shows someone the door who is too drunk to drivehe then

gets behind a wheel and injures someone

Allows For:

1. The Injured Person (Plaintiff) to sue the Bar

2. The Driver to sue the Bar (in a few states)

o Person Bringing Suit Must prove negligence on behalf of the bar


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because it was clear the individual was not fit to drive

Typical Evidence:

-I saw him talking to the bartender before he left

-The waitress came over and took their order a dozen times

o Traditionally , confined to bars, restaurants but has been expanded

Sports Stadiums Liable for people drunk driving after sporting events

Servers are required to know exactly who is getting each

beerThey cannot use the excuse of I work an entire section,

how would I know who got the drink

Stadium Defense Hard to tell how drunk someone is when he is

sitting in a seat

Defenses for negligence

Contributory negligenceo Plaintiffs contributory negligence is a completer bar for recovery in

contributory negligence jurisdictions

o The only exception is under Last Clear Chance doctrine, under

which if the defendant has the last chance to avoid the harm, but

failed to do so, the plaintiffs contributory negligence will not be a

bar for recovery (but the defendant must have a chance to be able

to act)

o Plaintiffs contributory negligence is a completer bar for recovery in modified

comparative negligence jurisdictions, if the plaintiff is more than 50% at fault

o Plaintiffs contributory negligence will not prevent recovery in modifiedcomparative negligence jurisdiction, if the plaintiff in less than 50% at fault

Comparative negligence

o In pure comparative negligence jurisdictions the plaintiff can recover

damages for the percentage of fault attributed to plaintiffs negligence

Implied Assumption of the risk:

o Requires that P had understood the risk and assumed it by his conduct

o Only applies in contributory negligence jurisdictions

o It is a complete bar to recovery

Express Assumption of the risk:

o

Requires that P had understood the risk and assumed it expressly (not just byhis conduct)

o Applies in all jurisdictions

o It is a complete bar to recover

Strict Liability

o General situations in which strict liability will be imposed:


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1) Animals

2) Ultra hazardous or abnormally dangerous activities

3) Defective, unreasonably dangerous products (products liability)

o Purpose:

a) Encourages people to avoid high risk activities, thereby limiting injuries

and forces activities whose risks outweigh utility into insolvency

b) Encourages those who continue high risk activities to take

precautionary measures

c) Forces the Least Cost Avoider (who can best spread the costs) to

absorb the cost of the abnormally high risk

Internalization of costs allows the price to reflect the true cost of

the activity

o Theories:

a) Calebresi if we can be sure who the least cost avoider is, then we

should SL

b) L & E Activities for which risks outweigh benefits to society will not be

able internalize/spread the costs, and will rightfully go into insolvency

o Contributory negligence is not a defense for SL, but assumption of risk is????

1. Animals

o The strict liability is limited to the kind of harm which makes the

animals abnormally dangerous.

A wild animal knocks over someone while chasing a cat. No SL

A. Domesticated Animals

o The owner is strictly liable if he knows or has reason to know of

the domesticated animals dangerous propensities (uncharacteristic of

the species)

If a domesticated animal has bitten someone before, the owner


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is strictly liable for any further attacks One free bite rule

If a domesticated attacks P, and the owner has no prior

knowledge of any dangerous propensities, then P can only bring

a negligence claim against the owner

B. Wild Animals

o An owner of a wild animal is strictly liable for the damage

caused by her animal, (regardless of the owners knowledge of the

animals dangerous propensities)

An animal is wild if not used in the service of mankind and will

not come back if you let go (animus revertendi)

o Claims for injuries by animals at zoos and national parks are brought

under Negligence.

o Same for anyone keeping a wild animal as a part of public duty.

Gehrts v. Batteen (2001)

P asks D if she could pet her dog. D consents and the dog

bites P.

Held: No strict liability; the dag has never bitten anyone

or should dangerous propensities before, so Negligence

standard applied.

D did nothing unreasonable. D is not negligent.

C. Cattle trespass:

o An owner or possessor of livestock or other animals, except for dogs

and cats, that intrude upon the land of another is subject to strict

liability for physical harm caused by the intrusion. Res 21.

2. Ultra-hazardous or abnormally dangerous activities

o One who carries on an abnormally dangerous activity is liable for

the harm that results from the activity, even if he has exercised theutmost care to prevent that harm. Rest 519.

o The strict liability is limited to the kind of harm which makes the

activity abnormally dangerous.

Ex: if train carrying dynamite runs over a person, the owner of

the train is not strictly liable.


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Madsen: Road blasting company not held liable for the loud

noises they make which caused animal to eat its young.

o The following factors determine whether an activity is

abnormally dangerous (sliding scale):

1) extent to which the activity involves a high risk of serious harm

to people/property;

2) likelihood that the harm that result from it will be great;

3) inability to eliminate the risk by use of reasonable care;

4) the extent to which the activity is not commonly engaged in the

particular community; and

Blasting in desolate area v. blasting in urban area

5) the extent to which the activitys danger outweigh its utility to

the community (i.e., balancing test).

o Least cost avoider argument (you lay out the elements,and say if D is liable he will have an incentive to fix theproblem)

o Efficiency argument: L & E Activities for which risksoutweigh benefits to society will not be ableinternalize/spread the costs, and will rightfully go intoinsolvency

o Contributing actions of others: One who carries out an

abnormally dangerous activity is still liable for all resulting harm even itis caused by innocent, negligent or reckless conduct of a third party; an

animal; or a force of nature. DOES THE EVENT OF THE INJURY HAVE TO

BE FORESEEABLE??? A PLANE CRASHES IN A FACOTORY OF

EXPOLOSIVES??

o Ps assumption of riskof harm from an abnormally dangerous

activity bars his recovery for the harm

o If Ps activity is abnormally sensitive, D is not strictly liable for

harm to P resulting from Ds ultrahazardous act. Rest 524A????

Ex: Blaster not liable if the neighbor next door is building

a house of cards and it falls down.

Indiana Harbor Belt RR v. American Cyanamid Co.

(1990) (Posner)

D hired RR company to ship its chemical


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harm to others would not make the continuation of theconduct feasible

o In a nuisance claim, whether the conduct is

unreasonable depends on the burden on Ps enjoyment and use ofhis property versus the utility and necessity of the Ds conduct.

Also it is an objective standard

Church bells are not a nuisance according to areasonable person standard. Rogers.

An activity to be a nuisance must offend areasonable person of ordinary sensitivities, not anabnormally sensitive plaintiff. Otherwise, factories wouldshut down every time a sick person passed by, etc. Industrycould not prosper. Roger.

o The difference between trespass and private nuisance is physical

invasion.

Trespass requires physical invasion (building an overhang overPs property; sending ones child to P when P asked not to)

Private nuisance does not require physical interference (stronglights, etc.)

A conduct can both physically interfere with the use of property(trespass) and disturb the propertys owner use and enjoyment ofher property (private nuisance)

Ex: Ds cement plant sends massive dust onto Psproperty

o Protects occupants, not just owners.

o 3 types ofinterferences that may constitute the basis of a privatenuisance

1. Land itself (i.e., water pollution, ground shaking that damagesbuilding)

2. Health/comfort (i.e., air pollution, noxious odors)3. Peace of mind (e.g., funeral parlor, leper, mental hospital,

explosives factory)o Remedies in a claim for private nuisance:

1. Past and present damages, and possibly permanent.2. Injunction

Boomer v. Atlantic Cement(1970)

P lives in a house next to Ds cement factory. Pshouse always gets covered with dust and pollution fromDs factory.

Because D has invested 45 million in plant andemploys 350 workers, the court determines refuses toissue an injunction.

Jurisgenerative Solution: D will pay damages to P butkeep the factory open

Rule: permanent damages may be awarded instead ofinjunction where the value of the activities in question is fargreater than the relatively small damage they cause.

Ct follows basic Coase analysis: factory v. homeowners(much like ranchers v. farmers). Here Ps would not prevail


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b/c the transactional costs (of organizing many Ps with smallamounts of damages) would make litigation not worth theirtime.

You can argue efficiency in determining the type of remedy(Pareto or )

Caose Theorem

Feminist theory: Feminists challenge laws that were writtenduring a period that reflected a male dominated society, asbeing biased. They criticize the law as being jurispathic andthey argue for a jurisgenerative approach. Here, P could usethe feminist theory to argue that an injunction should be appliedhere, but that the relief should be for damages paid to thedefendant. This would be a jurisgenerative solution. Also,Paretos efficiency theory, this would be an efficient solution asit will not produce any losers the landowner will getcompensated and the [ ] will get to keep his [ ]. This solution willalso be efficient under Kaldor-Hicks efficiency theory, even if Pwill be considered a loser by not getting an injunction, as thissolution will produce more winners and net benefit to society, asD will be able to [ ].

Under Coase 1, regardless of the allocation of rights, theparties will reach the most efficient solution that is determinedby the market, assuming there are no transactional costs.However, Coase 2 demonstrates that the assumption of notransactional costs is unrealistic; therefore, transaction costscould affect the outcome. In this case, if P will only get damages,transaction costs for litigation might stop him from suing.

o Stray voltage from wires injuring Ps property was not a nuisance. It

could be a nuisance if is unreasonable, but here it wasnt. Vogel.o

D adds floors to his hotel that blocked sun, air and view from Psproperty causing P to lose business. This conduct is not a nuisance.Fontainebleau Hotel.

Exception: If a conduct is done with the malicious intentto harm the D (spite fence), then private nuisance could applyas it is likely that there is no utility or necessity to P from theconduct, while the conduct places a burden on Ps enjoymentand use of his property

Ex: Painting a wall in yellow with obscene drawingsfacing Ps property to annoy him

o Coming to the nuisance in and of itself, doesnt constitute a

defense to a private nuisance, however, it is considered in determining

the unreasonableness of the conduct) Ex: Moving to a house knowing that there is a mosquito ranch next

to it, unless you intentionally moved to the house to bring a suitagainst the ranch owner.

2. Public Nuisance:

o A conduct or condition is a public nuisance, if it unreasonably


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interferes with the health, safety, or convenience of the general public in

public property.

o Only the government can bring a public nuisance claim

o Private citizens cannot bring a public nuisance claim unless they

can show a special injury injured

A condition that closes a road preventing you fromgetting to you house, is one that you can bring a public nuisance claim

for, as opposed to closing the road where everyone cant get to work

Partial loss of access to land is usually not a basis for

public nuisance claim by a private citizen (i.e., the direct street to your

home is blocked but there another street that will get you to your

home)

Personal injury from a condition

3. Takings:

Products Liability

oYou can sue under negligence standard if you can prove that the

manufacture or seller acted in an unreasonable way (was at fault)

o Benefits/Purpose:

1. Manufacturers are usually the least cost avoider as they can

redistribute the liability for injuries through insurance to all users of the

product. Thus, the price of the product will reflect its true cost, rather

than externalizing accident costs to innocent victims.

Also they can anticipate all hazards more than the public

2. The risk of liability encourages manufacturers to make their

products safer

3. Encourages innovation/product modification

The one making the safest product for cheaper will be profitable

The one who cannot internalize safety costs for a reasonable

price will go in to insolvency (efficiency argument)

o Negatives:

1. Product release is much slower usually marketed outside the U.S. first to

assess risks

2. Raises the cost of our products

o Law and Econ: Prefer the Hand formula because they think it is more efficient

because it encourages Ds to make a calculation of utility every time they acto Goal: Improve product safety until the point where the cost of the accident is

less than the cost of improving the product

We dont want every car to be a Volvo - in safety - because not everyone

can afford Volvos.

o Test: Under R2d 402A, a seller engaged in the business of selling a

product is strictly liable for harm caused to a consumer, user or his property


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caused by a defective condition in the product that is unreasonably dangerous to

the consumer, user or his property, if the product has not undergone significant

modifications after leaving the sellers control.

o A plaintiff can bring a products liability claim based on strict liability if he

was physically harm by a product that was sold by a seller, who engages in the

business of selling the product, and the product has not been substantiallymodified after leaving the sellers control, as long as the harm was caused by a

defect in the product that is unreasonably dangerous

o Break it down:

R2d 402A authorizes recovery:

1. By a user

2. From a seller, who engaged in the business of selling the product (i.e., a

merchant, not a casual seller like eBay sellers or craigslist or seller of his

car)

Any merchant in the distribution chain (privity is not required)

Service providers who occasionally sells products are not merchants

3. For physical harm (i.e., economic loss like repairs or lost profits are likelynot covered)

4. Caused by a defective product

5. That is unreasonably dangerous

6. If the product has not undergone significant modifications (to the

defective aspect of the product) after leaving the Ds control (usually

presumed if it goes down the distribution chain)

7. Additional: Foreseeable use

Foreseeable misuse: If D should have reasonably foresee

his product being used in another matter, he must build it to

withstand such use

Ex: Standing on a chair is a foreseeable misuse

o No privity required: everyone can use if harmed by a defective product

o Defenses:

1. Substantial alteration of the product

2. Unforeseeable misuse

Getting cut by glass after throwing a beer bottle at the wall

3. The defect is open and obvious

Knife cutting someones finger

1. Manufacturing Defects:

A product has a manufacturing defect if departs from the manufactures

own specification (design) for the product(different from the all the othersthat came from the same assembly in a way that makes unreasonably

dangerous), and a result the product dangerously defective.

You still have to prove the elements of product liability

2. Design Defects:

o A product can be defective if its design makes it unreasonably dangerous to the


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user

o The consumer expectation test:The product is unreasonably dangerous if

its dangerousness is beyond the expectation of the ordinary consumer who is

familiar with its characteristics

Ps favor this test

Doesnt place a burden on them to demonstrate a safer design, andits easier and cheaper as they need to show is that the product was

less safe than a reasonable consumer would expect

However, it doesnt always support broader liability (i.e., P thinks a

machine with an exposed switch is a reasonable design satisfies the

consumer expectation test, but it is easy to relocate it to avoid the

risk fails the risk utility test)

Critique:

Its hard for a jury to judge the ordinary consumer

Even if there is a cheap, safe alternative, a product can still pass

this test

OR

o The risk utility test: HOW IS IT DIFFERENT FROM THE REST 3RD???

Rest 402A has another test, the risk-utility test, while Rest 3rd

uses a similar test.

Under this test, a product is defective if its danger outweighs its

utility, considering the feasibility of a less dangerous, alternative

design, this test looks at several factors including, the gravity of

the danger used by the challenged design, the likelihood that

such danger would occur, whether the defect was known or

should have been known to the manufacturer, and whether there

is an alternative design that is safer, economical and practicable Factors to consider:

1. How useful is the Product?

2. How likely is it that those risks would occur?

3. How risky is it to use?

4. Is it Common? How many people use it?

5. Are their reasonable/not prohibitively expensive

alternative designs?

o Rest 3rd test: A product is defectively designed if it has a reasonable alternative

design that is:

a) Safer;

b) economical (same or just a little bit more expensive); and

c) practical (a dull version of a knife is not practical).

Puts the burden of showing a reasonable alternative design on P

3. Defects due to Failure to Warn:

o A product is defective if

a) It has residual risks that cant be eliminated by physical redesign;

b) The user is unaware of these risks; and


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c) It lacks adequate warnings about the risks

An adequate warning is one calculated to clearly alert the user of

the danger and how to avoid it

o Factors to Consider:

(1) Extent and likelihood of the risk(2) Users likely understanding of the danger

(3) Means available to convey a warning

(4) The likelihood that too many warnings will decrease

sales/effectiveness/utility

o In these cases the user is the cheapest cost avoider, as she can avoid the risk

posed by the product at a lower cost than the cost of redesigning the product

(given the user has adequate warning)

o Exception: Learned Intermediary: Warning may be given to a learned

intermediary who is presumed to care for the consumer

MacDonald v. Ortho Pharmaceutical

P took birth control pill and developed a stroke

The pills has warning for risk of death but not a stroke

Held: D has a duty to warn users of birth control pills not just

intermediary pharmacist/doctor, as birth control pills usually do not

involve significant contact/consultation with doctor

If a manufacturer markets directly to consumers, it cant pass off the duty

to warn to a learned intermediary and must do the warning themselves

o Comment K

There are some products that are so beneficial to society, that even

though they may cause some harm, it would be unfair and wrong toapply a strict liability test

Because this is a pharmaceutical product, it falls under Comment K of

rest. 402A, provides that some products, like pharmaceutical products,

has a great social value thats why their manufacturers should not be

held liable under a strict liability standard. Under, Kearl, if there is a

product defect in a pharmaceutical product, a mini-trial will be held to

determine whether to apply strict liability or negligence. Under Brown,

any pharmaceutical product would fall under Comment K, and the

manufacturers of this product will be held liable only under a

negligence standard. Under the restatement 3rd view, a drug is not

defective if any reasonable health provider would prescribe it to any

class of patients

Applied mainly for pharmaceuticals

-Ex. Polio Vaccine

Plaintiffs conduct for strict liabilityImplied Assumption of the risk:


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o Requires that P impliedly understood the risk and assumed it by his conduct

o Is a complete bar for traditional strict liability claim

o But for products liability claims: courts generally require a defendant to show

that:

1. The plaintiff understood the risk and assumed it; and

2. Acted unreasonably in using the productExpress Assumption of the risk:

o Requires that P understood the risk and assumed it expressly (not just by his

conduct)

o A complete bar to all strict liability claims

Defamation

Defamation requires the following:1. A false statement by D tending to harm Ps reputation in a respectable

segment of the community

2. Of or concerning P It doesnt need to refer to P by name, as long as it is reasonablyunderstood to refer to him

3. Negligently or intentionally published (communicated) to at least one thirdperson capable of understanding the statement

Negligent publication is where D doesnt intend to communicate thestatement to a third party, but it was foreseeable that acommunication would occur.

4. Some degree of fault as to falsity5. For slander, special harm

Corporations and businesses can be defamed

Opinion: a statement of opinion cant be defamatory, unless its backed by

false facts Ex: if the listener to the statement thinks its based on an undisclosedfact, then its a fact

Parody and humor are protected as a form of opinion

If the statement is a matter of public concern, P has to prove its falsity, if not,P only has to allege falsity in the complaint, and D has to prove the statementwas true in order to use truth as a defense.

Under the single publication rule, a book or newspaper or radio/televisionbroadcast are treated as a single publication

Someone who repeats or republishes a defamation is liable as if he or she isthe original publisher

Someone who delivers a defamatory matter is not liable as long as he did notknow or have reason to know of the defamatory content (a newspaper deliveryservice or library)

Internet service providers are not liable

You cant defame the dead

General damages in defamation: a harm of a non-pecuniary nature

Humiliation, harm to reputation w/out financial losses, etc.

Court dismissed the argument about fiction, holding that if a character can be


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reasonably construed to be that person, its defamation. Muzikowski

If a word has a double meaning, the court will assume the less offensive one

Large groups are generally unable to maintain defamation actions, butsmaller groups are

The smaller the group the more likely they can succeed in maintaininga defamation action

The defamation matter should be about the whole group, not just some

Intra-corporate communications are not treated as publications as long aswithin the scope of employment (i.e., CEO gives a letter to secretary that says Pis a bad employee, not a publication)

CEO gossiping with another employee and says P is a bad employee publication

1. Libel

Is a publication of defamatory matter that is either written or in somepermanent form

Radio and television broadcasts are generally treated as libel

Libel per se: is a statement that is libelous on its face

When there is no additional facts required to establish its defamatorynature

D names a person in the defamatory statement

Libel per quod: is a libel that is not defamatory unless the statement istied to some extrinsic facts.

Some jurisdiction requires a showing of special damages (seebelow) for libel per quod

A headline may be libelous even though the full story explains it, if areasonable person would come to a different conclusion by reading theheadline than the one in the story

2. Slander

Is a publication of defamatory matter that is spoken by words ortemporary

For slander, P needs to prove special damages or harm (pecuniary losses)

A lost job, gift or business opportunities

If P cant prove them, he wont be able to recover at all

Very hard to prove

For slander per se, P doesnt need to prove special damages or harm

Slander per se:a) Statement reflecting adversely on Ps business or profession

Calling a doctor a butcher, a military person a cowardb) Statement imputing a loathsome disease to Pc) Statement accusing P of being a criminald) Statement imputing a serious sexual misconduct to P

Non-constitutional defenses:

1. Consent

2. Retraction

3. Truth is a defense

With a media defendant and a matter of public concern, P has to

prove the statement is false, otherwise, P only has to allege falsity in his


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complain, and D has to prove truth as an affirmative defense

4. Absolute privileges (not abrogated by malice)

a) Judicial proceedings

b) Legislative proceedings

c) Executive communications

d) Communications that P consented toe) Communications between husband and wife

f) Communications required by law to be published such as media

broadcasts of political statements

But if a person says the same thing outside these

proceedings or communications, he might be liable

5. Qualified privileges (abrogated by malice)

a) Protection of the interest of the publisher

b) Protecting the interest of the reader/listener (telling D that P is a thief

to protect Ps interest)

c) Protecting the interest of the public (reporting a crime)

d) Family relationships (only immediate family members)e) Protecting a common interest (such as partners or business associates

or members of a group)

Most states take the position that qualified privileges

protects only a person who reasonably believes that the

defamatory statement is true

It should be done to protect the interest

6. New York Times privilege: for defamatory statements of public officials or

public figures, P must show actual malice: knowledge of falsity or reckless

disregard of the falsity

7. Self-defense privilege: a person can make a publication in an appropriate

manner anything that he reasonably believes to be necessary to defend his

own reputation against the defamation of another, including a statement that

the other is an unmitigated liar.

Privacy1. Intrusion upon seclusion:

A defendant is liable for invasion of the plaintiffs privacy if he

intentionally intrudes, physically or otherwise, upon the seclusion or

private affairs of another, if the intrusion would be highly

offensive to a reasonable person. Has to be in a private place cant be in public

Doesnt require a publication

Must be highly offensive to a reasonable person (excludes

highly sensitive individuals)

2. Public Disclosure of embarrassing private facts

A defendant is liable for invasion of plaintiffs privacy if he gives


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publicity to a matter concerning the plaintiff private life if the

matter publicized a) would be highly offensive to a reasonable

person and b) is not of legitimate concern to the public.

Disclosure to a third person is considered publicity

Applies to true facts, not just false ones as in defamation

Must be highly offensive to a reasonabl

Documents

Torts Outline Turely Spring 2011