BIG Torts Outline

7/22/2019 BIG Torts Outline

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TORTS I. OUTLINE Exam: December 5, 2013 9 a.m.

Tort: 1A civil wrong other than a breach of (K), for which a remedy may be obtained, 3usually in the form of damages; 2A breach of duty that the law imposes on people who stand in a particular relation to one another. Timmons A private party suesanother (Family of Nicole Brown v. OJ)

Major purposes of tort law: Peaceful means for adjudicating the rights of the parties who could be prone tovigilantism; 2 deter wrongful conduct; 3Encourage socially responsible behavior; 4Restore injured parties to theiroriginal condition by compensating injury; 5 Vindicate the rights of Redress; 6

I. Development of Liability Based on Fault1. Brown v. Kendall

a. Facts: (P)s and (D)s dogs are fighting D hits the dogs with a stick to separatethem, accidentally hits the P and injured him in the eye.

b. Issue: Is the (D) at fault If the inflicted injury was an unintended consequence?c. H/R: The (D) is not liable for injury or damages because he took steps to prevent

it and it was not foreseeabled. Additional: Forseeability

2. Cohen v. Pettya. Facts: (D) was driving, fainted (P) thrown through the roof of the car.

b. Issue: Is (D) actionable?c. H/R: No actionable for negligence because no prior indication that the fainting

spells were likelyd. Rule: When the (D) is suddenly stricken with an illness there is no liability based

on fault. Since there is no prior knowledge of the defect, the (D) cannot be heldliable.

3. Spano v. Perinia. Facts: While building a tunnel for NYC the (D) set off a lot of dynamite and the

resulting blast damaged the (P)s property. b. Issue: Is the (D) at fault?c. H/R: P can recover.d. Rule: You dont need evidence of negligence to assess the f ault in blasting.

II. Intentional Torts: Intentional Interference With Person or Property

a. Intent- The state of mind accompanying an act, esp. a forbidden act. Intent is the mental resolution ordetermination to carry out an act.

b. To satisfy the qualifications of an intentional tort:i. There must be purpose or intent

ii. OR a knowledge to a substantial certainty that an outcome will occur.c. There is a spectrum that ranges from Negligence (reasonable forseeability), to Recklessness (Highly likely

that an event will occur, the (D) is aware of the risk), to Intent (There is purpose or knowledge to asubstantial certainty that an outcome will occur.

1. Garratt v. Daileya. Facts: (D) is a five year old boy pulled out chair from beneath (P) (P) was

injured b. Issue: Is a minor liable for creating a tort of force (i.e. Battery)?c. H/R: Yes, The (D) knew that without the chair the (P) would fall (D) knew with a

substantial certainty that the (P) would fall if the chair was not there when shewent to sit.d. Rule: A tort may be deemed intentional if the (D) knew to a substantial certainty

that a harmful or offensive contact would occur Battery is the intentionalinfliction of a harmful or offensive contact.

e. HYPO: Timmons throws a marker and aims for someone. She doesnt think itwill hit him but it does. Is this battery?

i. SHE IS SUBSTANTIALLY CERTAIN IT WILL NOT HIT HIM IS ITSTILL BATTERY? YES , HER PURPOSE WAS FOR IT TO HIM.

2. Spivey v. Battaglia (Bad Law)


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a. Facts: (P) and (D) were on a break at work, (D) knew that she was shy butinsisted on giving her an unsolicited friendly hug. Half of ( P)s face became

paralyzed.b. Issue: If there is no substantial circumstances or even reasonable forseeability is

the (D) still liable for an intentional tort? c. H/R: The (D) is actionable for Negligence but for no intentional tort because he

had no reason to expect the bizarre results herein. d. Rule: The intention must be for harmful or offensive contact not just the intent to

contact. e. Additional notes: This is BAD LAW. TIMMONS NO LIKEY.

d. Battery: An intentional and offensive touching of another without lawful justification.i. Elements of battery:

1. Intent2. Contact3. Harmful or Offensive

ii. **Hypo: coach slaps the ass of a player leaving the field after a good play, also you get a hug from aclassmate at a high school reunion. Is this battery? The intent element is satisfied in both, but is there

battery? Thus determining whether or not an act is offensive could clog the courts. So the test has tobe what would be offensive to a reasonable person that is not unduly sensitive to personal dignity.

e. Restatement of the Tort: 13. Battery Harmful Contact:i. An actor is subject to liability to another for ba ttery if

ii. (a) he acts intending to cause harmful or offensive contact with the person of another or a third person, or an imminent apprehension of such a contact, and

iii. (b) a harmful (or offensive) contact with the person of the other directly or indirectly results.iv. (2) An act which is not done with the intention stated in subsection (1a) does not make the actor

liable to the other for a mere offensive contact with the others person although the act involves anunreasonable risk of inflicting it and therefore would be negligent or reckless if the risk threatened

bodily harm.1. Cole v. Turner

a. Facts: Turner committed battery against Cole. No clear facts are provided. b. Issue: Does the least touching of another in anger constitute a battery?c. H/R: Yes, any violence, struggle, or forcefulness in a rude or inordinate manner

constitutes a battery.

d. Rule: If there is any struggle to a degree that may do hurt then the (D) is liable for battery. 2. McGuire v. Almy

a. Facts: (P) was a nurse hired to take care of an insane (D), who was mentallyderanged and spent most of her time in her room. (D) threatened to kill the (P) isshe entered the room, the (P) was going into the room in the scope of heremployment and in an effort to protect the (D) from herself.

b. Issue: Is an insane person capable of intent and are they liable for their intentionaltorts?

c. H/R: Mentally ill are liable for their intentional torts if they are capable of havingthe intent in the first place.

d. Rule: An insane person is liable if they are capable of having the required intentand then acting on it. Mentally ill are liable if they are capable of intent and acted

under their intent for that tort.e. ****HYPO: What if the (D) thought that the (P) was going to kill her? MISTAKEN IDENTITY DOES NOT RELEASE LIABILITY.

i. The same intent for the mentally ill usually applies to children. ii. This case qualifies for the second reason of tort law; compensation. This

also encourages those that are in charge of the mentally ill to devote morecare to their supervision.

3. Ranson v. Kittnera. Facts: Trespass to chattels; intentional interference with the property of another

We can say that this was intentional because the intentionally shot an animal.


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b. Issue: Are the (D)s liable for killing the dog if there was no intent to kill the dogand the (D)s thought that they were shooting and killing a wolf?

c. H/R: yes mistake does not negate liability.d. Rule: (D)s good -faith mistake about person or property does not affect the intent

of the tort of trespass to chattels. Mistake does not negate intent.e. Additional: This is our introduction to transferred intent.

*Transferred Intent:- If the (D) intends harmful or offensive bodily conduct on A, but inflicts it on B than the (D) is still liable for

battery.- There are three types of transferred intent:

1. Person A to Person B2. Tort 1 to Tort 23. Person A, Tort 1 to Person B, Tort 2

4. Talmadge v. Smitha. Facts: (D) and (P) were playing in the woods on the (D)s proper ty. (D) was

aiming a stick at another boy when instructing him to get off of the roof of a shedand hit the (P) by mistake.

b. Issue: Can intent in battery transfer to another target?c. H/R: There is liability in that you intended to injure someone at alld. Rule: Intent can be transferred and an actor can be held l iable because there was

intent present in the first place.5. Wallace v. Rosen

a. Facts: (P) brought suit against (D) for battery when the (D) contacted the (P) toget her attention during a school fire drill.

b. Issue: Does an unwanted touching of a person blocking a stairway during a firedrill constitute a battery? Keep in mind that a battery requires intent.

c. H/R: No, touching a person blocking a stairway during a fire drill (where there isa naturalness of a gitation) applies to Prossers crowded world. The existence of acrowded world means that there is implied consent.

d. Rule: In a crowded world unless the (D) has special knowledge to the effect ofwhat would or what would not constitute harmful or offensive to an individual (P)the test is what would be offensive to an ordinary person not unduly sensitive as to

personal dignity.e. ****Hypos:

i . A friendly stranger hugs you on the street are they liable for battery?YES, SOCIAL IGNORANCE DOES NOT EXCUSE BATTERY. Intent is

satisfied with the intent to contact not with the intent that the contact beharmful or offensive.

1. There are two options for intent when deali ng with battery.Timmons says intent to contact. Minority of jx say that the intentmust be to harmf ull y or offensively contact. So our (D) satisfies1 but not 2.

ii . Tackle football with friends is injury a battery? 1. No there is consent you know what you re getting yourself

into.

iii.

Stranger kisses a sleeping woman on the train is that battery?1. Yes the circumstances are definitely offensive even though she isnot aware.

6. Fisher v. Carrousel Motor Hotel Inc.a. Facts: (P) In the line of the buffet at a work convention a hotel employee

approaches the (P) and knocks his plate out of his hand while shouting a racialslur.

b. Issue: Does the snatching of a persons plate with the use of a hostile racist epithetconstitute a battery under the law?


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c. H/R: Yes, a (D) is actionable for battery if the contact that is harmful or offensivetouches something that is intimately connected with the body so that it may beregarded as a part of the person.

d. Rule: We learn that there is an exception to the rule of contact: To commit batteryagainst any object that is so attached to the person that it may be considered partof the person I as though you are committing battery against the person.

e. Additional notes: 1The tort of battery does not just act as compensation for physical injury, it also exists in order to handle issues of dignityOFFENSIVENESS. 2This also adds to our knowledge of how the courts work.The courts can stretch a rule to rule for the (P) or very rarely they can create a newtort.

f. Assault: The interest protected by the tort of assault is the right to be free of fear or apprehension ofimminent bodily contact.

i. Elements of Assault:a. The (D) must act with the intent to place the victim in apprehension of imminent

harmful or offensive contact or to make such a contact. b. The victim must have reasonably been in a place to suffer from the apprehension

of harmful or offensive contact.c. ADDITIONALLY: the test for assault can be satisfied by intent to place the

victim in apprehension of a harmful or offensive contact or to actually make thecontact.

d. A conditional threat is still an assault if the condition forces the P to give up herlegal rights.

2. I de S et ux. v. W de S (1348)a. Facts: D came to the Ps house with the intention of buying some of the Ps wine.

The tavern was closed and the D beat on the Ps door with a hatchet. The Ps wifeopens the window and tells the D to stop; The D strikes the door again with thehatchet.

b. Issue: Is this assault? No harm was done so why would the court allow for thisaction?

c. H/R: Yes! Harm was done, it was offensive- the P was in apprehension ofimminent contact.

d. Rule: A D is actionable for assault if the P is put in apprehension of imminent

harmful or offensive contact.e. Additional notes: The D is liable here under the doctrine of transferred intent

the D meant to commit a battery but instead committed assault.3. Western Union Telegraph Co. v. Hill: THERE IS AN IMPRECISION IN THE

LANGAUAGE OF THE COURT HERE {EVERY BATTERY CONTAINS ANASSAULT./ ASSAULT IS AN UNLAWFUL ATTEMPT TO COMMIT A BATTERY.

a. Facts: Ds employee regularly fixes the Ps clock. Ds employee allegedly offeredto pet the Ps wife.

b. Issue: I s this assault? He was just talking to her and she was not really proximalenough for him to actually touch her a barrier separated them.

c. H/R: No, apprehension of the harm must be reasonable by the P. There is no waythat given the dimensions of the counter, the counter boy would have had theactual ability to touch the P. The Ps apprehension was not reasonable.

d.

Rule: For assault to occur there must be an intentional unlawful attempt to touchanothers person in a harmful or offensive manner such that it creates a well-founded apprehension of imminent battery. Assault turns on whether the Ds actwould place a REASONABLE PERSON in apprehension of IMMINENT H/Ocontact.

e. ADDITIONAL NOTES: so does it matter for tort purposes if the D actually hasthe ability to harmfully contact the P?

1. NO> not for assault (Real looking toy gun)f . ***HYPOS:


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i. IF YOU WERENT A GIRL ID PUNCH YOU. Not an assault, thewords used in the threat negated the imminence of the threat.

ii. THIS GUNS NOT LOADED while waving a gun in my face. Still anassault there is an issue of trust due to the presence of the gun whichrenders the threat more imminent.

iii. YOUR MONEY OR YOUR LIFE yes still an assault. Theyre relyingon your apprehension in order to get your money and they are forcingyou to give up you legal right to your property.

iv. A MAN WITH A DISPROPORTIONATELY LARGE FIST ISWAVING HIS FIST IN MY FACE. Yes, this is still an assault Thereis a threat of imminent harm.

v. SOMEONE FIRES A GUN AT YOU WHEN YOUR BACK ISTURNED AND THE BULLET MISSES YOU. IS THIS ASSAULT ORBATTERY? Neither- there was no contact so you cannot sue for batteryand you were not in apprehension because your back was turned.

g. INTENT AND APPREHENSION ARE KEY BUT FEAR IS NOTh. IMMINENCE is a necessity

g. False Imprisonment-i. Elem ents: intent, confinement to a bounded area, awareness of the restraint, possession of the Ps

property.1. Big Town Nursing Home Inc. v. Newman:

a. Facts: The p was checked into a nursing home by his nephew who signed aform that the P could be held against his will for any length of time. The nursinghome put him on a locked ward with delinquent patients. He was taped within achair and he was not allowed to use his phone or have any visitors unless themanager knew them. He tried to leave the home 5 or 6 times each was a fail andresulting in his subsequent stints in the restraint chair.

b. Issue: Does the Ps commitment to the home constitute false imprisonment? c. H/R: Yes it does count as false imprisonment they held his belongings and he

was unable to leave the home despite being aware of his confinement and beingaware that he was restrained.

d. Rule: Confinement to a bounded area is sufficient to constitute falseimprisonment. The imprisonment began from the first time that he asked to leave.

2. Parvi v. City of Kingstona. Facts : Drunk man picked up by the cops, driven to a nearby golf course, droppedoff wandered onto the highway and sustained injury.

b. Issue : whether a P who is aware of his confinement at the time but does notsubsequently remember it can be considered falsely imprisoned.

c. H/R : Yes, he was falsely imprisoned because there is evidence to demonstrate thathe was aware of his confinement at the time that it was occurring.

d. Rule : If the P is aware that he is confined and or restrained at the time it isoccurring then the is actionable for false imprisonment.

3. Hardy v. Labelles Distributing Co. a. Facts: The p was led into a room under false pretenses, she was informed that she

was suspected of stealing a watch. She denied taking the watch and then agreed totake a lie detector test. The meeting lasted between 20 and 45 minutes.

b.

Issue: does this constitute FI?c. H/R: No, she followed the manager willingly and ones the door to the room waslocked she said that she stayed willingly in order to clear her name. She wouldhave followed him regardless of whether or not he had told her that she was beingtaken into the back to be questioned. [Moral Persuasion is insufficient forrestraint].

d. Rule: Moral Persuasion is insufficient for restraint4. Enright v. Groves


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a. Facts: A case of false arrest where the officer demanded that a lady show him herlicense while he tried to write her up or violating the leash laws with her dog andwhen she refused she was taken into custody.

b. Issue: Is this arrest if she committed a crime just not the one that immediately precipitated her arrest.

c. H/R: This is false imprisonment because it was the demand for the drivers licenseand her subsequent refusal that immediately precipitated her arrest. This is not acase of moral persuasion because the officer grabbed her arm and because Groveshad apparent authority so she did not resist. When the P was taken into custodyunder asserted authority that is what constituted the restraint.

d. Additional: False arrest is a type of false imprisonment. 5. Whittaker v. Sandford

a. Facts: Lady wants to leave a cult that shes a part of and is offered passenger shipon a yacht owned by her cult leader. He holds her off shore within the cruise shipand attempts to convert her back to the cult.

b. Issue: She voluntarily entered the ship is it still false imprisonment?c. H/R: Yes, it is false imprisonment. Despite the fact that she went onto the ship

knowing that the yacht was owned by her cult leader she was still restrained andcompletely confined within the ship as she was not allowed ashore.

d. Rule: If the guest is effectually locked up even if they are not physically so then itis still false imprisonment

h. Intentional Infliction of Emotional Distress: The intent of the D to cause severe emotional distress to the Pthrough extreme or outrageous conduct. There must be a causal connection between the conduct and theresulting distress and the emotional distress must be deemed to be severe.

1. State Rubbish Collectors Association v. Siliznoffa. Facts: A rubbish collector in N.Y. had a contract with the mob. The dude violated

the contract and the mob is suing him for break of (k), the mob is saying that it isthe State Rubbish Collectors Association. They beat him up and make himnervous to the point that he is throwing up. They threaten him and tell him that ifhe doesnt pay then they will harm him. Then they send him away.

b. Issue: Is this assault? No? So what is this?c. H/R: This is not assault because it was a conditional threat (if you dont bring us

the money we will break your face) And because the threats that the mob is

using are not imminent they will happen if he doesnt bring the money by x date.It isnt false imprisonment because they let him go at the end of the meeting. And

because threats of future harm do not constitute restraint.d. Rule: P suffers extreme fright by intentionally producing such fright so as to

produce a threat through coercive methods that id had no right to use.e. Additional Notes: It is as though the mob looked up the tort for assault and got as

close to the letter as they could without actually being actionable for assault. Thisis also another example of the court influencing public policy and the law to get a

just result and a punishment meted to the appropriate party.2. Slocum v. Food Fair Stores of Florida:

a. Facts: A store clerk is rude to a lady in the produce section. He didnt sayanything that bad and she just sort of freaked out. She claims that she has a heartcondition that is exacerbated by stress and pressure.

b.

Issue: Does assertion of deliberate disturbance of emotion state a cause of action.c. H/R: Not IIED. The court says that the verbiage needs to be so out of bounds ofnormative social standard that it is objective. The words have to be bad enoughthat they would cause severe emotional distress to the reasonable person and not

just to a particularly sensitive P that is abnormally sensitive.d. Rules: A D is liable for IIED only when conduct exceeds all bounds, which could

be tolerated by society. The conduct must be of a nature that is especiallycalculated to cause mental damage of a very serious kind.

e. Additional Notes: This is clearly an attempt by the court to limit the scope of thenew tort that it just created. Also, this is more of the court with public policy. This


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is sort of an interesting follow up to an old tort: Common Carrier cases [Ahistorical artifact available only when the P and the D are in different socialclasses. Railroads, inns, service people could sue for breaches of courtesy this isa status tort]

3. Harris v. Jones:a. Facts: Harris had a speech impediment (severe stutter and a head nod). His

supervisor at GM, Jones, the D mocked him causing distress which exacerbatedhis stutter and made him more nervous

b. Issue: Does there need to be a causal connection between the conduct and theresulting distress.

c. H/R: There needs to be a causal connection between the two. Because there is noevidence that the Ds actions did anything more than exacerbate a preexisting andalready bad condition. There is also testimo ny that the Ps condition was already

bad and that he was already taking medicine and seeing a doctor. The humiliationof the P was not so severe as to constitute severe that part of the claim requiressufficient evidence in order to justify its submission.

d. Rule: In cases of IIED, the P must prove that there is a causal connection betweenthe conduct of the D and the emotional distress of the P.

e. Additional Notes: The Ps case failed because he could not demonstrate a causalconnection between, the wrongful conduct and the resulting issue. He also couldnot demonstrate that the wrongful conduct was severe enough to be the cause ofthe distress.

4. Taylor v. Vallelunga:a. Facts: The P alleges that she was present at the time that her father was mugged

and brutally beaten and that as a result she deserves recovery for the intentionalinfliction of emotional distress.

b. Issue: What if the D did not know that the P was there at the time that the distresswas caused?

c. H/R: If the D does not know that the P is present at the time that the tort occurredthen there is no room for recovery under the law. Because the D did not know thatthe P was present. There is no way that the P can prove intent. Transferred intentdoes not exist with the tort of IIED. Further there is no al legation that the Dsknew of the Ps presence or that the beating was administered to cause her

suffering.d. Rule: The conduct of the D must be directed at the P with the Ds awareness.

i. Trespass to Land: Elements: The D must have the intent to be on the land, and must actually be on the land.1. Dougherty v. Stepp:

a. Facts: D entered the land with survey chains and a survey crew and actuallysurveyed some of the land. Land was closed and the D thought that it was his land.

b. Issue: Is the entry onto the land of another even if the D thought that it was hisown a trespass even if the D did not mark or cut anything?

c. H/R: Yes, mistake does not negate intent the intent is only that the D intended to be on that land and not that the D intended to trespass on the land. From everysuch entry against the will of the possessor, the law infers some damage: ifnothing more, the treading down of a shrubbery, grass or an herbage.

d. Rule: It is an elementary principle that any unauthorized and therefore unlawful

entry onto the close of another is a trespass.e. Additional notes: This brings us back to what we learned in Ranson v. Kittnerabout mistake negating intent wolf dog.

i. From every such entry against the will of the possessor, the law inferssome damage; if nothing more, then the treading down of grass, herbs orshrubbery.

2. Herrin v. Sutherlanda. Facts: A shot was fired over the Ps land. The P wants the right to have to have no

shooting over his land. He wants to own the airspace. b. Issue: Is the air upwards of a persons property still his property?


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c. H/R: Yes, the court reasoned that the standing and firing of a shotgun over theland of a P is a trespass because it interferes with the quiet undisturbed peacefulenjoyment of the P.

d. Rule: The legal significance of land is an indefinite extension upwards as well asdownwards; whoever owns the land possesses all the space upwards to anindefinite extent; such is the maxim of the law.

e. Additional Notes: The interest in the possession of the land also extends belowthe surface and may present similar problems and similar limitations. The ownerof the real estate is entitled to be free and unfettered control of his own landabove , upon, and beneath the surface. Air travel is a trespass only if it enters intoimmediate reaches of the air space next to the land and interferes substantiallywith the others use and enjoyment of the land.

3. Rogers v. Board of Commissioners for Kent Countya. Facts: Road commissioners had obtained a license to place a snow face parallel to

the roadway past the decedents farm. At the end of the season there was a snowfence post that was left in the ground in a meadow where the snow fence had

been. When the grass had reached a considerable height the P went out to cut it.The cutter ran over the stake and the P flipped forward off of the tractor and died.

b. Issue: Is a thing that is left on the Ps property actionable as a trespass? c. H/R: Yes, even though the D had permission to place the stake in the Ps land he

did not remove it after the specified period of time permitted by the P.d. Rule: LAW OF RESTATEMENT OF TORTS:

160. Failure to remove a thing placed on the land pursuant to a license or other privilege:

A trespass, actionable un der the rule stated in 158, may be committed bythe continued presence on the land of a structure, chattel or other thing whichthe actor or his predecessor in legal interest therein has placed thereon.

(a) With the consent of the person then in possession of theland if the actor fails to remove it after the consent has

been effectively terminated, or(b) Pursuant to a privilege conferred on the actor

irrespective of the possessors consent, if the actor failsto remove it after the privilege has been terminated by

the accomplishment of its purpose or otherwise. e. Additional Notes: trespass can arise today when a guest over stays their welcome;

A privileged entry onto the land of another may be limited not only by time andspace but also by purpose.

III. Privileges:a. Consent: consent does not have to be expressed; it can be indicated so that a reasonable person would believe

that the P consented to the Ds intentional action. i. Does implied consent exist? It depends greatly on the particular circumstances of each case and on

the social norms of a particular community: Are the norms of the community such that a normal person would believe that consent is given through either silence or body language.

1. Sometimes in a game there is an implied consent (tag being touched by someone else thatis playing the game: there is an implied consent there)

a. There are however limits to implied consent (football case)

2.

CONSENT OBTAINED BY FRAUD IS NOT CONSENT: consent obtained by fraud as tothe essential character of the act itself is not valid consent, however fraud as to a collateralmaterial will not negate consent.

ii. Huckbart v. Cincinnati Bengals:1. Facts: Plaintiff was playing football and was his so hard over the back of the neck that both

he and the D fell to the ground, both returned to their respective sidelines withoutcomplaint.

2. Issue: Whether or not a professional football player can be held liable for intentionalharmful actions during the course of a game because, consent.


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3. H/R: A case like this can go to the jury so yes. There are rules in the NFL about strikinganother player in the back of the head this is arguably outside of the scope of the playersemployment?

a. Also because the Ds conduct was expressly forbidden by the league the courtdecided that the P should be able to argue his case in front of a jury.

4. Rule: The intentional striking of another player in the face or from the trear is prohibited by the league rules as well as the general customs of the game.

iii. Mohr v. Williamsiv. De May v. Roberts:

b. Self- Defense:i. Deadly force is the infliction of death or of serious bodily injury.

ii. You are privileged to use REASONABLE force to defend yourself or third persons against athreatened battery anywhere where you may lawfully be. {This is one area where mistake does makea big difference; the use of reasonable force is okay only when you believe that force is reallynecessary}.

1. Why is mistake here treated differently?a. Self preservation is the first law of nature- self defense is an efficient way of

allowing someone to maintain his bodily integrity. b. The risk of mistake is allocated to protect a persons right to bodily integrity. c. If the P acts in a way that the D reasonably believes that he is going to be battered

than the burden of the and the fault are on the P.d. Privilege of defense is a privilege against a threatened battery. Once the threat is

over then you no longer have the privilege of self-defense. Additionally the use offorce is limited to that which would be reasonable in defense of the battery theforce of the self-defense must be proportional to that of the potential harm.Privilege of self defense only authorizes the use of force to prevent an imminent

battery or one that is already happening it is not cool to try to use it in order to prevent future harm.

e. ** GEORGIA SELF DEFENSE: You can use the use of deadly force if youreasonable believe that there is a threat to your life that is present and even if thereis an option of retreat. There is no duty or requirement to retreat before you usedeadly force [Stand your ground statute]

c. Defense of Others:

i. d. Defense of Property:i. Katko v. Briney

1. Facts : Katko was trespassing on the Brineys land and intending to rob their unusedfarmhouse. The Brineys had set a spring loaded shotgun to deter intruders. Katko brokeinto the house and triggered the gun fire that shot him in the leg and caused a permanentinjury.

2. Issue : May an owner protect property with the use of deadly force?3. H/R : No, the value of human life outweighs that of property and the property owner does

not have the right to use deadly force unless he feels that the intruder threatens his life. Inthe present case there was no threat on Brineys life because the gun was spring loaded andhe was not even there.

4. Rule : The value of human life and limb outweighs that of the property thus while the D

may use reasonable force in defense of property, he has no right to use deadly force andwillfully and intentionally injure a trespasser in a manner that may result in death or serious bodily harm.

5. Hypos : The Brineys posted a sign that says: warning this property is protected by a springgun.

a. Verdict could have gone either way, in a minority of jx there is a modified rule protecting property if the owner gives the burgalar warning of deadly force. However in most jx you cannot consent away your right to not have deadly forceused against you.

6. Hypo:


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a. Katko broke into their home while they were home:i. If they could say that it was reasonable that they were using that force to

protect their lives then they have a shot at winning their cases, despitethe use of deadly force.

7. Hypo:a. You think that you are shooting a ransacking bear but it is actually a person.

i. There is no intent here for battery transferred intent does not transferfrom bear to person. This is probably negligence

e. Necessity:i. Surocco v. Geary

1. Facts: P is suing the mayor of San Francisco for blowing up his house. The mayor saysthat it was necessary to prevent the spread of an already raging fire. The P is seekingcompensation for the loss of the property that was destroyed claiming that given more timehe would have been able to remove more of his belongings and save them.

2. Issue: Is the destruction of proerty under necessity and during a time of emergency in orderto prevent more damage the civil liability of the destroyer?

3. H/R: No, the may or is not actionable because the destruction of Surroccos property wasnecessary to stop the further spread of the blaze. The court says that the Ds action was

privileged because the act was for the greater good of the public. There is policy reasoninghere; the courts dont want to deter public officials from taking necessary actions in theevent of emergency.

4. Rule: otherwise tortuous acts may be rendered non tortuous when necessity dictates thatthey be undertaken for the greater interests of society.

5. Hypo: The D destroys another party but he is not a public official is the act privileged?a. No they do not have the authority to authorize the blowing up of a house. Yes, we

want to encourage people to make reasonable decisions that work for the publicgood.

6. Additional Notes: The privilege of public necessity is not limited to public officials but inorder to invoke the privilege the actor must show: first that public rather than privateinterests were at stake. And second that he was reasonable in believe in that the action thathe took was needed, and third that the action the D took was a reasonable response to that.

ii. Vincent v. Lake Erie Transp. Co.1. Facts: There was a really violent storm in the Ps harbor due to the nature of the weather

the D was forced to leave his boat tethered using one of the Ps cables. Over the course ofthe night, the cables that were mooring the boat sustained damages. P is suing for recovery.

2. Issue: Who is liable for the damages is necessity causes the D to avail himself of the Ps property?

3. H/R: The D is liable for the damages because he prudently and advisedly availed himselfof the Ps property for the purpose of protecting his own more valuable property then the Pis entitled compensation for the harm that was done to his property. This is a case of privatenecessity the Ds actions were necessary to protect only greater harm to his own personal

property.4. Rule: A party acting under necessity to protect his own life or property is still liable for the

damages incurred to the property of another if the first party availed himself of the seconds property.

5. Additional Notes: The rule of private necessity can be invoked only when the D is

threatened or reasonably appears to be threatened with serious harm and the response isreasonable in light of the threat. Actual damage is not required as in trespass to land. Thedifference between private necessity and self-defense is that in self defense you are

privileged because you are protecting another human being and not property.IV. Negligence: 1 The failure to exercise the standard of care that a reasonable prudent person would have exercised

in a similar situation. 2any conduct that falls below the legal standard established to protect others againstunreasonable risk of harm except for conduct that is intentionally, wantonly, or willfully disregarding of the rightsof others. 3A tort grounded in this failure.a. History:


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i. Negligence was scarcely recognized as its own tort before the early part of the nineteenth century.With the industrial revolution and the increase in unforeseeable accidents the need was created for anew tort (the stimulation was the need arising out of machinery and railway cases)

a. NEGLIGENCE TOOK THE SECOND FORM AS THE BASIS FORUNINTENDED TORTS.

b. Elements of Cause of Action: DUTY, BREACH, CAUSATION, DAMAGEi. A duty to use reasonable care; this is an obligation recognized by the law, requiring the actor to

conform to a certain standard of conduct that will protect others against unreasonable risks. D musthave a duty to use reasonable care. Under current law the element of duty needs reasonable care.The duty element is almost always met. The general rule regarding duty is that all persons have aduty to use reasonable care and to avoid injuring others a failure to conform to the requiredstandard is called the breach of duty.

1. Breach is the failure to use reasonable care. Sometimes the word negligence is just used todescribe the breach.

2. Causation: There must be a reasonable close causal relationship between the breach of dutyand the resulting damage.

3. Finally there has to be actual damage. Negligence requires that a loss be sustained in orderto establish a claim. Nominal damages in order to vindicate a technical right cannot berecovered in an action for negligence. However if the Ds conduct threatens a P, then the Pmay be able to obtain an injunction to stop the activity as a nuisance.

4. ** There is another standard of negligence is the Conduct falls below the normal standardof care established by law for the protection of others against the unreasonable risk ofharm. This standard applies to both the P and the D contributory negligence. If the Psnegligent conduct contributed to his injuries.

c. A Negligence Formula:i. Lubitz v. Wells:

1. Facts: Wells left his golf club on the ground, child picked it up and swung it, hit his playmate in the face.

2. Issue: Is this negligence?3. H/R: No, the object of a golf club is not so inherently dangerous as to be considered

negligence if it is left on the ground in a yard.4. Rule: In order to be actionable for negligence, the tool causing the injury must be

obviously and inherently of a dangerous nature so that leaving it unattended would be

unreasonable.5. Additional Notes: While there is no case against the father there could be a case against

the son for failing to look at where he was swinging the golf club. There is a possibility offinding the D here guilty for negligence if (a) the kid had done it before or (b) if the kid wasan uncontrollable swinger and was always hitting people with stuff.

ii. Blyth v. Birmingham Waterworks:1. Facts: There was an especially bad storm and it broke a valve on a fire hydrant that caused

damage to the Ps house.2. Issue: If there are extraordinary circumstances is the D still actionable for negligence?3. H/R: Not negligence, the D did not omit something that a reasonable man guided on these

considerations would do and he did not do something, which a prudent or reasonable manwould do.

4. Rule: A state of unusual and unexpected circumstances is not something that the

reasonable person can prepare against and therefore a D is not actionable for negligence inthe event of unexpected circumstances.5. Additional Notes: Hypo ** P is struck by lightning while playing on the Ds golf course.

Should it go to the jury? Yeah, why wasnt there a loudspeaker announcement. What wasthe circumstantial distance from the club house.

iii. Pipher v. Parsell:1. Facts: There were three people in the car, the P, the D, and the crazy girl. The crazy girl

grabbed the wheel and the car jerked. Then she did it again and the car rolled down anembankment causing the Ps injuries.

2. Issue: Is the driver negligent and liable for Piphers sustained injury?


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3. H/R: He is charged to exercise the as having a duty to the same standard of care as an adultand did nothing to stop her or prevent her from grabbing the wheel of the car a second time.(There was no threatening to make her get out of the car, or making her move to the

backseat, or even being like DUDE, STOP THAT!4. Rule: When actions by a third party interfere with operator duty to the safety of the . There

may be a breach of duty to either other surrounding parties or the public.5. Additional Notes: How Timmons would argue defense: If reasonable care means that we

take precautions against injuries that are likely to occur then this is a freak occurrence.(Response: there is forseeability here, he grabbed the wheel once and the driver tool noaction to prevent it from happening again.

a. Note 9: A dog bit a man in a bar. A reasonable person will take actions to preventthings that happen less then 51% of the time. A reasonable person would exercisesufficient care to prevent foreseeable injuries to others. Forseeability is required; itdoesnt have to be a more often then not thing. Forseeability is not the onlything you also need to look at the potential seriousness of the injury

i. Danger consists in the risk of harm, as well as the likelihood of it anda danger calling for anticipation need not be of more probableoccurrence then less. If there is some probability of harm sufficientlyserious that the ordinary man would take precautions to avoid it, then thefailure to do so is negligence.

iv. Chicago, B. & Q.R. Co. v. Krayenbuhl1. Facts: There was a railroad turntable between two railroad tracks. A kid was playing and

he injured his ankle.2. Issue: If the equipment is known to be dangerous then is it negligence to continue to use

the potentially hazardous equipment?3. H/R: It is not unreasonable to continue to use the equipment when the benefits of using the

machinery outweigh the risks, This ruling is backed by public policy. However the D breached his duty of care by not locking up the turntable. The turntable was close to a paththat was close to the general public locking it is a minor inconvenience but it isoutweighed by the risk.

4. Rule: When the benefits out weigh the risks it is not unreasonable to use dangerousequipment that works for the benefit of society.

5. Additional Notes: Arguing for the D there was contributory negligence on the part of the

child who knew that RR turntables are dangerous?v. United States v . Carroll Towing:

1. Facts: The barge (the Anna C.) was moored and tethered to a dock. The moorings brokeand the barge drifted down river with her cargo in it but her attendant not. The barge driftedup alongside a tanker and no one noticed it. Then the propeller punctured a barge nearbyand sunk is00 causing the ship to lose its cargo.

2. Issue: Who is at fault for the damages that occurred to the barge and for the cost of thecargo aboard the sunken ship?

3. H/R: The barge company is responsible. The company was supposed to have an attendantaboard the barge during working hours and had the attendant been there then he wouldhave been aware that the barge had come unmoored and been able to prevent the damages.

Restatement of the Tort:Restatement of the Torts (The Second) (1965):

Utility: the quality of serving some purpose that benefits society291: Unreasonableness; How Determined; Magnitude of Risk and Utility of ConductWhere an act is one which a reasonable man would recognize as involving risk or harm to another, the risk is

unreasonable and the act is negligent if the risk is of such magnitude as to outweigh what the law regards as the utility ofthe act or of the particular manner in which it is done.

292: Factors Considered in Determining Utility of Actors ConductIn determining what the law regards as the utility of the actors conduct for the purpose of determining whether the

actor is negligent, the following factors are important:a. The social value which the law attaches to the interest which is to be advanced or protected by the conduct;


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b. The extent of the chance that this interest will be advanced or protected by the particular course of conduct;c. The extent of the chance that such interest can be adequately advanced or protected by another and less

dangerous course of conduct.

293: Factors Considered in Determining the Magnitude of RiskIn determining the magnitude of risk for the purpose of determining whether the actor is negligent the following

factors are important:a. The social value which the law attaches to the interests that are imperiled

b. The extent of the chance that the actors conduct will cause an invasion of any interest of the other or of anyclass of which the other is a member.

c. The extent of the harm likely to be caused by the interests imperiled.d. The number of persons whose interests are likely to be invaded if the risk takes effect in harm.

Restatement of Torts The Third:Liability for Physical and Emotional Harm (2010)3. Negligence:

A person acts negligently if the person does not exercise reasonable care under all the circumstances. Primaryfactors to consider in ascertaining whether the persons conduct lacks reasonable care are the foreseeable likelihood th at the

persons conduct will result in harm, the foreseeable severity of any harm that may ensue and the burden of precautions toeliminate or reduce the risk of harm.

d. The Standard of Care:i. The Reasonable or Prudent Person:

1. Vaughn v. Menlove:a. Facts: D set up hayricks on the border of his property, bordering the property of

his neighbor. He was warned several times of the fire hazard that the hayrickscould cause, he said that he had insurance to cover any of the damages and whenhe was told to take his hayricks down he said that he would take his chances.

b. Issue: Is the D actionable for negligence under a standard of individual knowledgeor can there be a uniform provision for negligence?

c. H/R: The D is actionable for negligence because the law requires a sort ofuniformity of standard and the negligence must be evaluated under the standard ofa reasonably prudent man. Even though the D himself did not start the fire it is asthough he did because a reasonable person would know that hay is very

flammable.d. Rule: Negligence is determined under the objective standard of what the

reasonable and prudent person would do under the circumstances.2. Delair v. McAdoo:

a. Facts: P and D were driving next to each other when the Ds tire blew out causinghim to swerve and hit the Ps car. Ds tires were visibly bald and two witnessesattested to the fact that they looked dangerous.

b. Issue: is the D responsible for the for a malfunction that was caused by his failureto maintain a normal standard of care for his car.

c. H/R: yes the law requires that the driers and owners of motor vehicles know thecondition of the parts that are likely to deteriorate and to become dangerous andthat the maintain them so that they do not become dangerous.

d. Rule: Drivers and owners of cars are required to know the parts the flaws and

faults that would be disclosed by a reasonable inspection. It can be assumed thatthey know f the dangers ascertainable by such an inspection. It is commonly heldthat the reasonable person will not forget what is actually known and thatforgetfulness does not excuse negligence. But when tdistracted attention, lapse oftime, or other similar factors make it reasonable to forget it can be found that thereis no negligence.

3. Trimarco v. Kleina. Facts: The P was in the shower and was about to step out. He was in the process

of sliding the sliding glass door open when the glass shattered and he sustainedinjuries and lacerations from the glass shards. At the time that the case took placer


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most bathroom glass doors had been changed to conform to the new technology ofshatterproof glass.

b. Issue: Is the landlords failure to comply with the traditional industry standards ofhome renovation negligence/

c. H/R: The trial is remanded for further proceedings.d. Rule: Common acceptance or practice c annot make things that dont conform to

the practice a definitive statement of negligence.4. Cordas v. Peerless Transportation:

a. Facts: D was a taxi driver a thief fleeing from the scene of another crime hoppedin his car held him at gunpoint and told him to drive. He jumped out of the carwhile it was still rolling and the car rolled into the P and her two kids.

b. Issue: Was the taxi driver negligent for acting unreasonable in an emergencycircumstance?

c. H/R: The D is not negligent he was acting under emergency circumstances andthere is a different standard of car required when acting under unforeseen andharrowing circs.

d. Rule: In the event of emergency the D is to act in a reasonable and prudentmanner such that a reasonable and prudent man would act the same under similarcircumstances of emergency.

e. HYPO***: Brakes are not working and the P jumps out of the car is thatreasonable? NO!!!

i. There is a general agreement that id the negligence is created by thenegligence of the actor then the emergency doctrine does not apply

f. Also why didnt the Ps sue the thief? HE IS A THIEF HE HAS NO MONEY$$ 5. Roberts v. State of Louisiana

a. Facts: P fell after being bumped into by a blind man who operated a concessionstand in the same building as a post office. P is suing the state of Louisiana for thefaulty operating of a concession stand and the determination of the blind mansnegligence is crucial to determining the outcome of the case.

b. Issue: was the Blind man negligent in walking without his cane along a familiarroute in a familiar building?

c. H/R: No he was not negligent there was expert testimony that supported that itis normal for blind people in familiar circumstances to walk without the use of a

guide dogg or a cane is they know their environment and travel the same path witha frequency.

d. Rule: The blind man must take precautions that a reasonably prudent blind manwould take under the same circumstances.

6. Robinson v. Lindsay:a. Facts: 2 kids were playing with a snow mobile. One of the kids was sledding

behind the snowmobile being driven by the other kid. The sledder s thumb was cutoff by the tow-rope?

b. Issue: What is the standard of negligence for children?c. H/R: this kid is actionabled. Rule: Children must act as a reasonable child of like age, intelligence, and

experience this is not the same standard of care as for adults because childrenare encouraged to engage in child s play and somewhat risky and weird activities.

e.

Additional Notes: we hold children to an adult standard of care when 1. The childis engaged in an activity that is normally undertaken by adults or 2. When childrenare engaged in inherently dangerous activities. The decision between which ofthese criteria to apply is in determined by the judge at his discretion.

i. The rationale behind this exception is that it discourages childrenfrom being unnecessarily hazardous. Parents and other adults need to

be like No! youll be held t o an adult standard of care!! 7. Breunig v. American Family Ins. Co.

a. Facts: Crazy lad hit the truck in front of her when she thought that she was batman and therefore that her car could fly.


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b. Issue: Was this negligence if this lady was a crazy?c. H/R: this is negligence her condition was preexistingd. Rule: If there is sudden and unexpected insanity then there is no negligence and

the D is not held to the standard of the reasonable person. But if there is preexisting knowledge that the D is crazy then youre stil l held to the reasonablestandard.

e. Additional notes; Why might members of the mentally disabled community favorthis decision?

i. Precautions temper the affect of mental illnessesii. They can get more help from normal society members

iii. Special standard of care requirements generally lead to more restrictionsand less rights for the affected class of people. Also negligence applies tothe mentally ill person and to their caretaker.

ii. The Professional in professional cases compliance with normal industry practice is determinitive.1. Heath v. Swift Wings:

a. Facts: Plane crashed immediately after take off. The estate of the mother and the brother is suing that ot the father so that the surviving daughter can get moneyfrom her fathers insurance company.

b. Issue: What is the standard of care for a proffesional that establishes the parameters of negligence?

c. Rule: The standard of care is that of the ordinary competent professional.However a specialist is held to the standard of care created by other specialists.

2. Hodges v. Carter:a. Facts: This is a fire insurance case. Rejected proofs of loss, denied liability, and

declined to pay any part. The service was held to be invalid as service by mail.The P was left without recourse the statute of limitations had run out. The P filesa malpractice suit for professional negligence.

b. Issue: What is the standard of negligence for attorneys?c. H/R: Complied with the standard practices in his jx. And was in possession of

knowledge, exercised his best judgment, and used due care.d. Rule: An attorney who acts in good faith and in an honest belied that his advice

and acts are well founded and in the best interest of his client is not answerable fora mere error in judgment or for a mistake in a point of law which has not been

settled by the court of last resort in his state and on which reasonable doubt may be entertained by well informed lawyers.

e. Hypo***: I just passed the bar (yay). I take on a pro-bono case (good for me) Iam unsuccessful and I am sued for malpractice. Does she have a case for neg?

i. Duty arises out of law and not payment.3. THE DOCTOR CASES: compliance with customary practice and standards means that the

D dr. is not in breach.a. Courts are more likely to find liability in issues of close mechanical negligence

then in issues of negligence by professional judgment. b. The D can be liable whether the service is paid or unpaid.c. In determination of malpractice, the D must have failed to do something that the

standard requires this must be established by expert testimony ordinaryexperience and common sense can only take the jury so far.

i.

Rejection of the locality rule/ the national standard of care.1. Majority of jx. Support that that the medical standard is set bysimilar circumstances, similar care

2. Minority of jx. Support a national standard.d. Duty of informed consent: The D is in breach if he fails to disclose risks that an

ordinary competent physician would disclose.i. Dr. VIOLATES DUTY is she fails to disclose what the ordinary patient

would want to be disclosed.e. The P must prove: that the nondisclosure would have affected the judgment of a

reasonable person


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i. Or that it would have affected his or her individual judgment you haveto make the jury believe that though.

f. A physician must disclose any personal interests thtaare unrelated to the patientshealth whether the interests are research or economic.

4. Boyce v. Brown:a. Facts: In 1927 the P came to the D doctor to fix a broken ankle. The P came back

for follow up visits for 4 weeks after and then returned twice more over the nextten years for consulatations. In 1936 the P goes to a new doctor and the new guy

performs an X-Ray and removes the screw allowing the ankle to heal. P claimsthat the D was negligent in the X-Ray performed in 1934.

b. Issue: Was the D negligent and why this time?c. H/R: The D was not negligent because the P failed to prove that he did something

that the recognized standard forbids unless the negligence was so grosslyapparent that the laypeople would recognize it then you would need experttestimony. The expert testimony that the P appointed said that he personally wouldhave ordered the x-ray but that it is not required by the standard.

d. Rule: In medical malpractice, negligence must be grossly apparent and themedical practitioner must have failed to meet the standard of comparable

professionals.e. Additional Notes: Why was the focus the 1934 visit and not the 1927? Her ankle

healed first the P could have made the argument the doctor violated informedconsent by not telling her that necrosis could happen.

f. More Notes: Why didnt the P complain about the last visit to the Dr. in 1936 before she went to the other dr? It was only a couple of days of damages thatwould be awarded and the damages would not be worth the cost and hassle of thesuit.

5. Morrison v. McNamara:a. Facts: The p went to the dr. for an STD test, he was standing when it was

performed and he fell and lost his sense of taste and smell. Local standard was tostay standing but the national standard was to sit down. The jury was giveninstructions that enumerated the local standards over the national standards.

b. Issue: Is it negligence on the part of the doctor to apply the local rather than thenational standard?

c. H/R: The locality rule no longer applies; the standard of care for board certifiedmedical professionals is national. The locality rule is old and was created to protect rural Drs. But needs to be put away because it does not elevate thestandard of care.

d. Rule: There are two approaches to articulating the standard of care in the localityrule:

i. Other professio nals dont have a locality rule and locality requires 1 local professional to testify against another.

ii. Similar community, similar circumstances. Most jx hold this to be thestandard only a minimum of jx support a national standard.

6. Scott v. Bradford:a. Facts: The P came in for a hysterectomy, while the dr. was performing the surgery

he noticed some tumors. He removed the tumors too causing the P to suffer

incontinence . The Ps claim is for the violation of the duty of informed consent.The physician has a duty to inform the patient of the consequences and risksrelevant to the surgery.

b. H/R: This court takes a patient focused approach to breach. The patient must beinformed of all material risks to surgery. The interest that the law is seeking to

protect is the right of the patient to control the decisions of what will happen to herown body.

i. The court goes one step further to allow that even if the reasonable patient would not have declined the procedure this patient would.


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ii. There is a split in the view on breach between a physician focusedstandard: what the ordinary competent physician discloses. And the

patient focused approach where the patient has the right to make any andall decisions pertaining to her own body. (The minority of jx are patientfocused what the reasonable patient would want to be disclosed)

1. Exceptions: 1. Where risks ought to be known by everyone2. Emergency3. Full disclosure would be detrimental to the patients overall well

being this requires a narrow interpretation otherwise doctorswould do whatever they want.

c. Additional Notes: HYPO**: P proves that the dr. failed to disclose none of theexceptions applicable. What else must the P prove?

i. Wouldnt have gone through with it had they been warned ii. And the risk that the P wasnt informed of ac tually occurred.

d. There are two standards here for causation: the subjective: this patient, had he been informed, wouldnt have gone thr ough with it. And the Objective: would thereasonable patient have forgone the treatment this takes away the autonomy ofthe patient.

i. The subjective standard may not always be satisfied the jury may not believe the P.

7. Moore v. Regents of UCLA:a. Facts: P was treated for leukemia, Dr. required follow up visits. The p later found

out that the Dr. was patenting research based on the Ps condition.i. informed consent case: (problems)

1. no injury2. probably still would have had the surgery

ii. Prior to this case the standard for informed consent was the disclosure ofthe risk

b. The physician failed to disclose personal interest unrelated to patients health thatmay have affected his personal judgment. The reasonable patient would want to beinformed of the Dr.s conflict of interest.

c. Rule: Physician must disclose any personal interest they have whether related tothe patients health or not.

d. Additional Notes: This could be applied to attorneys when a lawyer wants totake a high profile case for publicity when the best interest for the client would beto take a plea or to settle outside of court.

e. Rules of Law:i. Pakora v. Wabash Ry. Co.

1. Facts: P is driving a truck and approached a RR. Crossing he couldnt see around a building he stopped and listedned but id not hear anything. He continued to drive and washit by a train

2. Issue: What was the driver to do was he negl.?3. H/R: he must do what is suitable for the ordinary person in his position to do. It was stupid

to get out of the truck and look around because by the time that he was back in the truck thesituation could have changed.

f. Violation of Statute: [NEGL. PER SE]

1.

Osborne v. McMasters:a. Facts: P dies from drinking unlabeled poison from the Ds drugstore and sold bythe Ds employee in the course of her employment.

b. Issue: Where the is a statute in place for the benefit of others if he neglects to perform a duty and the class of persons for whom the duty is imposed is injured isthere negl.?

c. H/R: Yes the statute has been enacted to protect that particular group of persons itis therefore negligent to not exercise the duty of care that is mandated by thestatute.

d. Rule: Vioation of the statute constitutes conclusive evidence of negligence


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i. The statute establishes a fixed standard by which the fact of negl. may beestablished.

e. **Notes pp. 213 (Timmy likes this one): The significance of the statute in a civilsuit for negl. lies in its formulation of a standard of conduct that the court adoptsin the determination of liability. The decision of what civil standard should be stillrests with the court. A statute becomes the standard to determine civil liabilityonly when the court accepts it. In the absence of such a standard, the case goes tothe jury, which must determine whether the D has acted as a reasonable prudentman in similar circumstances.

i. When a legislative body has generalized a standard from the experienceof the community and prohibits conduct that is likely to cause harm thecourt accepts the formulated standard and applies them.

ii. Applicability of Statute:1. Stachniewicz v. Mar-Cam Corp.

a. Facts: The racist Indian case. There is a statute forbidding the serving of alcoholto patrons already intoxicated, despite this the bartender served an intoxicated

patron of the alchy. b. Issue: Is the bar owner actionable for negligence and thereby liable for the

consequences of the barroom brawl from his violation of the statutec. Rule: He is liable if the injuries would not have occurred except for the Ds

violation of the statutei. Violation of the statue or regulation constitutes negligence as a matter of

law when the violation results in injury to a member of the class of persons intended to be protected by the legislation and when the harm isof the kind which the statute was intended to prevent.

2. Ney v. Yellow Cab Co.a. Facts: D (taxi driver) left his car unattended without stopping the engine, locking

the ignition, or removing the key. A thief stole the car and ran into the Psvehicle causing damage. P alleges that D was negligent under a certain statute.

b. Issue: Could the harm that was caused to the P be reasonable foreseeable and wasit the kind of harm that was intended to be prevented by the statute under whichthe P seeks damages?

c. H/R: Yes, it is reasonably foreseeable. But the wrongful acts of independent third

persons and not actually intended by the D, are not regarded by the law as naturalconsequences of the wrong and he is not bound to anticipate the general

probability of such acts any more than a particular act by this or that individual.d. Rule: The intervention of a criminal act does not necessarily interrupt the relation

of cause and effect between negligence and injury if at the time of thenegligence the criminal act may reasonable have been forseen, then the causalchain is not broken by the intervention of such an act.

3. Perry v. S.N. and S.N.a. Facts: child abusers run a day care and in the Ps case there were people that

knew of the abuse and failed to report it. b. Issue: whether the P is actionable for negl. based on violation of a statute

requiring anyone knowledgeable to report abuse?c. H/R: The doctrine of negl. per se cannot be applied if the criminal statute does not

provide an appropriate basis for civil liability. The court also held that ther was nofault and that there can be no liability without fault further the court held that thesigns for child abuse are varying and obscure and that as a result it is difficult to

pinpoint whether there is a duty to report.d. Rule : It must be otherwise appropriate for the use of the statute to justify the

establishment that there was a breachi. Additional Notes : in most negligence per se cases there is already a

common law duty (therefore the duty element has already been met) BUTTHERE IS NO DUTY TO RESCUE UNDER TORT LAW


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ii. There is also the question over whether negligence per se if applied herewould require a more serious punishment then the action allotted. Forwhat harm would the Ds be held liable? Where is the limit?

iii. The court also looks at liability without fault here there can be noliability without fault.

iv. Notice is only prohibited or required when conduct is clearly definedg. Proof of Negligence:

i. Court and Jury; Circumstantial Evidence1. Goddard v. Boston and Maine RR.

a. P slipped on a banana peel after deboarding a train in boston and sued the RR co. b. Is the D liable for negligence?c. H/R: No the banana peel may have been dropped within a minute of the P

slipping the D is not liable.2. Anjou v. Boston Elevated Railway Co.

a. P slipped on a banana peel while walking along. b. Issue is the D liable for negl?c. H/R: The banana peel looked as though it had been there for a long time, it was

black and gritty and it didnt have any yellow on it. Therefore it was clear fromthe appearance of the peel that it had been there for a while. Enough time that itshould have been reasonably seen and moved by the Ds. The Ds leaving the

banana peel there was a breach of the duty to keep the platform reasonably safe for passengers. Thus negligence

3. Joyce v. Great Atlantic and Pacific Tea Co.a. The P slipped and fell on a banana peel in an A and P. From the evidence of the

bananas condition it is not clear whether the bana had been there for an hour or fora minute.

b. H/R: if you cannot determine the length of time that a banana had been sitting onthe floor then the D is not actionable.

4. Jasko v. F.W. Woolworth Co.a. P slipped on a piece of pizza and sues the D for negligence

b. Is the D liable for the damages on the grounds that the Ds method of service wasone that leads inescapably to mishaps thereby rendering notice as unrequired?

c. Notice is not required when the operating methods are such that dangerous

conditions are continuous and easily foreseeable.ii. Res Ipsa Loquitur: the elements of duty and breach can be inferred from the outcome. This doctrine

usually applies in cases where large things have fallen on peoples heads.1. This is a doctrine that permits but doesnt compel the inference of negligence under certain

circumstances.p must still establish that the instrumentality of her injury was under thecontrol of the D at the time that she was injured and that the a ccident wouldnt have taken

place without the negligence of the one that was in control.2. Byron v. Boadle (1863)

a. P was injured by a bag of flour that fell from a window above the street b. There was no evidence that the D was aware or superintending the lowering of the

flour. There is no direct evidence of negligence The mere fact that the accidentoccurred is proof enough of the negligence

3. McDougald v. Perry

a.

P an D were driving on the highway when the Ds spare tire flew out from underhis truck and hit the P. The D had inspected the truck on the day of the accident but admittedly not every link of the chain

b. There was no testimony that failure of safety chain and the spare tires exit ontothe roadway would not ordinarily occur in the absence of the Ds neglige nce.

c. A proper case analysis of the application of RIL: spare tire is the accident typewhich on the basis of common experience and general knowledge would notoccur, but for the failure of the D to exercise reasonable care {RIL is particularlyapplicable in cases of wayward wheel accidents} The inference of negligencecomes from the proof of circumstances of the accident


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4. Larson v. St. Francis Hotel:a. P is struck in the head with an armchair that was thrown out of the window of a

hotel. There were many witnesses but nobody saw where the chair came from,also no one saw the armchair before it was within a few feet of the Ds head, therewas no Id of the chair even belonging to the D hotel.

b. Does the doctrine of RIL apply? (RIL cannot be applied when it appears that the Dis responsible for 1 out of 2 causes.

c. Test for the application of RIL:i. P Must prove:

ii. That there was an accidentiii. That the thing or instrumentality of the accident was under the exclusive

control of the D at the time of and prior to the accidentiv. That the accident was such that ordinary course of events, the D using

ordinary care, the accident would not have happened.d. THE REASONING HERE IS IMPORTANT: A hotel does not have exclusive

control either actual or potential of its furniture. Moreover it cannot be said thatthe accident was such that in the course of ordinary events it would not havehappened.

e. HYPO: P is walking on a street under a hotel during the week of spring break. Isthis RIL.

i. If this is a normal hotel that is frequented by spring breakers then it is lessof a burden on the D to bolt down the furniture than it is to constantlykilled people. Under the circumstances of our hypo the focus shifts to thespecific conduct that the hotel failed to take. RIL for when the P doesnthave evidence of particular conduct that a D should have taken.

f. It is again really important to note that there is an element of exclusivity to thecontrol. Note 4 on page 258: exclusive contol of the instrumentality is often toodifficult to prove. Glass in a can of food is just as likely to be the canningcompany as it is to be the food production company. Other possibly responsiblecauses including the conduct of the D and the third persons must be proven asspecifically under the control of the D.

g. It is negligence if it is any more likely than not that it is attributable to the D.5. Hypo: P is struck in the head by a coconut drink falling from the balcony above. Is this

RIL?a. There is no evidence of exclusive control, so no. It however is definitely and event

that would not ordinarily occur.6. Ybarra v. Spangard:

a. Appendectomy received care from Drs. And nurses. Eventually an injury to herarm incurred during her surgery caused paralysis. RIL?

i. All she would need to prove negligence is expert testimony the problemhere is with the element of exclusive control. It is not clear who was incontrol of her when the injury occurred.

ii. The court has a policy with the problem at hand. Cannot rule in favor ofthe P without evidence of exclusive control. Without the aid of thedoctrine a patient who received permanent injuries as a result ofnegligence would be entirely unable to recover unless the doctors and

nurses in attendance voluntarily disclose the actor of the negligence andthe facts that establish liability. b. **Ds are jointly an d severally liable. In cases where the P unconscious during

medical treatment and receives unusual injuries the can use RIL against alls that are possibly responsible This is an exception to the rule that RIL

excludes the application of joint and several liability.V. Chapter 5: Causation in Fact: This works with the breach element for the tort of negligence. BUT FOR

a. Sine Qua Non: *This is basically Latin for but for cause. An indispensible condition or thing; something onwhich something else necessarily depends.

i. Perkins v. Texas and New Orleans R. Co.


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1. Facts and Backround: Train and car collision, the train was moving 12 mph faster then itshould have been. The alleges that were it not for the unlawful speed of the train the trainwould have been able to stop in enough time to not hit the car. The was deemed to benegligent in driving on the train track when the train was coming and it is his negligencethat was the proximate cause of the s injuries.

2. Issue: Was the negligence of the RR company a but for cause of the injuries to the ?

3. H/R: The negligent act of the train speeding was not a but for cause of the injuriessustained by the . There is no way to tell whether the car would have been able to escapethe train had the speed of the train been slower.

4. Rule: A cause in fact must be a clear but for cause in order for the alleged actor to be heldactionable for negligence. A proximate cause is a substantial factor in bringing about aninjury and without which the injury would not have occurred.

5. **Hypo: A and B are in a car wreck. A drives a car that has been manufactured so thatwhen it is rear ended the car explodes. B rearends A and the car explodes. Who isactionably by causation in fact?

a. Both B and the manufacturer of the car could be found to be but for causes of thes injury and as such, it is important to note that there is no requirement that

there be a single cause in fact of the s injury. There is room for an argumentthat implicates the other and brings in the requirement of responsibility.

6.

There are hypos to run for this on page 270. b. Proof of Causation:i. Reynolds v. Texans and Pacific Ry. Co.

1. Facts: A corpulent woman fell down a narrow flight of stairs in an unlighted train carwithout a handle train car after she was descending. She alleges that but for the negligenceof the RR Co. she would not have fallen.

2. The court held that though she may have fallen if the stairwell had been well lit and had ahandrail that the lack of those two things was likely the cause of her injury.

3. Rule: Where the negligence of the greatly multiplies the chances of the accident to the and is of a character naturally leading to the occurrence, the mere possibility that it mughthave happened without the negligence of the is not sufficient to break the chain of causeand effect between the negligence and the injury. The tendency of evidence must connectthe act with the negligence.

4.

Note 1, P. 272 Kirinrich v. Dredging Co.: A drowning man was thrown a life preserver, hefailed to catch the rope and subsequently died. Would he have died if he had been thrown alife preserver instead of a rope?

ii. Gentry v. Douglas Hereford Ranch: 1. Facts: slipped and fell around or about the steps of the rach co he accidentally

discharged the rifle on his shoulder and shot the s wife in the head. cannot rememberwhere he was or what caused him to fall. says that the ranch owner was negligent inleaving the steps in a negligent manner and that the , Bacon, was negligent in the way thathe was holding the rifle. bacon does not remember what he stumbled on or even if he wason the stairs at the time that the rifle discharged.

2. The cause of the negligence was unknown and cannot be considered the fault of the Ranchowners. The cannot prove that it was the negligent upkeep of the property that caused theaccident and as such there is no cause in fact. If Bacon had remembered that he was on the

stairs and that it was the negligent upkeep of the stairs that caused his fall then it is morelikely that the could have recovered on the basis of causation in fact.a. Were this the case you would be able to make a decent argument for RIL, the only

issue with that would be that you would have more than one and wouldtherefore have trouble demonstrating exclusive control.

3. Rule: In an action for negligence a must produce evidence from which it can bereasonably inferred that negligent conduct on the part of the was the proximate cause ofthe s injuries. A suspicion is not enough to sustain an action or to defeat a motion forsummary judgment. (Speculative statements do not raise an issue of material fact.


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a. Notes P. 276: The possibility of the existence of an event does not tend to proveits probability

iii. Kramer Service, Inc. v, Wilkins:1. Facts: was hit in the head with a shard of glass that fell from the hotel s transoms. The

cut did not heal for several years and the later in life got cancer. The sued the fornegligence because there was evidence that the transom had been in disrepair long enough

that the hotel should have had it repaired.2. Issue: Is the actionable for negligence if there is proof that the negligence was the causeand therefore there is proof that the caused an injury to the just not the injury that the

is suing for.3. H/R: No the is not liable for the injuries. Possibilities will not sustain a verdict. The

allegation must have a foundation; expert testimony revealed at trial that there was noconnection between trauma and cancer. The court claimed that if expert testimony couldnot claim an element of causation then there is no way that the judge or jury could find thatthere were elements of causation. *Distinguishing between when expert witnesses arerequired and when common sense is sufficient for the establishment of liability.

a. There is insufficient evidence for the jury to find that but for the negligence of the maintaining things and causing the cut that the would not have developed

cancer.

4.

Rule: It is not enough that the negligence of one person and injury to another coexisted.The negligence must have caused the injury in order for an action to be valid. Whenundisputed, medical testimony must be accepted and acts upon in the same manner as otherundisputed evidence.

5. Notes**: This brings up the post hoc ergo propter hoc fallacya. Differentiation between this and the fat lady RR case, most people have fallen,

most people have not cut their heads and subsequently gotten skin cancer. b. ****Should the judge permit the s experts to testify that since they are

expressing their opinions in terms of possibility rather than probability? Yes the experts should have been permitted to testify because the need not prove anothercause he need only to persuade the trier of fact that the s putative cause was notthe probable cause.

iv. **Herskovits v. Group Health Cooperative of Puget Sound: This is another probability v. possibility

distinction.1. Facts: Physician failed to diagnose the s lung cancer in a timely manner and as a result,he died. The main medical witness testified that if the hospital had employed propertreatment, the decedent would have had a substantial chance of surviving the attack. In the

present case the s act or omission failed in a duty to protect against a harm from ano thersource.

2. Issue: whether an estate can maintain an action for professional negligence as a result of afailure to diagnose lung cancer in a timely and efficient manner. The estate can show a

probable reduction in statistical chance for survival but cannot show and or prove that withtimely diagnosis and treatment, the decedent probably would have lived a normal lifeexpectancy.

3. H/R: Once a has demonstrated that the s acts or omissions have increased the risk ofharm to another, such evidence furnishes a basis for the jury to make a determination as towhether such increased risk was in turn a substantial factor in bringing about the resultantharm. The majority held that the causation issue should go to the jury under a substantialfactor instruction.

a. The substantial factor approach simply licenses the jury to find for the onintuitive grounds, despite the likelihood that the negligence did not change theoutcome.

b. If the reduced the decedents chance of survival by %15, she should be heldliable for %15 of the wrongful death damages.


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c. ** Problems with the substantial factor test are that it overcompensates in everycase in which the decedent would have died anyway, and under-compensates inevery case where the delayed diagnosis would have caused the death.

4. Hypo** : We have 100 people who received negligently late diagnoses of lung cancer. Ofthose we have 75 who died. Out of those 75 we can say that there were 14 whose death wascaused by the misdiagnosis. Then we have the 61 people that were doomed no matter what.Under the substantial factor instruction, all 75 people get damages. Because it will beimpossible to differentiate who would be doomed.

i. This case marked one of the first examples of the being able to recoverin a medical malpractice case even though the could not prove that itwas more likely than not that the malpractice had caused the death of the

patient. A majority of jurisdictions require the to prove that he wouldhave won the case, how much the award would have been, and that theaward was collectible, but agreeing with the minority that the must

plead and prove uncollectibility of judgment as affirmative defense. v. Daubert v. Merrell Dow Pharmaceuticals. Inc

1. Facts: Two s allege that birth defects of short limbs were a result of their mothersingestion of the drug Benedectin during their pregnancies. There was no conclusive studyto demonstrate that the drug was the cause of these types of defects. While the boys hadscientific expert testimony to say that the drug was the cause there was not sufficientevidence to demonstrate a cause and effect relationship between the drug and the effects.

2. Issue: Can there be causation in fact in the absence of compelling scientific testimony andwhere the court is forced to rule on an issue for which there is little basis for a claim thatthe is at fault?

3. H/R: The s have failed to demonstrate their case through legitimate scientific evidence.There is a two part test:

a. Whether the expert testimony reflects scientific knowledge derived from the useof the scientific method?

b. Whether the proposed expert testimony is relevant in determining the case at hand.i. The court says that in determining the first part of the test that the judge

needs to look at the particular thing that the proposed scientist wants totestify about have the developed research that is independent of thatwhich is required for the research relevant to this litigation? Did theydevelop their opinions concurrent with doing research for this case? Thenthe court looks for specific proof that the scientific work had beensubjected to peer review. Finally the court forces the experts to justifythat they followed the scientific method according to at least a minorityof other scientists.

c. The court held that the s expert testimony was inadmissible because it failed thefirst part of the test.

d. The court says that in order for the jury to reach a conclusion for the theevidence must show that there was not just an increase in the likelihood that themedicine cause the defects but rather that the risk was more than doubled.,otherwise it is likely that the defects were caused by natural causes.

4. Rule: The must prove that his injuries are a result of the accused cause and not of someindependent factor. The burden of proof and validity is on the one who brought in theexpert. There must be the proof of general causation (toxin is capable of causing themedical condition) and then the proof of specific causation (that the toxin caused thisspecific s condition).

5. Rule:*****A possibility of causation is not enough for the issue to go to the jury therehas to be a probability.

c. Traditional majority treats death as a loss of the opportunity to survive. The loss of chance approach . Underthe loss of chance approach if the jury determines that based on the survival rates, the s negligent conductcaused a 20% loss of survival then the must award the 20%, It must be an award that is proportional tothe survival that is lost in the misdiagnoses.


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d. Another type of case where the insistence on causes the loss of opportunity to recover is cases of toxicexposure.

i. Hypo**: The was negligent in exposing the to a toxic chemical and there is research that showsthat the exposure to a toxic chemical increases the chance of developing cancer. Or that the took adrug and there is an increased chance of defects.

1. Once there is evidence that the exposure can cause cancer, and the develops cancer, the

is going to say that there is a cause and effect relationship.2. The can say that cancer occurs even without exposure to the chemical and that the cannot prove that he would not have developed cancer anyway.

3. The way for the to get around this problem is the presentation of particularized evidencethat links her cancer to the chemical. Maybe medical evidence that shows that there areunique symptoms in the whos cancer develops after the exposure. Or maybe there is alatency period or something. Or maybe the lacks the risk factors that many of the peoplewho get cancer without exposure have.

4. But what if the doesnt have these particularized factors? What if there are just stats thatindicate an likelihood of developing the cancer after the exposure?

a. **What the Daubert court tells us is that you can get your case in front of a jury ifthe exposure more than doubled your risk.

b. There is another possible approach. If the co

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