Fischer Torts Fall2010

8/3/2019 Fischer Torts Fall2010

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Intentional Interference with Person or Property

I. Intent: to be held liable for an intentional tort, a person must act:a. For the purpose of causing the result ORb. With knowledge that the result was substantially certain to occur

c. Transferred Intent1. If D acts intending to cause battery, assault, false imprisonment,

trespass to land, or trespass to chattels, he will be held liable even ifthe particular harm or plaintiff is unexpected

2. D is also liable if he attempts one tort but commits anotherd. Unforeseen Consequences

1. Once it is established that the D intended to commit a harmful oroffensive touching (or intends any tort) and such contact occurs, the Dis liable for any consequences which ensue, even if he did not intendthem and could not reasonably have foreseen them

e. Harm

1. D does not have to have a hostile intent or the desire to harm, just theintent to do the act the results in the harm

f. Insanity1. Insane people have been held capable of committing intentional torts2. An insane person may be found incapable of forming the necessary

intent as well, especially with a tort that requires an unusual degree ofintelligence or rationality, such as deceit

II. Battery: the intentional infliction of a harmful or offensive bodily contacta. Elements

1. Intent2. Harmful or offensive contact, directly or indirectly, as a result of the

intended action3. Reasonableness: as much as a reasonable person would believe the

contact is harmful or offensiveb. Direct Contact

1. Battery may be committed not only with the persons body, but alsowith his clothing, an object e is holding, or any other personal effectsthat is closely identified with his body

2. It is not necessary that the D touch the P with his own body; ordering adog to attack the P can suffice

c. Awareness: it is not necessary that P have actual awareness at the time ofcontact

III. Assault: the intentional causing of an apprehension of harmful or offensive contacta. Elements1. Intentional, unlawful attempt at contact OR2. Intent to create apprehension of unlawful contact3. Imminent apprehension of harmful/offensive contact by plaintiff

(a) The threat of contact must be imminent; future threats of harmare not assault

(b) It must appear to the P that D has the present ability to committhe threatened act

(c) Apprehension is not the same as fear


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b. Words Alone1. The effects of words almost never constitute an assault2. They must be accompanied by an overt action3. An exception to this would be if the D is known to have harmed others

j D, a notorious gangster, calls P and says that he willshoot him on the spot. P comes around the corner andencounters D who then says, your time has come. Dhas committed an assault.

c. Conditional Threats1. If D threatens P with immediate bodily harm unless he hands over his

wallet, D has committed assault.2. The exception is if D has a legal right to compel P to perform the act in

question. In this case, D has no legal right to compel P to give him hiswallet.

d. Third Persons: P must have apprehension that he himself will be subject toharmful/offensive contact

e. Awareness: P must be aware, cannot be unconsciousIV. False Imprisonment: Intentional infliction of confinement without legal justification

a. Elements

1. Intent2. Confinement

(a) Physical force(b) Threats of immediate physical force (unwilling consent)(c) Other Duress (threats to property, force to a 3rd person)(d) Submission to asserted legal authority (illegal arrest is false

imprisonment)(e) Duty to aid in escape or release

j D induces P to sail with him from Syria to America,promising to let P off as soon as they arrive. The boatarrives at the U.S. port, but D refuses to give P a rowboat

to get to land.b. Escape Must Be Unreasonable

1. Physically dangerous to P, harmful to his clothing, offensive to hisreasonable sense of decency

2. Escape is unapparent and P does not know its existencec. Awareness: must be aware of confinement or suffer harm

j A newborn locked in a bank vault for two days andsuffers from hunger. He was falsely imprisoned despitehis lack of awareness

2. Remembrance not required(a) Awareness at the time of confinement is required, not

necessarily the ability to remember the confinementV. Infliction of Emotional Distress: the intentional or reckless infliction, by extreme and

outrageous conduct, of severe emotional or mental distress, even in absence ofphysical harmsa. Elements

1. Intent(a) P intended to cause emotional distress OR(b) Knew with substantial certainty that emotional distress would

occur OR


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(c) Acted recklessly, in deliberate disregard of a high probabilitythat the distress would occur

2. Extreme and Outrageous Conduct(a) The conduct must be so outrageous in character and so

extreme in degree that is goes beyond all bounds of decency;regarded as atrocious and utterly intolerable in a civilizedcommunity

(b) When determining whether the defendants conduct is

sufficiently outrageous, the court will take into account theparticular characteristics of the plaintiff, as well as therelationship between him and the defendanti. P is very young, retarded, or senileii. Harassing bill collectorsiii. Ds knowledge of plaintiffs sensitivity

b. Actual Severe Distress1. Medical effects: at minimum, plaintiff must always show he that his

stress was so severe that he sought medical aidc. Reasonable Standard

1. The defendants conduct must be such that a reasonable person would

suffer such distress, thus if it turns out that the plaintiff is unusuallysensitive, no recovery can be made

2. The exception is if the defendant knew the plaintiff was unusuallysensitive and tried to exploit that (such with insulting language would isalmost never enough to give rise to an action for intentional infliction ofemotional distress by themselves)

VI. Trespass to Land: unauthorized entry into the close of anothera. Elements

1. D enters the Ps land2. D causes another person or object to enter Ps land3. D remains on Ps land without the right to be there even if he entered

rightfully (refusal to leave)4. D fails to remove and object from Ps land which she is under a duty to

remove (continuing trespass)b. Mistake

1. If D had the intent to make physical contact with Ps land he will havethe requisite intent for trespass even is his decision to make contactwas the result of a mistake. (D thinks it his own land)

2. Reasonableness of mistake is irrelevant, unless his mistake was aresult of actions by the P

c. Damages: P entitled to nominal damages when no actual harm has occurredVII. Trespass to Chattels: any intentional interference with a persons use or

possession of a chattela. Elements

1. Intentional intermeddling2. Actual Harm (as opposed to the rule for trespass to land which still

allows nominal damages despite harm)(a) Dispossession: deprived P of use of property for a substantial

period of time(b) Harm to the property(c) Harm to the possessor or someone/something that the

possessor has a legally invested interest


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b. Return of Chattel1. If the possessor is still in possession of the chattel at the time suit is

brought, she has the right to submit the goods to the plaintiff inexchange for reducing damages

2. This is unlike conversion because the title is not deemed to havetransferred from the P to the D

c. Protection of Possessory Interest1. Any person in possession of the chattel may sue for trespass, even if

he is not the rightful owner2. The D must have a colorable claim, one that is not completely

absurd; a thief could not sue3. The person who owns the good but is not in possession of them at the

time of trespass may also sue4. A legal remedy mustbe used; there is no privilege of force

VIII. Conversion: an intentional exercise of dominion or control over a chattel whichseriously interferes Ps right to control it so that it is fair to require the D to pay thepropertys full value; forced salea. Serious Enough to Warrant an Action for Conversion?

1. The duration and extent of the actors exercise of control

2. The actor's intent to assert a right inconsistent with the other's right ofcontrol

3. The actor's good faith although it is not a protection4. The extent/duration of the resulting interference with the other's right of

control5. The harm done to the chattel6. The inconvenience and expense caused to the other

b. Ways an Actor may Convert Chattel1. Acquiring possession of it

(a) Thief/Fraud = converter(b) Bailee/Agent = not a converter

i. As long as the he does not know someone else is entitledto them when he accepts the goods

(c) Bona fide purchaser = converteri. Most courts hold that they are still a converter even if

there was no way they could have known that the goodswere stolen

ii. A bona fide purchaser who obtains the chattel fromsomeone who deals in goods of that kind

2. Damaging or altering it3. Using it4. Transferring it (a bailee wrongfully selling chattels)

5. Mis-delivering it6. Withholding it

(a) There is generally no liability unless the P has demandedreturn of the goods and has been refused

(b) The D can explicitly state it, falsely promise to return thegoods, or stall

c. Return of Chattel1. If a converter offers to return the converted goods and the owner

accepts, the return does not bar the action for conversion.


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2. However, the return must be taken into account when awardingdamages as long as the chattel is in the same condition as it was whentaken and the P has not suffered any special damage through beingdeprived

3. The P can refuse to accept the chattel back and demand full value forthem instead; in the case of good faith purchasers, the court mayrequire the plaintiff to take the goods and credit the D

d. Damages

1. The measure of damages is the market value of the property convertedat the time of the conversion

2. Damages cannot be recovered for sentimental value alone(a) However the P may be able to recover for emotional harm(b) Punitive damages may be awarded if the conversion was

malicious


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Defenses to Intentional Torts

I. Generallya. A mistake of the reasonable amount of force to use is always ok. A mistake

as to whether the privilege exists is only ok in:1. Self Defense2. Defense of Property: provided there is a non-privileged intrusion3. Defense to Others: split4. Public and Private Necessity5. Merchants Privilege

II. Consent: if the P has consented to an intentional interference with hisperson/property, the D will not be held liablea. Implied Consent

1. Can be deduced from the Ps conduct or lack of conduct, from custom,or from the circumstances

2. Objective Manifestation(a) The test is whether a reasonable man in the position of the D

would believe the P had consented

j P stands in line with other passengers waiting to bevaccinated. P tells the doctor that she has already beenvaccinated, but the doctor finds no record of it. P saysnothing and holds up her arm. P sues D, employer of thedoctor, for battery. Held for D, it reasonably appeared tothe doctor that P consented to vaccination, regardless ofher state of mind.

b. Lack of Capacity to Consent

1. A patients consent will be implied as a matter of law if ALL of thefollowing factors exist:(a) Incapacitated(b) Emergency(c) Lack of consent not indicated: theres no indication that he

would not consent if able to(d) Reasonable person would consent

c. Exceeding Scope of Consent1. If P does give consent to an invasion of his interests, the D will not be

privileged if he goes substantially beyond the scope of that consent(a) Consent is to the act, not the consequences

(b) Surgeryi. The Ps consent to one kind of surgery for one particular

purpose will not count as consent to another substantiallydifferent surgical procedure

ii. Medical desirability is irrelevant, however emergencymay justify extending the surgery beyond what wasconsented to

d. Professional Athletes Consent1. A player that intentionally attacks or injures his opponent may be liable

in tort although there is some assumption of risk


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e. Consent Due to Mistake1. Mistake Known or Induced by D

(a) If the D knew of the Ps mistake or induced that mistake (likeby lying) the consent is invalid

(b) The mistake must relate to an essential aspect of thetransaction

f. Duress1. Consent under duress depends on the immediacy and seriousness of

the duress(a) Immediate threats vs. future threats(b) Threats of direct duress against 3rd person/property vs. indirect

threats of economic duressIII. Self-Defense: a person may use reasonable force to prevent any threatened

imminent harmful contact or confinementa. What May be Defended Against?

1. Harmful or offensive bodily contact2. Confinement/imprisonment3. This applies to actions that are intentional and negligent

b. Apparent Necessity

1. Self-defense may be used when there is a real threat of harm or whenD reasonably believes there is harm

2. Mistaken belief that a threat exists must be reasonable; thus D cannotbe abnormally timid or paranoid

3. In transferred intent cases, the defense transfers as wellc. Degree of Force

1. Can only use as much force as reasonably necessary to protectagainst imminent harm

2. No force can be use for:(a) Retaliation(b) Once the adversary is disarmed

(c) In response to words alone when not accompanied by physicalthreat reasonably warranting apprehension of imminent harm

(d) In response to future harm3. Deadly Force: D cannot use deadly force unless he himself is in

danger of death or serious bodily harm and a lesser degree of forcewill not suffice

4. Injury to a third party is privileged assuming the D was did not actnegligently

d. Mistake of Privilege1. It's ok as long as it was reasonable mistake. Hard to mistake someone

attacking you in real life, more of a mistake of the amount of force.

e. Retreat1. Majority Rule: no retreat necessary2. Minority Rule: must retreat prior to using force threatening death or

grievous bodily harmIV. Defense to Others: as with self-defense, the concern is whether the defendant used

reasonable forcea. Mistake of Privilege

1. Majority of courts hold that the intervener steps into the shoes of theperson he is aiding and only has privilege to use force when theperson he is defending has the privilege


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2. Minority view holds that the intervener may use reasonable force evenif he is mistaken in believing the person he is aiding had the privilegeof self-defense

V. Defense of Property: essentially on the same basis as the right to defend oneselfa. Elements

1. Must only use as much force as appears necessary to protect property2. Owner must first make a verbal demand that the intruder stop before

using force, unless it reasonably appears that harm will occur

immediately or that request to stop will be uselessb. Mistake

1. If the property owner mistakenly believes force is necessary to protecthis property, his force will be privileged provided that there is a realnon-privileged intrusion.

2. If the property owner mistakenly believes force is necessary to protecthis property and it turns our that the intruders presence was privilegedfor some reason (like necessity) the property owners use of force willnot be privileged

c. Deadly Force1. May be used to prevent certain felonies, namely those involving death,

serious bodily harm, or the breaking/entering of a dwelling place2. Burglary

(a) A homeowner may use deadly force if he reasonably believesno lesser force will keep the burglar out

(b) Limited to dwelling places(c) Not applicable to trespassers

3. If a property owner may not use deadly force in a given situation, theyalso may eject the intruder if it is likely to cause him serious injury

j D held liable to P for unmooring Ps boat during a storm,resulting in harm to P

d. Mechanical Devices

1. Owner privileged to use them only when he would be privileged to usesimilar force in person

j D would be liable to P if his electric fence seriouslyinjured a casual trespasser with no intent to enter thehome

2. A device not risking serious harm can be used if:(a) Use is customary(b) There is a warning posted

3. Mistake(a) Even if the owners intent was to protect against dangerous

felonies, his right to use a device will be measured against

whether he had the right to use it against that particularintruder

VI. Recovery of Property: property owner may sometimes have the right to regainpossession of chattels or land takena. Elements

1. More limited because in the case of defense of property, the owner ismerely seeking to maintain the status quo, whereas in the case ofrecovery, the owner is the aggressor

2. Force also cannot be used until a demand has been made for thereturn of the property. A demand is not required when it reasonable


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appears that a demand would be useless of dangerous. Deadly forcan never be used.

j Storekeeper sells consumer a TV with provisions that thestorekeeper may repossess the TV if the consumer doesnot make monthly payments. Consumer misses severalpayments and the storekeeper breaks into theconsumers home to recover the TV. He has no right todo so since the breaking in constitutes force

3. Fresh Pursuit(a) Limited to prompt discovery of the dispossession and

prompt/persistent effort to recover the chattel(b) After any undue lapse of time, the owner must use legal

provisions to recover propertyb. Mistake

1. If the owner mistakenly believes that a person has possession of hisgood, he must bear the consequences of his mistake even if themistake was reasonable. The privilege only exists for a wrongfultaking, not when the owner willingly parts with possession and anevent occurs that gives the owner right to repossession

c. Claim of Right1. When the tortfeasor has an honest, but not necessarily reasonable

belief that he is entitled to the property, the true owner must use a legalremedy to get the property back unless:(a) Force or fraud is used(b) The tortfeasor is about to remove it from true owners property

d. Possession By Fraud1. If the wrongdoer obtains possession by fraud, the true owner may use

reasonable force to recover the item if she still has fresh pursuite. Shoplifting

1. A merchant has the privilege to temporarily detain for investigation a

person who is reasonably suspected of stealing property(a) Reasonable force is permitted(b) Mistake is ok as long as the mistake was reasonable

2. Rules(a) On/around premises(b) No coercion for payment(c) No arrest(d) No confession

VII. Necessity: emergencies that justify D in harming Ps property; requires thebalancing of interestsa. Public Necessity

1. D is privileged to harm property interest of P when it is necessary to doso to prevent a disaster to the community as a whole or a substantialnumber of persons

2. The privileged acts can be performed by public officials or privateindividual

3. Mistake of the Privilege(a) The privilege exists as long as the necessity is reasonably

apparent, even if it did not exist in fact4. Compensation


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(a) If D successfully claims the privilege of public necessity, he willnever be required to reimburse the D himself

(b) The community as a whole will not be required to compensatethe P either

b. Private Necessity1. D is privileged to prevent injury to himself or his property, or that of a

third person, by injuring the property of P if there is no other less-damaging way to prevent the harm

2. Whereas public necessity only applies when the danger to thecommunity is severe, private necessity can apply in less drasticsituations; the harm to Ps property interest is weighed against theseverity/likelihood of danger the D is trying to avoid

3. Compensation(a) It is a complete defense to a tort claim where the P has

suffered no substantial harm and no compensation is required(b) But if D causes actual damage to the P, there is only a limited

privilege and the D must pay for the damage4. Owner May Not Resist

(a) When the privilege exists, the owner whose property is being

harmed has no right to use force to prevent the exercise of theprivilege and is liable for any damage he caused while usingsuch force

j D moors his boat to Ps dock during a violent storm out ofprivate necessity. P unmoors Ds boat and the boatsinks. P is liable for the damage

VIII. Authority of Law: acts done under the authority of law are generally privileged ifproper procedure is useda. Common Law Rules

1. Arrest with Warrant(a) Privileged if it is a valid warrant

(b) Officer liable if me arrests the wrong person, even with a validwarrant

2. Arrest without Warrantb. Force

1. One may not use more force than is reasonably necessary2. Deadly Force

(a) Can be used to prevent a felony that threatens a human life orsafety

(b) Can be used in apprehension of suspect after crime if thesuspect poses a significant threat of death or serious physicalinjury to the officer or others

Officer Private Citizen

Can arrest without warrant to prevent a felony or a breach of peace (public offensedone by violence of likely to cause an immediate disturbance or public order) that isbeing committed or reasonably appears about to be committed in his presence

Can arrest to prevent a felony or abreach of peace (public offense done byviolence of likely to cause an immediatedisturbance or public order) that is beingcommitted or reasonably appears about

Can arrest if he knows a felony hasbeen committed and he reasonablybelieves he has the right person,however, he must take full risk if nonehas been committed


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to be committed in his presence

For a past breach of the peace that is not a felony, an arrest is allowed only if theoffense was committed in his presence and he is in fresh pursuit

Permitted to arrest for misdemeanors insome jurisdictions when the offense iscommitted in his presence

Not permitted to arrest formisdemeanors

IX. Discipline: a person in control of others has the privilege of exercising some

reasonable force and restraint upon them to maintain discipline. The privilegeextends to those who are temporarily responsible to them (family members,babysitters, school officials, adult care providers) though the amount of acceptableforce is usually lessa. Factors to Determine Whether Conduct is Privilege to Discipline

1. Age, sex, and condition of child2. Nature of offense and apparent motive3. Influences of childs conduct as example on other kids in the same

family4. Whether force/confinement was reasonably necessary or if its

disproportionate to the offense

5. Whether the force was degrading or likely to cause serious permanentharm

b. Teachers Privilege to Discipline1. May be exercised even when the parent objects as it is necessary to

maintain order in a classroom2. Same factors as above in addition to whether the teacher acted out of

anger or dislike for the studentX. Justification: a catch-all defense used where there are good reasons for exculpating

D for what would otherwise be an intentional tort


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Negligence

I. Elements of Cause of Actiona. Duty

1. Andrews Majority(a) Foreseeable duty to society/all people. Every P is

foreseeable. Uses proximate cause to restrict liability.2. Cardozo Minority

(a) Foreseeable duty to this P, who must have been in the zone ofdanger. Uses duty to restrict liability

b. Breach of Duty:1. The actor breaches the duty if he fails to take feasible precautions to

prevent the harmc. Causation

1. Cause in Fact2. Proximate Cause

d. Damage

II. Negligence is Based on Foreseeable Risk, Not Hindsighta. P must show that Ds conduct at the time of the incident imposed an

unreasonable risk of harm1. Inherently Dangerous Objects

(a) Leaving around such objects without special handlingconstitutes negligence (leaving a gun out without unloading it)

(b) If a less dangerous object is left out and ends up causingharm, it is not negligence because the risk is to be evaluatedas it reasonable appeared before the accident

j D1 leaves a golf club out in the backyard of his house.D1s eleven year-old son strikes P in the head. P sues

both D1 and D2 for negligence. Held for D because agolf club is not obviously and intrinsically dangerous

2. Warnings(a) If Ds conduct creates danger and he fails to warn others who

he knows to be unaware of it, he can be held liable fornegligencei. Failure to warnii. Knew/Had reason to know of dangeriii. Knew those encounter it were unawareiv. Warning could have been effective in reducing the

possibility of harm

III. Unreasonable Risk of Harm?a. BPL Test

1. Used to determine whether the risk of harm was unreasonable2. Liability Exists if B < L 'P

(a) B equals the burden of precautions for the D(b) L equals the gravity of the potential injury, but it is based on

the average loss. If D negligently sank Ps uncharacteristicallyexpensive ship, he would still only be liable for the averageloss of a ship.


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(c) P equals the probability that harm will occur from Ds conductb. Utility of Conduct Test

(a) A harm is unreasonable if the magnitude of the risk outweighsthe utility of the actor conduct

(b) Magnitude of Riski. Social valued of the imperiled interestii. Probability of the harmiii. Extent of the harm

(c) Utility of Conducti. Social value of the protected interestii. Whether the conduct protects the interestiii. Whether there is a safer way to protect the interest

IV. A Reasonably Prudent Person: would a reasonable person of ordinary prudence actas D did in the same circumstances?a. Physical and Mental Characteristics of D

1. Physical disability(a) The standard for negligence is what a reasonable person with

that same physical disability would have donei. A blind D must take precautions, be they more or less,

that the reasonably prudent person would take if he wereblind.

2. Mental Attributes(a) D is not absolved of negligence because he is more stupid,

careless, volatile than a reasonably prudent person(b) Acting in good faith and according to his best judgment is not

an excuse3. Insanity

(a) Mental deficiency does not relieve a person of negligence(b) Sudden insanity

i. A defense if D has no forewarning

ii. The mental defect must effect Ds ability tounderstand/appreciate the duty which rests upon him

iii. The policy basis for making the insane liable for theirtorts is induce those interested in the estate of the insaneperson to control them and to prevent false claims ofinsanity

b. Children1. Uses the standard of care of a reasonably prudent person of the same

age, intelligence, and experience2. Adult Activity

(a) When a child engages in an inherently dangerous activity that

is normally pursued by adults, he is held to the standard ofcare that a reasonable adult doing that activity would exercise

(b) The policy reason behind this is to allow children to be childrento deter them from dangerous activity

c. Knowledge1. Most knowledge is attributed because a reasonable person would gain

the knowledge prior to engaging in a dangerous activityd. Custom

1. A custom is a well-defined and regular way of doing a specific thingamong a group, such as a trade or profession


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(a) Violation of a custom implies negligence(b) Adherence to a custom implies due care

2. Custom is relevant evidence; evidence of the various tendencies ofothers is not

3. A jury must be instructed of custom if they don't know how areasonably prudent ___ would act

e. Emergency1. Not held to the standard of care of someone who has ample time to

decide what action to take as long as Ds conduct/negligence did notcause the emergency

2. Even if the emergency was not caused by D, a liability for negligence isstill possible

j D sees an accident ahead of him and swerves intooncoming traffic rather than onto a shoulder. D might stillbe liable

f. Anticipating the Conduct of Others1. Negligence of Others

(a) Usually only valid when the likelihood of injury is great or themagnitude of the injury is substantial

i. D is required to take extra care to prevent unreasonablerisk of harm to others if he has reason to know the carahead of him is being driven by a drunk driver

j D drives down a street crowded with playing children. Dcannot assume the children will stay out of the cars path.D must take extra care since children are known to beincapable of exercising the degree of care of the averageadult

2. Criminal and Intentionally Tortious Acts(a) D is entitled to assume that third persons will not commit

crimes or intentional torts unless he has some reason to

believe otherwise(b) D can have a special relationship with P or a third person that

burdens him with anticipating and preventing criminal/tortiousacts by that third person

g. Misrepresentation1. Ds speech or other communication may be negligent if it leads to

physical injury or property damageV. The Professional: failure to exercise the degree of ordinary care and caution that a

reasonably prudent professional in good standing would have used in similarcircumstancesa. Standard of Care

1. Objective, thus Ds own training and experience are irrelevant, there isa minimum standard that is applicable to all

2. Specialist held to a higher standardVI. Malpractice: if D has a higher degree of knowledge, skill, or experience than a

reasonable person he must use that higher levela. Elements

1. Presumed to Possess a Certain Degree of Skill/Learning(a) Which is possessed by the average member of medical

profession in good standing within the community in which Dpractices


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i. No longer strict adherence to the locality rule, now justsimilar communities

(b) Specialist within a profession is held to a higher standard ofcare than a general practitioner

2. Must have Neglected Standard(a) Cannot be held liable unless he has done something in

treatment that the recognized standard of medical practice inthe community forbids or neglected to something it requires

(b) Must be based on expert testimony unless negligence isgrossly obvious

3. Negligence is not Presumed Based on the Success of Treatmentb. Informed Consent

1. Patient suing under informed consent must prove:(a) Failure to Inform of Risk

i. Professional Standard: risks required to be disclosed bythe prevailing medical practice in the community; slightmajority rule

ii. Material Risk: physician failed to inform P of a risk likelyto affect Ps decision, a material risk; minority rule

(b) Causationi. If informed of risk, a reasonable patient would not have

consented to treatment; majority ruleii. If P had been informed of the risks, he would not have

consented to the treatment; minority rule(c) The risk not made known to P occurred and injured him

2. Defenses(a) Risks are or should be known by everyone(b) Disclosure is detrimental to patients total care(c) Emergency existed and the patient was not in the condition to

decide for himself

c. Battery as an Alternative1. If medical/surgical treatment is completely unauthorized and performed

without any consent at all, patient has an action battery2. If the doctor obtained the patients consent without informing him of all

the material risks (duty to inform) patient has an action for negligenceVII. Aggravated Negligence

a. Recklessness: based on the state of mind of the defendant; willful, wanton, &reckless conduct1. D acts recklessly if:

(a) He knows of the risk of harm created by his conduct or knowsfacts that make the risk obvious a reasonable man

(b) The precaution that would eliminate/reduce the risk involvestrivial burdens relative to the magnitude of the risk; failure toadopt the precaution is a demonstrations of Ds indifference

VIII. Violation of Statute: when a statute fixes the measure of legal duty so that theviolation of the statute constitutes evidence as a matter of lawa. Negligence Per Se

1. When statute has a sufficiently close application to the case at bar, anunexcused violation of that statute constitutes negligence

2. D is negligent if:


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(a) He violates a statute designed to protect the type of accidenthis conduct causes

(b) The victim is within the class of persons the statute is designedto protect

(c) There is a causal link between the violating action and theresulting injury

b. Excuse of Violation1. The violation is reasonable because of Ds incapacity

2. D neither knows nor should know of the occasion for compliance3. D is unable after reasonable diligence or care to comply4. D is confronted by an emergency not due to his own misconduct5. Compliance would involve greater risk of harm to D or others

Proof of Negligencec. Direct Evidence: asserts the truth/existence of the fact to be provend. Circumstantial/Indirect Evidence: introduce evidence of fact B to show fact A

1. Evidence from which a fact finder can infer an increased or decreasedlikelihood that the fact to be proven is true/existed

2. A preponderance of evidence (enough that a jury could reasonablybelieve the fact is more likely true than not true) is required.

3. When there is no direct evidence of the Ds negligence, the P mayproduce circumstantial evidence which would permit an inference ofthe Ds negligence.(a) Banana Peel cases: The condition of the banana could allow

a jury to determine how long it had been on the floor, andthereby whether the D breached its duty by not picking it up.

(b) P may show that the D had notice of the dangerous condition,or that the D had constructive notice by proving that thepremises had not been inspected.

4. Circumstantial evidence may permit an inference of negligence, but willnot compel such an inferencethe other factors must still be

considerede. Res Ipsa Loquitur: allows you to establish that there was probably negligence

because the accident is not something that usually occurs without negligenceby some party1. A finding of RiL only means that a jury can find negligence, not that

they are required to. A jury can still draw its own inference from thefacts, agreeing or disagreeing that D was negligent

2. Requirements(a) No direct evidence of how D behaved(b) The instrumentality that caused the accident was under the

exclusive control of D

(c) The accident was not caused by any contributory negligence(d) The accident wouldnt have happened in the ordinary course of

events had D used ordinary care3. Multiple Defendants

(a) Usually if there are multiple Ds and the P only knows that oneof them may have caused the injury, res ipsa will not apply.

(b) Exception: Ybarra v. Spangardi. Ds were part of an integrated system and each D had

at least a share of the control/responsibility for the


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outcome of the procedure (mutual and interdependentresponsibility).

ii. P trusted Ds and put himself under their care (trust andreposecould also be treated like a fiduciary obligation).


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Causation in Fact

I. Causation Generallya. Assuming that there is duty and breach, the court next looks to causation.

There are two elements:1. Factual Cause

2. Proximate/Legal Causeb. Factual cause involves an empirical/scientific inquiry to determine cause and

effect.II. But For Test: P must prove that it is probable (more likely than not) that the injury

was caused by (would not have occurred without) the defendants acta. Ds conduct is the substantial factor in bringing about the Ps harm; if D had

not conducted himself in such a way, Ps injuries would not have occurred.1. What is a Substantial Factor?

(a) An action that was a factor in bringing about the injury, withoutwhich the injury would not have occurred

III. Increased Risk, Followed by Actual Damage

a. Loss of Chance Theory: P does not have to show that the patient would havehad a 51% or greater chance of survival, just that Ds actions increased therisk to the patient (such as reduction in his chance of survival) and theincreased risk was a substantial factor in bringing about the resultant harm

IV. Concurrent Causesa. Substantial Factor Test: determines whether or not D materially contributed

to Ps injury1. Used as a supplement to the But For test when multiple, redundant

causes would preclude liability under But For analysis

j A starts a fire on the left side of Xs house and B starts afire on the right side Xs house. The fires merge and

concurrently destroy Xs house.y Neither fire A or fire B is the but for cause of the

destruction since Xs house would have been destroyedregardless of one fires absence.

y The substantial factor test is an alternative proof ofcausation that allows X to recover damages

b. Where separate acts of negligence combine to produce directly a single,indivisible injury, each tortfeasor is responsible for the entire result, eventhough his act alone might not have caused it. They are jointly and severallyliable.

V. Determining Which Party Caused the Harm

a. Alternative Theory Liability1. The burden to prove causation is on P except where P can show that

each of two persons was negligent, but that only one could havecaused the injury. In such a case, D1 and D2 must bear the burden ofproving he has not caused the harm

j P, D1, and D2 go hunting together. D1 and D2, at thesame time, negligently fire at a quail, but hit P. It is notknown which bullet hit P. Held that the burden is on Dsotherwise P might be left remediless.


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b. Market Share Liability1. If P can only identify the type of drug, not the brand name, she can still

be able to recover against negligent drug companies if they wereunable to prove they did not cause the harm. The damages areapportioned under several liability according to the each Ds marketshare.

2. D can escape liability if he can show it couldnt have supplied drug thatharmed P

3. Elements(a) All Ds must be negligent(b) Must be a generic product (otherwise market share is not a

proxy for harm caused)(c) P must join enough Ds to represent a substantial share of the

market


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Proximate/Legal Cause

I. Generallya. Cause in Fact vs. Proximate Cause

1. Factual cause refers to the cause and effect relationship between Dsconduct and Ps injury

2. Proximate cause is a determination of whether legal liability should beimposed where cause in fact has been established. Is it ethicallyright, fair and just to impose liability?

b. Two Tests of Proximate Cause1. Andrews Test Minority2. Wagon Mound Test Majority

II. Hindsight View Minoritya. Andrews Test

1. In hindsight, the chain of events must not appear extraordinary2. Knowing what we know now, was the chain of events extraordinary in

hindsight?

j D drops a plank into the hold of a ship carrying oil. Aspark ignited while the plank fell, resulting in anexplosion. Andrews test would use hindsight and holdthat knowing that a fire would occur, a burned ship is notextraordinary in hindsight.

III. Foreseeability View Majoritya. D is only liable for the harm that was reasonably foreseeable; liability should

be assessed with respect to damages, not just negligent conductb. But D is still liable if foreseeable risk (type of harm) comes about in a

unforeseeable way (Wagon Mound, Doughty, Hughes)c. Wagon Mound Test

1. What would a reasonable person standing in the Ds shoes have beenable to foresee?(a) D drops a plank into the hold of a ship carrying oil. A spark

ignited while the plank fell, resulting in an explosion. WagonMound test would say the fire was unforeseeable so there isno liability

IV. Egg-Skull Rulea. D must take P as he finds himb. Once P suffers any foreseeable harm/impact, D is liable for any additional

unforeseen consequences (provided they are not caused by a supersedingintervening cause)

j D negligently hits Ps car. The accident aggravates apre-existing paranoid schizophrenic condition thatpermanently disables P. Before the accident, P was ableto live a normal life despite the condition. Held that D isliable.

V. Remoteness of Harma. D is liable for damages for the proximate harm of his own acts, but not for

remote damages


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j Ds engine causes his woodshed to catch fire. The firemoves to Ps nearby house and destroys it. The firespreads and ultimately destroys a number of houses.Held that D is only liable for Ps house not the others.

VI. Intervening Causesa. General

1. D is still liable despite an intervening cause if(a) The intervening cause is foreseeable and is a result of Ds

negligent conduct(b) An intervening negligent act of another brings about the same

injury as was threatened by the defendant's negligent act, thenthe intervening negligent act will not be consideredsuperseding and the defendant is liable (a concurrent cause)

b. Superseding Intervening Causes1. A cause intervening between the defendants negligence and the

plaintiffs injury in such a way that it supersedes the effect of thedefendants negligence and is regarded as the sole proximate cause ofthe harm.

2. An intervening act may be a superseding cause if:

(a) It is extraordinary under the circumstances(b) Not foreseeable in the normal course of events(c) Independent of or far removed from the defendants conduct

c. Criminal Acts of Others1. Watson Approach

(a) If the crime is not foreseeable, then it is a superseding causeand liability is severed

(b) Rationale: under ordinary circumstance, it is not reasonable toexpect that someone will act criminally

j A gasoline car on a train owned by D derails and gasruns into the street. Third party X strikes a match,

lighting the gas vapor and causing an explosion. By-standing P is injured. D claims that Xintentionally/maliciously started the fire. Held for D if thecourt finds that X intentionally started the fire. D is notexpected to anticipate the criminal acts of others

(c) Exceptions Criminal Activity is Not Superseding If:i. D, by contract or otherwise, is under a duty to protect P

against criminal misconduct, and fails to do so(bodyguard, security at White House event)

ii. Ds affirmative act destroys a protection that the P hadplaced around his person/property to guard against the

crime. (D fails to activate security alarm and someonebreaks in police are not summoned b/c alarm did not gooff)

iii. D brings into association with P a person whom heknows or should know to be particularly likely to commitcriminal acts

iv. D takes into custody a person of dangerous criminaltendencies and fails to restrain him

2. Gibson Approach


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(a) If the original negligence continues to time of injury andcontributes substantially to it in conjunction with an interveningact, each may be a proximate concurring cause for which fullliability may be imposed.

j A gasoline car on a train owned by D derails and gasruns into the street. Third party X strikes a match,lighting the gas vapor and causing an explosion. By-standing P is injured. D claims that X

intentionally/maliciously started the fire. A jury woulddetermine whether Xs criminal act is a superseding or aconcurrent cause. P could be liable even if the courtfinds that X intentionally started the fire.

d. The Rescue Doctrine1. Informs D that it is foreseeable that a rescuer (P) will come to the aid of

a person imperiled by Ds actions; therefore D owes the rescuer a dutysimilar to the one he owes the person he imperils

2. Negates the presumption that the rescuer assumed the risk of injurywhen he knowingly undertook the dangerous rescue, as long as hedoesnt act recklessly

3. Requirements for Rescuer Status(a) The defendant was negligent to the person rescued and such

negligence caused the peril or appearance of peril to theperson rescued

(b) The peril or appearance of peril was imminent(c) A reasonably prudent person would have concluded such peril

or appearance of peril existed(d) The rescuer acted with reasonable care in effectuating the

rescue.e. Other Special Conditions

1. D is liable if:

(a) P is harmed while trying to escape from danger caused by D(b) Ps injury is aggravated while being treated for harm caused by

D(c) P has a second injury and it is caused by his weakened

condition from the first injury


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Apportioning the Damages

I. Generallya. Used to determine damages of any negligence case where there is more than

one proximate causeb. Theories of Apportioning Harm

1. Traditional View(a) P has the burden of apportioning the harm; if P cannot

apportion harm, she cannot recover(b) Earlier courts were less inclined to find that harm was

indivisible, that Ds were joint and severally liable2. Modern View

(a) If as practical matter it is impossible to apportion the injuries,then it is deemed indivisible and Ds are jointly/severally liableunless they can prove which part of Ps injury attributable toeach of them

3. Indivisible Harm = Joint & Several Liability

(a) If more than one person is a proximate cause of Ps harm andthe harm is indivisible, each tortfeasor is liable individually and

jointly with the other tortfeasors(b) P can recover from any one defendant, some defendants, or

all defendants.(c) If P recovers from one defendant and receives full damages,

that defendant must then pursue the other obligors for acontribution to their share of the liability.

4. Divisible Harm = Several Liability(a) If more than one person is a proximate cause of Ps harm and

the harm is divisible, then each D is liable only for the harm

that they individually causedII. Types of Liability

a. Several Liability1. Where the parties are liable for only their respective obligations2. P must go after each D separately and is less likely to recover because

each D can shift fault to the un-joined D.3. There can be no phantom fault (allocating fault to a nonparty). So, the

fault of the parties in the lawsuit must equal 100%. P has the incentiveto join as many Ds as possible to spread around fault an increase theamount of damages.

b. Joint & Several Liability

1. Imposed in Three Situations(a) When Ds act in concert to commit a tortious act against P(b) When Ds fail to perform a common duty to P. Includes cases

involving liability based on the relationship between the parties(the liability of an employer for the acts of an employee)

(c) When Ds who acted independently cause indivisible harm2. Contribution

(a) If a D has paid more than his share, he may obtainreimbursement from other Ds


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(b) Comparative Contribution: the old pro rata rule is that Dswould split liability equally; modern rule is to divide it up basedon individual fault

III. Concurrent Tortfeasorsa. D1 and D2, driving separate cars, negligently collide. One car bounces onto

the sidewalk hitting and injuring P. Ps harm is indivisible and thereforeunable to be apportioned

IV. Successive Tortfeasors

a. Unrelated Accidents1. D1 is not liable for Ps subsequent injury if that second injury is the

result of a distinct intervening cause, regardless of whether or notdamages can be apportioned

2. D2 is liable for Ps total injury when damages can not be apportionedb. Related Accidents

1. If the second injury is not the result of a distinct intervening cause, butthe result of a related accident, then D1 is liable for Ps total injury

i. Driver 1 hits P and injures his leg. Then, while P is lyingin the street awaiting medical attention, Driver 2 runsover Ps arm. Lastly, Dr. negligently aggravates Ps leg

injury while treating him.y Dr. is liable for the aggravation to the leg

y D2 is liable for the arm injury only

y D1 has but for cause and proximate cause because ofthe special condition. D1 is liable for all of the injuries.

V. Loss of Chance Theorya. Loss of Chance: if a doctor's negligence significantly reduced a patient's

chance of surviving, then the doctor should be liable for the loss of chanceof survival.

b. Two Approaches for Determining Damages1. All or Nothing --

(a) If the patients chance of survival was less than 50% to beginwith, then P cannot prove by a preponderance of evidence(more likely than not) that Ds conduct was the proximatecause of the patients death.

(b) Therefore, there is no cause of action, P cannot recover2. Probabilistic Causation

(a) P does not have to show that the patient probably would havehad 51% chance of survival or greater but for the Ds actions,

just that Ds actions have increased the risk or harm to another(b) Herkskovits applies damages in an abnormal way. Majority

rule of for cases like this would give P 100% of damages one it

was found that D was guilty of loss of chance. However, thiscourt only gave P damages comparable to the percentage ofchance D reduced. This is a minority rule of a minority viewand is only applied in a very small number of cases

VI. Value of the Lossa. When determining damages, the court may take into consideration the value

of the life/property harmed


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b. The goal of the tort system is put P back into the position he was in before theharm. Past events and potential future events are considered whendetermining the value of the loss.

i. If D is unlucky enough to kill a surgeon, he will have topay more in lost earning capacity. If he is lucky enoughto kill a fast food worker, he pays less.


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Duty ofCare

I. Generallya. A person is under a duty to exercise reasonable care to not expose other to

unreasonable risks of harmb. However, there are also several classes of cases where the court has held D

owes the P less than the degree of care that a reasonable person would use.Sometimes D owes P no duty at all.

II. Duty to Rescuea. There is no liability to rescue people. This is a bright-line rule. But there are

certain situations that create the duty to rescue.b. Special Relationships

1. Carrier & Passenger2. Innkeeper& Guest3. Custodian & Ward4. Invitor & Business Invitee5. Employer & Employee

6. Harm causing instrumentality is under Ds control7. Injury caused by D8. Dangerous situation created by D

c. Voluntary Undertaking1. If D undertakes a rescue and fails to use reasonable care, leaving the

victim worse off, he is liable.2. If the victim is worse off if:

(a) D increases the level of danger(b) D deprives the victim of a chance of other aid(c) D induces the victim to forego aid in reliance

i. Detrimental Reliance: D attempts to rescue, but does a

poor job; bystanders, who may have done a better job,do not step in since D already has

d. Foreseeable Harm to a Third Party1. When D can avoid a foreseeable harm by controlling the conduct of

another person, or to warning of such conduct, the D is only liable ifthere is a special relationship to the dangerous person or to thepotential victim

2. D only has to a duty to warn, not to confine3. If the victim is unidentified, the duty is not likely to be imposed

j X is the mental patient of D. X tells D he intends to kill P.D fails to warn P and X kills P. D is liable

III. Pure Economic Lossa. There is no recovery for pure economic loss. Economic loss can only be

tacked on if P has also suffered personal or property damage from D. This isa pragmatic rule; without it, liability would be virtually open-ended

IV. Mental Distressa. When Ds negligence creates a definite and objective physical injury as a

result of emotional distress, the plaintiff may recover damages without anyactual physical contact

b. Zone of Danger Rule Minority


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1. P has to be in the zone of danger to recover for emotional distress atanothers injury.

2. No duty is owed to P if she is not endangered by Ds conductc. Dillon Rule Split

1. Abolished the zone of danger rule2. Instead, Ds duty to an emotionally distressed P is based on the

foreseeability of the harm3. Must be decided on a case-by-case basis

4. Uses the same criteria as Thing, but they are subjective factors, notrequired elements

d. ThingRule Split1. Established specific elements to be met for Ps not within the zone of

danger2. Elements

(a) P must be closely related to the victim (spouse/immediatefamily)

(b) P must have been present at the scene when the injury occursandhave been aware that injury was happening

(c) P must have suffered severe emotional distress beyond which

would be expected of a disinterested witness


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Owners & Occupiers of Land

I. Trespassersa. Generally

1. Landowner has no duty to a trespasser to make his land safe, to warnof dangers on it, or to avoid carrying out any dangerous activities on it.

2. No duty to anticipate trespassers or to inspect property for dangerousconditions.

b. Exceptions Artificial Conditions1. Constant Trespass on a Limited Area

(a) If a landowner knows that a limited portion of his land isfrequently used by various trespassers (such as a path), hemust make the premises safe or at least warn of the dangers ifthey would otherwise be undiscovered.

2. Discovered Trespassers(a) Once a landowner has knowledge that a particular person is

trespassing on his property, he is under a duty to exercise

reasonable care for the trespassers safety(b) The duty is created not only when the landowner actually

learns of the trespassers presence, but also when he isconfronted with evidence that should lead him to theconclusion that a trespasser is present and in danger

3. Warnings(a) Landowner has no duty correct dangerous conditions, but he

must warn known trespassers of them(b) But the warning is only necessary if the trespasser will not

discover the dangerous condition on his ownII. Licensees

a. Generally1. A licensee is a person who has the owners consent to be on the

property, but who does not have a business purpose2. Must anticipate foreseeable licensees3. Social Guests: most common class of licensees; even though they are

invited by the owner, they are not inviteesb. Duties Artificial & Natural Conditions

1. Duty to warn a licensee of known, dangerous conditions that are notlikely to be discovered; however he is not required to correct it.

2. The owner is not required to take affirmative action to make thepremises safe, so there if no duty to inspect for unknown dangers.

3. Duty ofaffirmative reasonable care with dangerous activitiesIII. Invitees

a. Generally1. Business invitee: an invitee is a person invited to enter or remain on

the land for a purpose directly or indirectly dealing with business withthe landowner. A business invitee is not required to have engaged inbusiness at the time of injury or on the visit in question, just that shehas general business relationship with the landowner.


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2. Public invitee: this also includes people come onto land that is heldopen to them for the purpose for which it is held open

3. There is a mutual benefit between an invitee and a landownerb. Duties

1. Duty of reasonable inspection for find hidden dangers; the only class towhich the landowner owes this duty

2. Duty to warn of hidden and obvious dangerc. Scope of Invitation

1. An invitations scope is defined by place and time. Once P exceedsthe scope of an invitation, she is no longer an invitee

2. When an invitee moves outside the area where business is conducted,his status changes. If the owner invites him to that area, he is alicensee. If she goes to that area without consent, he is a trespasser.

IV. Children: Trespassers & Licenseesa. Attractive Nuisance Doctrine

1. Landowner is liable for harm from artificial conditions if:(a) The landowner know/has reason to know children trespass

AND(b) The landowner knows the condition involves an unreasonable

risk of death/bodily harm AND(c) The children, because of their youth, do not discover the

condition or realize the risk AND(d) The utility of the condition and burden of repairing the

condition are slight when compared to the risk AND(e) The landowner fails to exercise reasonable care to eliminate

the dangerV. Rejection of Classifications Rowland v. Christian

a. Court found that the classifications do not reflect some major factors thatshould be used to determine when immunity is granted.

b. The court uses the ordinary principles of negligence instead

1. When landowner is aware of a dangerous condition and that person onthe premises is about to come in contact with it, the court canreasonably conclude that failure to warn/repair constitutes negligence

c. If the owner is not liable, it gives a trespasser less incentive to trespassd. Has yet to sweep the country


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Defenses to Negligence

I. Contributory Negligence: provides that a plaintiff whos negligent conduct isproximate cause of his injuries is totally barred from recoverya. Uses Same Neg. Test for Plaintiff to Determine Unreasonable Risk

1. Utility of Conduct Test

(a) Magnitude of Riski. Social valued of the imperiled interestii. Probability of the harmiii. Extent of the harm

(b) Utility of Conducti. Social value of the protected interestii. Whether the conduct protects the interestiii. Whether there is a safer way to protect the interest

b. Applicability in Particular Circumstancesi. Intentional Conduct: not applicableii. Reckless Conduct: not applicable

iii. Negligence Per Se: applicablec. Last Clear Chance

1. If just before the accident D has an opportunity to prevent the harm,but P does not, Ps contributory negligence is wiped out. This leaves Dliable if he does not take advantage of that last chance to preventharm.

2. Discovered Peril Majority(a) Ps Contributory Neg. is not a Defense If:

i. D and P are on a collision courseii. P is unable to escape harmiii. D discovers Ps position of peril

iv. D has the means to avoid harmv. D fails to use reasonable care to avoid harm

3. Undiscovered Peril(a) Duty to Keep a Lookout If:

i. P is in peril and unable to escape harmii. D should have seen P and if he had seen P, the harm

would have been avoidedd. Several and Joint/Several liability do not apply in contributory negligence

jurisdictionsII. Comparative Negligence: rejects the all or nothing approach of contributory

negligence and divides liability between P and D in proportion to their relative

degrees of faulta. Uses Same Neg. Test to Determine Unreasonable Risk

1. So on the magnitude of risk side, the party who has a small probabilityof harm is comparatively less negligent the party who has greaterprobability of harm. On the utility of conduct side, the party who has agreat utility of conduct is less negligent than the party who has verylittle utility of conduct.

b. Pure Comparative Negligence


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1. P is allowed to recover even if his fault is greater than Ds. So D was10% at fault and P was 90% at fault, P can recover 10% of damages

c. Modified Comparative Negligence1. Does Not Exceed Jurisdictions

(a) P's recovery is reduced by the percentage of fault attributableto the plaintiff as long as P's fault is "does not exceed" D's. Pcan still recover if fault is split 50/50.

2. Less Than Jurisdictions

(a) P's recovery is reduced by the percentage of fault attributableto the plaintiff as long as P's fault is "less than" the fault of thedefendant.

3. Uniform Comparative Fault Act Approach(a) Risk of Insolvency

III. Assumption of Risk: when P has voluntarily consented to take her chances thatharm will occur; that assumption completely bars P from recoverya. Implied Assumption of Risk

1. Treated as comparative negligence and will now reduce Ps damagesinstead of completely barring recovery

2. Applicable only when P voluntarily encounters a known risk. However,

Ps choice to assume risk cannot be considered voluntary when noreasonable alternative exists

b. Express Assumption of Risk Exculpatory Clauses1. Clause unenforceable against public policy if:

(a) The party protected by the clause is intentionally, recklessly, ornegligently brings about the harm

(b) The bargaining power of the protected party is grossly greater(exists only when the good/service being offered is essentialsuch as public utilities)

(c) There is some overriding public interest which demands thecourt refuse the clause


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Strict Liability

I. Generallya. Founded on a policy of the law that imposes upon anyone who (for his own

purposes) creates an abnormal risk of harm to his neighbors, theresponsibility of relieving against that harm when it does in fact occur.

b. When liability is applicable despite that the activity was carried on with allreasonable care and that the utility of the risk was great. Liability without faultor negligence.

c. Whether an activity is subject to strict liability is a decision for the court, notthe jury. Similar to negligence per se, but courts don't want to call it negligentbecause the value to the community is so great. The activity is required to payits own way without the stigma.

II. Animalsa. Livestock

1. Fencing In: statutes requiring owners to fence their animals in orotherwise restrain them; owner who does not do so, or does not

maintain an adequate fence, is strictly liable for damage done byescaped livestock. Mostly used out west where ranching is prevalent.

2. Fencing Out: statutes requiring owners to fence in their livestock inorder to keep out trespassing animals. The owner of the trespassinganimal is only strictly liable if it breaks down the fence and gets in.Mostly used in the east where farming is prevalent.

3. Scope: liability is limited to harm which might reasonably be expectedto result from the intrusion.(a) Liability covers harm to land, the possessor of the land, or a

member of the household, their chattels.(b) Limits on Liability there is no liability for harm:

i. Not reasonably expected from the intrusionii. Due to unexpected operation of a force of nature, action

or another animalsb. Wild Animals: classification based on the custom of the community

1. A possessor of a wild animal is subject to strict liability for harm doneby the animal to another, his person, land or chattels, notwithstandingany reasonable care by the possessor to prevent the animal fromdoing harm.

2. Liability is limited to harm that results from a dangerous propensity thatis characteristic of wild animals of that particular class, of which theowner knows or has reason to know.

j Being pushed over by a lion is not a risk that makes theanimal wild and dangerous; no recovery for this understrict liability

c. Domesticated Animals1. Generally held to a negligence standard2. Scienter

(a) However, the possessor is strictly liable if he knows orhasreason to knowthat the animal has a dangerous propensityabnormal to its class.


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(b) It is not necessary for the animal to have attacked someonebefore for the owner to have reason to know of its viciouspropensity.

(c) If plaintiff cannot prove owner knew or should have known,then they must prove negligence in order to recover.

3. Dangerous Breeds Plaintiff is not allowed to assert that the ownerhad reason to know that his dog was dangerous simplybecause itbelongs to a particular breed.

III. Abnormally Dangerous Activitiesa. Factors

1. Is the probability of harm great?2. Is the harm that would ensue if the risk materializes great?3. Can such accidents not be prevented by the exercise of due care?4. Is the activity not a matter of common usage?5. Was the activity inappropriate to the location where it took place?6. Is the value of the activity to the community high?

IV. Scope of Risk: there must be proximate causea. Strict liability is only imposed for harm that results naturally from the

abnormally dangerous activity.

1. D is liable for extraordinary risk associated with the abnormallydangerous activity.

2. Ask:(a) "What are the extraordinary risks associated with this

conduct?(b) Is this the type of harm that SL for this case is meant to

protect against?3. Not dependent on foreseeability, similar to negligence per se

b. Acts of God: strict liability does not apply where the harm is caused by actsof God unforeseen by the defendant.

c. Sensitivity: D is not liable for his abnormally dangerous activities where if the

harm would not have occurred had P not been abnormally sensitive.d. Statutory Sanctions: for Ds conduct usually preclude the application of strict

liability.e. Intervening Causes: D is not liable for unforeseen intervening causes

V. When to Apply Strict Liabilitya. Desirability of Strict Liability

1. Is negligence law inadequate to prevent a sufficient number ofaccidents?

2. Can we improve things by imposing strict liability? By:(a) Shifting the activity to another locale?(b) Reducing the scale of the activity?

3. Are the costs of accidents prevented by strict liability worth theadditional litigation costs generated by strict liability?(a) Since SL is more expensive, is the increased cost of litigation

worth the amount of damages prevented by incentivizing thecompany to change/relocate its transportation practices?

b. Economic Efficiency Rationale VI. Defenses

a. Unreasonable Assumption of Risk1. Ordinary contributory negligence is not a defense to an action for strict

liability. Because negligence is unnecessary to find liability, something


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more than slight negligence or want of due care on the part of theinjured party is required to bar recovery.

2. Instead, D must establish that the injury was caused by P:(a) Unnecessarily AND(b) Voluntarily placing himself in the way of harm, knowing the

probable consequences of his act, rather than by the strictlyliable conduct.

b. Reasonable Assumption of the Risk for Personal Benefit

1. If P suffers harm as a result of contact/proximity to Ds animal orabnormally dangerous activity for her own benefit, strict liability is notapplicable.

c. Comparative Negligence1. The modern trend is to apply comparative negligence, however, it

wont bar compensation, it will just reduce Ps recovery2. Comparative fault applies, so P's recovery in a strict product's liability

action may be reduced according to the extent to which his injuryresulted from his own lack of reasonable care

3. D may show that its negligence caused the harm only to the extent thatPs own conduct did not.


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Products Liability

I. Generallya. A product is defective when, at the time of sale or distribution, it contains a

manufacturing defect, is defective in design, or is defective because ofinadequate instructions or warnings.

b. Basic Elements1. D is in the business of selling or otherwise distributing the product2. The product is defective at the time of sale or distribution3. The defective product proximately caused physical harm to a

foreseeable user, consumer, or bystanderII. Types of Product Defect

a. Manufacturing: when the product departs from its intended design eventhough all possible care was exercised in the preparation and marketing ofthe product.

1. Inevitably occurs in products of a given design as a result of thefallibility of the manufacturing process; the end result doesn't match theoriginal design

2. True strict liability exists only in manufacturing defects.b. Design: when the foreseeable risks of harm posed by the product could have

been reduced or avoided by the adoption of a reasonable alternativedesignand the omission of the alternative design renders the product notreasonably safe.1. Liability of a defectively designed product shall be based on pure

negligence analysis(a) This is because a design defect situation demands an

examination of conscious decisions made by themanufacturer. So it's a question of negligence.

2. Involves an analysis of possible alternative designs and a cost-benefitanalysis.

3. Widely distributed products can only be subject to liability for defectivedesign if P can prove that a reasonable alternative design is available.

c. Failure to Warn: Inadequate instructions or warnings when the foreseeablerisks of harm posed by the product could have been reduced by the provisionof reasonable instructions or warningsand the omission of the instructionsor warnings render the product not reasonably safe.1. Knowability: required element of strict liability for failure to warn.

(a) Strict liability seeks to focus on the condition of the productrather than the conduct of the manufacturer(b) Infuses negligence concepts into SL cases, however, strict

liability would become absolute liability if manufacturers wererequired to warn risks that were unknowable at the time ofdistribution

2. Adequacy of Warning: Usually left to the jury who rely on experttestimony.(a) Risk Reduction Warnings

i. Safe-Use Instructions


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ii. Informed choice warnings that enhance safety; this is forproducts that can't really be used safely

j When used on a regular basis, aspirin can cause ulcers.By having a warning it will allow the consumers to makeinformed decisions and resulting to less aspirin relatedinjuries because some consumers are choosingalternatives.

(b) Elements of an Reasonable Warning

i. Reasonably catch the attention of usersii. Fairly apprize of nature and extent of dangeriii. Instructions how to avoid danger

3. To recover, P must prove that D did not warn of a knowable risk. Risksmust be reasonably foreseeable at the time of sale or could not havebeen discovered by way of reasonable testing prior to the marketing ofthe product.(a) Exceptions

i. There is no duty to warn of obvious dangers andgenerally known risks such as alcohol and cigarettes.When reasonable minds differ as to where a risk is

obvious, a jury decides.ii. There is only a duty to warn for allergic

reactions/hypersensitivity if the ingredient is one that asubstantial number of people are allergic to.

4. Learned Intermediary Rule: physicians are the "learned intermediary"between the pharmaceutical company and the patient. The physicianis best understands a patient's needs and the risks/benefits of a courseof treatment; therefore, the physician should decide which warnings topass on to the patient.(a) Applies to prescription medical devices as well as prescription

drugs

(b) Many jurisdictions do not apply it in cases where themanufacturer is aware that there will be no learnedintermediary, such as mass school immunizations

III. Foreseeability vs. Hindsighta. We use foreseeability to determine negligence and we use hindsight to

determine SL. However, most cases of SL use foresight. The maindifference between negligence and SL is that in SL you are applying the riskutility analysis at the time of trial instead of the at the time distribution

b. Cases Applying Foresight1. Misuse2. Alternative design

3. Failure to warn4. Rx drug/med. devices.

c. Generic Risk1. Something used in a foreseeable way that still has a risk2. Uses hindsight, which is very similar to pure SL

d. Manufacturer Defect1. No hindsight or foresight used2. Pure strict liability

IV. Defensesa. Comparative Negligence


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1. The purpose/goal of strict products liability is to eliminate problems ofproof of negligence. However, D may show that its negligence causedthe harm only to the extent that Ps own conduct did not.

2. P's recovery in a strict product's liability action may be reducedaccording to the extent to which his injury resulted from his own lack ofreasonable care

b. Misuse1. Manufactures are not liable when harm is the result of abnormal

handling2. However, if the misuse was reasonably foreseeable, it does not bar to

an action based on strict liability for a manufacturing defect.3. Misuse is sometimes found to be just comparative negligence, but

most of the time it's one of the three other choices (no defect, no causein fact, no proximate cause)

Documents

Fischer Torts Fall2010