TORTS OUTLINEFall Semester 2006 - Turley

GENERAL LEGAL APPROACHES, ECONOMIC AND POLICY RATIONALE..............................5

LEGAL APPROACHES................................................................................................................................5

NORMATIVE APPROACH...............................................................................................................................5FORMALISM..................................................................................................................................................6LEGAL REALISM...........................................................................................................................................6LOCKEAN......................................................................................................................................................6

Neo-Lockian............................................................................................................................................6Locke’s Proviso.......................................................................................................................................6

HEGELIAN.....................................................................................................................................................6UTILITARIANISM...........................................................................................................................................6FEMINISM.....................................................................................................................................................6CRITICAL LEGAL STUDIES...........................................................................................................................6

ECONOMIC AND POLICY RATIONALE................................................................................................7

PIGOU...........................................................................................................................................................7OLSEN..........................................................................................................................................................7HARDIN........................................................................................................................................................7

Slippery Slope.........................................................................................................................................7Bright Line Rule......................................................................................................................................7Floodgate................................................................................................................................................7

LAW AND ECONOMICS – RICHARD “I HATE POOR PEOPLE” POSNER....................................7

INTENTIONAL TORTS...............................................................................................................................9

PHYSICAL HARMS........................................................................................................................................9Battery and Consent................................................................................................................................9

Vosberg v. Putney................................................................................................................................................9Garrett v. Daily....................................................................................................................................................9Mohr v. Williams.................................................................................................................................................9O’Brien v. Cunard.............................................................................................................................................10Hudson v. Craft..................................................................................................................................................10

Trespass to Land...................................................................................................................................10Trespass to Chattels..............................................................................................................................10Conversion............................................................................................................................................11

NONCONSENSUAL DEFENSES.....................................................................................................................11McGuire v. Almy...............................................................................................................................................11Courvoisier v. Raymond....................................................................................................................................11Bird v. Holbrook................................................................................................................................................12Kirby v. Foster...................................................................................................................................................12Ploof v. Putnam.................................................................................................................................................12Vincent v. Lake Eerie........................................................................................................................................13

EMOTIONAL AND DIGNITARY HARMS........................................................................................................13ASSAULT..............................................................................................................................................13FALSE IMPRISONMENT.....................................................................................................................13INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS...............................................................14

Wilkinson v. Downton.......................................................................................................................................14SUMMARY CHART................................................................................................................................14

NEGLIGENCE.............................................................................................................................................16

NEGLIGENCE GENERALLY...................................................................................................................16

SUMMARY CHART..............................................................................................................................16WHO IS THE REASONABLE PERSON?..........................................................................................................16

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GENERALLY.........................................................................................................................................16Vaughan v. Menlove..........................................................................................................................................16Roberts v. Ring..................................................................................................................................................16Daniels v. Evans................................................................................................................................................17

Emergency.............................................................................................................................................17Eckert v. Long Island RR..................................................................................................................................18

Considering Risks to others in the Alternative.....................................................................................18Cooley v. Public Service Co..............................................................................................................................18

Anticipating Conduct of Others............................................................................................................18MALPRACTICE............................................................................................................................................18

Brown v. Shyne.................................................................................................................................................18STATUTES & REGULATIONS AND NEGLIGENCE.........................................................................................19

Statutory Violations as Negligence Per Se...........................................................................................19Gorris v. Scott....................................................................................................................................................19Martin v. Herzog................................................................................................................................................19Ross v. Hartman.................................................................................................................................................20

Dramshop Rule.....................................................................................................................................20CUSTOM AND NEGLIGENCE........................................................................................................................20

The TJ Hooper...................................................................................................................................................20Mayhew v. Sullivan Mining Co.........................................................................................................................21Cantebury v. Spence..........................................................................................................................................21

CALCULATION OF RISK..............................................................................................................................21Balancing..............................................................................................................................................21Condition...............................................................................................................................................22

Blythe v. Birmingham Water Works.................................................................................................................22THE LEARNED HAND FORUMULA..................................................................................................22

U.S. v. Carroll Towing Co.................................................................................................................................22Andrews v. United Airlines...............................................................................................................................22Grimshaw - The Ford Pinto...............................................................................................................................22

JUDGE AND JURY........................................................................................................................................23PROOF OF NEGLIGENCE......................................................................................................................23

RES IPSA LOQUITOR..........................................................................................................................23Colemenares v. Vivas........................................................................................................................................23Ybarra v. Spangard............................................................................................................................................23Byrne v. Boadle.................................................................................................................................................23

ACUTAL AND PROXIMATE CAUSE.....................................................................................................25

CAUSATION IN FACT..................................................................................................................................25NY Central RR v. Grinstad................................................................................................................................25Kingston v. Chicago & N.W. Ry.......................................................................................................................25Summers v. Tice................................................................................................................................................25Herskovits v. Group Health Coop.....................................................................................................................26

PROXIMATE CAUSE....................................................................................................................................26Proximate cause and Physical Injury...................................................................................................26Damage must be ordinary and natural result of D’s acts....................................................................27

Ryan v. New York Central RR (NY 1866)........................................................................................................27Plaintiff’s Violation of Statute only matters if it increases his chance of injury..................................27

Berry v. Sugar Notch Borough..........................................................................................................................27Proximate Cause – Forseeable Harm...................................................................................................27

Polemis & Fumessv. Withy & Co.....................................................................................................................27Wagon Mound...................................................................................................................................................28

Summary Chart.....................................................................................................................................28Marshall v. Nugent............................................................................................................................................28

Proximate Cause – Forseeable Plaintiffs.............................................................................................28Palsgraf v. LIRR................................................................................................................................................28

Proximate Cause – Intervening Causes................................................................................................29

MULTIPLE DEFENDANTS: JOINT AND SEVERAL LIABILITY....................................................30

JOINT AND SEVERAL LIABILITY.................................................................................................................30

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PROGRESSION – MODERN TRENDS AGAINST PURE J&S LIABILITY...........................................................30Joint and Several Liability with Reallocation.......................................................................................30Joint and Several Liability with Threshold Percentage........................................................................30Joint and Several Liability – Based on Damage Type..........................................................................30Pure Several Liability...........................................................................................................................30

INDIVISIBLE V. DIVISBLE HARMS...............................................................................................................30Action in Concert..................................................................................................................................31Successive Injuries................................................................................................................................31Indivisble Harms...................................................................................................................................31

AFFIRMATIVE DUTIES............................................................................................................................32

DUTY TO RESCUE.......................................................................................................................................32Exceptions.............................................................................................................................................32

SPECIAL RELATIONSHIPS............................................................................................................................32Kline v. 1500 Mass. Ave. Apt. Corp.................................................................................................................32Tarasoff v. Regents of University of California................................................................................................33

OWNERS AND OCCUPIERS OF LAND.................................................................................................34

OUTSIDE THE PREMISES..............................................................................................................................34Natural Hazards....................................................................................................................................34Artifical Hazards...................................................................................................................................34

TRESPASSERS.............................................................................................................................................34Exceptions.............................................................................................................................................34Attractive Nuisance...............................................................................................................................34

LICENSEES..................................................................................................................................................35Duty to Licensees..................................................................................................................................35

INVITEES.....................................................................................................................................................35Definition of Invitees.............................................................................................................................35Duty of Due Care..................................................................................................................................35

FIREFIGHTERS AND OTHER PUBLIC SAFETY PERSONNEL............................................................................35LESSORS AND LESSEES...............................................................................................................................35

Lessee....................................................................................................................................................35Lessor....................................................................................................................................................36

VENDORS....................................................................................................................................................36

VICARIOUS LIABILITY...........................................................................................................................37

VICARIOUS LIABILITY................................................................................................................................37Respondeat Superior (Formally Master-Servant Law).........................................................................37Vicarious Liability relating to officers/gov’t agents-............................................................................37Independent Contractor Doctrine.........................................................................................................37

STRICT LIABILITY...................................................................................................................................38

ANIMALS....................................................................................................................................................38ABNORMALLY DANGEROUS ACTIVITIES....................................................................................................38LIMITATIONS ON STRICT LIABILITY...........................................................................................................38

Scope of Risk.........................................................................................................................................38

PRODUCTS LIABILITY............................................................................................................................39

PRODUCTS LIABILITY AND NEGLIGENCE...................................................................................................39Winterbottom v. Wright (Ex. 1842)..................................................................................................................39MacPherson.......................................................................................................................................................39

Typical Negligence Defendants............................................................................................................40PRODUCTS LIABILITY AND WARRANTY.....................................................................................................40

Express Warranties...............................................................................................................................40Implied Warranties...............................................................................................................................40

PRODUCTS LIABILITY AND STRICT LIABILITY...........................................................................................41

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Generally...............................................................................................................................................41Non-manufacturer.................................................................................................................................41Manufacturing, Design and Failure to Warn Defects..........................................................................41Manufacturing Defect...........................................................................................................................41

Puncey v. Ford Motor Co..................................................................................................................................41Design Defect........................................................................................................................................41

Volkswagen of America, Inc. v. Young............................................................................................................41Failure to Warn Defect.........................................................................................................................42

MacDonald v. Ortho Pharmacuetical................................................................................................................42Comment K Jurisdictions......................................................................................................................42

DEFENSES BASED ON A PLAINTIFF’S CONDUCT........................................................................................43Types of Comparative Negligence Jurisdictions...................................................................................43Types of Comparative/Contributory negligence by Plaintiff................................................................43

NUISANCE...................................................................................................................................................44

PUBLIC NUISANCE......................................................................................................................................44-Union Oil Co. v. Oppen....................................................................................................................................44

PRIVATE NUISANCE....................................................................................................................................45Fontainebleu Hotel v. Forty-Five Twenty.........................................................................................................45

Extra-Sensive Plaintiffs.........................................................................................................................45Rogers v. Elliot..................................................................................................................................................45

Coming to the Nuisance........................................................................................................................46Ensign v. Walls, (Mich. 1948)...........................................................................................................................46

Permanent and Temporary Damages...................................................................................................46Boomer v. Atlantic Cement Co., NY 1970........................................................................................................46

Injunction versus Damages...................................................................................................................46

DEFAMATION............................................................................................................................................48

COMPONANTS OF DEFAMATION.................................................................................................................481. Defamatory statement.......................................................................................................................482. Publication........................................................................................................................................483. Fault..................................................................................................................................................484. Special Harm....................................................................................................................................49

LIBEL..........................................................................................................................................................49SLANDER....................................................................................................................................................49PRIVILEDGED CLASSES: PUBLIC OFFICIALS AND PUBLIC FIGURES...........................................................49

New York Times v. Sullivan.............................................................................................................................49PRIVATE PARTIES.......................................................................................................................................50

Gertz v. Robert Welch, Inc................................................................................................................................50PRIVILEDGES – IMMUNITY FROM LIBEL AND SLANDER CLAIMS...............................................................50

Absolute Privilege.................................................................................................................................50Qualified Priviledge..............................................................................................................................50

INVASION OF PRIVACY..........................................................................................................................52

MISAPPROPRIATION OF P’S NAME OR PICTURE..........................................................................................52INTRUSION ON P’S SECLUSION...................................................................................................................52UNDUE PUBLICITY TO P’S PRIVATE LIFE....................................................................................................52Placing P in a false light............................................................................................................................52

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TORTS OUTLINE

General Legal Approaches, Economic and Policy Rationale

Legal Approaches

Normative ApproachBased in the theory of right and wrong, and balancing wrong with a right when possible. Elements form the black letter of the law

FormalismSought stability in tort law through “cannons of construction”

To what extent X’s action produced resulting YEconomy and society will flourish when we know the consequences specified for actions. Designed with an anti-biased system

Legal RealismKarl Llewellyn – attack on formalism by pointing out inconsistencies – contradictory cannons. Created a revolution and required judges to explain WHY they ruled the way they did.

Lockean* Labor Theory – in the beginning all things owned communally. God puts humans on earth who used their sweat and labor to make private property. Provides a divine basis for pursuit of private property.

Neo-LockeanBelieve there are limits to how much you can take people’s private property

Locke’s ProvisoSays you have a divine foundation of property as long as you have enough that’s good enough for others

HegelianThe meaning/value of an object can only be measured in relation to its owner; an object often has much greater intangible value for the individual than it does on the market – soft value.

UtilitarianismJeremy Bentham – Function fo law is to further thre greatest food for the greatest number. Says we should maximize wealth for society and redistribute it appropriately.

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FeminismFocused on paternalistic aspect of torts. One main question: did the fact that men alone created the law have a distortive effect and create some really deeply biased laws? Fems say YES! The adversarial system is based on an inherently male pattern of behavior – settle disputes with violence of confrontation. Fems want to adopt a “jurisgenerative approach”

Critical Legal StudiesDuncan Kennedy - Began in 1977 at a Harvard conference – asks why? What is the law’s role in preserving the status quo of rich and poor in our society? Tried to review Blackstone’s work and deconstruct cannons that asses “class orientation”.

Economic and Policy Rationale

PigouThe time to create new laws is when the market will not suffice – let the market do as much as it can and step in when it won’t do the right thing fast enough (ie with the Civil Rights Act

OlsenThe most effective groups in a democratic system are small groups – they are willing to put money and effort in achieving common goals and know if someone is trying to free-ride

HardinHardin believed in individual property in order to force the internalization of costs – without it, each person will graze one more cow for their benefit even if it is to the ultimate detriment of other property shares.

Slippery Slope: Do not do A because it will lead to B and C and etc. That first step will make it more likely that you will deal with each subsequent argument and the court’s don’t want to do that.

Bright Line Rule: Keep a bright line or we will get into more difficult questions (the answer to the slippery slope argument so that they don’t have to decide B later)

Floodgate: If you take this case, there will be TONS of new cases dealing with the same thing. Right now, these cases cannot be litigated and your change would allow them all into the court system.

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Law and Economics – Richard “I hate poor people” Posner

75% of Federal judges today subscribe to it to some extent-The optimal basis for law is efficiency – NOT morality. There are too many ideas about what “moral” is. We can use the law to find maximized wealth.

Efficiency o Pareto efficiency – pick the change that will benefit at least one person

without making anyone else worse offo Kaldor Hicks efficiency – don’t care if there is a loser, more important to

make changes resulting in more winners than losers. Don’t compensate the losers.

Cost externalizationo Any cost or benefit imposed upon others by your activity o Rational actor would want to shift as much negative externalities to others

Coase Theorem – extremely influential – came to fruition at outset of Reagan Administration

o 1. A legal dispute is the result of conflicting uses; law should/will support more valuable use (to the community)

Ex: A farmer wants to raise crops, excluding cows; rancher wants to have cows, which would trample crops. Whoever prevails depends on what is more valuable to that specific community.

In a perfect market it doesn’t matter what the law does –market will create same result no matter what

o 2. BUT – there is no such thing as a perfect market – there are transactional costs. These are costs you incur just to make the deal – they can actually lead to the worst possible outcome.

o Coase 1: In a perfect market the more valuable use will prevailo Coase 2: There is no perfect market because of transactional costs, gree

riders, and externalities that interfere

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INTENTIONAL TORTSIntentional torts require an evil act and an evil mind. Unlike Criminal Law, the P is a private person, and must prove a preponderance of evidence as opposed to beyond a reasonable doubt. Differs from negligence, which does NOT require an evil mind.

Physical Harms

Battery and ConsentElements of Battery:Intentional infliction of harmful or offensive nonconsensual contact

1. Elements must be “intentional”a. Basic intent – act with a desire to bring about harmb. Transferred intent – if D means to hit 3rd party but hits P, D is still liable

i. Only applies to short time after intended injury – beyond that should consider negligence theory

c. Substantial certainty – even if D did not really mean to, he had intent if there was a substantial certainty that he would cause the injury

d. Intent to violate a rule – intent to violate ANY rule may count as intent

Vosberg v. Putney D kicked P lightly w/o intent to harm; activated latent injury that seriously hurt P; Ct held D liable b/c of eggshell thin skull rule and fact that D kicked during class when there was no “implied license of playground” – breaking school rule = liable. ALSOTAKE YOUR VICTIM AS YOU FIND HIM. Just because he didn’t mean to cause substantial harm doesn’t mean that he’s not liable just because he was unaware of the victim’s fragile state.

Garrett v. Daily 5 year old pulls out chair from old lady. MAJORITY RULE: Liability for substantial certainty that harm will occur (i.e. that woman would attempt to sit down and therefore hurt herself even though he did not intend to break her hip).

2. D’s act must be without consenta. CONSENT VITIATES INTENTb. Standard consent – any violation to person must be specifically

consented to, with the exception of medical emergency

Mohr v. WilliamsD doctor does medically sound operation on P’s ear to remove disease; P had consented to operation on right ear, but it turned out after operation that left ear really needed operation; with approval of P’s doctor, D doctor operated on other ear w/o waking her to confirm; P sued for battery and loss of hearing. Court sustained verdict for P

c. Implied consent – if a reasonable person would consider the P consenting to the action, consent can be implied

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O’Brien v. CunardP said she received an unwanted vaccination. However, when she was in line for the vaccinations, she stuck her arm out when it was her turn. Court said that if P’s behavior indicated consent on her part, the doctor’s actions were justified, whatever her unexpressed feelings were. Consent could only be determined by overt acts.

d. Exceptions to consenti. Consent may not be needed in emergency situations

ii. If person cannot make own decision, someone can be authorized to do that for them (Guardian ed litem)

iii. There are statutory prohibitions on certain classes whose assent cannot be considered consent, as they are a protected class

1. incompetents2. physically disabled3. minors

MAJORITY RULE: CONSENT VITIATES INTENT – a volunteer suffers no wrong

Hudson v. CraftYouth entered boxing match and sued promoter for his injuries; Ct said he was unable to consent legally b/c the match was barred by criminal code. Court said that if legislative purpose in making D’s conduct a crime is to protect classes of persons (including P) from their own poor judgment, P’s assent cannot be considered consent

iv. Can’t consent to acts that by law are illegalv. Consent based upon fraud or misrepresentation is not consent

e. Assumption of risk can be analogous to consentIf an individual is aware of the substantial risk associated with an activity it can be considered assenting to the possible harm that may result

Trespass to LandTrespass occurs when either D intentionally enter’s P’s land without permission, or D remains on P’s land without permission to be there, even if she entered rightfully or D puts an object on, or refuses to move an object from P’s land without permission. NO STRICT LIABILITY.

Particles and gasses - If D knowingly causes objects, including particles or gasses, to enter P’s property, most courts would consider this a trespass

Air space – it can be trespass for a plane to fly over P’s property. Liability found if plane is below federal regs for elevation and flight substantially intergeres with P’s use of his land.

Trespass to ChattelsAny intentional interference with a person’s use or posesion of a chattel. D only has to pay damages, not the full value of the property (as in conversion

Loss of Posession – if P loses possession of the chattel for any time, recovery is allowed even if the chattel is returned unharmed

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ConversionAn intentional interference with P’s possession or ownership of property that is so substantial that D sould be required to pay the property’s full value. If P is successful with her suit, forced sale occurs. D is required to pay the full value of the goods but gets to keep the goods

Intent – all D has to do is intend to take possession of the property. Mistake as to ownership will generally not be a defense

V. Trespass to Chattels – court considers duration, dominion over the property, good faith or bad faith, harm done to the property, invonvenience to the P

Ways to commit o Acquiring possession – D takes possession of property from P

Most courts hold that a bona fide purchaser of stolen goods is a converter, even if there is no way they could have known that they were stolen

o Transfer to a third person – ex – messenger service delivers goods to the wrong person, person makes off with the goods, messenger service guilty of conversion even though they don’t end up with possession of the goods

o Witholding good – refusing to return goods to their owner, if the regusal last for a substantial time.

Ex: D, a parking garage, refuses to give P back her car for a day

Nonconsensual Defenses1. Insanity – insanity is generally NOT a defense. Insane person who by his act does intentional

damage to person/property of another is liable for that damage if sane person in the same circumstances would be liable. We hold insane people to the same standards despite their lack of intent.

McGuire v. AlmyThe Nurse P was injured by the insane D, who was in her care. The court found for the P, saying the person who occasioned the loss should bear it, which motivates those interested in the estate (i.e. the insane person’s family) to take due care. If the crazy intent includes the intent to commit the harm, that’s enough.

2. Self-defense – you have a privilege of self defense – you can commit offensive touching without consent if it’s in self defense; it’s even ok if you’re mistaken, as long as the mistake is reasonable. Differs greatly from over in Europe – where there is a duty to retreat.

Only in kind, in time – can’t hit the guy back 2 days later and claim SD Level of force must match level of threat (proportionality)

Courvoisier v. RaymondPolice officer P was shot by D when D thought P was an attacker. Court found that if D had reasonable (objective) belief (subjective) that P was endangering his life with greatly bodily harm he was privileged with the use of the same force

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3. Defense of Property – Common Law Majority Rule: moliter manus imposuit – If somebody is destroying your property you must first ask him to leave; if he does not, you can lay hands gently on him to defend your property – or you can slightly harm them temporarily – but you CANNOT kill or seriously wound.

- M’Ilvoy v. Cockran – P tore down D’s fence; D beat him severaly and wounded; P sued for A & B; won.

Bird v. HolbrookMan trap rule – can’t use a spring gun to protect property – it’s non-discriminate

- Make My Day Statutes – some states have passed these to supersede common law rule of moli manus – say you CAN hurt or kill them in self-defense. These say that you can use self-defense against people breaking into your house or your curtilage – area around house – driveway etc.

4. Recapture of Chattels – D can use reasonable force to recapture chattels if he is entitled to immediate possession, return has been demanded and refused, he is fresh in pursuit and has been reasonably diligent to recover, person who he is trying to recapture from is the wrongdoer, and force used is reasonable under the circumstances

Conversion – D renders property taken in such a shape that you don’t want it back – you want the value of the property instead

Trespass – usually means trespass to land; mistake doesn’t matter. Entering land w/o permission or staying past the time you’re permitted.

Trespass to Chattels – taking somebody else’s stuff

Kirby v. FosterP was D’s bookkeeper. Money was missing, D thought P stole it so he deducted it from P’s salary. P got control of similar amount of D’s money and kept it. D attacked P. Held – P had no criminal intent and the money was given to him voluntarily. P was justified in using force to retain money that was his, D not justified in use of force to get money.

Necessity – party A can trespass on B’s land/use his property when immediately necessary to prevent loss of life or serious harm to A’s property. Even if A only needed help because he was a reckless moron. Preservation of life is more important than property owner’s right.

i. Private Necessity – allows people to do things that would normally be a tort (i.e. trespassing in case of a storm)

ii. Public Necessity – justify a tort committed on account of public necessity (ie bulldoze houses to stop the spread of a fire)

Ploof v. PutnamP maroons his boat on D’s dock in storm. D’s servant (at command of his master) releases the boat. P’s person and boat are damaged. D is held responsible for damages – had no right to untie boat because P was using dock under the privilidge of necessity.

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HOWEVER – A must pay for the damage that he does to B in the process of using B’s property in a time of necessity

Vincent v. Lake EerieD preserved their ship in a storm, at the expense of P’s dock. The court found that the D must pay for damages done to the dock in the preservation of their ship.EXAMPLE OF THE CHEAPEST COST AVOIDER – boat owner is cheapest cost avoider because he had the greatest access to information that the storm was coming and was in the best position to avoid it.

Emotional and Dignitary Harms

ASSAULTAssualt is the intentional causing of an apprehension of harmful or offensive contact.D is liable for assault if he acts intending to cause a harmful or offensive contact with P or with a 3rd person, or an imminent apprehension of such contact AND the other is thereby put in such imminent apprehension.Summary: D has requisite intent for assault if D either intends to commit an assault or intends to commit a battery.

No hostility towards P is necessaryi. Ex: D plays practical joke on P and points toy pistol at her, hoping

she thinks she is about to be shot. Words alone rule – Ordinarily, words alone are not sufficient, by

themselves, to give rise to an assault. Normally there must be some overt act – a physical act of gesture, before assault occurs.

i. Special circumstances – D’s past acts may make it reasonable for P to interpret D’s words alone as creating the required apprehension.

Imminence – it must appear that the harm being threatened is imminent and D has present ability to carry out the threat

Awareness – P must be aware of the threatened contact Threat to 3rd person – P must have an apprehension that Conditional Threat – Where D threatens harm only if P does not obey

D’s demand, the existence of an assault depends on whether D had the legal right to compel P to perform the act in question

i. Ex. P is a burglar and beaks into D’s home. D says “Get out or I’ll kick your ass” – no assault on P since D has the legal right to force P to leave

FALSE IMPRISONMENTFalse imprisonment is intentional infliction of a confinement. Keeping OUT of an area is NOT confinement. Area may be large and need not be stationary.

Staying to protect property – if P feels compelled (though I not actually forced) to stay in one place to protect his property from a fear of harm to it by D, that can b false imprisonment)

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Intent – P must show that D either intended to confine him of that D knew with substantial certainty that P would be confined by D’s actions

Means used – either threats or legal authority Knowledge – P must know of confinement in order to recover Extent of Liability – D is liable for injury that P incurs while making

reasonable attempts to escape.

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESSThe intentional or reckless infliction, by extreme and outrageous conduct (beyond all possible bounds of decency) of sever emotional or mental distress, even in the absence of physical harm.

Distress to third persons – where such conduct is directed at a third person, actor is liable if he intentionally or recklessly causes severe emotional distress

i. To a member of victim’s immediate family who is present at the time, even if no bodily harm results

ii. Or to any person present in the time if it DOES cause bodily harm

Wilkinson v. DowntonD lied, telling P her husband was severely injured. P suggered shock, vomiting, and weeks of suffering. Court held that D willfully did an act calculated to cause physical harm to the P and willful injuria is in law malicious, therefore an intention to produce such an effect must be imputed, since all but most indifferent would so suffer.

SUMMARY CHART

Battery: intentional act which brings about harm or offense to a person

MAJORITY RULE: Liable if there is substantial certainty that harm will occur; Offensive touching without consent

MINORITY RULE: Intent is formed by breaking a rule or law

Does not need to be preempted by assault

Assault: The creation of a reasonable apprehension of battery

Requires intent otherwise it is negligence

There are rare cases where words alone are considered assault

Offensive Battery: Battery which does not cause actual injury other than against the person’s dignityFalse Imprisonment: Being held in a confined space against your will

MAJORITY RULE: There must be total obstruction and detention

Does not require a locked door; you must try to leave if you are NOT taking a risk to do so; future threat is not false imp.

Defenses include: protection of property, consent, parental control

Narrow category of liability

Intentional Infliction of Emotional Distress: Easiest to collect if it To collect for 3rd party

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extreme or outrageous conduct caused intentionally or recklessly and resulting in severe emotional distress or bodily harm

is accompanied by physical harm

Restatement § 46

harm, see Dillon v. Legg for Majority Rule

Defense Definition ExceptionsConsent Volunteering or consenting to the

potential harm vitiates intentEmergency Exception; Substituted Consent; Life Support Decision; Guardian ad litem; parties which cannot consent

Insanity MAJORITY RULE: an insane person can be liable for battery

MINORITY RULE: Insane person is not liable

Self-Defense Using force to act in reasonable fear of yours or others safety

Time (defend not retaliate); Response must be reasonable

Defense of Property To remove someone from your property, you must first ask them to leave. If they do not you can “lay gentle hands upon” (moliter manus)

You can use force if they are forcibly on your property (self-defense); Make My Day Law; cannot do something indirectly that cannot be done directly

Recapture of Chattels You can use force to recover property if someone got it from you through fraud, force, or without claim of right

Deadly force can never be used; you cannot use force if you 1) entrusted the property to the person 2) know the person and can pursue recovery peacefully (in court)

Private Necessity Gives you the right to commit a tortuitous act (i.e. trespassing) if you are in a life threatening situation regardless of how you got into it

Is accompanied by a duty to pay damages to the injured party (i.e. if you harm the property you must trespass on)

Public Necessity Gives you the right to commit a tortuitous act (i.e. destruction of property) if it is for the general public good; MAJ RULE: this is only available to government

Majority of states have statutes that require government to compensate for the destruction of private property; however compensation does not always cover pub. necessity

Intoxication Unintentional hitting due to alcohol (i.e. flaling arms) is negligence and a possible defense for liability. It is an intentional tort if you wanted to hit someone – clear directed action against an individual

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NEGLIGENCE

NEGLIGENCE GENERALLY Was D reasonable? Did he cause the injury in fact? Was his act the proximate cause of the injury? Does he have any defenses?

SUMMARY CHARTQuestion Yes No

Was the person reasonable in their actions?

Case is over – unless it is a question of negligence per se

Go to causation

Was this unreasonable act the factual cause of the injury?

Go to proximate cause Case is over

Was the act the proximate cause of the injury?

Look at defenses or restrictions on liability

Case is over

Are their defenses for all or part of the liability?

Who Is the reasonable person?

GENERALLY The Objective Standard: D is held to standard of what the reasonable person,

not THIS person, would do in the circumstances. Duty does not require that we avoid all injury to others, but only that we avoid injuring others by carelessness in our actions.

Vaughan v. MenloveD placed his hay rick too close to P’s property and refused to fix or move it despite warnings. Court – no excuse will be given for stupidity. D thought it shouldn’t be negligence, as he acted to the best of his judgment. Sets the precedent that objective reasonable person is the standard. Allowing for D’s stupidity would “afford no rule at all.” Everyone “takes upon himself the duty of so dealing with his own property as not to injure the property of others.”

1. Defendant’s infirmities – infirmities are irrelevant – standard is reasonable D, not this D

Roberts v. RingD (old man, limited vision/hearing) in car ran over P (7 year old boy) in street; P argued D was negligent either in failing to look carefully as he drove or in stopping quickly enough. Trial judge charged jury that they should take into account the D’s age and infirmity in deciding whether he was negligent. Jury found for D and P appeals claiming error in charge.

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Held: Jury was charged incorrectly. The standard is the behavior of a reasonable driver, NOT including consideration of THIS driver’s age and physical condition. Also, P’s possible contributory negligence should be considered in view of fact that “a boy of seven is not held to the same standard of care in self-protection” as an adult.

2. Defendant’s Age – D is held to standard of a reasonable person of the same age, intelligence, and experience (with the exception of child engaging in adult activities)

Daniels v. EvansP’s decedent, a 19-year old “youth,” was killed when his car hit D’s car. Alleged error urged on appeal was question of whether a “youth” had same standard of care in driving as an adult.Held, a minor when driving must be judged by same standard of care as an adult. It would penalize other drivers to hold him less accountable; a driver cannot know if the driver of another car is a minor or adult. I.e. Child Ps and child Ds are held to the same standard of care – so same standard for children’s negligence and contributory negligence.i

Restatement (3rd) Torts GP § 8: holds a child to standard of “a reasonably careful person of the same age, intelligence, and experience.” Exception: children engaging in adult-like activities.- One rule of thumb for many courts (although problematic) is that a child has same standard of care if the activity is one for which govt requires a license – e.g. driving, but not riding bike (or sometimes, shooting.)

7/7/14 Rule: Children under 7 are incapable of negligence. They don’t have capacity. Children between the ages of 7 and 14 are presumed incapable of negligence, but they might be capable. Children 14 or over are presumed to be capable of Neg. Rare that subjective standard is applied to anyone over the age of 16.

3. Beginners: Beginners at an activity are held to same standard of care as those who are reasonably skilled and practiced at it

4. Mental Capacity/Insanity – D with mental incapacity held to same standard as a person of ordinary intelligence. Gives incentive to D’s family to prevent them from causing harm

a. Exception - D is not liable for her damages if she had no reason to think/know she would be afflicted e.g. of sudden affliction

5. Plaintiff’s Physical Disabilities – disabled person must act as reasonable person with that disability would act. Fletcher v. City of Aberdeen – Blind man fell into manhole. Held: blind men are entitled to live in the world and must use the care that a reasonable person with the same disability would use; P here acted properly

EmergencyIf P I confronted with an emergency, and is forced to act with little time or reflection, D must merely behave as a reasonable person would if confronted with same emergency, and not as a reasonable person with time to think

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Eckert v. Long Island RRP’s decedent was killed by D RR when trying to rescue kid sitting on tracks. D argued that contrib Neg barred P from recovering. Ct ruled for P; Held, a P’s calculus of risk is not unreasonable if in time of emergency (w/o time to think) he puts himself at risk to save another – as long as it was not rash or reckless or clearly futile to average P in his place.

Considering Risks to others in the Alternative

Cooley v. Public Service CoD power company maintained power lines that were damaged in storm; caused loud noise in P’s ear; she suffered neurosis and physical injuries; P said D should have used safety measures that might have reduced her chance of emotional harm. Supreme Ct reversed trial Ct’s verdict for P b/c her suggested changes would have decreased her risk of emotional harm but increased risk of physical harm to pedestrians, which were a more foreseeable class of plaintiffs

Anticipating Conduct of OthersA reasonable person possess at least limited ability to anticipate the conduct of others

D may be required to anticipate the possibility of negligence on the part of others

i. Ex. It may negligence for D to presume that all drivers near him will behave non-negligently

Normally the reasonable person is entitled to assume that third persons will not commit crimes or intentional torts

i. BUT if D has special knowledge with either P or a third person, or special knowledge of the situation, then it may be negligence for D not to anticipate a crime or intentional tort

1. ex. It may be negligence for D, a psychiatrist, no to warn P that a patient of D is dangerous to P (Tarasof v. Regents)

MalpracticeIf D has a higher degree of knowledge, skill or experience than the “reasonable person,” D must USE that higher level.Generally: - Professionals must act with the level of skill and learning commonly possessed by members of the profession in good standing.

Brown v. Shyneunlicensed chiropractor accused of causing paralysis – he DID violate criminal statute requiring license, but that isn’t enough to show Neg per se; jury must still find that D failed to meet objective standard of the profession of which he held himself out to be a member. Statute was designed to prevent against unskilled practitioners, and there’s no proof that he was unskilled.

- D may still plead contributory Neg/ assumption of risk.1. Good results not guaranteed – professional does not have to guarantee good

results, just that the minimum requisite for skill and competence will be met

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2. Differing Schools – if there are conflicting schools of thought, D just judged in comparison to the school of thought he follows

3. Specialists – If D represents himself as a specialist, will be held to the minimum standard for that specialty

4. Minimally Qualified Member – D must be shown to have lacked the skill level of the minimally qualified member in good standing

a. No novice exception – one who is just beginning the profession is held to same level as a member of the practice generally

5. Community Standards – doctors and other professionals have been bound by the professional standards prevailing in the community in which they practice, not by a national standard

Statutes & Regulations and Negligence

Statutory Violations as Negligence Per SeAn actor is negligent if, without excuse, he violated a statute designed to protect against the type of accident his conduct causes, and if the victim is within the class of persons the statute is designed to protect.NOTE: inverse does not hold – compliance with a statute does not make an actor “reasonable per se”

1. “Without excuse” – possible excuses for statutory violations include:a. Incapacity – e.g. actor is minor and incapable of his due careb. Lack of knowledge of necessary compliance – e.g. taillight goes out

before you realize itc. Inability to comply – blizzard makes it impossible to keep driveway cleard. Emergency – swerve over center lane to avoid hitting childe. Compliance riskier than violation – walk with back to traffic b/c it’s

lighter than oncoming traffic2. Designed to protect against this type of accident

a. Only applies when statute is relevant to injury sufferedb. P must be a member of class protected by statute

i. Is class defined?ii. Is this person part of that class?

iii. Is this person protected from this TYPE of risk?

Gorris v. ScottP’s sheep were washed overboard off of D’s ship. A statute existed requiring that the pigs be penned in a certain way. The statute existed to prevent the spread of disease from sheep to sheep. Statutory Purpose Doctrine – P must also show that the statute was designed to prevent the type of injury that occurs. Here, there was a causal connection between breach of statutory duty and P’s harm, but statute was enacted with a totally different injury in mind.

Martin v. Herzog(violation of relevant statute is Neg per se)

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Facts: P’s decedent was killed when his buggy collided after dark with D’s car; decedent was driving without lights, in violation of NY statute. Trial Ct refused D’s desired jury charge (that decedent’s violation of statute was prima facie evidence of contributory negligence) and told jury it MAY consider the violation as some evidence of Neg, but it was not dispositive. Held: Jury instructions were wrong. Statutory violation IS Neg itself, not just evidence of it. Jurors may not choose freely whether to treat the violation as Neg – they have no dispensing power to relax the duty that one traveler on the highway owes under the statute to another.

Ross v. HartmanD violated ignition key statute by leaving key in car; P was injured when thief stole D’s car and ran over him; HELD, D was liable b/c his violation created a hazard that the statute was designed to prevent (harm resulting from unauthorized users, not the theft of the car itself). Black Letter Law Today: there’s been a sharp split on ignition key statutes – some courts find the main intent of the statute is to prevent theft, not protect safety – thus violation is not Neg per se.

Dramshop RuleHolds businesses liable for serving alcohol to the level that the bartender is judged by what a reasonable person should have known in the situation (did the person come to the bar all the time to drink, did he have keys in his hand, etc)

Office parties – some cases liability extends here – can be overcome with cash bars and available DDs

Residential Parties – only if obvious assistance to cause the harm (i.e. helping an obviously drunk person to their car)

3. Causation must still be shown – even if D violates statute, P must still prove causation. Violation is evidence of negligence ONLY where there’s a logical connection between the proven violation and the alleged negligence

NOTE – No private action for damages against D who violated a FEDERAL CRIMINAL STATUTE

Custom and NegligenceCustom can be used to show presence or absence of reasonable care.

GENERALLY NOT CONCLUSIVE EVIDENCE1. Evidence by D – Thus where D shows that everyone else in the industry does

things the way D did them, the jury is still free to conclude that the industry custom is unreasonably dangerous and thus negligent

The TJ HooperFacts: P (owner of cargo) sued D (owner of tug) when tug was lost during a gale and would have been saved if tugs had working radios to receive weather reports. There was no statute requiring tugs to have radios, but some tugs in the region DID use them and an expert testified that they were necessary.Held: (trial and appellate – L. Hand) – There was not really a custom; some tugs used radios, some did not. Reasonable prudence is not always common prudence

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Mayhew v. Sullivan Mining CoFacts: D was a mining company; on a platform in mine, D cut a hole to allow for ladder; P was independent contractor in mine who fell through hole and was injured.Held, trial court correctly refused to permit questions by D that sought to establish that it was the custom in mines NOT to put railings around ladder-holes. Establishing that a practice is customary or common does not mean that it is consistent with ordinary average care, prudence or regard for safety of visitors to the mine. (Custom is NOT enough)

2. Evidence by P – conversely, proof offered by P that others in D’s industry followed a certain precaution that D did not, will be suggestive but not conclusive evidence that D was negligent

BLACK LETTER LAW TODAY: Courts and commentators overwhelmingly adhere to the Hand Formula – standard of care determined by a cost-benefit analysis, and secondly by custom

Cantebury v. SpenceFacts: D (doctor) operated on P; after surgery and post-surgery accident, P was left partly paralyzed. D never told P of 1% risk of paralysis from surgery; D said it was remote risk and disclosure may cause P to avoid surgery. Trial Ct granted SJ for D; Appls Ct ordered new trial for P.Holding: some JDs use a rule of custom (compliance with custom voids liability). This Ct rejects that: it may appear that the custom is deliberately to avoid disclosure where in fact it’s just carelessness or negligence to fail to disclose risks. So the rule is the standard measuring performance of the doctor’s duty to disclose is conduct that is reasonable under the circumstances. The scope of the disclosure must meet the patient’s need for information that is material to the decision (material = “all risks potentially affecting the decision”). Causal connection must still be shown: Failure to disclose does not alone make doctor liable – P must still show causation. Patient has no suit if he would have chosen the surgery even once he was told of risk. And the test is NOT whether P later (or at trial) decided he would not have chosen surgery – test is whether prudent person in patient’s position would have decided if suitably informed of all perils bearing significance.

Calculation of RiskP must show that D’s conduct imposed an unreasonable risk of harm on P (or on a class of persons of whom P is a member)

BalancingMust balance interests to determine if the risks taken by D are justified by the ends sought. “Where an act is one which a reasonable person would recognize as involving a risk of harm to another, the risk is unrecognizable and the act is negligent if the risk is of such magnitude as to outweigh what the law regards as the utility of the act.

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ConditionRisk must be calculated according to normal and usual conditions – NOT extremes

Blythe v. Birmingham Water Works D installed pipes in neighborhood; installation was professional and worked well for 25 years; on a night of one the coldest frosts on record, pipes burst and let water into P’s home. Held, D was not negligent. Standard is how a reasonable man would act w/reference to average circumstances of the temperature in ordinary years, not this very cold year. This was rather an accident.

THE LEARNED HAND FORUMULAIf B is < PL, Defendant is liable

B = burden of taking adequate precautions P = probability accident will happen L = gravity/seriousness of resulting injury If burden or cost of precautions is less than the probability of accident

times the seriousness of the injury, then the reasonable person would take the precaution.

Note: L is determinative of circumstance, is – if you fail to provide a one eyed man with safety goggles, injury to his eye will be much more serious (he only has one eye for christ’s sake!) Paris v. Stepney

U.S. v. Carroll Towing CoP (the US) lost one if its barges when D allowed it to break loose and sink b/c D did not have any employees on board at the time to mind it. The harbor was crowded, and it was foreseeable that work might not be done carefully.

Andrews v. United Airlines - Facts: P (passenger) sued D (airline) when suitcase fell on P’s head from overhead bin after plane landed. D had reports of such accidents in past. Dist Ct dismissed claim on SJ.- Held: D is a common carrier and therefore owes higher than normal standard of care to passengers: owes utmost care and the vigilance of a very cautious person; responsible for any, even the slightest, negligence; must do all that human care, vigilance, and foresight reasonably can do under all the circumstances; BUT – the care that it must exercise is only such as can reasonably be exercised consistent with the character and mode of conveyance adopted and the practical operation of its business. P argued D could have avoided by installing safety nets; D failed to show that would have been too costly or inconvenient to passengers. Thus reasonable jury could find that D had not done everything technology permits and prudence dictates to prevent the accident, and SJ was wrong. Remanded.

Grimshaw - The Ford Pinto : Economist calculated at the time that it would be more expensive to fix the problem than to let all the consumers die. Grimshaw sued Pinto when it exploded; won compensatory dmgs of $2 million, $125 million in punitive damages, which judge reduced to $3 million.

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Judge and JuryJudges control juries in order to prevent their bias/passion from taking over, and to ensure that established principles of justice prevail – i.e. similar cases get similar results, regardless of underlying substantive principles used. Two ways that judges control juries:

1. Jury instructions – must accurately reflect correct substantive law.2. Keeping certain questions of fact from the jury – judge says what MAY be inferred from the facts, while jury says what facts SHOULD be inferred.

PROOF OF NEGLIGENCE

RES IPSA LOQUITOR “The thing speaks for itself” – allows P to point to the fact of the accident, and create an inference that, even without a precise showing of how D behaved, D was probably negligentBasic Rule:

1. There is a paucity of evidence2. The event must be of a kind that doesn’t ordinarily occur in absence of

somebody’s negligence3. Event must be caused by an agency or instrumentality with the exclusive control

of the defendant4. Event must not have been due to any voluntary action or contribution on part of

the plaintiffEvent must have been caused by instrumentality/agency in EXCLUSIVE CONTROL of D.

Rarely means actual exclusive control – can mean legal control/ultimate responsibility. – e.g. grenade.

Colemenares v. VivasP injured while riding escalator when handrail stopped; Held; D could not avoid liability by saying it had contracted out its maintenance duties; b/c D was a public entity (airport) and even if it contracted out, it could not as a matter of LAW delegate its duty to maintain.

Ybarra v. Spangard P had pain after operation; remembered painful handling just before going under. Could not prove exclusive control of any SINGLE because he was unconscion, so court let him hold all Ds liable in order to ferret out the rat.

“Common Knowledge” Rule – in most JDs, Cts say that P may go to jury even w/o benefit of expert testimony to back her up – it’s enough that she can say that “common knowledge” says that D was Neg – e.g. cases where a water bottle during operation was too hot and burned P. But if it takes expert knowledge, then you can’t necessarily take your case to the jury.

Byrne v. BoadleFacts: P was walking near D’s shop; flour barrel fell from 2nd story onto D; P sued for negligence. D argued that P could not offer affirmative evidence to say exactly what the negligent action was and why barrel fell, or who caused it to.

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Held: res ipsa loquitor –fact of the barrel falling establishes Neg – barrel couldn’t have fallen without Neg

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Actual and Proximate Cause

Causation in FactGenerally: P must show that D’s conduct was the “cause in fact” of P’s injury. “But For” Test: Cause in fact can be shown when D’s conduct was a “but for” cause of P’s injuries ie Had D not acted negligently, P’s injury would not have resulted. Res Ipsa is NOT cause in fact!

1. P must show that the event was the BUT FOR cause

NY Central RR v. Grinstad P’s husband fell overboard; P sued D for failure to have life preservers on board. Held, plaintiff loses b/c the proximate cause of death was man’s falling over. Even if ship had life preservers, they may not have helped him (b/c they’re to be used beforehand); also, wife may not have reached it in time.

2. Concurrent Causes – Sometimes’ D’s conduct meets the cause in fact requirement even though it is NOT a but for cause because there is another event that could cause the harm as well

Kingston v. Chicago & N.W. Ry.D’s fire and unknown fire united to destroy P’s property. Other fire probably started by a human – either alone would have done this damage. A plaintiff does not have burden of discovering the origin of both fires in order to recover for damages if the origin of one fire is found. D is liable. If there’s more than one wrongdoer whose act of negligence combines with another to result in injury, each is individually responsible for the damage as a whole. Both are culpable and individual damages can’t be proven.

3. Multiple Fault – if P can show that each of two or more defendants was at fault, but only one could have caused the injury, the burden shifts to each defendant to show that the other caused the harm

a. Joint and Several Liability – Multiple actors can each be held liable for full amount in the absence of others (see section on multiple defendants)

Summers v. TiceP and D were hunting. Ds shot at quail and one of them shot P in the eye. Insufficient evidence to determine which D was guilty of the negligence causing injury. They are jointly liable. Policy and justice demand that the burden shift to the Ds to absolve themselves. Ds under these circumstances are in a far better position to offer evidence to determine which one caused the injury. Alternative causation test shifts the burden of proof to Ds. This case produced the same result as re ipsa loquitor does.

4. Market share liability – mostly in products liability cases – If P cannot prove which of three or more persons caused his injury, but can show that all produced a defective product, the court will require each of the Ds to pay that percentage of P’s product at the time of the injury. No joint and several liability.

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5. Lost Chance Doctrine – P can establish cause in fact even if it’s only an increased chance of injury, not the actual injury itself

Herskovits v. Group Health Coop.D’s late diagnosis lowered P’s chance of survival from 39% to 25%. Court believes that reduction in chance for survival is sufficient evidence of causation for jury to consider possibility that D’s failure was proximate cause of death. Considers P’s argument that to decide otherwise would release doctors from liability for Drs. when P has less than 50% chance of survival.

6. Increased risk not yet followed by actual damage – Where D’s conduct has increased the risk that P will suffer some later damage, but the damage has not yet occurred, most courts deny P recovery for that later damage unless he can show that it is more likely than not to occur eventually. But some courts now allow recovery for such damage, discounted by the likelihood that the damage will occur.

7. FERES DOCTRINE – Military cannot be sued by servicemen and families for any act caused by another serviceman (including malpractice, accident, etc) Designed by the Supreme Court. However, non-military personnel can sue for injuries caused by military personnel (ie if you’re out on a date with an army man and hit by a military vehicle – you can sue but your date cannot).

Proximate CauseGenerally: Even after P has shown that D was the “cause in fact” of P’s injuries, P must still show that D was the “proximate cause” of those injuries. Is ultimately a question of foreseeability – How far removed from an event can a person be held liable?Why? A defendant should not automatically be liable for ALL of the consequences, no matter how improbable or far-reaching, of his act. Generally, D will not be liable for unforeseeable consequencesCARDOZO – was P in zone of injury? (conservative and limiting the role of the jury)ANDREWS – (more broad) was accident direct cause of P’s injury? (judge has less ability to exclude cases from going to the jury) See More Below: Wagon Mound

Proximate cause and Physical Injury1. If P’s injury is truly beyond the type of harm that D could expect from his conduct, P is usually unable to recover. (but in most tort cases it’s usually foreseeable).2. where a certain type of injury to P is foreseeable, D is liable for the injury sustained even if it is more serious than D could have anticipated. “Thin skull rule” – “take P as you find him” – if you negligently kick me and break my leg b/c I’m brittle, you’re liable for all damages.3. D may not be liable for foreseeable damages resulting from his Neg, if the injury happens in an unusual manner. United Novelty v. Daniels (Mass. 1949) Employee was cleaning D’s machines with gasoline; rat soaked in the gasoline caught fire from an open-flame heater and ran toward employee, causing explosion that killed him. Held: D NOT liable b/c explosion was foreseeable but occurred in a bizarre way.

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4. D may be liable even if injury is not very likely or probable. If I shoot gun in the air, I’m liable for the person it hits even if it’s unlikely that it would hit anybody b/c streets are almost deserted.

Damage must be ordinary and natural result of D’s acts.

Ryan v. New York Central RR (NY 1866)Facts: D through Neg let its fire engine set fire to its woodshed and wood inside; fire spread to house of P. Trial Ct dismissed P’s suit; P appeals. Held: No liability – too remote. D is only liable for damage that is the “ordinary and natural” result of his acts - foreseeable damage – damage to ONE HOUSE was foreseeable, but damage to others required add’l elements of wind, heat, conditions of houses, etc. P was “second house” so no recovery.

Plaintiff’s Violation of Statute only matters if it increases his chance of injury

Berry v. Sugar Notch Borough (PA 1899) P motorman sued D city when tree fell on his trolley as he drove along track. D argued that his own violation of speed limit was prox cause b/c right place right time; Ct rejected – said tree is prox. cause; city liable for not trimming it.

Tortious Acts by Third Parties RULE: D is liable to P if D:

- negligently puts P in a situation where crime/tort can be causes by third person

- such crime/tort did happen;- D at the time knew/should have known the likelihood that

third person would commit the tort/crime.Brower v. NY Central & HRR - P owned horse and cart that was struck by negligent train; driver was stunned and couldn’t prevent theft of kegs and barrels. D’s detectives on the train did not stop theft. Here D is liable because natural and probable result is THEFT. It’s a dangerous world. It’s a joint tort, NOT an intervening cause. D foresaw risk of theft in this world b/c RR itself had detectives.

Proximate Cause – Forseeable HarmGenerally: - D is liable for direct consequences of his act, foreseeable or not, if there are no other intervening causes.

Polemis & Fumessv. Withy & CoFacts: P (owner of ship) sued D (charterer) for value of their ship; D’s servants negligently let a plank drop into the hold, causing spark, which ignited petrol and burned

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entire ship. D could NOT have reasonably anticipated that the falling plank would cause a spark, but they could have foreseen that it would cause damage to the ship or crew.Held: once Neg is shown, liability follows. It doesn’t matter whether D could have anticipated the type or extent of damage resulting from his Neg; if he has acted Negligently, he’s liable for all “direct consequences of the act.” (And here, the Arbitrator found that the spark and fire were direct consequences of the Neg dropping). It is no defense to say that the damage was not the “natural and probable” result.

- Most American JDs have adopted the Polemis rule.

Wagon MoundD carelessly discharged oil into the harbor. Worker dropped molten metal from the wharf into the water, igniting the fire, and ruining Ps dock. This limits Polemis. A man must be considered responsible for probable consequences of his acts that a reasonable man would foresee. The test for forseeability for fire is forseeability of injury by fire. Injury by water igniting is not foreseeable. Dismissed.

D is liable for damage that occurs in zone of the accident that he created.

Summary ChartUnforseen Harm Unforseen PlaintiffPolemis – any direct result of the negligence (regardless of foreseeability) satisfies proximate cause

Andrews – if the plaintiff was injured as a direct result of the negligence, the question of causation should go to the jury

Wagon Mound – if the change in harm during the chain of causation is unforeseeable, causation is limited as the chain of causation is cut off

Cordozo – only those plaintiffs within the zone of danger (snapshot before event) fall within proximate cause; jury determines the zone as a matter of fact (not law)

Marshall v. Nugent Facts: P was injured by a third party driver who swerved to avoid accident caused by a truck driven by D’s agent, which had collided with P’s car when driving negligently.Held: the question of proximate cause should be put to the jury. Although the particular act of Neg here (Negt driving of truck) was over and done with, the traffic mix-up caused by that Neg was still occurring and P’s injury was result of “extra risks” caused by D’s Neg.

Proximate Cause – Foreseeable Plaintiffs

Palsgraf v. LIRRD shoved X, who dropped fireworks that exploded, causing scales to fall on P, standing a bit away.Holding: A duty that is owed must be determined from the risk that can reasonably be foreseen under circumstances. If no hazard is apparent to an eye of ordinary vigilance, an act doesn’t become a tort because it was wrong with reference to someone

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else. Dissent says everyone owes the world at large the duty of refraining from acts that may unreasonably threaten the safety of others. In determining proximate cause the court must ask whether there was a natural and continuous sequence between cause and effect. Here there was no remoteness in time and little in space and injury in some form was probable. Not addressed – carrier higher standard of care argument. Cardozo v. Andrews (majority and minority, respectively)

Proximate Cause – Intervening CausesMost proximate cause issues arise where P’s injury is precipitated by an intervening cause. An intervening cause is a force which takes effect AFTER D’s negligence, and which contributes to the negligence in producing P’s injury

Superseding Cause – some IC’s are sufficient to prevent D’s negligence from being held to be the proximate cause of the injury.

i. Unforeseeable intervention, foreseeable result – NOT superseding

ii. Unforeseeable intervention, unforeseeable result – YES superseding

iii. Act of God – natural acts that are not foreseeable (i.e. snow in Miami the winter, Mo showers more than once a week, etc) are sufficient to be superseding

Foreseeable intervening cause – often the foreseeable intervening act is the very risk which made D’s conduct negligent in the first place.

i. Foreseeable negligence – 3rd party negligence that is foreseeable will not relieve D of liability

ii. Foreseeable Criminal Conduct – 3rd person’s criminal act may be so foreseeable that they will not be superseding.

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Multiple Defendants: Joint and Several Liability

Joint and Several LiabilityIf more than one person is a proximate cause of P’s harm, and the harm is indivisible, each defendant is liable for the entire harm. The liability is said to be joint and several. Ex. D1 and d2 are liable for injury. Plaintiff can collect fully from either, though she cannot collect twice.

Can hold one responsible for the actions of many when groups are engaged in behavior for a common purpose – ie you can be held liable for the actions of your co-conspirators. Each defendant, including the marginally negligent one, will be responsible for the loss attributable to his codefendant’s negligence. APPLICABLE WHEN ALL DEFENDANTS ARE ACTING IN CONCERT FOR A COMMON PURPOSE IN A COMMON WAY.

If only one defendant can be found, hold him and have him file claims against the others. Also, if you find all D’s but only one has money, he can pay for entire damage.

Progression – Modern trends against Pure J&S LiabilityAs of 2000, only fifteen jurisdictions maintain pure joint and several liability. Instead, jurisdictions have adopted one of the following hybrids:

Joint and Several Liability with ReallocationAll defendants are jointly and severally liable. If one D turns out to be judgment proof, his damages are reallocated to be covered by other Ds

Joint and Several Liability with Threshold PercentageA tortfeasor who bears more than a certain threshold percentage of the total responsibility (ie 50%) remains jointly and severally liable, but tortfeasors whose responsibility is less than that are merely severally liable

Joint and Several Liability – Based on Damage TypeLiability remains joint and several for economic damages but is purely several for non-economic damages

Pure Several LiabilityIn some states, a defendant, regardless of the nature of the case, is liable only for her share of the total responsibility

Indivisible v. Divisible HarmsEven where the traditional rule of joint and several liability is in force, it applies only where P’s harm is indivisible (meaning it cannot be apportioned between the

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defendants). If there is a rational basis for apportionment – that is, that some of the harm is result of D1’s act and the remainder is the result of D2’s then each will be responsible only for that directly-attributable harm

Action in ConcertIf 2 defendants can be said to have acted in concert, each will be liable for injuries directly caused by the other. NO APPORTIONMENTEx. D1 and D2 drag race. D1 swerves and hits P. D2 could be held entirely liable for D1/s collision, because D1 and D2 acted in concert

Successive InjuriesCourts can often apportion harm if the harms occurred in successive incidents, separated by substantial periods of time.Ex. D1 pollutes P’s property from 1970-1990. D1 sells to D2, who pollutes from 1990-1991. The court will apportion damage – neither will have to pay for the damage done by the other.

Overlap – it may be the case that D1 is jointly and severally liable, but that D2 is only severally liable. This is likely when D2’s negligence is in response to D1’s.

Ex. D1 negligently breaks Ps arm. D2 negligently sets the arm leading to gangrene. D1 is liable for all harm, including gangrene and amputation. D2 is only liable for the amount by which his negligence worsened the condition (i.e. liable for the difference between a broken arm and an amputated one.

Indivisible HarmsIf harm is indivisible, each co-defendant is jointly and severally liable for the entire harm

Death or single injury: The plaintiff’s death or any single injury (i.e. a broken arm) is not divisible

Fires – if P’s property is burned or otherwise destroyed, the damages is indivisible

OVERALL NOTE ON JOINT AND SEVERAL LIABILITY:Even if D1 and D2 are jointly and severally liable, P is only entitled to one single satisfaction of her claim . Ex. D1 and D2 are J&S liable for 1 million in damages to P. If P collects 1 million from D1, she cannot collect from D2

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Affirmative Duties

Duty to RescueNo duty to rescue in common law

D has no duty to take affirmative action to help P D generally has no duty to avoid causing unintended mental suffering to P D has no duty to avoid causing pure economic loss to P in the absence of

more tangible types of harm such as physical injury

ExceptionsD must rescue if he puts P in the dangerous position- D must rescue if, through negligently or innocently, he puts P in the dangerous position.- Yania – D urged decedent, a mentally fit adult, to jump into strip-mine pool; he jumped in and drowned when he was unable to climb out the sheer walls; P argued that D put him in that position and then didn’t help him; Held, it was the dead guy’s own damn fault.Once D begins to aid somebody, he must act as a reasonable adult would- e.g. when state undertakes to aid an abused child by putting him in foster homes, state is liable for more harm that occurs to child in those homes.

Special RelationshipsDuty to give assistance may arise out of special relationship

Employer/Employee – employer has duty to prevent harm to society by employees, except in cases of "frolic and detour" by employee which are outside the scope of employment (Teen Angel)

Landlord Tenant – landlord has basic duty to protect tenants from criminal acts of others

Kline v. 1500 Mass. Ave. Apt. Corp.Facts: D landlord failed to improve security in apt building, even after he knew of recent assaults there, he knew the neighborhood was getting more dangerous, and he knew that existing security conditions had let criminals enter property before. P was attacked in hall where attack had occurred recently.Held:

1. Since landlord is only one who can completely prevent harm (tenant can only take some preventative acts), and since the violent act was foreseeable (not just possible, but really foreseeable that there was a good chance of violence), he is liable for failure to protect.2. Landlord should have employed same degree of protection (even if not same type of protection) as he did when P first moved in – court claims that P was led to expect that protection.

- Previous rule was that landlord could not be liable if he did not co-conspire in the tortious act; criminal act of third party exonerated him. Kline is

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revolutionary b/c court is acting as a supervisor, even where the landlord did what the Municipal Code required of him; court said that’s not enough. Doctor/Patient

Tarasoff v. Regents of University of California Facts: Patient at D’s psychiatric hospital told D Doctor that he would kill Tatiana (daughter of Ps); doctor ordered his detention but police released him when he seemed rational; doctor’s boss said not to detain him further; he then did indeed kill Tatiana.Held:

1. General rule = 3rd party is not liable for actions of tortfeasor, unless 3rd party has special relationship with tortfeasor – and that’s the case here.2. Psychotherapist’s judgment must conform to the degree of skill, care and knowledge that is ordinarily possesses by psychotherapists under similar circumstances. Within this, the doctor may use his judgment.

Innkeeper/Guests Business that holds doors open to the public Common carrier/Passengers School/Students

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Owners and Occupiers of Land

Outside the premisesSpecial rules lowering a landowner’s standard of care. However, these rules do not apply to conduct by the landowner that has effects outside the property. Therefore, the general reasonable care standard usually applies

Natural HazardsProperty owner generally has no duty to remove it. In urban settings, may be liable

Ex: O allows a tree to grow in such a way that it may hit a tall truck passing by. Traditionally, O is not liable to the driver of truck. But in an urban context, O might be liable

Artificial HazardsWhere the hazardous condition is artificially created, the owner has a general duty to prevent an unreasonable risk of harm to persons outside the premises.Therefore hard to prove attractive nuisance in an industrial context.

TrespassersLandowner has no duty to a trespasser to make her land safe, to warn of dangers on it, to avoid carrying on dangerous activities on it, or to protect the trespasser in any other way.

Exceptions Constant trespass on a limited area – if limited portion of land is

frequently used by various trespassers, reasonable care required to make land safe or at least warn of dangers

Discovered trespassers – Once the owner has knowledge that a particular person is trespassing, the owner is the under a duty to exercise reasonable care

Attractive NuisanceProperty owner owes no duty to trespasser, unless trespasser is a minor; then liability for artificial danger requires

- knowledge that kids are likely to trespass;- knowledge of an unreasonably dangerous condition;- kids b/c of their youth do not discover the danger- utility of the dangerous condition and burden of

eliminating it are slight compared to risk to kids- owner fails to exercise reasonable care to eliminate it or

otherwise protect kids.

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LicenseesA licensee is a person who has the owner’s consent to be on the property, but who does not have a business purpose for being there, or anything else entitling him to be on the land apart from the owner’s consent. Licensee is usually a “social guest”.

Duty to LicenseesThe owner does not owe a licensee any duty to inspect for unknown dangers. BUT if the owner KNOWS of a dangerous condition, she must warn the licensee of that danger

InviteesThe owner does owe an invitee a duty of reasonable inspection to find hidden dangers. Also, the owner must use reasonable care to take affirmative action to remedy a dangerous situation

Definition of InviteesPersons who are invited by O onto the land to conduct business with O, and those who are invited as members of the public for purposes for which the land is held open to the public

Open to the public = those who are on property for the purposes for which it is held open, even if peeps won’t confer economic benefit

Scope of invitation – If visitors uses of premises goes beyond the business purpose

i. EX: P goes into store to buy beer. O then allows P to use private bathroom in the back. P started out as an invitee, became a licensee when he went into private bathroom.

Duty of Due CareOwner owes invitee duty of reasonable care

Duty to inspect Duty to warn Duty to exercise control over third persons

Firefighters and other public safety personnel“Firefighters Rule” – Public safety officials who come onto private property in the performance of their duties are treated as mere licensees. I.e. – a firefighter injured while fighting a blaze cannot recover from the owner of the premises, even if the owner’s negligence caused that fire

Lessors and Lessees

LesseeA tenant is treated as if she is the owner – all rules of owner liability apply to her

LessorGenerally not liable once he transfers possession to lessee – few exceptions

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Known to lessor, unknown to lessee Open to public – if lessor believes lessee will hold premises open to

public, lessor has affirmative duty to inspect premises and repair damages Common areas – the lessor has a general duty to use reasonable care to

make common areas (e.g. the lobby or stairwells) safe Negligent Repairs – if repairs are begun and are either unreasonable or

incomplete, landlord may be liable General negligence standard – same as occupiers of land

VendorsGenerally a seller of land is released from tort liability once he has turned over the property with these exceptions:

Concealment – if vendor doesn’t disclose a known dangerous conditionBuilders – where vendor is the builder, some courts apply general negligence to the

vendor

SEE TORTS IN BRIEF FOR AN OVERALL SUMMARY OF DEFENSES IN NEGLIGENT ACTIONS (ADDRESSED

WITHIN EACH OF THE SUBSECTIONS ABOVE)

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Vicarious Liability

Vicarious LiabilityRespondeat Superior (Formally Master-Servant Law) – employer is liable for his employee when those actions fall within the scope of employment

Teen Angel Song – Left his set route so court found that it wasn’t respondeat superior but now a court likely would find respondeat superior because it was during hours of work, in the company van, etc.

McDonald’s Example: Security Guard is told that non-patrons cannot use the bathroom. A man sneaks in and the guard follows him and severely beats him with his club. Arguments:

Outside Scope: We never said hit; this was a criminal act and therefore superceding and intervening

Inside Scope: You gave him the club and he is security trained to use force when necessary

Negligence (Not under Respondeat): Negligence in hiring, training, and supervising

Vicarious Liability relating to officers/gov’t agents-There is no liability for the discretionary acts of the agents (immunity) only for acts falling outside of this realm

Independent Contractor Doctrine: An employer is not liable for the actions of an independent contractor hired to be on their premises the employer with whom they were contracted out by is liable (can be overcome if person is obviously under the supervision of the contractor or was instructed by them to do the specific task that caused injury, etc)

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Strict LiabilityStrict liability holds D prima facie liable for any harm he causes to P or P’s property, regardless of negligence. Makes D bear P’s loss, while negligence imposes liability only when need to alter D’s basic behavior. Not premised on “fault,” but is a policy choice to place accident losses from the activity on the actor rather than on its victims. SL forces internalization of costs of all injuries occurring from activity. Ultimately will squeeze out all activities whose societal costs outweigh social benefits

Animals Trespass - Owner liable for damages caused by a trespassing animal Non-trespass liability – A person is strictly liable for damage done by any

“dangerous animal” he keeps. Animal is dangerous if he does not have “animus revertendi” (intent to return)

i. Wild animals – liable if damage done is from a dangerous propensity that is typical of the species in question

ii. Domestic animals – injuries caused by a domestic animal do not give rise to strict liability unless the owner knows or has reason to know of the animal’s dangerous characteristics

Abnormally Dangerous ActivitiesA person is strictly liable for any damage which occurs while he is conducting an “abnormally dangerous” activity.6 factors: of abnormally dangerous activity

high degree of risk of some harm to others resulting harm is likely to be serious risk cannot be eliminated by the exercise of reasonable care activity is not common activity is not appropriate for the place in which it is carried out danger outweighs the activity’s value to the community ex: Nuclear reactors, explosives, crop dusting, airplane accidents

Limitations on Strict Liability

Scope of Risk There is strict liability only for damage which results from the kind of risk that made the activity abnormally dangerous.

ex. D operates a truck carrying dynamite, and truck strikes and kills P. P must show negligence. Transporting dynamite may be ultra-hazardous, but Ps death has not resulted from the kind of risk that made this activity abnormally dangerous.

Contributory negligence is no defense However, Assumption of Risk is a defense – if P knowingly and

voluntarily subjected herself to danger

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Products LiabilityProducts liability refers to the liability of a seller of a tangible item which, because of defect, causes injury to its purchaser, user, or sometimes bystanders. Based upon three theories :

Negligence Warranty Strict Liability

Products Liability and Negligence

Old Rule – Privity: Cts allowed recovery only by Ps who had privity with D via a contractual arrangement – Ie. Winterbottom:

Winterbottom v. Wright (Ex. 1842)Facts: D contracted with Postmaster-General to supply coaches for carrying mail, and keep them in good safe shape. P was a driver who was hired by another party to drive the mail coach; he was injured when a latent defect in the coach made it crash. Held: D cannot be liable for injury to P because D had no contractual duty to P to protect him. The operation of the contract must be limited to those who made the contract, and P was not a party. This is not a case where D is liable to the public b/c he had a duty to the public; here his duty was only to Postmaster-General. That may leave P without a remedy, but it’s better than holding D liable here. Fears slippery slope.

Courts adopt Winterbottom standard at first, but then carve out exceptionsMacPherson broadens the scope of strict liability – GETS RID OF PRIVITY REQUIREMENT

MacPhersonFacts: D is manufacturer of Buicks; it bought a defective wooden wheel from a subcontractor and did not inspect the wheel before installing on car; sold a car to a retail dealer, who sold it to P. P was injured when wheel collapsed while he was driving. D claims that it owed duty of care, and thus was liable only for damages to retailer (under Winterbottom reasoning).Held (CARDOZO):Everyday items are foreseeably dangerous if improperly constructed.2. Therefore the rule of precedent cases is not overturned – merely interpreted more broadly than a simple close reading would suggest.3. Liability follows where:

a. product’s nature gives warning of the consequence to be expected;b. manufacturer knows that in usual course of events it will be used by persons

other than the purchaser;c. manufacturer knows that its users will not perform their own safety tests;d. manufacturer knows that danger is not merely possible but probable (imminent

danger);ALSO,

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e. proximity or remoteness of the relation is a factor to be considered but not dispositive.4. Here, car manufacturer passes all the tests and is thus liable.5. Fact that Buick did not make the wheel is irrelevant; it was responsible (and liable) for the finished product.

EVERY jurisdiction in America now uses the Macpherson rule.

Typical Negligence Defendants Manufacturers

o Careless design of producto Careless manufacture of producto Careless inspection and tests of finished producto Failed to package and ship product in reasonably safe wayo Did not take reasonable care to obtain quality components from a

reasonable source Retailers

o Maybe, but not usually negligento Retailer usually has no duty to inspect goods – usually a strict liability or

warranty theory defendant Other suppliers

o Bailors of tangible property (e.g. rental car companies), sellers and lessors of real estate, and suppliers or product related services (I.e. hospitals performing blood transfusions) can all be sued on negligence

Products Liability and WarrantyA buyer of goods which are not as they contracted them to be may bring an action for “breach of warranty”. 2 types or warranty – express and implied

Express WarrantiesA seller may expressly represent that her goods have certain qualities. If the goods turn out not to have these qualities, the purchaser may sue for this breach of warrantyKIND OF strict liability - as long as P can show that the representation was not in fact true, it does not matter that D reasonably believed it to be true, or even that D could not possibly have known that it was untrue

Implied WarrantiesImplied from the fact that the seller has offered the goods for sale

Warranty of merchantability – goods must be “fit for the ordinary purposes for which such goods are used “

Warranty of merchant – seller must be a merchant of the goods in questionNOTE: A manufacturer’s warranty extends to remote purchasers further down the line.NOTE: In most states, any user of the defective product – not just the purchaser – can recover

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Products Liability and Strict Liability

GenerallyA seller of a product is liable without fault for personal injuries (or other physical harm) caused by the product if the product is sold in a defective condition. Once default is shown, seller is liable even though he used all possible care, and even though the plaintiff did not buy the product from or have any contractual relationship with the sellerEx: Manufacturer makes car with defective brakes. Manufacturer sells to dealer, who resells to owner, who resells to consumer. Consumer is injured in a crash resulting from defective brakes. Consumer can recover from Manufacturer, even though he used all possible care and they never specifically contracted with each other.

Non-manufacturer SPL applies to retailer as well, and any other person in the distribution chainEx: In above example, consumer could recover against dealer

Manufacturing, Design and Failure to Warn DefectsDifferent rules restrict each of the defects above

Manufacturing DefectA particular instance of the product is different from, and more dangerous than, the others, because the product deviated from the original designRes Ipsa Loquitor – DIFFERENT than in negligence case! NOT conclusive – if P proves that product has not performed as intended AND excluded all causes of accident not attributable to D, fact finder MAY infer D’s liability even if the fact has not yet been proven

Puncey v. Ford Motor CoP was running his car with hood open while adding antifreeze; metal blade broke off fan and sliced his face. P claimed Negt manufacturer b/c blades came off assembly line containing too many “inclusions” that weakened it. Negt manufacture, not Negt design. Battle of experts; jury found for P; 5th Circuit upheld. Held: Evidence of defect in manufacture suffices to hold D strictly liable.

Design DefectAll products are the same, and bear a feature whose design is in itself defective and unreasonably dangerousD has a duty to use reasonable care in design of its product to avoid subjecting user to an unreasonable risk of injury. NOTE: Compliance with industry standard of design does not necessarily protect from liability!

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Volkswagen of America, Inc. v. YoungFacts: Decedent was stopped at red light; rear-ended by other car whose driver was driven negligently; first collision did not hurt him but made his entire seat detach from floor of car; when he was thrown into back seat, he was killed by “second collision” (with the interior of his car). Issue: does D car maker have duty to protect Ps from “second collisions” – cases where cause of injury is not the D’s product itself but the second collision caused by a third party’s Neg. Held: YES. D is liable b/c it must guarantee safety for all “intended use” of its product, and intended use includes both proper use and the fact that there’s a chance the driver may be in an accident. “Second collision” cases differ from other product liability cases in two ways:1. the defect is design, not construction of the product.2. the defect is not the cause of the initial impact. Reasoning: fact that the defect did not cause the first collision does not matter if defect was the cause of the ultimate injury.

Failure to Warn DefectIn a failure to warn defect, maker has neglected to give a warning of danger in the productI.e. a prescription drug maker dails to warn users that the drug can cause a serious allergic reaction in 2%Warning must usually be given directly to the consumer, but in some cases warning may be given to a “learned intermediary” who is presumed to care for the consumerUltra-sensitive consumers – D does not have any extra duty to warn them if less than 1% of the people are ultra-sensitive

MacDonald v. Ortho PharmacueticalFacts: P took birth control pills made by D, and developed brain damage after stroke caused by product. D warned of blood clots and risk of death and injury, but never used word “stroke.”Held: Reinstated jury verdict for P. Jury was reasonable in finding that warning was not adequate. D has duty to warn users of birth control pills, not just intermediary pharmacist/doctor, because of unique nature of birth control pills (user rarely has opportunity to ask questions of her doctor about them; patients are more involved with pills than with other drugs; substantial risk of product use; possibility that oral communications between doctor and patient may be inadequate). The fact that product complied with FDA regulations is no defense. What kind of warning? Jury must judge; it must be:

a. comprehensible to the average userb. convey fair indication of nature and extent of danger to the mind of a

reasonably prudent person.This should take into account the content and manner of the warning.

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Comment K JurisdictionsDeals with pharmaceuticals – serves to protect drugs that have a truly high public benefit. Many times, a comment K (Ss 402A) product will only become unsafe if it is used by someone other than the intended user (i.e. for whom it was prescribed)- Feldman Kearl – holds "mini-trial" to determine if comment k applies. If it does, moves on to

negligence issue; if not, strict liabilityo Benchmark is the polio drug vaccine (sets a very high benchmark)

- Brown – Treats ALL pharmaceuticals under comment k (imposes negligence standard)Use a Bifurcated Proceeding – start with a mini-trial to see if the product is unavoidably unsafe

Defenses Based on a Plaintiff’s ConductOnce you know D is a proximate cause of the accident, and also the factual cause, turn to the question of whether there is evidence of contributory/ comparative negligence on the part of the plaintiff. In a typical comparative negligence jurisdiction, P’s comparative negligence in using a defective product will reduce, but not eliminate, D’s liability in a strict product liability action

Types of Comparative Negligence Jurisdictions Pure Comparative Negligence Jurisdiction – Jury subtracts from award that

percentage of damage attributable to P.o If you’re 99% at fault, you only recover 1%

Partial/Modified Comparative Negligence Jurisdictions (most common)o Requires juries to decide simply whether the P was 50% or more at fault

Was plaintiff LESS at fault than D in the accident?- If Yes – Plaintiff cannot recover

o If P more than 50%, how at fault were they? Subtract amount P was at fault from the total

Contributory Negligence Jurisdiction – least commono If P is negligent (guilty), he recovers NOTHING. o Problems – most academics say it’s too harsh. Even if the D is the

cheapest cost avoider, he is excused from liability Exception – LAST CLEAR CHANCE DOCTRINE – when the D had the last

chance to avoid the injuryo Applies to all states using the contributory negligence theoryo Like Davis v. Mann – donkey was killed by negligent wagon driver when

negligent donkey owner let it wander into a public road Helpless Peril – I am passed out in the road and you hit me (I must

prove that you saw me face down, could have avoided me, and didn’t.)

Inattentive Peril – D had actual knowledge that P did not see the danger ; it is too easy to argue inattentiveness without actual knowledge element, the P must establish that the D knew P was inattentive – higher standard to prove

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Types of Comparative/Contributory negligence by Plaintiff Failure to discover the risk - If P’s only fault is failure to discover the defect,

this is probably NOT negligence Knowing assumption of risk – If P voluntarily assumes the risk of a known

defect, the modern standard treats this as a form of comparative negligence. To the extent that P’s decision to use the product in the face of the known risk was unreasonable, it will cause plaintiff’s recovery to be proportionally reduced but NOT absolutely bar recovery.

Ignoring Safety Precautions – if P consciously fails to use an available safety device

Use for unintended purpose – if P totally misuses the product, D will not be relieved from liability unless the misuse was so unforeseeable or unreasonable that either a) the misuses couldn’t reasonably be warned against or designed against, or b) the misuse is found to be superseding.

NuisanceType of Injury – not a type of tort, but a type of INJURY which P has sustained. In the case of “public nuisance” the injury is the loss of any right that P has by virtue of being a “member of the public.” In the case of “private nuisance”, P’s injury is interference with his use or enjoyment of his land.Three mental states – a suit for nuisance may be supported by any of the three defendant mental states

intentional interference with P’s rights negligence abnormally dangerous activity or other conduct giving rise to strict

liability

Public NuisanceCommon law rule: in general, nuisances to the public must be punished by a public representative – that is, the gov't (usually administrative regulations or criminal prosecutions). However, an individual P may sue in civil action if he suffers special, peculiar or disproportionate harm than the average member of the public. Why? Not so much justice as efficiency – all those actions are simply too hard to maintain.Examples of Public Nuisances that Give Rise to Private Actions:

1. Total loss of access to private land2. Personal injuries.

Harder Intermediate Cases- partial loss of access: usually uncompensable. E.g. Mass. Ct held that P could not recover when D City cut off his access to a closed street although he retained access to another street (707).-Union Oil Co. v. Oppen Facts: D drilled oil at sea in a Negligent manner that allowed oil to escape and pollute the bay; killed fish upon which P fishermen relied for livelihood. Ps could not sue in nuisance b/c the fish were not their property. Harm to Ps' future pecuniary interest was direct and foreseeable.

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Held: (under a Calabresi cheapest cost-avoider analysis): Ds are liable mainly b/c Ds are better able to “buy out” Ps in event of error in allocating costs and liability, than vice versa. Where D can foresee that its Neg will cause Ps direct loss of future pecuniary interest, AND where D is better able to “buy out” Ps if there is an error in allocation, D owes Ps duty to refrain from Negligent activity.Ps could not sue under private nuisance b/c fish were not their property; could not sue under public nuisance b/c they weren’t public officials; so they sued under Neg. Ct applies straight Calabresian cheapest cost-avoider analysis: if we don’t hold D liable, we won’t give him an incentive to fix his offensive behavior.

Comments: Epstein says Oppen can be read as an effort by court to prevent the destruction of the “common pool.” Resources not subject to private ownership will be consumed rapidly b/c all self-interested actors will not need to take into account the social losses that accrue from the damage done to the pool of fish through capture. Since Ps do not actually “own” the fish, court substitutes “ownership” by permitting Ps to recover on a nuisance claim.- But one difficulty with creating “private ownership of common resources” through permitting private actions is deciding who has standing – who is so far removed from damage that their suit should be denied.

Private NuisanceUnreasonable interference with P’s use and enjoyment of his landNature of Private Nuisance

1. Must have interest in land – P can sue based on a private nusance only if he has an interest in the land that has been affected

2. Elements – P must demonstrate two elements in order to recover a. His use and enjoyment of his land was interfered with in a substantial wayb. That D’s conduct was either negligent, abnormally dangerous, or

intentional

Fontainebleu Hotel v. Forty-Five TwentyFacts: D built 14-story addition to its hotel, which would have blocked view of P’s hotel and cast shadow over its sunbathing area. P seeks injunction based on malice and theory of easement of light and air. Trial Ct granted injunction based only on notion that nobody can use his property to the injury of another.Holding: Reversed injunction of trial court. D wins. A property owner cannot use his property in a way that interferes with the legal rights of another – but no American JD has held that P has a legal right to the free flow of light and air across neighboring property. So even if a structure is built partly out of spite, if it serves a useful purpose, P cannot sue.Majority rule: P has no legal right to air or light flowing across his neighbor’s property. Cts refuse to let property owners recover from others who build between you and the waterfront. Sorry, this is just the risk of buying near the waterfront; somebody else may put a hotel in front of you.

- “Aesthetic use” cases generally fail – but Cts DO permit zoning regulations for building HEIGHT.

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Extra-Sensive PlaintiffsNuisance is one area where “take victim as you find him” does NOT apply – judge him by objective standard.

Rogers v. Elliot Facts: P was ill and confined to bed near church where bell-man (D) rang bell loudly each day, causing P to have convulsions. P’s doctor asked D to stop; D said he has no love for P and would ring bell even if his own mother were sick; rang bell next day and P had convulsions. P sued for damages to his health.Held: An activity to be a nuisance must offend a reasonable person of ordinary sensitivities, not an abnormally sensitive plaintiff. Otherwise, factories would shut down every time a sick person passed by, etc. Industry could not prosper.

Coming to the Nuisance Majority rule: “coming to the nuisance” generally does not bar P’s claim; P may be able to recover anyway. Coming to nuisance is a factor to consider but not dispositive; jury may weigh it as they see fit.Minority rule: sometimes denies recovery for Ps who “come to the nuisance” by holding that those Ps have assumed the risk and therefore cannot hold D liable.Ensign v. Walls, (Mich. 1948)Facts: D operated a kennel/nursery for dogs; Ps were local residents and property owners who moved in AFTER D had founded her business (came to the nuisance); complained about smell, noise and attendant flies and rats and escaped dogs. D argued that Ps could not sue b/c they came to the nuisance.Held: Coming to the nuisance may be a factor in court’s judgment but is not dispositive. Trial judge has great discretion in what weight to give this fact. To allow the “coming to the nuisance” defense to bar all Ps' claims would effectively give D the right to construct a nuisance and thereby control the use to which neighboring lands are used – like “theft” of an interest in real property. Furthermore, the fact that towns generally expand and become more crowded means that harmful effects of D’s kennel will increase over time.

Permanent and Temporary Damages

Boomer v. Atlantic Cement Co., NY 1970Facts: D cement company released smoke, dirt and vibrations that damages property of Ps (neighbors). Ps seek injunction.Held: court should grant injunction unless D is willing to pay P permanent damages. Here an injunction would not give the normal incentive to correct behavior b/c D alone is unable to do the research and investment needed to solve the cement industry’s air pollution problems – this is a huge problem that public and industry together must fix, too big for any single company. Permanent damages are fair b/c they compensate P for his damage while also giving D incentive to fix problem. Rule: permanent damages may be awarded instead of injunction where the value of the activities in question is far greater than the relatively small damage they cause.

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Ct follows basic Coase analysis: factory v. homeowners (much like ranchers v. farmers). Here Ps would not prevail b/c the transactional costs (of organizing many Ps with small amounts of damages) would make litigation not worth their time.

Injunction versus DamagesCourts must often decide; there’s no hard and fast rule; what about economic devastation and job losses that would follow if Ps succeed in enjoining copper factory from operating; etc.Main lesson of Boomer : courts in nuisance cases can balance interests of all the parties and craft creative solutions. Remedy for nuisance at common law has always been fairly fluid; Cts have wide discretion in what types of damages to award. And sometimes Ct will find a nuisance, but then refuse to award damages for policy/economic reasons. This especially happens in cases where P’s claim is malicious – e.g. P doesn’t have to locate his house near a farm, but does so and then sues to enjoin its operation.When crafting a solution, a Ct in a nuisance case CANNOT award damages to Ps once and then bar future buyers of those homes from suing again. SCOTUS bars this as a Due Process issue.Malice in nuisance: In cases like bell-ringing case, malice (in the D) can be very important – here courts are likely to enjoin, when D is malicious.

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DEFAMATIONLibel and Slander. To establish a prima facie case for either libel or slander, P must prove:

Components of Defamation

1. Defamatory statement A false or defamatory statement that tends to so harm the reputation of another so as to lower him in the estimation of community or to deter third persons from associating or dealing with him

* Community – must be a substantial and respectable subgroup of the population that find the statement defamatory – does not count if it only offends some individuals with peculiar views* Group Defamation – hard to win – court says it’s unconstitutional for a huge group to recover i.e. a group of 600 million Muslims in class action against a derogatory film* Injurious falsehood – if you say something false that harms someone but does not defame (i.e. a competitor says other store is out of business when it’s not) you can be liable* Accidental Publication – no liability if thief steals and publishes a manuscript that says defamatory things in it from your desk. Must be at least negligent, if not intentional

NOTE: Innocent construction rule – if there is a way to interpret a statement as innocent – then interpret it that way! However, you must consider the statement in context giving the words and implications their natural and obvious meanings.

2. Publicationa COMMUNICATING of that statement to a person other than the plaintiff

Publication to agent of the defamer – communicating defamatory matter to an agent does not prevent it from being an actionable publication. However, if agent is considered a component part of one corporate function, there is NO publication (i.e. a lawyer dictating to his legal assistant)

Republisher – one who takes document and repeats it is just as liable as publisher – can be liable for not removing statement one knows is false

Dissemination: exposing material to a broader audience – taking chattel with a defamatory statement and selling it or making it public – liability depends on whether they had notice/reason to know it was defamatory.

3. Fault fault on the part of the D, amounting to at least negligence, and in some instances a greater degree of fault

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4. Special Harm either or a pecuniary nature, or the actionability of the statement despite the non-existence of such a specific harm*Must be able to reasonably identify P as the subject of statement

LibelConsists of a written or printed matter – more dangerous because it’s permanent

Generally actionable without proof of special damagesLibel per quod – when listener requires extrinsic facts to identify that personLibel per se – when D specifically names a person

SlanderMainly involves false spoken words – also gesturesGenerally actionable only upon proof of specific damages (b/c it’s harder to prove as it is not written)4 CATEGORIES CONSIDERED SLANDER PER SEHere P does not have to prove special damages, but may have to prove pecuniary loss. P still has to prove the injury, but can do it with witnesses that come from the community

1. Crime – statements attributing morally culpable criminal behavior to P2. Loathsome Diseases – statements alleging that P currently suffers from a

venereal or other loathsome and communicable disease, such as the clap. Do YOU have the clap? DO YOU?

3. Business, profession, trade or office – an allegation that adversely reflects on P’s fitness to conduct her business, trade, profession, or office

a. “P cheats his customers!”4. sexual misconduct – statement imputing serious sexual misconduct to P

IN ALL CASES – TRUTH IS A DEFENSEIe “Yer mom’s a whore!” is not slander if your mom, is in fact, a dirty dirty whore.

Privileged Classes: Public Officials and Public FiguresA public official cannot recover damages for defamatory falsehood relating to his official conduct unless he proves ACTUAL MALICE (that D knew it was false OR acted with reckless disregard of whether it was false or not)EXCEPTION – NEW YORK TIMES CASE

New York Times v. SullivanA group of private citizens ran an ad in the paper saying that some public officials were against civil rights. Court found that a public official can be defamed if it is with actual malice. The finding of malice is a hard standard to meet but it does happen. Dissent said that there should be no malice at all. It should be impossible to defame a public official.

Public officials cannot recover for falsehoods relating to their “official conduct” unless they can prove that the statements were made with actual malice. This makes sense because they also have additional protection in that they cannot defame someone as easily as a private citizen.

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Criminal conduct by public officials: is subject to the NY TIMES rule, even if the criminal conduct seems unrelated to the P’s official capacity – see Monitor Patriot v. Roy (SCOTUS 1971) – D newspaper called a political candidate a “former small time bootlegger” – NO DEFAMATION.

Private Parties

Gertz v. Robert Welch, Inc.States can set their own rules on liability for publisher/broadcaster of defamatory falsehood injurious to a private individual, but, at a minimum, states must require plaintiff to show actual malice (fault).

- States cannot permit P to recover presumed or punitive dmgs unless P shows malice, b/c these exceed the state’s interest in letting citizens recover for damage to their reputations – punitive dmgs are merely fines levied by juries on speech that they find reprehensible, which is unconstl.- Reasoning is largely premised on striking balance between competing interest of states (in allowing citizens to recover for damage to their reputations) and Constitutional right to free speech.

Privileges – Immunity from Libel and Slander Claims

Absolute Privilege Judicial Proceedings – judges, lawyers, parties and witnesses are all allowed

to say whatever the hell they want in judicial proceedings Legislative proceedings – legislators acting in furtherance of their legislative

functions are absolutely privileged Government officials – absolute immunity for statements issued in the course

of their jobs Husband and Wife – anything said between a husband and wife is absolutely

privileged Consent – any publication that occurs with the consent of the plaintiff is

absolutely privileged

Qualified Privilege Protection of publisher’s interest – i.e. if D thinks that P stole his property,

he can say as much to the police Interest of others – D can act for the protection of the recipients of his

statements – i.e. an ex-employer generally has the right to give information about his ex-employee to a new prospective employee when asked

Public Interest – ex: A private citizen’s reasonable but mistaken accusation made to the police that P committed a crime

Report of public proceedings – reporting on court cases, legislative proceedings, etc

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Neutral reportage – one who correctly and neutrally reports charges made by one person against another will be protected if the charges are a matter of public interest, even if the charges are false

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INVASION OF PRIVACY

Misappropriation of P’s name or pictureP can sue if her name or picture has been misappropriated by D for his own financial benefit

Intrusion on P’s SeclusionP may sue if his solitude is intruded upon, and this intrusion would be “highly offensive to a reasonable person”

Undue publicity to P’s private lifeP may recover if D has publicized the details of P’s private life. The effect must be highly offensive to a reasonable person

Placing P in a false lightP can sue if he is placed before the public eye in a false light, and this false light would be highly offensive to a reasonable person.

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