I. Dutya. General Duty of Reasonable Care: an actor owes a duty of reasonable care

under the circumstances to those persons who are foreseeably exposed to physical risks arising from the actor’s conduct (pg 242).

Cases: MacPherson v. Buick Motor Co. (pg. 242)Summary: Expands duty principle of Thomas v. Winchester from just poisons, explosives (inherently dangerous objects). If the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger. Its nature gives warning of the consequences to be expected. If to the element of danger there is added knowledge that the thing will be used by persons other than the purchaser, and used without new tests then, irrespective of contract, the manufacturer of this thing of danger is under a duty to make it carefully. There must be knowledge of a danger, not merely possible, but probable. Whether a given thing is dangerous maybe a question for the court or the jury. There must be knowledge that the danger will be shared by others than the buyer (pg 244). If danger was to be expected as reasonably certain, there was a duty of vigilance, and this whether you call the danger inherent or imminent. The obligation to inspect must vary with the nature of the thing to be inspected. The more probable the danger, the greater the need of caution (pg. 245-246).

b. Limited Duty: Duty to Act, Assist, or Rescue1. Misfeasance – risks of harm arise out of one’s conduct2. Nonfeasance – risks of harm did not (didn’t do anything,

someone was hurt).Summary: Courts have allowed claims based on misfeasance and disallowed claims premised on nonfeasance (pg. 255). Courts restrained from creating a duty in nonfeasance situations due to concerns with liberty and the imposition of freedom of action and free moral agency. Participation by the defendant in the creation of the risk, even if such participation is innocent, is thus the crucial factor in distinguishing misfeasance from nonfeasance. There are exceptions where a duty to act is imposed.

i. Exceptions Where Duty to Act is Imposed3. Special Relationships

a. parent/childb. teacher/studentc. sea captain/sailord. Coadventurers

4. contractual relationships where a party has agreed to provide aid (pg. 270).

5. situations where a party has voluntarily begun to assist.a. One view: no liability if volunteer quits, leaving the

other party no worse off then he was before.b. Volunteer is held to a standard of reasonable care

and may not quit if it is unreasonable to do so.

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6. where a statute imposes a duty to assist.7. Incident prior conduct creating the risk.

a. Where a party negligently injures another, there is a duty to assist the person in peril.

b. Also there is a duty when a person’s non-negligent conduct places a person in peril (pg 270).

8. Intentional Prevention of Aid by Others – must allow others to provide aid if imminent physical harm is involved (pg. 270).

c. Limited Duty: Owners and Occupiers of Land (Ruvalcaba Case pg. 276)i. Situation in which landowner is liable

1. defect on the premises2. arising from activity or instrumentality on the land

ii. To Whom Landowner owes Duty- Status Trichotomy1. Invitee – Has consent of landowner and presence was

mutual benefit to both parties. Potential pecuniary profit to landowner test or public invitation test (pg. 284). Duty: to use reasonable care to protect an invitee from conditions that create an unreasonable risk of harm of which the owner know or by the existence of reasonable care would discover.

2. Licensee – Has consent of landowner, a social guest. Benefit is to licensee. Duty: to not injure the licensee willfully and warn of or make safe known dangerous conditions.

3. Trespasser – Does not have consent to be on property. Duty: not to cause injury willfully, wantonly, or through gross negligence.

iii. Exceptions – Traps and Attractive Nuisances (pg. 286).iv. New Test – Rowland Jurisdictions (pg. 292).

1. Whether in the management of his property he has acted as a reasonable man in view of the probability of injury to others, and, although the plaintiff’s status as a trespasser, licensee, or invitee may in the light of the facts giving rise to such status have some bearing on the question of liability, the status is not determinative.

d. Major Tort Law Policy Considerations

1. Allocation of Loss (compensation) – ability to spread loss in an accident.

2. Fairness – should be fair, just, moral.

3. Deterrence – should reduce level of accidents

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4. Economic Considerations – should reduce costs of accidents and not be an economic burden on productive endeavors.

5. Administrative Concerns of Courts – Creation of a duty should allow the development of workable legal rules in analyzing the elements of the negligence claim.

6. Legislative Considerations

e. Limited Duty: Emotional Harm without Physical Injury (pg. 310)i. Impact Rule – Allow recovery in cases where there was physical

impact but no physical injury.ii. Zone of Danger I – Allow recovery for emotional distress in cases

where person is in the foreseeable zone of physical danger but escaped without physical injury.

iii. Zone of Danger II – Allow recovery for emotional distress in cases where person is in the foreseeable zone of physical danger, was not injured, but suffered serious emotional distress at seeing the serious injury to a close relative.

iv. Bystander Emotional Distress (pg 312).1. Plaintiff actually observes the injury2. Plaintiff closely related to victim3. The resulting emotional disress is severe4. Plaintiff suffer physical consequences from emotional

distress. (now many jurisdictions have abandoned this requirement).

Cases: Dillon – ruled that a defendant owes a duty to a plaintiff if risk is foreseeable. 3 factors to determine if emotional injury was reasonably foreseeable. 1) plaintiff located near scene of accident. 2) shock resulted from a direct emotional impact upon the plaintiff from sensory and contemporaneous observation. 3) Whether the plaintiff and victim were closely related.Thing – plaintiff may recover damages for emotional distress by observing the negligently inflicted injury of a this person if 1) closely related to victim 2) present at scene of accident at the time it occurs and is aware that it is causing injury to victim 3) as a result suffers serious emotional distress, beyond that of a disinterested witness and which is not abnormal response to the circumstances.Clohessy (pg. 318) – bystander emotional distress is reasonably foreseeable. Applies reasonable forseeability test. 1) bystander is closely related to victim (flexibility varies among states). 2) emotional distress caused by contemporaneous sensory perception of the event or conduct that causes the injury or viewing the victim immediately after the injury causing event

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if not material change has occurred with respect to the victim’s location and condition. 3) Injury to victim must be substantial, resulting in either death or serious physical injury. 4) plaintiff suffers serious emotional distress, beyond that of a disinterested witness and which is not abnormal response to the circumstances.

v. Emotional distress absent risk of physical harm (pg. 328).1. Can recover for negligent mishandling of decedent’s body.2. Can recover for erroneous notification of a loved one’s

death.

f. Limited Duty: Responsibility for Conduct of Others – Mental Health Professionals Duty to 3rd Parties (Tarasoff pg. 368).

i. The therapist owes a duty to warn a would-be victim. Victim is foreseeable and identifiable.

ii. Distinguished from Tindal where victim was not foreseeable and non-identifiable where the court held the a therapist owes no duty to warn a non-patient where the patient has not threatened to inflict harm on a particular individual.

g. Limited Duty: Duty to protect against criminal activity (Delta Tau Delta pg. 384.)

i. Common law imposes a duty on one party to take reasonable affirmative security measures to protect the other party from foreseeable criminal activity. These relationships include landlord/tenant, business owner/patron, property owner/invitee, hotel/guest, and employer/employee, and school/student.

ii. A landowner has a duty to take reasonable care to protect an invitee from foreseeable third party criminal acts. Forseeability is measured by different tests (pg. 386).

1. Specific Harm test: landowner owes no duty unless the owner knew or should have known that the specific harm was occurring or about to occur.

2. Prior similar incidents (PSI) test: a landowner may owe a duty of reasonable care if evidence of prior similar incidents of crime on or near the landowner’s property shows that the crime in questions was foreseeable.

3. Totality of circumstances test: court considers all circumstances surrounding an event including nature, condition, location, prior similar incidents, to determine whether criminal act was foreseeable.

4. Balancing test: court balances the degree of foreseeability of harm against the burden of the duty to be imposed. As the forseeability of and degree of potential harm increase, so too does the duty to prevent against it. Test still relies on

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PSI test to ensure that an undue burden is not placed on landowners.

h. Limited Duty: Economic Loss without physical injury (pg. 415).i. Generally, there is no duty to protect against negligent interference

with purely economic interests. ii. Exception: defendant owes a duty of care to take reasonable

measures to avoid the risk of causing economic damages to particular plaintiffs or plaintiffs comprising an identifiable class with respect to whom defendant knows or has reason to know are likely to suffer such damages from its conduct. Identifiable class is not simply foreseeable class. The identifiable class must be particularly foreseeable in terms of the type of persons comprising the class, the certainty of their presence, the approximate number of those in the class, and the type of economic expectations disrupted.

i. Notes on Dutyi. The existence of a duty is ordinarily a question of law. However,

there are factual circumstances which give rise to a duty. The existence of those facts must be determined by a jury (pg. 260).

II. Breach (pg. 93).a. Comprises of two components, foreseeable risks of harm and unreasonable

conduct. Breech determination is made through the lens of a reasonable person. Customary practices in a trade are a factor to determine whether the breech reasonable person standard has been met. Sometimes courts will substitute safety statues for the reasonable care standard.

b. Definition: The defendant’s conduct is measured against that of a reasonable prudent person acting under the same circumstances. This is a purely objective standard, the jury evaluates the defendant’s conduct not the defendant’s state of mind (Lussan case – wasp/car accident pg. 96). The juror should not self-identify.

c. Sudden emergency doctrine: Most jurisdictions provide a suggen emergency instruction upon the defendant’s requires in appropriate cases (pg 107).

d. Physically different characteristics: reasonable person is assumed to have the relevant physical disability. If a blind person is involved, the standard of care becomes that of a reasonably blind person under the same circumstances. Physically disabled does not escape liability, may even be held to a higher standard to exercise care.

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e. Mentally disabled: usually classed with infants and are held liable for their torts. No exception for sudden onset of mental illness unlike for sudden onset of physical illness(pg 110). Case: Bashi – car accident, woman went crazy.

f. Children: Defendant’s child conduct compared to what other children of like age, intelligence, experience, and maturity would have done under the circumstances. Exception: When child undertakes a dangerous activity or that of an adult, child should be held to an adult standard of care (pg. 115). Exception in Washington State (pg. 116). Common law = under 7, no negligence.

g. Balancing Risk vs. Untaken Precautions [B < P X L ] : Hand’s Risk calculation, a calculus of the risk. Calls for balancing the likelihood of the harm and potential seriousness of harm against the burden of taking adequate precautions to prevent the harm. (pg. 121).

h. Role of custom (pg. 139): relevant customary standards are generally allowed into evidence to guide juries in determining the reasonableness of a party’s conduct. Does not need to be universal, only well defined within the same business. Ciircumstances surrounding the usual practice need not be precisely the same, only substantially similar. Plaintiff must show purpose of the custom is to protect against the kind of harm suffered by plaintiff. Deviance from custom as evidence of unreasonable conduct or compliance of custom demonstrates reasonableness. Custom evidence has a 3-fold relevancy (pg 144 )Case: Trimarco Hooper (pg 147).

i. Alternatives to reasonable care standard. Violations of these = negligence per se (violation of a statute especially designed to protect).

1. Specific judicial standards (pg. 180) Supported by Holmes but not Cardozo.

2. Safety statutes and regulations: before jury instruction defining the violation as negligence per se, plaintiff must show that he is among the protected class and that the injury was caused by a harm against which the law was designed to protect (pg 162). Procedural effects of negligence per se on pg. 171.

3. Dog quarantine statute (pg. 166).4. Excuses (pg. 168).

i. Res Ipsa Loquitur – “The Thing Speaks for Itself” (pg. 183).i. A form of circumstantial evidence.

ii. Jury may draw reasonable inference of negligence from the circumstances surrounding certain accidents if certain conditions are met.

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1. accident produced a person’s injury was one which does not happen unless someone was negligent.

2. agent which caused the accident was under the exclusive control of the defendant,

3. circumstances indicated that the untoward event was not caused or contributed to by any act or neglect on the part of the injured person.

iii. Defeat Res Ipsa1. show one element cannot be established2. show that defendant used due care.

j. Standard of care in professional malpracticei. Custom sets the standard of care (pg 204).

ii. Expert testimony must show1. duty of care under circumstances2. identifies where dr. breached that duty.

iii. Informed consent (pg. 220)1. professional standard – dr would disclose those risks which

a reasonable medical practioner of like training would disclose under similar circumstances,

2. lay standard – disclosure duty is measured by patient’s need for information

3. patient need standard – dr must disclose those known risks which would be material to a prudent patient in determing whether or not to undergo suggested treatment.

4. CAUSATION (pg 221) a. subjective standard – plaintiff must prove that she

would not have consented to the proposed treatment if she has been fully informed.

b. objective standard (test used most)– whether or not a reasonably prudent patient fully advised of the material known risks would have consented to the suggested treatment.

5. List of items requiring disclosure (pg. 221).

k. Notes on Breech: Circumstantial Evidence – sufficient evidence to create a jury-submissable question on the issue. Inference must be rational. Is it more probable than not. Constructive knowledge: defendant should have known grape was there based on time it was on the ground??Good summary on pg. 234.

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III. Causationa. requires a connection between the defendant’s negligent conduct and the

plaintiff’s injuries.b. “But For” Test

i. But for the negligent actions of the defendant, the plaintiff would not have been injured.

ii. Criticism: can be under inclusive and sometimes over inclusive. Example: pg 441

c. “Substantial Factor” Testi. Asks whether the defendant’s negligent conduct was a substantial

factor in contributing to the plaintiff’s injuries.ii. factors other than the negligence of the defendant may have caused

the accident does not require a holding that plaintiff has failed to make out a prima facie case. It is enough that he shows facts from which the negligence of the defendant and the causation of the accident by that negligence may be reasonably inferred (pg. 449). Cases: Ingersoll

d. Untaken Precautions: Proving the Counterfactuali. Case: Saelzer (pg. 455).

1. The plaintiff must establish, by nonspeculative evidence, some actual causal link between the plaintiff’s injury and the defendant’s failure to provide adequate security measures. Can they prove that “more probable than not” that untaken precaution would have prevented defendant’s injuries.

2. Where the injury that happens is precisely the risk that made the defendant’s conduct negligent, court often find that the connection between the risk and the harm to be sufficient proof of causation. (pg. 465).

e. Multiple Parties: Apportionment of Damages or Joint Liabilityi. When two or more independently negligent parties cause a single

indivisible harm, courts generally opt for holding each defendant liable for the entire harm. The plaintiff is limited to only one recovery of damages, not double recovery. (pg 468). Ex[;anation (pg. 472).

f. Physician’s Malpractice Reduces a patient’s already <50% chance of survival.

i. Case: Herskovitz (pg. 482). – Not necessary for plaintiff to introduce evidence to establish that the negligence resulted in the injury or death but simply that the negligence increased the risk of injury or death.

g. Alternative Liability i. When you can’t prove who caused the harm.

1. Case: Summers (pg. 519): Negligence of both defendants was the legal cause of the injury when there was not

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sufficient evidence to show which defendant was guilty of negligence which caused the injury.

ii. Market Share Liability (Hymowitz case (DES), pg 526)1. Plaintiff must present sufficient evidence that the alleged

defective condition of the product was a but for cause or substantial factor in contributing to the injuries.

2. Testa. Manufacturers acting in parallel to produce an

identical, generally marketed product.b. Need to define appropriate national market, should

be as narrow as possible.c. Need to narrow time period in which to apply

market share theory.d. Product causes injury many years later.e. Evoked a legislative response.

IV. Scope of Liabilitya. Goal:to set the outer boundaries of liability in negligence cases. To

determine whether careless conduct of the defendant is sufficiently related to the harm suffered by the plaintiff.

b. Direct Consequences Testi. Harm to plaintiff directly caused by defendant’s negligence.

ii. UNFORSEEABLE intervening forces can cut off liability under direct consequences test.

iii. Criticism: Both under and over inclusive and too expansive of liability.

c. Foresight Testi. Main test for scope of liability.

ii. Is the harm to plaintiff within the scope of foreseeable risks based on negligence of defendant?

iii. Unforseeable Plaintiffs1. Cases: Palsgraf – No duty for unforeseeable injuries to

unforeseeable plaintiffs. This lies outside the scope of liability.

iv. Unforseeable consequences1. Cases: Juisti – Defendant is liable if defendant’s negligence

created a reasonably foreseeable risk of the general kind of harm that befell the plaintiff. The exact or precise manner of the harm does not matter for purposes of scope of liability.

v. Risk Standard: From 3rd restatement of torts – actor should be held liable only for harm that was among potential harms (foreseebale harms) that made the actor’s conduct tortuous. Better than unforeseeable harm standard (pg 563). Differences between the two on (pg 564).

d. Intervening Forces: Criminal Conduct of a 3rd Party

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i. Proximate cause test for defendants (pg 572).1. tortfeasors conduct must have been a “substantial factor” in

bringing about the harm being complained of2. there is no rule or policy that should relieve the wrongdoer

from liability because of the manner in which the negligence has resulted in the harm.

3. the harm giving rise to the action could have reasonably been foreseen or anticipated by a reasonable person. – not so strict as to require forseeability of exact manner of harm, only general manner in which injury occurred.

e. Shifting responsibilityi. Forseeable 3rd party intervening conduct can sometimes be so

egregious that the court is motivated to concludr that they 3rd party alone is responsible for the damages and that his conduct supersedes the negligent conduct of the initial actor. [we did not cover this in class] (pg. 578).

f. Exceptions to the Foresight Rulesi. Medical Malpractice Complications Rule (ARC case, pg 593): the

negligence of the wrongdoer in causing the original injury is the proximate cause of the damages flowing from the subsequent negligent treatment and holds him liable for those subsequent injuries. Courts allow the injured plaintiff to sue the initial negligent party for all the damages including those related to the subsequent malpractice.

ii. Eggshell Plaintiff (pg.595): Tortfeasor runs the risk that the person whom he injures may be in such a condition that the injury will be far more serious then had the person been strong. Tortfeasor is responsible for all the injuries which he inflicts even if a particular injury may have been aggravated by a peculiar physical condition.

iii. Rescuer Rule (pg. 599): Actor is liable for the injuries sustained by a person who is trying to rescue the actor from his own negligence. Actor is also responsible for injuries sustained by a rescuer attempting to help another person places in danger by the actor’s negligent conduct.

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V. Damagesa. 3 main areas of personal injury damage recovery (pg 620).

i. Past/future earning power losses. Includes consideration of earning capacity and not simply lost wages.

ii. Past/future medical expensesiii. Past/future pain and suffering

b. Collateral source rule: pg 646c. Notes (check pg 630).

i. Payments to the injured party from a collateral source are not allowed to diminish damages recoverable from the tortfeasor. For example, from a employment injury insurance.

ii. Courts must discount to present value lump-sum damages awards intended to compensate for future medical costs or future lost wages.

1. They need to take into account that money awarded today can be invested to earn a return.

2. Must consider the effects of inflation.

VI. Vicarious Liability (respondeat superior)a. Where one party is liable for the negligence of another party by reason of

some relationship between parties (pg. 51).b. Rationales in support of vicarious liability (pg. 52).c. Control Test

i. An employee for vicarious liability purposes is a person who performs services “in the affairs of another” and is subject to “the other’s control or right to control.” (pg. 52)

ii. Control and right to control are the key criteria, not compensation.iii. General rule: employer is vicariously liable for negligence of an

employee that occurs within the scope of the employment. The scope of employment refers to those acts that the employee is employed to do, as well as acts closely related such that they may be characterized as fairly and reasonably incidental to carrying out the objectives of the employment. (pg 53).

d. Independent Contractor-No Vicarious Liability Rule: Independent contractors are not employees of the hiring party (pg 53) but analysis of their relationship must be done to determine liability.

i. 10 factors considered in determining whether a person is an employee or an independent contract. (Pg 56, from Kime v. Hobbs).

ii. The right of control as to the methods or means used to complete an assignment is the chief factor distinguishing an employment relationship from that of an independent contractor.

iii. Franchise relationships: In determining whether a franchisor is vicariously liable for the negligence of its franchisee, courts closely examine the facts to determine if the franchisor in fact on a

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daily basis controlled or had the right to control the daily conduct or operation of the particular “instrumentality” or aspect of the franchisee’s business that is alleged to have caused the harm. A jury question may be presented if control or the right to control daily operations is involved. (pg 60-61)

iv. Exceptions to IC-NVL Rule: hiring party can be held vicariously liable for either (pg 59).

1. activities that are inherently dangerous (construction, demolition, crop dusting).

2. activities that courts declare “non-delegable” duties. (duties imposed by state or contract, duty of a common carrier to passengers, landlord to maintain common areas).

e. Scope of employment analysis (from Pyne v. Witmer, pg 63).i. Conduct of a servant is within the scope of employment if,

1. it is of the kind he is employed to perform;2. it occurs substantially within the authrorized time and space

limits3. it is actuated, at least in part, by a purpose to serve the

master.ii. Conduct of a servant is not within the scope of employment if it is

different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master. (from restatement 2nd)

iii. Generally, an employee traveling to or from work outside actual working hours is not in the scope of employment. Exception exists for employees who are caused by their employers to travel away from a regular workplace or whose travel is at least partly for their employers purposes rather than simply serving to convey the employees to or from a regular job site. (pg 62).

iv. Once an employee abandons a frolic and reenters the scope of employment, the employer will be held vicariously liable for injuries caused by the employee’s negligence after reentry. The burden is on the plaintiff to show the contemporaneous relationship between tortuous act and scope of employment. (pg 63-64).

Frolic- pursuit of an employee’s personal business seen as unrelated to employment.Detour- an employee’s deviation for personal reasons that is nonetheless seen as sufficiently related to employment*Note pending change to scope of employment test in restatement 2nd, (pg 68-69) to focus more on intent.**Another test is based on foresight. (Pg 69).

VII. Wrongful Death (pg. 672).a. Wrongful death statutes: cover loss to the beneficiariesb. Survival statutes

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i. Provide for the survival of a tort claim against a deceased tortfeasor by allowing the claim to be maintained against the estate of the tortfeasor

ii. Provide for the survival of a personal injury claim of a deceased victim in the name of his estate for the damages accrued up to the date of the victim’s death and accumulation of assets the decedent would have accrued had the accident not happened.

c. Wrongful death statutes govern postdeath damages of the deceased and the survival statutes govern predeath damages.

VIII. Defensesa. Contributory Negligence (pg 690) – arises when the unreasonable conduct

of the plaintiff contributes to the plaintiff’s harm. Only becomes relevant after the plaintiff has established a prima facie case of negligence against the defendant.

i. Must prove by a preponderance of the evidence that plaintiff fell below the relevant standard of care and that the plaintiffs breach of duty was a proximate cause of the plaintiffs injury.

ii. Duty is not an issue because every individual is considered to have a duty to exercise reasonable care for their own well-being.

iii. Under contributory negligence, plaintiff cannot recover if their unreasonable conduct contributes in any substantial way to her injury (all or nothing).

iv. Last clear chance doctrine: plaintiff could still recover fully against a negligent defendant upon proof that the defendant was more culpable because he had the last opportunity to prevent the harm..

v. Defense cannot be used if defendants conduct was reckless or even more culpable than plaintiff.

b. Comparative fault (pg 691) – where both a plaintiff and a defendant are at fault, they should share the responsibility rather than have it fall entirely on one party or the other.

i. Pure comparative fault = negligent plaintiff recovers some damages from the negligent defendant no matter how much at fault the plaintiff is.

ii. Modified comparative fault – plaintiffs recovery is barred if the plaintiff’s fault is greater than the defendants or as great as the defendants (depending on jurisdiction).

iii. Arguments in favor of moving from contributory to comparative (pg 693).

iv. Comparative cost approach: advocated by Judge Posner, to make sense of comparative negligence is to assume that the required comparison is between the respective costs to the plaintiff and to the defendant of avoiding the injury. E.g. if each could have avoided it at the same cost, they are each 50% responsible for it.(pg 702).

v. What factors are considered under comparative fault: (pg 703).

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vi. Set off: the party with the greater award against them is required to pay the other party only the difference between the two rewards. (pg 734).

c. Assumption of Risk (this defense falls under comparative fault)i. Express assumption of risk (pg 706) – one gives explicit

permission to release another party from an obligation of reasonable care.

1. Factors considered to determine if a waiver is void (pg 707).

ii. Implied assumption of risk (pg 709) – inferred from a party’s conduct and the circumstances. Looks to the plaintiff’s state of mind. Composed of three basic elements, the burden of proving these elements is on the defendant.

1. knowledge of the risk2. appreciation of the risk3. voluntary exposure to the risk

iii. This assumption of risk is not typically an independent defense. It operates as a comparative reduction of the plaintiffs recovery. (pg 718,721).

iv. Primary Assumption of Risk - Limited Duty1. occurs when a party enters into a relationship with another,

knowing and expecting that the other person will not offer protection against certain risks arising out of the relationship. E.g. skiing, playing basketball, sitting in a baseball stadium. (pg 723).

v. Secondary assumption of risk – arises when defendant does owe a duty of care to the plaintiff but the plaintiff knowingly encounters a risk of injury caused by the defendants breach of that duty.

vi. Determining which applies turns on the nature of the sport and on the parties general relationship to the activity (725).

vii. Exception: Professional Rescuer Rule: professional rescuers (firefighers, police) have assumed the risks related to their jobs in undertaking the employment. (728).

d. Statute of Limitations (pg 735).i. Affirmative defense which a defendant must raise by motion or in

their answer or risk losing the defense.ii. Typically courts say that the statute of limitation clock begins to

run when the claim accrues. Accrual of an action means that all of the facts essential to a claimants right of recovery have occurred.

iii. Discovery rule: may postpone the commencement of the limitation period until the claimant actually knows or reasonably should know of the existence of the claim.

1. What must be discovered by the claimant? (pg 738).a. The occurrence of the harmb. The fact that the harm results from a wrongful act of

the defendant

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c. The identity of the person committing the wrongful act.

2. The discovery rule should not be satisfied until appreciable injury becomes manifest (pg 738).

iv. Interpreting a statute (pg 740).v. Equitable Estoppel can squelch a Statute of limitations defense

(pg748).vi. Running of statute of limitations can be tolled (delayed) due to

disability, such as minority status, mental incapacity, or military service (pg 748).

vii. Ultimate repose statute: limitation that sets a maximum number of years at the outside for a claim to be maintained (pg 749).

viii. Charitable immunity (mostly abolished) (pg 751).ix. Spousal immunity (mostly abolished) (pg 752)x. Parental immunity (more limited doctrine) (pg 754).

IX. Intentional Torts – relates to the purpose or desire of an actor to invade the legally protected interests of another.a. Intent: measured by a subjective standard, that is, the defendant’s state of

mind.i. A person acts with the intent to produce a consequence if:

1. the person has the purpose of producing that consequence; or

2. the person knows to a substantial certainty that the consequence will ensue from the person’s conduct.

3. Transferred intent (pg 771).ii. Assault (pg 774)

1. act or an attempt or the appearance of an attempt, with force or violence with intent;

2. to do some immediate physical injury to the person of another

3. The display of force or menace of violence must be such to cause the reasonable apprehension of immediate bodily harm.

iii. Battery1. violational act2. intent to3. contact4. harmful or offensive nature

iv. Intentional Infliction of emotional distress1. extreme and outrageous conduct2. which is intended to cause and does cause3. severe emotional distress to another

v. Conspiracy – an agreement between two or more individuals to do an unlawful act or to do a lawful act in an unlawful way.

vi. False imprisonment (pg 824-831).

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1. Elementsa. willful detentionb. performed without consentc. without the authority of lawd. plaintiff must be aware of the confinement (modern

cases challenge this rule, see pg 828).2. A person may falsely imprison another by acts alone or by

words alone, or both operating on the persons will.3. Plaintiff must prove the absence of authority of law in order

to establish the third element of false imprisonment. 4. Shopkeepers privledge (pg 825) grants authority of law to

shopkeepers- Three elements to Authority of Law.a. Reasonable beliefb. Reasonable mannerc. Reasonable time

vii. Tresspass to chattels (pg 839)1. intentionally dispossessing temporarily or using or

intermeddling with the chattel of another2. D liable for damage or harm done to chattel (loss of use).

viii. Conversion (pg 839)1. intentionally exercising dominion or control over a chattel

which seriously interferes with owners rights2. D liable for full value of chattel (forced sale concept)3. Factors to consider if chattel interference is conversion (pg

836-837).X. Defenses to Intentional Torts

a. Consent (pg 845).i. Actual or apparent: express consent

ii. Effective consent: consent is ineffective if the person lacks capacity to consent to the conduct.

b. Self Defense and Defense of Othersi. Self defense can be a complete defense to an intentional tort where

the defendant used reasonable force that she reasonably believed was necessary to prevent immediate harm. The defendant must believe the force is necessary and it must be found to be reasonably necessary from the reasonable persons perspective. (pg 851).

ii. Considerations1. Actual or apparent necessity2. Defendant believes necessary3. Other concerns

a. reasonable forceb. retreat rulesc. verbal provocationd. excessive force

c. Self defense of property

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i. Value of human life outweighs the interest of a possessor of land in excluding from it those whom he is not willing to admit thereto. (pg 862).

d. Necessity – actions legally justified so as to precude liability for false imprisonment. (pg 866).

i. Denfendants must have acted under the reasonable belief that there was a danger of imminent physical injury to the plaintiff or to others.

ii. The right to confine a person in order to prevent harm to that person lasts only as long as is necessary to get the person to the proper lawful authorities.

iii. Actor muse use the least restrictive means of preventing the apprehended harm.

XI. Trespass to land, Nuisancea. Trespass to Land (pg. 883).

i. Intent to enter the propertyii. Tangible intrusion on the property to possession of another.

iii. Physical harm not requied b. Nuisance (pg 883)

i. Private nuisance – activity that interferes with the use and enjoyment of someones land (pollution, noise, bad odors) Elements listed on pg 185 of concise restatement.

ii. Public Nuisance – acts which inconvenience or interfere with public rights common to all (obstructing a highway, running a whore house).elements listed on pg 181 of concise restatement and pg 911 of vetri text which includes standing to sue.

c. Unreasonableness analysis in private nuisance – conduce is unreasonable where:

i. The gravity of the harm outweighs the utility of the conduct.ii. The conduct is useful, b ut the harm cuase d by the conduct is

serious and compensation for it would not jeopardize the conduct.iii. The harm is severe and greater than the injured party should bear

without compensation.d. Separate criteria for injunctions of a nuisance (pg 897).

XII. Abnormally Dangerous Activitiesa. Strict liability appliesb. 6 factors to be considered when determining whether an activity is

abnormally dangerous (pg 917)i. Existence of a high degree of risk of some harm to the person,

land, chattels of othersii. Likelihood that the harm that results from it will be great

iii. Inability to eliminate the risk by the exercise of reasonable careiv. Extend to which the activity is not a matter of common usagev. Inappropriateness of the activity to the place where it is carried on

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vi. Extent to which its value to the community is outweighed by its dangerous attributes.

c. Short comings of balancing approach to strict liability (pg 924).

XIII. Products Liabilitya. Historical development (pg 932)b. Restatement (2nd) section 402a (pg 942).

i. One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property if,

1. the seller is engaged in the business of selling such a products, and

2. it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

ii. The rule stated above applies although1. the seller has exercised all possible care in the preparation

and sale of his product, and2. the user or consumer has not bought the product from or

entered into any contractual relation with the seller.c. The above rule is one of strict liability.d. Exception: this rule does not apply to the occasional seller of food or other

such products who is not engaged in that activity as part of his business.e. Types of Defects

i. Manufacturing Defects – pg 9441. a manufacturing defect is an imperfection, shortcoming, or

abnormality in a product that departs from its design specifications and prevents the product from safely performing its intended function.

2. determining a manufacturing defect – product is compared to the manufacturers own standards or specifications to determine if there is a difference that makes the product less safe.

3. Or proving that a product failed to perform safely in its normal use is an alternative way of establishing a manufacturing defect without necessarily showing an actual deviation from design specs (pg 945, 954).

ii. Design Defects1. design defect for products liability purposes exists when

safety hazards in the design could reasonably have been eliminated.

2. Consumer expectations test (pg 959).a. A product may be found defective in design if a

plaintiff demonstrates that the product failed to perform as safely as an ordinary consumer would

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expect when used in an intended or reasonably foreseeable manner. This will lie in strict liability.

b. Elementsi. Defendant manufactured or sold the product

ii. That the product was unchanged from the date of sale or that any changes were reasonably foreseeable

iii. That the product was used in a reasonably foreseeable manner

iv. That the product did not perform as safely as an ordinary consumer would have expected

v. That the plaintiff was harmed andvi. That the products design was a substantial

factor in causing the harm.c. safety regulation violation

i. a product design that fails to comply with a safety statute renders it conclusively defective per se.

d. alternative proof used in consumer expectations test (pg 990) to establish prima facie case.

e. Problems with consumers expectations test (pg 965).

f. Product can be found defective even if it satisfies the ordinary consumer expectations test, if through hindsight, the jury determines that the products design embodies excessive preventable danger, the risk of danger inherent in the challenged design outweighs the benefits of such design (pg 992).

g. When CE test should be used (pg 995).3. Risk-Utility Test

a. A product is defective as designed if the risk or danger of the product outweighs the products utility (pg 969).

b. Factors to be considered if a product is reasonably safe (pg. 969).

c. Problems with risk-utility test (pg 975).d. Risk-utility proof required to establish prima facie

case (pg 990) such as safer alternative design..iii. Warning defects

1. plaintiff must prove that manufacturer failed to exercise reasonable care in providing a warning.

2. Manufacturers duty to warn (pg 1009).3. for strict liability, the risks to be warned of should be

reasonably foreseeable and there is no duty to warn against scientifically unknowable risks.

4. adequacy of warning (pg 1005)

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a. warning must be promininentb. must attract users attention (position, size, coloring)

5. features of effective warnings (pg 1006).6. principle criteria used to evaluate warnings (pg 1008).7. Causation in warning defect cases

a. Prove product caused the injuryb. Prove warning would have altered users behavior

such as to avoid the injury.8. Things to examine when proving a warning defect case (pg

1011).9. Critisicism of warning defectiveness (pg 1011).

f. Prima facie case of strict products liability (pg 948, 1049) , policies for implementing products liability (pg 949).

g. Prescription Drugs – Learned Intermediary Rule – producer need only warn the learned intermediary of the risk and may rely on the intermediary to make reasonable choices and advise the patient. (pg 1027).

i. Pharmaceutical manufacturer relieved from strict liability when (pg 1032).

1. the product is properly manufactured and contains adequate warnings

2. its benefits justify its risks3. the product was at the time of manufacture incapable of

being made more safe.ii. There is no preemption for pharmaceutical companies when it

comes to design or warning defects.h. Causation as to products liability

i. Same in strict liability as in negligence. (but for, substantial factor)i. Market Share liability

i. Used when plaintiff cannot identify which manufacturer among several produced the product.

j. Successor corporation liability (pg 1036).k. Scope of liability in products liability (pg 1037).

i. Manufacturers can be held strictly liable only if the plaintiff was engaged in a foreseeable use of the product at the time of the accident.

l. Damagesi. Manufacturer has no duty under either a negligence or strict

liability theory to prevent a product from injuring itself. (pg 1039).ii. General rule is that party may not recover for pure economic loss

based on strict liability principles. (pg 1040).m. Defenses

i. Majority – comparative fault applies in product liability (pg 1043).ii. Minority view- refuse to apply comparative fault to product

liability cases.

XIV. Defamation

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a. Defamation is state law, not federal law, except insofar as 1st amendment privledges are implicated.

b. Defamation – a statement is considered defamatory if it holds the plaintiff up to hatred, ridicule, or contempt, or if the statement lowers the esteem and respect in which the plaintiff is held or causes people to shun the plaintiff (pg 1059).

i. Must cause reputational harm, hurt feelings alone do not serve as a basis for defamation.

ii. Must be believable to be defamatory.iii. Must have a good reputation to begin with in order to be defamed.iv. Name calling and hyperbole are not considered defamatory either

because they are pure opinion or because in context they could not actually harm the plaintiffs reputation. (pg 1060)

v. Defamatory language needs to be considered in the context of the publication as a whole.

vi. If a judge decudes that the communication is capable of having a defamatory meaning, then jury decides if the audience understood the statement as defamatory in context.

c. Opinion – incapable of being defamatory as it cannot be shown to be true or false. (pg 1061),

d. Defamatory statement must be capable of being perceived as defamatory by some significant number of persons (pg 1061).

e. Can be written or oral or nonverbal through actions, photos, paintings.f. Interpretation

i. Meaning and context – where one portion of an article is defamatory but another portion is not, the jury must decide whether the defamatory portion is actionable in light of the entire article.

ii. Inducement and Innuendo – Where extrinsic facts are necessary to make out the defamatory content of a statement - called libel or slander per quod. Extrinsic proof is called inducement, defamatory meaning based on extrinsic facts is called innuendo. (pg 1064).

iii. Colloquiem – proof that defamatory statement is referring to the plaintiff.

g. Group Libel – for a member of a group to pursue an action based on defamatory communications about the group, the plaintiff must show that the group was sufficiently small so that she is identifiable.

h. Communication – i. in order for defamation claim, statement must be communication

of the reputation injuring statement to at least one person other than the plaintiff.

ii. Single publication rule – each edition of a book or issue of a magazine supports only one defamation cause of action.

iii. Fault in publication – in order to prove publication, plaintiff must show that the defendants decision to communicate the defamatory statement was either done intentionally or negligently.

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i. Falsity – plaintiff must prove falsity as part of their prima facie case.j. Causation – plaintiff must show that the reputational loss or other

allowable losses were caused by the defamatory communication.k. Damages (pg 1067, 1075).

i. Libel – general damages and punitiveii. Slander – special damages

l. Slander (pg 1072).i. Per se: slander must fall into one of the following categories:

1. serious Crime

2. Loathsome disease

3. Unchaste woman

4. Business reputationii. per quod: slander that does not fit into CLUB categories.

1. plaintiff must prove special damages as a prerequisite to recovery for reputational harm. Usually insurmountable hurdle. (pg 1073).

m. Libeli. Per se: defamatory on its face

ii. Per quod: defamatory only with extrinsic evidencen. Defenses to Defamation (pg 1077)

i. Truthii. Absolute privileges

iii. Qualified privileges (pg 1078)1. Statements made to protect ones own interests

(counterattack)2. Statement made to protect the interests of a third party3. Statements made to protect common interests4. fair comment priviledge5. fair and accurate report privledge

iv. Retraction – if retraction is requested and adequately granted, the retraction statute typically limits the damages recoverable. (pg 1082).

v. Statutes of limitationsvi. Mitigation of damages – plaintiffs already bad reputation can

reduce damages.

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