Torts Outline - Professor Wonnell - Fall 2012

8/13/2019 Torts Outline - Professor Wonnell - Fall 2012

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TORTS OUTLINE Prof. WonnellFall 2012

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I. INTRODUCTION TO TORT LAWA. Law can generally be divided into Criminal Law and Civil Law; Civil Law can be further divided into Contract Law and Tort Law; Tort

Law can then be divided into intentional and unintentional torts.

B. Why tort law?1. Torts are to compensate for injuries caused through normal courses of actions, and the desire is not to "stamp out" the

actions altogether.

2. The purpose of tort law is to change behavior. We are trying to get people to behave differently than they are naturallyinclined to.

3. A person who does not bare the risk of a particular activity or situation does not have the incentive to bear the burden toreduce the risk - tort law acts to serve this purpose.

4. There is a view of tort law that its primary purpose is of an instrumentalist/economic/utilitarian view in which serving thegreater good and perform cost-benefit analysis.

5. There is also a view that tort law serves a corrective justice function.C. Economic Concepts

1. Pareto EfficiencyA change is efficient if it results in a net increase to some (or all), and no one is made worse off (i.e. Netgain, no one loses).

2. Kaldor-Hicks EfficiencyA change is efficient, regardless of whether or not someone suffers a net loss, as long as thosewho gain receive enough such that they could compensate the losers and still be better off (i.e. Net gain, regardless of

losers).

3. Coase Theorem - If trade in an externality is possible and there are no transaction costs, bargaining will lead to an efficientoutcome regardless of the initial allocation of property rights (i.e. legal rule).

II. INTENTIONAL TORTS: INTERFERENCE WITH PERSONS AND PROPERTYA. Intent: To act with the purpose of causing a contact or apprehension or with knowledge that such contact or apprehension is

substantially certain to be produced (i.e. intent = purpose or knowledge).

1. Diminished capacity (such as by that of children or adults with mental retardation or insanity) does not in itself disproveintent. Those with diminished capacity can be held liable for an intentional tort if intent of the actor can be established

(Garret v. Dailey, Wash. 1955Defendant 5 years, 9 months held liable for battery).2. The actor need only commit the unlawful act with the intent to cause contact. Intent to harm or offend is not required.

(Garret v. DailyThe fact that the boy did not intend harm or know that harm was substantially certain is not relevant.

The boy only must have intended or knew with substantial certainty that contact would result from his actions).

3. Transferred Intent: If an actor intentionally attempts to make contact with a particular person or property, but accidentlymakes contact with a different person or property, the intent to contact transfers from the intended to the actual target

(Talmage v. Smith,Mich. 1894the fact that the defendant hit, and thus injured, a different person than he intended does

not absolve him of liability of an intentional act; Ranson v. Kitner, - a good faith mistake in which object the defendant

intended to damage actually was does not absolve liability).

B. BatteryThe actor acts with intent to cause harmful or offensive contact, or imminent apprehension of such contact, and harmfulor offensive contact results either directly or indirectly from that act; Intentional contact in a manner that is harmful or offensive.

1. Brzoska v. Olson(Del. 1995)Treatment of patients by a healthcare provider that has a deadly disease, without anyshowing of harm or exposure to the disease, does not qualify as a "reasonable" harm or offense.

2. Fisher v. Carrousel Motor Hotel(Tex. 1967)Actual physical contact is not necessary, and contact with an object closelyidentified with the body is sufficient to establish battery.

C. AssaultA defendant acts intending to cause harmful or offensive contact, or an imminent apprehension of such a contact, and theother is thereby put in such imminent apprehension.

1. Western Union Telegraph v. Hill, Ala. 1933An employee who made sexual comments at a patron and attempted tocontact her did constitute assault, but it was not sufficient to hold the employer liable under respondeat superior because

it was not within the scope of his employment.


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2. Conditional ThreatsA conditional threat is sufficient for assault if it places the plaintiff in imminent apprehension (e.g.Your money or your life.). However, conditional threats about future harm are not sufficient.

D. False ImprisonmentAn actor intends to confine another within boundaries fixed by the actor, and his act directly or indirectlyresults in such a confinement, and the other is conscious of the confinement; Willful detention without consent.

1. Grant v. Stop-N-Go Markets, Tex. 1999The court held that there were facts to support that there was willful detention ofthe plaintiff without his consent, and that the detention may not have been reasonable under the shopkeepers privilege.

The summary judgment of the trial court was reversed and remanded for a trial.

2. Shopkeepers privilegeShopkeepers can detain a suspected shoplifter if there is a reasonable belief a person has stolenor is attempting to steal, the detention is for a reasonable time, and the detention is done in a reasonable manner.

E. Intentional Infliction of Emotional DistressExtreme and outrageous conduct that intentionally or recklessly causes severeemotional distress to another.

1. Harris v. Jones, Md. 1977Infliction of humiliation does not meet the requirement of severe.The severity of theemotional distress is not only relevant to the amount of recovery, but is a necessary element to any recovery.Mere

insults, indignities, threats, and annoyances are not sufficient to establish IIED.

2. Courts are not reluctant to direct a verdict if they do not believe the conduct was extreme and outrageous, or if theemotional distress suffered was not severe.

3. Insurance companies have been held liable for IIED for cancellation of policies. (Liberty Mutual Insurance v. Steadman, theinsurance company delayed authorizing payment for a lung transplant for 9 months with the hope that the plaintiff woulddie before it had to pay; Hailey v. California Physicians Service, the insurance company cancelled the policy claiming there

was an omission in the application after it had to pay over $450k in medical bills following an auto accident).

4. Common Carriers (transportation services) and Innkeepers (lodging services) were held to higher standards with respect toIIED; insults could amount to IIED. However, courts have recently begun to reject the rule to hold common carriers and

innkeepers to different standards.

5. The First Amendment protects against some forms of speech that may be harmful. The Supreme Court held that speech ofpublic concern, including that related to political, social, or other concern to the community, is protected and not liable to

IIED.

F. Trespass to LandIf a person intentionally enters land in possession of another person without permission, he/she has committedthe tort of trespass

1. Possessors of real property have a right to exclusive possession.2. If someone intentionally enters the land, but mistakenly believes it to be their own, they are still liable for the tort of

trespass.

3. A trespass may be committed by the continued presence of an object placed on the land pursuant to a license or otherprivilege if the actor fails to remove it after the consent or privilege has been terminated.

4. Rogers v. Kent County Board of Road Commissioners, Mich. 1948The failure to remove a stake placed on the plaintiffsproperty, upon consent of the plaintiff to build a temporary fence, was sufficient to establish trespass.

G. Trespass to Chattels - Intentional interference with the personal property of others that is relatively minor, and only requires thedefendant, if liable, to pay the value of the harm caused to the chattel. Harm must have been caused to the chattel for the

defendant to be liable.

H. ConversionIntentional exercise of dominion or control over a chattel which seriously interferes with the right of another to controlit such that the actor may be required to pay the other the full value of the chattel.

1. The following factors are important to determining the seriousness of the interference: the extent and duration of thedominion or control; the intent of the actor to assert a right that is inconsistent with the others right of control; the

actors good faith; the extent and duration of the resulting interference with the others right of control; the harm done to

the chattel; and the inconvenience and expense caused to the other.

2. Intel Corp. v. Hamidi, Cal. 2003The continued sending of anti-Intel e-mails by Hamidi, although unwanted, did not causeharm and did not result in any actual cost by Intel. Harm must be caused to the chattel, and absent proof of harm, the e-

mails are lawful and did not constitute trespass to chattels.


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I. Umbrella Intentional TortAn actor who intentionally causes harm is subject to liability for that harm. This is an umbrella ruleincluded in the Restatement of Torts.

J. The Monster Intentional TortThe alien tort statute allows aliens (i.e. people from other countries) to sue for extreme intentionaltorts.

1. Abdullahi v. Pfizer, Inc., 2d Cir. 2009Pfizer administered testing of a vaccine, Trovan, on children in Nigeria withoutinformed consent that caused death to 11 children and severe defects in others. Pfizer was found liable because their acts

violated a norm of international character, was a specific cause of action that is no less definite than the paradigms of the

ATS, and was of mutual concerns to State.

III. DEFENSES / PRIVILEGESA. ConsentOne consents to the acts of another, or to the consequences of those acts, if he/she is subjectively willing for that conduct

or those consequences to occur.

1. OBrien v. Cunard Steamship Co., Mass. 1891The plaintiff alleged that the ships surgeon administered to her a vaccinewithout her consent. However, the court held that the plaintiff's conduct demonstrates that, by her standing in line,

holding out her arm, not protesting the vaccination, and using the vaccination certificate demonstrate her desire to be

vaccinated.

2. ExpressConsent is willingness in fact for conduct to occur. It may be manifested by action or inaction and need not becommunicated to the actor.

3. ImpliedThe plaintiffs words or conduct reasonably caused the defendant to believe that the plaintiff had consented,they constitute apparent consent and are as effective as actual consent.

4. Hackbart v. Cincinnati Bengals, 10thCir. 1979While it may be true that players consent to a reasonable expectation ofinjury based on the rules and customs of the game, acts that fall outside of the rules and customs of the game of football

may be open to tort liability. Consent to the risk of injury for actions not within the scope of the game cannot be

reasonably implied.

5. Christman v. Davis, Vt. 2005If the plaintiff consists to a procedure, and the defendant surgeon performs a procedure,but does not go as a far as was originally intended, the fact that the surgeon performed less than was promised does not

mean that the plaintiff did not consent since, in fact, the plaintiff consented to more than what was actually performed.

6. De May v. Roberts, Mich. 1881The physician assisting the plaintiff in the birth of her child brought along a friend to assisthim with his things. He did not inform the mother or father that his friend was not a medical professional, and given that

the circumstances would allow one to believe that his friend was in the house for a medical reason, failure to disclose Mr.Scattergood's disposition constitutes fraud. The element of fraud nullifies consent.

7. FraudConsent, if obtained by fraud, is nullified and cannot be used as a defense for an intentional tort.8. DuressWhen consent obtained under duress (e.g. threats of physical violence, economic pressure such as loss of job),

consent is nullified, and cannot be used as a defense (Grager v. Schudar, N.D. 2009The court ruled that consent provided

in a jailer/prisoner setting requires that the jury be instructed to consider the prisoner's ability to control the situation or

to give consent to someone who has supervisory authority or disciplinary control over her. Consent is not a complete

defense in this case).

9. Lack of CapacityConsent can be nullified when it is offered by adults with either temporary or permanent diminishedmental ability, or by children. No fine linecase by case basis.

10. Informed ConsentFor medical treatments, consent obtained without providing proper information as to the risks of theprocedure or possible alternatives may render the physician liable.

11. Scott v. Bradford, Okla. 1980To prove medical malpractice on the grounds of informed consent, the plaintiff must prove:1) defendant physician failed to adequately inform of material risk prior to securing consent; 2) the plaintiff would have

not consented if he/she had known of the risks; 3) the adverse consequences that were not disclosed to the plaintiff

occurred and were a result of the treatment.

B. Self Defense1. By Force Not Threatening Death or Serious Bodily HarmAn actor is privileged to use reasonable force, not intended or

likely to cause death or serious bodily harm, to defend himself even if he believes he can avoid self -defense by retreating

or otherwise giving up a right or privilege, or complying with a command with which the actor is under not duty to comply

or which the other is not privileged to enforce by the means threatened.


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2. Courvoisier v. Raymond, Colo. 1896The plaintiff need not have assaulted the defendant in order for the defendant toassert self-defense. It is only required that the defendant could have reasonably believed that the plaintiff intended to

harm the defendant.

3. By Force Threatening Death or Serious Bodily HarmAn actor is privileged to defend his/herself against another by forceintended or likely to cause death or serious bodily harm, when he/she reasonably believes that the other is about to inflict

a contact that threatens death or serious bodily harm. This privilege holds even if he/she believes they can retreat if

he/she is attacked in his/her place of dwelling, and the dwelling is not also the dwelling of the other; or by permitting the

other to intrude upon or dispossess him/her of his/her place of dwelling; or by abandoning a lawful attempt of arrest.

4. If someone provokes a fight or altercation, they may be barred from claiming self-defense.C. Defense of OthersWould be rescuers are allowed to intervene to assist a stranger, but they are not required to do so.

1. Type of ForceThe type of force allowed is the same as in defense of self as outlined above in by force not threateningdeath or serious bodily harm, and by force threatening death or serious bodily harm.

2. MistakeSome jurisdictions do not hold would-be-rescuers liable if they intervene in good faith, but they were mistaken.However, some jurisdictions will hold would-be-rescuers liable, stating that they intervene at their own peril.

D. Defense of Property1. Katko v. Briney, Iowa 1971Defense of property does not justify protection that will likely result in death or serious injury

such as the instillation of a trap gun.

2. Protection of property is allowed as long as the amount of force used is reasonableUse of force likely to result in deathor serious injury is never justified for protection of property only.

E. Recovery of PropertyOne who discovers that another has taken his/her property may use reasonable force against another as longas the rightful possessor acted promptly in hot pursuit after dispossession or after timely discovery of dispossession.

1. Limits on Self-HelpMust act promptly and only use reasonable force. Force likely to result in death or serious bodilyinjury is never justified.

2. Repo ManA buyer that purchases personal property (i.e. chattel) on a sales contract allows for the seller or lender, orauthorized agent (repo man) to repossess the collateral if the purchaser defaults on payment. They may repossess the

property as long as they do not breach the peace. Some jurisdictions interpret breach of peace to mean without the

buyers consent, while others allow use of reasonable force.

F. NecessityIf a person is in a situation in which they must use anothers property, they can do so, but they must pay for anyresulting damage.

1. Vincent v. Lake Erie Transportation Co., Minn. 1910 - Even if someone must, out of necessity, use or avail his/herself ofsomeone else's property out of circumstances beyond his/her control, he/she is still responsible for any resulting damage.

2. If property is sacrificed to save lives or entire communities, liability for the harm is not imposed.G. Legal AuthorityPeace officers are not usually liable for harm caused to a person during a lawful arrest unless

excessive/unreasonable force is used. However, damage to the person's property that occurred as a result of an arrest may be

grounds for liability (Constitution prohibits the taking of personal property without just compensation). Also, an officer may be

liable for harm caused if the officer did not have probable cause for the arrest.

H. Disciplining Children - Parents have a privilege to use reasonable physical force in disciplining their children. Some states alsorecognize a school's right to discipline children, while other states expressly prohibit it.

I. JustificationAn umbrella defense, usually up to a jury to decide. If a person is justified in their acts, they are usually not liable for atort action. However, it is often up to a judge or jury to determine if a particular justification was reasonable based on the actions.

1. Sindle v. New York City Transit AuthorityThe plaintiff argued that the trial court erred in allowing the defendant topresent evidence that he was justified in taking the children to the police station. The appellate court held that because

the defendant has the burden to prove it, justification is a defense that the plaintiff should be prepared to meet (no error).

IV. NEGLIGENCE


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A. Elements1. DutyEveryone owes a duty to avoid causing physical harm to others. However, there is no duty to rescue.2. Breach of DutyRequires that the defendant failed to act reasonably according to the standard of reasonable care.3. Cause-in-Fact - That the defendant's negligent conduct had a causal connection to the harm suffered.4. Proximate CauseBased on whether or not the harm was foreseeable. An actor cannot be held liable for harm done that

was outside of the ability for a person to reasonably foresee the consequences of their actions (e.g. driver wrecks into the

back of a truck carrying dynamite, which explodes causing millions of dollars in damage - even if the driver is negligent in

causing the wreck, he/she is not the proximate cause of the millions of dollars of damage caused by the exploding

dynamite because it was not foreseeable).

5. HarmActual, tangible harm must be suffered (i.e. no intangible harm).B. General Standard of Care: Negligence Balancing

1. Lubitz v. Wells, Conn. 1955Leaving a golf club in one's own backyard does not breach a duty to another. Court MAY havebeen stating that one does not owe a duty to prevent common objects from lying around in his own backyard.

2. United States v. Carroll Towing Co., 2d Cir. 1947The hand test was formulated in that a risk-utility analysis helps todetermine negligence. The Burden of adequate precaution (B) must be considered against the gravity of resulting injury or

loss (L) and the Probability of loss occurring (P). The formula is B< PL.

3. Washington v. Louisiana Power & Light, 1990Given that the burden far outweighed the risk (since it was not very likelyor foreseeable that the accident might occur), the defendant did not owe a burden to the decedent to eliminate the risk.

The risk of harm (PL) must outweigh the burden (B).4. Juries - The (Near to) Almighty Jury:

a. The courts rarely overturn jury verdicts.b. The appellate courts do not like to overturn jury verdicts because negligent cases are usually very fact specific,

and the jury is the finder of fact.

c. However, on occasion, courts do overturn jury verdicts as manifestly erroneous.C. Qualities of the Reasonable Person

1. Knowledge and SkillsA person is held to the standard of common knowledge and skills, even if he/she does not possessthe common knowledge or skills (Delair v. McAdoo- The defendant was expected to know whether or not the condition of

his tires was hazardous, and the court ruled that because tires are a common item of knowledge, the plaintiff was not

required to produce expert testimony as to their condition).

2. EmergenciesPeople cannot be expected to act reasonable in emergency situations, but only as reasonable as an ordinaryperson would act under the circumstances (as stated in Cordas v. Peerless Transportation Co. in which a cab driver was not

required to act reasonably when a criminal had a gun pressed to the back of his head and he leaped from his moving car).

3. Customs (Customary Practice)Serve as evidence as to whether or not someone deviated from a standard of care. Whena defendant fails to conform to, departs from, or ignores an established level of due care (breach of duty) and this

departure gives rise to suit (cause in fact and proximate cause), liability is established (as demonstrated in Trimarco v. Klein

when a landlord failed to adhere to custom of replacing glass doors with shatter proof glass or plexiglass).

4. Physical AttributesPhysical attributes of a person, including physical disabilities such as blindness, are attributed to thereasonable person to determine if that person, given their physical characteristics in the situation, acted reasonably

(Roberts v. State of Louisianaa blind man was not negligent for accidently knocking down a man when he was not using

his cane in public since he was following the custom of blind men, which is to use his facial sense while walking in a familia

place).

5. Mental AttributesMental attributes, such as mental disability or incapacity are not taken into account in the reasonableperson standard. This is a possible pocket of strict liability. The Restatement, Third, of Torts states that an actors mental

or emotional disability is not considered in determining whether conduct is negligent, unless the actor is a child. Further,

religion is not attributed to the reasonable person (Williams v. BrightThe NY appeals court held that by considering the

reasonableness of plaintiffsreligiously motivated action did not treat her religion with neutrality and implicitly endorsed

her religionshe refused a blood transfusion that would have mitigated her suffering and the compensation required, but

refused because she was a Jehovahs Witness).

6. ChildrenChildren under the age of 5 cannot be held liable for negligence. When assessing whether or not a child 5 yearsor older is negligent, the reasonable person is adapted to the standard of a reasonable youth given their age, mental

capacity, and experience, unless the youth is engaged in an adult activity such as driving (Stevens v. VeenstraA 14 year


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old who was driving for the first time during drivers training andaccidently drove onto a sidewalk striking a pedestrian.

The court held because he was engaged in an adult activity, that he was to be held to the same reasonable person

standard as any other adult driver).

7. ProfessionalsProfessionals are held to the standard of care that a reasonable professional in their field would or shouldadhere to (i.e. usually the custom of practice). However, if the customary standard of care is not sufficient, a court may

rule that following the custom is negligent (Helling v. CareyThere was reason to believe it was necessary to administer

an eye pressure test to determine if the plaintiff had glaucoma. Given that the eye pressure test is relatively cheap,

painless, and efficient, there was no need not to administer the eye pressure test. What "ought to be done is fixed by a

standard of reasonable prudence whether it usually is complied with or not" The fact that the ophthalmologist followed

the standard of care of only administering eye pressure tests to people over 40 does not prove he was not negligent).

D. Judicially Determined Standards of Care1. Courts Utilizing Risk-Utility Balancing to Decide Cases as a Matter of LawCourts can rule against negligence as a matter

of law if they do not believe the facts support the claim.

a. When the design of a product seeks to maximize utility and attempts to eliminate as much risk as possible, thedesign is not negligent (Timpte Industries v. GishGiven that the risk of someone climbing on top of the trailer

against the warnings of the manufacturer is low, and that the top two rungs of the latter acted as safety

measures in other instances, and that the top two rungs of the latter were designed with functional utility to

allow for more efficient storing of the commodity to be transported, the design was not negligent as a matter of

law, using B > PL).2. Courts Utilizing Safety Statutes to Set Specific Standards of Care: Negligence per Se

a. Evidence of NegligenceWhen courts allow a law prohibiting a specific act to be admitted as evidence ofnegligence when the person (plaintiff or defendant, since it can be a c laim or counterclaim) does not act in

accordance with that law. This is used in some states.

b. Presumption of NegligenceWhen the courts presume an act to be negligent, i.e. creates a prima facie case,when the actor acts in defiance of a law prohibiting the act. The actor can present evidence of a justification or

defense, which is judged on a standard of reasonableness. This is used in some states.

c. Negligence Per SeWhen the courts deem an act to be negligent when the actor acts in defiance of a lawprohibiting the act. This usually requires that the harm caused must be the harm that the statute attempted to

protect against, i.e. protected class of person, and the person harmed is in the protected class of persons the

statute sought to protect. If the legislature didn't consider a particular harm by a prohibited act, doing the

prohibited act which results in a harm that was not considered by the legislature is not recognized by the courtsas negligence per se.

i. Martin v. HerzogWhen a car struck a buggy as they were going around a curve in opposite directions,the court ruled that the buggys failure to have lights was negligence per se because the legislature

intended to prevent the exact harm that occurred (e.g. buggies being struck by cars), and the people

involved were included in the protected class of persons (e.g. people in buggies and people in cars).

ii. Reque v. Milwaukee & Suburban Transport Corp.The court ruled that a buses failure to stop within12 inches of a curb was not negligence per se. To establish negligence per se, the violation of the law

must have caused the risk that the law sought to avoid. Because the law sought to avoid parked

vehicles being partially in the street blocking traffic and/or causing accidents with moving traffic, and

not to make it easier for people to get on and off of buses, it does not constitute negligence per se.

iii. Negligence per se, if applied, cannot be defeated on the grounds that the actor was reasonable incomplying. This would negate the purpose of negligence per se, and render the question was thedefendant reasonable? The excuse must be of a higher standard.

d. There are, generally, five categories of defenses/justifications that can excuse negligence per se. Per Impson v.Structural Metals, the five categories of excusable violations are:

i. Incapacity of the actor;ii. The actor does not know nor should have known of the occasion for compliance;iii. The actor is unable to comply after reasonable diligence or care (impossibility);iv. An emergency situation not due to the actor's own conduct;v. Compliance would cause a greater risk of harm to the actor or others.


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3. Statutory Private Rights of Action: Express or ImpliedOn some occasions, a private right of action is stated directly in astatute, or are structured such that courts can imply a private right of action. If a private right of action is not expressly

stated, such as in The Consumer Product Safety Act, it can be implied using a four-step test:

a. The plaintiff must be a member of the class for whose special benefit the statute was enacted.b. There must be indication of legislative intent to create a private right of action.c. The private right of action must be consistent with the purpose of the statute.d. The plaintiffs cause of action must be one that is not traditionally relegated to state law.

4.

Later cases modified the Corttest, making the question whether or not the legislature intended to create a private right ofaction (i.e. a matter of statutory construction).

E. Proof of Negligence: Res Ipsa LoquiturThis doctrine allows for a plaintiff to recover for damages of negligence even though theycannot prove the exact element of causation that caused the harm. For example, if a decedents relatives brought suit for a plane

crash, they need not prove that the pilot of the airline was defendant in a particular act, which, absent some excuse, the act was

negligent because planes are not supposed to crash.

1. Restatement, Third, of Torts - 17. Res Ipsa Loquitur: The factfinder may infer that the defendant has been negligentwhen the accident causing the plaintiffs physical harm is a type of accident that ordinarily happens as a result of the

negligence of a class of actors of which the defendant is a relevant member.

2. Res Ipsa Loquitur is a form of circumstantial evidence, but implies that the court does not know and cannot know whatactually happened in the individual case to cause the accident.

3. Singh v. United Cerebral Palsy of N.Y.C., Inc.Singh was injured when an automatic door slammed shut on her, which wasowned by the defendant. The court stated that to apply res ipsa loquitor, the plaintiff must establish that the event 1) was

of a kind that "ordinarily does not occur in the absence of someone's negligence; 2) was caused by an agency or

instrumentality within the exclusive control of the defendant; 3) was not due to any voluntary action or contribution on

the part of the plaintiff.

4. Ybarra v. SpangardAfter surgery, Ybarra had suffered pain, paralysis, and atrophy in his shoulder and right arm. Thecourt held that it was sufficient that the plaintiff can show an injury resulting from an external force applied while he lay

unconscious in the hospital. All of those defendants who had any control over his body or the instrumentalities which

might have caused the injuries may properly be called upon to meet the inference of negligence by giving an explanation

of their conduct.

5. Sullivan v. CrabtreeThe court stated that res ipsa loquitur can take three different procedural forms: a mere inferencefor the jury to accept or reject; a rebuttable presumption that the defendant is required to produce some reasonable

evidence; or a presumption that shifts the burden of proof onto the defendant. The court held that most cases, including

this one, only require an inference of negligence, and that the stronger procedural effects are reserved for cases thatwarrant a stronger inference based on the strength and weight of the facts.


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V. ACTUAL CAUSATIONA. But-for-Causation - The harm caused would not have occurred but for the defendant's negligent act. If the plaintiff's harm would

have occurred even if the defendant had not acted negligently, then the defendant's negligence did not actually cause the plaintiff's

harm. The "but for" cause is limited to actions in which an increase in harm was known or should be known to the defendant

BEFORE THE ACT.

1. Perkins v. Texas & N.O.R.(La. 1962)A speeding train struck a vehicle that ignored a signal and entered the tracks. Thecourt found for the defendant as a matter of law due to lack of causation because there was no evidence provided by the

plaintiff to show that the collision, more likely than not, would not have occurred.

2. Ford v. Trident Fisheries Co.Plaintiffs intestate was a mate on defendants boat, and fell overboard and drown. Thecourt held that the defendant was not the but for cause because the defendants negligent keeping of its life boat was

not the cause of death since no one could see where the intestate was in the water and the life boat would not have been

able to save him.

3. Reynolds v. Texas & Pacific Ry.(La. 1885)The defendant contested judgment against it because, defendant argued, theplaintiff was overweight and may have slipped and fell on their stairway regardless of proper light. The court held that the

defendants negligencegreatly multiplied the chances of an accident, and is of a character naturally leading to the

occurrence of the accident, so the mere possibility that it might have happened without the negligence is not sufficient to

break the chain of causation.

4. Failure to Warn - If risks of harm are generally obvious to reasonable people, no duty to warn exists. There is a causalityquestion, "Would it have made a difference if you were warned?" There is a presumption that if a warning would havebeen made, it would have been headed. This presumption, however, is rebuttable.

B. Was the Defendant's Conduct Capable of Causing the Plaintiff's Harm?1. Kramer Service, Inc. v. Wilkins (Miss. 1939)The defendant appealed a judgment based on improper jury instruction

because the expert doctors, when considered most favorable to the plaintiff, only established a 1/100 probability between

the trauma sustained by the plaintiffs negligence and the cancer that later developed. Therefore, considering that the

experts established that the cancer was not, more probable than not, caused by the trauma, the trial court should have

allowed the jury instruction.

2. Small probabilities are difficult to prove. The court wants the plaintiff to demonstrate that the harm or injury suffered bythe plaintiff was caused more probable than not by the defendant.

3. Difficulties with Probabilities include: a. A mere increase in likelihood is not sufficient to establish causation on a "moreprobable than not" standard. b. The increase in a probability, for it to be considered to have caused the harm "moreprobable than not," must double the background rate. For example, if there is a background rate of a particular disease

that is 1 per 1,000, it would be necessary to prove that the defendant increased the rate to MORE THAN 2 per 1,000 for

the defendant to have caused a particular plaintiffs harm more probable than not.

4. FryeTestThis test for scientific evidence was whether or not the theory was generally accepted in the field. The USSupreme Court found the test to be overly restrictive (for federal courts).

5. DaubertTestThis test for scientific evidence is whether the evidence is "scientifically valid evidence." The factors ofscientifically valid evidence include:

a. Whether the theory or technique in question can be and has been tested.b. Whether the theory has been subjected to peer review and publication.c. Whether the theory the theory its known or potential error rate.d. The existence and maintenance of standards controlling its operation.e. Whether it has attracted widespread acceptance within a relevant scientific community.f. "The inquiry is a flexible one, and its focus must be solely on principles and methodology, not on the conclusions

that they generate." Courts are cautioned against admitting "speculation, conjecture, or inference that cannot

be supported by sound scientific principles."

6. Rider v. Sandoz Pharmaceutical Corp.(11th Cir. 2002)The evidence provided does not satisfy the Daubert rule becausethere are too many gaps in the causal argument. First, the fact that the drug is in a broad class with other drugs, some of

which cause the harm does not mean that, without proof, this drug causes the same harm. Second, animal studies,

without a showing of why the effects in animals are analogous to humans, do not prove the harm. Third, the fact that the

drug may cause a different type of stroke (ischemic stroke) does not demonstrate it may also cause a different type of

stroke (hemorrhagic). The plaintiffs' evidence would require the court "to make several scientifically unsupported 'leaps


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of faith' in the causal chain. Courts must scrutinize the evidence, especially of the cutting edge variety because law does

not lead science.

7. State Courts - Frye or Doubert? Some states use the Doubert standard, while other states use the Frye test. Some statesdon't subscribe explicitly to one standard, but all states scrutinize scientific evidence before allowing it in court.

8. Herskovits v. Group Health Cooperative of Puget Sound(Wash. 1983)It was proven that the defendants negligence infailing to diagnose lung cancer reduced the decedents chances of survival, even though the decedents chance of survival,

even with proper diagnosis, would have been less than 50%. The court held that the reduction in the decedent's chance

for survival is sufficient to allow the jury to consider that the physician's failure to timely diagnose the illness was the

proximate cause of his death. Majority opinion focused on whether or not negligence was a substantial factor. The

minority concurring opinion focused on the loss of a chance of survival as the harm rather than the actual death.

9. Loss of Chance or Increase Risk of Harm - A majority of jurisdictions allow loss-of-chance claims to reach the jury evenwhen the plaintiff cannot prove that the defendant was, more likely than not, the cause of plaintiff's harm. Some state

legislatures have eliminated or restricted the availability of loss of chance recovery. However, the loss of chance recovery

has been limited to medical malpractice because there is a contractual relationship between patient and physician (or

physician's employer), good empirical evidence available about statistical probabilities of the lost opportunity, and

frequently the consequences of the physician's negligence will deprive the patient of a less-than-50-percent chance for

recovery.

C. Two or More Negligent Actors Concurrently (or Successively) Cause the Plaintiff's Harm1. Hill v. Edmonds(N.Y. 1966)The defendant left his truck parked in the middle of a street on a stormy night. The court

held that, "assuming, arguendo, that [the driver of the car] was negligent, the accident could not have happened had not

the truck owner allowed his unlighted vehicle to stand in the middle of the highway. Where separate acts of negligence

combine to produce directly a single injury each tort-feasor is responsible for the entire result, even though his act alone

might not have caused it."

2. Indivisible Harm & Joint and Several LiabilityWhen harm required the negligence of more than one actor to bring aboutthe harm caused. When two or more negligent parties acts result in an indivisible harm, the plaintiff can sue either

negligent defendant for full liability, i.e. the negligent actors are jointly and severally liable (unless it is a contributory fault

state).

3. Kingston v. Chicago & N.W. Ry.Two fires, either of which would have burned the plaintiffs property, converged andjointly burned the plaintiffs property. The defendant argued that their negligence was not the but for cause because

the other fire would still have burned the plaintiffs property. The court held that the defendant was liable because any

one of two or more joint tort-feasors whose concurring acts of negligence result in injury are each individually liable forthe entire damage resulting from their joint or concurrent acts of negligence.

4. Substantial Factor Was used (or meant to be used) to hold people liable when there are two more acts that contributeto harm. Because each person's act was sufficient to cause the harm (or some of the harm), his/her acts were a

substantial factor in contributing to the harm.

5. More About Joint & Several LiabilityWhen there are two more actors that are negligent, if there is a way to apportionthe damages (i.e. the damages are divisible), the liability can be apportioned between defendants. However, defendants

who are jointly liable can be joined in a single action, although a plaintiff is not required to join them. Also, defendants

who are severally liable are each liable in full for the plaintiff's damages, although the plaintiff is entitled to only one total

recovery. Joint and several liability arises under two occasions: 1) The defendants acted in concert to cause the harm; or

2) When the defendants acted independently, but caused indivisible harm.

6. Indivisible Harm Revisited: Good Bye to Substantial Factor Restatement, Third, of Torts, 27. Multiple SufficientCauses: If multiple acts occur, each of which alone would have been a factual cause of the physical harm at the same timein the absence of the other act(s), each act is regarded as the factual cause of the harm.

D. When One of Several Negligent Actors Clearly Harmed the Plaintiff, but We Can't Tell Which One1. Summers v. TiceTwo actors negligently fired their shotguns in the direction of the plaintiff, but the plaintiff could not

determine which gun caused the harm. The court held that when two or more persons are the sole cause of harm, and the

plaintiff has introduced evidence that the one of persons is responsible, the defendant can recover from either of them.

The burden should shift to the defendants to determine which of their acts is responsible. The court reasoned that the

defendants are better suited to introduce evidence to defend their selves, and an action should be taken amongst the

negligent parties to apportion liability. The plaintiff should be able to recover damages.


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2. According to the Summers v. Ticedecision, the courts condone imposing liability on actors who we know did not actuallycause the plaintiff's harm because otherwise we would let the one who did it off the hook. This is equivalent to parents

punishing both kids for something that they know one or the other did wrong, but do not know which one actually did it.

3. Sindell v. Abbot Laboratories(Cal. 1980)The plaintiff argues that she should be able to bring an action against a group ofnegligent parties when it is probable that one of them are responsible for producing the DES provided to her mother that

caused her cancerous side effects, even though she does not know which one. The court held that it is reasonable [in the

context of DES] to measure the likelihood that any of the defendants supplied the product which allegedly injured plaintiff

by the percentage of their market share. If the plaintiff joins in the action the manufacturers of a substantial share of the

DES, the injustice of shifting the burden of proof to defendants to demonstrate that they could not have made the

substance which injured plaintiff is significantly diminished. Further, each defendant should be held liable for the damages

in proportion to their market share (at the time the drug was taken by her mother).

4. Market Share ApproachFor DES cases, courts adopted a market share approach in which, as long as the defendantsnamed in the suit made up a "substantial share" of the DES market, the group of defendants could be held liable even if

the plaintiff could not prove that any one of them was to blame for the harm suffered. Each defendant was held liable for

the proportion of the judgment represented by its share of that market unless it demonstrated that it could not have

made the product which caused the plaintiff's injuries. Courts have overwhelmingly rejected the use of the market share

approach in other areas.

5. Reasons Market Share Approach was used in DES cases:a. DES was a generic drug with the same dosage utilized by women for a short period of time during their

pregnancy.b. The types of injuries that resulted in their daughters were unique, i.e. signature injuries.c. Young women rarely contract cancer of their reproductive system.d. There was not much variation in the production of the drug, the dosage utilized by the women, the amount of

time the women used the drug, or the type of injuries suffered, which meant that the causal link from the drug

to the harm was more easily established. The only problem was attributing it to a specific manufacturer.

VI. PROXIMATE CAUSATIONPertains to the relative distance, both geographically and in number of links in the causal chain, between thebut-for cause and the harm.

A. Liability Limited to Reasonably Foreseeable Consequences1. Marshall v. Nugent(1st Cir. 1955)The defendants, Socony-Vacuum Oil Co., driver negligently drove on the wrong side of

the road, causing a car to skid out of control. The passenger of the car was struck when he got out of the car and

attempted to warn oncoming traffic. The defendant disputed liability because defendant believed its driver was not thecause of the harm. The court held that the extra risks created by the defendant's negligence were not all over at the

moment the initial collision was avoided, and the plaintiff was still at risk until the car was able to be moved safely from

harm in the middle of the street. The defendant was liable because the harm was within the scope of foreseeable harms

that may result from negligently driving in the wrong lane.

2. Demers v. Rosa(Conn. App. Ct. 2007)A police officer slipped and fell on ice while responding to a call about a roamingdog. The dog did not do anything that directly caused the officer to slip, but the officer argued the dog owner caused the

harm because, but for the owners negligence in allowing the dog to roam, he would not have been standing on the ice

where he slipped. The court held that the owners negligence was too remote and trivial because even if it is reasonably

foreseeable that a police officer responding to a call on a snowy and icy day may become injured through a weather

related incident, this argument would include any type of harm sustained in the midst of responding to a call during

inclement weather.

3. The Third Restatement and Proximate Cause, 29. Limitations on Liability for Tortious Conduct: An actors liability islimited to those harms that result from the risks that made the actors conduct tortious.

4. ForeseeabilityAn event is never foreseeable in its precise detail. Likewise, a very broad description of harm is almostalways foreseeable. However, the best way to think about foreseeability is that if you were to describe a list of reasons

why one should not be negligent in a particular situation, the harm caused would be in one of those categories. A

foreseeable harm need not be the "main" reason that a person should not be negligent in a particular circumstance; it can

be a secondary reason. If the way in which the defendant's negligence caused the harm to the plaintiffs is "weird," then

sometimes he is not liable.

5. McCahill v. New York Transportation Co.(N.Y. 1911)A taxicab driver, employee of defendant, negligently struck thedecedent causing a broken thigh bone and injuring his knee. The doctors testified that the injuries suffered by the


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accident could not have caused the decedents death, but the accident hastened the decedents delirium tremens (a pre-

existing condition from the decedents alcoholism). The court held that the defendant takes the plaintiff as he finds him,

and that the defendant is responsible for the resulting death, even if death would not have been caused by the injuries

alone caused by defendants negligence. The fact that the defendant hastened the condition of the decedent is sufficient

to hold the defendant liable for all damages.

6. Thin Skulls and Fragile PsychesThe thin skull or egg shell skull doctrine states that the plaintiff must take hisdefendant as he finds him. The fact that a normal person would not have suffered the amount of harm that the particular

plaintiff suffered as a result of the plaintiffs fragile state does not absolve the defendant from liability of the abnormal

harm. The law draws a categorical distinction between foreseeability of causing harm versus the magnitude of the harm.

Once harm has been caused, the foreseeability of the magnitude does not matter. Also, if someone suffers less injury than

a usual person because they have a "rock hard" skull, the defendant would not be liable for more damage than would

actually be suffered.

7. Negligence Per Se and Proximate CauseCourts recognize a proximate causation requirement in negligence casesinvolving conduct that violates safety statutes. In Larrimore v. American National Insurance Co., there was a safety statute

that prohibited the laying out of poison. When the owner of a coffee-shop accidently left out rat poison, it caused an

explosion when the chemicals got too close to a burner. The court held that the risk of explosion was not the sort of risk

that the statute was intended to protect against, and thus the proximate cause link between the negligent conduct and the

plaintiffs harm was missing.

8. Palsgraf v. Long Island R.R.(N.Y. 1928)Palsgraf was injured by a set of scales knocked over by exploding fireworks, whichoccurred when one of the train attendants tried to assist a man onto a train, and accidently knocked a box out of his handsthat was wrapped in newspaper.

a. PalsgrafMajority (Cardozo) opinion: If no hazard was apparent to the eye of ordinary vigilance, an act innocentand harmless did not take to itself the quality of a tort because it happened to cause harm. Also, even if there

was a tort, it would be against the holder of the package against invasion of his person, but it does not transfer

to one who is remote to the potential of danger given the orbit of the danger as disclosed to the eye of

reasonable vigilance. No breach of duty occurred.

b. PalsgrafMinority (Andrews) opinion: A duty is owed both to anyone whom the actor may reasonably expect toharm, and to anyone that isharmed by a given act. The act of the defendant's guard unreasonably jeopardized

the safety of anyone who might be affected by it. Proximate" is matter of convenience, public policy, a rough

sense of justice, and common sense, that courts use to arbitrarily declines to trace a series of events beyond a

certain point. It would not require any great foresight that an explosion would cause injury to a person across

the platform, even if the exact method could not be predicted.9. Duty or Proximate CauseSome courts have used proximate cause issues, i.e. matters regarding analysis of foreseeability,

to determine that the defendant owed no duty tothe plaintiff. There is debate, however, on whether or not the duty

rubric should be used to rule as a matter of law. Most courts use Judge Andrews proximate causation terminology even

when they rely on Cardozos foreseeability analysis to determine outcomes regarding which plaintiffs may recover for

harm caused by conduct that was clearly negligent.

10. Thompson v. Kaczinski(Iowa 2009)The defendants left an untethered, disassembled trampoline blew into the street andcaused the plaintiffs to crash into a ditch. The Iowa Supreme Court disregarded their previous conceptions of duty and

proximate cause, and adopted the Restatement, Third, of Tort. The Court held that although courts have used

foreseeability to determine issues of no duty, no duty should be left to articulate a policy or principle. Further, proximate

cause, i.e. the foreseeability of a risk, is harm that is limited to those physical harms that result from the risks that made

the actor's conduct tortious, and the determination should be left to juries unless no reasonable person could differ on the

matter.

B. Superseding Causes1. Derdiarian v. Felix Contracting Corp.(N.Y. 1980)The driver of a car failed to take his medicine and negligently drove into

an excavation site along the side of the freeway, striking the plaintiff and a kettle containing 400 degree liquid enamel.

The liquid enamel landed on the plaintiff, causing him to burst into flames, which caused severe injuries. The court held

that the negligent conduct of the driver was only an intervening cause that contributed to the plaintiffs harm, but was not

a superseding cause (not sufficient to establish the intervening cause as the primary cause), and did not absolve the

contractor of liability for his negligence in not placing appropriate barriers around the jobsite.


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2. The Restatement, Third, of Torts takes aim at the concepts of intervening acts and superseding causes. 34. InterveningActs and Superseding Causes: When a force of nature or an independent act is also a factual cause of physical harm, an

actors liability is limited to those harms that result from the risks that made the actors conduct tortious.

3. Barry v. Quality Steel Products, Inc. (Conn. 2003)Plaintiffs were injured while working on a roof when the plank theywere on collapsed and they fell. The company that manufactured the bracket denied liability stating that the negligence of

the plaintiffs employer their co-worker were superseding causes. The court held that superseding cause is actually just a

question of proximate cause, and proximate cause should be used to apportion the liability to all negligent parties. If the

defendant was both the cause in fact and a proximate cause of the plaintiffs injury, the defendant will be liable for his or

her proportionate share of the damages, notwithstanding other acts of negligence that also may have contributed to the

plaintiffs injury.

4. Watson v. Kentucky & Indiana Bridge & R. Co. (Ky. Ct. App. 1910)The railroad claimed that even though their negligentact caused gasoline to flow in the street, the criminal act of a 3

rdparty in igniting the gasoline was a superseding cause.

The Court held that lighting of the match could only absolve the defendant of liability, i.e. would constitute a superseding

cause, if he was found to have purposely ignited the gasoline. However, there is a question of fact as to whether he

ignited the gasoline purposely or accidently, which should be left to a jury.

5. Fuller v. Preis(N.Y. 1974)A surgeon committed suicide after an auto accident caused brain damage, and caused mentaland physical deterioration. The defendant argued that the plaintiffs conscious choice to commit suicide was a

superseding cause. The court held that tortfeasors can be held liable for suicide of persons who, as a result of their

negligence, suffer mental disturbance destroying their will to survive. It is a question of fact for the jury as to whether the

decedent's suicide was a result of an "irresistible impulse" that resulted from the negligence of the defendant.6. Wagner v. International Railway(N.Y. 1921)The plaintiffs cousin was thrown from a moving train and killed when the

conductor failed to close the doors. The plaintiff was injured when he fell from a railroad bridge searching for his cousin.

The defense argued that the plaintiff chose to search for his cousin, so it is a superseding cause. Cardozo stated that

danger invites rescue, and the wrongdoer who negligently submits a victim to injury is also liable to the rescuer who acts

reasonably to rescue the victim for any damages to the rescuer.

7. A defendant may even be liable for damages incurred by a plaintiff in mistaken attempted rescue if the defendantsnegligence leads one to reasonably believe a rescue is necessary.

8. Even though danger invites rescue, it also invites onlookers. A defendant is not liable to those who just stop to watch anaccident or rescue attempt. Liability on the defendant may only be imposed for those injured while attempting a rescue.

C. The Duty Card1. Hamilton v. Beretta U.S.A. Corp.(N.Y. 2001)The Court held that handgun manufacturers do not owe a duty to victims of

handgun shootings in the marketing and distribution of handguns where such a duty could possibly encompass a very large

number of plaintiffs, where the manufacturers are not shown to be a direct link in the causal chain of Plaintiffs' injuries,

and where the manufacturers are not in a position to take reasonable steps to prevent the alleged harms. Also, the Court

held that because of the asymmetry of handgun manufacturers, the market-share approach is not proper.

2. Social hosts typically do not owe a duty to prevent injuries to a plaintiff from an inebriated guest when the guest driveshome from the defendants party. Further, a passenger in a car with a visibly intoxicated driver does not have a duty to

prevent the drunk driver from operating his own car.

3. Doctors due owe a duty to those harmed by patients when they negligently fail to inform their patient of side effects oftheir medication which could make an activity dangerous (e.g. a prescription medication that causes drowsiness is

dangerous while driving). However, the duty to third parties does not extend to situations in which a doctor negligently

prescribes a particular medication, or an incorrect dosage.

4. Bence v. Crawford Savings & Loan(Ill. App. Ct. 1980)The plaintiffs decedent was shot to death when the bank personnelrefused to activate an electronic door buzzer system to allow the robber to leave. The Court refused to recognize a duty

on the part of the bank personnel to accede to the robbers demands.

5. Sanders v. Acclaim Entertainment(D. Colo. 2002)The court refused to recognize a duty on the part of producers anddistributors of violent video games, movies, and music to the family of a teacher killed in the Columbine High School

shootings, which the shooters allegedly imitated in carrying out their plan. Makers of works of imagination including

video games and movies may not be held liable in tort based on the content or ideas expressed in their creative works.

Placing a duty of care on defendants in the circumstances alleged would chill their rights of free expression.

6. The courts upheld a duty in two cases (1997 & 2001) against Paladin Enterprises, the publishers of Hit Man: A TechnicalManual for Independent Contractors. The first Court stated that because of the detailed instructions on committing


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murder, and the books evident lack of any even arguably legitimate purpose beyond the promotion and teaching of

murderwe are confident that the First Amendment does not erect absolute bar to the imposition of civil liability. The

second Court stated that in addition to the books intent to assist people in murder, the publisher was also aware people

were using it to commit murder (because of the first case).

VII. NONLIABILITY FOR FORESEEABLE CONSEQUENCES (LIMITED DUTY RULES)A. Limitations on the Duty to RescueGenerally, people have no duty to rescue. There is a legal duty to do no wrong, but there is no

duty to protect against wrong. However, there is a duty to rescue in a number of exceptional situations.

1. Yania v. Bigan(Pa. 1959)The plaintiff sued for negligence for the death of her husband when the defendant failed towarn the decedent of the risk of jumping into a trench with 8-10 feet of water and then failed to rescue him while he was

drowning. The court held that there was an apparent hazard which did not require the defendant to warn the decedent of

the risk. Also, because the defendant did not create the risk, there was not duty to rescue.

2. Restatement, Third, of Torts 42. Duty Based on Undertaking: An actor who undertakes to render services to another thatthe actor knows or should know reduce the risk of physical harm to the other has a duty of reasonable care to the other in

conducting the undertaking if: a) the failure to exercise such care increases the risk of harm beyond that which existed

without the undertaking, or b) the person to whom services are rendered or another relies on the actors exercising

reasonable care in the undertaking.

3. Reliance based duties as in 42(b) of the Restatement, Third, of Torts, requires that the defendant 1) undertook services torescue operations, 2) failed to follow through with the rescue operations, and 3) other would-be rescuers relied on thedefendants rescue attempt in not initiating rescue attempts of their own.

4. Baker v. Fenneman & Brown Properties, LLC(Ind. Ct. App. 2003)The plaintiff become nauseous and dizzy, and fellinjuring himself inside of a Taco Bell. Taco Bell claims because it was not responsible for the instrumentality that caused

plaintiffs initial injury, it had no duty to assist. The court held that a possessor of land who holds it open to the public is

under a duty to assist members of the public who enter their property in response to the possessor's invitation, OR when

the injury resulted from the use of an instrumentality under the control of the defendant; both are not required for

imposition of a duty to assist.

5. Stockberger v. Unites StatesThe plaintiffs husband, who an insulin-dependent diabetic, was an employee of a federalprison, and his coworkers were aware of his condition. The plaintiff sued the prison for failure to prevent him from

attempting to drive home while he was hypoglycemic, and he wrecked and died as a result of his condition. The Court

held that even though other states had imposed duties to rescue on invitors (those who possessed private property but

invited others onto it), Indiana, the state laws that controlled the claim, had not yet adopted the rule (this ruling was 2months prior to Baker). The Court held that there was no duty.

6. Restatement, Second, of Torts 314A. Special Relations Giving Rise to a Duty to Aid or Protect:a. A common carrier is under a duty to its passengers to take reasonable action: (a) to protect them against

unreasonable risk of physical harm, and (b) to give them first aid after it knows or has reason to know that they

are ill or injured, and to care for them until they can be cared for by others.

b. An innkeeper is under a similar duty to his guests.c. A possessor of land who holds it open to the public is under a similar duty to members of the public who enter in

response to his invitation.

d. One who is required by law to take or who voluntarily takes the custody of another under circumstances such asto deprive the other of his normal opportunities for protection is under a similar duty to the other.

7. J.S. and M.S. v. R.T.H.(N.J. 1998)The Court held that the wife of a man who molested their neighbors two daughters (12& 15 years old) for over a year had a duty to warn her parents, or other authorities, of the suspected abuse.

8. Tarasoff v. Regents of University of California (Cal. 1976)The Court held that a therapist had a duty to warn the victim (orher parents) of a patients threat to murder her when a patient communicates to a psychotherapist a serious threat of

physical violence against an identifiable victim.

9. Rescuers do not have an absolute duty. They only have a reasonable duty to rescue, and may avoid any liability if anotherperson rushes to the aid of the injured party.

10. Attorney-Client Confidentiality: Rule 1.6(a) of the Model Rules of Professional Conduct prohibits lawyer from disclosing anyinformation relating to the representation. However, Rule 1.6(b)(1) permits a lawyer to disclose information relating to

representation if the lawyer reasonably believes it necessary to prevent reasonably certain death or substantial bodily

harm.


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B. Limitations on Recovery for Pure Economic LossMajority position in US is that plaintiffs cannot recover for pure economic loss.1. State of Louisiana, Ex Rel. Guste v. M/V Testbank (5thCir. 1985)Court declined to abandon the requirement of physical

damage in cases of unintentional maritime tort because it is a bright line rule and it would open the courts up to a lot of

suits which they would not properly be able to handle.

2. Some states will allow recovery for pure economic loss, with limits. California established a 6 factor test inJAire Corp. v.Gregory, providing 6 criteria by which to judge when pure economic loss will be allowed: 1) the extent the transaction was

intended to affect the Plaintiff, 2) the foreseeability of harm to plaintiff, 3) the degree of certainty that the plaintiff

suffered injury, 4) closeness between defendants conduct and injury suffered, 5) the defendants moral blameworthiness,

and 6) the policy of preventing future harm. Some states, however, only allow one to recover economic loss if the

economic loss results from physical (property or person) damage.

3. There is also some precedence for allowing recovery for economic loss when there is negligence by a party to atransaction, whose conduct was to protect against economic loss (e.g. auditors who negligently audit a corporation's

finances, and investors rely on the audit to conclude that the business is worth investing in)

4. People Express Airlines, Inc. v. Consolidated Rail Corp.(N.J. 1985)The court concluded that pure economic loss wasallowed in instances in which it was foreseeable that a particular plaintiff would suffer economic loss from the defendants

negligence.

5. Aikens v. Debow(W.Va. 2000)The West Virginia Supreme Court of Appeals held that pure economic loss was not allowedin a tort action absent either privity of contract or some other special relationship with the alleged tortfeasor.

C. Limitations on Recovery for Emotional DistressCourts look at claims carefully when a plaintiff, who was not physically harmed bythe defendants negligence, claims damages from becoming fearful or otherwise emotionally distressed.

1. Impact Rule - Some jurisdictions will not allow for recovery of emotional distress unless it was caused by physical impact.The term impact has been relaxed in some jurisdiction to include such contact as false medical test results that result in

medical treatment (R.J. v. Humana - Plaintiff improperly informed he had HIV and then began treatment satisfied

impact).

2. Zone of DangerIf a plaintiff was involved in or close enough to an accident to be placed in imminent danger of bodilyharm, the person who was placed in imminent danger can sue the negligent party for emotional distress suffered as a

result of the danger.

3. Mishandling of CorpsesCourts typically allow for plaintiffs to recover for emotional distress when a defendant hasnegligently mishandled the remains of the plaintiffs deceased loved ones.

4. Mishandling of Genetic MaterialDoctors, hospitals, and fertilization clinics have been held liable for emotional distress inthe mishandling of genetic material in situations in which the plaintiffs genetic material was negligently implanted in a

third party (Perry-Rogers v. Obasaju, N.Y. 2001), and when a third partys genetic material has been negligently implanted

into the plaintiff (Andrews v. KeltzN.Y. 2007).

5. Special RelationshipsWhen the parties have a direct relationship with each other or there has been an undertaking suchthat there are clear expectations as to appropriate conduct, courts will allow a cause of action for emotional distress

absent an imminent danger of bodily harm (Johnson v. State, N.Y. 1975A hospital that misinformed a patients daughter

that her mother had dad was liable for emotional distress; Rowell v. Holt, Fla. 2003Defendant attorney was liable for

emotional distress on his client for causing him to spend 10 needless days in jail as a result of attorneys failure to present

evidence to the court that his client, although having a previous felony, had his civil rights restored and was allowed to

own a gun).

6. Emotional Distress or Physical Manifestations: Restatement, Third, of Torts allows for recovery for negligently inflictedemotional distress even if plaintiff has no evidence of physical manifestations. Although may jurisdictions agree with this

position, other jurisdictions do no.7. Daley v. LaCroix(Mich. 1970)Two children became emotionally disturbed after a car wrecked into an electric pole

causing high voltage lines to contact electrical lines to plaintiffs house, which caused an electrical explosion. The court

stated that they could recover for emotional distress without physical contact, but the distress must have physical

manifestations.

8. BystandersA bystander without a close relationship to an injured or imperiled party may not sue for the shock ofwitnessing anothers danger. However, in Dillon v. Legg, Cal. 1968, the court held that when a plaintiff suffered shock that

resulted in physical injury, the defendant may owe a duty to the plaintiff when the following factors are taken into

account: 1) Whether plaintiff was located near the scene of the accident; 2) Whether the shock resulted from a direct


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emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident; 3) Whether the

plaintiff and victim were closely related, i.e. had a close relationship.

9. Thing v. La Chusa(Cal. 1989)The court held that a mother who did not witness a car accident in which her son wasinjured cannot recover damages for the emotional distress she suffered when she arrived at the accident scene. The court

modified the Dillon v. Legg factors as follows: A plaintiff may recover damages for NIED, absent physical impact, if and only

if the plaintiff 1) is closely related to the injury victim; 2) is present at the scene of the injury producing event at the time it

occurs and is then aware that it is causing injury to the victim; and 3) as a result suffers serious emotional distress - a

reaction beyond which would be anticipated in a disinterested witness and which is not an abnormal response to the

circumstances.

10. The Restatement, Third, of Torts 47 adopts the rule outlined in Dillon. Twenty-nine (29) jurisdictions now follow theDillon rule.

D. Harm to Unborn Children1. Wrongful Birth SuitsWrongful birth suits are brought by the mother for negligent diagnoses or not providing correct

information which would have allowed her to abort her pregnancy during the 1st trimester so that she would not have a

child with a serious birth defect. It is coherent that a mother can claim that she would have been better off aborting the

fetus than having a child with a debilitating disease. Courts typically award extraordinary medical expenses but do not

often award emotional distress.

2. Wrongful life suits are brought by the child (usually through the mother or father) claiming that the child would be betteroff not having been born. Most courts have rejected wrongful life suits because they do not want to state that a defectivelife is worse than no life.

3. Werling v. Sandy(Ohio 1985)The court held that the statutory beneficiaries of an unborn fetus are entitled to damagesfor the wrongful death of the fetus when the defendant negligently inflicted injury and death of the child before birth. The

court held that a viable fetus should be treated as a person for purposes of wrongful death.

4. Procanik by Procanik v. Cillo(N.J. 1984)The court held that it would not allow general damages, such as pain andsuffering for a defective childhood, in a wrongful life suit because it could not state that a defective life is worse than no

life. However, the infant plaintiff may recover special damages for the extraordinary medical expenses he will incur.

VIII. OWNERS AND OCCUPIERS OF LANDA. Duties Owed to Entrants on the LandThe traditional view was that the defendant's duty turns on Plaintiff's status:

1. TrespasserOn land without permission.a. Special duty to small children trespassers.i. "Attractive Nuisance"ii. Restatement, Second, of Torts 339 lists factors of attractive nuisance:

(1) The place where the condition exists is one where the possessor knows or has reason toknow that children are likely to trespass; and

(2) The condition is one of which the possessor knows or has reason to know and which herealizes or should realize will involve an unreasonable risk of death or serious bodily harm to

such children; and

(3) The children because of their youth do not discover the condition or realize the risk involvedin intermeddling with it or in coming within the area made dangerous by it; and

(4) The utility to the possessor of maintaining the condition and the burden of eliminating thedanger are slight as compared with the risk to children involved; and

(5) The possessor fails to exercise reasonable care to eliminate the danger or otherwise toprotect the children.

iii. Gist of Restatement: Defendant knows children use premises, understands or should understand thedanger of the condition, and children are too young to appreciate the danger (e.g. a vat of acid that

looks like a swimming pool).

b. Duty to avoid willful and wanton.i. Spring Gunsii. "Willful and wanton" has been expanded in some cases to include failure to warn known hazards to a

known trespasser.

iii. Gladon v. Greater Cleveland Regional Transit AuthorityCourt treated plaintiff as "trespasser" forbeing on the tracks without permission (which is odd considering he was not there willfully since he

was thrown onto the tracks). It was further odd that the court extended willful and wanton to include


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what amounts to recklessness based on the fact that the driver of the train did not stop when she

disregarded the risk that a person was attached to the shoe.

2. LicenseesOn the land with permission/license, but not for a material benefit of the owner, e.g. social guest. Thedefendant owed a duty to warn of hazards known to owner/occupier that are hidden to guest.

3. InviteesOn the land with permission for a material benefit of the owner.a. General Duty of reasonable care.b. Duty to discover hazards.c. Duty to warn about hazards.d. Duty to reasonably prevent hazards from harming them.

4. Rejection of Traditional Categoriesa. Rowland v. Christian- California court determined that a landowner must be reasonable under the

circumstances.

i. Everything is a factor for the juries to consider and determine if the landowner was reasonable(including whether or not the entrant was trespasser, licensee, or invitee).

ii. Court determined that the rules were too arbitrary and attempted to eliminate the arbitrariness.iii. There is hidden arbitrariness in that the juries decisions will be arbitrary since they will not be

provided any guidance on what constitutes reasonable. Each jury will need to decide for themselves

whether or not they believe the person acted reasonably, without any set rule(s) to guide them.

b. Some courts have retained the trespasser distinction while eliminating the distinction between invitees andlicensees.

5. Sticking to TraditionSome jurisdictions have stayed with the traditional categories.a. Carter v. Kinney(Mo. 2005)Plaintiff who was injured when he fell on ice attending Bible study at a fellow

church members house sued for negligence. The Mo. appellate court declined to eliminate the distinctionbetween licensees and invitees, and held that Defendant was a licensee and only had a duty to warn of known

hazards that were not obvious to those on the land with permission.

b. Per Professor Keeton, he believes many courts are reluctant to eliminate the distinction between invitees andlicensees because many are skeptical about reducing many years of jurisprudence to a single standard of

reasonable care, which places all of the power in the hands of unknowledgeable juries.

B. Special Rules Limiting Possessors Liability1. The Firefighters Rule

a. Firefighters or police who entered the premises of another to perform their functions were treated as licensees.b. The possessors of land owed no duty to make the premises safe for a licensee nor to inspect for dangers

unknown to the possessor.

c. Fordham v. Oldroyd(Utah 2007)The court refuses to abandon traditional firefighters rule.d. Pinter v. American Family Mutual Ins. Co.The firefighter rule was extended to dangers outside of land

ownership when a firefighter/paramedic was injured while administering aid to a person who negligently

crashed his car. The court cited to Thomas v. Pangstating the rationale that it offends public policy to say that

a citizen invites private liability merely because he happens to create a need for those public services.

2. Recreational Use Statutesa. If a private person were to open up his/her land to the public for recreational use, common law would treat

them as either invitees or licensees, which would impose duties upon those land owners.

b. To provide incentive for landowners to open up their properties for recreational use, and alleviate demand onpublic parks, most states have enacted recreational use statutes that partially immunize land owners for

accidents that happen on their property.

c. These statutes do not apply to those who charge money for use of their land.d. These statutes do not immunize against willful or malicious failure to guard, or to warn against, a dangerous

condition, use, structure, or activity.

C. Duties Owed to Those Outside the Premises1. Salevan v. Wilmington Park, Inc.A pedestrian outside of a baseball stadium was injured when a foul ball was hit outside

of the park. The court held that the operator of the stadium had a duty of reasonable care to those outside the premises

and the precaution taken to avoid harm was not reasonably adequate to pedestrians.

2. What if a tree falls into the highway?a. The landowner can be liable if he had actual knowledge of the weakened condition of the tree.b. Is there a duty to inspect for hazardous trees?

i. Traditional view was a rural/urban distinction: Rural = no; Urban = yes.ii. Some cases believed the rural/urban distinction was too arbitrary and rejected it in favor of

"reasonable under the circumstances."


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3. Taylor v. Olsen(Or. 1978)The court disregarded the distinction between rural and urban, stating that the defendantmust be reasonable under the circumstances (i.e. rural versus urban, the amount of traffic, the proximity of the tree to the

road, and the amount of trees one has are all relevant factors). However, the court also held that because the evidence

indicated that visual inspection of the tree would not have uncovered the defect, but only by drilling or chopping into the

tree, the trial court did not error in directing a verdict on behalf of the defendant.

4. Staples v. Duell(S.C. Ct. App. 1997)Stuck with the rural/urban distinction holding that a rural landowner did not owe aduty to inspect his trees that are adjacent to a highway even though 13,000+ cars utilized the highway every day.

D. Duties Owed by Lessors to Lessees1. Common law imposed few duties.2. Case law has created exceptions to the no duty rule:

a. Common Areasb. Public Areasc. Conditions known to landlord but not tenantd. Negligent maintenance or repairs

3. Some states/courts embrace a broader liability than that of the common law.a. Theories based on contract / Implied Warranty of Habitability.b. Sargent v. RossThe court held that even though it could stretch the "maintenance" exception of the immunity

rule to include negligent construction, it makes more sense to reverse the general rule of no liability. The

emphasis on control and other exceptions to the rule of nonliability, both at trial and on appeal, complicate the

jury's task and divert the issue of the unreasonable risk. Eliminating the nonliability rule is consistent with the

Court's previous ruling to eliminate caveat emptor (i.e. buyer beware) from landlord -tenant law which created

an implied warranty of habitability.

c. Many states/courts agree with Sargent, while others maintain the common law doctrine with its exceptions.However, some states have also, via statute, created an implied warranty of habitability with respect to

residential housing. These statutes range from a guarantee that the property contains no hidden defects to an

obligation to keep property in good repair during the term of the lease. Even though most statutes do no provide

for civil liability, courts can treat violations of the statutes as negligence per se.

E. Liability of Owners for Crimes by 3rd Parties1. Posecai v. Wal-Mart- A duty to protect customers (invitees) against foreseeable criminal acts. The court looked to

determine if there were any prior incidents. The court held that Wal-Mart owed no duty to hire security guards to keep in

the parking lot to protect against criminal acts of third parties because the burden of hiring fulltime security staff to patrol

the parking lot is high (B < PL). Judicial balancing of cost and benefits given the likelihood of the criminal conduct versus

what it would take to have prevented the crime.

2. Kline v. 1500 Massachusetts Ave. Apt. Corp.- N.J. landlord case - The landlord had previously provided a doorman, parkinggarage attendants, and strictly enforced a policy to lock side entrances in the evening, but after 10 years those security

measures were taken away. The district court held the landlord had no duty to prevent crime, but the appellate court held

that the landlord had a duty to take reasonable measures to protect tenants against crime b/c the landlord was the only

one capable.

3. There is always a causality question if the landlord would have acted differently. Would the security measures have madea difference?

IX. AFFIRMATIVE DEFENSESA. Defenses Based on Plaintiff's Conduct

1. Contributory Negligencea. Coasim story on externalitiesEach persons activity was a negative externality producing the result.b. Common Law Rule - All or Nothing Approach:

i. If both Plaintiff and Defendant were at fault, and the fault contributed to the accident, then judgmentin favor of defendant.

ii. Courts developed strategies to try to avoid the injustice of the rule:(1) They usually would not direct verdicts even when there was clear evidence that the plaintiff

was contributory negligent to see if the jury would not find the plaintiff negligent.

(2) Last Clear Chance - At common law, if the defendant had the "last clear chance" to avoid theaccident, then the defendant was liable for the entire amount.

(3) Was not a defense to intentional torts, or conduct that was reckless or wanton.(4) Also, the defendant had to prove the plaintiff was contributory negligent, and the courts

were more strict with plaintiffs negligence than the defendants negligence (text states they

played it by the book).


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(5) Gross Negligence - If the defendant was grossly negligent compared to the negligence of theplaintiff, the defendant could be liable for the entire amount.

c. Butterfield v. Forrester(Eng. K.B. 1809)The court held that one person being in fault (i.e. negligent) will notdispense with another's using ordinary care for himself. One may not cast himself upon an obstruction which

was caused by another's negligence, and avail himself of it, if he did not himself use ordinary care.

d. Most states have, either by judicial decision or statute, moved from the all or nothing rule in favor ofcomparative negligence.

2. Comparative Negligencea. Pure Comparative Negligence applies the percentage of fault to both the plaintiff and defendants in proportion

to the total award (e.g. If Plaintiff is 70% at fault, and Defendant is 30% at fault, then Defendant pays only 30% of

damages). This is the form favored by the Restatement, Third, of Torts, as well as most scholars.

b. Modified Comparative Negligence applies the percent of fault to both the plaintiff and the defendants, but doesnot allow recovery if the plaintiff is at least equally at fault (49 percent jurisdiction) or more at fault (50

percent jurisdictions), depending on the jurisdiction.

c. McIntyre v. Balentine(Tenn. 1992)The court did away with the all or nothing approach of contributorynegligence holding that a modified comparative fault scheme is preferred in which a Plaintiff cannot recover

unless his/her negligence is less than the negligence of the defendant(s). The court reje

Documents

Torts Outline - Professor Wonnell - Fall 2012