Intentional Harms:Battery, Trespass, Conversion

Defenses: Consent, Insanity, Self-Defense, Defense of Property, Recapture of Chattel, Necessity

Emotional Harms:Assault, Offensive Battery, False Imprisonment, IIED

I. Intentional harms (Battery, Trespass)a. Physical harm

i. Battery1. Vosburg v. Putney (Wis.1891), p. 42. Garratt v. Dailey (Wash.1956), note 3, p. 7

a. “A battery would be established if, in addition to plaintiff’s fall, it was proved that, when Brian moved the chair, he knew with substantial certainty that the plaintiff would attempt to sit down where the chair had been.” p. 8

3. White v. University of Idaho (Idaho 1990), note 4, p. 9a. No intent to harm or offend required

4. Transferred Intenta. Talmage v. Smith (Mich. 1894), note 5, p. 10b. No intent to hit the plaintiff specifically

ii. Trespass1. Dougherty v. Stepp (NC 1835), p. 102. Intel Corp. v. Hamidi (Cal. 2003), p. 14

a. Trespassb. Trespass to chattelsc. Conversion

b. Conversioni. Poggi v. Scott (Cal. 1914), p. 22

ii. Fouldes v. Willoughby (Ex. 1841), note, p. 24 1. The Difference between Trespass to Chattels and Conversion

iii. Maye v. Tappan (Cal. 1863), note 2, p. 25 1. Innocent Conversion

iv. Moore v. Regents of the Univ. of Cal. (Cal. 1990), p. 261. Conversion of Cells

c. Defensesi. Consent

1. Mohr v. Williams (Minn. 1905), p. 35a. Was the defendant’s touching of plaintiff unauthorized?

i. If it was unauthorized, it was unlawful.ii. “Assault and battery”

1. Any unlawful or unauthorized touching of the person of another” except if it is in the “spirit of pleasantry.”

b. What about White v. Univ. of Idaho?c. Who Decides?

i. Question of jury.2. Implied from conduct

a. O’Brien v. Cunard Steamship Co. (Mass. 1891), p. 38, note 2

3. The Emergency Rule4. People who can’t consent5. Euthanasia, note 6, p. 42

a. Wash. v. Glucksberg (US 1997)b. Vacco v. Quill (US 1997)

6. Consent in the Medical Settinga. Canterbury v. Spence (D.C. Cir. 1972), p. 244

7. Mutual Combata. The Rule

i. Majorityii. Minority

1. Restatement a. Volenti non fit injuria b. Latin: "to a willing person, no injury

is done" or "no injury is done to a person who consents

b. Hudson v. Craft (Cal. 1949), p. 438. Statutory Rape, p. 46, note 2

a. Barton v. Bee Line, Inc. (App. Div. 1933)i. Legal age of consent was 15-18

ii. Can an underage plaintiff sue for sexual intercourse to which she consented?

iii. A tort or a crime or both?9. Athletic Injuries

a. General ruleb. Beyond the rule

ii. Insanity1. McGuire v. Almy (Mass. 1937), p. 50

a. Can an “insane” person act with the intent necessary to commit an intentional tort?

b. What intent did the court require?c. “jury could find that the defendant was capable of

entertaining and that she did entertain an intent to strike and to injure the plaintiff and that she acted upon that intent.”

d. Any argument for the defendant?i. Who wins?

ii. Why?2. Polmatier v. Russ (Conn. 1988), note, p. 53

a. The “insane” person was a paranoid schizophrenic, with delusions of persecution, grandeur, influence and reference, and auditory hallucinations.

b. Can he form the intent necessary to commit an intentional tort?

c. “Defendant’s acts were not reflexive, convulsive or epileptic.”

d. “A crazy choice is still a choice to invade the interests of another.”

iii. Self-Defense1. Courvoisier v. Raymond (Colo. 1896), p. 54

iv. Defense of Property1. Bird v. Holbrook (CP 1825), p. 59

a. Case decided where?b. How many opinions?

i. Best:ii. “there is no act which Christianity forbids, that the

law will not reach.”iii. “He who sets spring guns, without giving notice, is

guilty of an inhuman act . . .”iv. How is a spring gun different than a dog?

c. Burrough i. Can you shoot a trespasser?

ii. What if the homeowner had taken the peacock, could the plaintiff have gone in to get it?

v. Recapture of Chattels1. Kirby v. Foster (RI 1891), p. 65

a. What is required?i. If one takes another’s property from his possession

without right against his willii. Then the owner can retake the property by the use

of necessary force.b. Any remedy?

i. “Remedy at law”1. Replevin 2. Trover (often applied to goods transported

on a ship that were lost, used or stolen)vi. Necessity

1. Ploof v. Putnam (Vt. 1908), p. 68a. Claims?b. “Trespass”c. “In case”d. Defensee. Demurrerf. Plaintiff has no claimg. Holding

h. Plaintiff has stated a claim.i. Necessity will justify entries upon land and interferences

with personal property that would otherwise have been “trespasses.”

2. Vincent v. Lake Erie Transportation Co. (Minn. 1910), p. 71 a. How does this differ from Ploof?

d. Emotional Harmsi. Assault

1. I. de S. and Wife v. W. de S. (1348 or 1349), p. 79a. A “trespass”?b. Any harm?c. What is required?

i. He “perceived her and struck with the hatchet, but did not touch the woman.”

2. Tuberville v. Savage (KB 1669) a. “If it were not assize-time, I would not take such language

from you.”3. Elements of assault

a. The actb. The “intention”

4. Restatement, Second, note 3, p. 82 a. Assaultb. Actor acts

i. Intending to cause a harmful or offensive contact with the person or the other or a third person, or

ii. An imminent apprehension* of such a contact, iii. and the other is thereby put in such imminent

apprehension.*ii. Offensive Battery

1. Alcorn v. Mitchell (Ill. 1872), p. 83a. An action of “trespass”

2. “one of the greatest indignity”3. Remedy

a. “vindictive damages”i. With proof of “malice, willfulness, wantonness,

outrage, and indignity”iii. False Imprisonment

1. Bird v. Jones (KB 1845), p. 852. Whittaker v. Sandford (Me. 1912), note 1, p. 873. Damages

a. Reduced for woman on the yacht because she was “respectfully treated as a guest in every way”

b. Where confinement is unintentionalc. And the harm is slight, damages may be reduced.d. Negligence principles may apply.

4. Coblyn v. Kennedy’s, Inc. (Mass. 1971), p. 88

a. Defensesi. Protection of person (students?) and property

ii. Consent (mine workers)iii. Parental control, disciplined (deprogramming)

iv. Intentional Infliction of Emotional Distress1. Wilkinson v. Downton (QB 1897), p. 93

II. From Strict Liability to Negligencea. Trespass and Case Emergence of Negligence

i. Brown v. Kendall (Mass. 1850), p. 123 1. Ordinary Care

a. “will vary with the circumstances of the case.”b. “that kind and degree of care, which prudent and cautious

men would use…”2. Whose care?

a. Defendantb. Plaintiff

3. Whose burden is it?a. Defendant’s careb. Plaintiff’s care

ii. Fletcher v. Rylands (Eng. 1865), p. 127 1. Causes of action

a. Trespass?b. Nuisance?c. Negligence?

iii. Fletcher v. Rylands (Eng. 1866), p. 130 1. Blackburn’s opinion on appeal

a. Plaintiff “free from all blame on his part”b. Must bear the loss, unless “he can establish that it was the

consequence of some default for which the defendants are responsible.”

2. “Absolute duty”a. If a person brings “something dangerous” onto the land,

should he be responsible for “all the natural consequences of its escape”?

3. The “true rule of law”a. The “person who for his own purposes brings on his lands

and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and

b. If he does not do so . . . c. Is prima facie answerable for all the damage which is the

natural consequence of its escape.d. Except . . . e. He can excuse himself by “shewing that the escape was

owing to the plaintiff’s default, or perhaps the escape was the consequence of vis major, or the act of God.”

4. Question Blackburn asks:a. Why should the plaintiff have to pay “without any fault of

his own?b. Is driving on the highway different?

b. Strict Liability or Negligencei. Rylands v. Fletcher (H.L. 1868), p. 133

1. Strict liabilitya. The “question in general is not whether the Defendant has

acted with due care and caution, but whether his acts have occasioned the damage ...”

ii. Brown v. Collins (NH 1873), p. 139 1. Does Rylands v. Fletcher apply?2. NY court repudiated case in Brown v. Losee (NY 1873).3. New Hampshire court reiterates:

a. “it has never been held in this country that one building a fire upon his own premises can be made liable if it escapes upon his neighbor’s premises, and does him damage without proof of negligence.

iii. Brown v. Losee1. “By becoming a member of civilized society, I am compelled to

give up many of my natural rights…”2. “We must have factories, machines, dams, canals and railroads,

they are demanded by the manifold wants of mankind, and lay at the basis of all our civilization.”

iv. Turner v. Big Lake Oil Co. (Tex. 1936), p. 142 1. Oil storage in Texas

a. Natural use?v. Powell v. Fall (Q.B. 1880), p. 143

1. The Proof2. The engine was constructed properly.3. The train was not speeding (no violation of law).4. No negligence.5. Who should pay?

a. Defendant?i. On what basis?

1. Strict liability2. “The passing of the engine along the road is

confessedly dangerous, inasmuch as sparks cannot be prevented from flying from it.”

b. Plaintiff?i. Why?

vi. Stone v. Bolton (KB 1950), p. 1541. Who was the plaintiff?

a. Whom did she sue?b. Whom could she have sued?c. What were her claims?

i. Public nuisanceii. Common law negligence

iii. Any other possible claim?d. Who won at trial?

i. Trial court entered judgment for the defendant on public nuisance and negligence claims.

e. Appeali. Court of Appeals reversed the judgment on the

negligence claim.f. Court of Appeal

i. The question:1. Whether hitting the ball which struck and

injured the plaintiff was the realization of a reasonably foreseeable risk, or was the nature of an unprecedented occurrence which the defendants could not reasonably have foreseen.

ii. What did the court consider?1. Where the wickets were placed2. The fence around the field3. Whether a ball has ever been hit onto

Beckenham Road and, if so, how many times

g. Court of Appeal Holdingi. The hitting of the ball outside of the field was the

“realization of a reasonably foreseeable risk . . . .”ii. A breach of duty.

1. Defendant’s Argumenta. No ball had ever gone so far.

2. “No possible precaution” would have stopped this particular ball.

vii. Stone v. Bolton (AC 1951), p. 1561. Lord Reid:

a. What is the defendant’s duty?b. What is the test?

i. Foreseeability?ii. How remote is the chance that a person might be

struck1. How serious the consequences might be

iii. Who decides?1. This is a question not of law but of fact and

degree.2. Lord Radcliffe

a. I can see “nothing unfair” about making the defendants compensate the plaintiff, but the law of negligence is

concerned “less with what is fair than with what is culpable . . . .”

b. When does a breach of duty take place?i. A breach of duty = a failure to take reasonable care

to prevent the accident.c. What would a reasonable man do?

i. “It seems to me that a reasonable man, taking account of the chances against an accident happening, would not have felt himself called upon either to abandon the use of the ground for cricket or to increase the height of his surrounding fences.”

d. Who decides?viii. Rinaldo v. McGovern (NY 1991), note 2, p. 159 (not assigned)

ix. Hammontree v. Jenner (Cal. App. 1971), p. 163 1. Plaintiffs’ Argument

a. Defendant should be held strictly liable.i. Products liability

b. Or is there another standard?c. Reasonable foreseeability?

i. Only the driver “can anticipate the hazards and foresee the dangers involved in his operation of a motor vehicle. . . .”

2. Defendant’s Defensea. I was having a seizure. b. I did not know I was going to have a seizure.

3. Holding a. At trial

i. Jury found for the defendant.b. Appellate Court

i. Products liability strict liability does not apply.ii. Plaintiff did not prove that defendant was negligent.

x. Vaughn v. Menlove (CP 1837), p. 171 1. Plaintiff’s Argument

a. There is a rule of law which says “you must so enjoy your own property as not to injure that of another.”

b. Is this strict liability or some other rule?i. Estimate defendant’s negligence by taking “the

conduct of a man of ordinary prudence.”2. Defendant’s Argument

a. Defendant had a right to place his stack as near to the extremity of his own land as he pleased.

b. He can only be called on to act bona fide to the best of his judgment.

c. At all events what would have been gross negligence ought to be estimated by the faculties of the individual, and not by those of other men.

3. Tindal, C.J.a. Facts:

i. It is well known that hay will ferment and take fire if it be not carefully stacked.

ii. Defendant was warned about how he stacked the hay.

b. Legal standard:i. Can the court judge the defendant according to the

best of his own judgment?1. Judging a defendant according to the best of

his own judgment would “leave so vague a line as to afford no rule at all, the degree of judgment belonging to each individual being infinitely various.”

c. The Rule:i. The care taken by a prudent man has always been

the rule laid down.1. What is that?2. Who decides?

xi. Roberts v. Ring (Minn. 1919), p. 178 xii. Daniels v. Evans (NH 1966), p. 180

1. The Rule for Minorsa. When a minor engages in activities appropriate to his age,

experience, and wisdom, he must exercise the care of the average child of his age, experience and stage of mental development.

b. He is not held to the same degree of care as an adult.2. The Rule for Minors Engaged in Adult Activities

a. When a minor undertakes an adult activity which can result in grave danger to others and to the minor himself if the care used in the course of the activity drops below that care which the reasonable and prudent adult would use, the minor’s conduct must then meet the same standards as that of an adult.

i. Activities 1. Riding a bike2. Riding a horse3. Sledding4. Playing baseball5. Skiing6. Operating a speed boat7. Deer hunting

xiii. Breunig v. American Family Insurance Co. (Wis. 1970), p. 185 xiv. Fletcher v. City of Aberdeen (Wash. 1959), p. 190

1. The Jury Instruction

a. “You are instructed that that portion of a city street lying between the sidewalk and the curb, commonly referred to as the parking strip, is as much a part of the public street as any other portion. It is not unlawful for a person to step upon or walk across a parking strip ....”

b. “It is the duty of the municipality to keep its parking strips in a reasonably safe condition so that persons traveling thereon, exercising ordinary prudence and caution, may do so with safety.”

i. The Proper Duty?ii. What is the duty of the municipality?

2. A different instruction informed the jury thata. The city is not an insurer and the city was required only to

keep the streets and sidewalks in a reasonably safe condition and the city’s duty did not require a complete barricade but that only reasonable warning was required

3. The Plaintiff is Blinda. Even before discrimination laws, courts protected the

disabled.i. “The blind and the halt may use the streets without

being guilty of negligence if, in so doing, they exercise that degree of care which an ordinarily prudent person similarly afflicted would exercise under the same circumstances. . . .”

4. The Defendant’s Dutya. The city should know that blind people walk on its streets.b. The city, therefore, has the duty to warn blind people of the

danger.xv. Robinson v. Pioche, Bayerque & Co. (Cal. 1855), p. 192

1. The Duty Owed to a drunk person?a. “A drunken man is as much entitled to a safe street, as a

sober one, and much more in need of it.”xvi. Denver & Rio Grande R.R. v. Peterson (Colo. 1902), p. 192

1. The Duty Owed to a rich/poor person?a. Does the duty owed change, depending on how wealthy the

plaintiff is?III. Negligence

a. The Reasonable Personb. Reasonable Care

i. Blyth v. Birmingham Water Works (Ex. 1856), p. 194ii. Eckert v. Long Island RR (NY 1871), p. 196

iii. Osborne v. Montgomery (Wis. 1931), p. 201 1. Man, double-parked, opened his car door and hit 13 year old boy

on a bike.2. What is Reasonable Care?3. What standard does the court apply?

a. Those that “guide the great mass of mankind . . . .” (p. 202)4. What Standard?

a. The jury instruction on the definition of negligence:i. “By ordinary care is meant that degree of care

which the great mass of mankind, or the type of that mass, the ordinarily prudent man, exercises under like or similar circumstances.”

5. Defining Negligencea. Standard is “varying and indefinite”b. The standard “may be fairly and justly applied to human

conduct.”6. The “Fundamental Idea of Liability”

a. A “balancing of the social interests” i. “We are constantly doing acts which result in injury

to others which are not negligent and do not result in liability.”

7. The Balancea. Should we pay?

i. “While the acts result in injury to others, they are held to be not negligent because they are in conformity to what the great mass of mankind would do under the same or similar circumstances.”

iv. Cooley v. Public Service Co. (NH 1940), p. 2031. Plaintiff’s Claim

a. What is it NOT?i. No claim that the negligence of the defendant power

company caused the wires to fall.b. Plaintiff’s sole claim:

i. Plaintiff’s injuries, though rare, could have been anticipated because the wires might fall on the phone wires causing a great noise resulting in phone user’s fright thereby leading to physical injuries suffered by plaintiff.

2. Defendant’s Dutya. Plaintiff claimed that defendant had what duty?

3. Defendant’s Argumenta. What is the Court to do?

i. The balance1. The only foreseeable danger to the telephone

subscriber is from noise: fright and neuroses.

2. There is no danger of electrocution in the house.

3. With the safety device, there is a danger of electrocution in the street.

4. On the ground, the danger of broken wires near the street is “obvious and immediate.”

v. United States v. Carroll Towing Co. (2d Cir. 1947), p. 206 1. If B < L x P, then liability will attach.

a. B = the burden of taking adequate precautionsb. L = the gravity of the resulting injuryc. P = the probability that the event will happen

vi. Lyons v. Midnight Sun Transportation Services, Inc. (Alaska 1996), p. 215 vii. Andrews v. United Airlines (9th Cir. 1994), p. 217

c. Custom (Industry Standards)i. Titus v. Bradford, B. & K. R. Co.(Pa. 1890), p. 221

1. What is the defendant’s duty?a. To furnish appliances “of ordinary character and reasonable

safety, and . . . i. “reasonably safe” means safe according to the

usages, habits, and ordinary risks of the business.2. The “unbending test of negligence”

a. The “ordinary usage of the business.”b. “No man is held by law to a higher degree of skill than the

fair average of his profession or trade …”3. The standard of “due care”

a. The “conduct of the average prudent man”b. “[N]o jury can be permitted to say that the usual and

ordinary way, commonly adopted by those in the same business, is a negligent way for which liability shall be imposed.”

4. The Jury’s Rolea. The jury cannot be allowed to set up a standard which shall,

in effect, dictate the customs or control the business of the community.

ii. Mayhew v. Sullivan Mining Co. (Me. 1884), p. 223 1. What is the defendant’s duty?2. What argument for defendants?3. The Court’s holding

a. If the defendants had proved that “in every mining establishment that has existed since the days of Tubal-Cain, it has been the practice to cut ladder-holes in their platforms, . . . without guarding or lighting them, and without notice to contractors or workmen …”

b. “it would have no tendency to show that the act was consistent with ordinary prudence or a due regard for the safety of those who were using their premises by their invitation.”

4. Any excuse?

a. “It would be no excuse for a want of ordinary care that carelessness was universal about the matter involved, or at the place of the accident, or in the business generally.”

iii. The T.J. Hooper (S.D.N.Y. 1931), p. 224 1. The Duty

a. The use of the radio was shown to be so extensive as to amount almost to a universal practice in the navigation of coastwise tugs along the coast.

b. “Thus, there was a duty on the part of the tug owner to supply effective receiving sets.”

2. Trial courta. Allowing the claim.

iv. The T.J. Hooper (2d Cir. 1932), p. 226 1. Judge Learned Hand

a. What was the custom?b. Did the carriers provide the radios or did the crew?

i. Will this matter?2. Custom

a. What is the role of custom in proving negligence?i. “In most cases, reasonable prudence is in fact

common prudence; but strictly it is never its measure.”

b. Whether or not there is a custom,i. “There are precautions so imperative that even their

universal disregard will not excuse their omission.”c. Even where there is no custom

i. As in this case, where “there was no custom at all”ii. “Courts must say what is required.”

3. The Role of Customa. Proof of negligenceb. No proof at allc. Evidence of due cared. The Third Restatement, p. 228

i. Compliance with the custom of the community “is evidence that the actor’s conduct is not negligent, but does not preclude a finding of negligence,” and

ii. A departure from custom “in a way that increases risk is evidence of the actor’s negligence but does not require a finding of negligence.’

d. Medical Malpracticei. Lama v. Borras ( 1st Cir. 1994), p. 231

1. What is the defendant/physician’s duty?2. To act reasonably under the circumstances?

a. “The burden of a medical malpractice plaintiff in establishing the physician’s duty is more complicated than that of an ordinary tort plaintiff.”

3. What’s a Plaintiff to do?a. “Instead of simply appealing to the jury’s view of what is

reasonable under the circumstances, a medical malpractice plaintiff must establish the relevant national standard of care.” (p. 233)

i. Relevant National Standard of Care1. How would a plaintiff establish this?

a. Expert testimony b. What role does custom play?

ii. Canterbury v. Spence (DC Cir. 1972), p. 2441. “Prevailing medical practice . . . has evidentiary value . . . but does

not itself define the standard.” (p. 248)a. WHAT DOES?

2. Standard of Carea. The “standard measuring performance of that duty by

physicians, as by others, is conduct which is reasonable under the circumstances.”

b. There is “no uniform standard.”c. The disclosure doctrine is “in essence a requirement of

conduct prudent under the circumstances.”iii. Bly v. Rhoads (Va. 1976), note 8, p. 257

1. The Use of Expertsa. Experts are required to show whether and to what extent

information should be disclosed by the physician to his patient.

2. Legislative Responsea. State legislatures have codified the law of informed

consent.e. Defining a standard of care—statutes and regulations

i. Osborne v. McMasters (Minn. 1889), p. 2651. Does violation of a statute = negligence?

a. “[V]iolation of the statute constitutes conclusive evidence of negligence, or, in other words, negligence per se.”

ii. Gorris v. Scott (1874), note 2, page 268.iii. Kernan v. American Dredging Co. (US 1958) (Note 2, p. 268)iv. Martin v. Herzog (NY 1920), p. 270

1. Was Plaintiff Negligent?a. Is driving without lights “prima facie evidence” of

negligence?2. The role of the jury (according to Cardozo)

a. Noneb. “Jurors have no dispensing power”

3. Who Decides?a. “We think the unexcused omission of the statutory signals

is more than some evidence of negligence.”

b. “It is negligence in itself.” (p. 271)c. Jurors have no dispensing power.

v. Tedla v. Ellman (Note, page 271) 1. Negligence Per Se?

vi. Brown v. Shyne (NY 1926), p. 273 vii. Ross v. Hartman (DC Cir. 1943) (Note 3, page 277)

1. Dram Shop Actsa. Statutes make it illegal to sell (or give?) alcoholic

beverages to a person who thereafter injures either a third person or himself while driving under the influence.

viii. Uhr v. East Greenbush Central School District (NY 1999), p. 280 1. Can the plaintiff bring the claim under the statute?2. Three questions:

a. Is the plaintiff one of the class for whose particular benefit the statute was enacted?

b. Would recognition of a private right of action promote the legislative purpose?

c. Would creation of such a right be consistent with the legislative scheme?

3. Did the plaintiff state a claim for negligence?a. No

f. The Jury’s Role and Proving Negligencei. B & O Railroad v. Goodman (US 1927), p. 290

1. Who decides?a. Jury

2. Always?3. Justice Holmes:

ii. “We are dealing with a standard of conduct, and when the standard is clear it should be laid down once for all by the Courts.”

g. Pokara v. Wabash Ry. (US 1934), p. 291i. Plaintiff’s claim

ii. Defense1. Contributory negligence

iii. How? 1. Plaintiff didn’t get out of his car

iv. Cardozo1. What does he say about Goodman?

a. “Standards of prudent conduct are declared at times by courts, but they are taken over from the facts of life.”

i. What are those “facts of life”?1. “To get out of a vehicle and reconnoiter is

an uncommon precaution, as everyday experience informs us.”

b. Custom? i. Since no one does it, is that what is reasonable, or is

there more to it?

ii. “Besides being uncommon, it is very likely to be futile, and sometimes even dangerous.”

c. Is there a more reasonable way?i. “Instead of helping himself by getting out, he might

do better to press forward with all his faculties alert.”

2. So, what is the rule?a. Does a driver have a duty to get out of his car?b. Does a driver have a duty to stay in his car?

i. Who decides?3. Cardozo cautions against:

a. “framing standards of behavior that amount to rules of law.”

b. What does this mean?i. “In default of the guide of customary conduct, what

is suitable for the traveler caught in a mesh where the ordinary safeguards fail him is for the judgment of a jury.”

4. What about Goodman?a. “The opinion in Goodman’s case has been a source of

confusion in the federal courts to the extent that it imposes a standard for application by the judge, and has had only wavering support in the courts of the states. We limit it accordingly.”

v. Jury Determinations in FELA Cases, note 2, p. 294 1. Federal Employers’ Liability Act

a. Makes every interstate railroad liable in damages for injuries to its employees caused by the negligence of the railroad.

b. Juries given broad discretionc. What is the jury’s role?

i. No role in “clear” casesii. Role where “facts of life” take over

iii. Role where there is “an issue of material fact”iv. What role when “thing speaks for itself”?

1. Res Ipsa Loquiturvi. Byrne v. Boadle (Ex. 1863), p. 299

1. The Standarda. Three elements

i. The event does not occur without negligence,ii. Other responsible causes, including the conduct of

the plaintiff and third parties, are sufficiently eliminated by the evidence, and

iii. The indicated negligence is within the scope of the defendant’s duty to the plaintiff.

vii. The Restatement (Second) of Torts, p. 302

viii. Larson v. St. Francis Hotel (Cal. App. 1948), note 2, p. 302 1. The chair out of the hotel window story

a. The Effecti. If the court applies the doctrine, then . . . .

ii. Negligence is presumedb. Does the plaintiff win?c. Claim may reach the juryd. Court may direct a verdict, if there is enough evidence to

allow for only one possible cause of the injuryix. Newing v. Cheatham (Ca. 1975), note 5, p. 306 x. Colmenares Vivas v. Sun Alliance Insurance Co. (1st Cir. 1986), p. 307

xi. Ybarra v. Spangard (Cal. 1944), p. 316

IV. Plaintiff’s Conducta. Contributory Negligence

i. Butterfield v. Forrester (KB 1809), p. 328ii. Beems v. Chicago, Rock Island & Peoria R.R. (Iowa 1882), p. 329

1. Why the different outcomes?2. What is the Plaintiff’s Duty?

iii. Gyerman v. US Lines Co. (Cal. 1972), p. 333 1. What is the Plaintiff’s Duty?2. What role does custom play?

a. T.J. Hooperi. “Reasonable prudence is in fact common prudence

but strictly it is never its measure.”ii. Custom alone, of course, does not create the

standard of proper diligence.”iii. “Although custom does not fix the standard of care,

evidence of custom is ordinarily admissible for its bearing upon contributory negligence.”

3. What Result?4. Was Plaintiff negligent?5. How?6. Who wins?7. Why?

a. In Gyerman, the defendant violated its statutory duty.8. What was the duty?9. How does that affect liability?

iv. Koenig v. Patrick Construction Corp. (NY 1948), note 1, p. 3381. Ladders and scaffolds

v. Weininger v. Hagedorn & Co. (NY 1998), note , p. 3381. Liability could not be established under the scaffolding statute if

the plaintiff was the “sole cause” of the accident.vi. Dunphy v. Kaiser Foundation Health Plan of Mid-Atlantic States (DC

1997), note 2, p. 3381. A Different Standards for People in Custodial Care?

vii. Padula v. State (NY 1979), note 3, p. 3391. Private Necessity

viii. The emergency situation, note 4, page 339ix. Raimondo v. Harding (NY App. Div. 1973)

1. Is it negligence to run onto a highway to escape a gang attack?x. Smithwick v. Hall & Upson Co. (Conn. 1890), note 5, p. 340

xi. Mahoney v. Beatman (Conn. 1929), note 5, p. 340 1. Another Burning Flax case

xii. LeRoy Fibre Co. v. Chicago, Milwaukee & St. Paul Ry., p. 3421. Is defendant negligent?2. Is plaintiff negligent?3. McKenna holds that the doctrine of contributory negligence “is

entirely out of place.”a. Why?

i. Because “the rights of one man in the use of his property cannot be limited by the wrongs of another.”

4. Justice Holmesa. The plaintiff’s conduct is relevant

i. A very important element in determining the right to recover is “whether the plaintiff’s flax was so near to the track as to be in danger from even a prudently managed engine.”

5. Holmes’ Standarda. Is 5 feet too close?b. Is ½ mile far enough?c. Is 70 feet reasonable?d. Who Decides?

i. What is reasonable is a question for the jury . . . ii. Except in a “clear case.”

xiii. Derheim v. N. Fiorito Co. (Wash. 1972), p. 3451. What if there is a statutory duty to wear a seat belt?2. Some statutes specifically restrict the use of the defense.

a. Helmets?xiv. Fuller v. Illinois Central RR (Miss. 1911), p. 350

1. Contributory negligence?xv. Mills v. Armstrong (The Bernina) (HLE 1888), p. 355

1. Can you impute the negligence of one employee to another?2. From driver to passenger?

xvi. Hartfield v. Roper (NY 1839), note 2, p. 3591. A child’s action was barred because of his parents’ negligence in

allowing him to wander into a roadway, where he was struck and injured.

2. Case has been repudiated by common law or statute in the states.b. Assumption of Risk

i. Lamson v. American Axe & Tool Co. (Mass. 1900), p. 360

ii. Murphy v. Steeplechase Amusement Co. (NY 1929), p. 365 iii. Russo v. The Range, Inc. (Ill. App. 1979), note 2, p. 368

1. Assumption of Risk?a. “The person using this ticket so assumes all risk of personal

injury.”iv. Desai v. Silver Dollar City, Inc. (Ga. App. 1997), note 2, p. 368

1. CAUTION: DO NOT EXIT RAFT UNTIL ATTENDANT INSTRUCTS YOU TO. . . . FAILURE TO ABIDE BY THESE RULES MAY RESULT IN INJURY TO YOURSELF OR OTHERS.

v. Disney World Resorts Mission: SPACE, note 2, p. 368 1. Warnings

a. Nauseab. Headachec. Dizzinessd. Disorientatione. Incidents

i. 194 people, most of whom were over 55 years of age, treated for a variety of ailments

f. Dizzinessg. Nauseah. Vomitingi. Chest painsj. Irregular heart beats k. Death

vi. Maisonave v. the Newark Bears, Gourmet Services (NJ Super. Ct. App. Div. 2004), note 3, p. 369

1. The Plaintiffa. An experienced baseball player

2. The Defendanta. Long-time fanb. Hit while reaching into his wallet to pay

vii. Maddox v. City of NY (NY 1985), note 4, p. 370 1. Primary and Secondary Assumption of Risk

viii. Meistrich v. Casino Arena Attractions, Inc. (NJ 1959), note 5, p. 3711. Primary assumption of risk

a. Defendant was not negligent or did not breach the duty owed.

2. Secondary assumption of riska. An affirmative defense to an established breach of duty.

3. Ultimate question:a. Whether a reasonably prudent man would have moved (or

not engaged in the activity) in the face of a known risk.ix. Marshall v. Ranne (Tex. 1974), note 6, p. 372x. ADM Partnership v. Martin (MD 1997), note 6, p. 373

1. Plaintiff Martin fell while making a delivery to defendant’s premises

2. Secondary assumption of risk?xi. Guiffrida v. Citibank Corp. (NY 2003), note 7, p. 374

1. Violation of inspection requirements xii. Dalury v. S-K-I Ltd. (Vt. 1995), p. 374

1. The Agreementxiii. Obstetrics & Gynecologists Ltd. V. Pepper (Nev. 1985), note 2, p. 378 xiv. Sosa v. Paulos (Utah 1996), note 2, p. 379

1. Can parties contract out of the tort rules, by “agreeing” to arbitrate, that now govern medical malpractice litigation?

c. Comparative Negligencei. From Contributory Negligence to . . .

1. The application of contributory negligencea. Butterfield v. Forrester (1809) (the log in the road)

Gyerman v. US Lines Co. (1972) (the fishmeal case)2. The problem with contributory negligence

a. It was a complete bar to recovery3. Judicial responses to contributory negligence bar

a. Refuse to apply itb. Osborne v. Salvation Army (1939)(the window washer

case)c. LeRoy Fibre Co. (1914) (700 tons of straw 70 feet from

RR)i. Apply last clear chance doctrine

d. Fuller v. Illinois Central RR (1911)(man riding his one-horse wagon did not observe the train)

ii. Li v. Yellow Cab Co. of Cal. (1975), p. 3841. Plaintiff’s claim

a. Defendant was negligent2. Defendant’s defense

a. Plaintiff was negligentb. Plaintiff’s negligence is a complete bar to recovery

3. Trial courta. Plaintiff is barred

4. The Supreme Court of Californiaa. The Court questions the validity of the old ruleb. That completely bars recovery when . . .

i. “the plaintiff’s negligent conduct has contributed as a legal cause in any degree to the harm suffered by him.”

ii. The Court holds that the system of contributory negligence “must give way to a system of comparative negligence, which assesses liability in direct proportion to fault.”

iii. Comparative Negligence1. The “pure” form

a. The assessment of liability is in proportion to fault.2. The “50 percent” form

a. The assessment of liability is based on fault up to the point at which the plaintiff’s negligence is equal to or greater than that of the defendant’s.

b. When Negligence (P) ≥ Negligence (D),c. Plaintiff is barred from recovery.

iv. South Carolina1. “For all causes of action arising on or after July 1, 1991, a plaintiff

in a negligence action may recover damages if his or her negligence is not greater than that of the defendant.”

v. Nelson v. Concrete Supply Co., 303 S.C. 243, 399 S.E.2d 783 (1991) d. What happens to defenses like last clear chance and assumption of risk?

i. Spahn v. Town of Port Royal (SC 1998), note 5(a), p. 3931. Rationalization for “last clear chance as a matter of proximate

cause is simply unnecessary where the jury may compare the parties’ negligence.”

ii. Knight v. Jewett (Cal. 1992), note 5(b), p. 3931. Assumption of risk continues to operate after Li.

iii. Bohan v. Ritzo, note 5(c), p. 3941. State statute holding dog owners strictly liable.2. Court applied state comparative negligence statute and strict

liability statute, by looking at the “comparative fault” of both parties.

iv. Morgan v. Johnson (battery of drunken woman), note 5(d), p. 395v. Blaxovic v. Andrich (barroom brawl), note 5(d), p. 395

vi. Hardy v. Monsanto Enviro-Chem Systems (working conditions), note 5(e), p. 395

1. “[A]t some point a worker must be charged with some responsibility for his own safety-related behavior.”

vii. Roy Crook & Sons, Inc. v. Allen (5th Cir. 1985) (court refused to reduce the recovery in a wrongful death case under the FELA, where there was explicit language in the statute).

viii. Amend v. Bell (Wash. 1977), note 5(f), p. 3961. Citing Derheim v. Fiorito (p. 346), which rejected the seat belt

defense, as still good law even under the state’s pure comparative negligence rule.

2. Seat belt defense3. State statutes allow for reduction in damages award.4. See, e.g., Iowa Code § 321.449 (reduction limited to 5% of

damages award).ix. Imputed parental negligence

1. Restatement (Second) of Tortsa. Rejects imputation of parent’s negligence to child.

2. By legislation3. State4. Federal Employers’ Liability Act, p. 3975. Who decides?6. How can a jury decide?

a. Special verdict forms

V. Multiple Defendantsa. Joint and Several Liability

i. Multiple Defendants1. Defendant responsibility2. Joint liability

a. Each of several defendants is responsible for the entire loss that they all caused in part.

3. Several liabilitya. Each defendant is responsible only for his proportionate

share of the loss.ii. Union Stock Yards Co. of Omaha v. Chicago, Burlington & Quincy RR

(US 1905), p. 405 1. The defective nut2. The Rule

a. Both the railroad company and the terminal company failed by proper inspection to discover the defective brake.

b. The terminal company, because of its fault, has been held liable to one sustaining an injury thereby.

c. The terminal company cannot recover indemnity or contribution from the railroad company.

iii. California Civil Procedure Code1. Pro rata liability allowing each defendant to recover from his

codefendants any amount above his own share.iv. American Motorcycle Ass’n v. Superior Court (Cal. 1978), p. 409

1. Whom did plaintiff Glen sue?a. American Motorcycle Associationb. Viking Motorcycle Club

2. What response?a. Defendants filed an answer, denying negligence and

asserting an affirmative defense that . . . b. Plaintiff’s own negligence was the proximate cause of his

injuries.3. American Motorcycle Association sought leave of court to file a

cross-complaint against Glen’s parents.a. For what?

i. Negligent supervision of minor son4. Why is the AMA and Superior Court named in the caption?

a. Trial court denied AMA’s motion for leave to file cross-complaint.

b. AMA petitioned the Court of Appeal for writ of mandate to compel the trial court to grant its motion.

c. Court of Appeal issued one.d. Supreme Court ordered a hearing on its own motion.

5. The question before the courta. Can the AMA bring a claim against Glen’s parents?

6. Can comparative negligence and joint and several liability stand together?

a. Who’s negligent (maybe)?i. Plaintiff

ii. Plaintiff’s parentsiii. American Motorcycle Associationiv. Viking Motorcycle Club

7. Maybe a better question would be:a. Who should pay?b. Under the Li decision, who should pay?

i. Any negligent party “in direct proportion to fault.”1. Plaintiff?2. Defendants?

8. A concurrent tortfeasor is liable for the whole of an indivisible injury whenever his negligence is a proximate cause of that injury.

v. McDermott, Inc. v. AmClyde & River Don Castings, Ltd., page 4201. FACTS of settlement/trial

a. Settlementi. 5 Defendants

b. First question to ask:c. Are they jointly or severally liable?

i. AmClyde is 32% responsibleii. River Don Castings is 38% responsible

d. How do we know?i. Jury tells us

e. Verdicti. Jury also tells us that the plaintiff’s loss is $2.1

millionf. Where have all the defendants gone?

i. 3 defendants settle for $1 milliong. Plaintiff’s loss is 2.1 million.

i. Who pays it and how?ii. Three defendants settled before trial and paid $1

millioniii. Jury told us that

1. AmClyde is 32% responsible2. River Don is 38% responsible

iv. What impact does the settlement have?

v. General rule: When a plaintiff settles with one of several tortfeasors, the nonsettling defendants are entitled to a credit of the settlement. (p. 369)

h. What does this mean?i. $2.1 million - $1 million = $1.1 million

ii. Who pays the plaintiff the remaining $1.1. million?1. Possible Answer

a. AmClyde could pay 32% of $1.1 million ($352,000), and River Don could 38% of $1.1 million ($418,000)?

i. What would plaintiff recover?i. $1 million + $352,000 + $418,000 = $1,760,000

ii. $1,760,000 is less than $2.1 million.j. Another Possible Answer

i. AmClyde could pay 32% of $2.1 million ($672,000), and River Don could pay 38% of $2.1 million ($798,000).

ii. $1 million + $672,000 + $798,000 = $2,470,000iii. $2,470,000 is more than $2.1 million

1. Is this a bad result?k. What If ?????

i. Jury Verdict came in at $4 million?ii. AmClyde could pay 32% of $4 million

($1,128,000), and River Don could pay 38% of $4 million ($1,520,000)

iii. Settling defendants paid $1 million, which is less than their fair share (30% of $4 million is $1,200,000).

iv. Should AmClyde and River Don be able to sue for contribution?

b. Vicarious Liabilityi. Ira S. Bushey & Sons, Inc. v. US (2d Cir. 1968), p. 429

1. Question:a. Was the employee acting “within the scope of his

employment”?. . . serving the purpose of the employer?2. Court here says ----

a. NO3. Was employee’s conduct “unforeseeable”?

a. The basis for respondeat superiori. A “business enterprise cannot justly disclaim

responsibility for accidents which may fairly be said to be characteristic of its activities.” p. 430

4. An Employer May be Vicariously Liablea. Where conduct “may fairly be said to be characteristic of

its activities.”

b. Where conduct is “within the scope of employment or agency relationship.”

5. How is the drunken sailor’s conduct characterized?6. Can an employer be vicariously liable for intentional torts?

a. If they are committed within the scope of employment7. Respondeat superior covers

a. Small detours or deviationsb. Not large onesc. Driving four blocks out of the way on a personal errand?

ii. Small (Riley v. Standard Oil Co. (NY 1921), note 3, p. 4341. Going to church before driving employer’s truck to worksite

a. It is a question for the jury to decide. (Broadway v. Kelly Bros. Contractors (Miss. 2000), note 3, p. 434

iii. Lisa M. v. Henry Mayo Newhall Mem. Hosp. (Cal. 1995), note 4, p. 4341. Hospital technician committed sexual assault on the plaintiff

a. Assault not within the scope of employmentiv. Kephart v. Genuity, Inc. (Cal. App. 2006), note 4, p. 435

1. Road rage a. Incident too far removed by time from any requirement of

defendant’s businessv. Schechter v. Merchants Home Delivery, Inc. (DC 2006), note 5, p. 435

1. Two employees robbed customer while installing a washing machine

a. Intentional tort, not within scope of employment, but Court allowed case to go to the jury on issue of whether the employer was negligent for hiring, training, or retaining the employees.

vi. Meritor Savings Bank v. Vinson (US 1986), note 6, p. 435 1. Supreme Court rule for determining whether an employer could be

vicariously liable for a supervisor’s harassment of a subordinate.vii. Burlington Ind. v. Ellerth (US 1998), note 6, p. 436

1. Sexual harassment by a supervisor is not conduct within the scope of employment, but Employer could be vicariously liable, depending on the action taken and the policy for addressing harassment.

2. The “borrowed servant” ruleviii. Morgan v. ABC Mfr. (La. 1998), note 7, p. 436

1. Indemnificationa. Can the employer sue the employee for money paid to the

third party?i. YES

2. Joint Enterprisea. Partners will be vicariously liable for the wrongs of their

partners.b. “mere association” not enough

ix. Heick v. Bacon (Iowa 1997), note 10, p. 438

x. Independent Contractors, note 11, p. 438 1. Business entities can be liable for the torts of employees, but not

independent contractors.2. The difference

a. An independent contractor is one who, by virtue of his contract, possesses independence in the manner and method of performing the work he has contracted to perform.

b. The employee is controlled by his employer.3. Independent Contractors

a. The testb. The right to dictate and control the manner, means, and

details of performing the servicexi. Petrovich v. Share Health Plan of Ill. (Ill. 1999), p. 440

1. Employer is liable for tortious acts committed by an employee acting within the scope of employment.

2. Who is the plaintiff?3. Who is the defendant?4. The question is:

a. Is the physician an employee?5. The HMO’s claim

a. Physician is an independent contractorb. No vicarious liability exists for the actions of independent

contractorsc. Unless . . . .

i. First question1. Should there be a different rule for HMOs?

a. Court holds:i. NO

ii. There is no exception to the “fundamental” principle that organizations are accountable for their tortious actions and those of their agents.

ii. Second question1. Did the physician act with “apparent

authority”?a. Rule:

i. A principal “will be bound not only by the authority that it actually gives to another, but also by the authority that it appears to give.”

ii. This protects innocent third parties.

2. Elements necessary to prove apparent authority

a. Holding outi. Plaintiff must prove that the

HMO held itself out as the provider of health care, without informing the patient that the care is given by independent contractors

b. Reasonable reliancei. Plaintiff must prove that the

patient justifiably relied upon the conduct of the HMO by looking to the HMO to provide health care services, rather than to a specific physician.

iii. Third question1. Did the physician act with “implied

authority”?a. The “cardinal” considerationb. Whether the alleged agent retains the

right to control the manner of doing the work. (manner, means, and details)

c. Factorsi. Who decides what

procedures?ii. Who decides what to pay?

iii. What about a physician’s exercise of medical judgment?

iv. Who decides? JURY!VI. Causation

a. Cause in Facti. New York Central R.R. v. Grimstead (2d Cir. 1920), p. 451

1. Who is the plaintiff?2. Who is the defendant?

a. Railroad company3. 2 questions sent to the jury:

a. whether the defendant was negligent in failing to equip the barge with life-preservers

b. whether, if there had been a life-preserver on board, plaintiff would have been saved from drowning.

4. Appellate courta. What was the proximate cause of death?

i. Falling into the water

1. If proximate cause of death was falling into the water, then the question is:

2. What caused plaintiff to fall in?a. Defendant’s negligence?

i. No, the tug that bumped the barge caused him to fall in.

ii. Could a life-preserver have saved the decedent from drowning?

1. Jury could answer this only with “pure conjecture and speculation.”

ii. Haft v. Lone Palm Hotel (Ca. 1970), note 2, p. 454 iii. Schwabe v. Custer’s Inn Associates, LPP (Mont. 2000), note 2, p. 455 iv. Zuchowicz v. US (2d Cir. 1998), p. 455 v. General Electric Co. v. Joiner (US 1997), p. 462

1. Plaintiff’s expert offered animal studies to prove that exposure to PCBs contributed to his cancer.

vi. Daubert v. Merrell Dow Pharmaceuticals, Inc. (US 1993), 1. A trial court may admit all scientific testimony or evidence that is

“not only relevant, but reliable.”2. Changed the more stringent Frye rule

a. Allowed as admissible only expert testimony that had been “generally accepted” as reliable by the scientific community.

b. Excluded cutting-edge evidence3. Plaintiff’s expert offered animal studies to prove that exposure to

PCBs contributed to his cancer.a. Proof (Or Lack Thereof)

4. Defendant argued that plaintiff’s expert testimony did not prove that exposure to PCBs cause cancer.

5. Pursuant to Daubert, district court had to decide whether to admit the expert evidence.

a. It has to be “relevant” and “reliable.”6. District Court Decision

a. Expert testimony did not rise above “subjective belief or unsupported speculation” and was therefore inadmissible.

7. Appellate Reviewa. Abuse of discretionb. Court of Appeals did not abuse its discretion

i. Studies relied on by plaintiff’s experts involved infant mice (not adult humans

ii. Massive doses of PCBs (more than plaintiff’s exposure)

iii. Injected directly into the mice (on plaintiff’s skin)iv. Cancer mice got was different than plaintiff’s

cancervii. Beyond Daubert

1. District court’s gatekeeper function applies toa. Scientific evidenceb. Technical evidence

viii. Kumho tire Co. V. Carmichael (US 1999), note 1, p. 466 ix. Doe v. Ortho-Clinical Diagnostics (M.D.N.C. 2006), note 3, p. 467

1. Did thimerosal, administered to the plaintiff’s mother during pregnancy, cause plaintiff’s autism?

a. 2 levels of causation:i. Does Thimerosal cause the type of injury plaintiff

suffered?ii. Did Thimerosal cause plaintiff’s injury?

2. Court first reviews plaintiff’s expert testimonya. Dr. Geier did not have the formal qualifications as a

pediatric neurologistb. Dr. Geier could not point to a single study, including his

own writing, that conclusively determined that the amount of thimerosal when given not to the fetus but to the mother could cause autism.

c. Dr. Geier’s conclusion that autism can be caused by thimerosal is flatly contradicted by all of the epidemiological studies available at that time.

x. Agent Orange1. $180 million settlement for servicemen and their offspring who

claimed that dioxin caused a large class of serious but undifferentiated illnesses and birth defects.

2. The suits by victims who opted out of the settlement were dismissed because the evidence (including animal and epidemiological studies) did not support proof of causal connection.

xi. Herskovits v. Group Health Cooperative (Wash. 1983), p. 470 1. Plaintiff was sick and went to soon-to-be defendant, Group Health

Coop.a. Plaintiff had lung cancer--stage 1 tumor.b. Defendant failed to diagnose.c. Plaintiff returned to health care provider.d. Defendant diagnosed cancer, now a stage 2 tumor.e. Reduction of Chance of Survival

i. When tumor was stage 1, plaintiff had a 39% chance of survival.

ii. When tumor was stage 2, plaintiff’s chance of survival was 25%.

2. Plaintiff’s Argumenta. Expert testimony that plaintiff’s injury was a reduced

chance of survival.i. 39% - 25% = 14%.

3. Defendant’s Argument

a. Plaintiff cannot prove that defendant’s negligence caused his harm (death) if plaintiff could not prove that he had at least a 51% chance of survival.

4. Issuea. Whether a patient, with a less than a 50% chance of

survival, has a cause of action against the hospital and its employees if they are negligent in diagnosing a lung cancer which reduces his chances of survival by 14%.

5. General Rulea. A person who negligently renders aid and consequently

increases the risk of harm to those he is trying to assist is liable for any physical damages he causes.

6. The “Ultimate” Questiona. Whether the relationship between the increased risk of

harm and Herskovits’ death is sufficient to hold Group Health responsible.

7. Conclusiona. Plaintiffs need not show that Herskovits “probably” would

have had a 51% chance of survival if the hospital had not been negligent.

b. Medical testimony of a reduction of chance of survival from 39 percent to 25 percent is sufficient evidence to allow the proximate cause issue to go to the jury.

8. The Court’s Rationalea. Court focused on whether the negligence caused the death.

i. But is this the right question?ii. Better Rationale?

1. Plaintiff’s harm was not death, but rather loss of chance to survive.

iii. Court’s measure of damages may reflect this.xii. Kingston v. Chicago & N.W. Ry. (Wis. 1927), p. 477

1. Plaintiff’s Propertyxiii. Summers v. Tice (Cal. 1948), p. 485

1. Two Defendantsa. First question:

i. Are the defendants jointly or severally liable?ii. Defendants argue they are “not joint tortfeasors, and

thus jointly and severally liable, as they were not acting in concert”

iii. Court suggests that defendants were jointly liable, but . . .

b. Second question:i. Were both defendants negligent?

ii. Court held that both defendants were negligentc. Third question:

i. Whose negligence caused plaintiff’s harm?

ii. Court held that both defendants’ negligence caused the harm.

2. The Evidencea. Can this be?

i. Clear that only one gun shot plaintiff.ii. Clear that the trial court “was unable to ascertain

whether the shots were from the gun of one defendant or the other or one shot from each of them.”

iii. The shot that caused the most damage (to plaintiff’s eye) could only have come from one gun.

3. Holding a. Shift the burden to each defendant to absolve himself if he

can.xiv. Skipworth v. Lead Industries Ass’n (Pa. 1997), p. 488

1. The Problema. Plaintiffs could not identify what company manufactured

the paint.2. The Solution?

a. Sue all of the manufacturers of lead paintb. Market share liability

3. Who are the defendants?a. All of the manufacturers of lead paint used in homes from

1970 until 1977, when production of lead paint ceased.4. Who pays?5. How does plaintiff prove that any one defendant caused the harm?

a. He can’t.6. Market share liability provides an exception to the general rule that

a plaintiff must establish that the defendant proximately caused his or her injury.

7. Question:a. Does the market share liability theory apply here?b. The time period is 100 years of production of the paint that

may have been at issue herec. Plaintiffs cannot identify any particular application of paint

which caused the child’s health problems.d. Lead paint is not a “fungible” product

xv. Sindel v. Abbott Labs, (Cal. 1980)1. A mother took DES while pregnant

a. The child developed cancer.2. Proof that DES taken by a pregnant woman affects unborn child.3. Problem:

a. More than one company manufactured DES.b. Plaintiff cannot determine which company manufactured

the DES her mother took.

4. The Sindel court held that the plaintiff did not have to identify which particular manufacturer made the DES taken by her mother.

5. Factors:a. All the named defendants are potential tortfeasorsb. The harmful products are identicalc. Plaintiff is unable to identify which defendant caused her

injury through no fault of her ownd. Substantially all of the manufacturers which created the

defective products during the relevant time are named as defendants.

xvi. .Alternative Liability Theory1. Where the conduct of two or more actors is tortious, 2. And it is proved that harm has been caused to the plaintiff only by

one of them, but there is uncertainty as to which one has caused it,3. The burden is upon each such actor to prove that they have not

caused the harm.xvii. Summers v. Tice

1. Defendants did not act simultaneously2. All manufacturers are not named as defendants3. Some named defendants entered and/or left the market.4. Civil Conspiracy?

a. No.b. No evidence that defendants were acting in concert.c. No evidence of malice.

xviii. Thomas v. Mallett (Wis. 2005), note 3, p. 495 1. Risk-contribution theory

a. Lead carbonatei. The active ingredient in lead paint

ii. A fungible product1. Court allowed plaintiff injured by lead

poisoning to sue, but plaintiff retained burden of establishing causation.

b. Did the lead paint poisoning cause the harm?i. Could be: genetics, birth complications, severe

environmental deprivation, inadequate parenting, parental emotional disorders, child abuse

b. Proximate Cause (Physical injury)i. Ryan v. NY Central R.R. (NY 1866), p. 497

1. The “General Principle”a. Every person is liable for the consequences of his own acts.

2. All consequences?a. Every person is liable in damages for the proximate results

of his own acts, but not for remote damages.3. The “natural and expected result”4. The “ordinary and natural result”

a. Destruction that is not the “natural and expected result of the first firing.”

5. This Casea. The damages incurred are not the immediate but the remote

result of the negligence of the defendants.6. Rationale

a. In a country where wood, coal, gas and oils are universally used, where men are crowded into cities and villages, where servants are employed, and where children find their home in all houses, it is impossible, that the most vigilant prudence should guard against the occurrence of accidental or negligent fires.

7. What is a homeowner to do?a. A man may insure his own house, or his own furniture, but

he cannot insure his neighbor’s building or furniture . . . .ii. City of Lincoln (1889), note 2, p. 500

1. Lost the compass, log, log glass, and charts2. Captain could not bring the ship to port

a. Was the damage the “natural and reasonable result of the defendant’s act”?

b. What is the “real cause” of the loss of the vessel?i. The fact that the captain was, by the collision,

deprived of the means of ascertaining his position and of properly navigating his ship.

iii. Tuttle v. Atlantic City R.R. (NJ 1901), note 3, p. 501 iv. Berry v. Sugar Notch Borough (Pa. 1899), p. 502

1. Argument for defendant?a. Plaintiff was negligently speeding

2. Causationa. Plaintiff’s negligence (his speed) was the “immediate

cause” of his injuries.b. If plaintiff was not speeding, limb would have fallen before

he got there.3. Holding

a. While not denying the “ingenuity” of the defendant’s argument, court held:

i. That plaintiff’s speed brought him to the place of the accident at the moment of the accident was the “merest chance, and a thing which no foresight could have predicted.”

v. Central of Ga. Ry v. Price (Ga. 1898), note 1, p. 504 1. The negligence of the company in passing her station was therefore

not the natural and proximate cause of her injury.2. Intervening Factor

a. There was the interposition of a separate, independent agency

b. The negligence of the hotel proprietor3. Plaintiff’s injuries were

a. “unusual” b. not “foreseen”c. could not have been provided against by the highest

practicable carevi. Hines v. Garrett (Va. 1921), note 1, p. 504

vii. Dillon v. Twin State Gas & Electric Co. (NH 1932), note 2, p. 505 1. The current killed the plaintiff2. But what would his damages be?

viii. Pittsburg Reduction Co. v. Horton (Ark. 1908), note 3, p. 505 1. The “Chain” of Events

a. Plantb. Schoolc. Boyd. Mothere. Boyf. Another boy

ix. Brower v. NY Central & H.R.R. (NJ 1918), p. 507 x. Wagner v. International Ry. (NY 1921), p. 512

1. There must be unbroken continuity a. between the commission of the wrong and the effort to

avert its consequences.2. Questions to ask

a. Whether plaintiff’s fall was due to the defendant’s negligence and

b. Whether plaintiff in going to the rescue, as he did, was foolhardy or reasonable in the light of the emergency confronting him, were questions for the jury.

xi. In re Polemis & Furness, Withy & Co. (KB 1921), p. 515 1. The question of what a reasonable man might foresee is of

importance in considering the question whether there is evidence for the jury of negligence or not . . .

a. But when it has been once determined that there is evidence of negligence,the person guilty of it is equally liable for its consequences, whether he could have foreseen them or not.

2. Bankes, L.J.a. I consider that the damages claimed are not too remote.

3. Warrington, L.J.a. In the present case it is clear that the act causing the plank

to fall was in law a negligent act, because some damage to the ship might reasonably be anticipated.

b. If this is so then the appellants are liable for the actual loss, that being on the findings of the arbitrators the direct result of the falling board.

4. Scrutton, L.J.

a. In the present case it was negligent in discharging cargo to knock down the planks of the temporary staging, for they might easily cause some damage either to workmen, or cargo, or the ship.

b. The fact that they did directly produce an unexpected result, a spark in an atmosphere of petrol vapour which caused a fire, does not relieve the person who was negligent from the damage which his negligent act so directly caused.

xii. Palsgraf v. Long Island R.R. (NY 1928), p. 519 1. Cardozo, C.J.

a. “Proof of negligence in the air, so to speak, will not do.”b. Negligence is not actionable unless it involves the invasion

of a legally protected interest, the violation of a right.c. Causation?

i. The law of causation, remote or proximate, is . . . foreign to the case before us.

ii. If there is no tort to be redressed, there is no occasion to consider what damage might be recovered if there were a finding of a tort.

iii. The consequences to be followed must first be rooted in a wrong.

2. Andrews, J., dissenting a. Negligence may be defined roughly as an act or omission

i. which unreasonably does or may affect the rights of others, or

ii. which unreasonably fails to protect oneself from the dangers resulting from such acts.

iii. “Proof of negligence in the air, so to speak, will not do.”

iv. If a man’s act has a tendency to harm someone, it harms him a mile away as surely as it does those on the scene.

v. Unreasonable risk being taken, its consequences are not confined to those who might probably be hurt.

vi. When injuries do result from our unlawful act we are liable for the consequences.

vii. It does not matter that they are unusual, unexpected, unforeseen and unforeseeable.

viii. But . . . There is one limitation.1. The damages must be so connected with the

negligence that the latter may be said to be the proximate cause of the former.

xiii. Marshall v. Nugent (1st Cir. 1955), p. 532 1. Plaintiff:

a. Man who got out to warn oncoming cars of danger

2. Defendant(s):a. Man (Nugent) who hit man who got out to warn . . .b. Oil company that owned truck that originally forced

plaintiff (and his father-in-law, the driver) off the road3. Who is liable?

a. Is Liability of Oil Company Cut Off?b. The injury plaintiff received by being struck by the Nugent

car was not remote, either in time or place, from the negligent conduct of defendant [oil company’s] servant . . .

xiv. Union Pipe Co. v. Allbritton (Tex. 1995), note, p. 535 1. Plaintiff’s injuries not proximately caused by defendant, whose

negligence caused the fire.2. The circumstances surrounding plaintiff’s injuries “are too

remotely connected” with defendant’s conduct or pump to constitute a “legal cause” of her injuries.

xv. Wagon Mound (No. 1) (P.C. Aust. 1961) p. 536 1. Like Polemis?

a. Court observes that it does not seem “consonant with current ideas of justice or morality that for an act of negligence, however slight or venial, which results in some trivial foreseeable damage the actor should be liable for all consequences however unforeseeable and however grave, so long as they can be said to be ‘direct.’”

b. A man must be considered to be responsible for the probable consequences of his act.

c. What are “the probable consequences” of an act?i. Those that are “natural or necessary”?

1. No2. Those that a reasonable man ought to have

foreseen.d. The Test for Determining Liability

i. It is not “the hindsight of a fool,” but the “foresight of the reasonable man which alone can determine responsibility.”

2. Is Polemis actually different than Wagon Mound (No. 1)?a. Owner of a ship destroyed by the fire on the dock sued the

defendants who had carelessly discharged oil from their ship.

b. No contributory negligence or assumption of risk that may have been relevant in Wagon Mound (No. 1).

3. Different result?a. The Egg-Shell Plaintiff Doctrine

i. Where a defendant negligently strikes a person whose skull is so fragile that it breaks by a comparatively slight low, all courts agree that the

defendant is liable for the wholly unexpected breaking.

ii. True for physical as well as other kinds of harm.iii. If a person negligently incapacitates another and

that other person earns $100,000 per year, the defendant will be liable for it all. Even if the amount of liability is unforeseeable.

xvi. Virden v. Betts and Beer Construction Co. (Iowa 2003), p. 545 1. District court granted defendants’ motion for summary judgment *2. Defendants who had installed the ceiling were negligent, but their

negligence was not the proximate cause of plaintiff’s harm.3. Proximate cause is usually a question of fact for the jury.

a. Two Components to Proximate Causei. The defendant’s conduct must have in fact caused

the damages, and ii. The policy of the law must require the defendant to

be legally responsible for them.4. What “Caused” the Plaintiff’s Harm?

xvii. Hebert v. Enos (Mass. App. 2004), p. 547 1. District court granted defendant’s motion for summary judgment

a. Plaintiff’s injury was “highly extraordinary and ‘so remote in everyday life’ as to preclude a finding that the alleged negligence was a legal cause of [plaintiff’s] injuries.”

2. Appellate Court Agreesa. Plaintiff’s injuries were “the consequence of the type of

unforeseeable accident for which we do not hold the defendant responsible in tort.”

b. Plaintiff’s harm was “so highly extraordinary that the defendant cannot be required to guard against it.”

3. Unbroken Chain?xviii. Even though defendant’s negligence can be connected in an “unbroken

causal chain” to the resultant harm, defendant need not be liable.c. Proximate Cause (Emotional distress)

i. Mitchell v. Rochester Ry. (NY 1896), p. 549 1. Damages Here

a. Faintingb. Miscarriage and consequential illness

2. Recoverable?a. Proximate damages are such as are the ordinary and natural

results of the negligence charged and those that are usual and may, therefore, be expected.

3. Is it “Quite Obvious”?a. Plaintiff’s injuries do not fall within the rule as to

proximate damages. b. Plaintiff’s injuries were plainly the result of an accidental

or unusual combination of circumstances, which could not

have been reasonably anticipated, and over which the defendant had no control.

4. Resulta. Plaintiff’s damages were too remote to justify a recovery.b. Would it have mattered if she was physically

touched/injured?ii. Dillon v. Legg (Cal. 1968), p. 553

1. Plaintiffsa. Child who was hitb. Mother who saw the accidentc. Sister who was closer and also saw the accident

2. Zone of Danger Rulea. Basic Tortsb. Court dismisses fraudulent claim concerns.c. Court applies basic rules of tort law.

i. 1st Step1. Does defendant owe a duty to plaintiff?2. Is risk foreseeable?

a. Factors:i. whether plaintiff was located

near the scene of the accident?

ii. whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident?

iii. whether plaintiff and the victim were closely related?

d. An Objective Standardi. The question is

1. Whether the ordinary man under such circumstances should reasonably foresee the accident and loss.

e. Application i. Who can recover?

1. An unmarried cohabitant?2. A close friend?3. Grandparent?

ii. Does plaintiff have to be there?1. What if plaintiff hears it?2. What if plaintiff sees it on TV?3. What if plaintiff comes upon scene later?

VII. Affirmative Dutiesa. The Duty to Rescue

i. Buch v. Amory Mfg. Co. (NH 1897), p. 565 1. Duty to rescue?

ii. Hurley v. Eddingfield (Ind. 1901), p. 568 iii. Montgomery v. National Convoy & Trucking Co. (SC 1937), p. 579

1. Duty to warniv. Duty and Causation

b. Duties of Owners and Occupiersi. Robert Addie & Sons, Ltc. V. Dumbreck (AC 1929), p. 584

1. Who is the Plaintiff?2. Three possible categories for people on other people’s land:

a. 1. By invitationb. 2. With leave and licensec. 3. As trespasser

ii. Invitee/Licensee1. Invitee

a. On the land for some purpose in which he and the proprietor have a joint interest

2. Licenseea. On the land without invitation, but permitted to use the land

or with proprietor’s knowledge3. Trespasser

a. On the land without invitation of any sort and whose presence is unknown or objected to

4. Duties Oweda. Duty owed to invitees:

i. Highest dutyii. Duty to take reasonable care that the premises are

safe.b. Duty owed to licensee:

i. Less stringent than duty owed to inviteesii. The occupier has no duty to ensure that the

premises are safe, but he is bound not to create a trap or allow a concealed danger to exist upon the premises, which is not apparent to the visitor, but which is known—or ought to be known—to the occupier.

c. Duty owed to trespassersi. None, except To refrain from doing a willful act

involving something more than the absence of reasonable care.

iii. Maalouf v. Swiss Confederation (D.D.C. 2002), note 1, p. 590 1. Attractive Nuisance

a. Does the doctrine change the trespasser rule?b. Applies only when the owner “knows or has reason to

know that children are likely to trespass.”c. Section 339 of the Restatement (Second) of Torts, p. 589

i. The owner has no duty to investigate the land to determine whether trespassing children are present.

iv. An Invitee1. Invitee

a. On the land for some purpose in which he and the proprietor have a joint interest

b. Restatement (Second) of Torts, p. 591i. An invitee is either a public invitee or a business

visitor.ii. A public invitee is a person who is invited to enter

or remain on land as a member of the public for a purpose for which the land is held open to the public.

iii. A business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land.

v. Licenseea. On the land without invitation, but permitted to use the land

or with proprietor’s knowledgevi. Lemon v. Busey (Kan. 1969), note 4, p. 592

vii. Post v. Lunney (Fla. 1972), note 4, p. 592viii. Knorpp v. Hale (Tex. App. 1998), note 4, p. 592

1. Duties to Firefighters, Police Officers, and Other Public Officialsix. Rowland v. Christian (Cal. 1968), p. 593

1. Status2. Is friend a invitee or a licensee?3. What is a social guest?

a. A licensee4. What is the duty owed?

a. Where the occupier of land is aware of a Concealed condition involving an unreasonable risk of harm and is aware that a person on the premises is about to come in contact with it, he will be negligent if he does not warn of or repair the condition.

x. Sargent v. Ross (NH 1973), note 2, p. 6001. A landlord owes a general duty of care to all persons on his

premises.xi. Ouellette v. Blanchard (NJ 1976), note 2, p. 600

1. Whatever the social and policy considerations that led to the judicial creation of the invitee, licensee and trespasser immunities, they no longer retain their viability under modern conditions and it is fitting and proper that they be laid to judicial rest.

2. We can no longer justify adherence to a system ‘which is at the same time complex, confusing, inequitable, and, paradoxically, nonuniform.’

xii. Peterson v. Balach, 294 Minn. 161, 168, 199 N.W.2d 639, 644 (1972). 1. Thus, “we hold that henceforth in New Hampshire owners and

occupiers of land shall be governed by the test of reasonable care under all the circumstances in the maintenance and operation of their property.”

2. The character of and circumstances surrounding the intrusion will be relevant and important in determining the standard of care applicable to the landowner.

3. When the intrusion is not foreseeable or is against the will of the landowner many intruders will be denied recovery as a matter of law.

4. A landowner cannot be expected to maintain his premises in a safe condition for a wandering tramp or a person who enters against the known wishes of the landowner.

5. Essentially the traditional tort test of foreseeability determines the liability or nonliability of the landowner in these cases.

6. The traditional tort test of foreseeabilitya. If the defendant could not reasonably foresee any injury as

the result of his act, or if his conduct was reasonable in the light of what he could anticipate, there is no negligence, and no liability.

xiii. Recreational Land Statutes, note 5, p. 6041. State statutes that relax the liability of owners for recreational or

rural lands.2. Duties to Strangers

a. No liability for harm resulting from natural conditions, except from falling trees.

3. And in crowded neighborhoods?a. Landowner had duty to take reasonable steps to prevent

mudslide that would damage the home of his downhill neighbor.

b. Landowner may not be able simply to “let nature take its course.”

xiv. Sprecher v. Adamson (Cal. 1981), note 6, p. 605xv. Whitt v. Silverman (Fla. 2001), note 6, p. 605

1. Defendant gas station owner had duty to act reasonably to trim trees so that highway would not be obscured.

2. The fact that the foliage was a natural condition was no defense to failure to act reasonably.

c. Gratuitous Undertakingsd. Special Relationships

VIII. Damagesa. Pain and Sufferingb. Economic Lossesc. Who Pays the Fees?

d. Collateral Benefitse. Wrongful Deathf. Punitive Damages