Torts Outline

I. Battery A. Elements of Battery 1. Act 2. Intent a. Purposeful or b. With a substantial certainty (Garrett) c. Single intent: Intent to contact d. Dual intent: Intent to contact, and intent to harm or offend (both) 3. Contact a. Can be direct or indirect contact. The closer the victim, the more likely the act is to cause harm. 4. Harm or offense (Snyder) B. Offensive contact occurrs when the contact offends a reasonable sense of personal dignity (Cohen) C. Transferred Intent 1. Attempted tort against one victim, and harmed another (McBride) 2. Attempted tort against a victim, and caused a different tort D. Liable for all harm that results (eggshell victim) E. Exception: Children cannot form an intent under a certain age, but children can be found liable if they appreciated that what they were doing would cause harm, or was substantially certain it would cause harm (Garrett) F. Insanity 1. Rational choices are not required 2. Can make a crazy choice to batter (Polmatier) 3. Assuming dual intent, the actor has to appreciate that her actions will cause harm (White) II. Assault A. Elements of Assault 1. Act a. Mere words may not be enough, probably need further action (Cullison) 2. Intent a. Purposeful or b. With substantial certainty 3. Cause a. Fear or apprehension in the mind of another b. of an imminent harmful or offensive contact B. If a battery occurs and the plaintiff did not have time to fear, then no assault (Kaufman) III. False Imprisonment A. Elements 1. Intent to confine a. purposeful or b. substantial certainty

2. Actual confinement a. Physical confinement or b. A false assertion of legal authority that confines someone (McCann) 3. Within a restricted area fixed by the actor 4. Confined person a. has knowledge or the confinement, or b. Is harmed by the confinement B. Intent can be transferred C. If the person has a reasonable means of escape, they must utilize it. IV. Trespass to Land A. Elements 1. Intent to enter land (as opposed to intent to trespass) a. Purpose or b. substantial certainty 2. Entry onto the land 3. Without permission B. Extended liability: The defendant is liable even if no actual harm was done. C. Limiting extended liability: Trespassing journalists are not liable for truth they obtain while trespassing. D. A possessor who is not an owner has a right to sue for trespass E. No liability for someone who entered the land not by choice, such as an emergency landing of a hang glider. V. Conversion A. Elements 1. Intent to take possession of item a. purpose or b. substantial certainty 2. Exercise substantial dominion over the item. Shown by: a. Extent and duration of the control b. Defendants intent to assert a right to property c. The harm done d. Expense or inconvenience caused 3. Deprivation of the item results B. No requirement that the actor is conscious of his wrongdoing (Kelley) C. Serial conversions: Plaintiff can only recover once if he sues both the theif and the buyer. D. Bona fide purchasers: The buyer is not liable unless he knew of the conversion from the original owner. E. UCC: A merchant who is entrusted with the item, has rights over the item. F. If the possessor takes the item in good faith, then no liability. VI. Trespass to Chattels A. Elements 1. Intent to take possession of item of another

a. purpose or b. substantial certainty 2. Temporary possession of the item or 3. Item is interfered with 4. Without permanent depriation or destruction B. Liability is imposed only if the owner suffers harm due to 1. Lost use or 2. item is harmed C. If the possessor takes the item in good faith, then no liability. VII. Intentional Infliction of Emotional Distress A. Elements 1. Intent a. Purpose or b. Substantial certainty or c. Recklessness 2. To act extreme and outrageous a. Mere insults are likely not enough i. Unless they are within the context of an employer-employee relationship (Taylor) or ii. It is an insult that society would deem extreme and outrageous (Taylor) b. Carried out over time (GTE Southwest) or c. Fiduciary duty between parties (Winkler) 3. Causes emotional distress 4. That distress is severe B. Presence: The plaintiff must have been present to recover if a family member (Homer), or present + bodily harmed if not a family member 1. Exception: Some circumstances do not require presence because the severity of the distress is not disputed a. A mother whose child is sexually abused b. Direct family members of a hostage (Bettis) C. Restatement 1. Conduct was extreme and outrageous 2. intended to cause distress or reckless in risking that distress 3. actually cause severe distress VIII. Civil Rights Violations A. Elements 1. Deprive another (Intent not necessary) a. of a constitutional right 2. Under color of state law B. Must show that the constitutional right was violated in order to have a claim. 1. 4th amendment: Unreasonable search and seizure (Brown and Graham) 2. 14th amendment: Must “shock the conscience” (Lewis and Alexander) 3. 8th amendment: Must actually be cruel and unusual punishment

IX. Self-Defense A. Against Battery, Assault, False imprisonment: Reasonable force can be used against apparent harmful or offensive conduct. 1. Privilege extends only as far as is reasonably necessary. 2. Liable for unreasonable harm (Spring gun and kid trespassing) 3. Deadly force can only be used if the harm threatened is death or serious bodily injury. a. value of human life outweighs property interests (Spring gun and Kid trespassing) 4. Retreat a. Defendant is not required to retreat in most jurisdictions b. Some jurisdictions require reasonable retreat i. Exception: If you are in your own home, not required to retreat. 5. Provocation: Insults and arguments do not justify a physical attack B. Against trespass to land, chattels, conversion (A&P) 1. Common law: Private person has the authority to arrest without a warrant only when: a. A felony is committed in his presence or b. a misdemeanor is committed in his presence and there is a breach of peace. 2. Exception: privileged to detain anybody he believes is taking his property. a. Only extends to prevent theft or recapture, not for punishment. If the person detained does not have the property, then liable for false imprisonment. 3. Restatement: Private person has the authority to arrest without a warrant when: a. Reasonable belief that another has taken a chattel b. privileged to detain c. for the time necessary for a reasonable investigation C. Defense of Third Person 1. Same basis as self-defense of yourself. 2. Can be used if a mistake was made if reasonable belief. D. Defense and Repossession of Property 1. Force can be used only at time of lost possession or in hot pursuit. 2. Land and consumer goods can only be repossessed by peaceful means. 3. Human life is more valuable than property E. Discipline 1. Parents, guardians, and persons charged with caring for child such as teachers a. Limits are not really defined for use of force b. Generally, the standard is reasonable force. 2. Parents can use confinement X. Consent A. Elements 1. Understanding of the consequences

a. Capacity: In order to be incapacitated, the adult must show that he i. couldn’t manage his own affairs or ii. Did not understand the nature or character of the act or iii. Cannot weigh the harms and risks against the benefits (Reavis) iv. For consent to be ineffective, the defendant must know of the incapacity. 2. Willingness to let consequences occur B. Exceeding consent: If patient consents to one thing, but did not consent to others, then the scope of the consent is exceeded (blood transfusion) a. Exception: A surgeon is able to do reasonable acts in the area of the original incision (cysts during appendectomy) C. Scope of Consent 1. If a defendant has knowledge of something and does not convey that to the plaintiff, he is liable (Johnson) 2. A parent consenting for teachers to use time-out does not consent for a timeout in a poorly conditioned room D. Revocation 1. Consent can be revoked at any time XI. Necessity A. Destruction of property for public good is ok. (firebomb house) 1. If a statute provides for recovery of the damaged property by owner, then state compensates (Wegner) B. A person can use property of another, or enter land of another to save his life or others lives. (Ploof) 1. Must compensate the owner for any damage done due to your use (Vincent) XII. Other Privileges A. Arrests and Searches 1. Police are privileged to enter land to execute search or arrest warrants. a. Cannot invite media to cover their heroics B. Public Rights 1. A user of a public utility or common carrier has the privilege to enter appropriate portions of the premises 2. One may enter land to reclaim goods that he owns. 3. One may use free speech to enter a public place to campaign on public issues. XIII. Negligence: Duty A. Default standard: Reasonable under the circumstances 1. Flexible test due to changing circumstances but rigid in terms of the standard (gas in carburator) a. In an emergency, the standard stays the same, reasonable person acting during the emergency (guy at bank) i. You are liable for an emergency situation that you create 2. Minors:

3.

4. 5. 6.

a. If engaging in an inherently dangerous activity, held to adult standard (snowmobile) b. If not inherently dangerous, then child’s standard (golf cart). Look to: i. child’s intelligence, maturity, training, and experience under those circumstances c. Rule of Sevens: i. Under 7: incapable of negligence as a matter of law ii. 7-14: Normally incapable of negligence. iii. 14+: Capable of negligence d. Many states hold that children are incapable of negligence Mentally disabled a. Held to the same standard of care as any other adult (Creasy) b. Mental and emotional disability isn’t considered (Creasy) c. Assumed risk (for later) Experts a. Circumstances take expertise into consideration (construction guy) b. Not a higher standard of care, but expected to use your expertise Physical Disability a. Part of circumstances (concrete slab) Medical Emergency a. Excuse if you prove it was impossible to cocntrol vehicle because of medical emergency, no duty in a medical emergency

(Gobbo) B. Court set standard, as oppossed to reasonable care under the circumstances 1. Driving a. When driving at night, must drive at speed that is not exceeding headlights (Marshall, overturned by Chaffin) b. Autos on the road that are stopped have a duty to light them so they can be seen by other drivers C. Negligence Per Se; Legislation set standard, as oppossed to reasonable care under the circumstances 1. Standard is a statute a. If breached then ‘n’egligent, not ‘N’egligent (Rains) 2. For the court to apply the statute as the standard: a. The person must have violated the statute b. plaintiff must be within the class of persons protected by the statute (kid underneath car) c. injury must be the type that the statute was meant to protect against (rabies dog) 3. Excuses: If one of these, or another reasonable excuse is not satisfied, then negligent per se (Impson) a. Violation of the statute is reasonable due to incapacity (Gobbo) b. The actor does not know, nor has reason to know of the occasion for compliance (did not know taillight just went out) c. He is unable after reasonable diligence or care to comply (heart attack, tried to get back in lane but couldn’t)

d. Confronted by an emergency not due to his own misconduct (Gobbo) e. Compliance would involve a greater risk of harm to the actor or to others. D. Custom 1. Not a substitute for reasonable care. Can be taken into account in terms of circumstances (T.J. Hooper) F. Duties for Common Carriers and host drivers 1. Common carrier: Those who are in the business of carrying passengers and goods who hold themselves out for hire from the public a. Some jurisdictions hold that they are owed the highest standard of care possible due to the payment and trust that people are giving (Doser) 2. Guest Statutes: If you pay them, they owe you the standard of care. If no payment, then the passenger is owed a duty not to act wilfully or wantonly a. These statutes were largely made unconstitutional due to equal protection G. Landowners duties to Trespassers, Licensees, Invitees, and Children 1. Trespassers a. Owed a duty to not act willfully or wantonly (Indians game guy) i. If the trespasser is discovered, they are owed a duty of reasoanble care (Indians game guy) b. Child trespassers i. Owed a duty of reasonable care under the attractive nuisance doctrine in some jurisdictions. (kid and mom fell in pool)Elements: 1. The place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass 2. The condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children 3. The children, because of their youth, do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it 4. The utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight compared to the risk to the children involved 5. The possessor fails to exercise reasonable care to eliminate the danger or otherwise protect the children ii. Common hazards such as ponds or fires cannot be considered an attractive nuisance due to the burden of eliminating the danger

iii. Adult rescuers of a child trespasser assumes the same status as the child (kid and mom fell in pool) 2. Duties to licensees a. Owe a duty to not act willfully or wantonly i. Once the owner should have realized licensee was in danger, reasonable care is owed b. Most jurisdictions categorize social guests as licensees 3. Invitees a. Most business and public invitees are invitees b. Owed a duty of reasonable care c. Open and obvious dangers i. Landowners duty to protect against dangerous conditions does not extend to open and obvious dangers to people of ordinary intelligence (guy jumped into shallow end of pool) 4. Natural conditions a. Some courts hold that landowners are not liable for natural accumulations of snow and ice 5. Firefighters rule a. Firefighters and other peace officers are owed a duty not to act wilfully or wantonly i. Not reasonable care as long as the FF was injured in the course of his employment b. Other courts reject this rule becase it singles out peace officers, and is riddled with exceptions. 6. Reasonable care standard for landowners a. A man’s life or limb does not become less worthy of compensation because he came onto the land of another; thus, reasonable standard of care for all people. i. It is no more of a burden to change a broken faucet for a trespassor than it is for an invitee (Rowland) b. Four factors to determine liability for a landowner under reasonable care standard: (kid entered land and got electrocuted) i. Where the injury occurred ii. People should be able to use their property as they see fit iii. Take precautions iv. Did plaintiff have permission to be there 7. Recreational users a. Protect landowners from liability to people who enter his land for recreational use. i. Duty to not act wilfully or wantonly b. For reasonable care to be the standard, payment has to be made to use the land c. Similar to guest statutes, but have not been overturned in the same way. 8. Lessors a. Traditional Rule

i. Landlords are only responsible when they contract to make repairs, and are notified of what repairs need to be made or ii. when they conceal defects from the tenant b. Modern Rule i. A landlord has a duty of reasonable care in the maintenance of his own property. (tenant falls through railing) 1. He is therefore liable to a tenant who is injured 2. Justified because landlord owns the property and recieves the long-term benefits H. Nonfeasance 1. No duty to act rule a. Under the common law, one person does not owe another person a duty to take action or affirmative steps for the other’s protection i. To determine whether or not there was an act, have to look at the scope of the activity; ex.: If you do not hit the brake, no act, but the act was driving which must be done reasonably. ii. People have a right to voluntarily act, free will, the person voluntarily put himself in the well, and we cannot force the other person to help him by law, even though morally he should have helped. 2. Exceptions, Qualifications, and Questions a. If a person knows, or has reason to know, that his conduct, whether tortious or innocent, has caused harm to another person, he then has a duty to prevent further harm. b. Restatement: A person who put him in the position has a duty to rescue. c. A statute may require people to act to rescue with threat of punishment. d. Voluntarily undertaking i. Once you undertake to care for someone, you then create for yourself a duty to continue caring for that person in a reasonable manner (guys took care of drunk girl, did so negligently) A. You have prevented others from helping 1. Others think you are already helping or 2. You told them you are taking care of it B. Made the situation worse by trying to take care of them. 1. Restatement imposes liability where defendant discontinues aid. ii. The state does not become the permanent guarantor of safety if he once takes them into custody. e. Special relationship: These relationships impose an affirmative duty to act. i. Carrier-passenger ii. Innkeeper-guest

iii. Landowner-lawful entrant iv. Employer-employee v. School-Student vi. Landlord-tenant vii. Friends (friend got beat up, other one had a duty to act due to special relationship of companions) viii. Custodian-person in custody f. Due Process i. The due process clause does not compel an entity to act unless that person is in physical custody. (DeShaney) A. State did not have control over the child, so they acted in their discretion not to take him into custody. B. If a state officer takes actions that create danger, Deshaney is no longer a barrier to recovery. g. Child protective statutes create an affirmative duty to act. Many courts have ruled that when child services statutes require investigation and intervention on behalf of abused children, a duty is owed or a special relationship is created requiring reasonable care. I. Contract and Duty 1. One who undertakes to do an act for another without reward, is not answerable for omitting to do the act and is only responsible when he attempts to do it and does it negligently. No liability in tort because he never did an act. (boat guy doesn’t get insurance) 2. A contract can create a special relationship between the parties which prescribes a duty of care to avoid injury. (contract for blood samples) 3. No difference between residential and commercial leases. If one party contracts to make repairs to unsafe situations, that creates a duty of care to take care of those situations. (mobil oil) 4. Economic contracts create no duty in tort. 5. Promises to Third Persons a. A third party does not have a right under the contract. b. Contracting with a party does not create an affirmative duty to act to assist third parties unless the contracting party: (Moch) i. Has a special relationship to the third party ii. Voluntarily undertakes to assist the third party. c. If a party has a duty to others, and contracts those responsibilities out, a third party who is injured has a cause of action against the party who contracted to take care of the responsibilities the first party (servicemaster). i. If A shifts the duty to B: 1. Plaintiff is entitled to the same care from B as from A 2. B is subjected to a duty he did not have before 3. A may or may not be relieved of a duty

d. Reasonable reliance upon another party to do something gives rise to a special relationship which creates an affirmative duty to act. (cop at crosswalk) i. If the injured party did not personally rely on the service, then she never relied on it, thus, no duty to act. (people saw, and reported assault) e. Voluntarily undertaking to do something can create a duty that otherwise does not exist. J. Duty to Protect from third persons 1. A business owner’s duty to protect from third persons comes in three different forms depending on jurisdiction: a. Specific Harm (narrow): business owner only owes a duty to protect patrons from violent third parties if he is aware of specific, imminent harm about to befall them b. Similar incidents (slightly broader): Evidence of previous crimes on or near the premisis gives an affirmative duty to act. c. Totality of circumstances test (broadest test): Takes into consideration nature, condition, and location of the land as well as other factually relevant circumstances bearing on foreseeability. Normally focuses on the level of crime in the surrounding area. d. Balancing test: Balances the foreseeability of harm against burden of imposing a duty to protect against criminal acts of third persons. i. Problem is that this approach may take the breach test of Carroll towing and put it into the duty section, thus making it a judge, and not a jury determination. 2. A special relationship creates a duty to protect a. Schools are required by law to take custody of children, thus become pseudo parents while the children are in their custody. (Marquay) i. The scope of the duty is limited by what risks are reasonably foreseeable. ii. Only employees who have supervisory responsibility have a duty to act. iii. A duty of supervision is owed to each student at school. iv. Schools do not owe a duty to students once the student is released for the day and has left school grounds. 3. Defendant’s relationship with a dangerous person a. Landlords i. A landlord generally has no duty to protect. ii. Providing security is a gracious undertaking and the failure to maintain it provides no duty to care, assuming there is no contract that provides for providing security. iii. If a lessor has control over danger from a tenant, he is under a duty of care to protect third persons from them.

tenant for

knows or care.

1. If a person is shot by a tenant with a gun that the landlord does, or should know that the possesses, the landlord will be held liable. 2. Dogs: Unless the landlord is one of the owners or keepers of the dog, he cannot be held liable injuries the dog creates. c. Parents duty to control children i. Parents are liable only for failing to control some specific dangerous habit of a child of which the parent should know in the exercise of reasonable d. Therapists, and other professionals. i. Generally, the rules for disclosure are governed by the rules of the profession, or by statute. ii. Therapists protective privilege ends, and the duty to report begins when there is a specific threat to a person.

(Tarasoff) e. Doctor’s duty to inform may extend past patient i. When a doctor treats a patient for a contagious disease, the doctor must give the patient correct information about the spreading of the disease, or faces liability from others that the disease is spread to. (Sex parter owed a duty from Hep patient’s doctor) 1. Duty extends to all persons likely to be affected by the patient if the patient is not warned of her contagiousness. ii. Does not apply in cases where the information is within the realm of knowledge particularly known to the patient (vision doctor, no duty to warn patient about peril to other drivers.) f. Bars i. Common law: A bar who serves drinks to another is not liable to a third person injured as a result of being served. ii. Modern rule: One who sells intoxicating beverages owes a duty to anyone who may be injured not to sell alcohol to a noticeabley intoxicated person. 1. Policy reason for rule change: Lots of cars on the road today, bar is in the best position to prevent drunk drivers. XIV. Breach of standard of care A. Assessing reasonable care by assessing Risks and Costs 1. If one acts reasonably and under his best judgment, he has not breached his duty of reasonable care (burning mower in garage)

2. An employer has not breached his duty if the employee has more knowledge of the danger than the employer does – Employee was the best safety provider. (Roofer) 3. A reasonable person would avoid conduct that creates risk if harm is foreseeable; If the burden is greater than the benefits, then no breach a. More expensive to train employees to do heimlich than the benefit of having them trained, thus, no breach when someone chokes b. Manufacturer of a product must anticipate the environment in which its product will be used and design against reasonably foreseeable risks attending the product’s use in that setting. (Boston Edison) 4. Defendant is not negligent for acts during its regular business operation a. A garbage dump spooks horse; noise is part of operation, even though spooking a horse is foreseeable 5. If B>PL, then the duty is not breached (Carroll towing) a. B=Burden of alternative b. L=Gravity of resulting injury c. P=Probability that injury will occur B. Assessing responsibility among more than one defendant; each faulty party must bear hs own share of losses 1. Joint and Several liability a. Plaintiff can enforce claim against either tortfeasor b. Can obtain a judgment against both, but can’t collect more than full damage. 2. Several liability a. Defendant only pays their share of liability 3. Contribution a. Plaintiff enforces joint and several claim against one tortfeasor b. Defendant can then collect contribution from the other tortfeasors for their portion of liability 4. Insolvent or immune tortfeasors a. If joint and several liability, the one who judgment was enforced upon loses out b. If several, plaintiff loses out C. Proving and Evaluating Conduct 1. Must show that there was someone who breached a duty a. If you don’t remember what happened, how can you prove it. (Santiago) b. Extreme difficulty of proving case does not relieve the burden of producing sufficient evidence 2. Circumstantial evidence a. can be used to prove a case, we like direct evidence, but unnecessary (Upchurch)

b. Jury is allowed to make reasonable inferences (moldy wall in hotel), and court cannot intrude so long as the inferences were reasonable (Upchurch) 2. Non-Expert opinion: Witnesses cannot give opinions generally, only testify as to facts. 3. Expert testimony a. Unneccessary if the the reasonable care necessary is within the realm of common knowledge (thumb in slide) b. Allowed to give expert opinions or conclusions within their field of expertise to help jury decide the case. 4. Slip and Falls: Have to prove that either: a. Defendant created a dangerous condition or b. Had actual or constructive knowledge of a dangerous condition and failed to take care of it. Can be shown by: i. Substance on the floor has been there for a “sufficient” length of time and ii. The premises owner, using reasonable care, would have discovered the substance D. Res Ipsa 1. Origins and basic features a. Presumptive negligence b. When an injury occurs, and couldn’t have occurred absent negligence; the accident speaks for itself (Barrels) i. Minus a reasonable explanation for why the injury happed, the defendant will be held liable ii. This forces the defendant to make a reasonable excuse. 2. Control a. Plaintiff must rule out other causes; Control of defendant over instrumentality of harm i. Modern view is that the defendant does not have to be exclusive control, only enough to allow the jury to make a reasonable inference of negligence (elevator) ii. At one time, control was taken very literally. 1. Woman in store, sat on chair, chair broke, court ruled store was not in control iii. If plaintiff can sufficiently rule out other causes, then it can be inferred that the one left was negligent 1. Customer takes bottle home; explodes; shows that he nor the store dropped the bottle; bottler must be liable iv. Access to public 1. If the instrumentality is accessible to the public, then people may have interfered; no liability. 3. Slip and fall cases a. Courts generally reject res ipsa in these cases 4. Multiple actors

inferred (Collins)

a. When two defendants have consecutive control over something, and harm results, then negligence of one of them can be whether or not you know exactly who did it

b. Defendant must then show why he was not negligent. If neither can do so, both may be held liable 5. Equality of knowledge a. The defendant can be liable on res ipsa if he is in exclusive control of the knowledge needed to show negligence (plane crash) 6. Sufficiency of evidence a. A plaintiff cannot assert res ipsa if he chose not to utilize available evidence (run away car hit kid) 7. Runaway car a. Driver parks on a hill; car rolls down b. Plaintiff must show that someone else did not mess with car, or that there was no mechanical failure that the defendant did not know about. c. Courts may let these cases go to jury anyway, even if defendant was not in exclusive control XV. Harm A. Plaintiff needs to show that he was harmed by the defendant’s breach of duty. (Preston). B. Damages for negligence are primarily compensatory, no nominal damages without compensatory damages XVI. Cause in Fact A. Plaintiff must prove that not only she suffered legally recognized harm; duty was breached; but also must show that the harm was caused by the defendant. 1. But-for test: But for the defendant’s conduct, harm would not have occurred. a. Requires that the judge and jury imagine an alternate scenario that never occurred to see what would have happened without defendant’s conduct. (X-Ray baby) B. Problems with but-for test 1. Two or more actors contribute independently to an indivisible injury; no concert or design between them (pond destroyed) a. The burden is on the defendants to convince the trier of fact how much each is responsible for. b. If they cannot do so, then jointly and severally liable in that system, or c. Jury has to determine liability in a several system. 2. Two or more actors contribute independently to a divisible injury a. Each defendant is liable only for his portion of the damage. 3. Duplicative causation; only one tortfeasor is known a. That tortfeasor will be held liable if his actions were a substantial factor in causing the harm; i.e. his actions would have independently done the damage (fire from railroad, held liable because his

fire that

was substantial factor). Were they necessary for the harm occurred?

4. Pre-emptive factor a. Dynamiter blows up house before fire gets there. Fire is not cause of destruction even if it would have burnt it had someone else not blown it up 5. Enhanced causation a. One caused harm, second comes along and makes it worse i. Original tortfeasor liable for everything ii. Second tortfeasor responsible for increase in harm 6. Can find that negligent behavior caused harm if a. a negligent act increased the chances that a particular accident would happen b. That accident did happen 7. Two defendants are negligent, only one causes harm a. Wrongdoers should be left to work out who was liable between themselves (quail hunters shoot friend) b. Plaintiff must show that the defendants are the only ones who could have caused the harm (blood transfusions) i. This may create rule 11 problems C. Proof of Causation 1. Probable future but for the damage a. harm occurs on the way to a different kind of harm i. the probable future that was likely as a result of the first harm are taken into account for a determination of the damages, and whether or not there is liability caused by the intervening harm (kid falls from bridge, grabs electrical wire) 2. Lost chance: Three approaches: (doctor-patient situation ONLY) a. Traditional approach: Plaintiff must prove that as a result of defendant’s negligence he was deprived of a 51% or better chance of a better outcome. Damages received for entire injury. b. Relaxed Causation: Submit to a jury that defendant’s negligence more likely than not increased the harm and destroyed a substantial possibility of a achieving a more favorable outcome. Damages received for entire injury. c. Loss of opportunity: The lost opportunity is itself the injury. The plaintiff only gets damages for the lost opportunity, not the underlying injury. i. Ex.: If the chances of surviving cancer are 33%, and the doctor deprives you of a 51% chance of surviving the cancer, then you receive, resulting in damagesof 100,000, then you receive 33,000. d. Increase risk of harm

i. If the doctor negligently does not diagnose, then he is liable for the increase in harm that he caused (x-ray tumor not diagnosed) XVII: Proximate Cause A. Scope of risk 1. Foreseeability; The risk rule: If a reasonable person would not foresee that the type of injury would occur with the breach of duty, then the defendant is not liable (faulty buzzer and not sending ambulance) 2. Rescue a. Danger invites rescue, therefore it is foreseeable that a person would rescue someone you negligently harmed, thus, liability to the rescuer. 3. Palsgraf rule a. The defendant must be directly negligent to plaintiff b. The plaintiff must be within the class of people it is foreseeable that the defendant would harm. i. If not foreseeable, then no duty, thus no liability. 4. Palsgraf dissent a. Duty runs to the world at large. b. Negligence toward one is negligent towards all c. Proximate cause is not established if the harm is remote. B. Assessing the Scope of risk. 1. Is harm outside the scope of risk because of the manner in which it occurs?; Mechanism of harm a. A negligent harm is not proximately caused if it occurs in an unpredictable way (lid fell in vat of hot liquid). b. If harm occurs in an unforeseeable manner, but the harm is the same type and happened the same way as it would have in the foreseeable manner, then the defendant will be held liable (lantern fell in sewer) c. A chemical reaction was unforeseeable in b, but dropping a lantern and causing harm was foreseeable in a. Thus, liability in a, not in b. 2. Is harm outside the scope of risk because its extent is unforeseeale?; Extent of harm a. Thin skull cases i. If the harm is worse than would be foreseeable by the negligent act, the defendant is liable for the extent of harm anyway. (diabetic in hotel) b. Fire cases i. If it is not foreseeable that a fire would spread as far as it did, the defendant is liable anyway. 3. Is harm outside the scope of risk because they are not within the class of people protected. (Who is harmed)

a. The harmed person must be within the class of people who would be harmed i. If a person is harmed in your parking garage, and that person is not someone you are charged with protecting; i.e. a tenant or employee; then you are not liable when that person is harmed by another person who is brought there (girl assaulted by cop) 4. Is Harm outside the scope of risk because it results most directly from an act of an intervening or superceding actor a. An intervening act is not necessarily superceding i. A doctor who does not follow up on a prescription can still be found to be liable even if a pharmacy negligently fills the prescription b. An intervening act that cannot be reasonably foreseen is a superceding cause i. A criminal act used to not be foreseeable, today it is likely foreseeable, thus, intervening. (derailed gas car, dude throws match) ii. It is foreseeable for a person to drive through an inadequate highway barricade, thus intervening (flaming worker) iii. It is foreseeable that by giving someone a car with a defective trunk will try to fix it; not foreseeable that while in a parking lot doing so, someone would hit him; (Ventricelli) c. Termination of risk; A defendant is liable for all injuries that result until the termination of the risk; or, until the waters have calmed from the original negligent act i. Ex.: defendant forced plaintiff off the road; liable for any damages that occur until plaintiff is safely back on the road like he was before he was forced off (Marshall) ii. Defendant is liable for any negligence that occurs in the hospital if he is the cause of her being in the hospital (Anaya) iii. By stopping in a parking lot, risk was terminated in trunk case 5. Intervening force of nature a. If it is foreseeable that by doing something, a force of nature would intervene and cause harm, then the defendant is liable (gas leaked, lightning struck) XVIII. Contributory / Comparative Fault A. Common law: Contributory Fault: Fault of the plaintiff will bar all recovery 1. Plaintiff’s unreasonable actions will negate all of defendant’s fault, thus no recovery for plaintiff (horse rider) B. Comparative fault: Three different types of statutes:

1. New York: Pure comparative fault. Plaintiff recieves less damages corresponding to his percentage of liability in harming himself. 2. Wisconsin: Greater than equal: Plaintiff can recover if his fault is less than that of the defendants; if he is 50% at fault, no recovery. 3. Other states: If 51% at fault, no recovery; 50% allows recovery C. Comparative fault analysis 1. Jury should be instructed on the implications of their fault applications (Sollin) 2. To decide what percentages to assign liability, two ways are possible a. Most used way: Cost of providing safety against the harm that resulted (Wassel) b. Restatement: Shares of responsibility i. nature of the persons risk-creating conduct including any awareness or indifference with respect to the risks created by the conduct and any intent with respect to the risks created by the conduct. ii. The strength of the causal connection between the risk and the harm. 3. Rescue a. In contributory fault, a rescuer’s negligence is not taken into account unless he acted recklessly (tried to help friend stuck under car) b. In comparative fault, the rescuers negligence or recklessness in the rescue is assigned a percentage of liability; albeit generally lower than normal (guy entered house to save dog) 4. Res Ipsa a. Jury has to assess unknown conduct of defendant with known conduct of the plaintiff. b. This kind of reduces the control rule of res ipsa. D. Traditional defenses to contributory negligence; Most of these rules are annulled in a comparative fault system 1. Last Clear chance a. If the defendant has an opportunity to avoid the situation, they need to avoid the situation, regardless of the plaintiff’s negligence in creating the situation 2. Discovered Peril a. If the defendant never knew of the last clear chance, then he is not liable. This takes the “should have known” out of last clear chance. 3. Defendant’s reckless or intentional conduct a. Reckless and intentional acts trump negligence in contributory negligence b. Restatement calls for comparative fault rules for reckless and intentional acts by the defendant; does not completely disregard the plaintiff’s negligent concuct. E. Criminal Acts by Plaintiff

1. If plaintiff’s injury is a direct result of his participation in illegal conduct, he may not recover. (kid made pipebomb, injured himself) 2. If the defendant’s duty is to everyone, however, the criminal act of the plaintiff will not be barred (badly manufactured car) F. Causation and Scope of Risk in Comparative fault 1. Plaintiff’s fault as a superceding cause a. Trespasser dives into a pool he knew was shallow b. Court bars recovery c. Superceding cause 2. If defendant and plaintiff cause separate injuries a. Each is liable for the damage they cause b. No comparative fault is necessary 3. Plaintiff and defendant cause separate but indistinguishable injuries a. Plaintiff smokes, and defendant introduced asbestos b. Court can i. allow full recovery ii. bar all recovery iii. use comparative fault 4. Minimizing damages rule a. If the plaintiff can minimize damages by reasonable efforts and expense, he is required to do so 1. Ex.: plaintiff does not take pills to minimize damages that defendant caused; Defendant is not liable for the increase in harm G. Allocating All responsibility to Defendant to protect the plaintiff from plaintiff’s own harm. 1. An employer may have a duty to protect its workers from putting themselves into harm. No comparative negligence (Bexiga) 2. A hospital has a duty to protect its residents from killing or harming themselves (McNamara) 3. To make this decision, have to look at whether or not the risk was known to the plaintiff, and if the plaintiff was putting others at risk of harm besides just himself H. Entitlements 1. A person has a right to use his own property how he sees fit. No contributory negligence (flax near tracks) a. may have a duty not to put it so close to danger that it is almost a lock that it will be damaged (flax concurring opinion) b. Exception: You may be liable for harm caused to a third party due to your property increasing the risk of harm to the others property 2. Also entitled to use public property even though they may be subject to harms from others’ negligence. No comparative fault. a. No duty to protect one’s self b. Some say we shoud do away with entitlements and judge on a case by case basis.

XIX. Assumption of Risk A. Express Assumption of Risk / Contractually assumed risk 1. Parties to a transaction are able to agree wich one should bear the risk of injury (woman was informed it was alternative medicine; She agreed to treatment; She assumed the risk; No liability (Boyle) 2. Releases a. Even if a release is signed, if the signor is compelled to sign in order to receive necessary services, then the release is not valid. (Tunkl) b. Scope of assumed risk: If the activity which caused the harm was outside the scope of the risk that was agreed to, the defendant can still be held liable (ATV course) B. Implied assumption of risk: No verbal or written agreement 1. Confronting a known risk a. If a plaintiff had knowledge of the risk, appreciated the risk, and voluntarily exposed himself to the risk, he has assumed the risk and cannot recover (Crews) 2. Assumed risk merged with comparative fault; This is secondary assumption of risk, where the plaintiff proceeds to encounter a known risk imposed by the defendant’s breach of duty. a. Used when there is an established duty, such as a duty of a homeowner to protect his servant, servant’s assumed the risk of their being toys on the ground; thus, comparative negligence (Betts) 3. Primary assumption of the risk: By virtue of the nature of the activity, the defendant owes no legal duty to protect the plaintiff from the particular risk of harm that caused the injury. a. Inherent risks i. A defendant has no duty to protect a plaintiff against harm from inherent risks, such as falling down on a ski hill. 1. But, if a plaintiff is injured by something that is not part of the inherent risk, such as a bush on a ski hill, defendant will have a duty, thus, comparative negligence applies (Sunday) ii. An inherent risk is something that cannot be removed through reasonable care 1. Cannot remove the risk of falling while skiing, but can remove the risk of falling due to a bush if you remove the bush iii. In most sports, the duty of the participants is to refrain from reckless or intentional conduct, negligence by other participants is an inherent risk. (Jockey and hockey player) XX. Statutes of Limitation A. Injury Rule 1. The clock starts ticking when the injury occurs.

a. Very strict rule (guy with sponge in stomach) B. Discovery rule 1. Clock starts ticking when the reasonable person a. discovers or should have discovered the injury and b. did or should have associated the injury with a particular defendant. 2. An optimistic person who doesn’t go to the doctor is not being unreasonable (meat packer) C. Continuous treatment 1. Delay of SoL while your treatment with a particular physician is continuing. The clock starts ticking when your treatment from that physician has ended. D. Tolling 1. Minors: Clock starts ticking when child reaches majority 2. Forgetting to file does not stop the clock from ticking. a. Some courts recognize memory repression, and some don’t 3. Disability: The clock doesn’t tick if you are under disability or mental incapacity a. Clock ticks anyway if you can manage your own affairs. E. Notice Bar 1. If you have to give an adverse party six months notice before filing a complaint, your SoL is effectively reduced by six months. F. Pre-Accrual Bar 1. This sort of statute shortens the length that the person has to discover his injury. a. A person should know within this time that an injury has occurred and associate it with a defendant G. Latent Potential Harm 1. Plaintiff knows of problem, but wants to delay suit because he believes the injury will get worse and wants compensation for the damage a. Court can: i. Enhanced risk or Reduced chance Recovery 1. Allow plaintiff to recover now for actual injury plus future injuries that might result but reduced to reflect the probability ii. Reject enhanced risk recovery and allow present damages but also allow damages for future mental anguish associated with worrying about possible further damage iii. Reject a and b and only allow plaintiff to recover what he can currently prove iv. Leave open the chance for a second suit if the damage occurs H. Continuing trespass 1. Some states make it so that a new cause of action is created everyday a. Such as continuing to dump toxic chemicals into water supply XXI. Preemption and Compliance with Statute

1. A statute or code is a minimum standard. Following it shows competent evidence of due care, but not conclusive evidence. XXII. Medical Practitioners and Other Professionals A. Standard of care is that degree of care, skill and proficiency which is commonly exercised by ordinarily careful, skillful and prudent doctors at the time of operation 1. Depending on the jurisdiction, practitioners can be held to a a. Local standard i. doctors are held to the standard established in their immediate locality b. Modified local standard i. Doctors are held to the standard established in their immediate, or similarly situated communities. c. National standard i. Doctors are held to the standard established in the nation. 2. It is insufficient for plaintiff to show that another doctor would have followed a different course of action. The testimony must set a standard (doctor described that he would have acted differently) 3. The standard is understood as a rule for the circumstances involved in the plaintiff’s case 4. Expert medical testimony is usually required to show the standard, although it is possible that a treatise can do it (smith) a. If an obvious standard, like don’t amputate the wrong limb, then no expert is required 5. Where competent medical authorities differ, a doctor will not be held liable if in his best judgment he followed a course advocated by recognized professionals in his area of expertise. 6. Specialists are held to the standard of their specialty 7. Non-medical practitioners such as chiropractors are held to the standards of their school of profession, not medical standards B. Expert Testimony 1. Needs to be used most of the time to establish: a. Standard b. Breach c. Causation 2. Federal Rules of evidence provides that treatises can be used and are not hearsay 3. Medical organizations sometimes establish guidelines for good medical practice. Courts sometimes accept these into evidence for showing a standard. C. Good Samaritan statutes 1. Generally, they say that No doctor who renders emergency service at the scene of an emergency can be held liable for damages a. If the doctor had a previous relationship with the patient, this does not apply

2. Some courts rule that the “scene of an injury” includes a hospital (Hirpa) 3. Other courts do not (Velazquez) because a. The doctor is in the best position to take care of the patient. The doctor has the best equipment and it is where emergency work is done so the patient is owed the standard level of care D. Res Ipsa 1. When a patient recieves unusual injuries while subjected to medical care while unconscious or otherwise incapacitated, all 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 (guy injured while unconscious in hospital, all defendants could be sued) 2. Restatement a. Exclusive control is no longer a strict requirement in res ipsa cases. E. Informed Consent 1. Most of the time, these cases could also be a battery 2. Patient oriented standard: a. A doctor owes his patient the duty to disclose in a reasonable manner all significant medical information that the physician possesses or reasonably should possess that is material to the intelligent decision by the patient of whether or not to undergo the procedure (harnish) i. A layperson can determine what is material. No expert testimony is required ii. Sound medical judgment may indicate that disclosure of all risks may complicate the medical condition, thus, does not have to be disclosed iii. The person must show that he would not have gone forward with the procedure if given the information by the objective standard: 1. A reasonable person, given the correct information, would not have gone forward 3. Doctor oriented standard a. Plaintiff is entitled only to disclosures that the reasonable medical practitioner would have made in the same situation b. Doctor has no duty to disclose statistical life expectancy info because it was not info about risks. Standard in the medical field was not to reveal this kind of info voluntarily. 4. Risk-free tests a. A doctor has a duty to inform the patient of the danger of not going through with a risk-free test (pap smear) 5. Patient’s duty to disclose a. A patient may be chargeable with comparative fault for not disclosing medical history (breast cancer chic)

6. Absent unusual circumstances, a patient may trust her doctor, does not need to verify the information for comparative fault purposes (breast cancer chic) XXIII. Family and Charity Immunities A. Spousal Immunity 1. Traditionally, spouses cannot be sued 2. Has largely been dropped. B. Parent-Child 1. Traditionally, children could not sue parents 2. Immunity has been dropped, but numerous exceptions are kept: a. The alleged negligent act involves an exercise of parental authority over the child b. The alleged negligent act involves an exercise of ordinary parental discretion with respect to the provision of food, clothing, housing, medical and dental services, and other care. i. Supervision of children falls under parental discretion (folks kept kid in closet, immune) 3. Children are allowed to sue to protect property interests 4. Can sue for Intentional Torts 5. Can sue if the relationship has been terminated either by majority or emancipation 6. A child possesses a cognizable claim for negligence if his injuries were proximately caused by the parent’s breach of duty of care owed to society, separate and apart from the parent child immunity (dude with the bullet/nail) C. Charities 1. Traditional rule a. Charities are immune from liability 2. Exceptions a. Administrative negligence b. Liable if insurance or other available funds could pay c. Could not claim immunity against those who paid for its services d. Intentional or reckless torts and others 3. General abolition of immunity a. Restatement says no charity immunity b. Some statutes have gotten rid of immunity 4. Individuals engaged in charitable activities a. Originally individuals weren’t protected b. Many statutes provide a limitation on the duty of various individuals associated with charities or charitable acts. XXIV. Governmental Immunity A. Traditionally, government had absolute immunity 1. People could get compensation through private bill and that is all. B. Federal Torts Claims Act: Passed to abolish federal government immunity 1. Start with the premise that the government can be sued like a private person

a. but not for punitive damages or interest 2. A lot of exceptions listed in the act. 3. Governing law is the law of the state in which the tort was committed 4. Six months notice is required 5. The court has also created exceptions not in the statute: Feres rule: a. Government immunity is extended to claims from combatants that arise that are “incident to service” determined by: i. Location the injury occurred ii. Duty status of service member iii. Non-tort benefits payable iv. Nature of plaintiff’s activities b. Spouses and children of military folks can still sue 6. Discretionary Immunity a. If the government decides not to regulate, then the government is not liable for its discretionary decisions b. If there is a statute or regulation governing the actions of a governmental agency or actor, that person does not have the discretion to not follow the regulation (polio) c. 2 factors to determine whether there is discretionary immunity: (nuclear clean up guys) 1. Was there an element of judgment or choice 2. Whether that judgment is of a kind the exception was designed to shield; was there a policy decision to be made; ie. Allocation of funds, etc. d. Court cannot decide what is good or bad government; a bad choice is protected C. State law immunity 1. Most states have some kind of way to sue their government a. Many states follow the ftca b. Others go in the reverse: gov is immune, but in these circumstances. c. A few states retain complete immunity. 2. Government is generally liable for businesses they take on that a private company may otherwise take on, such as the transit systems and highways. 3. Discretion a. Police are generally not liable for their resource allocation decisions (lye in eye). There is not enough resources to go around. (Court shooting) b. If the police make a promise to do something, or a 911 operator tells the person that they are on their way, the discretionary decision has already been made, and the person can reasonably rely on them coming. Thus, there is no immunity if they fail to fulfill their promise (wrong address) i. A police promise can be limited to the time and place they made their promise. If something happens after that, even if they didn’t fulfill their initial promise, they will retain immunity.

(police immunity)

promised to show up, didn’t, lady was killed later,

c. Emergency services cannot use discretion to not follow established custom to take care of a problem (ffers used hoses instead of sprinklers, custom was sprinklers, no immunity) 4. Public Duty Doctrine a. Public entities and officers are not liable to individuals for failure to carry out a duty, even a statutory duty, owed to the public at large (cops have a duty to protect, immunity if they fail to protect a specific person) b. A failure of duty to a specific individual may be actionable. c. At common law, a county does not have an obligation to warn others that they are releasing a criminal, unless the criminal identifies a specific person they are going to harm. i. Megan’s law, however, puts a duty on releasing agent to warn those that they feel should be warned depending on the degree of harm the criminal may pose. d. Exceptions: Have to show a special relationship by showing: i. There is a direct contact between the gov agency and the plaintiff which sets the plaintiff apart from the general public. ii. There are express assurances given by a public official or agency iii. Gives rise to reasonable reliance on the part of the plaintiff. D. Officers 1. Judicial and Legislative immunity a. Immunity is absolute i. If they are acting within the scope of their duty. A. If the same officers are acting under an administrative or operational capacity, then no immunity 2. Quasi-Judicial Immunity a. Absolute immunity extends to people who are not actually judges but when they are doing something that a judge would do, such as a probation officer giving recommendations to a judge. 3. Qualified Immunity for state actors; 1983 claims: Two questions: a. Was there a deprivation of constitutional rights? b. Was the right clearly established at the time of deprivation (Bad faith?) i. Must be sufficiently clear that a reasonable official would understand that what she was doing violated the right (deprivation of right to conceive) 4. Federal Executive Branch Officers a. Cannot sue federal officers under 1983, unless they are acting under color of state law. i. Can sue them directly under the constitution A. No general immunity in such cases. b. President is immune for official acts that violate the constitution

c. Westfall act: i. Cant sue federal employees for negligent acts ii. Have to refer to FTCA to see if you can sue the federal government E. State and Municipal Liability under 1983 1. States cannot be sued under 1983 2. Municipalities are not immune under 1983 but are only liable if the right is violated by some policy of custom. 3. If the plaintiff can show that the custom was put in place with the purpose to discriminated, or violated another right 4. If there is a rational reason for the discrimination, then the municipality will not be held liable. a. If the custom is to discriminate against something that is inherent (such as race, sex) then it will be a lot more difficult to show that there was a rational reason. b. If the custom is to discriminate against something like domestic violence victims, it will likely be a lot easier to show a rational reason. (domestic violence victims were discriminated against) XXV. Emotional Harm A. Parasitic damages: Damages recoverable for some other tort. Not a stand alone claim. B. Actual victim of an act that caused ED: Goes to legally recognized harm. If ED is the only harm that is suffered, does the court recognize the harm? 1. Impact Rule (not widely used anymore): Cannot recover from fright or shock if there is no physical impact resulting in physical harm. 2. Physical Manifestations: If fright or shock manifests into physical harm, the plaintiff can recover. 3. Direct victim: No physical manifestation is required if you were a direct victim of an act by the defendant. May need to show ED with medical evidence. 4. Pre-existing condition: If the defendant’s negligence results in making a person’s pre-existing condition worse, then the defendants is liable for the aggravation. 5. Pre-existing relationship defendant owes a duty to protect from emotional distress, such as a doctor or a funeral home. C. Bystander’s suffering of ED 1. Zone of danger: Bystander cannot recover for ED unless he was in fear for his own physical safety at the time of the negligent act. 2. Dillon: Plaintiff can recover if it was foreseeable that the plaintiff would suffer ED from negligent act. These are guidelines: a. Near the scene of the accident b. sensory and contemporaneous observance (could have heard it) c. Close relatonship to the victim 3. Thing: Changed Dillon to hard and fast rules

a. Must be closely related (blood or marriage) b. Must be physically present at the scene of the injury, and an awareness that the injury is occurring. c. Must suffer serious ED beyond what a disinterested witness would suffer. D. Direct Victims: The thing rules do not apply to a direct victim with a pre-existing relationship to the other person. A pre-existing relationship prescribes a duty of care to ensure that ED does not occur (doctor patient setting.) E. Consortium: This is the loss of company, or in the case of spouses, the loss of sexual relations.There can be three different types of loss of consortium: 1. Parent-Child: not likely to recover if adult child, but some states allow for younger children 2. Child-Parent: not as likely to recover, but some states allow it 3. Spouse-Spouse: Most likely to recover from in most jurisdictions due to loss of sex 4. Unmarried couples: Some courts have allowed it a. Vermont’s ciril union state allows it for same sex civil unions. F. General negligence prescribed to NIED cases: 1. Must prove duty, breach, harm/injury, cause in fact, and proximate cause 2. The ED must be severe 3. Expert medical or scientific proof is usually required. G. Toxic exposures: Fear of Future Harm (not all courts allow this claim) 1. As a result of defendants breach of a duty owed to plaintiff, and plaintiff is exposed to toxic substance that caused cancer, the plaintiff has to show that it is more likely than not that they are going to get cancer. a. If there is malice or fraud, then the more likely than not requirement may be reduced. 2. Defendant will likely have to pay for medical monitoring costs XXVI. Vicarious liability A. Goals of vicarious liability 1. The prevention of future injuries 2. The assurance of compensation to victims 3. The equitable spreading of losses caused by the enterprise 4. Price of goods and activities should accurately reflect accidents they cause. 5. If product includes accident costs, the market will favor cheaper products. B. General rule: Empoyers are liable for their employees negligent acts if they are in the scope of employment when the tort occurred whether or not the employee was told not to specifically do something. Factors for this determination are: 1. whether his conduct was authorized by the employer 2. the nature of the employment (was it foreseeable the employee would act in this way, such as going to the bar on a business trip) 3. its object and the duties imposed thereby 4. whether the employee was acting in his discharge

5. whether his conduct occurred during the performance of services for the benefit of the employer. 6. whether his conduct was in an incidental event connected with his assigned work. C. Exceptions 1. Going and coming rule: Employer is not liable for the torts of employee’s who are going and coming from work. a. Caveats: i. If employer expands its market pool and has to compensate the workers for coming a longer distance, then going and coming rule does not apply ii. Dual purpose: If the employer is traveling, but also doing something for the employer, going and coming rule does not apply. A. In some jurisdictions, the employer must also have had control over the employee, along with a dual purpose benefit. iii. 24 hour employee: If a person is always on the job, then whether going and coming, the employer will be held liable 2. Frolic: If the employee was doing something for his own personal enjoyment, not associated with employment, then the employer may not be held liable until the employee is back on the job. a. Detour: If the employee is merely on a detour, employer still may be held liable. D. Intentional Torts: An employer is not generally liable for the intentional torts of its employees. 1. Exceptions a. The intentional act is a natural incidence of the job, such as a nurse hitting an alzheimers patient. b. Causal nexus: It is foreseeable that the job will invite the intentional act. (Ask about this in review) c. If there is a motivation to serve the employer, such as beating someone up in order to protect your employer. 2. Can still sue the employer for negligence because they were at fault for hiring the person, or at fault for allowing the incidence to occur. E. Employers who are not masters: Independent contractors 1. General Rule: Employers are not liable for the negligent acts of an independent contractor a. Exceptions: i. Borrowed servant A. If employer have control over the servant’s actions, then liable even though he is not their employee.

they

activities of

a duty out to activity, the that the contractor

them in an

B. If it cannot be determined whether loaner or borrower had control, and since both receive benefits, may be held jointly liable. ii. Contractual agreement can determine who is liable for the negligent acts of the contractor. iii. Agency: The employer is liable for the acts of an agent, if the employer had control over the day to day the agent. If control, then liable. iv. Non-Delegable duties. A. Apparent Agency: For a hospital: If the patient looks to the hospital for care, then the hospital has to provide services that they cannot delegate an independently contracting doctor. B. Dangerous activities: If the employer knows that the contractor is engaging in a dangerous employer has a duty to make sure is doing the work safely. v. . Repossession by owner: The owner is liable for damages that occur once the item built by a contractor is back in his control A. Can relieve this burden with indemnity B. Master is not responsible for damages while work is being done unless the master controlled operational capacity.

XXVII. Strict Liability for dangerous acts A. Restatement provides for strict liability when: 1. The defendant’s activity creates a reasonably foreseeable risk of harm 2. The risk is a significant risk 3. The risk remains even when reasonable care is exercised 4. The activity is not a manner of common usage. B. Second restatement adds the value to the community, but this puts a balancing test in the formula which makes the claim look like negligence. C. Third restatement: Gets away fom the balancing test, justified by having to take the bitter with the sweet of the activity. D. Contributory negligence / ass of risk 1. No contributory negligence if activities are a foreseeable risk of participation in the activity. 2. Assumption of risk can be a defense because the defendant knowingly confronted the risk. XXVIII. Strict liability for defective products. A. Sellers are strictly liable for physical injuries to persons or property from defective products, the injured person can recover without proving fault. B. Economic harm is not covered by tort law because the plaintiff has the option of bargaining for economic protection when the product is purchased.

C. Three types of product liability from defects: 1. Manufacturing defects 2. Design defects 3. Informational defects D. Manufacturing defects 1. Second Restatement: Elements: a. sells a product b. Which is unreasonably dangerous i. Courts determined that something is unreasonably dangerous if it goes beyond the consumer’s expectation of the product. A. Consumer expectation test: Tests defective and unreasonably dangerousness of the product by asking whether the product was dangerous beyond the contemplation of the consumer. ii. Substance natural to preparation: If the injury was caused by a substance which is natural to the preparation of something (food), then the product was not unreasonably dangerous. c. The product is expected and does reach the user without substantial change in it’s condition. d. Liability is imposed even if the manufacturer used all reasonable care in the preparation and sale. 2. Third Restatement a. Get’s away from consumer expectations b. Adds distributor of the product (don’t have to actually sell) c. Strict liability is applied if the product which caused injury was an aberration of the intended design, even though all reasonable care was applied in preventing the aberration. E. Design defects 1. 2nd Restatement a. Consumer expectations test: A product in a defective condition unreasonably dangerous to the user or consumer if it is more dangerous than an ordinary consumer would expect when used in an intended or reasonably foreseeable manner. b. Risk/ Utility test: If the benefits of the challenged design to not outweigh the risks inherent in such design. This weighs the liklihood of harm, the gravity of harm, and the cost of preventing harm by using a different design. c. Burden of proof: The defendant may have the burden of showing that the risk utility balance shifts in his favor. (Barker) rd 2. 3 Restatement a. Puts negligence back into strict products liability b. Uses the risk/utility analysis from 2d. c. Reasonable Alternative Design: Plaintiff has to show: i. There was a safer alternative

ii. The safer alternative would have prevented or significantly reduced the risk of injury withough substantially impairing the product’s utility. iii. The safer alternative was both technologically and economically feasible when the product left the control of the manufacturer. F. Informational Defects 1. 2nd Restatement: The product is unreasonably dangerous because of a lack of information about the product. a. Even when a prouct is obviously dangerous, the manufacturer has a duty of informing the consumer how to use the product safely. b. If it can be anticipated that someone would be injured by the product, the burden of negating causation is likely put on the defendant. c. The warning must be adequate enough to prevent the danger that is warned against. i. A product that is not adequately warned against will likely be unreasonably dangerous. rd 2. 3 Restatement: Makes the lack of warning a negligence claim again. a. If there are foreseeable risks that could be reduced with a warning, then it is likely the defendant breached the duty to produce a safe product. b. Says that no duty exists to warn of dangers that are obvious or should be obvious G. Defenses 1. Contributory negligence a. Not used in second restatement because there is no negligence that can negate strict liability. b. Can be used in the third restatement because it is basically a negligence claim. c. If used, fits into comparative negligence scheme 2. Assumption of risk a. If the plaintiff voluntarily and knowingly assumed the risk occassioned by the defect, then assumption of risk is a defense. 3. Misuse a. Some courts factor misuse into the determination as to whether the product is actually defective. i. If the misuse was foreseeable, then the product is defective. ii. If unforeseeable then it was never a defective product. 4. Abnormal reactions a. Defendant is liable for the extent of harm just like every other tort i. Limit: Extremely abnormal reaction will not be compensated for. There has to be an appreciable number of persons who would be harmed in this way for it to be compensated.

5. Disclaimers a. Manufacturer’s cannot disclaim design defects 6. Compliance with statute a. Unlike in negligence, compliance with a statute that provides what type of warning should be given is sufficient. b. If there is no statute, then your duty is what the consumer would expect. i.e. if you advertise in spanish, your warning should be in spanish.