INTENTIONAL TORTS

1. BATTERY

Elements:1. ACT that causes harmful or offensive contact (unauthorized/unpermitted)2. INTENT desire or substantial certainty that harmful or offensive contact will occur.3. CAUSATION - ∆’s act caused Π’s injuries; must show ∆ is at fault4. DAMAGES – usually easily shown

Rule Name FactsIf ∆ has knowledge that a certain conduct is offensive to a person and commits it anyway, then BATTERY

Cohen v. Smith Π was in hospital to deliver baby; made it clear it was against her religion for male to see her naked; male nurse saw and touched her naked

If a Reasonable Peep could predict the outcome of the action that caused the Π’s injury, it can be derived there was intent

Reasonable Person Standard/Intent

No liability b/c no reasonable peep would find intent to cause offensive act.

Class hypo If a wife hugs hubbie and his vertebrae snap, paralyzing him, is she liable for battery?

Battery must have some sort of particulate matter or physical connection with the injured party. (Sneeze counts; breathing doesn’t)

Leichtman v. WLW Jacor Communications

Acclaimed anti-smoker appears on radio show; host blows smoke in his face.

If ∆ has substantial certainty that actions will inflict harm ( intent), then BATTERY

Garratt v. Dailey

5 y.o. moves chair; Π attempts to sit where chair was and falls; sustains injuries

∆ who intends a battery is liable even if the peep harmed is not the originally intended victim of the ∆’s harmful or offensive contact; there is intent under doctrine of transferred intent.

Davis v. White

∆ must be able to understand and formulate intent;H: no strict liability re: battery cases; intent is necessary element

Van Camp v. McAfoos

Π was on public sidewalk, ∆ - 3 y.o. struck Π’s right leg with tricycle, Π suffered injuries.

H: ∆ lacked malicious intent to commit offense; additionally, ∆ does not possess full mental capacity to have substantial certainty to what her actions would lead to

Walker v. Kelly Π taunting ∆ with bicycle. ∆ throws rock at bike, strikes Π in head

H: ∆ was unable to form intent required due to diminished mental capacity. Mental condition alone is not defense for battery; fact finders must decide whether the ∆ was able to form the necessary intent

White v. Muniz ∆’s g-ma in assisted living home and suffered from dementia; Π tried to change diaper while g-ma throw fit; Π change diaper and g-ma strike her and throw her out of room

NO INSANITY DEFENSES in Torts; may work in criminal casesH: rational intent not required for liability. Insanity does not excuse liability for tort

Polmatier v. Russ

∆ kills Π’s hubbie. ∆ claims insanity covers him from intent.

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so long as all elements of tort were present.

Elements of ∆’s conduct1. ∆ intends to create an offensive or harmful contact.H: ∆ is liable for battery when he acts intending to cause a harmful/offensive contact and a h/o contact results.

Snyder v. Turk ∆ was performing surgery. Π was an assistant to ∆ and had been making mistakes. ∆ gets agitates, grabs Π by the shoulders and pulls her down into the surgical field.

2. Contact can be with the Π or with and Object the Π is also in contact with.H: Battery b/c of physical contact through objects in hand

In class scenario

Π holding books to side of body; ∆ pushes them, does not touch Π

H: no battery, must have some physical contact with peep A. Even if the object is only few inches away, it is not battery if Peep A is not touching it.

In class scenario

Π has computer in front of him; ∆ touches it

3. NO Medical Operations w/o consent (Medical Battery cases – where a doctor performs an operations without consent)

H: Battery claim can be asserted when there was NO consent for prosthesis operation.

Montgomery v. Bazaz-Sehgal

Π went in for penile plaque removal; came out with inflatable penis prosthes

2. ASSAULT

Elements:1. ACT that causes immediate apprehension of harmful or offensive contact.2. INTENT to cause apprehension of harmful or offensive contact or actual h/o

contact to occur3. CAUSATION - ∆’s act caused Π’s apprehension (must be reasonable)4. DAMAGES – usually easily shown

1. Words alone do not constitute assault.H: Threats regarding the future are actionable, if at all, as IIED, not assault. Assault must be imminent & immediate fear. Ordinary words w/o imminent bodily contact cannot be assaults. Immediate must be reasonable.

Dickens v. Puryear

In 1975, ∆ and buds beat Π badly, threaten murder and castration, and release him. ∆ tells Π to leave town or he’ll kill him.

H: 1) If the ∆s put the Π in immediate fear for his life, an assault has been committed.2) Actions that would not constitute assault are: A) Words alone (e.g. “I’ll kill you” but no actual movement B) Words that negate immediate harm (e.g. I would kick your ass if there won’t so many people around)

Cullison v. Medley

Π was accused by the ∆s of bothering a female family member. ∆s enters Π’s home, berate him and threaten to shoot him.

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2. Doctrine of Transferred Intent applies here as well; can transfer peep or intentional tort.H: A ∆ is liable under transferred intent when he/she

1) Intends to commit a torts against peep A and results in committing a tort against Π

and/or2) Intends to commit one type of tort

and instead accidentally commits a different type (e.g. intends assault, commits battery)

Altieri v. Colasso

Π is in backyard of someone’s house. ∆ is next door and intentionally throws a rock over the fence meaning to scare, not hit, the peep who lives there. Instead, the rock hits the Π

Transferred Intent: Π is allowed to recover since ∆ intended to hit Peep C, but inflicted injury on Π instead.

In class scenario

∆ shoots at peep C, but hits Π. ∆ intended to commit battery against C.

Random in class scenariosNo assault, stalkers must show pattern of conduct to be liable for assault, b/c it is impossible to prove after one instance that there is imminent bodily harm.

Psycho ∆ calls Π repeatedly saying he is watching Π (stalker)

Could be assault but there is a problem with gender differences. Male jurors may find it hard to reasonably decide that a woman was in immediate fear of harm. As a result, many states are trying to clear up the gender gap through statutes.

Late at night, Π is walking to the car and hears footsteps that seem to be following the Π.

Assault? No, no apprehension. ∆ throws a rock at Π w/ the intention to scare/threaten Π. Π never even sees the rock

Assault? No. No apprehension. Battery? Yes, b/c contact.

Same as above, but rock hits Π.

Assault? No, no apprehension. Battery? Yes, b/c physical contact with something that was touching

Black male (Π) at whites only buffet. Manager ∆ grabs plate away from Π Π does not see mgr coming.

3. FALSE IMPRISONMENT

Elements:1. ACT of restraining an individual against her will2. INTENT to restrain individual against her will3. LACK OF PRIVILEGE – sometimes lawful imprisonment is allowable4. MEANS OF ESCAPE – if there is a reasonable means of escape, then Π must try5. DAMAGES – the Π must either know of imprisonment or must suffer harm due to

imprisonment

H: The mere threat of physical force, or a claim of lawful authority to restrain , is enough to satisfy the confinement requirement for false imprisonment, AS LONG AS:

1. The injured party is aware of the confinement; OR

McCann v. WalMart Stores

Π is at walmart w/ kids; 2 employees accuse kids of shoplifting week before; tells Π that they must come with them until cops arrive. They do not call cops and instead call security guard for ID;

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2. The injured party is unaware of false imprisonment, but sustains injury during their confinement

security guard tells employees they have the wrong kids. Π and family are released. Employees never used physical force.

H: a) False Imprisonment IF Π feels leaving would invoke physical force.b) Assault IF Π feels immediate bodily danger.c) Battery IF Π sleeps with professor b/c of offensive contact.

In class scenarios

Professor ∆ threatens student Π in office: sex or F.

Transferred Intent case: ∆ 1st Assaulted Π and the False Imprisoned Π.

In class scenarios

∆ points gun at Π. Π falls off a cliff and is dangling from a limb.

No False Imprisonment b/c there is no threat of physical contact or force.

In class scenarios

Professor tells class to “stay in the classroom until 9:32 or you will receive an F”

YES, false imprisonment, b/c reasonable minds would find threat of physical contact.

In class scenarios

Prof. and 10 steroid boys block door and keep students in room until a question is answered intelligently.

No false imprisonment b/c reasonable peeps would not feel a threat of physical contact.

In class scenarios

Same as above, but Prof is with 105# girl.

YES, false imprisonment b/c it is against Π’s consent.

In class scenarios

Π is in wheel chair at rehab place. Π is taken to sunroom and argues not to be put there. Π is stuck there for one hour.

YES, false imprisonment even if there is a possible escape from the false imprisonment, the means of escape must be safe and reasonable.

In class scenarios

Π and ∆ are in a car going 70 mph. Π wants out. ∆ says “fine, but I am not stopping”

** IF you did not place the peep in the imprisonment and find out about it, you have no legal duty to release that person; but, id you begin to set the peep free, you must follow through with the actions, or you will be liable.EXAMPLE: you hear a peep in a locked closet, you open the door, see it is someone you hate and close the door again – you are now liable for their false imprisonment; however, had you just heard the peep and never opened the door, you are not liable.

4. TRESPASS TO LAND

Elements:1. ACT – either your body or tangible object enters the land2. INTENT – either actually intend to enter, or accidentally enter and refuse to leave

land3. DAMAGES – liability even if there is no physical or economic harm done.

**Can be an invasion or possession, not just ownership (thus apartment renter could sue for trespass.)

∆ has intentionally entered onto ∆’s land and is thus, by strict definition, committed trespass.

In class scenario

∆ sees a dog coming toward him. ∆ steps onto land of Π.

5. CONVERSION OF CHATTELS

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Elements:1. ACT – exercise substantial dominion over chattel2. INTENT – this can either be intentional taking or could be mistaken taking, either

way liable; it just must be an intent to exercise substantial dominion over chattel3. DAMAGES – compensate Π for damages

H: ∆ is liable b/c he is exercising dominion over chattel and has intended to do so (exc. UCC).

In class scenarios

Peep B steals Π’s watch and sells it to ∆. B skips town.

H: ∆ is liable even though he did not know of his wrongdoings.

In class scenarios

§ takes tort book and burns it, ∆ believes tort book is his. Book is actually Πs.

6. TRESPASS TO CHATTELS

Elements:1. ACT – exercise dominion over chattel (intermeddling with chattel; time period

does not matter)2. INTENT – this can either be intentional taking or could be mistaken taking, either

way liable; it could just be an intent to exercise dominion over chattel3. DAMAGES – compensate Π for damages and return chattel

The ∆ has trespassed on the Π’s site and is thus liable for damages. It would not matter if the ∆ had only trespassed for 1 second, time is irrelevant.

In class scenario

Ebay Π wants to sue spider websites ∆ for violating their website

1. Conversion – loss in gas2. Trespass to Chattel – “borrowing”

the car3. Trespass to Land – when ∆ stepped

on property to get car.

∆ takes Π’s car from Π’s garage for a joyride

7. CIVIL RIGHTS VIOLATIONS

**Section 1983: Person, acting under the color of law, who deprives a citizen of rights, privileges, or immunities secured by the Constitution, will be liable to the injured party.

A peep operating under the color of law is liable if he fails to intervene when another color of law operator is :1. Using excessive force,2. Unjustifiably arresting a citizen, or3. Committing a constitutional violation against a citizen.

Yang v. Hardin Π’s store was broken into. Π notices one of the cops (∆’s partner) is stealing a pair of shorts and confronts him. ∆’s partner gets into argument with Π. Argument/fighting occurs over a period of time. ∆ never tries to intervene on the abuse.

H: 1) 4th Amendment protects citizens when law enforcement harasses or abuses them,2) The test of the harassment/abuse must be reasonable, not subjective, and 3) Reasonableness will be relied on through the eyes of reasonable peeps at

Graham v. Connor

Π has diabetes. Π was detained on false pretenses while suffering from an insulin attack and was not allowed to receive treatment he needed.

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the scene.H: 1) There was no search or seizure, thus there is no 14th amendment claim, and2)Liability for negligent infliction of harm is not under the threshold of constitutional due process.

County of Sacramento v. Lewis

Speeding motorcycle passenger (Π) falls & dies during a high speed chase with cop. Cop car (∆) hit Π when he fell.

H: 1) Application of unreasonable force to a prisoner does not violate the 8th amendment b/c the 8th is enacted when cruel or unreasonable punishment is applied, but2) Prison officials are liable for malicious force against inmates.

Hudson v. McMillan

Prison inmate (Π) claims 8th amendment violations for beatings by prison guards (∆).

INTENTIONAL TORT DEFENSES (∆ has burden of proof)

1. SELF-DEFENSE/DEFENSE OF 3rd PERSONS

Elements:1. PRIVILEGE extends as reasonably necessary to prevent immediate harm;

retaliation and excessive force will not be considered self-defense2. THIRD PEEPS may be protected in the same way as he would defend himself

**Property defense does not allow deadly force**Deadly force only allowable when the same force or reasonable peeps would find the same force is threatened.

H: If Π has a safe and reasonable escape, Π must try that 1st. If Π does not, he can use deadly force to defend himself from deadly force threatened.

In Class scenarios

∆ pulls gun on Π from 10 ft away

H: Reasonable peeps would believe that threat is real and thus self-defense is legal.

In class scenario

Same as above, but Π’s gun isn’t loaded. Π doesn’t know that.

H: Π must try to escape if he can do so, retaliation is NOT allowable.

In class scenario

Same as 1st scenario, but ∆ stops to reload.

H: Self-defense is not claimable, b/c reasonable peeps would not find the situation appropriate.

In class scenario

∆ taps you on the shoulder, Π thinks it is mortal enemy, turns and karate chops ∆ (who turns out to be buddy)

2. ARREST AND DETENTION

Elements:1. Privileged if Law Enforcement2. Shopkeepers’ Privilege (Restatement)

a. Reasonable belief by ∆b. Peep has possession of goods without payingc. Detention time, Purpose and Hospitality is REASONABLE

H: If a property owner has reasonable cause to believe one is stealing from his store, he may detain individual to retain/recapture property. However, if no

Great Atlantic & Pacific Tea Co. v. Paul

Π was recovering from hear attack and shopping at grocery store (∆ was manager); ∆ thought Π was

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“reasonable belief” is found, he can be held liable for false imprisonment. Decision by Maryland courts which did not follow Restatement.

shoplifting. Detained Π and searched him. Π had not put anything in his jacket nor made any movement toward door.

3. DEFENSES AND REPOSSESSION OF PROPERTY

H: The setting of dangerous devices is only justifiable if:

1. Trespasser is committing a felony of violence or felony punishable by death, OR

2. Endangering human life in his act.**The use of deadly force is not allowed when protecting property.

Katko v. Briney ∆ rigged a shotgun at the door of his farmhouse which kept getting broken into. ∆ broke in and suffered damages from shotgun blast.

H: Force toward another is only justifiable if it is appropriate to the threat. One can only use deadly force if one’s safety (or another peep’s) is at risk when intruder is on his property.

Brown v. Martinez

∆ shoots Π at the side of his property. Π’s friends were stealing watermelons at the other side of property; ∆ meant to scare Π’s friends – didn’t know Π was there.

Regarding ShopliftersYou can only regain possession if in hot pursuit if a criminal; after that, you must leave it up to the police or will be liable for any problems as you are escalating a situation and not keeping the peace.

Repossession of GoodsUCC provides this is lawful; IF it can be taken peacefully, it is allowable, if not it would just be escalating the situation.

4. CONSENT

Elements:1. Peep must have capacity to give consent (minors, drunk, mentally ill, druggies

DO NOT02. Conduct and/or Words may give consent3. Illegal acts cannot be consented to

H: Consent is not effective if a person lacks capacity to give consent. If ∆ knows of incapacity, ∆ is liable; if ∆ is truly unaware of incapacity, ∆ can claim consent as a defense.

Reavis v. Slominski

Π previously worked for ∆ and had sex with him while there; Π returns to work and at new year’s eve party ∆ comes onto Π. ∆ says you want it and Π felt compelled.

H: If specific consent is given regarding an act or conduct, that consent must be followed else the ∆ could be liable for all actions outside of the realm of consent given.

Ashcraft v. King Π agreed to operation on condition any blood transfusions come from relatives; ∆ uses non-relative’s blood which was HIV positive

H: “Implied consent” is given btw a doctor and patient after the patient is put under and if there is no one with authority to

Kennedy v. Parrott

Π goes in for appendectomy; ∆ finds ovarian cyst and punctures it. Π develops

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consent for patient immediately available. Why? b/c most reasonable peeps would comply with the doctor’s orders. Implied consent does have its limits (e.g. can’t remove breast or testicle b/c tey found cancer)

phlebitis in leg and files claim against ∆ claiming it resulted from punctured cyst which was outside of her consent.

H: If ∆ knows or has reasonable belief that the consent is not informed consent from Π, he is not allowed to use consent as a defense (judged by reasonableness)

Doe v. (Magic) Johnson

Π sleeps with ∆; ∆ has HIV. ∆ knew of STD or had knowledge he was at high risk and did not use condom. Π knew none of this and contracts HIV.

State statutes regarding consentStates limit age for the following conduct: sex and abortions.

5. PRIVILEGES NOT BASED ON Π’S CONDUCT

ARRESTS AND SEARCHESLaw Enforcement is privileged to enter land to execute search or arrest warrants. They are not privileged to invite the media to cover their heroics. Sans Florida, media has no independent privilege to enter to cover news in the absence of landowner’s permission.

PUBLIC RIGHTS1. Public places cannot exclude peeps on basis of such things as race or gender.2. There is a privilege for peeps to enter other’s land to reclaim one’s goods.3. Privilege of public and private necessities (cases below).

H: ∆ is not liable for Π’s damages if:1. In good faith; AND2. Necessary to stop and impending

disaster.

Surocco v. Geary

∆ blew up/destroyed Π’s house to stop a growing conflagaration in San Francisco. Π recovered nothing for his damages.

H: In a public necessity situation, ∆ must compensate innocent parties for damage done. However, the individual ∆s here would not be liable, the city/police department would.

Wegner v. Milwaukee Mutual Ins. Co.

Π’s house became involved in a police suspect chase when the suspect ran into her house and held himself there for 3 hours. To end standoff, cops shot tear gas/flash-bang grenades into house, causing extensive damage. ∆s (cops) refuse to pay for damages.

H: There is a limit to private necessity; there is a justifiable cause of putting one’s personal property below another’s life. Thus, test is what actions a reasonable peep would do because of necessity.

Ploof v. Putnam

∆ owned island; Π’s are sailing near it when a huge storm begins. Π tried to tie boat onto ∆’s dock. ∆’s servant, acting under orders, undocks boat. Damages result.

H: A ∆ is liable for all damages resulting to the Π’s property when ∆ has been forced to remain on the property in the best interest of preserving human life.∆ has private necessity to trespass:

Vincent v. Lake Erie Transportation Co.

∆’s boat is docked on Π’s dock while unloading cargo. Upon finishing, a storm blows in; ∆ is unable to leave dock. ∆’s boat causes damages to

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1. If no damage, no liability2. If damage, liability for Π’s damages

caused by trespass.

Π’s dock.

Greater Good vs. The Needs of FewPrivileges cover those for the greater good (e.g. killing 2 kids on the side of the road rather that having entire bus go over cliff).

NEGLIGENT TORT CASES

Elements:1. Does ∆ OWE A DUTY?2. Did ∆ BREACH THAT DUTY?3. Was ∆’s breach CAUSE OF Π’S INJURIES?

a. Cause in Factb. Legal Causation (proximate cause)

4. Did Π SUFFER INJURIES?

1. Establishing DutyDUTY OF CARE – changes proportionally to the danger/conduct/person involved in act; not a constant, always changing.STANDARD OF CARE – what a reasonable peep would do; never changes, is constant.

DUE CARE/REASONABLE PRUDENT PERSON STANDARD

H: There is one standard of care required for all peeps – this standard requires reasonable peeps to exercise their duty of care in proportion to the danger involved in his act.

Stewart v. Motts

Π and ∆ were repairing a car fuel tank; Π poured gas on carburetor. ∆ turned key at some time; sequence of events is contested. Π is injured.

SUDDEN EMERGENCY DOCTRINE: (rejected by some states, Texas included) a peep who is confronted in sudden peril, not resulting from their own actions, is not expected to act as a reasonable peep in calmer situations, but is expected to act as a reasonable peep under the same circumstances. The SED generally just results in jury confusion.

Lyons v. Midnight Sun Transp. Servs. Inc.

Π pulled out of a parking lot in front of ∆; Π was killed. ∆ claimed he braked and tried to steer around her. Disputed is: 1) ∆ may have been speeding, & 2) ∆’s acts may have been inadequate.

H: The conduct of a handicap peep must act with the same duty of care as another with the same inflictions. Exception is that drunk peep must act with SOBER reasonable care.

Shepard v. Gardner Wholesale, Inc.

Π suffered from cataracts. Π tripped on a raised concrete slab in front of ∆’s business.

H: The conduct of a handicap peep must be with the same reasonable care as others with his same inflictions.

Roberts v. State of LA

Young blind man knocks down old guy on way to toilet.

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H: Peeps with Mental Disabilities are liable for their negligent torts. BUT a peep who inflicts a tort against one who is hired to care for the tortfeasor is not liable.

Creasy v. Rusk ∆ suffers from Alzheimer’s and was put under the care of BHC. Π was a nursing asst at BHC; Π was aware that ∆ was prone to violence/aggressive behavior. ∆ kicked Π many times during a temper tantrum.

H: There is a higher duty of care with an increase of expertise. Held to duty of care of a reasonable peep with the same knowledge.

Hill v. Sparks ∆ operated a machine and had seasonal experience with it. ∆ instructed Π’s wife to stand on a ladder on machine; wife fell and died. ∆ knew of risk as he had overheard a conversation discussing the risk.

H: A child engaging in activity that is inherently dangerous shall be held to an adult standard of care. A child’s normal activity holds her to the standard of care which would be reasonable for a reasonable child of her age.

Robinson v. Lindsay

Π, 11 y.o., lost full use of her thumb while ∆, 13 y.o., was operating a snowmobile

Negligence as a Matter of Law (Negligence per se)Violation of Duty of Care Arising from a Statute/Ordinance/Administrative Regulation

1. Π IS WITHIN THE CLASS OF PEEPS PROTECTED BY STATUTE2. INJURY WAS INJURY STATUTE WAS TRYING TO PROTECT

**there may be no negligence per se just because a peep was unlicensed in a situation where he should have been licensed.**the resulting injury must be result of violation of statute.**Eliminates Π’s need to prove a duty was owed b/c statute prescribes duty.

H: All violations of statutes/ordinances/ administrative regulations can constitute negligence per se.

Martin v. Herzog

Π was traveling by buggy and rounded a curve when ∆ was coming around same curve; ∆ crossed the center line and struck Π; Π died. Statute states buggies must have front/back lights; Π had no lights on.

H: Π is not liable for contributory negligence, even if breaking statute, if the actions taken were ones that reasonable peeps would have taken for safety measures. Statutes designed to protect pedestrians, but in this case, statute was putting pedestrians in more danger.

Tedla v. Eilman

Πs were walking w/ the flow of traffic; ∆ hit them. Statute states peeps must walk to the left of the center line; Πs were walking to right.

H: EXCEPTIONS – BASIS FOR IGNORING STATUTE:

1. Violation is reasonable b/c of actor’s capacity (too young, medical emergency, lack of mental capacity)

2. Violator does not know, nor should

Impson v. Structural Metals Inc.

∆’s truck attempted to pass a car with in 100 ft of an intersection; ∆’s truck struck a car turning left into the intersection. Statute holds no passing within 100 ft of

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the violator know, of the occasion for compliance (unexpected tail light goes out)

3. Violator is unable after reasonable diligence or care to comply;

4. Violator is confronted with emergency not due to his own misconduct (unexpected tire blowout, brakes failing, smoke/dust from highway)

5. Compliance would involve greater risk of harm to actor or others

intersection.

H: Conduct of child in negligence per se is not held to a standard of an adult; rather, child is treated with the general rule of child standard of care.

Rudes v. Gottschalk

Π, 8 y.o., was struck by ∆’s car when crossing a “controlled access expressway”; ∆ is claiming negligence per se b/c Π was not in a crosswalk and statute holds that pedestrians must yield to the right of way if not in crosswalk.

H: There is no negligence per se claim b/c Π’s injuries were not the injuries the statute was meant to protect. Thus, no negligence per se if circumstances are outside the statute.

Wright v. Brown

Dog was released from quarantine early (in quar. b/c he bit a peep); quarantine is meant to hold dogs for 14 days to check for rabies. Π was attacked by dog while dog should have been in quarantine. Π suing dog warden of quar. area and city.

H: Π must be in class of peeps statute is trying to protect. Had ∆ been following the statute and the same circumstances occurred, the results would have been the same.

Haver v. Hinson

∆ pulled over on the left hand side of the street and parked to talk to a friend. Π was a little kid with the friend. Upon leaving ∆ checked mirrors and pulled out. ∆ heard a thud and stopped car. Small kid was under car. ∆ broke a statute of parking on the wrong side of the road.

2. Establishing Breach

ASSESSING REASONABLE CARE BY ASSESSING RISKS/COSTSH: If ∆ acts with the same standard of care as a prudent peep in same circumstances would have, ∆ is not negligent.The law preserves that you hold any chance of harm to human life over any chance of harm to property.

Indiana Consolidation v. Mathew

∆ was borrowing brother’s lawnmower; lawnmower catches fire and burns garage down.

H:1. Some jobs have inherent risks and

Stinnett v. Buchele

Π was employed by ∆ as a farm laborer. Π was painting

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there is no way to make them totally safe; as long as reasonable measures are taken, there is no negligence.

2. Employers owe a duty of ordinary care as other employers would hold in same situation. An employer’s duty is limited to their own knowledge.

3. If the situation is in Π’s expertise, and not in the knowledge of ∆, Π is in the better position to minimize the risk due to expertise.

barn roof, fell and sustained injuries. ∆ was a doctor and Π has had jobs where he has painted roofs before.

H: Some hazards are so inherently dangerous that their existence is adequate warning and thus dissolving the landowner’s duty of care. This does not hold if the danger along is not, in itself, enough to eliminate serious injury. For example: Chrysler Case – Texas S. Ct. held that Chrysler did not need to warn of riding in back of trucks b/c danger was obvious.A landowner’s duty is to warn of danger.

Halek v. United States

Π (mechanic) attempted to retrieve a bold which fell into a cage surrounding an elevator pulley. Pulley injured Π. ∆ had put cage around elevator pulley to protect workers.

H: A design company must anticipate the environment in which its product will be used and it must design against the reasonably foreseeable risk attending the products in that environment.

Bernier v. Boston Edison Co.

∆ owns an electric pole which was involved in a number of events resulting from a traffic accident. The pole fell on Π’s legs; Π is suing for the negligently placed pole.

H: Foreseeability alone does not constitute negligence. The risk of harm to an invitee is weighed against the privilege to protect one’s property. Obviously, the ∆ would have overstepped this privilege had ∆ shot a gun in the store.

Giant Food, Inc. v. Mitchell

Π was shopping at ∆’s store. Store manager attempted to apprehend a shoplifter. Shoplifter knocked down Π as he ran out the store.

H: Benefit of society at large may outweigh particular interest of 1 peep. Foreseeability must be present for negligence; here there was no foreseeability, had the ∆ been at a horse track, there would have been foreseeability.

Parsons v. Crown Disposal Co.

Π was thrown from a horse when a garbage truck’s noise startled the horse.

H: Hand’s Risk Utility Formula = cost – justified rules of safety

Burden<Probability (Injury/Loss) = DutyBurden>Prob. (Injury/Loss) = No Duty

United States v. Carroll Towing Co.

Peeps operating Carroll Towing negligently caused another boat to break adrift. That boat collided with a tanker and sank. The boat did not have a bargee on board.

Proving Conduct

H: Negligence must be proved by a preponderance of evidence (must prove ∆ was negligent and that ∆’s negligence was cause of Π’s injury). Π must prove ∆

Gift v. Palmer ∆ was driving down street. Π was hit by ∆’s car. No eyewitnesses; ∆ does not know what happened and Π

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breached a duty. cannot remember.H: A witness’ credibility is judged by the fact finders (jury).

Upchurch v. Rotenberry

Π was riding with ∆; ∆ lost control of car and Π died.

H: Circumstantial evidence that infers other evidence is allowable.

Forsyth v. Joseph

Villa hit a car where Π was an occupant. Circumstantial evidence showed Villa was speeding.

Evaluating Conduct

H: If the appropriate amount of care is within the realm of everyday activities and common knowledge, expert testimony is unnecessary.

District Columbia v. Shannon

Π was on a slide located in a playground maintained by ∆. Π put her thumb in a hole at top of slide and thumb came off.

H: If a jury can reasonably infer, by common knowledge and ordinary human experience, that the ∆ did or did not exercise reasonable care, expert testimony is not needed.

John Q. Hammons, Inc. v. Poletis

Π grabbed onto a towel bar in ∆’s bathroom (at a hotel). Towel bar fell off, exposing mold.

H: The longer a potentially dangerous situation exists, the greater the likelihood that someone will be hurt and the greater the likelihood that the ∆ breached his duty.

Thoma v. Cracker Barrel

Π slipped in common area of ∆’s restaurant. She and a witness had not seen anything spilled there in approx 15 minutes.

H: Proof of general custom/usage is admissible evidence b/c it may establish a standard of ordinary care, even where an ordinance state certain minimum requirements and those requirements have been met.Evidence allows jury to decide what the standard ought to be.

Duncan v. Corbetta

Π was injured when ∆’s top step collapsed.

H: Safety Codes/Manuals may be admitted into evidence as they show a “common practice.” They may not be presented as an absolute measure of due care.

McComish v. DeSOI

∆ did not follow manual/safety codes in making an “a” sling and peeps were hurt.

H: While custom and “reasonable peep” acts may or may not overlap, custom may be overruled by the standard of care a reasonable peep would have been better and safer.EXAMPLE: medical research – custom may be laparoscopic surgery, but the surgery may be safer if done open.

T.J. Hooper 2 barges towed by 2 tugs were lost at sea. Tugs did not have radios on board.

Res Ipsa Loquitur“The Thing Speaks for Itself”Π must prove:1. Event normally does not occur absent of negligence.2. Negligence is attributable to ∆ and all other possible reasons/peeps have been dismissed.** There is a 3rd more debated element (see below)

H: Res Ipsa Loquitur – the thing speaks for itself.

Byrne v. Boadle

Π was walking down the street; barrel of flour

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The act itself was SO obviously negligence that proof of breach is unneeded. #1 Question: Does the act happen more often than not b/c of negligence?

dropped on his head. Barrel was from ∆’s store.

H: RIL – harm suffered by Π may be inferred to have been caused by ∆’s negligence when:

1. Event normally does not occur absent negligence

2. Negligence is attributable to ∆ and all other possible reasons/peeps have been dismissed.

3. Negligence is within scope of ∆’s duty to Π.

Valley Prop. V. Steadman’s Hardware

Π rented ∆ workspace at his warehouse. Fire starts in ∆’s area and burns warehouse to the ground.

H: RIL –1. Event normally does not occur

absent negligence.2. Instrumentality under ∆’s exclusive

control – debatable.3. No negligence on part of injured

person – Π or 3rd party cannot have contributed to the injury.

Eaton v. Eaton Mom and daughter involved in car wreck. Dad sues daughter for mom’s death b/c she was driving.

H: Control requirement is not rigid; it is a basis for the inference of negligence, but it does not have to be found that the ∆ maintained exclusive control. Π’s use of the instrument does not, in itself, bar RIL instructions.

Giles v. City of New Haven

Π is an elevator operator hurt b/c of elevator problem. ∆ is the maintenance for the elevator.

H: Pure speculation cannot be sufficient for RIL claim. Π has the burden of producing some type of evidence. If the Π does not produce this, the court may think/infer:

1. Evidence proves Π wrong, or2. Π didn’t bother to investigate.

Warren v. Jeffries

∆ is run over by car which was parked at his house and he was in b/c his momma and family were running errands.

H: If Π’s evidence toward RIL is so extensive as to leave nothing for the fact finders to infer, no need to instruct on RIL.

Windmyer v. Southeast Skyways

Airplane crashed; no one knows why.

3. Establishing Harm and Causation in Fact

H: No injury for ∆’s negligent actions, no liability for ∆.

Copeland v. Compton

Π alleges ∆ negligently caused accident btw them and Π suffered injuries. Π’s injuries concurred with the same injuries he had for years.

CAUSE IN FACT

1. But-For Test

H: Negligence must prove cause in fact; Π must show but-for ∆’s actions, Π would have avoided injury.

Salintero v. Nystrom

Π was in accident, went to ∆ for xrays. ∆ forgot to ask if Π was pregnant. Π didn’t know

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she was pregnant. Π had to abort baby.

2. But-For Possible Issues

H: If the tortuous act of 2+ ∆s join to produce an indivisible injury, all ∆s will be held jointly and severally liable. If the injury can be divided, proportional damages should be awarded.

Landers v. East Texas Salt Water Disposal

Π owned a small lake which ∆’s dumped salt water and oil into. There was no way to separate the injury to the lake.

H: Where a ∆’s negligent acts occurred at the same point of another’s negligent acts (NOT Πs), and both acts alone would have resulted in Π’s injury, the jury may be charged with the substantial factor test.SUBSTANTIAL FACTOR TEST – requires a jury to decide the ∆’s degree of causation, if the degree of causation is found to be substantial, the jury may hold the ∆ liable.

Anderson v. Minneapolis, St. Paul Railway

Π’s house burned down; proof that another fire may have mingled with ∆s fire and that fire would have destroyed Π’s property anyway. (indivisible cause – either origin would have resulted in injury)

3. Proof of what exactly was caused

H: ∆ is liable for injuries they cause and which can be determined.**When ∆’s negligence causes harm, but other circumstances exist so that harm would have been caused absent of ∆’s negligence, the ∆ is liable for the difference btw the condition the Π would have been in had ∆ not been negligent and the Π’s condition.

Dillon v. Twin State Gas & Electric Co.

Π lost balance off of bridge girder and in an attempt to stop his fall, grabbed on to an uninsulated high voltage current wire (∆s); Π died of electrocution.

H: Where 2+ ∆s commit substantially similar acts, one which caused the Π’s injuries, the burden of proof shifts to the ∆s to prove whose act caused the injury. If the ∆s are unable to do so, both ∆s must be held liable for the injury (i.e. no divisibility, both held liable)

Summers v. Tice

Π was with 2 ∆s hunting. Both ∆s shot in Π’s direction. Π was hit in the eye and the mouth. No way to tell which ∆ hit where.

H: There is a cause of action for LOST CHANCE OF SURVIVAL in med mal cases. Here, the ∆ could recover for the 30%.

Wollen v. DePaul Health Center

Π’s hubby dies of cancer. ∆ failed to diagnose and treat Π’s hubby. Had ∆ done so, Π’s hubby would have had 30% chance of survival.

H: Π must prove by a preponderance (50%) of evidence that ∆’s actions caused the death. Thus, in this case, 40% chance of survival means that it is more likely that the disease caused the death, not the doc’s negligence. Had the Π had a 51% chance, preponderance of evidence shows it was more likely the doc’s fault. CHANCE OF SURVIVAL BY PREPONDERANCE.

Fennell v. Souther Maryland Hosp. Center

Π’s wife dies b/c of negligence in operating room. Had she been seen and diagnosed, should would have had a 40% chance of survival.

H: INCREASED RISK OF HARM – a decrease of probability in long-term survival due to the ∆’s negligent actions is grounds for Π’s

Alexander v. Scheid

Π was misdiagnosed by ∆ and by the time she went for a 2nd opinion, her chance of

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recovery as a negligence c/a.**EXAMPLE – TOXIC TORTS: difficulty is that problems take a long time to develop; thus creating a challenge of who gets compensated now for projected increased risk; statutes have begun to regulate distribution of award.

survival was significantly reduced due to the delay.

4. Legal / Proximate Cause

H: Π’s injuries must be within the foreseeable scope of risk created by ∆’s negligent actions for ∆ to be negligent under proximate cause.

Medcalf v. Washinton Heights Condo Assn

Π buzzed her friend from outside of apartment; buzzer for door broken. Before friend could come and get Π, Π was attacked. ∆ is condo assn.

H: The duty to avoid injuring others extends only to those who the ∆ should foreseeably anticipate are at risk from ∆’s negligent actions.Π was “unforeseeable Π” whom ∆ owed no duty. i.e., Π was not in a foreseeable zone of danger.**DISSENT: ∆ owes a duty to everyone!

Palsgraf v. Long Island RR Co.

∆ was railroad guard; pushed man into rr car as he was trying to make the train. Unknown man’s package fell; fireworks were inside. Fireworks cause an explosion which caused scales flying. Π injured by scales.

Rescue DoctrineA attempts to rescue B from C’s breach of duty (B is in peril). A is injured rescuing B; C is liable. It is foreseeable that C’s negligence may bring about a rescuer. Therefore, proximate causation and C is liable fore damages resulting to A (as long as A is not acting in risky, etc. behavior).

H: An accident which occurs in a way that is not foreseeable is still held to the ∆’s liability IF the ∆’s breach of duty foresaw type of accident that occurred.The accident was w/in the ∆’s scope of risk.

Hughes v. Lord Advocate

Lantern fell into exposed manhole left open by ∆s. Big explosion, Π seriously injured.

H: There is no proximate cause action for negligence if ∆’s breach of duty does not cause the foreseeable injury/risk to the Π (here ∆’s duty was to not splash Π when he negligently knocked lid in; nothing was known of unexpected factor).

Doughty v. Turner Manufacturing Co.

Π was a worker at manufacturing plant. ∆ knocked asbestos/cement lid into a vat of hot-ass molten; the lid and chemicals in vat caused and unexpected explosion and seriously hurt Π.

H: If ∆’s negligence results in the foreseeable harm/injury, ∆ is liable for the full extent of the harm, regardless if the extent was not foreseeable.

Hammerstein v. Jean Development West

Π had diabetes, was supposed to stay on ground floor, got put on 4th floor, had to go down the stairs when a false fire alarm went off (had occurred many times before, ∆ never got the glitch fixed). Π sprains ankle and gets a blister . . . ends up losing foot.

H: ∆’s actions are negligent if a foreseeable Mellon Π was stopped by a cop and

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harm/injury results to a peep w/in the ∆’s duty of care; if the injured peep us not w/in that class of peeps, Π’s injuries were not foreseeable and ∆ is not held liable.**B<P(I) – define duty, is risk w/in scope of duty?

Mortgage Co. v. Holder

taken to parking garage and sexually assaulted. ∆ owned parking garage and knew that crimes took place there (generally).

Thin Skull CasesContact caused by ∆ which may have caused only minor damages to most, creates large, unforeseen damages to Π. Π recovers fully. ∆ must “take the Π as she finds him.” Therefore, if Π has small blood clot and ∆’s knock on head causes it to rupture, ∆ is liable for full extent of damages.

Fire Cases∆ negligent in setting fire. Fire spreads beyond foreseeable injury. If through no fault of the Π’s damages are more severe, ∆ is liable. New York limits loss to the 1st Π; that Π is the only one who recovers.

H: ∆ is not liable for intentional criminal acts of another party which inflicted the harm/injury. The acts are not foreseeable and constitute a superseding intervening cause.

Watson v. Kentucky & Indian Bridge & RR

∆’s RR negligently dumps derails gas tank car and gas springs a leak. 3rd party throws a match; explosion occurs and Π is injured.

H: An intervening act will not serve as a superseding cause (releasing ∆ of liability), IF the foreseeable risk of the intervening act is the same foreseeable risk associated with ∆’s negligence. *B<P(I)

Derdiarian v. Felix Contracting Corp.

Π was working beside a kettle full of lot liquid enamel; ∆ set kettle facing on-coming traffic with only 1 horse barricade and 1 flagman. 3rd party comes down the road and has seizure (4got to take medicine). Car hits kettle and hot liquid strikes Π. Π harmed extensively.

H: ∆ & 3rd parties negligence were not concurring. The ∆ negligence put the bus into the position which had NO bearance on the 3rd parties negligence (thus bus was but a condition). The result would have been the same had there been no negligence on ∆’s part (i.e. sani truck is only culprit)

Sheehan v. City of New York

Sheehan (∆) drives NYC bus; Π is a passenger. Sheehan does not pull in bus lane and instead lets peeps out in driving lane. Sanitation truck’s brakes fail; sanitation truck rams bus.

H: ∆ is not liable for 3rd party’s intervening act which was not foreseeable to the ∆’s negligence. Π could have been in the same position without ∆’s negligence.

Ventricelli v. Kinney System Rent A Car

∆ rents Π a car with a faulty trunk. Π, parked on side of street properly, is attempting to slam trunk shut. A 3rd party (a couple of car lengths back) car suddenly lurches forward and rams Π.

H: TERMINATION OF RISK – when the risk of ∆’s negligence is over, and further situations can no longer be attributed to ∆ as a matter of proximate risk.

Marshall v. Nugent

Π was in car w/ buddy. Buddy was forced off the road b/c of oncoming truck. Truck pulls over to help buddy pull car back onto the road. Π runs to top of hill to warn oncoming traffic.

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Another car hits Π.H: If a ∆ responsible for an accident which causes Π’s injuries, ∆ is also liable for any injuries/death which occurs during the course of medical treatment while treating the Π’s injuries.

Anaya v. Superior Court

Trash truck collides with Π’s family. Π is being airlifted to a hospital. Helicopter crashed; Π dies.

DEFENSES TO NEGLIGENT TORT CASES

1. Contributory Negligence/Comparative Fault

Traditional Old School Rule

OLD SCHOOL CONTRIBUTORY NEGLIGENCE – Π may not recover any damages if Π was not exercising due care when involved in an accident arising from ∆’s negligence. Π is barred completely from recovery.

Butterfield v. Forrester

∆ had part of road blocked with a pole while he was repairing his house. Π came along riding his horse (Sans ordinary context) and was thrown when the horse hit the ∆’s pole.

Comparative Negligence Rule

H: A jury may reduce Π’s damages if it is found that Π was contributory in the negligence (reduction is in the % the jury finds that the Π was negligent). Contributory negligence is based on what a reasonable peep would have deemed as risky, regardless if the Π did or did not.

Brittain v. Booth

Π went into excavation of underground tank and it caved in on him. Π was found 49% negligent and ∆ (supervisor) was found 51% negligent. Jury deemed damages to be 10K, ∆ had to thus pay his portion, $5100.

Pure Comparative Negligence Rule

Comparative Negligence – jry weighs the cost of the Π and ∆ to avoid injury; thus, the amount of negligence charged to each party is based on the cost of their non-negligence and weighed.Π CAN RECOVER REGARDLESS OF % FOUND NEGLIGENT, BUT CAN ONLY RECOVER FOR THE % ∆ WAS NEGLIGENT.

Wassel v. Adams

Π was raped repeatedly by a man in a seedy motel she was staying at. Motel was in a bad part of town, but innkeepers had not warned her of this. She opened the door at 2:30am thinking it was her fiancé.

Modified Comparative Negligence RuleΠ’s NEGLIGENCE MUST BE LES THAT ∆’S OR Π IS BARRED FROM RECOVERY.**i.e. Π is 51% negligent and ∆ is 49%, Π is barred from recovery.

H: RESCUE DOCTRINE – a rescuer cannot be held liable for contributory negligence UNLESS the rescuer was acting recklessly in the rescue; ∆ cannot ask jury to reduce damages from rescuer’s contributory negligence.

Ouelette v. Carde

∆ was pinned under fallen car in garage; Π came to rescue him. When Π flipped the garage door opener, Π caught on fire b/c a spark from door opening ignited car gas.

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H: Rescue Doctrine holds that ∆ owes duty to rescuers. Jury must decide the allocation of negligent fault btw Π and ∆.

Govich v. North American Systems

Defective coffee maker catches house on fire. Π1 runs into house to save hearing aid dog; Π2 runs into house to save Π1. Suit filed against coffee maker manufacturer.

Last Clear Chance or Discovered PerilIf ∆ establishes that the Π was contributory negligent, Π will take nothing unless last clear chance comes into play. Last Clear Chance – if ∆ has the last clear chance of recovery, Π can recover regardless of negligence.

H: As a matter of public policy, No Comparative Negligence in this case b/c court will not aid Π who engages in substantial violation of the law - no contrib.. fault if illegal act, but must be substantial illegal act, not just jaywalking.

Barker v. Kallash

Π (15 y.o.) makes pip bomb from firecrackers he bought from ∆ (9 y.o.); bomb explodes and hurts Π.

H: Π’s negligence is shielded from a contrib. negl. Defense when Π’s injuries were the same result as the injuries ∆ is under a duty to prevent. not defense for ∆ when ∆’s breached duty and the injury/negligence is foreseeable. ** could utilize Carroll Towing here: B<P(I) . . . cannot cost that much as manufacturers are already putting them on their machines.

Bexiga v. Havir Manufacturing Corp.

Π (minor) is using ∆’s machine; Π places hand under ram while depressing the foot pedal. Π’s hand is screwed up; engineer testifies that there are safety devices that the ∆ could have manufactured on the machine to prevent accidents such as this.

H: There is NO contributory negligence defense when ∆’s duty of care included preventing the acts which injured Π. In this case, ∆ had a duty to prevent self-abuse or self-destructive acts which may cause injury.

McNamara v. Honeyman

Π hanged herself in a mental health hospital; Π died from injuries sustained.

H: Idea of ENTITLEMENT – a peep has a duty of care to not injure others on his property. If he has thus not breached this duty by negligence, a ∆ cannot claim negligence.

LeRoy Fibre co. v. Chicago RR

Π’s land was adjacent to ∆’s RR; Π stacked flax on that side of property and flax caught fire for RR sparks. ∆ argued Π was contributorily negligent b/c he stacked flax near RR.

II. ASSUMPTION OF RISKBOYLE v. REVICIF: ∏ had cancer, was advised of surgery. Instead went to doc (Δ) who treated cancer with medicine. Δ warned ∏ that his medicine was not FDA approved and he could give no guarantee; ∏ died.H: If ∏ makes a voluntary express assumption of risk, ∏ is barred from recovery.

(traditional)

TUNKL REGENTS OF UNIVERSITY OF CALIFORNIAF: ∏ alleged hospital (Δ) caused injuries to him while under their care. Δ said ∏ can’t sue b/c ∏ signed a waiver of rights prior to treatment.H: Exculpatory agreements cannot be valid if the release is

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1. Involuntary (i.e. sign or no health care!), 2. Without consideration, and 3. Against public policy (imagine if all hospitals had such a clause).

CIOFALO v. VIC TANNEY GYMS, INC.F: ∏ signed waiver when she joined gym; ∏ slips near pool and sues Δ.H: Exculpatory Clauses (one which excludes liability) can be valid:

1. Language must be express before Δ will be exempt from liability;2. ∏ appreciates the risk;3. Clause will NOT be upheld if there is a special legal relationship or overriding

public interest (i.e. public utilities, hospitals (as above), etc.).

JONES v. DRESSELF: ∏ was sky-diving and signed waiver for all Δ’s actions (negligent or non-neg) while on premises or in aircraft. Plane crashed and ∏ sued.H: 1. Clause was not an adhesion clause b/c there was no disparity in bargaining power (∏ could have gone elsewhere or not gone at all).

2. An exculpatory clause will not cover willful or wanton negligence.3. Exculpatory clause will cover normal negligence as long as an unambiguously

expressed intent is present.

BETTS v. CRAWFORDF: ∏ was housekeeper for Δ and tripped on items on stairs. Δ claims assumption of risk.H: There is no longer a distinction between assumption of risk and comparative negligence.

CREWS v. HOLLENBACHF: ∏ was called to fix gas leak (∏ works for gas company) that Δ negligently caused. Explosion occurs and ∏ is injured.H: Assumption of Risk (Traditional Analysis) – bars all recovery of injury

(1) ∏ has knowledge of the risk of danger (objective standard);(2) ∏ appreciates the risk (i.e. understands);(3) ∏ voluntarily exposed him/herself to the risk.

SIRAGUSA v. SWEDISH HOSPITALF: ∏ was a nurse at the Δ hospital; ∏ was at wash bin when the door opened and a large hook jabbed her in the back.H: An employer has a duty to furnish the employees with a safe work environment. If the employer breaches this duty, the employer is barred from using an assumption of risk

defense against employee. However, had the employee’s voluntary exposure to the risk itself not been unreasonable, the defense may be used.

SUNDAY v. STRATTON CORP.F: ∏ was skiing on Δ’s smooth novice trail. ∏’s ski hit a small brush on trail covered by snow and was injured.H: Primary Assumption of Risk

Δ owes no duty to the ∏; ∏ recovers no damages b/c no duty for Δ to breach.

Secondary Assumption of RiskΔ owes a duty to the ∏; ∏ goes ahead and participates in the risk.

**here, the Δ owed a duty of reasonable care to ∏ and thus there was a breach of this duty.

BJORK v. MASON

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F: ∏ is with Δ playing on an inter-tube at the lake; rope snaps and hits ∏ in the eye.H: ∏ assumes all risks and dangers inherent with the sport; however, ∏ does not assume

those risks/dangers not inherent in participation. Thus, here, Δ had a duty to upkeep his equipment and he breached that duty.

TURCOTTE v. FELLF: Jockey was thrown from a horse; jockey claims Δ clipped his horses heels and should be held liable.H: Comparative negligence must be weighed by (1) ∏’s assumption of risk, and (2) how

and if Δ had a duty to him after ∏’s assumption of the risk. Here the Δ would have to have acted recklessly or intentionally to be held liable b/c ∏ did not assume nor

consent to such action.

GAUVIN v. CLARKF: ∏ was butt-ended by Δ during college hockey game in the abs.H: Unless the trier of fact finds that the Δ acted recklessly, willfully, or wantonly, injuries in athletic events are usually dismissed against the Δ as the ∏ has assumed the risk in

participating in the event/sport.

What about SPECTATORS? Spectators assume the risk of injury resulting from the sport activity when they arrive at the event; however, if it is found that the event has not

provided reasonable safety to known and frequent risks, the event may be found liable (however, this only covers the basic safety precautions as it would be ridiculous for a

baseball park to be enclosed from the spectators for fear of a home run knocking down a grandmother).

III. STATUTE OF LIMITATIONSCRUMPTON v. HUMANA, INC. F: Medical Malpractice suit filed after 3yr statute of limitations.H: Statute of Limitations can and will bar suits from being adjudicated if the time period has lapsed. Extremely important that lawyers do not screw this up. Additionally, even if an adjustor of someone of the like tells you that “we can work it out without the courts”, and the statute is about to run, file the suit. Never rely on something like that.

SHEARIN v. LLOYDF: Appendectomy performed in july of 1951; removed sponge (oops) in nov 1952; ∏ had numerous other problems resulting from sponge originally left in body in 1951. H: TRADITIONAL (HARSH) RULE – statute commences when the cause of action arises

(injury occurs); thus, in the instant case, it began running in july of 1951.

SCHIELE v. HOBART CORP.F: ∏ experienced medical problems resulting from Δ’s machine’s fumes; she used product in 1972, quit job and underwent testing in march 1974; diagnosed and doc told of probable link in april 1974.H: DISCOVERY RULE – statute of limitations begins when (1) a reasonable peep

associates his/her symptoms with a serious or permanent condition and, at the same time, (2) a reasonable peep would think Δ may have induced the condition.

McCOLLUM v. D’ARCYF: ∏ sues parents for alleged sexual abuse 35 yrs earlier; ∏ recovered memory in therapy. H: Discovery rule tolls statute of limitations. However, Δ could argue that ∏ should have or in fact did discover earlier.

DOE v. MASKELL

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F: ∏s were sexually abused by school chaplain in the late 60s and early 70s. ∏s’ allege the memories were repressed and filed suit upon remembrance in the 1990s.H: COLLECTIVE REPRESSION – memory is repressed after a cluster of memories of

events are gathered – no recovery b/c the ∏ remembers for a period of time before these memories are repressed.

SERIAL REPRESSION – memory of event is repressed immediately; unable to distinguish this from “forgetting” b/c there is no scientific evidence which supports

either the theory itself or whether the ∏ is telling the truth about repression or forgetting. Therefore, the theory does not allow the discovery rule to toll the statute of

limitations.HYPNOSIS ISSUES – don’t know if these memories are for-real or if they are a result of projection, thus again problematic for court to distinguish

LATENT POTENTIAL HARMIssue raised in toxic tort cases a lot, when will statute run out if ∏ has been exposed to cancer causing substance now, but will not likely get the cancer for 20 years? 4 options.

(1) ∏ can recover now for any actual harm plus future injuries (future injuries reduced to reflect actual probability).

(2) ∏ may only present actual now damages, but these damages may include inflictions of emotional distress for future harm.

(3) ∏ recovers only what he can prove now and is barred from further recovery.(4) ∏ can recover for present harm and allow further suits if a substantially different damage occurs in the future.

TOLLING THE STATUTE OF LIMITATIONS FOR DISABILITIES(1) Minors have the statute tolled until age of maturity.(2) Incompetents have statute tolled until they become competent or a guardian is appointed to them.(3) Disabilities (1 and 2) may be have clock stopped (“tolled”) until peep is no longer disabled.

EXAMPLE: ∏ is in accident on January 1st, 2002; ∏, for other reasons, is in coma from March 1st, 2002, until August 1st, 2002. Tolling begins March 1st and ends August 1st. Therefore, if ∏ had 2 years to file claim normally this would be January 1st, 2003, however, under “tolling” the new date would be June 1st, 2003. (Roughly).

(4) OR jurisdiction may instead use Grace Periods, thus the clock is not stopped, but there is an extension to the time.

DASHA v. MAINE MEDICAL CENTERF: Δ misdiagnosed ∏’s brain tumor; treatment rendered ∏ mentally incompetent. Another doc realizes mistake two years later.H: The negligent diagnosis occurred before ∏ was rendered mentally incompetent and therefore, the discovery rule cannot be used to toll the statute of limitations.

MILLER v. WARRENF: ∏ suffers burns when fire breaks out in motel room; no smoke alarms (fire code didn’t require it).H: Statutes, like custom, set the floor for the standard of care. If Δ knows or reasonably

should know of foreseeable risks that the statute does not cover, Δ still has a duty to protect against such risks. This case is like the case where the ∏ put his foot through

the step and there was a debate about which type of wood to use.

DUTIES FOR CARRIERS, HOST-DRIVERS, & LANDOWNERSI. CARRIERS AND HOST-DRIVERSDOSER v. INTERSTATE POWER CO.F: ∏ was passenger on Δ’s bus when a car turned in front of bus. ∏ was injured.

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H: A carrier of passengers for hire owes a higher duty of care for both the foreseeability of danger and in guarding the passengers from danger.

II. LANDOWNERS’ DUTIES TO TRESPASSERS, LICENSEES, CHILDREN, INVITES TRESSPASSER(1) No duty save avoiding intentional, wanton, or willful injury

LICENSEE (SOCIAL GUEST)(1) Permitted on land by owner’s consent or licensee’s privilege (2) Has a duty to warn/give notice of known, dangerous, hidden, and artificial conditions; no duty to inspect; has duty for no intentional, wanton, or willful injury

INVITEE (I.E. DILLARD’S CUSTOMER)(1) On premises to bring a benefit to occupier/landowner or it is a public place(2) Duty to inspect and reasonably warn of hazardous conditions(3) Duty to exercise ordinary care

LESSOR(1) Not liable for hidden/unknown dangers(2) Liable for dangers known of or faulty repairs of dangers; but, if the lessee knows of danger, lessee is liable, not lessor

ATTRACTIVE NUISANCE (LIABILITY FOR TRESSPASSING CHILDREN)(1) Foreseeable that child will enter land(2) Foreseeable that child will be hurt (3) Child is too young to appreciate or protect himself from risk or danger(4) Landowner fails to act reasonably by allowing danger to exist(5) EXCEPTIONS: Common Hazards

1. Pools of Water2. Fire

GLADON v. GREATER CLEVELAND REGIONAL REANSIT AUTHORITYF: ∏ jumped by 2 guys while waiting for train. ∏ ends up on tracks; ∏ hit by train.H: ∏ became a trespasser when he fell onto tracks; Δ owed only a duty to refrain from

wanton, willful, or reckless conduct.If landowner knows or discovers a trespasser or licensee is in a position of peril, the landowner must exercise ordinary care to avoid injuring him.

O’SULLIVAN v. SHAWF: ∏ attempted a racing style dive into Δ’s pool; ∏ failed to clear the shallow end.H: Open and Obvious Danger Doctrine

(1) Presumes ∏ is exercising reasonable care for his own safety.(2) Δ has no duty to warn about dangerous conditions if the condition is so blatantly obvious for an ordinary intelligent ∏.

III. FIREFIGHTER’S RULE(1) No recovery for injuries within scope of occupation(2) If risks incurred and injury caused are outside of scope not inherent to job, FF excluded

PINTER v. AMERICAN FAMILY MUTUAL INS. CO.F: ∏ was a firefighter who got an inguinal hernia while holding a woman at the scene of a car accident. ∏ sues peep that caused woman’s accident.H: Professional Rescuers, who are specially trained and employed to conduct rescue

operations in dangerous emergencies, cannot recover for damages resulting from such rescues.

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Assumption of Risk – must be totally and extremely unforeseeable to ignore rule.

IV. REASONABLE CARE FOR LANDOWNERS(1) Abolishes above laid out categories(2) Duty to warn all peeps of dangers that landowner can reasonably foresee and duty to exercise reasonable care under the circumstances(3) Status of peep may still be a factor in the duty the landowner owes under the circumstances

ROWLAND v. CHRISTIANF: ∏, social guest of Δ’s, used bathroom in Δ’s house. Δ failed to warn of cracked faucet handle.H: Categories abolished; Duties now based on basic law of negligence.

SCURTI v. CITY OF NEW YORK F: 14 year old kid is electrocuted in railroad yard after getting in through hole in fence.H: Negligence depends on landowner’s care compared to a reasonable care standard.

V. RECREATIONAL USE (1) Limits landowner’s duty for peeps using their land for recreational uses.(2) Must warn of known dangers.

IV. LESSORS(1) Lessor has duty of ordinary care in maintenance of property.(2) Additional duty for the public areas (common areas).(3) Pre-existing Defect – Landlord liable until tenant learns of defect; but if not known to tenant, landlord has duty to tell of defect.

PAGELSDORF v. SAFECO INSURANCE CO. OF AMERICAF: ∏ falls from dry rotted balcony while helping friends move out. H: Landlord is generally not liable for defects of property, EXCEPTIONS:

(1) Dangerous condition is one landlord was contracted to repair(2) Landlord knew of defect and tried to conceal it(3) Premises is leased for public use(4) Premises is retained in landlord’s control(5) Landlord negligently repaired the defect

DUTIES FOR MEDICAL & OTHER PROFESSIONALSI. DUTIES(1) Medical and other professionals are held to a standard as a reasonable prudent person within their field.(2) If standard of field and specialist standards differ – peep is held to standard of specialist.(3) Non-Medical Practitioners (i.e. chiropractic, homeopathic) – held to a standard of the peeps in their practice. This creates a fine line b/t freedom of religion when the issues are raised concerning the Christian Scientist decisions.

WALSKI v. TIESENGAF: Δ removed ∏’s thyroid and ended up (oops) paralyzing ∏’s vocal cords.H: Medical Malpractice

(1) ∏ must establish standard of care through expert testimony (unless ordinary intelligence could infer negligence).(2) ∏ must prove that the doctor was unskilled or negligent from standard of care.(3) ∏ must prove the injury resulted from the negligence/unskillness.

VERGARA v. DOAN

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F: Med Malpractice for negligently delivered baby who now suffers from injuries.H: Strict Locality Approach – No Longer Rule – standard of care is that which is exercised

by reasonable physicians at the same type of operation and similar locality.

National Standard of Care – reject locality rule and adopt the standard that a physician must exercise the degree of care, skill, and proficiency exercised by a reasonably careful, skillful, and prudent physician in the same field and under the same or similar circumstances.

HIRPA v. IHC HOSPITALSF: ∏ “code blued”; Δ (doctor) came in the room to help. ∏ died. ∏ was not under Δ’s care.H: Good Samaritan Rule for Doctors – medical providers acting in good faith and within the confines of their training when rendering emergency care at the scene of an emergency cannot be held liable for civil lawsuits resulting from their acts or their omissions. EXCEPTION: if the peep injured is under the care of the medical provider before the emergency, there is no GS Rule.

SMITH v. KNOWLESF: ∏ sues for death of wife and child.H: (1) ∏’s have burden of proving prima facie case. Therefore, they must have sufficient

evidence. ∏ must also prove the death resulted more likely than not from Δ’s actions.(2) Must have direct evidence, i.e. do not try to establish the case through cross-examination of Δ’s witnesses.(3) Medical Treaties may be admitted into trial; they must be recognized in testimony

as authoritative.

II. RES IPSA LOQUITORKELLY v. HARTFORD CASAULTY INSURANCE CO.F: ∏ was given enema; ∏ felt pinch while tube was in. ∏ had issue with this and subsequent surgery. ∏ had history of anal diseases.H: Res Ipsa Loquitor is applicable in Med Malpractice Suits, IF:

(1) Laymen is able to say that the injury would not normally occur without negligence; or

(2) Expert testimony aids laymen to make the inference of #1.**CONTROL CONCEPT – if the injury could have been caused by a pre-existing condition or other reason apart from the Δ; Res Ipsa Loquitor cannot be invoked.

SALATHIEL v. STATEF: ∏ went in for bile study; came out with issues in nose; surgery and severance of olfactory nerve resulted.H: The resulting injury is not an ordinary risk of the procedure.

YBARRA v. SPANGUARDF: ∏ was under anesthesia and upon awaking had a pinched nerve in arm. No way to prove which Δ caused injury and Δs’ are invoking a conspiracy of silence. H: ∏ may name all peeps in control over him or any instruments used on him; Δ must then testify to their own actions and possible negligence.

Res Ipsa Loquitor can be a tool to break silence and prove liability.Any Δ who was negligent and any Δ who allowed negligence to occur and injury to result are both liable for ∏’s injuries.Different from Summers (two guys with shotguns that put out eye of Π) b/c that case

dealt with 2 negligent Δs, but no way to prove each Δ’s liability; here, there is no way to prove who was negligent. In Ybarra, by not speaking up, they are “spoiling” the evidence.

III. INFORMED CONSENT

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Must disclose that which an ordinary physician must disclose. Standard is that which is the medical communities.

HARNISH v. CHILDREN’S HOSPITAL MEDICAL CENTERF: Underwent surgery to remove tumor from ∏’s neck; ∏ ended up losing all function of her tongue. This was a risk of the procedure, but doc had not told ∏.H: Doctors have a duty to disclose to a patient all significant medical information that is

material for the patient to make an intelligent decision on whether to have the operation. Factors for this breach are:

(1) Resulting injury must arise from the unrevealed risk or no legal consequence, and (2) ∏ must prove that a s/he AND a reasonable peep would not have underwent the surgery had the ∏ or reasonable peep known of the risk.

WOOLLEY v. HENDERSONF: ∏ was injured in a normal risk of procedure incident during back surgery; doc hadn’t disclosed risk.H: ∏ must prove the above two factors and that a reasonable medical practitioner would

have disclosed the information. To do this, ∏ must utilize medical testimony to prove the disclosure standard was in fact breached.

MONTGOMERY v. BAZAZ-SEHGALF: Penile Plaque case discussed in battery cases.H: Negligence – Uninformed consent for operation.

Battery – No consent at all for operation.

ARATO v. AVEDONF: ∏’s decedents suing doc for giving false hope and not disclosing survival statistics.H: No duty to disclose information not regarding risks of operation as long as it is not a

standard of practice within the medical community.As for the issue of disclosure outside of risk of operations, one must look at the

medical community’s standard.

TRUMAN v. THOMASF: ∏ had refused pap smears that Δ offered every year; Δ had never told ∏ the risks of not having pap smears. ∏ died of cervical cancer.H: Doctors must disclose all material risks which could arise if a patient does not take tests or treatments.

Fiduciary Trust b/t doctor and patient – this is usually a non-able to consent peep??????

BROWN v. DIBBELLF: ∏ underwent double mastectomy and claims uninformed consent.H: A doctor can allege contributory negligence on the part of the patient ONLY if patient

failed to disclose necessary information.No contributory negligence for a patient who did not verify the doctor’s information; ridiculous idea, should be able to trust the doctor.

IMMUNITIES BY STATUS – FAMILY MEMBERS & CHARITIESI. FAMILY MEMBERS(1) Traditional Tort Law – restricted claims within family for 2 fundamental reasons

1. Lawsuits could encourage fraud and collusion.2. Lawsuits could disrupt family unity.

(2) Law has been modified and jurisdictions vary. Exceptions include intentional torts, auto accidents, etc.(3) THREE approaches after the widespread rejection of IMMUNITY

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1. There is NO immunity for parents, EXCEPT:(1) Alleged negligent act involves the exercise of parental authority over child.(2) Alleged negligent act involves exercise of parental discretion with

(1) provision of food, (2) provision of clothing, (3) provision of housing, (4) medical and dental services, and (5) other care.

2. Parents are liable under a reasonable person (reasonable parent) standard.3. Emphasis on Child’s Individuality: Parents have always had the right to determine

how much independence, supervision, and control a child should have; and to best judge the character and extent of development of their child.

GOLLER v. WHITEF: Foster kid was not warned by foster dad about danger of riding on drawbar of tractor.H: There is NO immunity for parents, EXCEPT:

1. Alleged negligent act involves the exercise of parental authority over child.2. Alleged negligent act involves exercise of parental discretion with (1) provision of food, (2) provision of clothing, (3) provision of housing, (4) medical and dental

services, and (5) other care.

COMMERCE BANK v. AUGSBURGERF: Foster kid dies of hypothermia and asphyxia b/c foster parents lock kid in cabinet.H: Parental discretion in the maintenance of family home, medical treatment, and child’s supervision is held to have immunity.

II. CHARITIESGenerally immune to liabilities; EXCEPTIONS:

If charity has insurance to cover liabilities;If charity has money earmarked for liabilities;If charity charges for services.

IMMUNITIES BY STATUS – GOVERNMENTAL ENTITIES & OFFICERSI. TRADITIONAL IMMUNITYTraditionally, the government was immune to all b/c of the Old English maxim “The King Can Do No Wrong.”

II. FEDERAL TORT CLAIMS ACT1. Waives Sovereign Immunity2. Discretionary Decisions Still Have Immunity

III. THE FERES EXCEPTIONBROOKS v. UNITED STATESF: Two brothers are on furlough from armed forces; army truck hits them. Gov’t claims immunity.H: The gov’t is not granted immunity solely on the basis of the ∏’s status as members of the armed forces.

The accident was not at an “incident to military duty” and thus no immunity for govt.

FERES v. UNITED STATESF: Three joined cases (1) ∏ killed in barracks fire, (2) ∏ had a large towel left in his abdomen after medical military surgery, (3) ∏’s relatives claim gov’t responsible for med malpractice that resulted in ∏’s death.H: Gov’t is IMMUNE: all injuries occurred were during active duty and thus “incidents to

military duty”.

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IV. DISCRETIONARY OR BASIC POLICY IMMUNITYLOGE v. UNITED STATESF: Case regarding polio vaccination.H: Discretionary Immunity does not extend to gov’t when the statutes and rules proscribed for the gov’ts regulations and procedures are not followed.

Same Principle for Private Peeps: Private Peeps would be liable if s/he undertook something safe and negligently failed to maintain it.

MAAS v. UNITED STATESF: Nuke cleanup team that was exposed to radioactive material and subsequently got cancer.H: Government Discretionary Immunity:

(1) Act involves element of judgment or choice;(2) Judgment involves challenged conduct;(3) Policy was regarding legislative or judicial act.

Discretionary Duty Defining StandardIf policy is specific as to action, no discretion is excusable.High to Low Standard – nondiscretionary duty (high standard); discretionary duty (low standard)

V. IMMUNITIES UNDER STATE LAWRISS v. CITY OF NEW YORKF: ∏ threatened by weirdo; called cops after he told her this was her last chance; cops did nothing; she was attacked.H: NO liability for claims against police for inaction unless relationship is created.

DE LONG v. COUNTY OF ERIEF: ∏ hears burglar and calls 911. Operator gives cops wrong address. ∏ dies.H: A special relationship arouse because Δ accepted action. Thus, no immunity because the special relationship gave rise to a duty to exercise ordinary care.

BARILLARI v. CITY OF MILWAUKEEF: ∏ sexually assaulted; reported to cops and told them where abuser would be. Cops failed to show up or even arrest the man or notify ∏ that he was at large; ∏ killed days later.H: Police discretionary decisions are immune from liability.

HARRY STOLLER AND CO., INC. v. CITY OF LOWELLF: Firefighters decided to use hoses in lieu of sprinkler system; resulted in 5 bldgs being burned.H: Here, there was no policy decision involved, therefore, the city can be liable because it is the decisions are not under immunity.

PLETAN v. GAINESF: Police-bad guy car chase; bad guy hits and kills kid.H: OFFICIAL IMMUNITY – a public officer charged by law with duties that call for the

exercise of judgment or discretion is no personally liable for damages UNLESS he has acted willfully or maliciously. (Operational Discretion)

THOMPSON v. COUNTY OF ALAMEDAF: Previously detained juvenile threatens to kill a neighborhood child upon release. He does.H: If state/county knows of foreseeable harm/injury to a specific peep, a duty to that person is created and state must warn them. Peep/party threatened must be identifiable. Thus, if not directed to an intended party, the state has no duty to warn.

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PUBLIC DUTY DOCTRINEHave a duty to act, BUT do not act. ∏ must rely on the actions of the dispatcher or cops.

VI. OFFICERSPENTHOUSE, INC. v. SABAF: Zoning ordinances were denied capriciously.H: Even in bad faith or malice, government officials have absolute immunity on legislative and judicial power.

Executive power is limited to qualified immunity – if peep acts in bad faith or malice, no immunity. Question of fact – usually practical problem of proof.

K.H. v. MORGANF: Kid is shifted around and suffers emotional and sexual abuse in foster care.H: 1. NO officer liability – (+) cases are brought to attention; (-) abuse of power

2. NO officer liability, but government liability – (+) checks and balances to avoid abuse of power; (+) ∏ gets compensated.

3. Officer and government liability – (+) might be fewer cases of abuse of power4. Officer liability, no govt. liability – (+) bad doer is being held accountable; (-)

government won’t supervise as well; caseworkers have no money5. Immunity to All

VII. STATE AND MUNICIPAL LIABILITY UNDER § 1983NAVARRO v. BLOCKF: 911 caller said hubbie is on the way to hurt her; no action. Caller and others are killed.H: To hold a municipality under § 1983, ∏ must prove that a policy, or established custom, violates a constitutional right (like discrimination between groups of peeps).

NONFEASANCEI. NO DUTY TO ACT RULENEWTON v. ELLISH: Nonfeasance is not a defense when Δ had legal obligation to act. This is a case of

misfeasance. Misfeasance is having the duty to act, but failing to do so (sin of omission) or acting, but doing so negligently (sin of commission); Nonfeasance is failing to act.

YANIA v. BIGANH: Enticement (through words or actions) does not give rise to liability.

Δ has no duty to rescue ∏ when ∏ is in peril and is therefore not liable.

II. EXCEPTIONS, QUALIFICATIONS, & QUESTIONSSOUTH v. NATIONAL RAILROAD PASSENGER CORP. F: ∏ is injured in train collision. Δ did not aid ∏ (blood on jacket worries).H: A person who, by innocent or tortuous conduct, knows or should know that his conduct has caused harm to another has the duty to render assistance to the injured peep to prevent further harm from occurring; a peep who does not is liable for harm which occurs after breach of duty.

MALDONADO v. SOUTHERN PACIFIC TRANSPORTATION CO.F: ∏ tried to catch moving train; ∏ fell under train after Δ’s actions caused train to bump. Δs rendered no aid and told others not to help also (∏’s arm severed).H: INSTRUMENTALITY – if you are the instrumentality of harm, duty to aid.

Regardless if ∏ is contributory negligent or if aggravation of injuries is not connected to original cause of injuries, Δs have a duty to render aid to prevent further injury when

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their conduct has harmed ∏ (regardless if conduct was negligent, innocent, or intentional).

FARWELL v. KEATONF: ∏ & Δ are out drinking; piss off some girls. Girls’ boys jump them. Δ gets away; finds ∏ beat up under car. Δ places ∏ in car, gives him an icepack and leaves him there; Δ dies.H: If Δ and ∏ have special relationship, Δ has duty to render ∏ aid as long as it does not

put Δ in peril. Legal point when duty arises – when special relationship (common enterprise) begins.Regardless, if no duty exists, a Δ who voluntarily renders aid to another has

voluntarily taken on duty to use reasonable care and not further injure.

KRIEG v. MASSEYF: ∏ moved into apt. managed by Δ; Δ saw ∏ with gun and placed it on a shelf. She was going to take him to doctor later, ∏ committed suicide an hour later.H: Δ was not under a duty to ∏ as Δ was not involved in a special relationship. Had there

been a duty, Δ would not be liable because Δ’s act had not put ∏ in a worse position had Δ not acted.

DeSHANEY v. WINNEBAGO COUNTY DEPT. OF SOCIAL SERVICESF: Δs knew ∏ was being abused and did nothing. Δ is severally retarded due to abuse.H: Child was never under custody and thus there is no state created danger (see below).

State can claim that the child is no worse off than he would have been had the state done nothing §324(b), thus no detrimental reliance.

However, child may have a claim if he can prove that the state (1) had a special relationship with him OR (2) had undertaken a duty to render services to him and did

so negligently.DISSENT MAIN POINT: State should be liable because the state undertook the duty to aid and in doing so cut-off any other avenues of help to child, thus theoretically, the

state confined the child to the abuse

K.H. v. MORGANF: Earlier case regarding baby with gonorrhea and then shifted between abusive foster homes.H: STATE CREATED DANGER – if a state has a peep in custody, the state has a duty to

render reasonable safety to that person. This applies to prisoners, children, mentally ill peeps. Regardless if state actions did not place ∏ in a worse situation had the state never been involved – the duty arises because the state assumed custody.

SINTHASOMPHONE v. CITY OF MILWAUKEEF: Dahmer case – 2 women find naked, drugged man. Police come and release him to J. Dahmer.H: Police had a special relationship with, and thus had a duty to, ∏ b/c ∏ was taken into

custody; then the cops proceeded to make him actively worse off than he was by giving him over to Dahmer. These were actions, not nonfeasance.

DUTY TO PROTECT FROM 3RD PERSONSI. Δ’S RELATIONSHIP WITH ∏ POSECAI v. WALMARTF: ∏ attacked in sam’s parking lot while walking to car.H: Different approaches to FORSEEABILITY TEST

1. BALANCING TEST – like carroll towing; burden balanced with foreseeability and gravity of harmBurden includes loss of business and bad will which would result.

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Greater the burden, lower the duty; Greater the F and G, higher the duty.

2. SPECIFIC HARM – landowner has no duty to protect against 3rd peeps save landowner has awareness of specific harm.

3. PRIOR SIMILAR INCIDENTS – foreseeability established by evidence of past incidents.

4. TOTALITY OF CIRCUMSTANCES – takes many factors into account; relevant circumstances looked at (most common test).

PARISH v. TRUMANF: Δ lived in high crime area and opened the door to his house while ∏ was there. Men come in and start altercation; shoot ∏ three times.H: In absence of a special relationship, private peep has no duty to protect one from 3rd

peeps criminal acts.HOWEVER, if a drunk is driving with a special guest, there is a duty. This is because

of specific knowledge.

HOSEIN v. CHECKER TAXI CO.F: ∏ leased cab from Δ; cab was not equipped with bullet-proof glass and ∏ was shot.H: Affirmative duty to protect only held for special relationships (carrier/passenger,

innkeeper/guest, business invitor/invitee, custodian/ward).

MARQUAY v. ENOF: ∏s sued school district for sexual abuse from their employees. ∏s claim school did know or should have known.H: School district will be liable if the ∏s can show that the school officials acted or did not act which in the scope of their duty and that the inaction/action proximately caused the ∏’s injuries. Thus, school employees who have supervision duties to the students and

who should have known or did know of abuse will be held liable.

MIRAND v. CITY OF NEW YORKF: ∏ and sister badly beaten by a 3rd party at school; 3rd party had earlier death threatened ∏. ∏ reported to a teacher, and tried to report to security.H: A school (thru compulsory attendance) assumes parental custody and control over

children while on the school premises.Thus, schools have a duty to supervise their students and will be held liable if there is foreseeable danger, or actual knowledge of danger, and the school does nothing.Schools take on the duty of a “reasonable” prudent parent in same circumstances.

FAZZOLARI v. PORTLAND SCHOOL DISTRICTF: ∏ was high school student who was dropped off early at school; beat and raped outside of school.H: School is liable b/c (1) violence was foreseeable, (2) time the ∏ was at school was not

unusual b/c others were present at that time.A reasonable school must either take precautions to protect students OR warn the

parents of the foreseeable danger (thus transfer duty to parents).

II. Δ’ S RELATIONSHP WITH DANGEROUS PERSONS ROSALES v. STEWARTF: 10yrold shot by 3rd party from the party’s backyard.H: If a lessor has control over the lessee, he has a duty of care and will be held liable for the actions of the lessee. Thus, the lessor has a duty to rid the leased premises of dangerous conditions (as much as he can do legally).

DUDLEY v. OFFENDER AID AND RESTORATION OF RICHMOND

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F: 3rd peep was a violent prisoner, not supposed to stay at any halfway houses; somehow was allowed to stay at private halfway house. Δ, the house, neglected to keep watch over him. 3rd party raped and killed ∏ who lived near house.H: Special relationship b/t 3rd party and Δ, thus Δ had duty to identify foreseeable victims of the 3rd party. Absent special relationship, no duty to control 3rd party conduct.

COLLEGESNormally colleges have mucho latitude of liability avoidance, however, if a college requires an experience, the college can be held liable if it is an unreasonably dangerous situation.

TARASOFF v. REGENTS OF U OF CALIFORNIAF: 3rd party told therapist (Δ) he would kill ∏; he did.H: Social Policy overrides the patient/doctor privacy privileges; if a therapist determines or should have determined that a patient poses a serious threat to himself or another, the therapist has a duty to protect the identified victim and disclose information to that victim with enough reasonableness to prevent threatened danger. Texas rejects this judgment.

DIMARCO v. LYNCH HOMES-CHESTER COUNTYH: A physician has a duty to the patient and those who are within a foreseeable risk of injury when dealing with a patient who has been exposed to a communicable/contagious disease; physicians must give proper advice regarding potential spread of disease.

WITTHOEFT v. KISKADDONF: Eye doctor finds patient has 20/80 eyesight, does not warn patient against driving. Patient hits and kills a bicyclist while driving.H: No duty when patient is in better position to minimize risk.

WEST AMERICAN INSURANCE CO. v. TURNERF: Δ lends car to 3rd party who has been drinking for hours. 3rd party crashes.H: NEGLIGENT ENTRUSTMENT THEORY

Cause of action arises when a car owner knows or should know of a peep’s incapacity, incompetence, recklessness, or inexperience and car owner allows peep to use car. Owner must have knowledge that peep is mentally or physically handicapped to drive car at the time of entrustment.

VINCE v. WILSONF: Both 3rd parties aunt and the seller of car knew 3rd party was incompetent to drive. Aunt gave money for car; seller sold car.H: Since both Δs knew of incompetence, and both entrusted 3rd party with car, both are

liable.**Recent debates regarding negligent entrustment in regards to gun sellers; no

general census yet, D.C. shootings may change this.

BRIGANCE v. VELVET DOVE RESTAURANTF: ∆ is tavern owner who sells minor booze and then minor drives and ∏ is injured.H: One who sells alcohol to an intoxicated patron can be held liable for injuries caused by patron’s driving intoxicated. It is foreseeable that the patron will drive and hurt someone. Duty to exercise reasonable care – may not sell more alcohol to a drunken peep. ∏ must still prove causation, i.e. illegal sale led to drunkenness and it was proximate and but-for cause of injuries. **Comme Bohlin payments.

**SOCIAL HOST IMMUNITY in these types of situations.

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SNYDER v. AMERICAN ASSOCIATION OF BLOOD BANKSF: ∏ underwent surgery in 1984 and received a bad batch of HIV blood.H: The AABB was liable because blood banks and others relied on their assurances, the

AABB had actively invited this reliance, the severity of the risk of the HIV virus, and the foreseeability of the infection through blood (journal articles, tasks forces, etc.).

EMOTIONAL HARMI. INTENTIONAL INFLICTION OF EMOTIONAL HARM GTE SOUTHWEST, INC. v. BRUCEF: Employer who terrorized employees.H: Employer Approaches to Emotional Harm

1. Strict approach allows for greater leeway so employer can effectively manage his employees and business (obviously to an extent).

2. Laxer approach says less leeway because the positions themselves put employees in a position riped for abuse of power.

An employee must show that the conduct is outside the range of ordinary employment and that the conduct is extreme and outrageous (this is judged by the severity and regularity of conduct).

INTENTIONAL INFLICLICTION OF EMOTIONAL DISTRESS ELEMENTS1. Δ acted intentionally or recklessly.2. Conduct was extreme or outrageous.3. Causation – conduct caused distress.4. Injury – emotional distress was/is severe.

TAYLOR v. METZGERF: Sheriff and the Jungle Bunny remark.H: Jury decides whether the conduct is outrageous, extreme and beyond the bounds of

decency (thus it is a question of fact, not law).

WINKLER v. ROCKY MOUNTAIN CONF. OF THE UNITED METHODIST CHURCHF: ∏ volunteered at church to get over fear of workplaces. Pastor touched her, stroked her, and whispered sweet nothings to her. H: A fiduciary duty is based on the undertaking to act primarily for the benefit of another.

There can be a cause of action for both an intentional tort (battery) and another intentional tort (emotional distress). The ∏ can claim on both or just one; if the

statute of limitations is out on one, ∏ can still claim on the other.

HOMER v. LONGF: ∏’s wife was seduced by therapist; now ∏ and Δ are divorced.H: A ∏ may be able to recover for intentional infliction of emotional distress when a Δ

inflicts outrageous and extreme conduct on a 3rd party IF:(1) ∏ is a member of a 3rd party’s immediate family (some jurisdictions allow

fiancées some do not) AND ∏ is present at the time of the conduct. (NO bodily injury required).

OR(2) ∏ is anyone present at the time of the conduct AND the ∏ suffers distress that

is a result of a bodily harm.**INTENT (to inflict emotional distress) MUST STILL BE PRESENT regardless who

the ∏ is.

REID v. PIERCE COUNTYF: ∏s allege that county employees are keeping autopsy photos for personal use (sick).H: Requirement of presence is not meant; presence is required to establish proximate cause, and because it creates the risk of claims years later.

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II. Negligent Infliction of Distress / Emotional HarmELEMENTS1. Negligence of Δ2. Severe Emotional Distress for ∏3. Outrageous Conduct from Δ

MITCHELL v. ROCHESTER RY. CO.F: ∏ suffered shock and miscarriage when Δ charged his horses in her direction. ∏ not physically touched.H: TRADITIONAL IMPACT RULE

(1) Some sort of physical harm must occur to recover.(2) The physical injury would show causation through proximate cause of Δ’s

negligence.

MILEY v. LANDRYF: ∏ had a history of emotional and physical problems. Her accident with the Δ aggravated her emotional issues. H: If a Δ’s negligent actions aggravated the ∏’s pre-existing condition, Δ is liable for the

full extent of ∏’s injuries. Like the intentional tort’s THIN SKULL RULE.

GRUBE v. UNION PACIFIC R.R.F: ∏ was train engineer that saw bodies after train collided with a truck.H: ZONE OF DANGER RULE

(1) ∏ MUST be in the zone of danger of physical impact.(2) ∏ MUST suffer immediate apprehension at or near time of danger of ∏’s own

physical harm; this apprehension must cause/contribute to ∏’s emotional injury.

Example: 2 peeps walking across the street; 1 gets hit by a car and the other nearly does. The one who was not hit can recover under the zone of danger rule.

3 rd Party Negligent Infliction of Emotional Distress Recovery DILLON RULE∏ may recover for distress caused by observing a Δ’s negligent infliction of injury IF:(1) ∏ and injured party have a CLOSE relationship.(2) ∏ is located near the scene of the accident.(3) Resulting shock is due to ∏’s “contemporaneous and sensory” observation of accident.**all factors determine foreseeability.

THING RULE∏ may recover for distress caused by observing a Δ’s negligent infliction of injury IF:(1) ∏ and injured party have a CLOSE relationship.(2) ∏ is located at scene of injury when injury occurs (thus aware injury is being caused).(3) ∏ as a result suffers emotional distress.**there is a grey area where one may still recover if not exactly at the scene (i.e. mom is walking up the block while child is hit – can still have sensory perception).

BURGESS v. SUPERIOR COURTF: ∏’s child is severely brain damaged after birth; blame doctor’s negligence.H: There are 2 classes of which one may recover for neg. emotional distress.

(1) BYSTANDER (Thing and Dillon rules apply) – Δ has no relationship with ∏.

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(2) DIRECT VICTIM – claim based on pre-existing relationship which Δ has a duty to ∏.(1) Duty is assumed by Δ.(2) Duty is ascribed by matter of law upon Δ.(3) Duty arises out of a relationship with ∏.

**thus, in an instance where the distress is inflicted upon the mother from an injury to the fetus, doctors can be liable because the doctors have a relationship with the mom and fetus. Social policy, if not doctors would have an incentive to sedate the mothers.

Missing Boucher case

WASHINGTON v. JOHN T. RHINES CO.F: Dead body cases – shipment to El Paso from Washington D.C. gone bad (literally).H: Here, the court ruled that the ∏ was not in the zone of danger and thus cannot recover. However, most courts allow recovery for these type of cases.

HEINER v. MORETUZZOF: ∏ misdiagnosed twice as having HIV. ∏ actually did not have the disease.H: There is no neg. infliction of emotional distress claim when the resulting distress is fear of a non-existent peril. Social policy, a false positive is better than a false negative.

However, had the woman began excruciatingly painful treatment, she may have a recovery chance.

BOYLES v. KERRF: ∏ is videotaped by Δ when having sex. Δ shows tape to other peeps (i.e. all of university of texas and southwest university students).H: Texas recognizes cause of actions for negligent inflictions of emotional distress only

when the Δ creates risk of physical harm to ∏. Thus, they only allow parasitic claims of emotional distress; the claims must piggyback on something else.

SACCO v. HIGH COUNTRY INDEPENDENT PRESS, INC.F: ∏ accused of stealing from former employee. H: Negligent or intentional infliction of emotional distress requires that ∏’s serious and

severe distress is a FORSEEABLE consequence to Δ’s negligent or intentional act or omission; the difference in negligent and intentional is the nature and culpability of

Δ’s act or omission.**The question of whether the distress is severe and serious is a question for the jury.

CAMPER v. MINORF: ∏ sues the decedents of a woman who negligently caused an accident between ∏ and woman. ∏ saw the dead body and now suffers distress.H: Severe and serious distress occurs when a reasonable person would be unable to

adequately cope with the mental stress of the situation.∏ must show through expert medical testimony that ∏ is suffering from sev/ser

distress.

POTTER v. FIRESTONE TIRE AND RUBBER CO.F: Firestone dumped waste into ∏s drinking water.H: MORE PROBABLE THAN NOT

(1) Δ’s negligent breach of duty exposes ∏ to a toxic which can cause cancer. AND

(2) ∏ shows through medical testimony that ∏ has a more probable than not chance of getting cancer, and ∏ shows through medical testimony that distress is sev/ser.

EXCEPTION:

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IF ∏ can show that Δ’s breach was done in “oppression, fraud, or malice”, the more-probable-than-not can be excluded and ∏ may still recover even though ∏’s chances

are less-probable-than-not.

HARTWIG v. OREGON TRAIL EYE CLINICF: ∏ was cleaning office and was stuck with needles. Told she could be HIV exposed.H: ACTUAL EXPOSURE rule does not apply for HIV potential exposures because of

medical and social policy that one who may have been exposed act as one who has been exposed until peep is found HIV negative.

THUS, ∏ must show the following to recover:(1) Identity of peep who the medical instrument was used on is unknown.(2) There is no way to prove or disprove that the suspected blood, tissue, or

fluid is HIV negative or positive.(3) The contact was through a medical or scientific acknowledged way of

exposure.

LOSS OF CONSORTIUM CLAIMSHistorically, the loss of consortium was for masters and servants as a loss of services. Thus, employers and husbands could recover. Today seen more as a loss of sexual relations; now husbands and wives may recover. However, most states have seriously limited or done away with the claim altogether, thus allowing the claim only as a type of damage, not as an individual claim itself. In the states where this is still a valid claim, claims for adult children are usually not allowed, and claims for little children may be. Additionally, most states refuse to allow the claim for unmarried co-habitants (hetero or homosexual). Some states, those who allow same-sex marriage, will allow the recovery for the spouse; however, those who do not recognize the marriage will not. Thus if there is a legally recognized marriage, those spouses will be allowed in the states where the loss of consortium independent cause of action still exists. There is no claim in any states for the loss of consortium of an animal (the animal is a chattel).

PRENATAL HARMSI. PRENATAL AND PRECONCEPTION INJURY*Traditionally, there was no recovery for injury to a fetus. *Now, there is usually recovery for an injury fetus that is viable at time of injury and that is born-alive or stillborn. *There is generally recovery for an injured fetus that was non-viable at time of injury if the fetus is born alive. *There is generally no recovery for a fetus injured before viability and stillborn.

Maternal Care while in WombGenerally there is a dividing line against maternal outrageous legal and illegal acts. Thus, a mother who refuses pre-natal treatment, drinks like a fish, and smokes (cigarettes) is not going to be held liable for fetal injuries (mother’s right to privacy). But, a mother who smokes weed and snorts cocaine can be held liable (duty to child).

RENSLOW v. MENNONITE HOSPITAL p604F: ∏’s mom had been given a bad blood transfusion. Years later she is pregnant and finds out that her blood is sensitized b/c of transfusion; child has jaundice and hyper something.H: A duty of care may be owed to one who is foreseeable EVEN IF that one is unknown or remote in the time or place.

ALBALA v. CITY OF NEW YORKF: ∏ had abortion and uterus is perforated; ∏ has child years later. Child suffers brain damage due to faulty uterus.

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H: This case is less foreseeable than Renslow – remoteness would cause staggering implications in liabilityPre-natal injuries recognized when there are 2 identifiable beings within the zone of danger.This type of liability would encourage defensive medicine. Hence, doctors would be scared to try new treatments because the treatments may have implications in future generations.

II. WRONGFUL LIFE, BIRTH, AND CONCEPTIONGRECO v. UNITED STATESF: ∏ claims doctors neglected to diagnose physical defects of fetus and tell the mum of these defects; ∏ claims she would have aborted had she known.H: No Wrongful Life Claims – forces jury to decide whether baby is better off never being

in existence. These claims also bar recovery for cases where peeps have signed no resecitation clauses yet someone does rescitate them and they become a vegetable. Wrongful Birth Claims – $ damages for caring for “defective” baby. This can be show causally through but-for “but-for malpractice, I would have aborted.”Wrongful Conception Claims – $ for damages of pregnancy; additionally, damages for raising “defective” child (Cost of Raising Healthy Child – Cost of Raising Defective Child).No Loss of Service/Consortium/Etc. – mom says she would have aborted so no cause

of action for these claims.

WILSON v. KUENZIF: ∏ birthed a child with down syndrome; doctor failed to tell mum of risk and tell mum about genetic testing. ∏ claims she would have aborted had she known.H: NO wrongful birth actions in that it is too hard to judge whether a mother is telling the truth about but-for…abortion or if the mother is just pursuing a financial desire. No way to verify testimony.

DEATHSMITH v. WHITAKERF: Δ was using a known defective truck when the brakes went out and killed the ∏’s descendent. H: Wrongful Death Cause of Action

1. Brought by descendant’s family.2. Damages are in the form of monetary damages for monetary support; thus,

the family recovers what the descendant would have contributed to the family had they still been living. Also compensate for any medical or hospital bills and funeral cost.

3. NO punitive damages allowed.Survival Cause of Action1. Brought by descendant’s estate.2. Bring any actions descendant would have been able to bring had they not

died. 3. Damages are for any pain and suffering the descendant went through before

death (must be provable by some evidence). Thus, no p and s damages if the descendant died on impact.

4. However, regardless if there are or are not p and s damages, a survival action may recover punitive damages against the Δ (obviously only if punitive damages are warranted). Policy that Δ should not escape aggravated conduct just because peep died.

KLOSSNER v. SAN JUAN COUNTY

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F: Mother, descendant’s original kids, and descendant’s step-children bring wrongful death cause of action.H: The statute states “child or children” the court interprets the language strictly and states that there is no recovery for step-children in the wrongful death statute.

GENERALLY, this has been abolished and illegitimate and legitimate children may recover (was a violation of equal protection). However, parents of illegitimate

children, usually only the fathers, cannot recover for the death of an illegitimate child.

VICARIOUS LIABILITYWHEN FAULT OF TORTFEASOR ISN’T A NECESSARY ELEMENT FOR LIABILITY

I. RESPONDENT SUPERIOR AND SCOPE OF EMPLOYMENTPOLICY REASONING:1. Prevent Future Harms.2. Assure the victim’s compensation.3. Spread the loss through the enterprise equitably.

RIVIELLO v. WALDRONF: Employee was flinging around a knife in the restaurant and hit a customer in the eye.H: RESPONDENT SUPERIOR – Owner of restaurant is liable.

Test of liability rest on whether the act occurred while the employee was doing the employer’s work. Master/Servant relationship.

FRUIT v. SCHREINERF: Fruit on business trip; trip included socializing. Fruit went to a bar a 2 am to find some peeps, they were not there. On the way back to the hotel he was involved in an accident.H: RS is present – Fruit was acting to derive a benefit to his employer.

HINMAN v. WESTINGHOUSE ELECTRIC CO.F: Employee was an elevator contractor’s helper. The company he worked for did not require him to come into the office, rather he was sent to job sites. Paid for travel time and cost.H: COMING AND GOING RULE

Generally, an employer will not be held liable for the actions of his employees when they are coming from or going to work, i.e. commuting.

EXCEPTIONS: the trip involves incidental benefit to the employer or the trip involves benefits to the employee and employer (either way, benefit to

employer).**ici, the employer made the economic decision to pay for the employees travel time

and mileage, thus the liability is extended.

FAUL v. JELCO, INC.F: Construction worker was living at employer’s trailer. Left to go home for the weekend, on the way back to work on Monday morning, he was involved in an accident.H: 2 MORE EXCEPTIONS TO COMING AND GOING RULE

1. Special Hazards2. Dual Purpose – employee performs a service during his commute that the

employer would have had to send another employee to do had the commuting employee not done the service.

EDGEWATER MOTELS, INC. v. GATZKEF: Manager burns hotel down while on a business trip.H: An employer is liable for an employee when the employee is engaged in deriving a

benefit to the employer and temporary acts of personal comfort (smoking, eating) do not disengage liability, as long as the employee is still within the scope of business.

Generally, an employer will not be vicariously liable for punitive damages.

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LISA M. v. HENRY MAYO NEWHALL MEMORIAL HOSPITAL F: 19 yr old pregnant girl sexually assaulted by hospital technician.H: An employer will not be held liable for an intentional tort if it is not caused by the

employment (i.e. attributable to the work related events or conditions); seems to rest on the idea of foreseeability. If something is totally unusual and out of left field, probably

not going to be held liable. However, if it is something that is known to possibly occur, the employer will be liable.

RODEBUSH v. OKLAHOMA NURSING HOMES, LTD.F: Intoxicated nurses’ aid slaps Alzheimer’s patient at elderly home. H: Generally, an employer is not liable for an employee’s assault.

EXCEPTIONS:1. Servant is engaged in Master’s business.2. Conduct was fairly/naturally incident to Master’s business.3. Conduct arose from an impulse which is incident to or naturally grows from

attempts to perform master’s business.

FAHRENDORFF v. NORTH HOMES, INC.F: ∏ was in a group home; employee was the only one on night duty and he made sexual advances to her.H: Foreseeable that the situation could occur.

VOLUNTEERSAre employer’s vicariously liable for volunteers?IF employer has control over the volunteer like employer would have over an employee, yes the employer is vicariously liable. Why? Employers are deriving benefit from the volunteer such that there is no salary paid and the business is getting work done. Thus, the employers should carry higher insurance to cover their volunteers.

II. EMPLOYERS WHO ARE NOT MASTERSKASTNER v. TOOMBSF: ∏’s employer arranged for Δ to furnish a back-ho and operator to dig a ditch. Operator warned there was danger in ∏’s employer’s instructions; employer shrugged off. ∏ injured. H: Borrowed Servant Rule

When a servant is loaned to another master, the borrowed master has liability for the servant, not the loaning master – thus only one master is liable.

Factor of Control Test for Borrowed Servant (Traditional)Master in control of the situation is liable as he is the one who can best

minimize the risk – generally hard to decide b/c both masters have some element of control; additionally, courts differ on what factors decide control

Whose Business is Being Done Test for Borrowed ServantMaster who is benefiting from servant’s act is liable – generally hard to

decipher as both masters have some benefit from the work**Dual Liability** Rule

Liability will be distributed based on contribution and indemnity principlesTODAY… typically these types of situations are now delegated through the parties contract; i.e. the contract will state which party assumes risk and liability“Captain of Ship”

Control is such that borrower has total control over situation and servant; the control is so substantial that the true employer loses his control, thus

also his liability (example is doctors control over nurses in operating rooms)

DISTRICT OF COLUMBIA v. HAMPTON

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F: ∏’s son was taken from her and placed in foster care. Son was beaten to death by foster brother. ∏ sues human services alleging foster mom is an agent and thus hs is liable.H: Factors to Determine if there is A Relationship (Master/Servant)

1. MOST DETERMINABLE FACTOR: The employer’s right to control the employee in performance and result of taskLook at actual relationship and the agreements made b/t the parties

2. Selection and Engagement of Servant3. Wage Payment4. Discharge Power5. Whether the work is regular part of employer’s business**in this situation, hs did not have control over the day-2-day routine at the house

and the court held that there was no relationship

O’BANNER v. McDONALD’S CORP.F: ∏ slips and falls at franchise restaurant; sues Δ claiming apparent authority.H: Apparent Agency/Authority Rule

If the injured party relies on the apparent agency and is harmed as a result, the principal of the agency is vicariously liable; requires the injured party to show:

1. Principal created the appearance that the agency is part of the principal

2. Injured party relied on this appearance3. Harm results

**the court held for McDonalds in that there was a lack of control; Cochran totally disagrees in that franchises have massive control over their franchisees

BOROUGHS v. JOINERF: Independent contractors employed by Δ sprayed the Δ’s crops. IC used bad pesticide and it contaminated ∏’s pond, killed the fish, and lowered his land value.H: Some duties are inherently non-delegable – thus liability is based on the failure to

exercise reasonable care in light of the activity. Normally viewed as acts which are peculiar risks or inherently dangerous. Courts have held this for cases involving fireworks, pesticides, car maintenance, maintenance of public lands, and other acts.

DEVELOPMENT OF COMMON LAW STRICT LIABILITYI. OLD SCHOOL STRICT LIABILITY AND TRESPASSORY TORTSWEAVER v. WARDF: ∏ and Δ were in military; Δ discharged musket; accidentally hit ∏.H: Trespass occurred – there is no need for fault, just direct harm; the only defense to this was if the injured party had caused the accident, i.e. ran in front of musket

BROWN v. KENDALL – signals end of strict liabilityF: Δ was separating a dog fight with a big stick; ∏ was behind him and was struck in the eye when Δ attempted to strike dogs. Pure accident.H: ∏ must now prove fault OR negligence for a prima facie case

II. STRICT LIABILITY AFTER BROWN TRESPASSING ANIMALSTrespassing animals would be liable for any damages; Strict Liability with some exceptions…

1. Type of animal – s.l. with sheeps, goats, etc.; no s.l. with dogs, cats, etc.2. Texas exception – reprise later in chapter

BAMFORD v. TURNLEYF: Δ made brick kilns on his land and produced vapors, smoke fumes, stenches, and stinks which annoyed ∏ (neighbor) and caused family and servants to fall ill.

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H: Nuisance Cases 1. Nuisance is not for public benefit2. Conduct was malicious or wanton3. Conduct was nuisance to ∏’s habitation – the conduct interfered with

the ∏’s use and enjoyment of land; additional factor: the nuisance resulted in loss of property value

RYLANDS v. FLETCHERF: Δ’s operated a mill and contracted to have a pond built to store water. The pond flooded underground mining shafts. This caused ∏’s mine to be flooded.H: Δ is liable if the Δ brings/accumulates anything, which if it escaped, would naturally

cause damage to his neighbor. Δ does this at his own peril and will be liable if damage results

Societal Benefit will be taken into consideration, i.e. is Δ’s conduct benefiting societyBest Question to ask: WHO is in the BEST position to minimize the risk??

TOMALEN v. MARRIOT CORP.F: Hotel hosted a troupe of actors for a murder mystery weekend; ∏ was injured when one actor became engulfed in flames after a botched fire-eating trick and another actor, attempting to aid, knocked over can of lighter fluid. ∏ was burned (sitting near stage).H: No strict liability b/c there was no escape of a dangerous instrumentality from Marriott’s property.

III. STRICT LIABILITY TODAYABNORMAL RISKS1. The existence of a high degree of risk of harm2. The likelihood that the harm that results from the activity will be great3. The inability to eliminate the risk by using reasonable care4. The extent to which the activity is not a matter of common usage5. The activity’s inappropriateness to the place where it is carried out6. The extent to which the activity’s value to the community is outweighed by its dangerous attribute

Landowner is strictly liable for toxic wastes that escape from propertyStrict Liability: blasting, storage of explosives, vibration damages, lateral

support of landNo Strict Liability: Spread of fires

**No Contributory Negligence for Strict Liability

TORT LIABILITY FOR DEFECTIVE PRODUCTSOld school rule: No privity b/t manufacturer and consumer (no strict liability)Today’s Rule: Idea of Fairness.

Manufacturer is liable b/c the nature of the product is such that it is reasonably certain to place life and limb in peril when negligently made; it is then a thing of danger. If the manufacturer is negligent where danger is reasonably foreseeable, a liability will follow.

MOORMAN MANU. CO. v. NATIONAL TANK CO.F: Grain tank cracks. ∏ suffers only economic losses.H: Strict Liability does not apply to pure economic losses. ∏ will have a remedy in K law.

II. ESTABLISHING A PRIMA FACIE CASEMANUFACTURING DEFECTSLEE v. COOKSTON COCA-COLA BOTTLING CO.

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F: Coke bottle explosion.H: Defect may be inferred from circumstantial evidence; if the evidence shows that a defect is more likely than not the cause for the harm, there will be strict liability. RIL doctrine applies here.

MEXICALI ROSE v. SUPERIOR COURTF: Chicken bone in enchilada. H: No strict liability b/c it is inherent in the product; ∏ still has negligence in food

preparation claim. ∏ assumes home-style error when purchasing home-style product.

JACKSON v. NESTLE-BEICH INC.F: Pecan shell in candy bar.H: Consumer Expectation Test – would a reasonable consumer expect the product to contain the pecan shell? No, then strict liability.

DESIGN DEFECTSLEICHTAMER v. AMERICAN MOTORS CORP.F: Roll-bar enhances ∏s injuries when ∏s where in an accident.H: Consumer Expectation Test – normal reasonable consumers would expect the product to perform reasonably well in a foreseeable activity

Expectation Test is set with the price of the product – i.e. Volvo expectations will differ from pinto expectations

Punitive damages are allowable when the Δ has held the product out to be good for a type of use when the Δ knows or should know that the product has not been tested for that type of use

KNITZ v. MINSTER MACHING CO.F: Activated machine w/ foot pedal while ∏’s hand was in the press, lost her fingers.H: Product Design is Defective IF:

1. Fails Consumer Expectation TestOR2. Risk-Utility Test – The Benefits of the Design are less than the Risk

Inherent in such Design (like Carroll Towing). Is B < or > the R? **Still must prove causation here!

Factors: Likelihood of InjuryGravity of Danger posedMechanic and Economic Foreseeability of

Improved Design**∏ chooses which test the suit will use by asserting his claim and the proof the ∏ introduces.

WILSON v. PIPER AIRCRAFT CORP.F: Suit on carburetor in an airplane freezing up. ∏ argues there should have been a fuel injection.H: For Risk-Utility analysis, the ∏ must show there is an alternative design that would have been safer in the same situation – BUT, ∏ must also show that the design is Reasonable and Practicable, i.e. more than just technically possible, must be economically and operationally feasible.

McCARTHY v. OLIN CORP.F: 3rd party shoots 25 peeps with Δ’s bullets.H: 1. The “unreasonable danger” was not created by the product’s defect, the

“unreasonable danger” arose from the product’s intended function – thus no liability.

2. No risk utility b/c risk is in the product’s intended function, not design.

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3. No duty from the manufacturer to control the distribution of potentially dangerous products – there is no special relationship b/t manufacturer and consumer (?)

FirearmsDesign defect theory has been widely rejected.

Smokes∏’s typically lose design defect cases; thrust of settlements were more along the lines of marketing and advertising.

DrugsDesign defects are rarely, if ever, imposed – BAD social policy, peeps would have to trash medicines b/c of potential side effects.

Negligence in Marketing and Advertising (Upcoming Issue in Judicial System)Judges are waiting for legislature to change the statutes if they intend to do so; most courts refuse to impose this claim on Δs

WARNING OR INFORMATION DEFECTSLearned IntermediariesDoctors are the learned intermediaries for drug manufactures to patients – the doctors are supposed to warn their patients of risks. If the drug manufacturer markets directly to the consumers, there is a duty to the drug manufacturer to warn of the risks. Pharmacists are under a professional duty to warn, but there is rarely, if ever, a legal duty to warn the customer.

Open and Obvious DangersIs there a duty to warn for O&O dangers?

1. Knowlton’s theory: Whether the danger was sufficiently clear to warrant no warning? This is a question of fact for the jury to deliberate on.

2. NO, where there is a O&O danger, the duty to warn is discharged.3. If ∏ is aware of O&O, assumption of risk defense may arise.

2 Types of Warning Messages1. Warning states that an activity/product is dangerous. i.e. “Machine is Dangerous”2. Warning states that there are alternative uses/ways for a peep to use the product/activity that are less dangerous. i.e. “Safety Guard Should be on the Machine While in Use” **Products must provide adequate warnings – where the warning is hidden in a 7pgsmallprint pamphlet, the manufacturer may be liable for inadequate warnings. (Carruth)

COMSTOCK v. GENERAL MOTORSF: 1953 Buicks’ brakes are bad. General motors knew this, but failed to warn peeps who had already bought the car.H: Generally, there is no post-sale duty on the manufacturer. However, if a manufacturer learns of a latent defect in the product which existed at the point of sale and is hazardous to life, the manufacturer has a duty to “give prompt warning”. This defect must be discovered shortly after product is put on the market – thus, the 1960s machine which was technically adequate for its time CANNOT be held liable in 1989 when the machine injures someone, even if dangers where discovered in the 1970s (No recovery for knowledge gained way later of how to avoid injury).

BITTNER v. AMERICAN HONDA MOTOR CO.

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F: 3-wheeler turned over.H: Just because there is a similarity in products’ purpose does not mean there is any

similarity in the products design

TURPIN v. PHARMASUTICLESF: Morning sickness pills allegedly caused birth defects.H: Judges must review scientific expert testimony before allowing it to go to the jury.

Rational: Possible fraud, possible jury confusion, scientific opinion must be based on reasonable scientific measures (confidence interval and confidence level).

BOWLING v. HEIL CO.F: ∏ killed while looking under a dump truck hoist; hoist fell.H: Traditional Rule

NO comparative or contributory fault defenses are allowed in strict liability cases

Rational: bases of strict liability focuses on the product, therefore the consumer’s conduct is not a factor.

Assumption of Risk Defenses are allowed. AssuRisk will bar all Δ’s liability.Some Jurisdictions reject the traditional rule and apply comparative or contributory negligence to strict liability cases.

Sidebar: failure to wear seatbelts does not effect strict liability (in a jx that follows Bowling).

HUGHES v. MAGIC CHEFH: Misuse is not a defense. Unforeseeable misuse which causes harm does not lead to

liability b/c the product is not defective if use was unforeseeable. Foreseeable Misuse does impose liability because manufacturer must precaution against Foreseeable Misuse.

∏ must show that the product became unreasonably dangerous while ∏ was using the product in a reasonably foreseeable way; therefore, ∏ must allege he was not misusing the product.

REID v. SPADONE MACHINEF: Guillotine machine chops fingers.H: Δ in a strict liability case MAY have a 3rd party superseding act defense IF the Δ can

prove that the 3rd party’s negligent/misuse act was NOT foreseeable. If the 3rd party’s act was foreseeable, no superseding defense.

Foreseeable Misuse – rises to product liabilityUnforeseeable Misuse – no duty; proximate cause issues because of foreseeability

issues; product is not defective

VAUGHN v. NISSANF: ∏ suffers from asthma due to boiling battery fluid fumes.H: The ordinary consumer test is only to test the product’s defectiveness.

The ordinary consumer test is not for damages or injuries; thus, a ∏ may recover for injuries which the Δ’s product caused even if ∏’s injuries were not “normal” (kind of like thin skull rule).

Shifting ResponsibilityA Δ may shift the responsibility to, for instance, an employer who “Substantially Modifies” Δ’s product.

Well-Known DangersIf well-known danger, no duty, no liability. Thus, alcoholics can not sue miller lite for causing their alcoholism.

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DisclaimersNew product disclaimers do not count to exclude liability.Old, i.e. used, product disclaimers do exclude liability.

Federal IssuesIf the federal government through statutes, over-regulation, congressional acts set product standards, the states are preempted – exceptions may be provided.

Military Contract Defense – if the manufacturer was following government specifications, and the government approved specs, and specs are precise, there is no product liability for defects. Rational is that the military contract prices would rise if liability was imposed. (Boyle)

COMMUNICATION OF PERSONALLY HARMFUL IMPRESSIONS TO OTHERS I. DEFAMATION – LIBEL AND SLANDERThe Common Law Defamation RulesCASSIDY v. DAILY MIRROR NEWSPAPERS, LTD.H: Defamation is an INJURY TO A REPUTATION – is measured by the effect on others

esteem of you, i.e. “viewed in the eyes/hearts/souls of other peeps”

LibelWritten DefamationMedia Publications (radio, tv, newspapers, etc.)

**Knowledge/Communication must be made to a 3rd party, i.e. Δ slams ∏ in a memo to ∏ -- no libel defamation b/c no 3rd party knew of it

**Defamation is INTENTIONAL – even if no intention to defame, there is an intent to say or publish the remark. No intent needed to cause injury, just intent in the act.

Defamatory MeaningMust prove that words had a defamatory meaning – Context of words is very important. Any ambiguity is a question for the jury.

“Single Publication Rule”Example: a book is published and sells 1K copies; ∏ can only recover one time, not 1K times.

Website PublicationsStatute of Limitations begins when originally published (though obviously discovery rule may apply). Minority of jurisdictions hold that the statute of limitations starts anew every time website is accessed.

DamagesTraditional Rule

Libel damages are presumed and some slander damages are presumed (libel per se and slander per se).

Slander per se: Accusation of Serious CrimeAccusation of Sexual Misconduct (really only for women)Accusation of Loathsome Disease (AIDS not so much

now)Accusation of traits or conduct incompatible with ∏’s

trade, business, professionOther Slander damages must be proven.

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DEFENSES, i.e. PrivilegesTRUTH∏ must prove that the statement is false

OFFICIAL PRIVLEGEJudicial and Legislative officers have privilege within their official duties. Executive officers have qualified privilege.

PRIVLEGE TO COMMUNICATE ONE’S OWN INTERESTSelf-Defense: I didn’t do it, he did.Protection of Loved Ones: Don’t trust him, he is an ass.Sharing Important Information: I fired him b/c he sold crack behind the bar.*Privilege is destroyed when speaker publishes excessively, publishes maliciously, or publishes for an improper purpose.

PRIVLEGE TO REPORT A CRIME TO APPROPRIATE PEEPSLost if malicious or grossly negligent.

FAIR COMMENTAccurately stated facts concerning a matter of public concern are privileged – limited to the accurately stated facts.

The Constitutional Constraints of Free SpeechNEW YORK TIMES CO. v. SULLIVANF: Suit for NYT ad which inferred that Alabama cops were racist.H: ∏ must prove the following for Libel vs. Public Official

1. False Statement2. Δ made statement with actual malice – malice or reckless disregard3. Statement had defamatory content4. Statement refers to ∏**Erroneous statements alone will not be libel – must be totally reckless. (Public

Policy)

Fundamental American Right to have unhindered discourse regarding public officials.

– Public officials have put themselves in the limelight. Additionally, normally private peeps may be public figures if they put themselves out for a

position, candidacy, etc. (i.e. someone who runs for politics).

GERTZ v. ROBERT WELCH, INC. F: Lawyer accused of being communist and part of a conspiracy theory.H: Removes Sullivan malice requirement for Private peeps.

∏ Must Show:1. Fault – States differ floor is negligence, ceiling is Sullivan standard2. Damages

DUN & BRADSTREET, INC. v. GREENMOSS BUILDERS, INC.F: Misprinted credit report.H: Private peep in private concern – can recover actual and punitive damages.

PEEP? CONCERN? ∏ MUST SHOW: Public ( sullivan ) Public ACTUAL MALICE/RECKLESS DISREGARD Private ( gertz ) Public FAULT & DAMAGES Private ( dun ) Private FAULT (no damages needed to be proved) **Spectrum for Private Peeps – can fall between negligence and malice (state’s choice)

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**Public “Figures” are treated pretty much like Public Officials.

II. MALICIOUS PROSECTIONMalicious Prosecution1. Must be a Prosecution2. Δ Must Have Instigated the Prosecution3. Δ Must Have Had Actual Malice4. Δ Acted w/out Probable Cause5. Suit is Terminated in Favor of the ∏Not a Trespassory Tort like False Imprisonment – rather an Indirect Personal Interference.Very rarely would a MP suit be against a private citizen, usually against police peeps – even if complaint is made by a citizen, the police have the duty to investigate

Improper Civil LitigationFRIEDMAN v. DOZORCF: ∏ (doctor) sues lawyer who filed a frivolous claim against him.H: Lawyers have no duty to adversary parties – a lawyer will not be liable for filing a suit for his client; but, he may face Rule 11 sanctions.

III. ABUSES OF PROCESS1. Misuse of Legal System2. Misuse is for an Ulterior or Improper Purpose**Not Plea Bargains**Must be either personal gain or a personal benefit.Example: I’ll drop the charges if you have sex with me, etc.

IV. PRIVACY1. Intrusive Invasions

intrusions into someone’s seclusion; i.e. listing in w/ electronic devises2. Commercial Appropriations

takes your likeliness/persona for commercial purposes3. False Light

information is true, so not slander or libelous, but paints the person in a false light, i.e. saying you stand for a political action that you do not4. Public Revelation of Private Facts

usually deals with sexual matters (Pamela Anderson &Tommy Sex Tapes)

Why sue under privacy in lieu of defamation?Libel and Slander – provably false statement/implicationPrivacy – true statement; provably false implication

TAYLOR v. KTVB, INC.F: TV station aired naked man being arrested.H: Liability for Disclosure of Private Facts (Public Revelation)

Δ will not be liable if it is an occurrence of Public Interest (i.e. News) UNLESS, the ∏ can prove malice (i.e. purposeful embarrassment or reckless

disregard of disclosure’s embarrassment)

CAPE PUBLICATIONS, INC. v. BRIDGESF: Photographer caught naked women being rescued by cops from estranged ex-hubbie.H: The standard of a person’s right to privacy is based on a reasonable person standard.

Interference with Family RelationshipsSome states still recognize torts like alienation of affection. Courts are reluctant to do so though because it is stepping into a family private matter.

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MISREPRESENTATION AND OTHER MISDEALINGSI. THEORIES OF LIABILITY AND CONSEQUENCES ELEMENTS OF MISREPRESENTATION:1. Material Fact Communicated from the Δ to the ∏.2. Economic Loss to ∏.3. Scienter Required, i.e. knowing or reckless act.4. ∏ Relies on the Misrepresentation.

ULTRAMARES CORP. v. TOUCHE, NIVEN & CO.F: Public acct. certified a company’s audit. ∏ lent money to company based on this certification; company collapsed, ∏ lost money. Δ (PA) knew ∏ would rely on the certification.H: Negligence alone does not constitute misrepresentation. If one has a negligence claim, liability only exists b/t the contracting parties; policy says it would be too widespread if different.

GAUERKE v. ROZGAH: IF Δ is reckless in stating a material fact (i.e. Δ doesn’t know about the fact, but holds

himself as knowing) then Δ is liable. Thus, not knowing and purporting yourself as knowing, is a misrepresentation.

Reliance and Related DoctrinesPINNACLE PEAK DEVELOPERS v. TRW INVESTMENT CORP.H: Misrepresentation may be very hard to prove b/c ∏ must prove the intent of Δ’s mind.

II. DUTY TO DISCLOSETraditional Rule: Δ actively conceals a defect – Misrepresentation.Contemporary Rule: Δ actively conceals a defect – Misrepresentation.

Δ does not disclose, nor does seller hide a defect – Misrepresentation.

Not Misrep.: Δ has no knowledge of defect and nor should have known of defect.

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