TORTS LAW OUTLINE

 

General:

·        traditional goal of tort law has been to restore the plaintiff to her condition prior to harm through compensation.

·        tort law unlike contract is imposed on parties rather than coming from the parties.  Tort law helps to define the duty.

·        rationale for tort law:  1) deterrence    2) spread the risks    3) internalize costs

·        3 bases for torts:  1) negligence - creation of unreasonable risk;   2) intentional torts;    3) strict liability

 

 

I.  INTENTIONAL TORTS

 

3 ways INTENT may be satisfied:  1) purpose    2) knowledge to a substantial certainty - (minor's age may affect ability to understand); Garrett v. Dailey

3) transferred intent (ricocheted bullet injures another) - applies to battery, assault, false imprisonment, trespass.

 

Difference between intentional and negligent torts:  1) punitive damages (intentional or reckless);  2) not allow comparative/contributory negligence (as a defense);   3) statutes of limitations;   4) discharge in bankruptcy;    5) insurance exclusions;   6) exclusive remedy - workman's compensation (may have to prove tort to collect);   7) exculpatory agreements.

 

 

A.        BATTERY -   the intentional causing of harmful or offensive contact with another person; "impermissible contact."

            Elements:  1) volitional act;  2) intent;  3) causes;  4) contact;  5) impermissible - society-based (before the fact);  6) harmful or offensive;   7) nonconsensual

            1.  No consent + offensive bodily contact (obc) = tort (vaccinating a child) - need guardian's consent or it is unlawful act.

            2.  Need not contact victim's flesh (prohibition against touching clothes, striking cane, slapping horse on which he is riding, spitting on someone)

            3.  Battery requires action (blocking a doorway = no battery)

            4.  May be indirect (pouring something on a person's towel, sicking dog on someone)

            5.  Hostile intent is not necessary (kissing a woman without her consent)

            6.  Greeting-pat on a friend's back or a polite attention-attracting touch on a stranger's arm is no battery.

            7.  Reckless battery - depends on the situation (example: sports)

            8.  Consent may be assumed in some circumstances (play football, ride crowded bus)

            9.  Insanity is not a proper defense to battery, because the law imposes the loss on the insane person rather than the victim.

            10.  Reasonable person test on determining o.b.c.

            11.  Nominal harm sufficient.

            12.  Mistaken identity + obc = battery

            13.  Knowledge of sensitivity matters, i.e., more liable if you know the person is particularly sensitive to a certain bodily contact.

 

            a.  Transferred intent applies - an agressor who wrongfully strikes at one person and hits another is liable to that other.

            b.  Need not be aware of contact when offense occurs

            c.  Direct contact is not necessary - only needs to be intimate to a person

            d.         Garrett v. Dailey - boy pulls chair away, lady goes to sit down, falls to the ground and sustains hip injury.  Ct must consider intent as "know. to a substantial certainty"

 

B.        ASSAULT -   an intentional act which arouses a reasonable apprehension of imminent battery in P.

            1.  Aiming a blow at someone, advancing on a person and threatening a beating, menacingly pointing a gun at someone.

            2.  Apprehension of contact is required; P need not experience fear.

            3.  No future threat is an assault unless immediate harm and ability of actor to carry out that harm exists.  R ? 29.  (No assault committed by phone call, because speaker cannot carry out the threat)

            4.  Conditional Assault:  assault exists if on conditional terms (your money or your life)

            5.  Apparent Ability is deciding factor (pointing unloaded gun at people who believe it is loaded is an assault).

            6.  Belief of apprehension matters ("lookout for that rattlesnake!" while in desert when knowingly false statement causing immediate apprehension = assault).

            7.  Does not include apprehension of assault to a third person.

            8.  P must believe it is time for fight or flight.

            a.  Transferred intent applies.

            b.  Must be aware of assault at time it takes place.

            c.  Generally, words are not enough.  See #6.

 

C.  FALSE IMPRISONMENT - occurs when D intentionally confines P directly or indirectly to boundaries outlined by D, without privilege to do so.  P must be aware of confinement or harmed by it.  Key actionable result:  "Nonconsensual restraint"

            1.  Can also be where one is compelled to go where he does not wish to go.

            2.  Majority of courts say the person must be conscious or aware of confinement.  If physically harmed, then awareness is immaterial.

            3.  Restraint through property (take purse to make lady come with you)

            4.  Confinement achieved by (1) actual or apparent physical barriers, (2) overpowering physical force, (3) threats of force,  (4) other duress (employer-employee),  (5) asserted legal authority.

            5.  Relationship important:  more likely with employer than parents reprimanding a child.

            6.  False Arrest  - when D in good faith detains a suspected shoplifter, courts tend to deny liability. (reasonable time to investigate).  Must have reasonable cause for no false arrest.  Some species of malicious prosecution fit here.

            7.  Transferred intent applies - mistaken identity is no excuse.

            8.  Reasonable or safe avenue for exit = no false imprisonment.

 

D.  INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS - 1. the wrongdoer's conduct was intentional or reckless,  2. the conduct was outrageous (limits on bad manners and mere hurt feelings);  3. causal connection between the wrongdoer's conduct and the emotional distress;   4. the emotional distress was severe.

            1. You can recover even without physical injury State Rubish Collectors v. Siliznoff.

            2.  D's conduct must be extreme and outrageous, not merely insulting or offensive.  Requires more than words.

            3.  Liable if injured party known to be especially vulnerable or susceptible to emotional distress, even though same conduct would not be considered outrageous if directed toward any ordinary person (young children, pregnant women, mentally/physically impaired)

            4.  Public figure more difficult to collect Hustler v. Falwell  "breathing space for 1st Amendment"

            5.  Transferred intent does not apply except in case where immediate family involved (beat up girl's father knowing she is watching)

            6.  Provides no clear definition of prohibited acts - different from other torts.

 

E.  TRESPASS.  D subject to liability for trespass if he intentionally (1) enters upon land or causes some thing or third person to do so;  (2) remains on the land after his privilege has expired;  (3) fails to remove a thing from the land which he had a duty to remove.  Elements:  intentional, volitional, entry, without consent.

            1.  If unintended intrusion, no liability unless actual harm.

            2.  Mistake is not a defense to this tort.

            3.  Can be deposit of chemical substance/residue on another's land.

            4.  actual damage is not an essential ingredient; retains strict liability

            5.  Interferes with owner's exclusive possessory rights, as distinguished from use and enjoyment of property (nuisance).

            6.  Intent here refers to intent to enter land, not necessarily to invade another's interest in exclusive possession of land.

            7.  Tort of trespass to chattels requires injury to chattel.

            8.  Liable for damage to property whether foreseeable or not.

            9.  Includes air above and ground below land.

 

F.  CONVERSION --  Intentional inferference with P's possession or ownership of property that is so substantial that D must pay property's full value.

            1.  Requires serious dispossession and at least nominal damages.

            2.  Dominion must be exercised over property

            3.  Distinguished from trespass to chattels - damages measured by dimunition in value caused by interference, not the full value of property.  Tort of trespass to chattels requires an injury to chattel.

            4.  Documents copied at night and then returned to files are not converted.  (assuming not stealing business plans, scientific discoveries, literary property)

            5.  Buying stolen goods is conversion, unless willing to give back those goods.

            6.  Buying goods obtained by fraud is no conversion (if purchased in good faith at fair value).

            7.  Mistake (with good faith - take someone else's hat, find out, promptly return it) - no conversion.

            8.  Damage calculated as fair market value of goods at time of conversion + interest.

            9.  Duration is a factor to determine if converted, e.g., borrowing TV Guide for 5 minutes vs. borrowing for one week (after a week it is useless).

            10.  Plaintiff's inconvenience and expense is a factor to determine if converted.

 

 

II.  DEFENSES TO INTENTIONAL TORTS

            Privilege - negates the tortious character of D's conduct.  Other defenses reduce the amount of damages but do not negate the tort.  Privileges are an affirmative defense:  burden of proof on D.  (Exception: intentional torts against P's person (assault, battery, false imprisonment) then absence of consent is an element of a prima facie case.   Volenti non fit injuria (one who consents is not injured)

            2.  Mistaken belief about privilege, no defense.  But certain privileges are based on reasonable belief about facts, even though later it turns out to have been mistaken.

 

            A.  CONSENT.   Word, conduct, inaction, or such expression as would reasonably be understood to manifest consent.  Defeats liability for any tort.  Called "assumption of risk" in negligence and strict liability cases.

            1.  Willingness for it to happen:  a) actual willingness,  b) apparent willingeness,  c) implied consent (from statutes) - hospital, emergency situations.

            2.  Valid whether or not communicated to D. 

            3.  Majority Rule - where paties agree to engage in combat, each is civilly liable to the other.  Minority rule - cannot recover in fights unless excessive force or malicious intent.

            4.  If person commits felony, cannot recover if hurt while doing it.  (A gives B cocaine, B is hurt, B cannot recover).

            5.  Case of consenting prostitute who did not get paid - no battery.  Fraud is on payment, not on conduct.  She can recover in contract law.

            6.  Customary risk of an activity does not bar action for intentional injuries (abuse in football).

            7.  Mature minor rule:  0-7 no consent, 7-14 rebuttable no consent, 14-18 rebuttable consent presumed.

            8.  If A commits battery on B, and B subjectively feared the contact, A may still rely on the defense of consent.  Consent is measured by objective appearances, not unexpressed subjective desires.

 

Potential Grounds for invalidation of consent:  A)  Illegal conduct - majority says can sue, no defense if illegal activity.   B) fraud or misrepresentation;   C) Mistake where D is aware;   D) Duress;    E) Age (minors);   F) Mental Status.

 

            B.  SELF-DEFENSE ELEMENT.  D must have (1) good faith belief that it is necessary, (2) belief reasonable,  (3) unresolved = true harm + good faith, but unreasonable,  (4) level of force must be appropriate,  (5) some juris. require retreat.  D has a privilege to use force necessary to protect himself from imminent physical harm.

            1.  No retaliation; excessive beating; may lead to cross action.

            2.  When threat ends, privilege ends.

            3.  Mistake - a reasonable mistake is allowed.  (Mistakenly shoot a policeman)

            4.  Duty of Retreat - generally required unless in your own home or making a lawful arrest.

            5.  Apparent necessity - only use force if there is a real threat of harm.

            6.  Defense of others - may use this defense if these same conditions apply to a third party.

                        A)  Mistake - if D is mistaken and 3rd party would have no right of self-defense, then D has no privilege.

            7.  Only use force of serious bodily injury force when he believes he is in similar harm.

            8.  Mechanical devices cannot be used and may attach liability even if a person in the situation would have had right to use wounding force.  R2T ?? 84, 85:   

 

C.  PROTECTION OF PROPERTY.  Force reasonable under the circumstances to protect land or chattels.  Occupants entitled to push/pull/carry/lead intruder off their premises.  Barbed wire and glass on walls may be used in customary way without subjecting the owner to liability.  Warning may alleviate liability.

            1.  Must request actor to desist unless belief that request would be useless.

            2.  Def. must reasonably believe taking of property is unprivileged.

            3.  D is subject to liability for harm caused to intruder by mechanical devices which he would not have been privileged to inflict himself if present.  You cannot say "I would have had a reasonable belief."  Spring gun has no mind of its own to make a reasonable decision.  Owner is liable.  Only time spring gun is justified is if intruder intends violent felony. Katko v. Brinney.

 

D.  RECAPTURE OF LAND OR CHATTELS.  Property owner has right to use reasonable force to regain possession of land or chattels taken from her by someone else.

            1.  Reasonable time.  Fresh pursuit - goes about other business, he loses this privilege.

            2.  authorized to retrieve chattels deposited on someone else's land.

            3.  No deadly force.

 

E.  DEFENSE OF NECESSITY

            1.  Public Necessity - the public has the right to do whatever is necessary to defend the greater good of society.  The public is NEVER liable for damage in this tort.  Complete privilege.  Priv. individ. can act in public necessity.

            2.  Private Necessity - requires 1) good faith belief by D in necessity of action; 2) belief must be reasonable;  3) risk must significantly outweigh risk to P's property;  4) appropriate means  (cannot tie boat to pillar of P's house).  Incomplete privilege - you are liable for damages, but not for trespassing.

            3.  There is no "necessity" if the actor caused the peril which he seeks to avoid.

 

 

III.  NEGLIGENCE

 

Elements of a prima facie case:  1) duty,  2) violation of stnd of care;  3) causation;  4) proximate causation;   5) compensable harm.    Note: 3) does not imply 4)

 

THE CENTRAL CONCEPT

 

2.  Standard of care vs. standard of proof:  "1% chance that child could find poison could be negligent" vs. "51% probability or more likely than not"

 

Objective standard of care generally:  degree of care a reasonable person under similar circumstances would exercise.  If D crosses below this line, he is liable.  The risk, reasonably perceived, defined the duty owed.  If risk NOT FORESEEABLE = NO NEGLIGENCE.

 

            a.  Best judgment immaterial.  Your best may not be good enough; ordinarily immaterial.

 

            b.  Physical handicap.  When the D suffers a physical handicap, the "reasonable person" will be deemed to have the same handicap.  Note: subjectivity enters.

 

            c.  Mental incapacity.  A person with a mental incapacity is held to the same standard of care as a person of ordinary intelligence because of the difficulties that would occasion determining the degree of disability.  Restatement (Second) of Torts, ? 283B, states that insane persons are held in all respects to the reasonableness standard of a sane person, the only exception being where malice or intent is necessary for the cause of action (which is not applicable to negligence).  Exception: Breunig, lady crashed into back of car thinking light would levitate her.  Ct. held if mental disorder (1) robs her of ability to understand or appreciate duty or (2) ability to control car and no forewarning of impairment, then not liable.

 

            d.  Children.  The usual objective standard of care has been somewhat modified in the case of children.  Majority view - standard is based on what may be expected of children of like age, intelligence, and experience.  At common law, a child under age seven was presumed to be incapable of negligence, between the ages of seven and 14 rebuttably presumed incapable, and over 14 presumed capable.  A minority of jurisdictions still have arbitrary age limits.

 

            When driving a car.  A few jurisdictions still make the age, intelligence, and experience allowance when a child is driving a car or engaging in other "adult" activity, but the majority of cases hold children to an adult standard in such situations.  (R2T ? 283(A) is in accord).

 

            e. In Emergency situation.  D "cannot reasonably be held to the same accuracy of judgment or conduct as one who has had full opportunity to reflect."  Subway driver and crash case.

 

3.  Reasonable care as limitation -- D must only exercise ordinary care in light of ordinary risk.  "No custom has been disregarded."  "Only some extraordinary casualty" could bring boy in contact with wires.  The foreseeability of the harm is balanced against the ability to prevent the injury.  Judg. for D as a matter of law.  "The trolley wire case"

 

4.  Learned Hand Formula (Calculation of Risk)

            1. Burden Probability  Loss

                        a.  if B < PL, then negligence exists

                        b.  if B > PL, then no negligence exists

            2.  Difficult to quantify, cost-benefit analysis, economics flavor

 

5.  CUSTOM - Following custom in the community or trade practice is not conclusive.  The custom is merely evidence of the standard of care owed.  The test still is whether the average reasonable person would have so acted under the same or similar circumstances.  Custom - means it is feasible & practical, provides opportunity for learning the safe way.  R2T ? 286 - If a person has superior knowledge to custom, he must use that superior knowledge.  (Otherwise an entire industry could keep its standards artificially low)

 

6.  MEDICAL MALPRACTICE  - general rule: professional standard is conclusive.   A doctor or other professional is required to have the same skill and learning as average members of the profession and to apply that skill and learning with the same care as generally exercised by other members of his profession.

 

            a) Establishing the Standard of Care Through Experts -- testify as to practices in the field.  Examples where experts not necessary:  operate on wrong leg, leave instrument in the body.  Considerations for statutes defining standard of care:  1) geographic - e.g., state-wide, specialists have a national standard of care   2) professional - in D's specialty and profession,  3) temporal.

 

            b) Informed Consent Doctrine.  Protects a person's autonomy decision.  "Patient Rule" - lay person determines which risks are acceptable, physician - determines the risks.  Standard of disclosure - not a medical decision, a personal decision. 

 

            definition of material - what a reasonable person would consider as a significant risk, given the physician's knowledge.  Materiality and causation - two separate grounds for decision.

 

            Proof patient must have for implied consent action:  1) existence of a material risk unknown to patient.   2) failure to disclose risk    3) disclosure would have led a reasonable patient to reject the medical procedure or choose an alternative - causation;   4) injury - causation, effect of procedure.

 

            Defense to informed consent:  1) would cause detrimental effect on physical or psychological well-being;  2) incapable of consenting - mental disability, infancy;   3) emergency;   4) so obvious, justify presumption;   5) simple procedure and risks remote;    6) physician did not know and should not have known.

 

C.  THE ROLES OF JUDGE AND JURY

 

1.  In General.  If an act was negligent as a matter of law (negligent per se), the judge will so instruct the jury.  Thus, the "proper" standard of care is given the effect of law by the courts.  If an act is not negligent per se, the judge will leave it to the jury to determine whether the act was negligent.  This procedure has been adopted in order to prevent juries from being overly swayed by their emotions.  In Goodman, Justice Holmes got swayed into saying a driver should get out of his car and look both directions before crossing a railroad track.  Led Cardozo in Pokora to disapprove of this dictum from Goodman.  Pokora points out that there are no ironclad rules as to what is negligent conduct; the duty varies with the circumstances.  It is usually negligence as a matter of law not to stop, look, and listen, but not always.  This holding is the better of the two cases.  A P should be given the chance to let the jury decide the extent to which his negligence contributed to his woe.

 

D.  VIOLATION OF STATUTES.  (No foreseeability issue, unlike common law negli­gence)  Statutes that affect defendant's conduct may be either civil or criminal.  If plaintiff is provided a civil remedy under the statute, he will not have to be concerned with negligence.  However, where defendant has violated a criminal statute and, in the process, injured plaintiff, he may be chargeable with negligence in addition to the crime.  When a court adopts a standard of care embodied in a criminal statute, the rationale is that a reasonable person always obeys the criminal law.  However, for plaintiff to support a claim that the violation of the criminal statute by defendant was negligence, the statute must have clearly defined the conduct or duty required and the class or individual to whom it applies.  Failure of defendant to act as required will constitute a breach of the duty.  However, for P to establish liability, he must show that he is in the class from the type of injury P suffered.  Depending upon the jurisdiction, violation of a statute can have several effects.  The majority view finds violation of a statute to give rise to a conclusive presumption of negligence.  However, where P's claim is based on violation of the statute of negligence, D generally has available to him the defenses of comparative negligence and assumption of risk.

 

Violation of the statute rule:  For it to apply:   1) P within class;  2) harm, materialization of risk sought to prevent - proximate cause must be sufficiently close to the statute's design;  3) appropriate (not outdated);  4) unexcused (or statutory purpose) - walk on right side of road under certain conditions;  5) violation.   THEN procedural effect:  negligence per se.

 

General Rule:  Compliance does not automatically signify that you have met the standard of care.  R2T ? 288(c).

 

Preemption - compliance precludes liability or implies no liability, then tort claims are preempted.  Example:  If Fed. statute is comprehensive + supremacy clause, then tort claims are preempted.

 

Violation of safety legislation -- "Buggy collision with car case"  Unexcused omission of the statutorily required lighting is negligence in itself.  To omit safeguards prescribed by statute for the benefit of others is to fall short of the duty of diligence owed toward the rest of society.

 

Exceptions to the general rule -- "Pedestrian struck while walking on the right-side of road case"  We cannot reasonably assume the legislature intended that a statute enacted for the safety of pedestrians must be observed when observance would subject them to more imminent danger.  Statutes such as the one in question may be properly construed as intended to apply only to ordinary situations.  Thus, the statute may be subject to an exception if disobedience is likely to prevent rather than cause the accidents that the statute seeks to prevent.

 

LICENSING STATUTES.  Licensing statutes are not ordinarily used to set standards of care.  Failure to obtain a license is not negligence per se.

 

 

E.  PROOF OF NEGLIGENCE

 

1.  Plaintiff's Burden.  If persons of reasonable intelligence may differ as to the conclusion to be drawn, the issue must be left to the jury; if not, the court will decide.  Generally, the burden of proof, i.e., the risk of nonpersuasion, is on the plaintiff, and if the evidence he introduces is not greater or more persuasive than that of his adversary, he must lose.  The burden of going forward with presenting proof, on the other hand, is established by presumptions, and the failure to rebut a presumption may result in a directed verdict.

 

a.  Circumstantial evidence.  Circumstantial evidence is the proof of one fact, or group of facts, that gives rise to an inference by reasoning that another fact must be true.

 

b.  In slip and fall cases - P would like to prove facts showing a minimum of time and knowledge of risk such that reasonableness would have led D to some corrective action.

 

2.  Res Ipsa Loquitut ("RIL").  RIL, directly translated, means "the thing speaks for itself."  Res ipsa loquitur is applicable if:  (i) the accident is the kind that will not normally occur without someone's negligence;  (ii) the cause of harm is in the exclusive control of D at time of alleged negligent condition;  (iii) P did not in any way voluntarily contribute to the harm.  If these three elements are proven, P need prove nothing else to establish liability.  Airplane crash case  Majority view - permissible inference.

 

a.  Rationale.  The courts recognize RIL because of the existence of injured plaintiff and a D who has better access to the evidence concerning the injury.  However, the doctrine does not apply if negligence by D is no more likely than another explanation. 

 

b.  Burden of defendant.  RIL puts the burden on defendant to explain that (1) the accident resulted from something else;  (2) he exercised due care in every respect;  (3) instrument not in the exclusive control of D. 

 

            1)  There must be some evidence of negligence, but control of the instrumentality by D gives rise to an inference that it happened from lack of care if it would not ordinarily happen without a lack of care.

 

            2)  The doctrine applies when reasonable people would agree that at least 51% of the probabilities point to D's liability.  P does not have to prove it is the only explanation, only the most probable.

 

            3) Constructive Notice  -- Slip and fall baby food jars case.  The broken baby food jars had been on the floor for an extended period of time.  During this time, D's employees could have discovered and remedied the situation.

 

            4)  No evidence of constructive notice. --  Slip and fall at Museum case.  No evidence in this case indicates how long the piece of wax paper was on the steps.  This absence of evidence offers no way to determine whether D's employees should have had constructive notice (implies time) of its presence.  Sufficient length of time in question

 

            Comment.  Negri and Gordon may be distinguished by the amount of evidence that was offered by P.  In Negri there was sufficient evidence offered to give rise to an inference that the employees should have discovered the danger.  Gordon provided no evidence to give rise to such an inference.  Although res ipsa loquitur may be used to infer issues that are not subject to direct proof, there must be sufficient circumstantial evidence offered to give rise to those inferences.

 

            5) BYRNE v. BOADLE, P was walking on a street when a barrel rolled out of D's window, striking  and injuring him.  There was no other evidence.  All that is necessary is that reasonable people would say that more likely than not there was negligence.  The fact of the barrel falling is prima facie evidence of negligence.  If there are any facts inconsistent with negligence, it is up to D to prove them.  This case speaks to the first element of RIL only.

 

            6)  Evidentiary presumption -- Private plane crash case.  There is no other probable explanation for the crash except negligence.  Weather was clear.  D had full control of the plane; he was only licensed pilot.  P was in the back seat.  The elements of res ipsa loquitur can be an evidentiary presumption.  If P can prove the three elements, he need not prove actual negligence of D.  The negligence is simply presumed.

 

            7) Rarity is not sufficient for res ipsa loquitur.  Rarity does not matter.  When such an injury occurs, more likely than not it is due to negligence.

 

            8) Ybarra.  More than one D had exclusive control.  2nd prong of RIL is to link cause of injury to D's negligence.  Can't do it in this case, but court expands to permit each D to be held liable.  Each called upon to explain his conduct.  Each D had exclusive control, direct contact with P.  To contain Ybarra:  limited to doctor-patient relationship and peculiar vulnerability of someone under anesthesia.  "Smoke'm out" conspiracy of silence.

 

            9) Flower pot falling out of apartment complex window does not meet the 2nd prong of the RIL test.  Cannot show exclusive control to any D.

 

 

F.  LANDOWNERS AND OCCUPIERS

 

1.  Duty of Owners and Occupants of Land.  Three factors:  status of entrant, state of knowledge of D (on notice of potential to cause injury), source of injury. 

 

A.  Trespassing adult.  Trespasser is one who comes onto the land without permission or privilege; they must take the premises as found and are presumed to assume the risk of looking out for themselves.  GENERAL RULE:  landowner owes no duty to an undiscovered trespasser. 

 

B.  Duty owed known or discovered trespassers.   Warn of, or make safe, any known artificial conditions that could could serious bodily injury or death.  Also liable for intentional willful and wanton misconduct by landowner.

 

C.  Licensees.  A licensee is one who goes on the land of another with the permission of the owner/occupier, through authority of law, or by necessity, and is deemed to take the land as the occupier uses it.  GENERAL RULE:  landowner/occupier must warn the licensee of, or make safe, known natural or artificial conditions or activities involving any risk of harm that the licensee is unlikely to discover, whether existing at the time of entry or arising thereafter.  Licensee business reason or by open invitation to the public.

 

            1)  Social guest.  "Invitee" is a word of art; it does not include all persons invited onto the premises.  A social guest, though invited, is only a licensee.  The fact that a guest renders some incidental service or was invited out of economic motives does not remove the guest from the status of licensee.

 

            2)  Known danger.  Duty covers only known natural or artificial dangerous conditions.  No duty to warn of obviously dangerous conditions.

 

            Case with traditional view:  Woman falls off deck and injures hip; deck had no guardrails.  P could reasonably assume usual conditions existed.  When Mr. Adler opened the door to let in fresh air, that act alone constituted an implied invitation for his guests to remove themselves to the deck.  P did not exceed the scope of her license as a matter of law and thus became a trespasser entitled to no warning concerning the condition of the deck. Fitch v. Adler 

 

            Application discarding categories:  A person's life or limb is not less worthy of protection because he has come upon the land of another without a business purpose or without permission.  The basic policy set forth by the legislature is that everyone is responsible for an injury caused to another by his want of ordinary care.  "Proper test to be applied to the liability of the possessor of land is whether he has acted as a reasonable man in view of the probability of injury to others, and, although the P's status may have some bearing on the question of liability, the status is not determinative."  Rowland v. Christian "Broken faucet handle case"

 

            3)  Duty to inspect.  The duty of a landowner/occupier extends only to known dangerous conditions;  there is not duty to inspect in order to discover dangerous conditions.

 

D.  INVITEES.  An invitee is one who goes upon the land of another with the consent of the owner/occupier for some purpose connected with the use of the premises:  either business visitor or a public invitee.  Scope of duty owed is co-extensive with the invitation; implied promise that the premises are, or will be, safe or reasonably so.  This means that the invitor is under a duty to make a reasonable inspection of the premises and discover any dangers that may exist.  Thereafter, the duty owed the invitee is one of reasonable care for his safety.

 

            (1) an entrant serving some purpose of the landowner will generally be treated as an invitee, e.g., garbage collectors, mail carriers, postmen.

 

            (2) one who comes under normal circumstances during working hours will generally be treated as an invitee, e.g., census takers, health inspectors, etc.

 

            (3)  Police officers and firefighters are generally licensees.

 

            1)  Limitation on invitation.  An invitee who goes outside the area of invitation, but under consent of the owner, becomes a licensee; and if no permission is involved, she may be a trespasser.

 

            2)  Reasonable care required.  The legal obligation of the defendant in all these situations is only to exercise reasonable care.  The duty arises only when danger is to be anticipated (i.e., is reasonably foreseeable), and the owner/occupier is not required to do anything unreasonable or risk personal harm.

 

            3)  Protection against third persons.  The owner/occupier must exercise whatever power of control the landowner has over the conduct of third persons to protect an invitee who may be injured by such conduct.

 

            4)  Recreation use statutes limiting owner's liability to that for trespassers (willful and wanton misconduct or failure to warn of highly dangerous conditions):  1) define recreational use,  2) people there without charge,   3) does not exculpate for reckless,    4) excludes principal place of residence.   People are probably public invitees.

 

E.  TRESPASSING CHILDREN.  Duty to exercise ordinary care to avoid reasonably foreseeable risk of harm to children caused by artificial conditions.  P must show:

 

            1)  knows or should have know that children likely to trespass where the dangerous condition is maintained;

 

            2)  he knows or should know that the condition involves an unreasonable risk of injury to them;

 

            3)  If the children, because of their immaturity, do not realize the danger involved;

 

            4)  cost of remedying situation is slight compared to magnitude of risk.

 

            e)  If he fails to exercise reasonable care to eliminate the dangers or otherwise protect the children.

 

F.  PERSONS OUTSIDE PREMISES.  Exercise reasonable care with regard to his activities on the land for protection of those outside the premises.

 

            1)  Natural conditions.  A landowner/occupier is not liable for damages resulting from conditions on the premises arising in a state of nature.

 

            2)  Public highways or walkways.  The public right of passage on a highway carries with it an obligation on the part of the adjacent landowners to use reasonable care for the protection of those on the highway.

 

            3)  Artificial conditions.  Where the landowner/occupier creates artificial conditions on the land, he is obligated to inspect them and protect against danger to others.  Example:  under duty to protect those who stray from the road from falling in an irrigation ditch in your property.

 

            4)  Fireman's Rule.  A fireman may not recover for negligence from injuries sustained in the normal course of his duties.  However, he may recover if there is willful and wanton misconduct or failure to warn of highly dangerous conditions.  Fireman's Rule represents an exception to comparative negligence and is based on public policy grounds:  chilling effect on use of firemen otherwise.

 

 

LANDLORD AND TENANT.

 

A.  Duty owed by landlord to persons outside the land.

 

            1)  The landlord has a duty to repair or warn the tenant of known dangerous artificial conditions or of conditions that may become dangerous.

 

            2)  This duty continues only until the tenant has reasonable opportunity to discover the condition and remedy it.  If the landlord actively concealed the danger, the duty continues until the tenant actually discovers and has time to remedy it.

 

            3)  No duty is owed with respect to dangers arising after the property is leased unless the landlord covenants to repair or voluntarily undertakes to do so.

 

 

B.  Duty owed by landlord to the lessee.

 

            1)  Latent dangerous conditions.  The landlord has a duty to repair or warn of known latent dangerous conditons.  If the condition is reasonably apparent, no duty is owed.

 

            2)  Failure to make repairs promised.  No duty is owed with respect to conditions arising after the property is leased, except that the landlord is liable for her negligent repairs and, under modern cases, the landlord is liable in tort for failure to make repairs covenanted in the lease.

 

            3)  Criminal activity on private premises--"rape in parking ramp garage case" Whether a duty is imposed depends on the relationship of the parties and the foreseeable risk involved.  For the law to impose a duty on A to protect B from C's criminal acts, the law looks for a special relationship between A and B whereby B has in some way entrusted her safety to A and A has accepted that entrustment.  The special relationship also assumes that the harm represented by C is something that A is in a position to protect against and should be expected to protect against.  We add a third policy consideration - the cost-benefit equation.  We do not live in a risk-free society; "the owner or operator is not an insurer or guarantor."- don't read too broadly.  The question of how much security is adequate raises the further question of how much risk is an acceptable risk for members of the public.  The commerical parking ramp facility present a unique opportunity for criminals, an opportunity different from that presented in the street and neighborhood generally.  Some duty is owed to protect its customers.  "The operator or owner of a parking ramp facility has a duty to use reasonable care to deter criminal activity on its premises which may cause personal harm to customers.  The care to be provided is that care which a reasonably prudent operator or owner would provide under the circumstances."

 

            4) Kline Court imposed duty of care on landlord:  extra heavy locks or guards.  Should the courts take this option away from landlords/lessees?

 

            5) Waters Court held P had "no connection whatsoever to building in which her injuries occurred."  Therefore, owner (U.S. gov't of public housing) had no duty to protect her from assault that took place when P taken to roof of building.

 

 

CONTRIBUTORY NEGLIGENCE

 

a.  Common law rule.  The standard common law rule was that a finding of contrib. negligence barred P's action for negligence if such conduct is a substantial factor in bringing her injury.  Thus, the defendant gets a complete defense, i.e., no liability to D.  If court found too high, could throw out rule or make exceptions.

 

b.  Distinguish avoidable consequences.  Contributory negligence should be distinguished from "avoidable consequence."  If P fails to act as a reasonable person in order to mitigate her damages, she will be barred from recovering the damages that could have been avoided.  Note that this doctrine is a rule as to damages and not as to liability.

 

c.  Limitation to particular risk.  The defense of contrib. negli. is not available to D if P's injury did not result from a hazard with respect to which P failed to exercise reasonable care.  Example:  P negligently failed to heed a warning about an icy platform but was injured when a wall fell on him.  Since P's actions were reasonable in regard to the danger that actually caused his injury (the falling wall), D was held liable.

 

d.  Injuries intentionally or recklessly caused.  Contrib. negligence is not a defense to intentional torts, willful and wanton conduct, or reckless misconduct.

 

e.  Last clear chance.  This doctrine provides an exception to the contrib. negligence bar to recovery.  It applies where D was negligent and P, through her contrib. negli., placed herself in a position of either "helpless" or "inatten­tive" peril (failed to discover).  D must be aware of the P's situation, under a duty to discover P, and able to recognize P's peril and avoid injury to P.

 

 

"PURE" VS. "PARTIAL" COMPAR. NEGLIGENCE.  "Pure."  A number of jurisdictions and the Uniform Act have "pure" comparative negligence, which allows plaintiff to recover a percentage of his damages even where his own negligence exceeds that of D (e.g., if jury determines that P was 90% at fault, he can still recover 10% of his damages).  PROBLEMS:  1) allows almost frivolous lawsuits with high transactions costs    2) immoral results.   3) breeding litigation.

 

"Partial."  Other states, however, recognize only "partial" comparative negligence, in that they deny any recovery to a P whose own negligence equals or exceeds that of D.  This is the so-called "less than" or "49% limit" plan.  Modified Plan  Some jurisdictions modify this formula and only deny recovery where P's negligence exceeds D's (the so-called "equal to or less than" or "50% limit" plan).  Under this approach, if the jury finds that P was 50% at fault, he can still recover half his damages.   PROBLEMS:  1) arbitrary,  2) may kick a P out with no alternative    3) does not compensate victim     4) getting zapped twice.

 

            1.  With P & D tortfeasors, at least one will not recover.  If 50-50 split liability, neither will recover in Tenn.

 

            2.  If two parties injured A-45% and B-55% responsible, then B responsible for his injuries + 55% of A's injuries.

 

            3.  Can we quantify fault with any degree of predictability - no.

 

            I.  Failure to take precautions - wear seat belts, helmet; more subject to infection.

 

            II.  Avoidable consequences - get tetanus shot.

 

            4.  Exculpatory agreements not affected by adoption of comparative fault.  Implied assumption of risk generally subsumed (partial recovery for P).

 

            5.  FIREMAN'S RULE IN COMPAR. NEGLI.:  (1) exception to general rule that compar. fault overtakes assump. of risk.  (2) little piece of assump. we hold out as complete bar;   (3) there is no duty, there is no negligence.  Based on public policy considerations - chilling effect.  Licensee argument opens up can of worms on cost-benefit analysis typified by Rowland v. Christian  Would it apply to volunteers?  Discuss issues on both sides - workers compensat apply?  Other rationale:  4) firemen are trained;   5) salary reflects risk

 

            6.  McIntyre - establishes 49% rule in Tenn:  if 49% at fault, he can recover 51% of his injuries.  Remote contrib. negli. and last clear chance obsolete.  Jury must be told effect of their 50-50 rule, remanded like Garrett v. Dailey.  If intentional torts, compar. negligence does not apply.

 

 

MULTIPLE DEFENDANTS.  Where several defendants are negligent, but are not jointly liable, some states hold that P's negligence must be less than that of any D.  For example, where the jury determines that two Ds acting independently were each one-third at fault, and P was one-third at fault, no recovery would be possible in a "49% limit" plan.  Most courts, however, consider the negligence of multiple Ds in the aggregate, permitting P to recover something if his fault is less than the combined negligence of the Ds.

 

joint liability - P can collect full amount of judgment from any D.

 

several liability (apportionment) - P can only collect from each D his percentage of negligence.

 

            1.  Introduction.  Joint tortfeasors are person who either act in concert to cause injury to plaintiff or act entirely independently but cause a single indivisible injury to P.  Joint tortfeasors are jointly and severally liable for the damage they cause.  Thus, P may elect to seek the entire amount from any one of the Ds.

 

                        Two or more tort-feasors act concurrently or in concert to produce a single injury: jointly and severally liable.  On the other hand, multiple tortfeasors neither in concert nor concurrent to the same wrong:  independent and successive.   It sometimes happens that tortfeasors who neither act in concert nor concurrently may nevertheless be considered jointly and severally liable.  This may occur where the injuries are incapable of any reasonable or practicable division for attribute to the parties.  Ravo v. Rogatnick  "Obstetrician and pediatrician causing severe brain injury to newborn case."

 

            2.  Satisfaction and release.  An unsatisfied judgment against one of several joint tortfeasors does not bar P's action against the others.  However, the satisfaction of a judgment against one joint tortfeasor extinguishes the cause of action and bars any subsequent suit for a greater or additional amount against any of the others.  Many courts formerly reached the same result where P had merely released one of several joint tortfeasors, regardless of the sufficiency of compensation paid for the release.  Most states now reject the latter rule, requiring that the release specifically waive the right to sue the other joint tortfeasors in order for them to be released.

 

            3.  Contribution.  At common law, contribution was not allowed between joint tortfeasors - if one satisfied a judgment, she could not recover from the others their per capita share.  Today under most contribution statutes, each joint tortfeasor is responsible for some share of the judgment.  In comparative negligence states, contribution is based on each tortfeasor's relative fault.(? KING)  McIntyre struck down TN Contribution Act.  If B settles for $90,000, A, without release, is still liable for $20,000.  Court not clear on whether P gets $100 K or $110 K.  If P releases A and B, A may be liable for 20%($90 K) = $18 K.  B could argue that McIntyre not meant to apply to settlements.  If noncomparative negligence jurisdic, then prorata share means split 50-50:  If A pays $100 K, he can collect $50 K from B (assuming A 20% respon). 

 

            KEY FACTS:  1) settlement,  2) one D pays more than his fair share,  3) obtains release for others, THEN may have right to recover.  Burbage

 

            4.  Indemnity.  Involves shifting the entire loss to the one primarily liable to compensate the one secondarily liable who was initially compelled to compensate P.  Allowed for by contract, by vicarious liability, by identifiable differences in degree of fault.

 

            5.  MCINTYRE - removes joint and several liability in Tenn.  Still severally liable if acting in concert.  Under joint and several, risk of nonpayment on Ds.  With McIntyre, risk of nonpayment now on P.  If both insolvent, 0 collection.

 

 

B.  ASSUMPTION OF RISK

 

The defense of assumption of risk arises when the P voluntarily encounters a known danger and by his conduct (1) expressly or (2) impliedly consents to take the risk of the danger.  In such a case, the D will be relieved of responsibility for his negligence.  (all or nothing, complete win by D).

 

For exculpatory agreements always ask:  1. Is it valid? (Doctor-patient not)   2.  Does it cover the problem?

 

Limitations on validities of these agreements:  1. unvoluntary;   2. disparity of bargaining power, adhesion contract;   3. minors or persons incapacitated;  4. intentional torts, grossly negligent or aggravated conduct;   5. statutes.

 

            1.  Not Negligence.  P's voluntary assumption of risk need not be a negligent act on his part - e.g., a spectator at a baseball game may be held to assume the risks of flying balls, but it is not negligent to attend a baseball game.

 

            2.  Unreasonable Assumption.  On the other hand, the P's action may constitute contributory negligence where P is unreasonable in assuming the risks of D's conduct.

 

            3.  SUBJECTIVE Knowledge required.  P may be contributorily negligent for failing to discover a danger that a reasonable person should be aware of.  There can be no assumption of risk, however, where P had no knowledge or awareness of the particular danger involved.  BURDEN OF PROOF ON D TO PROVE SUBJECTIVE KNOWLEDGE BY P.  Imputes knowledge - common knowledge of the community.  Brown v. S.F. Ball Club, inc.

 

            4.  Must Be Voluntary.  P's assumption of risk must be voluntary; if D's acts leave P with no reasonable alternative to encountering the danger, then there is no assumption of risk.  Moving belt that made people fall case

 

 

            5.  TUNKLE v. REGENTS OF UNIV. of CAL Invalidated an exculpatory clause in a hospital admissions form.  Characteristics:  (1) business type suitable for public regulation.   (2) party seeking exculpation performs necessary service to society.   (3) party holds himself out as willing to perform for the general public.  (4) party seeking exculpation possesses a decisive advantage of bargaining strength.   (5) party confronts the public with standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional fees and obtain protection from negligence.   (6) the purchaser is placed under the control of the seller, subject to the risk of carelessness of the seller.

 

 

V.  CAUSATION

 

Four elements:  test, standard of proof - more likely than not, sufficiency of proof - (expert needed?, expert language "reasonable medical certainty," statistics may help); and burden of proof.  Also proximate cause and VALUATION of DAMAGES.

 

P must show that D's conduct was both cause-in-fact and proximate cause.  Actual causation - question of fact for jury.  Proximate cause - question of law, conflicting considerations of policy.

 

A.  CAUSE IN FACT

 

1.  Sine Qua Non (But For) Rule.  If the injury to the P would not have happened "but for" the act or omission of the D, such conduct is one (of many?) cause in fact of the injury.  Court may also use substantial factor or shift burden of proof to Ds - Summers v. Tice.

 

            a.  The failure of one driver to give a turn signal is not a cause of an auto collision when the driver of the other auto was not looking and would not have seen it even if it had been given.  In such a case, the D was negligent, but his negligence in not signaling his intention to turn was not the actual cause of the damage.

 

            b.  Likewise, the failure to supply fighting equipment that could not have been used because no water was available is not the actual cause of the P's loss when his building burns down.

 

            c.  LANDRIGAN.  Asbestos statistics case.  Issue about whether relative risk must have doubled before you have statistical correlation.

 

            d.  Two fire paradigm burns down house.  One started by lightning, other by railroad.  RR argues other fire alone could have burnt down house, therefore "but for" cause fails.  Ct. uses "SUBSTANTIAL FACTOR" test.  D would have to pay.

 

            e.  Another two fire situation:  big fire by lightning, small fire by RR.  Here use valuation as a pre-existing condition - house about to burn down.

 

            f.  chain collision case - difficult to prove causation.  Under successive and independent liability, the initial tort-feasor may well be liable to the P for the entire damage proximately resulting from his own wrongful acts.  The successive tort-feasor, however, is liable only for the separate injury or the aggravation his conduct has caused.

 

            g.  Findings:  1. contaminated water source of typhoid.  2. Dr. Goler found 20 to 30 times as much chlorine in faucet water at several residents houses than would be normally in domestic water.   3. Fifty-eight other people contracted typhoid by stipulation.   4. P was not outside of city in Summer 1910.  Therefore, only water he drank was in the city of Rochester.  5.  Statistical data on likely occurrence.  Stubbs v. City of Rochester

 

            h.  If two or more possible causes exist, P must show D's action is the more likely cause, but he does not have to negate other causes, i.e., contact with others.

 

            i.  Mitchell v. Pearson, (Utah 1985),  The lack of forced entry could be probative of unauthorized entry via master key or at [the deceased's] invitation, by a friend or colleague.  A jury cannot be permitted to speculate on the manner of entrace to [the deceased's] room or the identity of the assailant would be totally speculative.

 

1.  Landmark Case - SUMMERS v. TICE  Two quail shotgun hunters hit another in eye with pellet.  Where there is undoubtedly fault, the rule of causation is relaxed.  Standard of Proof problem - here equally likely, could not satisfy "but for" causality.  Can only apply Summers in cases where each D is negligent.  Ds are joint tortfeasors and each is liable (joint and severally), even though only one inflicted the injury.  Ds brought about the harm and the causation mess, so they can untangle the facts.

 

            Shift Burden of Proof - smoke'm out.  Alternative liability rule shifts the burden of causation to Ds; each must absolve himself.  This is similar to Ybarra, where each D was required to absolve himself from the breach of the duty.  This shift of the burden is based on policy and justice, not on logic.

 

            Applications of the rule.  a) Two Ds negligently sell bullets to boys and one bullet kills a boy.  Joint and several liability.

 

            b) Two negligently driven cars, A and B, collide.  Then a negligent third driver, C, runs into the wreck and a passenger  in car A is hurt.  The result is that all three drivers are liable (absent guest statute protection fro driver A, etc.), but only because all three were negligent and there is no evidence as to which driver caused the injury.  PROXIMATE CAUSE

 

            c) hypothetical with concerted action of 10 dog owners:  actually difficult to decide.  Ds not know better than Ps who injured child.

 

            Distinguish the case where P does not prove negligence against one or more Ds from the alternative liability case where P proves he was injured by one of several negligent Ds but does not know which one.  The difference is that under the alternative liability rule, both Ds are negligent and only one caused the injury; whereas under the other rule, only one D was negligent.  Both Ds must be negligent to apply Summers v. Tice.  No innocent party - this makes case stronger than Ybarra.

 

2.  Market Share Theory.  DES case. Hymowitz v. Eli Lilly  Here we cannot claim each of 300 manufacturers was negligent.  Source of drug - big problem.  Court did not rely on Summers:  1) number of Ds and 2) time and duration (30 years).  Due to market share theory, no firm can exculpate itself by arguing it could not have caused a particular P's injury.  Can exculpate if show that it only produced drug for animals.  Internalizes cost - reep what you sow.  Ds in no better position than Ps to identify who manufactured drug ingested in a given case after 30 year lapse.  Joint and several liability, but only for market share.

 

3.  Woman who dies from shock but 37.5% chance of survival with IV line.  P's survivors established more likely than not that Ds negligence reduced opportunity to live.  The loss of a 37.5% opportunity of living constitutes a loss of substantial opportunity for avoiding physical harm.  In this case, 37.5% times the damages recoverable for wrongful death would be an appropriate measure of the damages.

 

4.  Split of jurisdictions on loss of chance recovery.  TN SC in Kilpatrick v. Bryan (breast cancer case) refused to recognize loss of chance.  Majority of jurisdictions do.  Otherwise "open season on the terminally ill."  Traditional argument:  loss of less than 50% survival chance not compensable, becaue did not appear treatment would have led P to survive.

 

5.  Case where worker exposed to asbestos.  CANNOT recover for enhanced risk now / prospective injury.  CAN recover for (1) emotional distress and (2) medical surveillance.  Mauro  Must prove exposure to collect - rabies kitten case in New Hampshire.  If no present physical injury - unanswered for emotional distress.

 

            Merger and Bar arguments for consolidating:  memories dimmed, transcripts gone, evidence vanished, repose - put the litigation to rest; alter's P's lifestyle - reason to compensate now.

 

6.  Potter v. Firestone Tire.  Residents sue landfill.  In absence of physical injury, can recover for emotional distress only if more likely than not that cancer will happen (or present physical injury).  Exception:  toxic exposure due to fraud, oppression, malice.

 

7.  LARRIMORE.  Rat poison not labeled as such.  Placed near burner and explodes.  Labeling as poison would not have warned against flammable.  Therefore, not "but for" cause.

 

 

B.  PROXIMATE CAUSE

 

The doctrine of proximate cause is a limitation of liability and pertains to liability for unforeseeable, indirect, or unusual consequences of one's acts.

 

Proximate cause has two tests:  1) Direct cause test;   2) reasonable foreseeability test

 

1.  Introduction.  Proximate cause is used to determine the extent of the D's liability after actual causation (causation in fact) is established.  It is an attempt to deal with the problem of how far public policy will extend D's liability for unforeseeable or unusual consequences following the D's acts.  After all ducks lined up (negligence, causation), then proximate cause is final break.

 

            A.  Direct results of the D's acts.  When there is no intervening force between the D's negligent act and the harm to the P, such harm is said to be the direct result of the D's act.  For example, if the D negligently reaches for his cigarette lighter while driving his car, and the car hits a telephone pole that falls onto the P's house, the damage to the P's house is the direct result of D's negligence.  Indirect results occur when a force (or forces) intervene between the D's act and harm to the P.

 

            B.  Foreseeability of harm.  The harm caused the P as a direct result of the D's acts may be either foreseeable (e.g., it is foreseeable that pedestrians and other drivers may be injured if D negligently runs a red traffic light) or unforeseeable.

 

            1.  The opposing views on foreseeability of the consequences of D's acts.  One view is that the D's acts will be considered the proximate cause of P's injury only if such consequences, judged by time, place, and under the circumstances when the D acted, were reasonably foreseeable.  Essentially, this view uses the same criteria for foreseeability to determine the extent of liability as is used to determine whether the D's act is negligent--is the injury reasonably foreseeable as something likely to happen?  Palsgraf  "The risk to be perceived defines the duty to be obeyed."  The risk extends to those within the zone of reasonable apprehension:  negligence itself is not a tort; it must be negligence in relation to the P.  Scales fall on lady after firecrackers explode on tracks.  IF P W/IN ZONE of RISK, CARDOZO LOOK TO MORE DUTY ANALYSIS.

 

                        Foreseeability - usually question for jury to decide.  RR scales location and way secured - increases foreseeability.

 

                        WAGNER - also by Cardozo.  (1) Rescuers are an exception where we don't require foreseeability;  (2) due to human nature, rescuers are always foreseeable.

 

                        Kionka telephone pole crash power outage life support case.  Not twin fire case.  Patient outside scope of risk - unforeseeable, but Cardozo might say question for jury - distance.

 

            1.  Actual results must be foreseeable -- (WAGON MOUND I 1961) CASE.  FACTS:  Oil spilled under wharf.  Ignited on fire by sparks from welders.  Ds made no attempt to disperse the oil.  Ps were aware of the spill but believed that a fire would not start since the ocean water was under the oil.  Welding sparks ignite and burn wharf.  (Right reasoning, wrong conclusion)  Applies what reasonable person could foresee.  It is not the act but the consequences on which tortious liability is founded:  whether a reasonable person would have foreseen such damage.  Repudiates direct causation rule of Polemis:  if D is negligent and direct cause of harm, then he is responsible for all the consequences caused by his negligence, whether reasonably foreseeable or not.

 

                        Balancing test.  WAGON MOUND II (1967).  Here the suit was brought by the owners of the ships (not responsible for welding) damaged in the fire, and the court held for Ps on reasoning similar to that in Carroll Towing (the Learned Hand Rule); i.e., the burden of eliminating a risk must be balanced against the probability of its materializing times the potential gravity of the harm.  The court stated that D should have known that there was a serious risk of the oil on the water catching fire in some way and that if it did, serious damage to ships or other property was not only foreseeable, but very likely, thus making it unreasonable to dismiss such a risk.   Ps recover.  The risk was small, but there was no counterbalancing utility in taking the risk; that is, there was no justification for letting the oil spill.  Thus, it was the ship officer's duty to stop the spillage.

 

            Comment.  This case can be viewed as consistent with its sister case involving the wharf by finding that the court in that case erred in determining what a reasonable person would foresee.  Here, the result in Polemis is approached by charging the reasonable person with the recognition of slight or extremely remote risk.  This rule does not apply to the "eggshell skull" doctrine as that deals with the inherent weakness of P while foreseeable consequences deal with the extent of damage done.

 

 

DIRECT RESULT  The other view, where the injury to the P is the direct result of the D's act, is that foreseeability is important only in determining whether there is negligence; if the injury follows in an unbroken sequence of events, the D will be liable for the consequences regardless of the remoteness of the injury.  "So long as damage directly traceable."  Eggshell Skull - you take the victim as you find him.

 

            1.  POLEMIS.  No doubt we have people in ambit, but what about unforeseeable consequences.  Different injury foreseeable  While unloading cargo, Ds' servants dropped a plank into the hold of the vessel.  Caused spark, ignited petrol vapors, fire destroyed ship.  Although the spark could not have been anticipated, some damage could be foreseen.  Foresee­ability of damages = the existence of negligence.  But once negligence is established, the negligent party is liable for all damages, regardless of foreseeability.  Ds are liable for the damage actually caused, even though it was not the type foreseen.

 

                        FIRE RULE IN NEW YORK.  Although fire may spread from building to building, only foreseeable that first building would burn down.  Cut off liability after the first building.  Even if foreseeable, still not proximate cause.

 

                        Ventricelli  P injured from being struck while fiddling with rental car trunk defective lid.  Berry  Trolley car speeding along tracks comes to tree that had fallen across the tracks.  BOTH Statistically risk neutral.

 

 

            2.  Foreseeable injuries with unforeseeable extent of injury -- KINSMAN.  Flooded landowners sue ship owner, dock owner, and city of Buffalo.  Palsgraf, nothing gave notice that dislodgment of the package would cause harm, whereas a ship insecurely moored is a known danger to those downstream.  Furthermore, a failure to raise a bridge, which results in a collision, would almost certainly injure surrounding vessels and cause flooding.  City given ample warning.  Width of channel vs. width of bridge - foreseeable problem if crashed.  The occurrence of consequences greater than those foreseen does not make the conduct less culpable.  SPREAD THE LOSSES:  insurance, taxes & government.  Follows ANDREWS in Palsgraf to an extent.

 

            KINSMAN II,  The P's grain shipments were delayed and substitute grain had to be obtained.  The resultant economic losses were deemed too remote to allow recovery.

 

                        Suicide case.  Surgeon commits suicide "irresistible impulse" or "mentally impaired."  Injured from auto accident (seizures), wife polio, mother cancer.  Negligence of car driver caused this?  Unforeseen consequence, BUT ONLY CAUSATION, NOT NEGLIGENCE.  Argue intervening cause.  Also, "rescuing herself from pain."

 

            3.  Most courts would agree w/r/t personal injury, D must take P as he finds her.  (Classic: hemophiliac)  Physical -> physical (SEQUELAE).  Physical -> mental (unforeseeable)  weight lifter -> deteriorated body; mental -> mental (HIV surgeon, cancerphobia).  Woman becomes hypochondriac from nitroglycerin exposure.  Ct. held liable but reduce damages by propensity for "some accident" to have triggered.

 

 

C.  INTERVENING CAUSES

 

Indirect results of D's act.  indirect results = intervening force (or forces) between the D's act and the harm caused to the P.  Such forces or causes are of external origin, and do not come into operation until after the D's negligent act has occurred.  Intervening causes - no legal conclusion.  SUPERSEDING CAUSE - severs proximate cause and relieves liability, cause must be unforeseeable and bring about unforeseeable results.   Test:  reasonable person would have foreseen.

 

            1.  Example:  intentionally sell defective lock.  Intervening cause (burglar) is foreseeable and does not break chain of causation.

 

            2.  Example:  Risk completely comes to rest then reactivated -uncle leaves gun on table, nephew finds, parent takes away, nephew cries and parents give back - uncle no longer liable.

 

            3.  Example: negligently repair brakes, car pulls over and struck in parking lot - proximate cause broken because RISK NEUTRAL.

 

            4.  Supervening negligence of some other person -- Heat Blocks Case. (NY 1962).  "Ready for use" no warning on blocks.  The more theories of negligence, the more foreseeable.  Firefighter prepared heat blocks and a nurse/volunteer applied blocks directly to the body of the drowning girl.  On retrial, the jury must be instructed that the firefighter's negligence could supersede as a cause of the injury and that manufacturer is not liable if jury so finds.  Manufacture not absolved if it had control over the activities of the intervenor.  Nor is he excused by the acts of the intervening party if those acts were readily foreseeable.  However, the intervening actor's conduct (firefighter's) will not be considered foreseeable if he has been either grossly or criminally negligent.  Another exception, intentional misconduct - results then foreseeable. (probably dumb but not intentional).  Not a superseding cause as a matter of law, but almost.

 

 

VI.  DUTY, EMOTIONAL DISTRESS, DUTY AND ECON. LOSS

 

A.  NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

 

1.  Impact rule rejected -- BATTALLA.  Minor Battala (P) got on a ski lift, D negligently failed to properly close the seat belt on the lift, child injured as he became hysterical he would fall off.  Physical impact not required for recovery. 

 

2.  Severe emotional distress -- GAMMON.  Decedent's son finds leg specimen in bag he thought was father's personal effects. Nightmares, personality affected, and family relationship deteriorated.  P's condition began to improve after several months.  P sought no medical or psychiatric attention and offered no medical evidence at trial.  Exceptional vulnerability of the family of recent decedents makes it highly probable that emotional distress will result from mishandling the body.  That high probability provides sufficient trustworthiness to allay the court's fear of fraudulent claims = determining that the D reasonably should have foreseen that mental distress would result from his negligence.  Principle of FORESEEABILITY.  Must be able to show a reasonable person be unable to cope with the mental stress. 

 

3.  Generally, mental distress must cause physical consequences and must prove D was negligent.  CAVEAT - just emotional distress negligently inflicted is an open question.  Gammon Court does not recognize EGGSHELL PSYCHE, the reaction must be reasonable.

 

4.  TEST FOR BYSTANDER RECOVERY for Negligently Inflected Emotional Distress (NIED).  There are two separate tests.

 

PORTEE v. JAFFEE (Kid slowly killed in elevator door case)  Four criteria: (1) death or serious injury caused by D's negligence; (2) close familial relationship between P and injured party;  (3) observation of the death or injury at the scene of the accident;  (4) resulting severe emotional distress.  Rejects ZONE of DANGER TEST

 

            Elden: 1) does not include cohabiters - the States treat marriage differently;  2) burden on the courts - ability to evaluate which relationships deserve protection;  3) limit the # of persons to whom D owes a duty of care.

 

Zone of Danger Test.

P must be in area in which a reasonable person could perceive harm from a physical impact as a result of D's negligence, even in the absence of any physical impact with his person. 

 

Missing infant from hospital case.  Parents cannot recover for emotional injuries when infant abducted for 4 1/2 months.  Infant sustained direct injury; parents' emotional distress though foreseeable was not the proximate cause of P's injury.  (Probably superseding cause).

 

 

B.  WRONGFUL LIFE AND BIRTH

 

Prenatal Injuries, Birth Defects, Wrongful Birth - recoverable.

 

Wrongful Life - not recoverable.

 

Economically motivated sterilization -- recover cost of rearing child, costs of pregnancy, the wife's lost earning capacity, medical expenses of delivery and postnatal care, cost of care for the other children while the wife was incapacitated, cost of the second sterilization procedure, the husband's loss of consortium, wife's pain and suffering in connection with the pregnancy and birth and with the second sterilization procedure, and the emotional distress Ps sustained as a result of the unwanted pregnancy.  ? how long will the latter distress endure?

 

 

C.  DUTY OWED TO OTHER BY PROMISE

 

1.  PROBLEMS:  1) No affirmative act - nonfeasance, omission, failure to act;  2) purely economic loss due to misfeasance.  IN CASES OF NONFEASANCE, CONTRACT DEFINES THE SCOPE OF DUTY, i.e., to party to contract. (Privity of Contract)  Example:  if garage tells you they did not fix brakes in breach of K, and you drive car anyway, unlikely garage is liable. 

 

2.  Fall in Dark Stairway during Blackout Case.  By looking at K, court keeps the number of litigation manageable and limits to reliable/foreseeable injuries from utility's perspective.  Con. Ed. had no privity of contract with P.  Like NY FIRE RULE - have to cut off liability.  (1) Spreading losses - fire insurance.  Maybe Mr. Strauss is better risk bearer - health insurance for injuries.  (2) Possibly spread indefinitely - how far can lighting injuries spread in 25 hours?

 

 

D.  PROTECTION AGAINST ECONOMIC LOSS

 

1.  Creation of Risk.  To recover pure economic losses from D's negligence, must show foreseeable Ps and foreseeable harm, i.e., a duty was owed to that specif. P.

 

2.  Where knows the information he supplies is to be used by one specif. P, and, in fact, D was hired solely to provide that information to that P, D owes a duty to use reasonable care in his relationship with that P.  The "directly transmitted" information is close to a privity relationship.  Privity or conduct that linked the parties (something like privity). 

 

            Where D realizes that the information supplied may be relayed to others but is not on notice of the specific P, no duty exists as to that P.  Under such circumstances, D's duty runs to the individual with whom he contracted and not P.   CREDIT ALLIANCE

 

3.  GLANZER v. SHEPARD (NY 1922), a public weigher had been contacted to weigh beans and supply the weight ticket to the buyer.  Since the weigher was conducting a public calling and knew the specific use of the ticket, the weigher was liable to the buyer for an economic loss.

 

4.  ULTRAMARES (NY 1931), an accounting firm supplied 32 copies of financial statements under facts similar to Credit Alliance.  When the audited company defaulted on loans, the creditor, who had relied on the statements, sued the accounting firm.  Since the accounting firm did not know the specific identity of the party who was to use the statement and had merely supplied it for the audited company's use, there was no liability for negligence.  (Proclivity of K defines the duty for mere negligence)  In that case, however, the court found that the actions of the accounting firm were so reckless as to amount to fraud.  Under fraud, the P could recover by merely showing he was one of a class of people that the accounting firm should have foreseen would receive the statements.

 

5.  Different generalities for duty owed:  1) Ultramares - privity of K;  2) Credit Alliance - privity or K or conduct that linked parties (something like privity);  3) Liability of party relying on it;   4) Foreseeability - extreme for economic loss.

 

6.  Legal malpractice.  When a lawyer negligently fails to perform, the usual injury is an economic loss.  When that economic loss falls on the client, the courts have no difficulty enforcing liability.  When the loss falls on a third party, the courts are less inclined to find a duty.  Absent some special relationship, a lawyer will not be liable for economic losses suffered by a third party.

 

7.  Type of harm foreseeable -- PEOPLE EXPRESS AIRLINES v. CONSOLIDATED RAIL CORP.  D negligently allowed a chemical to escape.  Because of the health and safety hazard, People Express was forced to evacuate its premises.  P can recover for economic loss.  D's operation was in close proximity to P's and D could foresee that its negligence could cause this type of injury to this P.  "has reason to know"
0 facts at your fingertips, put on notice.

 

            Economic loss may be recovered when the P and the type of harm suffered were "particularly foreseeable."  Creates an IDENTIFIABLE CLASS.  Need to contain.

 

            Existence of an emergency response plan -> may send wrong signal for having the plan.

 

            Prior to this case, the traditional rule confronting Handler was that claims for economic loss from negligence were routinely denied.  Therefore, attnys for People Express would want to show more than a purely economic loss, e.g., smoke damage to property.

 

            "The physical harm requirement capriciously showers compensation ...."  ARBITRARY.

 

            Advance compensation & deterrence goals of tort law.  Erosion - if so many exceptions, how important is the general rule.

 

8.  Reasons for limits.  Courts are reluctant to allow recovery for economic losses alone.  (1) Prevent fraudulent claims. (would have done such and such).  (2) Fear that economic losses >> the risk of harm actually created by the negligent act.  (3) limitless liability.  (4) sk created by a momentary lapse or act of negligence.

 

 

E.  OBLIGATIONS TO OTHERS

 

If you create a risk, then you have a duty to use reasonable care.  GENERAL RULE:  one who does not create a risk is under if one no need to intervene to stop injury.

 

Reasons:  1) freedom,  2) medical personnel have increased liability,  3) specific performance when unwilling.

 

1.  When D (gratuitously or otherwise) undertakes to render services which he knows or should know are for P's protection, D must perform those services with reasonable care, at least if (a) his failure to do so increases the risk of harm to P or (b) P's injury results from his reliance on D.  Even a gratuitous promise to render such services may make D subject to liability if there is a reasonable detrimental reliance by P.

 

2.  Social venture -- Boy left in back seat of car after beating, and subsequently died.  Father sued friend for failure to render aid to decedent.  D and Farwell were companions on a social venture.  REASON 1:  Because of this common venture, a special relationship arose between them.  When D knew or should have known of Farwell's peril, he had a duty to render aid.  REASON 2:  In addition, D undertook a duty of care and must fulfill it reasonably.

 

3.  Good Samaritan Statutes - limit liability of those who come to the rescue of another.

 

 

F.  OBLIGATIONS TO CONTROL THE CONDUCT OF OTHERS

 

1.  The Relationship. Where the D stands in a special relationship to someone who may cause injury to P, that D owes a duty to use reasonable care to control the person within that relationship.  Their relationship may include physician to patient, owner of auto to driver, and parent to child.

 

2.  Duty to Warn -- TARASOFF v. REGENTS OF UNIV. OF CAL Parents of a girl murdered by a patient of a psychologist.  Murderer allegedly confided his intent to kill their daughter to the psychologist two months before the killing.  Briefly detained, but no further action was taken to restrain him or warn Ps.  Due to patient-doctor relationship, therapist under duty to control the murderer.

 

            Although therapists cannot accurately predict violent behavior, we do not require perfection.  But once the existence of a serious danger of violence is determined, or should have been determined, the therapist has a duty to exercise reasonable care to protect the foreseeable victims.  If such care includes warning the victim, the therapist is liable for his failure to do so.  Containment of risks of violence outweigh the doctor-patient confidentiality relationship.

 

            Counterarguments:  1) disagree on balancing with doctor-patient relationship.   2) if you impose duty, homicidal maniacs may not seek help.  Are we certain it would increase safety?   3) Can you protect yourself?  Therefore, duty does not imply increased safety.   4) May not carry out threats - excessive disruption.  Don't assume safety is a given with the duty.

 

 

3.  Negligent Entrustment -- VINCE v. WILSON (Vt. 1989).  Greataunt and car dealer knew grandnephew had no drivers license and failed his drivers test.  D also knew he abused alcohol and other drugs.  Negligent failure to control instrumentality entrusted to grandnephew/driver:  knew or should have known it would create unreasonable risk.  Follows R2T position.

 

4.  Social Relationships -- KELLY v. GWINNELL (NJ 1984).  Inebriated social guest leaves host's home and gets into car accident.  A reasonable person could have foreseen that guest was intoxicated and in no condition to drive an auto.  In addition, it should have been foreseeable that a serious traffic accident could occur.  Whether the serving of liquor is motivated by profit, as in a tavern DRAMSHOP ACTS, or motivated by good will to a social guest, the server has a duty not to create a foreseeable, unreasonable risk.  A server who breaches this duty will be liable to third persons who are injured.  Society has reached a point where (judge-made) change is necessary to stop the losses caused by drunken driving.  Law is not clear in this area.

 

 

                                                                            PROFESSOR KING QUESTIONS

 

1.  Sequelae    physical -> physical

 

2.  A purchases a car from B Auto Co. under a conditional sales contract.  Only a few payments have been made on the contract when the car is totally demolished in an accident with C, in which A is contributorily negligent.  B Auto Co. can recover from C for its interest in the car, even though A was contributorily negligent.  Answer: True. Contributory negligence is not imputed in this situation.

 

3.  Can words negate an assault?

 

4.  Three views of effect of RIL.  The effect of RIL varies depending on the jurisdiction?

 

                1)  It may create a permissible inference, the strength of which varies with the circumstances of the case.  The jury may accept or reject the inference.  This is the majority view.

 

                2)  A presumption of negligence may be raised by RIL and, unless D shows evidence to rebut, the court must find negligence as a matter of law.

 

                3)  The burden of proof shifts to D, requiring D to introduce evidence to support his defense.  If D's evidence is sufficient to support a finding of fact in his favor, the burden of proof shifts back to P, who then must prove D's negligence.

 

5.  Do the constructive notice cases fall within RIL or just Proof of negligence in general?

 

6.  As long as shop owner has probable cause, reasonable belief, and behaves in reasonable manner, does objective fact that wrong about alleged shoplifter create liability?

 

7.  Violation of safety statute:  negligence per se, presumptive negli, evidence.

 

8.  In comparative negligence states, contribution is based on each tortfeasor's relative fault.(? KING)  McIntyre struck down TN Contribution Act.  If B settles for $90,000, A, without release, is still liable for $20,000.  Court not clear on whether P gets $100 K or $110 K.  If P releases A and B, A may be liable for 20%($90 K) = $18 K.  B could argue that McIntyre not meant to apply to settlements.  If noncomparative negligence jurisdic, then prorata share means split 50-50:  If A pays $100 K, he can collect $50 K from B (assuming A 20% respon). 

 

9.  Car speeding at 30 mph in a 15 mph zone.  Collides with another car.  Driver prepared to show that almost universally drive faster than 15 mph in this area.  ? Obsolete, outdated?   How differ from trolley car speeding along track until it comes to tree, Ventricelli, statistically neutral?