Torts Outline – 1L – Legal Three

Top 4 Supplements for 1L Torts:

We need to consider two factors in Tort Liability

Torts Outline
Prof. Ursin
II. Intentional Torts
Goals of the Torts System

Accident reduction, place
liability where it is most likely to prevent harm
Compensation to innocent
victims
Loss distribution
(insurance etc)
Fairness and justice


Negligence
The failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation; any conduct that falls below the legal standard established to protect others against unreasonable risk of harm, except for conduct that is intentionally, wantonly, or willfully disregardful of others rights.

Taking of unreasonable
risk of harm, conduct that creates unreasonable risk of harm
- Negligence does not
  require intent
- Failing
  to properly mitigate risk (due care)
Hammontree
v Jenner (seizure) P originally sought
negligence for car crash, but found that it would likely fail on the
grounds that Jenner did everything he could to prevent unreasonable
risk (other than giving up driving). P instead went forward on
grounds of Strict Liability in an attempt to draw a correlation to
product liability.
- Magnitude
  of risk – As likelihood increases, duty to
  protect also increases (if seizures kept occuring)


Intent
State of mind accompanying an act…the mental resolution or determination to do [the act]

Purpose to do something,
knowledge of actions, or result is substantially certain to occur

Purpose
of causing action
Knowledge with substantial
certainty that action will occur

Garret
(chair) v Dailey (boy) Even if there is no
intent to cause injury or harm, intent can be inferred if the actor
had knowledge a consequence was substantially certain to occur


Strict Liability
Liability that does not depend on actual negligence or intent to harm, but based on the breach of an absolute duty to make something safe.

Product
manufacturers have a duty to assure that their products are safe
when it is known that the products will be used with out inspection
by the consumer Escola v Coca Cola (extended
to retailers in VanderMark)


Assault
The threat or use of force on another that causes that person to have a reasonable apprehension of imminent harmful or offensive contact; the act of putting another person in reasonable fear or apprehension of an immediate battery by means of an act amounting to an attempt or threat to commit a battery. Latin ad+saltare, to jump at.

A
physical act | of a threatening nature {or} an offer of corporal
injury | [which] puts an individual | in reasonable fear | of
imminent bodily harm.
Requires apprehension, you
can batter someone with out first assaulting (hit from behind)
Cannot be
fear of future contact
A threat of force intended
to cause contact or apprehension of contact that results in well
founded apprehension of contact

Voluntary
act
Done with intent (desire
or knowledge of consequences)
Causing threat of contact
that will produce harm

Must
have apparent present ability to carry out (100 yards away and lunge
at someone, not assault)
State Rubbish
Collectors Assoc. (Trash Union) v. Siliznoff (Trash Collector) 1952

- Siliznoff
  was given the trash account by his fatehr who was co-account holder
  with another union member
- Union threatens to beat
  him up and burn his truck if he doesnt pay/give account back
- Union sues for breach of
  K
  - Counterclaim for ASSAULT
    fails NO IMMINENCE


Battery
The use of force against another, resulting in harmful or offensive contact.
Intentional infliction of harmful or offensive bodily contact.

Harmful/offensive contact
with a person
- Including an object in
  direct contact with a person (camera, cane, dog on a leash)
  - Contact with an object
    must be harmful
Offensive
contact must offend a reasonable person
- If super sensitive then
  the tortfeasor must be aware of this sensitivity (child,
  arachnophobia etc)
- Non-offensive behavior at
  a club may be very offensive at a funeral
Requires
lack of consent, if
the contact was consented to > not battery
- A doctor removes a scar >
  battery (maybe you liked the scar)
Garret
(Old lady) v Dailey (boy) Contact doesn’t
have to be directly with victim, lady fell because chair was moved >
the fall was substantially certain to occur.
- An intent to injure is
  unnecessary in a situation when a D willfully sets in motion a
  force that in its ordinary course causes injury.
Self-Defense
– Is NOT BATTERY as long as force is met with equal force, you can
only use deadly force when deadly threat is upon you. Cannot use a
knife in a fist fight!
- You CAN make
  a reasonable mistake in identity when acting in defense of
  imminent bodily harm (man accidentally shoots sheriff on his
  property during riot Courvoisier v. Raymond
  )


False Imprisonment
A restraint of a person in a bounded area without justification or consent. False imprisonment is a common -law misdemeanor and a tort. It applies to private as well as governmental detention.
An unlawful restraint of a individuals personal liberty or freedom of locomotion.

Lack of consent AND
Actual confinement, or
actual or apparent physical barriers –
• If you are free
to leave > not FI.
• If reasonable means of escape >
not FI. Unreasonable escape, jumping out window > is FI• locking someone out > not FI
Conscience of confinement
– unless it causes harm

Unlawful
restraint may be effected by words alone
- Threats of physical force
  or other duress
- Asserted legal authority
  without actual legal authority
  - Staying to
    protect your reputation > not FI Lopez v
    Donut


DAMAGES
Seffert v LA Transit
Peters:
was the original
judge:
He believed that the award should be reversed if it “shocks the conscience/passion prejudice”


Traynor dissents (Wants to take her damages away)
pg 703
Believes that the pain and suffering awarded was excessive that there was passion and prejudice in the jury.
Agrees with the law, but he disagrees and believes that the award does “shock the conscience”
Basically LA transit will not pay the damages, they will just raise bus fares and the public will end up paying the loss or they have insurance
The damage award is always arbitrary and cannot be based on any real fact or data
If the defendants action was reprehensible than maybe there should be pain and suffering

Jaffe’s opinion Pg 710
on pain and suffering: “it is doubtful justice seriously to embarrass a defendant, though negligent, by real economic loss in order to do honor to plaintiff’s experience of pain” insurance should not be used either as the pool of social funds would grow larger each year as a proportion of national income. No amount of compensation will reverse the damages
Pecuniary damages make the plaintiff “whole” by paying back loses
Non-pecuniary can never make a plaintiff “whole” because you can “measure” pain
Its doubtful justice to inflict that much on an uninsured individual
A social fund, ie insurance costs, should not be depleted to pay damages that perform no specific economic function.
• How expensive would Health insurance be if it paid out for Pain and Suffering???

Posner’s opinion: (conservative Reagan appointee)
“most people would pay a good deal of money” to be free of pain and suffering. If there was no monetary recourse for victims in pain and suffering damages then there would be more negligence and thus higher social costs.
Believes tort law is a deterrent to future negligent acts “an essential mechanism”


Tort actions are generally about damages.
Pecuniary loss: income, medical expenses, past and future
Non-pecuniary: Pain and suffering, sometimes larger than pecuniary

Judge and jury have different roles
Jury hears facts witnesses testimony request for damages, issues a damage for the judge to review etc
Judge issues the damages and is thought to be the 13th juror
Judge cannot set the amount, he can reduce it and tell the plaintiff to either accept or the case will go to new trial

Damages

Compensatory
damages: designed to bring a victim back to
original state, as best possible. Two parts:

Economic(out-of-pocket,
pecuniary): lost wages, property damage, medical expenses, drugs,
future medical expenses, future lost earnings (based on life
expectancy).
Noneconomic
loss (=nonpecuniary):
pain & suffering.

Attorney’s
Fees: usually 1/3 of award. Economic damages
alone not enough to compensate.
Controls
on nonpecuniary damages: There are no simple solutions, e.g. Capping
nonpecuniary damages to level of economic damages would hurt
unemployed homemakers. Capping them at all would hurt those with the
most grievous, disfiguring injuries.

Seffert
v. Los Angeles Transit Lines (1961) –
Excessive Damage Award?

While
the award was admittedly high (she was just a file clerk and got
lots of pecuniary damages), it was not so high as to shock the
conscience and indicate prejudice on the part of the jury.; Note:
Jury and judge (13^th
juror) both thought the amt of damages was OK. Appellate court had
an even higher standard of review.; Dissent:
Traynor says
if damage awards keep rising, it puts a strain on a liability system
based on distribution of losses. Also discourages early settlement.
He gives possible guidelines for determining excessiveness: a)
ordinarily should not exceed economic damages, b) should compare to
past awards for similar injuries. Also objected to the per diem
calculation: an opinion not based on evidence that gives jurors the
illusion that they are doing something rational.
III. The Origins of Negligence Law

Brown v Kendall (Dog owners with stick in the eye)

Kendall tried to break up
dog fight with stick, accidentally hits Brown in the eye… ouch!
Can Brown recover for the:
- Trespass = immediate
  result of defendants actions?
- Case = Consequential
  result, domino effect?
No, if
the D was acting lawfully, and unintentionally then the P cannot
recover.
- Unless the P can prove
  that the D did not use Ordinary Care (negligence) on the part of
  the D
- Traditionally P also
  could NOT recover at all! IF he was contributorily negligent
- We need to shift loss
  when one party is at fault, but not if it is purely accidental AND
  the P acted reasonable under the circumstances


IV. Negligence Principle

Negligence
is doing
something an ORP would not do OR not doing
something an ORP would do in the situation under similar
circumstances

Comparative Negligence, if both parties are found by the jury to be negligent the amount awarded will be reduced by the percentage of negligence on the counter party

Standard of Ordinary Care

Determined case by case,
based on the facts, and the necessity to guard against danger.
The amount of care an ORP
would use.
- An Ordinary Reasonable
  Person is:
  - An average man of
    average intelligence or prudence
  - No excuse for mental
    disabilities (too easy to fake)
  - Physically disabled are
    held the the standard of others with the same disability, BUT may
    be inherently negligent by participating in certain activities
    (Blind person obviously is acting negligently if they are driving
    a car)
  - Exception for Children
    UNLESS they are engaging in Adult Activities
    - Borderline question:
      What is an Adult Activity?
  - NO
    Exception for elderly, they have years of experience.
  - Professionals held to
    higher standard (Doctors, Lawyers, etc)
    - ORP Conduct set by
      industry standard
Failing
to use ordinary care is Negligence
- That is conduct which
  creates an unreasonable risk of harm to others OR falls below the
  standard set by law or the professional (malpractice)
- How do you
  determine an unreasonable risk of
  harm?
  - You don’t, THE JURY does
    - Traditionally (Holmes)
      Will take the question away from the jury when

1. 1. 1. There
      is clear Policy
    2. The judge knows his
      shit (lots of experience with the matter)
    3. When cases are very
      similar or repetitive
    4. When the jury is wishy
      washy

Modern
view (Cardozo)
- Always leave to the jury
  UNLESS
- It is obvious they will
  rule one way

Adams
(Dumb Kid) v. Bullock (Trolly Owner)
- Cost of avoidance was too
  high to prevent risk
  - NO Liability
Braun
case
- Vacant lot wires could
  and should have been insulated cheaply
  - YES Liability imposed
Baltimore
RR v. Goodman 1927 Holmes
- Supreme Court made the
  rule that IF you cannot hear OR see Train you MUST get out of your
  car to look.
- RR win’s on appeal
  because Goodman was negligent (didn’t take reasonable care)
  - Wanted to encourage
    industrial development
Pokora
v Wabash RR 1934 Cardozo
- Silly to impose the
  Goodman standard in every case because what if the train comes by
  the time you get back to your car
- This question should go
  to the jury
- Reversed and remanded


Duty to exercise reasonable care

There is an unreasonable
risk of harm IF
- (The
  Foreseeability of Risk) x (The
  Probability of Harm) > (The
  burden of Avoidance)
  - Balancing test (Justice
    Learned Hand)
  - WHY? Because this will
    shift loss where it is most likely
- If the
  cost on society to prevent the accident is TOO HIGH then it is
  better to let it happen because it rarely ever will


Common Carriers

Utmost
Care Standard imposes the highest degree of
care possible on common carriers.
- California
  has an Utmost Care statute, judge cannot abolish it
- New York
  Utmost care no longer needed because we
  need to balance the risk/harm with the cost
  - Economists say Utmost
    care has no proof of reducing accidents
  - Basically Strict
    Liability doesn’t make sense to use more care than necessary
  - As the risk goes up the
    care also needs to go up
    - Has it happened before?
    - How serious?
    - How much to prevent?
Bethel
v. New York Transit 1998
- Because Utmost Care is
  basically strict liability, not consistent with negligence
  balancing principles
- As something becomes more
  dangerous obviously you need to use more care
Andrews
v. United Airlines 1994 9^th
Circuit
- Suitcase
  falls on someones head
- Summary judgement for
  Airline REVERSED
- Common carriers must use
  Utmost Care
  - Jury to decide if they
    did use Utmost Care (if they didn’t they were negligent)



Negligence Per Se Contributory Negligence established as a matter of law, so that breach of duty is not a jury question. Negligence per se usually arises from a statutory violation

Modern cases of cases of
Contributory Negligence Per Se are more P friendly
To determine Negligence
Per Se:

Check
if P is in the class of persons meant to be protected by the statute
Check if the harm is of
the type intended to be prevented by the statute, THEN
Make sure the statute
is a “Safety Standard” Life and Limb. And a breach is negligence
per se UNLESS excused by emergency or temporary impossibility

Compliance
with a statute does not always mean due care was used
Just because adherence
would have prevented the harm does not always mean care was breached

Martin
v. Herzog (Ct.App. NY 1920)
- Martin P was killed by
  Herzog D in an auto collision
- Martin CANNOT recover
  because violating a statute is Negligence Per Se (and comparative
  negligence not around yet)
- Carzozo opinion says that
  breach of a statute is ALWAYS Negligence (Per Se)
Tedla
v. Ellman (Ct.App. NY, 1939)
- P walking along freeway
  (In same direction of traffic) on less busy side of the street are
  hit from behind
- Statute says you MUST
  walk against traffic so you can see cars coming BUT
  - Walking against traffic
    side of the street was very busy that day and therefore more
    dangerous
- Alludes
  that there may be two types of statutes (so not to fully overturn
  Herzog)
  - Safety Standard (To
    protect life and limb): Breaking these statutes would always be
    dangerous and therefore Negligence Per Se (Herzog type statutes)
  - Rules of The Road: Can
    be broken in some circumstances if it is more dangerous to follow
- Excuses
  to break a statute: Emergency, necessity, reasonable efforts to
  comply, efforts to comply present more risk (Tedla)




V. Proof of Negligence

Burden
of Proof: P must prove negligence AND has
the burden of proving that the defendant’s conduct fell below the
standard of reasonable care.

For Negligence

You MUST first DETERMINE
DUTY
THEN and only then can you
determine IF there was a BREACH


Constructive Notice: P must prove the danger was visible and apparent. It is not enough that the store caused the danger

To infer
negligence the P must prove that the danger was apparent AND was
there long enough to be noticed and cleared if due
care was used
length of time very
important because the danger has to be there long enough to be
notice
- Time can be implied by
  circumstantial evidence → Dirty floor
- P cant recover based on
  negligent inspection and cleaning process, still must prove it was
  there long enough to be noticed


Negri v. Stop & Shop (NY Ct.App.1985 pg87)

Plaintiff fell back, didnt
hit shelf (didnt cause jars to fall). Notices broken baby food on
the floor.
Baby food was
dirty and messy (shows constructive notice
if due care was used)
P has a prima
facie case (Facts show at first sight,
without further inspection)
Jury told “if you can
infer that the slippery surface was caused by the jars, AND the
store had sufficient time to find it” THEN P can recover.


Gordon v. American Museum of Natural History (NY Ct.App.1986 pg88)

Slips and falls on wax
paper at museum
Claims it was paper from
concession stand
P failed to prove that the
wax paper was known to be on steps OR that it had been there long
enough to be noticed. (Probably blew onto the steps seconds earlier)


Negri and Gordon = Different outcomes because the length of time the dangerous condition existed.

Business Practice Rule (Mode of Operation)

TWO DIFFERENT VIEWS
- VT 1998 less expansive
  → AZ 1987 more expansive
?Almost
a version of Strict Liability? :O
Applies to self service
stores where you help yourself to merchandise
Originated for
supermarkets where customers would drop produce, milk, etc
Method of business
produces regular foreseeable risk
The MERCHANT
bears the burden of proving steps were
taken to avoid foreseeable risk.


Randal v. K-Mart (US Ct.App 2^nd Cir. 1998 VT pg90)

REFUSED to
expand the Business Practice Rule (like Chiara
did!!) here →
Birdseed
on floor at K-Mart, slip fall
No
constructive notice, P sought to invoke the “Business
Practice Rule” which applies to Self Service Method of Business
- Your method of business
  produces, regular AND foreseeable risk
- Meant to
  apply to self service supermarkets.
VT
did not require constructive notice for
BusPracRule
BUT refused
to apply the BusPracRule, because this would make the exception the
rule and open up any retailer that was not a
full service retailer.
K-Mart wins
because no evidence showed that their method
of selling birdseed created a foreseeable risk


Chiara v. Fry’s Food Stores (AZ 1987 pg91)

Mode of
Operation Rule (Alternative to the
BusPracRule in other juris)
P not req to show notice
if the merchant could reasonably anticipate that a hazardous
condition will regularly arise
Court here
sees no reason to limit this rule to
Produce or Pizza
Crème rinse spilled on
floor
Jury to determine if
“Fry’s could have anticipated that the sealed bottles regularly
were opened and spilled.”
IF SO then
the P can recover IF Fry’s failed to exercise
Reasonable Care.


Lanier v. Wal-Mart Stores (KY 2003 pg91)

“The court
4-3 overruled a long line of cases in holding that when a customer
slips on a wet spot…of a self-service store, the burden shifts to
the store owner to negate inferences of negligence”
Feels this is too close to
strict liability
???? Shifts back to P
bears burden to prove negligence. ????


Res Ipsa Loquitur (Convo w/ Curious George)
Latin “The thing speaks for itself”

The accident must be of a
kind which ordinarily does not occur in the absence of someone’s
negligence
It must be caused by an
agency or instrumentality within the exclusive control of the
defendant
It must not have been due
to any voluntary action or contribution on the part of the Plaintiff
(cannot be Contributory Negligence)


CA give more weight to Res Ipsa. Creates an assumption affecting the burden of proof. The jury will be told to Find Negligence, UNLESS the D has shown enough evidence that they Were Not Negligent.

No evidence OR less than
enough to disprove → Then D was Negligent P wins


Byrne v. Boadle

Barrel falls out of
window, hits P in the head

Barrels
dont normally fall? YES dont fall out of windows unless someone is
negligent.
Exclusive control? YES It
is the duty of the warehouse to keep barrels from falling
Contrib Negligence? NO the
P did not Contrib by walking past window.


Escola v. Coca Cola Bottling Co.

Bottles came from manuf
Reused by distributor, not
subjected to testing for defects
- Use balancing test for
  the cost of avoidance/testing
Cases
can be abused during shipping
HOLDING
– Expanded Res Ipsa Loquitur
Manufacturer Strictly Liable. But damages
limited, pain & suffering not to exceed pecuniary
- Jury said yes this is a
  proper use of res ipsa loquitur
- Bottle wouldn’t
  ordinarily explode
- Bottler had exclusive
  control (debatable)
- P did not contribute to
  accident


In Brown v Kendall it was about shifting loss
Now with Escola v Coca Cola it is about distributing loss
D more likely to be insured, or able to distribute losses by raising prices

Reasons for Strict Liability

The safety
The application of
liability should make manufacturers inspect more carefully
Liability costs are
shifted from plaintiff to defendant, in old days had to sell farm
and pay plaintiff
Most manufacturers have
insurance for liability and so the public ends up paying anyways
Traynor wants
non-pecuniary not to exceed pecuniary
At the time Traynor had
said there should be Strict Liability but no court had yet found it
to be so


Vandermark v. Ford Motor

Breaks locked up crashed
injured Vandemarks
Problems with warranty
law, the manufacturer says look it was the retailer who installed
wrong.
HOLDING
Traynor says
retailers are subject to strict liability, because they are the only
party the consumer works with.
- Retailer liability
  makes safety in two ways
  - Retailers can pressure
    manuf to create safer products (they can also sue the manuf, or
    threaten to not sell their products)
  - They can inspect the
    products in some cases
  - Compared to the
    consumer, the retailer can prevent accidents more than the
    consumer


Elmore v. American Motors 1969

Rambler was purchased,
driveshaft falls of the car, car swerves across road crashes into
BYSTANDER WHO SUES
Bystander
had no privity and wasn’t even a user
No court had ever allowed
the bystander to recover.
But Peters says if
anything the bystander should be entitled to greater protection,
because consumers can at least inspect the product.


Strict Liability Spread Quickly to:

Retailers
Then to lessors BOTH short
AND long-term leases
Bystanders because they
are otherwise defenseless
STOPs AT SERVICES that use
defective products
- Manufacturer still
  strictly liable, service provider NOT LIABLE


Traynor – Says Strict Liability rule provides greater incentives for safety than negligence rules do

Three Types of Defective Products

Manufacturer
Defect – Came
off the assembly line bad
Design
Defect – Too
dangerous AS designed
Warning/Instruction
Defects –
Failed to give adequate warning of danger “do not eat/touch/stand
on/etc.”


Barker Two Pronged Test For Defectiveness

Excessive Preventable
Danger
Ordinary consumer
expectations when used in an intended or reasonably foreseeable
manner


Restatement 3^rd NOW TRIUMPHS for defects !!!

One who sells any
product that is defective/dangerous is subject to liability IF
1. seller is engaged in
  business of selling such product (merchant) AND
2. it is expected/does
  reach the consumer without substantial change in condition of the
  product
The
rule in (1) applies even though
1. The seller has
  exercised all possible care in manufacture of product
2. the is no privity and
  the user has no relationship with the seller


Ybarra v. Spangard (1944) Supreme Ct.

P goes in for
appendectomy, comes out with injured arm
Not sure WHO injured him
Without Res Ipsa is could
lead to “conspiracy of silence”
HOLDING When P gets
an unusual injury to an unrelated part of the body while unconscious
ALL the D who had interaction CAN be held LIABLE unless they can
show they were not negligent. Meaning anyone who even stepped foot
in the room will have burden of proof against negligence
NOTE Ybarra is a VERY
EXPANSIVE view of Res Ipsa


Caveat – Make
sure you SUE EVERYONE, because if you miss a possible responsible
party you may loose out on recovery →

Inouye v. Black

Tries to use Ybarra
precedent
Metal wire from neck
surgery breaks off later and causes injury

1. P
  contrib neg? NO
2. Doesnt ordinarily occur?
  NO
3. Dr. in exclusive control?
  NO here lies the problem!
P only
sues Dr.
HOLDING Dr. wins
because P should have sued everyone, manufacturer, hospital, staff
etc.


Traynor says :: BE VERY CAREFUL probably SHOULD NOT USE res ipsa loquitur OUTSIDE MEDICAL profession →

Fireman’s Fund Am. Ins. Co. v Knobbe

Hotel burns
Ins Co tries to sue hotel
guests under Res Ipsa
HOLDING summary
judgement for D, court does not wish to extend Ybarra this
far because where would you draw the line?


VI. Medical Malpractice

Doctors must follow the ordinary medical/professional standard of care

Ordinary
Medical Standard is set by the industry
according to what an ORP Doctor would/should do
Traditionally
expert testimony had to be “same” field
NOW
it is “similar” field
Traditionally
same locale
NOW
national standard – because of
AdvInModTech and “conspiracy of silence”
Takes into account
emergency situations
DONT need expert testimony
if obvious to jury ie left scalpel in stomach


There must be consent for medical procedures

Doctor can remove scar
without asking (tumor would be different in emergency)
WARNINGS of the procedure
– Dr MUST give warnings of Ordinary Medical Standard
- CA is more strict, must
  give ALL warnings no matter what, ALL alternate procedures, AND
  must be in lay terms
P
has burden to prove that lack of information swayed
them to the procedure. Judged by ORP standard At Time of Surgery NOT
after surgery for obvi reasons

Sheeley
v. Memorial Hospital
- Sheeley
  injured at birth sues 2^nd
  year family practitioner.
- Traditional Rule refused
  expert testimony from ObGYN because she was only a “similar
  practice”
Soares
v. Vestal
- Court refused testimony
  from “over qualified” witness
- AND because he hadnt
  practiced since 1975 (VA requires within 1 year)
Buja
v. ? Overrules Soares
- Asserts
  national standard



VII. “No Duty” Rules

Introduction
1. First establish if there
  IS/ISN’T a duty
  1. Looking at cases where
    the D claims he did not owe a duty
2. There
  seems to be a clear long-term movement towards recognizing a
  general duty of due care UNLESS there is an exception
  1. As
    opposed to traditional rules only imposing duties for special
    relationships
    1. Innkeeper, common
      carriers, maufacturers etc
3. NONFEASANCE
  vs MISFEASANCE
  1. Usually no
    duty to rescue a third party ==>
    1. Nonfeasance is a
      failure to act, DO NOTHING
      - Classic example baby
        on train tracks
      - Or drowning surfer
      - BUT if you start to
        help and screw up →
  2. Misfeasance,
    started to help but SCREWED UP
    1. Didn’t
      use duty of due care/negligent
    2. Rescue baby but then
      carelessly drop it
    3. Rescue surfer, but pull
      him by the ear now he is deaf
      - Exception
        to this → Tarasoff

Affirmative
Duty
1. Tarasoff v. Regents of
  the Univ of California
  1. Tarasoff
    Rule – Dr. has an affirmative duty to
    warn third parties of danger
    1. Expands exceptions to
      the no duty rule
  2. Podar
    tells University Psych he is going to kill Tatiana Tarasoff
  3. Psych doesnt warn
    Tarasoff
  4. HOLDING
    Dr Liable to warn third party of danger ie
    “Tarasoff Rule” simply because of special relationship to ONE
    party (the killer)
  5. California
    and others are steadily abolishing the no duty rule (with
    exceptions like Tarasoff), but still hard to draw a bright line.
  6. Some have accepted or
    expanded, others like CA have adopted limitations like:
    1. Cole v. Taylor –
      Murderer tries to sue Shrink for not stopping her, CA court calls
      BS rejects Tarasoff applications here
  7. Increased
    Duties are Judge made standards like:
    1. common carriers →
      utmost care
    2. manufacturers →
      strict liability
    3. doctors → ordinary
      medical practice
  8. AFTER
    Tarasoff
    1. Dr have no duty to warn
      others of an infected person, ie AIDs, plague, leprosy, etc
    2. POLICE – in Tarasoff
      held the murderer but then released him also NO DUTY
Landowners
and Occupiers
1. Traditional Rules
  1. Invitee ::
    WORKER for business, OR open to PUBLIC. the
    highest held visitor {
    Invited ≠ Invitee } must take affirmative action to fix a danger
    → Duty for Almost Anything. Must actively seek out dangers,
    liable even if danger was unknown.
  2. Licensee ::
    FRIEND, on the property with permission. Land
    NOT PUBLIC. Duty to make safe KNOW DANGERS, (No duty to discover
    dangers) AND NO wanton harm, or concealed traps, but
    also due care if you are running your lawnmower.
  3. Trespasser
    :: traditionally owed no
    duty, someone who enters land with no permission. Sometimes there
    is implied permission ie sidewalk for solicitor
    BUT NO wanted
    harm, or concealed traps
2. MODERN
  RULE (Some Jurisdictions)
  1. No distinction, everyone
    owed a duty EXCEPT
    1. Flagrant trespassers
      intending to commit a felony
3. CHILD
  TRESPASSERs Special Rule:
  (CA DOESNT USE) A possessor of land is subject to liability for
  physical harm to children trespassing thereon caused by an
  artificial condition upon the land IF
  1. the
    landowner knows children are likely to trespass,
    AND
  2. landowner
    knows the or should have know that the condition could cause harm
    or death to such children,
    AND
  3. the
    children are too young to discover the dangerous condition,
    AND
  4. the
    balance of eliminating the danger v the risk to children
    [BALANCING Test], AND
  5. the landowner fails to
    exercise reasonable care to eliminate the danger
4. Recreational
  Use Statutes
  1. Most states limit
    liability for land used in recreation (natural dangers)
  2. Others (Like CA
    Suprme.Ct) Abandoned suitability, any open property owner liable
    1. This means
      paradoxically that a thief who isnt recreating is owed a duty of
      due care
    2. A child who is
      recreating is covered under RUS and is not owed due care!!!! (No
      suitability excuse so that means a constr site is a “Recreational
      Area” because child is recreating)
      - Legislature wont
        change this because there is no money in it, it would take a
        lobby group to convince the legis to change it
5. Rowland
  v. Christiansen
  1. Abolished
    three types of distinctions and everyone is owed due care
  2. Some states have only
    abolished licen/invit but kept trespass distinction
  3. HELD
    that landowners owe a duty of care to all
    on their property
    1. Except flagrant
      trespassers, with intent to commit a felony therein
6. Carter
  v. Kinney (MO 1995)
  1. Kinney hosted a bible
    study for the church
  2. Carter slips and falls
    on ice from night freeze
  3. Is carter an Invitee
    (owed full duty of care) OR Licensee (No duty to warn, just no
    traps or wanton)
  4. HOLDING Licensee D wins,
    because social guests are licensees in MO. No business motive for
    P to be there AND it was not open to the public!
7. Heins
  v. Webster County (NB 1996)
  1. Man visits daughter at
    hospital (“friend”), debatable to discuss working as Santa
  2. Slips on ice in doorway
  3. ISSUE should the court
    abolish invitee/licensee distinction?
  4. HOLDING
    yes Abolish Distinction Inv/Licnsee. Because the
    focus should be on the foreseeability of the injury, not the
    status of the person who enters the property.
  5. DISSENT says we shouldnt
    impose a duty where traditionally there isnt one
8. Duty
  to protect against Crime pg210
  1. Threshold question,
    if you had prior similar crimes then you have a duty to protect
    safety
    1. California says thats
      arbitrary, first time crime happens on premises—there may be
      lots of crime in surrounding area. and now your not liable just
      coz it never happened here before
    2. CA say no no no the
      issue lies on foreseeability
      - Now it goes to the
        jury, a very expansive view, jury decides if it is foreseeable
      - CA Supreme Court pulls
        it back – Mere foreseeability not enough, there must be a very
        high degree of foreseeability
      - High degree of
        foreseeability is rarely met without prior similar crimes.
        Almost requires similar SAME crime
      - Court
        clarifies it just has to be similar crimes, but doesnt always
        even need a prior…but usulaly do
  2. Posecai
    v. Wal-Mart Sores, Inc. →
  3. Four
    (4) Different Rules (in diff juris)
    1. Specific Harm Rule –
      Landlord must be aware of specific imminent harm
    2. Prior Similar Incident
      Test, Rule – Examine recency, frequency, and similarity of
      prior similar crime on premises OR nearby
    3. Totality of Harm Rule –
      Foreseeability under all circumstances, lack of prior similar
      crime doesnt stop liability (criticized as imposing a “duty to
      protect”)
    4. Balancing Test Rule –
      the degree of foreseeability must outweigh the cost to prevent
      harm. High degree of foreseeability if heavy burden to prevent.
  4. Ann
    M v. Pacific Plaza (Pacific Beach
    Nearby Bank had been robbed,
    purse snatching, pantsing.
    Plaza said we have no record
    Use
    4 rules and apply
    1. Aware of Imminent harm?
      NO
    2. Prior Similar? Toss Up,
      shoulda known
    3. Foreseeability always?
      NO not clear at time of rape
    4. Balancing test? Goes to
      jury, almost always requires prior similar (2)
      - HOLDING
        No duty owed to Ann M 🙁
        
        Defendants
        did not have notice of prior similar incidents, but they do
        have duty to discover prior events Records
        show that they didnt have priors similar (doesnt have to be
        identical, just similar) Council
        for Ann M conceded that they were not similar crimes (Lost
        because of this probably)
Emotional
Distress
1. Traditional Duty Based
  Rule of ED
  1. Developed in the 19^th
    century
  2. Said man up, dont be a
    pussy
    1. Used to require
      physical harm
    2. then slight impact
    3. then MODERN (just fear)
  3. Concerned
    about fraudulent claims
2. Modern
  Rule
  1. Direct Victim
    1. Reasonably foreseeable
      ED

1. 1. 1. - Leg
        in a box OR telegram – husband’s dead…J/K

1. 1. 1. Fear
      for your own safety/physical harm
    2. Expanded to fear for
      others safety TWO VIEWS →
      - Dillon
      - Thing
  2. Innocent
    Bystander
    1. Mother watching child
      die
      - MOST COURTS adopt Zone
        of Danger
        
        Mom can recover only
        if she was in the immediate zone of physical danger
  3. Loss
    of consortium
    1. Husbands and wives can
      generally recover
    2. Parents
      can recover for children
      - BUT children cannot
        recover for lost parent (CA and most others)
2. Dillon
  v. Legg
  1. First court to abandon
    traditional rule, looks at following factors
    1. Was the P close to the
      accident? Or far away?
    2. Is the ED a direct
      result of the accident? Or result of hearing from others after?
    3. Were the P and victim
      closely related? Ie Thing test
3. Thing
  v. LaChusa
  1. HOLDING recovery only IF
    1. the
      observer is a closely related family member
      - Blood, marriage,
        relatives living in household, parents, siblings, children, and
        grandchildren
    2. Observer
      must be present at the scene AT THE TIME accident occurs AND be
      aware of the harm being caused
    3. Observer must
      suffer serious ED greater than disinterested witness
4. Gammon
  v. Osteopathic Hospital of Maine, Inc. (Maine 1987)
  1. Package came in mail,
    supposed to be deceased’s belongings
  2. instead he got a severed
    leg
  3. HOLDING Damages
    can only be awarded when such harm reasonably could be expected to
    befall the ORP with average sensitivity
    1. base decision on
      foreseeability, IS it foreseeable that severe ED could result?
Economic
Loss
1. Two categories
  1. No physical harm to
    anyone or anyones property
    1. ex. An accounting firm
      gives the wrong balance sheet to a business.
    2. A third party makes a
      deal with the business that is bad because of the accounting
      mistake.
    3. CAN they SUE the
      ACCOUNTANT even though no K/privity?
      - Some Cts yes some no?
    4. Lawyer
      files late → Now P cant sue?
      - Malpractice held to a
        competent lawyer standard
      - Some Cts still require
        privity
Immunities
1. Contributory
  Negligence (Abolished by)
  1. PURE Comparative
    Negligence (CA)
    1. California adopted
      “PURE Comparative Negligence”
      - Li
        v. Yellow Cab 1975
      - P can recovery even
        if he is 99% responsible
        
        BUT will only
        recover 1% of the damages
  2. Modifies
    Comparative Negligence (Other juris)
    1. P cannot recover if
      he is 51% at fault
2. Must
  have Physical harm to person or property
  1. You cannot recover for
    economic loss here unless the P is harmed.
  2. Businesses in a disaster
    area cannot sue for lost business – unless super foreseeable
  3. Interfamily immunity –
    some states still have, cant sue family.
    1. CA Abolished as did
      most others
  4. Governmental
    immunity is handled by specific codes on what is allowed
3. Will
  liability waivers be enforceable? Tunkle Factors →
  1. 1. Engages
      in a service of great importance to the public
    2. The business will
      perform it service on any member of the public
    3. the business uses the
      importance of its service as an unfair bargaining chip
    4. before performing the
      essential service the business provides an essential contract
      that you must sign, and will not allow you to pay a fee to be
      protected from negligence
    5. As a result of the
      transaction the user is placed in the care of the business and
      subject to the rick of the businesses negligence.

VIII.
Defenses

pg478-81

DONT LOOK TO the
PLAINTIFF’s assumption of risk, ASSESS the DEFENDANT’s DUTY first!
Is there a duty (if so,
what is the duty? (primary assumption of risk)
1. No Duty for SPORTS
  Doctrine
  1. Duty rules are made by
    the courts on a case by case basis, as a matter of law. Duty rules
    apply to a particular category of activities (ie Sports) and are
    determined based on the parties relationship too the sport
    (Players, Coaches, Spectators etc). No duty rules are not based on
    specific facts.
  2. After a no-duty rule is
    adopted the question will STILL go TO JURY to apply the no-duty
    rule to the particular facts of the case. UNLESS the judge belives
    the jury could only reach one conclusion
2. Intentional
  Injury/Recklessness Rule for “Sports”
  1. “Whether
    [a] defendant has a legal duty to avoid such conducts or protect
    the plaintiff against risk of harm…depends heavily upon the
    nature of the sport [and] also…on the defendant’s role in, or
    relationship to, the sport.”
  2. There are several
    different categories of defendants
  3. Policy decisions aim to
    avoid “alter[ing] the nature of the sport by deterring…[a
    part’y] vigorously engaging in [the sport] activity”
    1. Policy to avoid a
      “Chilling Effect” on the sport
3. Application
  to the Categories of Defendants
  1. Co-Participants: No Duty
    (Other than not to intentionally injure)
    1. Knight v. Jewett
      (1992)
      - Super bowl touch
        football game, girl falls down, finger stepped on
      - No duty to protect
        between players
      - Players on have a duty
        not to intentionally harm AND not to engage in conduct wildly
        outside the ordinary range of activity for the sport (ie No
        tackling in a Tennis game)
  2. Coaches:
    No Duty (But cannot be reckless)
    1. Kahn v.
      East Side Union High
      - 14
        year old diver, tells coach she is afraid to dive. Coach makes
        her dive. She breaks her neck on a practice dive into shallow
        racing water.
      - No duty, coaches role
        is to push players to excel. A duty would chill this
        
        Remanded to determine
        if coach was reckless
  3. Owners
    of Sports Facilities: Probably Not
    1. Ratcliff v. San
      Diego Baseball Club
      - Limited duty to owner,
        (enough netted seats for people)
      - No duty for player who
        accidentally threw bat
    2. Connoley
      v. Mammoth Mountain Ski Area (NO DUTY)
      - Signed a waiver form
        ticket (not enough to establish zero liability)
      - Skied into a pole
      - HOLDING
        Mammoth entitled to summary judgement because P failed to
        establish a duty owed to him.

1. 1. 1. 1. Cause
        in Fact


We need to consider two factors in Tort Liability

Cause
in Fact – Facts
proving that the defendant’s conduct was the cause of the
plaintiff’s harm in a physical or scientific way
1. The court consistently
  denies liability in tort when the defendants negligent actions are
  not the cause of the plaintiffs injury
2. “BUTT FOR” But
  for X then Y would not have occurred
3. The defendants actions
  NEED NOT BE THE ONLY CAUSE, just one of the causes
Proximate
or Legal Causation
– Does the defendant have a valid legal argument that the
circumstances of the event would prevent him from being liable for
damages to the plaintiff
1. Polemis (1) Allows UH (2)
  Doesnt address UP
2. Wagon mound (1) No
  recover for UH
3. Cardozo (Palsgraf) (1)
  Yes to UH (2) No to UP
4. Andrews (Palsgraf D) (1)
  Yes to ← UH (2) Yes UP included


Stubbs v. City of Rochester Ct App NY 1919 pg340

Defendant supplied water
to the plaintiff maintaining two pipelines, lines got crossed sewage
in drinking water
1. Plaintiff became ill from
  Typhoid fever which can be cause by a number of elements

1. 1. Drinking
    polluted water
  2. Raw fruits and veggies
    that were grown using human excrement to fertilize the soil
  3. Consumption of shellfish
    (Not common
  4. Infected Milk and veggie
  5. Houseflies in certain
    localities
  6. Contact with infected
    person
  7. Ice with typhoid bacilli
  8. Fruits Veggies etc
    washed in contaminated water
  9. UKNOWN vague medical
    causes
HOLDING
Judge does not
feel this rule is so inflexible as to require the P to disprove all
other causes
1. “If
  two or more possible cases exist, for only one of which a defendant
  may be liable, and a party injured establishes facts from which it
  can be said with reasonable certainty
  that the direct cause of the injury was the one for which the
  defendant was liable the party has copmplied with the spirit of the
  rule”
2. It is sufficient for the
  P to prove with Reasonable Certainty that the direct cause of harm
  resulted from the D actions


Proportional Liability
Suppose that Rochester could show that of the 58 infected, 10 woulda got anyways.

UNDER Proportional
Liability each plaintiff would get 48/58ths of the award


Stairwell cases:

Wolf
v. Kaufmann 1929
NY: P falls down the darkly lit stairs and dies.
- HOLDING case dismissed,
  simply a conjecture that the darkness was the cause in fact. No
  proof that the darkness was the but for cause.
Hinman
v. Sobocienski 1991
AL: Tenant found injured at bottom of dark stairs, trial court
directed verdict for D.
- HOLDING Reversed P
  wins. “When a resident is then found injured at the bottom of
  those stairs, a reasonable inference is that the dangerous
  condition more than likely played a substantial part in the
  mishap.”
  - Probably held for
    public policy, because the landlord is in the best position to
    remedy the unsafe premises by providing better lighting, and can
    also distribute “losses” by raising rent.


Preemptive Causation

Asbestos
Cases Traditionally
courts only allowed limited partial preemptive recovery
- MODERN courts allow you
  to recover 100% IF you can show that you have a +50% chance of
  developing cancer caused by the asbestos.
  - Some suggested
    probabilistic recovery → 20% chance of disease = 20% recovery


Shifting the Burden of Proof, and Market Share Theory:

Both
CA and NY adopt that Liability is SEVERAL ONLY, meaning only
responsible for their own portion of liability.
- In contrast to Joint &
  Several Liability (JSL) where each D could be liable for 100% of
  the recovery if other D’s are insolvent.
CALIFORNIA
rule: Requires that you haul in the MAJORITY of the Market (Add all
Ds together, if each has 1% of the market then 51 manufacturers to
equal 51% of the market). Each manufacturer is responsible only for
his share of the market, often leading to less than 100% recovery
for the P.
- IF you disprove your
  pill/liability as a manufacturer YOU ARE NOT LIABLE
New
YORK rule: Does NOT need a majority of the market as D’s. BUT you
are LIABLE even IF you DISPROVE your product caused harm.

Hymowitz
v. Eli Lilly Co. pregnant women take
drug, daughters get sick then daughters sue.
- Allowed recovery based on
  the ^^ market share theories. Refuses to hold the manufactures
  Joint & Several, and holds them Several only (independently
  liable for their own share of the market).
Sindell
case

Torts Outline – 1L

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