Torts Master Outline



Torts Outline

I. Torts

II. Intentional Torts

a. Battery

i. Requirement of Fault (Intentional or Negligent)

1. Injury is not enough, there must be fault.

a. McAfoos

i. Ct held that 3 year old boy who drove a tricycle and hit P was not at fault b/c a 3 year old is too young to have intent and too young to reason. Thus, not intentional or negligent.

2. Rationale

a. avoids a floodgate of lawsuits

b. don’t want to deter activity: loss of freedom or deter econ. activity

c. requires personal responsibility

d. moral judgment: society realizes that accidents happen

ii. Elements of Battery

1. Intent to cause a harmful or offensive contact

2. Harmful or Offensive Contact Results

1. Intent to cause a harmful or offensive contact

a. Purpose OR

b. Knowledge of Substantial Certainty

i. Have knowledge to a substantial certainty that a offensive or harmful contact would occur .

1. Has to be a high % of certainty—90%+

2. As the % drops, no longer intentional, becomes negligent.

3. is a subjective test, not a objective reasonable person test.

ii. However, knowledge can be proven thru circumstantial evidence.

iii. Garratt v. Dailey

1. D’s intent to cause harm to P by moving the chair can be satisfied by either purpose or knowledge of substantial certainty.

iv. Either purpose or knowledge can be inferred from the facts/circumstances.

1. HYPO: Praying Brick Dropper—as time goes on fewer and fewer people about—dependent on time and place to fulfill substantial certainty.

c. Doctrine of Extended Consequences

i. D is responsible for the consequences of his tort.

ii. For intentional torts, cts are generally not worried about the foreseeability of the consequences; thus, the liability is potentially limitless.

iii. HYPO: Teacher throws empty coffee cup. Student drops out of school.

d. Transferred Intent (3 Types)

i. Same tort against a different person—if you have the requisite intent to A but hit B, you transfer the intent from A to B

1. No foreseeability requirement.

2. HYPO: ( thinks he is tackling Barnum but it turns out to be Bailey.

3. Davis (Gun and motorcycle)

ii. Different tort against the same person

iii. Different tort against a different person—i.e. transferring an intent to commit assault to battery.

1. Alteiri (Rock in backyard)

a. D threw rock into a backyard intended to scare someone else, hits P.

b. Ct. held D satisfied intent element

iv. Transferred Intent Applicable to:

1. Assault

2. Battery

3. Trespass to Land

4. False Imprisonment

5. Trespass to Chattel

v. Transfer intent does not apply to

1. IIED and

2. Conversion.

vi. Mistake

1. If there is a mistake, the burden rests w/the actor.

a. HYPO: A intended to hit B, but ended up hitting B’s twin brother.

e. Children and Intent

i. Whether or not a young child is capable of having purpose or knowledge depends on the individual characteristics (age, maturity, etc…) of the child… normally yes.

ii. Rule of 7s

1. younger than 7 incapable of negligence as a matter of law

2. 7-14 presumed incapable of negligence

3. Minors over 14 presumed capable of negligence.

4. Followed in a few states, most states deal with a child’s capabilities on a case by case basis,

f. Mental Deficiency Does Not Negate Intent

i. Generally, cts don’t care how or why D has the requisite intent, as long as D has it.

ii. Polmatier (Insane kill father-in-law)

1. P killed his father-in-law while he was legally insane.

2. Cts still held him liable b/c he had the intent, or purpose to cause H/O contact.

iii. HYPO:

1. A who is insane, thinks he is Napoleon and that B, the nurse who confines him is an agent of Wellington, preventing his arrival on the battlefield. Hits nurse and fractures her skull. Is he liable?

a. Has Purpose, therefore has Intent,

b. Has Contact resulting in injury.

c. Therefore is liable.

2. A has an epileptic seizure, hits B.

a. No volitional act.

b. No indication of purpose or knowledge.

c. Has contact and Injury but no Intent.

d. Therefore no liability.

iv. Policies

1. When 2 innocent persons must suffer a loss, the loss should be borne by the one who caused it.

2. Relatives of the insane will keep an eye out for him (to get his estate).

3. D can’t pretend insanity and leave V with no redress for injuries.

g. “Dual Intent”—Majority Rule

i. RULE: To be liable for an intentional tort, D must have a duel intent of (Majority Rule):

1. Intent to cause contact AND

2. Intent that contact be H/O, not just intent to cause contact.

ii. D had to appreciate that the contact he was causing would be H/O to V.

iii. White

1. D, suffering from Alzheimer, struck V in the jaw during a violent episode.

2. Ct. found D not liable b/c D did not appreciate the H/O of her conduct. Also, nurse assumed responsibility.

iv. HYPO: Pinching Italian on the bus in US. Custom, no intent for H/O contact.

v. HYPO: Airport Reunion--A hugs B and B suffers broken rib. Not liable for battery b/c no intent to cause H/O contact, just contact.

vi. Minority: Duel Intent not necessary

vii. Alternative: RP test to see if D had the intent to cause H/O contact.

1. HYPO: Amorous Football player—still liable but turns subjective (Intent) test into objective test (Negligence).

2. Harmful or Offensive Contact Results

a. Reasonable Person Test

i. Snyder (Dr pulled down nurse’s head)

1. Ct. held Dr’s pulling down of nurse’s head close to the surgical opening and verbal abuse was a contact that was offensive to a reasonable sense of personal dignity.

b. Knowledge That Contact is Offensive

i. Cohen (P can’t be seen unclothed)

1. P informed D-Dr that due to her religious she cannot be seen unclothed by a male. Ct. held that D, by failing to live up to that agreement, satisfies the “legally offensive” contact element.

c. Volitional Act

i. Act must be voluntary, not reflexive.

ii. HYPO: Large football player throws ( (100 lbs weakling) into pool and hits someone in the pools and breaks his arm. ( has no intent and no voluntary act.

d. “Physical Contact”

i. Traditionally, the tort of battery requires a physical contact.

ii. Some cts, however, have included contact made by smoke.

1. Leichtman (Smoke)

a. D’s intentional act of blowing smoke in (’s face (an ardent anti-tobacco advocate) on a radio show does constitute battery.

b. DJ also sued for aiding and abetting.

iii. HYPO: Sending someone poison

1. Doesn’t have to physically touch, just cause a H/O contact.

e. Extension of Body

i. An object physically in contact w/D is considered an extension of D’s body.

ii. HYPO: Teacher yells and spits at student, student blocks spit w/book held by student—still battery.

iii. HYPO: Fischer—snatching plate for someone’s hand is also battery.

f. P need not to be aware of the H/O contact.

i. EXAMPLE: If D kisses P when she was sleeping.

g. Causation

i. D’ conduct must directly or indirectly result in P’s injury.

1. EXAMPLE: D throws a rock at P, misses but hits a window. The glass shatters and injures P. D is liable b/c he set the shattering of the glass in motion.

ii. D’s act must do more than simply put P in a place in which some totally independent and unexpected force may injure her.

1. EXAMPLE: D is chasing P. A rock falls off a building and hits P. D is not liable b/c D’s act did not set the falling of the rock in motion.

iii. Damages for Intentional Torts

1. Nominal Damages—If you meet the elements of the (intentional) tort you are entitled to $1; then you can pursue punitive damages

2. Compensatory Damages--( made whole

a. Medical

b. Pain and suffering

c. Lost wages

3. Punitive damages

iv. Purposes and Policies

1. Protect Bodily Autonomy

b. Assault

i. Elements of Assault

1. Intentional Infliction of Apprehension of an H/O Contact

2. Requsite Apprehension of H/O by V

a. D must be aware of the assault at the time it was committed.

b. The apprehension must be to D’s own person, not her home, property, or a third person.

ii. Parameter or “Picky Rules” for Assault

1. Imminence Requirement

a. Apprehension of immediate harm

i. If the harm is not imminent, then it could be IIED.

ii. Dickens (threatened D to leave the state)

1. D lured P into rural area, beat and threatened him for sleeping w/D’s daughter. D told P to go home, pack, and leave the state, or else he would be killed.

2. Ct. held that b/c the threat was not immediate, it was not assault.

b. DISTINGUISH: Threats of future harm is IIED.

2. Words Alone and Overt Act

a. Mere words alone are not enough

b. However, any overt act together w/words is sufficient

i. EXAMPLE: finger pointing

c. Words can also negate intent.

i. HYPO: Graying Prof.---Student to teacher: If you weren’t full of gray hair, I’d hit you.

3. Reasonable Apprehension

a. The apprehension must be reasonable

b. An objective test

i. HYPO: Sleeping Beauty—No assault; no apprehension of imminent harm.

4. Improper Conditions

a. When D gives V an alternative to the threat, it is still an assault

b. EXAMPLE: “Your money or your life?”

5. Fear v. Apprehension

a. Fear is not necessary, just an apprehension of a H/O contact is needed.

b. EXAMPLE: Devito attempts to punch the Rock.

6. Apparent Ability

a. All you need is the apparent ability to cause a H/O contact.

b. EXAMPLE: Liable even if you were using a fake gun to carry out the H/O threat.

iii. Purpose and Policies (Interest Protected)

1. Mental tranquility

c. False Imprisonment

i. Elements:

1) Intent

2) Actual Confinement

3) Knowledge of Confinement

4) Confinement against the person’s will—no consent

1. Intent

2. Actual Confinement

a. No physical restraint or physical barrier necessary—only confinement.

i. Words Alone Can Be Sufficient

1. Threats of imminent physical force to P or members of her immediate family.

a. Threats of future harm is not sufficient.

2. Words asserting legal authority may be sufficient even w/o any accompanying physical movement.

a. McCann v. Wal-Mart

i. P and kids were shopping. D suspected P of stealing a week ago, and confined them.

ii. Ct held that even though P was not physically confined, the element is still satisfied b/c P referenced the police and stood over them, so that a reasonable person would believe that they would be detained physically if they attempted to leave.

b. EXCEPTION: The Sheriff says don’t leave the state/country. There is a boundary around you but you can still go about your normal activities, therefore, not confinement.

b. No Reasonable Means of Escape

i. If P is confined, he has an obligation to use a reasonable means of escape.

1. HYPO: P confined in dorm room w/ window. If the room is on the first floor, then reasonable. If the room is on the second floor, then not reasonable.

ii. But P is under no duty to take any risk to her body or property by attempting to escape.

iii. Unlawful Demand

1. Compliance w/D’s unlawful demand is not deemed a reasonable means of escape.

c. Duress of Goods

i. EXAMPLE: When D takes P’s tangible goods, and, as a result, P must stay to get the good back, P is confined under duress.

d. Area of confinement must be restricted

e. Excluding someone from some place is not FI

i. HYPO: Police says, “Don’t leave the country” is not FI.

3. Knowledge of Confinement

a. EXCEPTION: Doctrine of Extended Consequences--If the confinement injures P, then knowledge of confinement is not required.

i. HYPO: P drunk, cops drive them out of town instead of arresting them. P has no recollection of confinement. P is struck by car near where he was dropped off.

ii. HYPO: Baby in bank vault. Baby has no knowledge, but if injured, the D is liable.

4. Confinement against the person’s will—no consent

a. Knowledge of Confinement (3) and Confinement against the person’s will (4) can be inferred from the evidence if P does not remember.

i. HYPO: P drunk, cops drive them out of town instead of arresting them. P has no recollection of confinement. (3) and (4) can be satisfied by evidence that may show P was kicking and screaming, or resisting.

b. Withdrawal of consent to confinement

i. If you agree to the confinement you can withdraw at anytime unless the withdrawal causes detriment to the other party.

ii. HYPO: D is flying his airplane and P agrees to ride along. Half way into the flight, P wants out.

1. P cannot sue b/c doing so would cause a detriment to P.

2. If in car, however, P can sue b/c it would have been very easy for D to let P out.

ii. Defenses to FI

1. Recover Chattel

a. At C.L. a right to detain to recover chattel if it is found

b. If the chattel is not discovered then no defense to detain at C.L.

c. May have aright to detain to recover chattel under statutory law.

iii. Interests Protected

1. Freedom of movement

2. Mental tranquility

d. Intentional Torts Against Property

1) Trespass to Land

2) Trespass to Chattel

3) Conversion

i. Trespass to Land

1. Elements

a. Intent to Enter Property

i. Mere Intent to enter the property

1. Intent means purpose or knowledge to enter land, not purpose or knowledge to commit trespass

2. Strict Liability; C.L. property rights—the right to exclude others.

3. HYPO: D forgets address of party and walks to the wrong house. D trespassed b/c D deliberately entered on the property.

ii. Failure to vacate

1. Once the consent to be on property runs out, D is a trespasser.

iii. Does not have to be by a person, an object will do.

1. Rodgers: (6 month lease and the cement base.) After lease expires removes fence but forgot to remove the cement base. Farmer hits the base with a tractor and is killed. This is trespass.

2. wife can sue under the doctrines of

a. Extended Liability (Extended Consequences).

b. Transferred Intent—transferring the intent form the trespass to the battery. See Alteiri.

b. Entry on Land of Another

2. Interest Protected

a. Land owner and occupier’s exclusive possession—right to exclude others.

ii. Trespass to Chattel

1. Elements

a. Intent to interfere w/personal property

b. Interference w/ personal property

i. Actual harm to property OR

ii. Lost of use

2. Remedy

a. Actual Damages—this does not require actual physical damage, loss of use can substitute.

3. Traditional View:

a. Only tangible chattel

4. Modern View:

a. Can be intangible

i. HYPO: Clogging email servers w/spam

iii. Conversion

1. Elements:

a. Intent to exercise Substantial Dominion

b. Substantial Dominion over the chattel

2. Factors to differentiate Conversion form Trespass to Chattel--A trespass to chattels to a higher degree.

a. Extent and duration of control

b. (’s intent to assert a right to the property

c. (’s good faith

d. Harm done

e. Expense or inconvenience caused

i. HYPO: ( negotiating to buy a car with the car salesman. They take his key and won’t return them. Makes ( wait around for a couple of hours. Court held ( had converted the car and the keys—dominion by controlling access.

1. Most courts would not agree—not long enough time to convert.

ii. HYPO: If more than 1 set of keys, then conversion of keys.

iii. HYPO: Joyriding with another’s dog

1. Trespass to chattel for the car and the dog.

iv. HYPO: Same but the car crashed and the dog injured.

1. May have Conversion to the car if substantially damaged.

2. Dog—actual injury (more chance to recover)—Trespass to Chattel

3. Remedy

a. Full market value to property

b. Once D has exercised substantial dominion, then D has in essence bought it, unless P wants it back.

c. HYPO: Your close aunt dies and is cremated. Thief steals the urn. You chase him and he drops the urn and the wind blows the ashes away.

i. Converted Urn ($10) and ashes (?).

ii. Parasitic Damages

1. Can recover for emotional distress damages that attach to another intentional tort.

2. Applies only to intentional torts.

4. EXCEPTION: D cannot be liable for conversion if he is a bona fide purchaser. Note: Only applies to fraud, not theft

a. HYPO: B steals from A and sells to C. C buys in good faith—thought B had a right to sell.

i. A can sue B or C for conversion

ii. Good Faith of purchaser is irrelevant.

b. HYPO: B defrauded A and sells toC

i. A can sue B for conversion but not C, assuming that C bought in good faith--had no knowledge of the fraud.

ii. Since B had title by fraud he had something to sell C, assuming that C bought in good faith.

e. Intentional Infliction of Emotional Distress

1) Intentional or Reckless

2) Extreme or Outrageous Conduct

3) Actions of the ( causes the Emotional Distress

4) Resulting in Severe Emotional Distress

i. Elements

1. Intentional or Reckless

a. Purpose or Knowledge to a substantial certainty that ED would occur

b. Reckless—a high risk of harm

2. Extreme or Outrageous Conduct

a. Relationship b/t Parties

i. Power Imbalance

ii. EXAMPLE: Employer and Employee

b. Totality of the circumstances

i. Cts will consider the totality of circumstances, not each isolated incident.

c. Vulnerability

i. EXAMPLE: Racial Slurs

ii. Taylor (Sheriff w/racial slurs)

1. D, a sheriff, called P-deputy racial slurs, and D received harassing phone calls as a result.

2. Ct held that usually mere insults are not enough; the power dynamics of the workplace contributes to the E/O of the conduct.

3. Exception: Common carriers (i.e. public utilities, innkeepers, public carriers) are held to a higher standard because the serve the public—court stated public officials should be held to a higher standard.

4. Close case because only one incident—not a general rule.

iii. Hypersensitive People

1. If ( has knowledge of (’s vulnerability and proceeds, ( is liable.

2. If ( had no knowledge of (’s vulnerabilities, usually E &O conduct will take care of the situation.

d. Repetition

i. A certain conduct by itself may not qualify as E/O, but repetition of the conduct may make it E & O.

ii. GTE (Manager’s repeated abuse)

1. D-manager engaged in a patter of grossly abusive, threatening, and degrading conduct.

2. Ct held that it was the severity and regularity of D’s conduct that made it E/O.

iii. HYPO: JC Penny’s daily phone calls, and collection agency.

e. Insults

i. Generally, there is no liability for mere insults.

1. EXCEPTION: Common carriers

3. Actions of the ( is the cause of the Emotional Distress

4. Severe Emotional Distress

a. Testimony from Dr is helpful, but if none, then jury will up themselves in P’s shoe and evaluate from D’s conduct.

b. Apologies

i. D can argue that an apology may mitigate P’s severe emotional distress.

ii. IIED as a stand alone tort--DISTINGUISH: Pain and Suffering, Duress

1. IIED is a stand-alone tort where the emotional harm is the only harm, while P/S and Duress are “parasitic”, meaning that they are emotional harms that are only recoverable when attached to a physical harm.

a. Winkler (sexual advances)

i. D (senior pastor)would put arms around P, and make sexual advances.

ii. Ct held that even though the statute of limitations for battery had already passed, P can still sue for IIED b/c it is a stand-alone tort.

iii. Interest Protected

a. Mental Tranquility

iv. 3rd Party IIED

1. Requirements

1) Presence

2) ( had knowledge of (’s presence

a. Presence

i. P must be present at the time the conduct occurred.

1. If P suffered no bodily harm, then P must be an immediate family member.

2. If P also suffered bodily harm, then P can be anyone present at the scene.

ii. No transferred intent for IIED or conversion.

iii. EXCEPTION: Child Molestation Cases

1. P is the parent, and he was there at the immediate aftermath rather than present at the scene.

a. But what is immediate aftermath?

iv. EXAMPLE: D breaks urn w/ashes while P is not present. P cannot cover for 3rd Party IIED, but can recover for Conversion + P/S

v. EXAMPLE: P finds dead body of wife at home. P can’t recover for IIED b/c he wasn’t present at the killing, but P can recover for trespass + P/S.

vi. Homer (wife was seduced by Dr.)

1. D took advantage of and seduced P’s wife while when she was hospitalized, resulting P’s divorce. P sued D for 3rd Party IIED.

2. Ct held that since P was not present, he cannot recover.

b. Knowledge of Presence

i. Generally, 3rd Party IIED is only limited to persons that were not only present at the time, but are known by D to be present, so that the mental effect can reasonably be anticipated by D.

ii. EXAMPLE: D beats P’s father. D sees P watch then continues the beating. D can recover for 3rd Party IIED. But if D did not see P, then no recovery b/c no knowledge of presence.

iii. CA RULE: Either P was present or D knew and directed conduct to cause P’s IIED.

2. Related Subject

a. When P is not present, he cannot recover for 3rd Party IIED, but he can often times recover for an intentional tort + P/S (parasitic)

b. EXCEPTIONS: Also courts have relaxed the rule for

i. Coming upon dead bodies

ii. Child molestation cases.

3. Policies

a. Greatly limits the number of people who can recover.

b. Presence element makes the conduct more E/O.

c. Knowledge element goes to intent.

d. Prevents a wife who learns of husband’s death from suing 10 years later.

e. Ensures genuine claims.

III. Privileges (Defenses)

a. Self-Defense

i. You can defend yourself if you are attacked

ii. Reasonable Force Paradigm

1. The force used must be reasonable under the circumstances

2. KEY: Proportionality—as much as needed to repel.

iii. Deadly Force

1. Can only be used when threatened w/deadly force or great bodily harm.

2. Only when responding to the act, not later—no retaliation.

iv. Retreat Before Using Deadly Force

1. Majority: You have to retreat, if it is safe to do so, before applying deadly force

a. Exception: unless you are in your own home.

2. Minority: Never need to retreat

3. If a safe retreat is not certain, then no duty to retreat.

v. Reasonable Mistake of Fact

1. If it was a reasonable mistake of fact, then its O.K.

a. EXAMPLE: D gets into a fight in bar, and his opponent leaves. Someone says he is in the parking lot. When D is getting into his car to leave, he hears footsteps, so he turns around and punch. The person D hits is a police officer. P sues for battery. D can claim self-defense b/c it was a reasonable mistake of fact.

vi. Resisting unlawful arrest is a privilege of self-defense.

vii. Threat of unreasonable force is allowed even though the use of the force is not.

b. Defense of Others

i. You can defend another as long as with Reasonable Force.

1. Reasonable under the circumstances

2. Proportional

3. No retaliation

ii. Mistake

1. EXAMPLE: A defends B by hitting C; however, C was defending himself from B’s aggression.

a. Majority: reasonable mistake in defense of others O.K.

b. Minority: you take the risk

c. Defense of Personal Property

i. Recapture of Chattels

1. You have a right to use reasonable (but not deadly) force to recapture chattel. The person you are stopping has no right to resist. If they do resist, then you have the privilege to respond in self defense.

ii. Hot Pursuit

1. must be in “hot pursuit” in order to invoke the privilege of “recapture of chattels”.

2. If not in “hot pursuit”, then the only remedy is court action.

iii. Mistake

1. At C.L. if you make a mistake you have no privilege, therefore at C. L. a mistake results in a battery, assault or false imprisonment.

iv. Merchant’s Privilege (Rst §120--adopted by statutes—general rule)

1. If a merchant has

a. a reasonable belief that A has stolen something,

i. No probable cause until suspect tries to leave w/o paying or manifest control over the property with unequivocal intent to steal.

b. he has the right to detain A for a reasonable investigation.

i. Reasonable Investigation is extremely hard to determine—a very nebulous test.

1. Thus, Lawyers usually suggest:

2. call security

3. don’t stop them until they attempt to leave; the damages are too great, so don’t take the risk.

c. Even if the merchant was wrong, as long as it was a reasonable belief and reasonable investigation, then the merchant is not liable.

2. Pacific Tea Co. (Shoplifting)

a. D suspected P of shoplifting and forced him to manager’s office where he was search w/o discovery of stolen items. P sued for FI.

b. Ct. held D liable b/c according to the evidence, D did not have a reasonable belief that P stole something b/c he didn’t see P take the item, he didn’t check the shelf, and he stopped P before he even attempted to leave the store.

c. Court refused to adopt the Merchant Privilege Rule and applied common law—wouldn’t have mattered in this case because ( did not see the theft and method of detainment was not in a manner to conduct a reasonable investigation.

d. Defense of Real Property

i. Reasonable Force

1. A property owner can use reasonable force to defend real property.

a. Generally has to first ask trespasser to leave before escalation of force is permitted. He cannot at the outset inflict harm on a trespasser

b. However, a trespasser has no right to resist.

c. Thus, if trespasser resists physically, Owner can defend with escalation of force.

d. Generally, Owner cannot use deadly force to defend property, but can use deadly force to defend its occupants (people).

2. Katko (Spring gun)

a. D has a farmhouse that was repeated broken into so D set up a spring gun. P breaks in and is shot. Nobody is home.

b. Ct held deadly force cannot be used to protect property.

3. Brown (watermelon thefts)

a. P, along w/friends, went to D’s property to steal watermelons. P spilt from his friends. D fired gun away from where he thought everyone was, but hit P.

b. Ct. held that D was never threatened. Thus, he had no right to use deadly for just to protect property.

c. D threatened to use deadly force, but the result was deadly force was used.

i. Can you use the threat of deadly force to defend property? YES, if reasonable.

ii. Transfer of “Privileged Intent”

1. Transfer Intent of a privileged intent (Defense of Property--Assault) to complete a tort.

a. Not argued but one could be made that if the original acct is privileged (not wrong) there should be no transfer of intent because there was no wrongful intent to transfer.

b. EXAMPLE: D had the privilege to threaten deadly force to protect property, but what happens if that threat ends up being a battery?

ii. Mechanical Device

1. Generally, D cannot use a mechanical device that inflicts deadly force to defend property.

a. Restatement §85: no privilege to use force…unless the intrusion threatens death or serious bodily harm…A possessor of land cannot do indirectly and by a mechanical devise that which, were he present, he could not do immediately and in person…

(i.e. can use mechanical device that inflicts deadly force if you suppose that if D was present at the scene, he could be used deadly force.)—problem is that no one is there to make an assessment.

e. Discipline

i. Parent, or anyone who has custody of a child, can use reasonable force and confinement to discipline the child.

ii. Generally, parents have a huge leeway in “reasonable force.”

iii. Others more limited; i.e. teachers, school bus drivers

f. Consent—to understand the consequences --Ability to weigh the circumstances.

1) Entering into Consent

2) Extent of Consent—Extended Consequences

3) Scope of Consent

4) Effectiveness of Consent

5) Treatment of Medical Consent

i. Entering into the Consent

1. Expressly

a. Oral or Written

2. Implied Consent

a. Through Actions

i. EXAMPLE: Immigrant lifting arm on Ellis Island to be inoculated.

b. From the Circumstances

i. Reasonable appearances—not the subjective state of mind

ii. Social Norms

1. HYPO: Austin & Berwyn—the amorous couple and the broken neck.

c. Consent--a fact for the jury to decide.

3. Implied by Law

a. EXAMPLE: Emergency

ii. Extent of Consent; Extended consequences

1. If there is consent to the contact, there is consent to anything that follows including unforeseeable consequences—the flipside of Extended Consequences.

2. An affirmative defense--consent negates the harmful intent.

a. HYPO: Austin & Berwyn—the amorous couple and the broken neck.

iii. Scope of the Consent

1. Conditional

a. EXAMPLE: Family blood to be used during operation

b. Ashcraft (consent to operation conditional on family blood)

i. P consented to an operation on the condition that family blood would be used. It was not, P was infected with HIV and P recovered for battery—because he transfusions exceed the consent given.

2. Geographic

a. EXAMPLE: consents to left ear/right ear operated on

b. Kennedy (Dr found cyst and operated w/o consent)

i. P consented to appendectomy, but D-doctor after the incision found cysts in the area and performed the additional operation. D is not liable b/c

1. the additional operation was in the area of the original incision--same geographic area,

2. D was incapable of giving consent at the time and no one with authority to consent was immediately available.

ii. A broad reading of consent

1. Assume that patient would consent

2. Assumes that patient would not want to have 2 operations where one would have sufficed.

3. Temporal

a. Consent can expire after a period of time (i.e. lease)

b. EXAMPLE: Base of snow fence left on land after lease had ended.

iv. Effectiveness of Consent

1. Incapacity

a. Person incapable of understanding or weighing risks

i. EXAMPLE: Small child

b. Reavis (can’t resist sex)

i. P can’t resist sex, but D didn’t know, therefore it is treated as consent-- D can act on the apparent consent without committing a tort.

ii. But if D knows about P’s incapacity, then P’s apparent consent is treated as no consent--D acting on P’s consent would a tort.

c. Consent of minors

i. It is generally assumed that minors may consent to a number of touchings appropriate to their age.

d. Unconscious—no consent.

e. Intoxication???

2. Statutes--Criminality

a. Majority of courts hold the consent to illegal acts is ineffective. Thus, if A and B were prize fighting, they can sue each other for battery.

b. Other cts hold that no one can find a cause of action on an illegal act—not an issue of consent. Thus, cts would sometimes bar V who participated in crime.

i. EXAMPLE: V participated in an illegal abortion. V cannot recover.

c. EXAMPLE: Child labor statute or statute prohibiting prizefighting w/o license

3. Fraud, Misrepresentation, or Coercion

a. EXAMPLE: Criminal points gun and says “Give me your money,” which V does. Coercion, thus no consent.

b. EXAMPLE: D’s failure to disclose she has herpes.

c. Doe v. Johnson

i. D-Magic withheld material fact (HIV) from P, thus she was unable to evaluate and accept the risks—therefore P’s consent to sex was ineffective.

ii. Material Facts: Must be disclosed even if not asked.

4. Medical Consent

a. EXAMPLE: Medical consent—consent to the operation but not informed as to the nature or material risks of the operation.

i. Today usually treated as negligence.

5. Revoked

g. Necessity—Privileges not based on P’s conduct

i. Public Necessity

1. Traditional and Majority Rule

a. One is privileged to enter another’s land if it is, or of the actor reasonably believes it to be, necessary to avert an imminent public disaster.--A person is not liable for destroying another’s property if it is necessary to prevent an imminent public disaster.

i. A complete defense

ii. No compensation.

b. Surocco (destroyed house to stop fire)

i. D (city) destroyed P’s house to stop the spreading of a fire.

ii. P sued not for the house but that he could have retrieved more items out of the house.

iii. Ct held D is not liable due to the law of public necessity—held that the goods in the house where subject to the same necessities as the house.

2. Modern Rule

a. When there is a taking of private property for public necessity, the taking is justified but compensable under the 5th Amendment.

b. If damage done by the state is negligent, then it is not covered under the 5th Amendment.

c. Wegner (SWAT).

i. 2 suspected felons escaped and entered P’s house. The SWAT team severely damaged the house in an attempt to capture them.

ii. Ct. held that taking was justified, but compensation must be given so not to burden the innocent party.

iii. Scope of the Rule

1. Only applies to intentional torts

2. and the P must be an innocent party—property NOT part of the criminal enterprise.

a. Otherwise, the owner created the problem and there is no duty to compensate.

3. Distinguish Surocco and Wenger

a. In Surocco not tearing the house down would have increased the fire creating a larger public hazard.

b. In Wegner, the damage to the house does not necessarily reduce the danger of a public hazard—may not have been necessary to apprehending the two criminals inside.

ii. Private Necessity

1. Traditional Rule

a. Necessity Factors--a fact for the jury

i. Danger to person or property

ii. The only way to save yourself is to avail yourself of someone else’s property.

iii. The danger is created by an independent force—not by actor’s actions.

b. The defense of necessity trumps the defense of property.

i. Ploof (tied boat to dock)

1. P was sailing w/family in a storm. P tied boat to D’s dock (private necessity). D untied the boat (defense to real property), and the boat was destroyed and people injured. P sued for trespass to the boat and claimed D had a duty to let P dock there.

2. Ct. held that an entry upon land of another may be justified by necessity.

3. The trespass to land is trumped to private necessity—negates the defense to real property.

c. If it is a necessity, a private citizen may use P’s property, but if he damages it, he must pay for it.

i. Vincent (Ship stayed on dock to save cargo)

1. D repeatedly tied his cargo ship to P’s dock during a storm to prevent D’s ship from floating away. The ship damaged P’s dock.

2. Ct. held D must pay for the damages b/c D availed himself to P’s property in order to save his own, more valuable property.

a.

2. Rationale

a. Rationale: Unjust enrichment.

i. The party claiming the privilege of private necessity has to pay.

ii. They benefited and putting the burden on the other party is unjust.

iii. Applies if the party asserting the privilege benefited or not---they imposed risks (by an affirmative act) on the other party, hoping for a benefit, and therefore should bear the risk of paying if there is damage to the other party.

Negligence: Prima Facie Case--REQUIRES PHYSICAL HARM!

1) Legal Duty—did the ( have the obligation to act reasonably toward the (

2) Breach of Duty—failure to exercise the amount of care a RPP would--the core of negligence

3) Actual Cause—negligent act must be the cause of injury

4) Proximate Cause—legal cause—even if there was duty, breach and actual cause, we may limit liability by finding no proximate cause

5) Damage—physical injury

Apply Prima Facie Case

1) First to (, then

2) to (

I. Legal Duty—the Standard of Care

a. RPP Test: Did the ( act as a Reasonable and Prudent Person under the circumstances? Determined by the jury.

i. the standard of care remains the same under all circumstances.

1. Stewart: Court holds that the lower court did not err in refusing to give the jury instructions that “a high degree of care” was required. There is a single standard of care for negligence—the RPP.

2. Lyons: Respondent struck a car that suddenly pulled out in front of him, killing the driver. Lower court allowed the jury instruction on “emergency doctrine”. State Supreme court rejects, hold that the standard of care is the RPP and that no special instructions are necessary.

a. “Emergency Doctrine” instructions are redundant—RPP is the standard, and

i. in an emergency people do not have time to think

ii. broadening the spectrum of the amount of care that would be reasonable.

b. they favor the ( by emphasizing the nature of the circumstances too much.

ii. The amount of care required varies with the circumstances.

1. Changes proportionately w/the level of danger/risk

2. risk=the probability of harm.

a. Stewart (repairing fuel tank)

i. P helped D repair a fuel tank, and it exploded, injuring P. Ct stated that ordinary care is the care a RPP would use under the circumstances.

3. Circumstances

a. Internal—characteristics of the abctor

b. External—characteristics external to the actor

i. I.e. emergency.

iii. The risk must be foreseeable for a person to act unreasonably

1. No foreseeable risk, then cannot act unreasonably.

iv. Physical Characteristics

1. The RPP has D’s physical characteristics

a. Shepard: Blind ( trips over a raised concrete slab on the public sidewalk in front of the (’s business. A person laboring under a physical disability such as defective vision is not required to exercise a higher degree of care to avoid injury than is required of a person under no disability. Ordinary care in the case of such a person is such care as an ordinarily prudent person with a like infirmity would have exercised under the same or similar circumstances.

b. Roberts: blind man operates a concession stand in the Post Office. Knocks down a person on his way to the bathroom—did not use his cane even though he had it in his stand. Court dismissed the complaint. Hold that the standard of care is what a ordinary reasonable man would take if he were blind. Under this standard it was not unreasonable for the ( to rely on his facial sense for a short trip to the bathroom in a familiar and crowded place.

2. Rationale

a. Don’t want to hold people to a standard that they cannot meet

3. Memory, Knowledge, Experience

a. Public Policy dictates that we assume that the RPP has a minimum of certain traits of mental capacity

i. Intelligence

ii. Perception

iii. Attention

iv. Knowledge

v. Memory

vi. Judgment

b. Thus, person w/inferior knowledge will be held to RPP

c. Higher standard is taken into account for superior Memory, Knowledge, and Experience

i. Hill (Tractor operator and D fell off)

1. D instructed his sister to hold on to a ladder on the outside of an earth moving machine during a demonstration. The machine hit a mound and she was thrown forward and run over and killed by the machine. D was held to a higher standard in operating a earth-moving machinery b/c of his experience with them--he had operated it for several seasons.

ii. HYPO: Country Road--( remembers sharp turn in the road due to great memory—if accident at the turn, give the RPP superior memory (or just knowledge of the turn) ???

iii. HYPO: Paint Thinner—stores paint thinner in the garage. ( is of lower intelligence and lights a cigarette in the garage and it explodes. As a matter of public policy we will assume that the RPP has certain minimum characteristics, even if they exceed those of the (.

iv. HYPO: D’s tire was worn and blew out injuring the P. P knows nothing about tires—claims that spouse takes care of it. Still liable because RPP has certain minimum knowledge including tires—common knowledge, especially if you drive a car. RPP must have common knowledge.

v. HYPO: Broken Carburetor-- ( car stalls and ( runs into him and is injured. Fuel line broke because it was worn--( claims that ( should have known about it because of the leaking fuel and the smell. Carburetor probably outside of common knowledge—RPP does not have to have specialized knowledge, only common knowledge.

1. The problem is deciding what is common knowledge.

d. Rationale

i. Public needs to expect a minimal amt of M, K, E

4. Intoxication

a. If the ( is voluntarily intoxicated then we apply the RPP of the unintoxicated/sober person.

i. D can’t impair himself, and hide behind the RPP test

ii. D can’t claim there is an emergency when D created the emergency.

b. If involuntarily intoxicated, then apply the RPP standard with the actor’s characteristics.???

5. Mental Incapacity

a. Not taken into account. Don’t take into account D’s mental impairment, and apply the RPP test w/o impairment.

i. Creasy (mental diseases and popped P’s back)

1. D had Alzheimer’s and other mental diseases and kicked P-Nurse, popping her back. Ct held D to RPP standard w/o regard to his incapacity. The court further held that a person employed to care for a patient known to be combative due to Alzheimer’s disease has no cause of action for injuries sustained in doing so.

b. Rationale

i. Allocates losses b/t 2 innocent parties to the 1 that caused it

ii. Provides incentive for his heirs to retrain him

iii. Refrain people from faking mental disabilities

iv. Avoids problems of assessing D’s disability

v. Forces D to live in the real word.

6. Age (Children)

a. RPP test takes on the precise characteristics of the child: “The Duty of the child to exercise the same care that a reasonably careful child of the same age, intelligence, maturity and experience would exercise under the same or similar circumstances.”

i. Take into account child’s age, intelligence, maturity, training, and experience.

ii. RPP for children does not have a minimum level of mental capacity, experience, etc.

1. ascertain what they actually are.

2. Since children mature at differently it would unfair to hold a child to a standard that is not achievable.

iii. Thus, if the child is almost 18, he should be held to RPP

iv. Each state has a bottom line (usually 3 or 4) that a child is incapable of negligence.

b. Rationale

i. Kids mature at different rates

c. EXCEPTION

i. When the child engages in adult or inherently dangerous activities.

1. Usually has to so with the operation of motorized vehicles.

2. Robinson (Snowmobile)

a. D was driving a snowmobile. Ct held him to an adult standard (RPP) b/c it was a inherently dangerous activity.

ii. Rationale

1. Protects the safety of the general public

2. Discourages kids, or parent from allowing their kids, from engaging in dangerous activities.

b. Negligence as a Matter of Law

i. Judge-Made Rules of Law

1. Judge decides as a matter of law what the RPP should do, so the jury does not need to decide.

a. To be able to stop within the range of your lights.

i. Marshall v. Southern Railway (1950)

1. P hit a trestle support at night after avoiding a car coming the other way. Judge dismissed the suit because as a matter of law, P should have been able to stop within the range of his lights. Not being able to do so was negligence. Jury didn’t need to apply RPP test.

b. Stop, look and listen Rule—Contributory negligence per se not stop, look and listen at RR crossings.

i. Baltimore & Ohio Railroad(1927)

c. These rules are mostly not followed today.

i. Chaffin v. Brame(1951)—rejecting range of light rule.

1. P blinded by the lights of an oncoming car, ran into an unlighted truck blocking the right lane. The court rejected the “range of lights” rule and reasserted the RPP standard—what would a reasonable person have done in the circumstances—thereby allowing the decision for the P to stand (no contributory negligence).

ii. Pokara v. Wabash Railroad(1934)—rejecting the Stop, look and listen Rule.

2. PROBLEMS

a. The ct does not have the background experience necessary to frame a general rule. They are reactionary and are not able the gather information before it sets the rule. Only the legislature can do that.

ii. Negligent Per Se (Legislative-Made Laws, Violation of Statute)

1. Legislature declares by statute how a RPP would act.

2. Effect of Violation of Statute

a. Majority: violation of statute equals negligence (unless a legally acceptable excuse is presented). If there is a valid excuse, then the jury gets to decide.

i. Martin (Need lights on buggy)

1. D driving at night crossed over the line and struck the P’s buggy, killing him. P’s buggy was driving without lights, in violation of a statute, which required all vehicles driving at night have lights. The court held that P’s violation of the statute was per se negligent and upheld the reversal of the P’s award and the remand.

b. Minority: violation of statute just evidence of negligence, so the ct leaves it up to the jury to decide.

c. CA: jury is instructed that D is presumed to be negligent if he violated the statute.

i. Rationale

1. Presumably, the legislature’s enactment of the statute is well informed since they are able to do extensive research.

3. EXCEPTIONS (cts refuse to use statutes to define negligence)

a. Interpretation

i. The ct may interpret the statute differently or have exceptions in them based on common law.

1. Telda (Safer to walk on wrong side of road)

a. P violated the statute by walking on the wrong side of the road because the traffic was heavier on the other side. The ct concluded that it was safer to walk on the wrong side, and under common law, this crime was excused when following the statute would be more dangerous.

b. Excuses; 5 Categories—If the excuse fits w/in one of the 5 categories then the excuse can be submitted to the jury. If it is successful it may act as a complete excuse—no negligence.

i. reasonable due to incapacity

ii. neither knows or has reason to know

iii. Inability to comply after reasonable diligence

iv. emergency not due to his own conduct

v. greater risk of harm if statute complied with

1. Impson (forgetting @ sign not an excuse)

a. D tried to pass a car within 100 feet of the intersection; the car tried to turn left and was struck by the truck, injuring some passengers and killing one. The trial court held the violation of a statute forbidding passing within a 100 feet of an intersection made this cases negligence as a bmatter of law—negligence per se—entered a judgment for the P. Court of Appeals held that since the D submitted excuses (forgot, signs too small, etc…) for violating a statute, the matter of negligence should have gone to the jury. The State Supreme Ct reversed and reinstated the Trial Court decision holding that the excuses where not legally acceptable. Not within one of the 5 acceptable excuses categories.

c. Children

i. General Rule: determining negligence per se through the violations of statues, generally do not apply to children.

1. Rudes (child crossed w/o using crosswalk)

a. P (eight years old) was struck by a car when he crossed a control expressway w/o using the crosswalk, a violation of the statute. The Trial Court held that the violation of the statute was negligence per se and denied all recovery. The State Supreme Court reversed holding that a child of eight could not be declared contributory negligent per under the general rule—applied the rule of 7s. There were no facts to support the uses of the adult standard. Remanded for a new trial.

ii. Exception: if the specific child knew the statute.

1. On a case by case basis

2. Apply the children’s test (A.I.M.T.E.)-- age, intelligence, maturity, training, and experience

3. Thus negligence per se is only applied to children if the child knows of the statute and is mature enough to understand the statute.

d. Invalid or Defective Statutes

i. Ct can still use it b/c the ct isn’t using the statute itself, but just what it represents, which is the legislative determination on proper conduct.

4. Licensing Statutes

a. General Rule: Violation of licensing statute is generally not negligence.

i. EXAMPLE: Driving w/o a valid driver’s license doesn’t mean you’re driving negligently.

b. The evidence can be introduced; however, the violation, in itself, is not negligence per se.

5. Invalid Statutes—invalid on a technicality

a. Violations of a technically invalid statue are still evidence of negligence per se.

6. For a Statute to Apply as a Standard of Care

a. The Injured Party must be within the Class of Persons the statute was intended to protect AND

b. Class of Risk/Harm (Type of injury) suffered must be the class/type the statue was intended to prevent

i. Wright (dog biting)

1. P was attacked and injured by a dog shortly after the dog was released early from quarantine for biting another person. Ct held that P was w/in the class of people the statute protected. (class of persons protected was “members of the community”) It was not clear that the P’s injury was within the class of harm as it was not clear that he was bitten or if he was harmed in some other way. (Class of Risk was being bitten by a dog and quarantining the dog to see of it had rabies).

ii. Heaver (Parking on wrong side of road)

1. D parked on the wrong side of the street to be able to talk out of her car window to a friend who was with a child. When she departed she ran over the child who somehow managed to get under her car. P’s argued that D was per se negligent because she had parked her car on the wrong side of the street. Court rejected the argument holding that the child was not in the class of persons protected—the protected class included only pedestrians and drivers who act in reliance upon the orderly flow of traffic.

a. This holding is based on an assumption that the accident would have happened even if the D had obeyed the statute—not necessarily a valid assumption.

b. The use of such assumptions gives the court a large degree of discretion in determining who is in the Class of Persons.

c. Exam Analysis

i. Is the statute violated?

ii. Does V fall w/in class of persons protected?

iii. Does the injury fall w/in the type of injury protected?

Breach of Duty

c. Risk must be foreseeable

i. Risk: probability of harm

1. D not required to foresee a risk that is so low as to be nonexistent, especially considering the alternatives.

a. Indiana Consolidated Insurance (Lawn mower)

i. D started lawn mower inside the garage and burned it down. Appellant argued 3 allegations of negligence on the Respondent’s part.

1. Filling the tank

2. Starting the Toro lawn mower in the garage

3. Failing to push to Toro out of the garage when it caught on fire.

The court held that the facts favored the Respondent and he acted in a reasonable mannerbecause:

1. He testified that he had filled the tank carefully; admitted that some split but it was small enough that it would have evaporated—More importantly this point cannot be brought up on appeal, it is a jury question and not reviewable on appeal.

2. Starting the mower inside the garage was reasonable—garages are designed and commonly used to start vehicles. It is not foreseeable that this mower would catch fire at this particular time—the risk was so low as to make ignoring it reasonable.

3. It is not reasonable to require a person to risk injury to save property. Therefore, the R was not required to push the burning Toro out of the garage.

ii. Exception: Obvious Risks—Some risks are so obvious that there mere existence is adequate warning and thus discharges the (’s duties.

a. Halek (Elevator pulley)

i. A mesh cage around D’s elevator pulley protected P-mechanic from getting caught. P attempted to retrieve a bolt w/o removing the cage. Ct held that some risks are so obvious that their mere existence discharges the landowner’s duty of care. Nonetheless, the trial judge finding of negligence was not “clearly erroneous”.

d. Did D act reasonably in light of the risk—risk/benefit anlysis--Nature of the Harm & Probability v. Cost of Alternatives

1. Cost of alternatives

a. Rule: If the nature of the harm is severe, then the probability does not have to be high to justify taking the precaution. If the probability get really high (i.e. a substantial certainty) then the tort becomes an intentional tort.

b. Factors

i. Low cost

ii. Available at the time

iii. Not inconvenient

c. Bernier (Light pole)

P was injured when a car knocked over a light pole constructed by D—combined negligence. Ct ruled that D was negligent b/c

i. They knew from experience that it was foreseeable risk that a car would hit and knock over a pole.

ii. There were low cost, not inconvenient precautions available to the D—could have strengthen the pole at a low cost—versus the known risk of a car hitting the pole and it falling over and injuring someone.

Cost of alternative design v. benefit of saving lives

d. HYPO: Gasoline drum--( sell gas drum to ( that explodes when the cap is opened. There was a highly improbable but foreseeable problem with the cap which caused the explosion. Since the Degree of Harm is so severe, the low risk is within the range of ( being negligent—greater the harm, the greater the amount of care required.

e. HYPO: Hammer 1--(, (’d employee is hammering a bolt; ( had not provided any safety goggles. The bolt breaks and hits ( in the eye resulting in loss of the eye. Rule: Nature of the Harm & Probability v. Cost of Alternative. Here, the harm is severe and the probability great versus the low cost, conveniently available precaution. Therefore (’s actions (not providing safety goggles) would be considered unreasonable and thus negligent.

f. HYPO: Hammer 2—Same facts but the ( already blind in one eye. Nature of the harm is more severe (he will be blind) but the Risk is lower as he has only one (instead of two) eye vulnerable. The Cost of Alternative is still low and would probably result in a finding of negligence.

2. Social Utility of Conduct

a. Parsons (Garbage truck and horse)

P was thrown from a horse when D’s garbage truck made a loud noise. Ct considered the high social value of D’s act (the vital public service of collecting garbage) favored in ruling that D was not negligent. “D not negligent merely because he uses a machine that produces noises necessary to its regular operation, even though fright of horses might be foreseeable.”

b. Giant Food (chasing shoplifter and knocking down cusomer)

c. P was knock down by shoplifter who was being chased by the D’s employee.

d. P argued that the D was negligent in pursuing the shoplifter because it was foreseeable that the shoplifter would run into the store’s customers. The court rejected the argument holding that the fact the injury was foreseeable does not by itself show negligence…Rather, the “degree of risk of harm to invitees must be weighed against the privilege” to protect one’s property. The court held the D was not negligent.

3. Carroll Towing Analysis--Hand Formula

a. If B < PL, then actions unreasonable—negligent

If B > PL, then actions reasonable—not negligent

i. where B=burden ($ cost of precautions/avoiding the accident, including the loss of social utility), P=probability (of harm), L= (extent of) injury

b. Expressed in dollar amts. If B < PL, then it is economically better for every to take the precaution.

c. In intentional torts, P will be very high and B will be very low (socially useless)

d. Rationale For:

i. Efficiency

1. Making the tort system reflect this

2. gives people an $ incentive to avoid the damage

e. Rationales Against:

i. can’t put a dollar amount on everything

ii. life is worth more than the dollar value

iii. usually don’t know the probability

iv. assumes that these factors are the only ones jurors look at

f. Workability

i. Cost of injury v, Cost of Alternative (here we may lose some social utility)

ii. We don’t just apply the formula

1. no statistical data

2. hard to calculate social utility

but it is still a valuable insight into the problem—factors that go into determining reasonableness.

iii. What the jury evaluates

1. Negligence when the ( took action (foreseeability), not at the time the harm occurred.

2. i.e. What could have ( known at the time of decision , not what he knew after the injury.

iv. Formula will work for Intentional Torts but the Probability (P) must be extremely high (i.e. a substantial certainty) and the Burden (B) must almost always be less.

g. Alternatives to Risk-Utility Balancing (Hand Formula)

i. Intuition

ii. Statutory prescription

iii. Judges

iv. Custom—could argue that this is what we have now. Most people act reasonably and custom is what most people so; Custom=Reasonable

v. Moral Rule; do unto others and you would so unto yourself.

h. Reasonableness Factors

i. Probability of Harm AND

ii. Nature of Harm

VERSUS

iii. Cost of Alternative, including the loss of social utility

i. Carroll Towing (Bargee)

i. P was negligent for the lack of a bargee constantly on board; because the burden of keeping a bargee on the barge was less than the probability and severity of injury in a crowded wartime harbor.

e. Assessing Responsibility when more than One Person is Negligent.

i. Joint and Several Liability

1. Each ( liable for the full amount

2. favors (--making the ( whole is the goal--( bears the risk when one ( cannot pay their share of damages.

3. each ( could pay more than their % of fault

ii. Several Liability: Comparative Fault

1. ( only liable for their own portion of fault.

2. ( bears the risk when one or more (s cannot pay their share.

iii. Contribution

1. (1 paid all the judgment.

2. (1 can demand from (2 for their share of damages.

3. Note: at C.L. we had pro rata contributions (each ( pays an equal share).

4. This system works well until we introduce (’s % of fault—settlement issues.

f. Proof of Negligence

i. Standard of Proof is by the Preponderance of the Evidence.

1. Gift v. Palmer—(( hits child but no witnesses)

a. ( hit a child but did not notice it until he looked in the rearview mirror. There were no witnesses. The diver was not sure of his speed, other obstructions or other circumstances. It was a bright clear day, the street was broad, and there were no cars parked on the side of the street that the child came from. Not enough evidence to prove by the preponderance of the evidence that the ( was negligent.

2. Upchurch v. Rotenberry—Car swerves off road and hits a tree)

a. Rule: Where there is conflicting testimony, the jury can choose which to believe and as long as there is sufficient evidence for that position, the appeals court will uphold the judgment.

b. ( swerved off the road and hit a tree killing her passenger.

i. (’s case—

1. Some evidence of alcohol use by the ( prior to the accident.

2. evidence of hitting the tree at a high rate of speed—42 to 60 mph.

3. no skid marks

4. The tree was a 160 ft away from the road.

ii. (’s case—

1. Testimony at the time form ( stated that she swerved to avoid an animal

2. reasonable reaction to the circumstances—emergency doctrine.

iii. Court upholds the lower courts (jury) decision for the (.

1. Can only deal with the facts in the record (on appeal).

2. Therefore cannot infer facts (on appeal).

c. Forsyth v. Joseph—(truck hits car at high speed)

i. Appellant’s truck hit the Respondent’s car, after skidding 129 feet. The speed at impact was 55 mph (which was the speed limit) and the R’s car was knocked 20 to 25 feet through a fence and spun 90degrees. The court held on this evidence that the Appellant was negligent partly because of excessive speed.

d. HYPO: A dark and stormy night and the utility box

i. ( walking down an alley on a dark and stormy night. Runs into a utility box that is mounted 70” from the ground that measured 20”x10.5”.

1. Issue: Was it reasonable for the utility company to place the box in the alley at that height?

2. Court held here that the utility company was unreasonable and held them liable—a close call

3. Process—enough proven by the ( for the Jury to find for the (.

ii. Expert Witnesses

1. If the appropriate standard of care is within the realm of common knowledge and everyday experience, then the plaintiff need not introduce Expert testimony to establish the right amount of care.

a. Shannon (thumb in slide)

i. P-Child got his thumb caught on a slide rail and ripped it out of her hand as she slid down the slide—the slide rails had open ends. No expert testimony necessary b/c the appropriate care was w/in the realm of common knowledge.

b. Hammons v. Poletis (towel bar and the crumbling wall)

i. P took hold of the towel bar in the bath in the (’s motel. It pulled out of the wall and he fell suffering a back injury. Parts of the wall came out with the towel bar revealing the wall to be moldy and putty like. Jury found for the (. The appeals court upheld stating that the jury could reasonably infer, “based on common knowledge and ordinary human experience, that the moisture had to have accumulated behind the tiles for more than a short time for the wall to assume that appearance.” NO expert testimony was required. The jury could have further inferred from the facts that ( would have found and repaired the situation if he had been exercising reasonable care.

iii. Trial Procedures

1. Standard of Proof—Preponderance of the Evidence=Greater Probability (more than 50%)

2. Burden of the Prima Facie Case

a. On the (

b. By a preponderance of the evidence

3. Decider of Facts—the Jury

a. Jury’s function is to evaluate testimony and decide what to accept—i.e. the Jury has to evaluate conduct.

4. Equipoise—when the Jury is split 50% to 50%--therefore the ( wins.

5. Procedural devices for raising issues of proof: i.e. when there is not enough evidence to prove negligence.

a. Nonsuits--( can move (sometimes called a demurrer)

b. Summary Judgments and Directed verdicts.

c. 5 types of evidence

i. Direct evidence

ii. Circumstantial Evidence; infer fact B from fact A

1. The jury’s function is to accept or reject the inference by evaluating the evidence and conduct—the credibility of the evidence.

iv. Inferences and Credibility

1. Slip and Fall Cases: The Banana Peel

a. What can be inferred from the facts.

i. New banana peel

ii. Old, grungy and black banana peel—says it should have been cleaned up by owner/(.

1. ( dropped and was aware –left it there—created the dangerous situation.

2. ( aware of the problem but took no action—actually aware.

3. ( didn’t know but should have known about the situation—constructive notice.

2. Rule: In slip and fall cases the ( must show that that the ( either

a. Created the dangerous situation or

b. Had actual or

c. constructive notice of a dangerous condition.

i. Should have known

ii. The risks so high that the ( should have taken preventative measures

iii. HYPO: Bean at the Market--( slips on a bean at the market. ( states that the area was mopped 2 minutes before the fall.

1. Does this case go to the jury?

a. (’s mopping could have missed the bean

2. How long was the bean on the floor?

a. No evidence.

3. Therefore the case doesn’t go to the jury.

4. In these circumstances, I fit happens all the time, the ( is on constructive notice.

a. High risk/probability of accident

b. Therefore the ( should prevented it by placing a mat/rug, etc.

i. Loss of social utility—harder to shop

ii. Also additional risk of someone tripping over the mat.

3. Actual and Constructive Knowledge

a. Thoma v. Cracker Barrel (Puddle on the floor)

i. ( slipped and fell on a puddle in (’s restaurant. The water spot was in a high traffic area. Only employees carried drinks in this area. Witnesses in the area and employees in the area did not either see or hear anyone drop drinks in the area. ( claimed the puddle was large; 1’x2’. The potential implausibility of the (’s claim caused the Trial court granted summary judgment for the (. Despite the conflicting testimony, the appellate court reversed holding that is was for a jury to determine which facts to believe.

ii. Principal evidence that ( was on constructive notice.

1. Spill was in an areas where employees would frequently go in and out—should have noticed.

2. In an area where things could be spilt; place prone to spills—should have looked more often.

iii. Small details are Important

1. Manager testified he saw no spill.

a. Should not be treated as dispositive.

b. A question for the jury to decide.

2. Does the size of the spill allow you to infer that it should have been noticed—depends on where the spill was.

v. Custom

1. Custom is evidence of negligence but is not conclusive. If custom goes to the action/inaction alleged to be negligent, that evidence is admissible.

a. Can be submitted by either ( or (.

b. Can be accepted or rejected by the jury.

c. Duncan (Treated wood)

i. Custom to use treated wood for exterior steps but not required by code. ( was injured when the stair collapsed. The custom was admissible b/c it is establishes an accepted practice in the industry and could establish a standard by which ordinary care may be judged even when it exceed statutory/regulatory safety standards.

1. Custom assumes what people generally do is reasonable.

d. COMPARE: The T.J. Hooper (Tugs)

i. Ct’s held that the alleged custom of not having radio’s on tugs was not a general custom at all. The court further held that “there are precautions so imperative that even their universal disregard will not excuse their omission”--reasonable prudence is not always common practice.

2. Only admissible when custom established for safety reasons—Rope case???

vi. Safety Manuals

1. Safety Manuals are not the absolute measure of due care—not an automatic breach—but can be used as evidence of negligence—but not conclusive,

a. Generally stronger than custom because created for safety purposes.

b. Traditionally: not admissible b/c of hearsay.

c. Modern: admissible as evidence of negligence but not conclusive.

i. McComish (Paper-making machine)

1. ( was killed in the construction of a large (two block long and two storied high) paper machine when an “A” sling assembly collapsed and fell on him. The engineer testified that the “A” sling was not properly constructed, testimony partially based on safety manuals and codes. The State Supreme court overruled the appellate court (which held that the manuals were inadmissible as hearsay) holding that the standard of care was the RPP. The safety manuals are not a standard of care, merely evidence of the measure of care.

g. Res Ispa Loquitur—“The thing speaks for itself.”

i. Elements--Rule

1. An accident that does not normally (more likely than not) occur in the absence of negligence.

a. Not applicable when actual negligence could be determined

i. Cts will not accept Res Ipsa when P had the ability to find out the actual cause of the accident.

1. Warren (Kids in car)

a. Kids got in D’s car and the car rolled over P. Res Ipsa could not be used b/c P could have had the car checked out after the accident to determine the actual cause of the accident.

b. Applicable even when Alternative Explanations are available

i. P is not barred from invoking Res Ipsa when P offers alternative evidence to prove negligence. Res Ipsa is only barred when the alternative evidence gives a complete explanation, not just one of several possible explanation

1. Widmyer (Airplane crash)

a. P and D offered expert testimony to explain the cause of the airplane crash, but the court did not consider this to be a complete factual account. This did not preclude P from using Res Ipsa since it can also be assumed that in the present state of air technology, an airplane crash does not normally occur in the absence of negligence. Jury could reasonably conclude that the ( did not contribute to the negligence—passengers were not pilots and had an interest in their own safety.

2. The instrumentality of action was in the exclusive control of D

a. Relaxing of the exclusive control element--Modern version of the control rule: strict exclusive control is not necessary—only that it is more likely than not.

i. Giles (Elevator Operator)

1. P-elevator operator was operating the elevator when a chain malfunctioned. D who had been hired to service the elevator was obviously not in exclusive control of the instrument but D’s control was more like than not and therefore sufficient to warrant an inference that D was more likely responsible for the incident than anyone else.

3. P did not contribute to the accident

a. At C.L. contributory negligence by the ( was a complete defense for the (--precluded any claim by the (.

ii. Evidentiary Effect of Res Ipsa

1. Res Ipsa is a form of circumstantial evidence and it gives rise to an inference.

a. The jury can draw that inference but is not required to.

2. Presumption that ( was negligent.

a. Presumption of negligence is rebuttable by the (.

b. If there is no rebut on the presumption of negligence, then the jury must find for the (.

c. If the ( rebuts by a preponderance of evidence ,then the jury can draw the inference or not.

3. Presumption’s effect on the Burden of Proof.

a. Rule: Res Ipsa will get a case to the jury despite a lack of direct evidence to support the (’s claim of (’s negligence.

4. Classic Case: Byrne (Barrel falls on the passerby)

a. ( was walking along the road—doesn’t remember after that. Witnesses state that a flour barrel fell and hit him on the head knocking him out. The (’s shop is adjacent to where the accident occurred and has an upper story warehouse where flour barrels are stored. No direct evidence but the barrel falling speak for itself—it was likely that there was negligence—res ipsa loquitur. The Exchequer court reversed the lower court’s dismissal for not providing any direct evidence and found for the (.

5. Can you use Res Ipsa?

a. HYPO: Bug in the Coke Bottle: she opens up Coke and finds a bug.

i. Yes—fulfills the 3 elements of the test.

b. HYPO: Bottle of Coke explodes.

i. No—out of control of manufacturer

ii. Unless ( can prove that the bottle was handled properly after leaving the manufacturer’s control (standard of proof less).

c. HYPO:A and B collide and headlight shatters and hits (.

i. No—2 (s and no control over negligent act.

d. HYPO: Farmer and wife go to livestock auction in a 2-story building. Wife waits downstairs chatting. A 600 lbs steer falls through the ceiling and hits her.

i. Yes; does not normally occur in the absence of negligence.

e. HYPO: Fertilizer Plant explodes.

i. Yes

f. HYPO: Human Toe in chewing tobacco.

i. Yes

g. HYPO: Woman goes in for oral surgery and wakes up with a broken finger.

i. Yes—386 NYS 218

h. Professional Standard

i. RULE: Under the circumstances, D must adhere to the customary practice in the community, i.e. customary medical practice.

1. Custom is the professional standard, while custom in non-medical cases is only evidence of negligence.

2. Replaces the RPP

3. Established by expert witness testimony, not by the jury.

a. Conflicting experts becomes a jury question

4. Parameters of the standard:

a. Schools of Medical Thought

b. Specialists

ii. Proof Needed to Determine the Professional Standard.

1. Need Expert Testimony to establish the Customary Practice of Medical Care.

a. Walski v. Tiesenga

i. D’s expert witness only testified to what he would have done under the circumstances, not the customary practice in the field; thus, the expert testimony was not sufficient to establish that the doctor violated the professional standard of care—that he was negligent.

2. Exceptions:

a. Common Knowledge

b. Hospitals are not held to medical standards

3. Treatises by themselves are not sufficient b/c it does not relate to the exact circumstances and does not prove causation.

a. Smith v. Knowles

i. P did not provide expert testimony. It only cross-examined D and referred to treatises, which were minimally sufficient to establish the requisite standard of care. They did not demonstrate that the ( departed from this standard and there was no testimony to that effect. Also, no expert testimony to the causation elements of the (’s claims.

iii. Locality Rule

1. Strict Locality Rule

a. Customary standard of medical care in the Community

i. Problem of proof.

1. In a rural community few number of expert witnesses.

2. They may all know each other and may not be willing to testify against each other—conspiracy issues.

2. Modified Locality Rule

a. Customary standard of medical care in a Similar/comparable Community.

i. Avoids the issues of finding expert witnesses in rural areas.

ii. Vergara v. Doan

1. Malpractice during delivery. No such thing as customary medical practice in this area. Ct applies the Modified Locality Rule. Court upholds lower court ruling for the (. The jury disagreed with the (’s expert testimony concerning the customary medical practice.

a. Court cites factors—vague and unclear standard

i. Locality—only one of the factors

ii. Availability of facilities

iii. Doctor specialist or generalist

iv. Advances in the profession

3. New Modern Rule

a. Degree of care, skill, and proficiency exercised by reasonably careful, skillful, and prudent practitioners in the same class to which he belongs, acting under the same or similar circumstances.

b. Rationale:

i. The differences in skill and equipment b/t urban cities and rural areas are no longer so large.

iv. Specialists

a. Locality rule does not apply.

b. Nationwide standard--Community of specialists

i. Do not need a specialist in the field to testify, just someone who has knowledge of the customary practice in the circumstances and can testify to the standard.

v. Good Samaritan Statutes

1. Usually a very broad statute that varies by state and it covers any licensed individuals who are acting in good faith.

a. Hirpa (Dr. helped P in hospital)

i. D-doctor went to the aid of P whom he had no duty to treat. Ct held that the Good Samaritan statute applies even though the treatment took place inside a hospital as long as D had no pre-existing duty to act and it was during an emergency. If there was a pre-existing duty then there is a duty under doctor-patient relationship, contractual duty, hospital rules and other factors.

vi. Res Ipsa Loquitur in Medical Cases

1. Elements

a. Some event that does not ordinary occur unless there is negligence

b. The instrument was in the exclusive control of D

c. P did not contribute to the accident

d. Not applicable in the majority of medical cases.

2. Difficulty of Proof

a. Need expertise--expert witness

i. Establish standard of care and its violation.

1. The specific customary practice in the instance.

2. Testimony that the ( violated the standard.

ii. Establish Foundation for Res Ipsa.

1. to establish that the injury does not occur does occur in the absence of negligence.

a. Kelly (Enema)--( suffered a anal hematoma after an enema was applied. ( argued that such an injury was within the common knowledge of a layman that it does not occur in the absence of negligence. Court rejected the argument, holding that in a patient where the injury can be attributed to a pre-existing condition (here a history of hemorrhoids) expert testimony is need to establish the elements for Res Ipsa.

iii. Establish Foundation for common knowledge exception.

1. Salathiel v. State--( has a tube inserted into his nose for a bile study program—it ended up making a hole in his cibriform, discharging cerebrospinal fluid--(’s olfactory nerve had to be severed during surgery to correct the situation. Expert testimony was required to allow the ordinary laymen to reach a conclusion on his common knowledge.

a. Here, that the injury was remote from the site of the tube insertion and

b. that the injury is not normally a risk of such a procedure and

c. that the procedure can inflict such an injury.

d. Like operating on the wrong leg.

b. Exception: Common Knowledge, ie. Operates on the wrong foot.

3. Extending RIL --Multiple (s

a. RULE: Where a ( receives unusual injuries while unconscious and in the course of medical treatment, all the defendants who had any control over his body or the instrumentalities which might have caused the injuries may be properly called upon to meet the inference of negligence by giving an explanation of their conduct.—can use Res Ipsa. If P was under the control of multiple Ds, then all D’s are presumed to be negligent unless proven otherwise even though P cannot prove by a preponderance that any one ( had exclusive control of the instrumentality.

i. Ybarra (unconscious operation)

1. D’s back injured during an appendectomy--operation. Ct allowed P to use RIL to charge all members of the team even though she did not know which of the operating and care team had exclusive control of the instrument. Trial court allowed Res Ipsa and held against all the (s. (court of Appeals reversed) State Supreme reversed Appellate court and upheld the trial court’s decision.

b. Rationales

i. Forces D to talk

ii. Ds were responsible anyways since P was under their total control

c. Strictly limited to this fact situation.

i. ( under the care of a group who were responsible.

ii. ( unconscious therefore cannot prove what actually happened.

vii. Informed Consent

1. Battery Theory

a. Schloendorff—a surgeon that performs an operation without his patient’s consent commits an assault, for which he is liable in damages

i. Patient must be of sound mind and an adult.

b. Rationale—Bodily Integrity

2. Negligence Theory

a. Rule: A physician must disclose all significant medical information that the physician possesses or reasonable should possess that is material to an intelligent decision by the patient whether to undergo a proposed procedure.

i. Information a physician should reasonably possess is that information possessed by the average qualified physician or by the qualified physician practicing that specialty.

1. Information to be conveyed

a. More than just the risk of the procedure.

b. Also alternatives and corresponding risks.

i. This must included more dangerous alternatives.

c. Also risk if no procedure

i. Truman v. Thomas-- D ((’s Dr. for over 6 years) repeated advised P to get a pap smear but D refused. D did not inform the P of the purpose or the risks of not having one. D died of cervical cancer. Ct held if P refused the procedure D had duty to inform her of the material risks a reasonable person would want to know of refusing the procedure.

d. No duty to convey statistical life expectancy information.

i. Arato v. Avedon—Patient diagnosed with cancer—surgery ineffective. Cancer terminal in a short time—statistically. P asked Dr. for the truth but the Dr. referred P to some experimental treatments that had some record of success. P died without having his finances in order resulting in tax and business losses. Court held that the ( had no duty to disclose statistical life expectancy information because it did not concern risks of the procedures.

ii. Not really an informed consent case—general medical customary practices

iii. Case is about financial arrangements not taken.

ii. What information a physician should reasonable possess is determined by expert witness testimony.

iii. Materiality is the significance that a reasonable person would attach to the discloses risk or risks in deciding whether to submit or not to surgery or treatment.

b. Harnish--( underwent an operation to remove a tumor in her neck and her hypoglossal nerve was severed resulting in total tongue loss. ( claimed that the physician and hospital failed to inform her of the risk of loss of tongue function and since the purpose of the operation was cosmetic, she would have not gone forward with it if she had bee properly informed of this risk. Trial court dismissed in favor of (s but the State Supreme court reversed (as to the physician and the hospital) using the Negligence Theory of Informed Consent.

3. Proof of the Elements in Harnish

a. Court uses a 2 part causation tests

i. That a ( would have not one forward with the operation if she had known the risks AND

ii. That a Reasonable Person would not have gone forward with the operation either.

1. People with idiosyncrasies do not recover under this test.

2. Contrary to the policy of bodily autonomy.

4. Application of Informed Consent Standards

a. Professional Standard

i. Customary practice in the medical field + Objective causation test

ii. Wolley v. Henderson--( was injured in a back operation when the ( got the wrong interspace between the vertebrae and tore the encasing spinal tissue—a normal risk in the procedure. ( claimed he was not informed of the risk. Trial court instructed jury that ( was entitled to disclosure of risks that a reasonable medical practitioner would make. Jury found for (. Appellate court upheld citing three factors.

1. Professional standard must be used in a medical malpractice case.

2. There might be Therapeutic reasons for withholding information from the patient

3. Producing this evidence puts very little burden on the ( as he must produce other medical testimony on other issues.

Also the court held that the ( must prove causation by the objective test—a reasonable person would have refused the procedure if fully informed.

b. Patient Standard

i. Harnish Rule + Subjective and Objective causation test.

1. Material Information and Alternatives

2. Subjective Test: P would have refused the procedure if fully informed.

3. Objective Test: A Reasonable Person would have refused the procedure if fully informed.

5. Exceptions to Informed Consent

a. Patient had procedure before--knows the risks

i. EXAMPLE: 6th tummy tuck

b. Therapeutic privilege

i. The Physician is not required to disclose if he knows that the disclosure would by harmful to the patient.

ii. Rarely used

1. What if the Dr. is wrong?

iii. Only applies where the information would result in harming the patient.

c. Emergencies

Brown v. Dibbell (p. 365)—comparative fault and informed consent???

Medical Injury Compensation Reform Act of 1975???

i. Exam analysis

i. P’s case is almost always focusing on alternative conduct available to D.

ii. See if alternative conducts exists, and its cost.

iii. Weight the cost against the benefits.

j. Exam analysis on proof of negligence

i. Find what the relevant facts are

ii. Draw inferences from the facts

iii. Determine based on the facts if D acted reasonably

II. Actual Cause and Harm

a. Harm--General Rule: There must be injury and the negligent act must be the cause of the injury.

i. The question of cause is a question of fact for the jury.

ii. The need for proof of the Harm.

1. Copeland--( with a history of neck and back injuries and physical problems is involved in a car accident. He claims that the accident caused neck and back injuries. Jury held for the ( and the Appellate court held that there was sufficient evidence to support the jury’s decision.

a. No evidence of injury from the accident,

b. Therefore no causation or damages.

b. “But For” Test

i. Rule: But for the (’s negligent action, the ( would not have been injured.

1. Salinetro (X-Rays)

a. The (, unbeknownst to her was 4 weeks pregnant. She was involved in an auto accident and had an X-ray. The ( did not ask her if she was pregnant and took the X-ray. Later, the ( suspected she was pregnant-this was confirmed by her doctor. The Dr. advised terminating the pregnancy since the fetus had been exposed to X-rays. She sued the Radiologist for negligence. The court held, even if assuming that the ( had breached the customary standard of medical care, there was no actual cause. But for the ( not asking if the ( was pregnant, the ( would have not been injured. Since the ( did not know she was pregnant, she would have answered no and the X-ray would have been taken anyway with the same result.

2. Jordan (Doesn’t look into the rearview mirror and backs into crouching husband)

a. ( gets into here car and back out of the driveway without looking her rearview mirror. Her husband was squatting behind the car at the rear bumper and ( backed onto her. No liability, because of no actual cause—but for the ( not looking in the mirror, the ( would have not been injured—if ( had looked in the mirror, she still would not have seen him and the same injury would have resulted.

ii. Problems with “But For” Test: 2 or more defendants.

1. Indivisible Damages

a. Rule: We will treat an injury by multiple parties as indivisible where fault cannot be apportioned with reasonable certainty.

i. Both (s held to have caused the whole and single injury.

ii. Landers (contaminated lake)

iii. The fishes in P’s lake all died when saltwater and oil flowed into the lake from 2 different Ds. Ct ruled the damages were indivisible so both liable for the full amt.

b. HYPO: Flying tire—Auto accident and tire flies off and hits the (. Only one indivisible injury.

c. HYPO: Dead dear—A hits deer; leaves it in the road. B hits the deer and hits (. One indivisible injury.

d. HYPO: P gets hit by 2 different Ds consecutively—Employee knocks down (. ( cannot move arms or legs. Police come and pick up the ( and throw him in the paddy wagon—he hits his head. Court held indivisible injury—but enough evidence here to apportion fault—only need credible evidence.

2. Rationale.

a. Either D would have caused the full damage

b. But we could not prove under “but for” test and neither would be liable

c. Therefore we hold the injury as indivisible and hold both/all (s liable.

d. At C.L. this would be considered joint and several liability.

c. Substantial Factor Test

i. Rule: Was the D’s negligence a substantial factor in causing P’s injury?

ii. Anderson (twin fires merge and burn down his home)

1. ( property burned when afire caused by (’s train merged with other fires of unknown origin. The court held the (’s fire was a substantial factor in causing the injury to the ( and held the ( liable even if the other party could not be ascertained.

2. Classic indivisible injury

iii. Majority Rule is But For and use the Substantial Factor test when needed.???

iv. CA: Substantial Factor Test Only???

d. Proof: What was caused:

i. Pre-existing state of ( at time of (’s negligent act.

1. Rule: Look at the ( at the time (’s negligence causes injury—state of the ( at that time is a baseline for injury.

a. Actual cause is based on a premise.

b. The negligent act affects the baseline of damages and causation,

i. Must articulate the precise negligent act to determine breach and therefore negligence.

2. Dillon—(Boy on the Bridge get electrocuted)

a. Boy climbs the girders on a bridge. He looses his balance and grabs a hold of an uninsulated electrical wire as he falls. He is electrocuted and killed as he falls. The court held the fact the he was falling to his death or serious injury bore on the issues of liability and damages.

i. The issue is what did the (’s negligence cause? (having uninsulated wires)

1. Would the ( have died anyway? Would the ( have been injured anyway?

2. Here the ( would have either died or been gravely injured despite the (’s negligence.

3. If ( had lived but been maimed, the ( would have been liable for the difference between a maimed life and death.

4. If the ( would have died anyway, the ( would have been liable only for the few seconds more that the ( would have lived if he had not been electrocuted.

ii. Alternative Liability (Shifting the Burden)

1. When 2 or more parties are negligent and cause a single injury but their probability of causing the injury is the same, then the ct will hold all of them to be liable and shift the burden of causation (by a preponderance) to each D to prove that he was not the cause of the injury.

2. The higher the number of Ds, the less likely cts will use alternative liability.

3. Summers (Hunting)

a. 2 Ds fired shots at a quail but one of the shots injured P’s eye. Ct found both Ds were negligent so held both liable, and each D had the burden to exonerate himself.

e. Market Share

i. Applies only to fungible products

ii. Each D will be held liable in proportion to its market share.

iii. In the long run, each D will be liable for his proportion of damage—no worse off than if we could figure out who each sold to.

iv. NOT a concept of J & S liability—it is several liability

1. Too many (s to try to apply Alternative Liability.

2. Different than Ybarra in that all (s are in breach

v. Eli Lilly

1. Several manufacturers sold a drug (DES) that years later caused cancer in the female children of the mothers who took it. ( cannot prove which manufacturer she bought the drug from. Causation problem b/c impossible to link each P with a D so ct applied the market share theory.

vi. Problems with Market Share Theory

1. Orphan Shares: Companies no longer in existence?

a. Leave their share out OR

b. Others pay more

2. Disproving Causation

3. How to Define Market: Local/National? Usually National

f. Lost Chance

i. This is a recovery for the loss of the chance of recovery, not wrongful death. The harm (damages) is the loss of chance of recovery, not loss of life.

1. “but for” D’s negligence, P would have had X% ( ................
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