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Intent - elements

Intent must be tied to the substantive element of the tort (e.g. offensive contact) To satisfy the element, must o Desire (or purpose) o Knowledge to substantial certainty o Transferred Intent Transferred intent Transferred intent person to person Transferred intent tort to tort o Clearly transfers between battery, assault and false imprisonment o In theory, also extends to trespass, trespass to chattels, but no modern case law to support o Probably transfers from personal torts to property torts, but not vice versa Special cases of intent Children generally can have intent, but at some point they are too young (subjective) Metal difficulties generally not an excuse, but delusions of certain types would undermine intent. E.g.: o Hearing voices, but know contact is offensive o Having subjective belief of no offense Battery Elements (EXAM: Every time theres battery, go to negligence and/or trespass to chattels also) Volitional act Offensive (objective test) or harmful contact Includes anything connected to P ie clothing, purse, car if in it Thin skull rule P doesnt have to be aware of contact ie unconscious during surgery Intent o Desire o Knowledge to a substantial certainty o Transferred intent (from other notes)
1. intent: purpose/desire or knowledge/belief to a substantial certainty a. Intend contact or intend harm/offense? UNRESOLVED - if harmful: intending contact is enough, responsible for harm - if offensive: objective standard offensive to reasonable person - unless actor knows of hypersensitivity = FORESEEABILITY b. no intent if conditional: c. no intent if not imminent: d. transferable: have to intend to hit SOMEone, not particular person

2. harmful or offensive contact w/ person or third person a. harmful or offensive: objective, reasonable person standard b. P does not have to be aware of contact unconscious during surgery c. contact: physical proximity, connection to person

Assault Elements Volitional act Immediate apprehension of offensive contact (can use reasonable apprehension, objective (majority) or subjective (min) test) Accidental creation of apprehension not assault (fear not required) Words alone usually dont create apprehension (unless coupled with overt act) Intent o Desire (or purposeful) o Knowledge to a substantial certainty o Transferred intent

ASSAULT = imminent apprehension of contact

a. ACT: no assault if D was entitled to make threat (get out or Ill throw you out); words enough if D not entitled to make threat b. Intent: no assault if conditional or future threat; must be immediate c. Apprehension: must be reasonable AT THE TIME (not from hindsight)

False Imprisonment
Volitional act or omission

Physical restriction of movement (force, coercion, awareness, immediate threat of force) Intent o Desire o Knowledge to substantial certainty o Transferred intent Insufficient forms of FI: Future threats Moral pressure/attempt to clear ones name Economic coercion Arrest pursuant to lawful procedures Notes Victim should be unaware of reasonable means to escape No minimus time required, but damages usually based on length Types of lawful restraints: shoplifters, contractual obligations (pilot), child discipline
Statute - merchants presumed to have reasonable grounds if detainee is found to have unpaid for goods


A. Prima Facie Case 1. volitional act 2. Intent 3. causation 4. confinement due to physical barrier, overpowering physical force, threats, duress, legal authority B. detailed considerations 1. confinement a. Size of prison (kept out of house?) b. Does P have to be aware of confinement? - Yes, KNOWLEDGE of confinement = confinement - No, if confinement => harm Baby detained until parents pay bill, if baby harmed by separation confinement CA statute: detention of patients for non-payment of bills criminal misdemeanor & civil cause of action c. actual vs. believed confinement given FACTS - reasonable person standard - Lopez: no confinement b/c of CONSENT moral pressure is not force - Was threat (in absence of physical barrier) believable? - Was D entitled to make threat?

Intentional Infliction of Emotional Distress

Extreme & outrageous conduct. Factors o Power relationship o Repetition o Knowledge of sensitivity o Continuous action: keeps doing same non-outrageous thing while knowing of its annoyance Severe emotional distress Intent o Desire o KSC o Recklessness (NO transferred intent)

IIED 3d Party Recovery Uncertainty in the law seems to depend on relationship to victim, presence at scene, severity of harm and outrageousness of conduct RS approach o Immediate family member at the scene o Non-family member who is harmed No transferred intent Special Circumstances: D knows P is especially vulnerable (child, ill patient, hypersensitive) Ds position of power can increase Ps vulnerability

severity of ED evaluated based on outrageousness of conduct; mere rudeness/cruel offensiveness insufficent

Conversion (Only very serious harm to the property or other serious interference with the right of control constitutes conversion. Damage or interference which is less serious may still constitute trespass to chattel.) Right to the property Exercise substantial dominion Intent o Desire o KSC o Transferred Good faith not a defense (If you mean to exercise dominion over someones or your own property and accidentally throw it away, doesnt matter. Trespass to Chattels (Mackey v. Goslee..conversion too) Right to the property Substantial interference with property (dispossess, impair, deprive, harm) Intent (tied w/Substantial interference) o Desire o KSC o Transferred Good faith is not a defense; if you mean to exercise dominion over someones or your property and accidentally throw it away, doesnt matter its still TTC) Trespass to chattel is the intentional interference with the right of possession of personal property. The defendant's acts must intentionally damage the chattel, deprive the possessor of its use for a substantial period of time, or totally dispossess the chattel from the victim. [See Restatement 217, 218.] Trepass to Real Property Plaintiff has right to the property Defendant enters or remains on the land Intent o Desire o KSC o Transferred Good faith is not a defense Trespass to land 1. intentional 2. physical invasion (by an object controlled by df)

Doesnt include odors, loud noises, etc. 3. of pls land includes airspace & dirt/minerals to a reasonable distance 4. that causes damage cld be nominal

Consent Public policy disallows some consents'

A willingness in fact that an act or invasion take place Types of Consent o Express: -Agree -Scope -Capacity (minors/mental capacity.should parents be able to consent? o Implied Conduct and circumstance like continuing activity/agreeing with gestures/actions Ex. Getting in car w/drunk driverconsent o Substituted Parents consent for kids, guardian/legal rep. Limitations on Consent Disfavored, so narrowly construed Revocable Crimes Children Public policy Consent examples I love you, but I dont know if I want to Written evidence that 14 year old consented to sexual intercourse Written consent for exhibition fight 1 on 5 to the death Consent to having someone hit his occupied vehicle going 35 mph

Self Defense
Immediate, Apparent Necessity Reasonable Force Defense of Another is same as 1st two bullet points. Note on Retreat (must be very safe retreat) o Generally, not required o Minority exception: required unless serious harm o Exception to exception: victims dwelling Self Defense Examples Attack in an alley by a teen holding a pocket knife. Held up by a drug addict with a realistic-looking toy gun

Punch in the face, respond by shooting Defense of others Immediate, Apparent Necessity Note on Perspective o Third party perspective o Victims perspective - except when victims being arrested Reasonable Force Defense/Recover of Property Reasonable Force Note on Force o Property v. people o Exception for dwelling Immediate, Actual Necessity not the same as apparent necessity. Ex. If someone robs store w/toy gun and you think its real, not actual necessity, just apparent Note on Shopkeepers some jurisdictions allow reasonable necessity (people stealing) Necessity Principle: can interfere with property rights of another to protect something of equal or higher value Public v. private o Public does not require compensation o Private does archaic defense. Thomas disfavors this defense b/c in reality, doesnt really occur (might show up on bar exam)
a. Reasonable belief: does not have to be correct - Doctrine of transferred intent: Morris v. Platt - Shoots in self-defense, hits bystander: privileged intent => no liability b. Reasonable force under the circumstances - force must be proportional to threat: cannot use deadly force to repel non-deadly attack (police dogs privileged to apprehend fleeing criminal) - CURRENT circumstances: cannot use preemptive force

Introduction to Negligence
Heart of Modern Tort Law Objective standard to address fault principle Lower culpability on fault scale so damages are required Reasonable person is a key concept

Elements of Negligence Duty to act as a reasonable person under the circumstances (exam tip apply reasonable person theory to applicable fact circumstances Neg per se (alt theory in place of breach/duty) Breach of Duty o Act o Unreasonable Risk o Res Ipsa (alt theory in place of breach Causation o Cause in Fact o Proximate or Legal Cause Damages (usually physical) DUTY: A legally recognizable relationship bw parties (restricted to those w/in foreseeable zone of danger) What Circumstances Count? Physical conditions Emergency circumstances (unless d created emergency) Professional Skills real estate, insurance professional Circumstances that Dont Count Mental conditions Superior but common skills Children Under 5, generally cannot be negligent 5 and over: a child of similar age, experience and intelligence Exceptions Adult Activities Dangerous Activities So is sexual activity dangerous or adult or either? DUTIES, generally: Couch potato, no liability for doing nothing Nonfeasance makes Ps situation no worse, just failed to benefit him by interfering. Those who choose to engage in activities that create a risk of injury to others, do have a duty to exercise care to avoid injuring others. Creating new risk by activities which may cause injury gives rise to a duty ie letting loose dangerous

forces: reroofing garage and drops hammer, driving negligently and hits P, baking w/spoiled ingred and causing food poisoning. However, For policy reasons, cts have made exceptions to both couch potato and dangerous circumstances

Affirmative Duty Overview Duty is an issue of law for the judge Commencing act that puts P is worse position/Voluntary acts that put P in worse position (duty to continue aid) Maybe duty if danger of harm has been increased by partial performance to help Maybe duty if P has forgone other opportunities in reliance on Ds performance Damages usually restricted to those that are the proximate cause of Ds actionable negligence Role of foreseeability Three types o Duty to rescue o Duty to protect o Duty to control Policy Overview Generally, no affirmative duties What is the difference between affirmative duties and regular duties? Why doesnt the law impose affirmative duties? Duty to Rescue/Aid No general duty to rescue at common law Exceptions o Creation of peril o Special relationship Business/customer; employer/employee, parent/child; captain/passenger, teacher/student, doctor/patient, invitees, licensees (probably) Not fellow travelers, roommates etc o Botched aid Options to encourage Aid: good Samaritan statutes (limits liability for good Samaritans; limited to medical professionals, bad faith actors even recklessness. Theres still liability for gross negligence though) Duty to Rescue Examples Swimmer sees someone drowning Encouraging someone to jump Friends together out on the town; attacked Train hits a truck; RR worker wont give a coat to the injured party

Duty To Protect Special Relationship, considering o Status of the parties o Extent of reliance o If actor does an act, and subsequently realizes or should realize that it created unreasonable risk of causing physical harm, he is under duty. o Ex: drivers truck disabled on road and fails to warn on-coming traffic-driver not negligent, but is author of risk, and owes affirmative duty to warn other drivers; an actor whos injured another, w/o negligence, has duty to get help to prevent further harm o Therapist/3d party: privilege of confidentiality ends where public peril begins. When person presents serious danger of extreme violence to another Foreseeability Duty to Protect Examples Mugging in the school parking lot Tenant is injured by a crime in apartment building Injured by an assailant in a Wendys parking lot Duty to Control Special relationship o Status of the parties o Extent of reliance o Parent to control a child; employer to control an employee; one who takes charge of another w/dangerous propensities ie one who knows or should know that 3d person is likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control 3d person to prevent him from doing such harm; mental patient caretaker or prison guard o No duty when accident isnt Ds fault Foreseeability Duty to Control Examples Tenant who hurts a guest Employee who hurts a customer HIV positive; doctor doesnt tell the spouse Psychiatric patient makes a threat during meeting with psychiatrist Landowners and Possessors A specific example of affirmative duty based on relationship Considerations o Status of the plaintiff o Knowledge of the defendant Differing standards of care

Status of the Plaintiff Trespasser without permission Licensee with permission, but without benefit Invitee with permission and provides benefit Children Trespassers Generally, no duty to trespassers Known or anticipated trespasser + non-obvious known, serious danger = duty to warn Known or anticipated trespasser + dangerous activity = duty of care Duty limited to willful conduct ie traps set on prop. Frequent trespassers (foreseeable tresspassers) Might have duty if conditions on prop would cause death/serious bod injury, but not to inspect or for natural conditions Children If foressable and Known or have reason to know of serious danger, and Reason to believe child is unable to protect himself or herself, then Duty of care knows or has reason to know kids likely to trespass or that theres unreasonable risk of death/sbiyounger the kid, higher the standard. What if prop attracts kids ie playgrounds? Licensee (social guests, or people w/o business purpose) Know or have reason to know of non-obvious danger Duty to warn All known conditions that could cause any injury to P; no duty to make repairs/keep safe and generally licensee should take prop as its found Invitees (business visitors) Duty of reasonable care Might have duty to people just outside land if in urban area Three Steps Status of the plaintiff Nature of the condition and defendants knowledge Duty of care Examples of Duty Driver with only one arm

Driver with ADD Fourteen-year-old driver Former race car driver Driver with an insane delusion Driving the speed limit in rainy conditions

Breach of Duty Act Unreasonable risk (objective standard) How a reasonably prudent person wouldve acted under similar circumstances B < PL If burden of precaution is less than probability of los times magnitude of loss, then breached Exceptions: Emergency: Not held to same standard if it wasnt emergency, unless Ds negligence created emergency. Disabilities: Compare to reasonable person w/same disability (mental incapacity/insanity not taken into account) Sudden/Unforeseen Incapacities: Sudden physical illness (unless chronic) No exception for sudden mental illness Cause-in-fact split: ( at issue when Doctor didnt obtain informed consent and now were trying to find if Dr.s failure to get consent is cause of pts injury) Reasonable person standard. Unreasonable risk Common sense (jury) Custom and practice (expert) Risk-utility (academics) o Risk Utility Take loss and discount by probability = risk, then compare risk to burden o Loss (or harm) o Probability o Burden of avoidance o If burden is greater than risk - B>PL=no negligence o If risk is greater than burden then -B<PL=negligence o Both value of loss and probability are difficult to determine and often insufficient

Res Ipsa Loquitur: The thing speaks for itself

A method of proving breach when the act cannot be identified Legal effect is to send the case to the jury

Elements of Res Ipsa (MO) Injury probably due to negligence Defendant has control (so likely to be at fault) Defendant has superior knowledge or means of information Examples Barrel falling out of the second story Exploding bottle Airplane crash Not likely to be on the essay part of exam
ALTERNATE THEORY: (Replaces Duty and Breach/reasonable person standard in)

Elements of Negligence Per Se (only statutes/ordinances/regulations)

Takes place of negligences breach and duty Violation of statute, ordinance or regulation Type of harm to be prevented Plaintiff in the class to be protected

Need to know for Neg Per Se: Statute Class of Person Type of Harm Jursidictional Split KNOW AND APPLY FOR EXAM Irrebuttable presumption Negligence is established as a matter of law; proof subject only to five exceptions: Five Exceptions: Incapacity Reasonable care in attempting to comply Did not know of need to comply Statute presentation creates confusion about requirements Greater risk of harm with compliance Rebuttable presumption Negligence is established subject to proving d was reasonable person; defendant can prove it was reasonable Evidence of negligence Doesnt prove negligence, jury isnt bound to find either way, just evidence but very persuasive Effect of compliance Children

Class Notes: Complying w/statute doesnt mean youre excused from trouble There are many children exceptions Use with Negligence Replaces duty and breach elements An alternative theory of liability Still must prove causation and damages Examples Quarantine of Dog No drinking on campus rule Car accident ticket given Car accident victim is drunk Car accident speeding to hospital Oral permission to turn on electricity Lack of ventilation child injured Class Notes on Negligence - Address fault principle - Lower culpability on fault scale (malice, intent, recklessness, negligence, strict liability) so that damages are required - Reasonable person is a key concept - Can only get negligence damages if there are actual damages (no nominal damages in negligence Comparative Fault (use with damages) -Breach -Duty -Causation (but if test) -Jurisdictional Split -Pure (MO) Reduces duty to 5% (? From study group) -Modified Bars recovery if over 50% Ex. If you get hurt but found 51% at fault, then you cant recover damages. Reduces ps recovery proportionally to ps degree of fault in causing damage, rather than barring recovery completely

Legal effect o Irrebuttable Exceptions o Rebuttable Arguments that rebut o Evidence of negligence Contrary evidence and possible rejection Proof of Negligence Burden of Proof Standard of proof: Preponderance of the evidence Direct and circumstantial evidence Function of the Court Is there a duty under the circumstances? What is the duty (i.e. the standard of care)? Does negligence per se apply? Is there enough evidence to warrant sending the matter to the jury? Instructions for the jury Function of the Jury Did the defendant breach his or her duty? Did the defendant violate a statute? Did defendants conduct cause the injury? How much compensation should be paid?

Cause in fact
But for causation counter factual; if act is taken away, would accident still have occurred? When But for test cant be proven ie not more likely than not or more than 50% chance of happening anyway (majority says not cause if less that 50%): Loss of Survival: Prevents drs from getting free ride when pts chance of survival is less than 50% Alternative: but for test applied to loss of opportunity, not the death (must be significant opportunity) Substantial cause (Unless theres Joint/Several liability) Cts created exception to but for test where 2 ds act negligently, and eithers act would suffice to cause ps injury. Ex. 2 motorcyclists speed past horse and buggy and p falls off. D1 will claim if not but for him it still wouldve happened bc of D2 and vice versa. Minority rules o Market share: D liable for % of risk ie prescription pill problem

o Lost chance of survival: See below o Alternative liability: Can thrust burden onto ds when P shows that each of two persons was negligence, but only one couldve caused injury. Most cts say burden goes to each D to show other caused harm. Relationship to joint & several liability: Ct can shift burden of proof for cause-in-fact from P to Ds. Applies when small number of Ds engaged in substantially simultaneous culpable conduct imposing similar risk on P Market Share can apply here: Marketing dangerous drub, P sues substantial majority of market (80% or more), each D whos unable to prove innocence must pay their market share of damages. Look for: redundant actions, but single cause (independent acts causing a single inseparable injury, or Ds acting in concert) Notes on JSL from class: Joint tortfeasers: defendants that are liable for other defendants. *They are jointly liable When you combine them it means that from the perspective they are joined but from the perspective they are several. contribution is the theory that deals with the separation of payment from a joint/several suit. This lawsuit figures out the % and reimburses the one defendant who was charged so they are all paying their share. So, D1 can sue D2 and D3 for contribution payments to reimburse D1. (common tort reform tactic is to remove joint liability and leave it just several liability. putting the risk on the plaintiff to find the rest) When does joint and several liability apply? Its default rule, but must have right circumstances: There are 4 scenarios where they apply: 1. Joint tortfeasors 1. 2 guys work together beating up P: jointly liable bc theyre acting jointly. 2. Agent principle relationship 1. If I hire someone to go and beat up P, then they can sue me too bc Im the principle that hired the agent. 3. Individual tortfeasors and an indivisible injury. 1. 2 people act independently to both cause injury, but cant divide injury up, so both are liable. 4. Scope of duty

1. If scope of duty of tortfeasor is broad enough (like a landowner), then theres joint liability. 2. In the taco bell case, if taco bell had been held liable then TB (landowner) would be liable as well as person who did the beating up. 1. Were moving to strict liability for landowners, but cts are reluctant. Causation examples Poisoned and shot Fires that combine Drug causes birth defect Cancer patient with 30% chance of recovery harmed by malpractice

Proximate Cause Overview

Purpose: to make a policy judgment about culpability Issue: in the event of complex causation, who bears responsibility Terminology: o Foreseeable type of harm: not manner of harm or extent, just the type o Not what is likely, but what is potentially possible (viewed obj) o Natural and probable consequences Approach to Proximate Cause Use as an element Start with Foreseeability and Natural and probable consequence Apply tools that have developed to make additional arguments Hypos Palsgraf example: Only foreseeable victims - Dissent: foreseeability of harm is subjective, so if unfairness results cts can overrule foreseeability as factor for PC bc its against public policy of fairness o Tools (as applicable) Harm-within-the-risk: Was victim in class of persons who could foreseably be
harmed, and was harm foreseeable w/in class of risks? Probability of risk: P must prove that Ds action increased risk that harm to P would occur. Thin-skull rule: Take them as they come

Second injury rule Superseding intervening cause: extraordinarily unexpected, extraordinary

under circumstances; not foreseeable in normal course of events; independent of far removed from Ds conduct. A foreseeable intervening force thats caused by 3d partys neg wont break causal connection.

Trivial contribution Termination of the risk (time and space) - An intervening actor may
break the causal connection if her action has rendered nonexistent the risk created

by the original tortfeasor. For example, a boy found dynamite caps negligently left by the defendant, but when the boy's friend lost a hand while playing with the caps, the defendant was held not liable on the ground that the boy's mother knew of the caps but did nothing. Pittsburgh Reduction Co. v. Horton.

Damage Overview Element of negligence must have the compensable damages Measure of compensation Three types o Nominal only for intentional torts o Compensatory puts P in position wouldve been in before event o Punitive Punishes Torts usually doesnt allow damages if theres not a bodily/prop injury, unless theres tying to bodily injury i.e. hurt leg, caused emotional distress Approach for Exam Analyze whether the element has been satisfied Consider punitive damages only if evidence is provided to support it Do not try to calculate damages or identify types of damages unless called for Damages Element Bodily injury Physical property damage Economic losses generally not allowed without bodily or property injury Emotional distress generally not allowed without bodily or property injury Damages for injured Property (P has privilege of showing costs of damages by): Repair Costs Replacement Costs Assessing differences in market value Damages for bodily injury Out of pocket expenses Lost wages Pain and suffering Proof issues Must provide evidence of damage Duty to mitigate damages Quantification problems Discount to present value Cannot be speculative Collateral source rule

Examples Car wreck: broken arm, medical expenses of $500 Car wreck: loss of use of legs, basketball player Car wreck: chronic back pain Car wreck: brain damage to law student Punitive Damages Purpose to punish and deter Awarded for bad state of mind or acts that are extraordinarily bad Some states require clear and convincing evidence Jury has substantial discretion; plaintiff generally gets to keep How do you quantify damages: Loss of work, job helps to determine more damages, but doesnt say how to quantify still: Maybe recovery time, interference w/lifestyle, use of limbs/body. - - You cant quantify them, so we guess/leave it up to jury. Very rough and unfair sense of justice. Constitutional limits Degree of reprehensibility Disparity between harm and damages (multiplier) Civil or criminal penalties compared Missouri Rules Jx Split w/ punitive damages: Some states require clear and convincing evidence, including MO. Clear and convincing evidence Act must be outrageous because of defendant's evil motive or reckless indifference to the rights of others. Jury to award an additional amount as punitive damages in such sum as you believe will serve to punish defendant and to deter him and others from like conduct. NEID 3d Party Actions No duty to not negligently inflict emotional distress on another Rules Physical injury Physical impact Zone of danger: Bystander: Target Zone based on need for contact in order to allow for
emotional injury (pain and suffering) Bystander recovery is incidental (secondary/minor) to primary recovery Special relationship (independent duty): Bystander:closely related to victim, present at scene and aware of injury producing event, emotional distress beyond what would be anticipated in a disinterested victim.

Foreseeable plaintiff with severe distress: Bystander: P located near scene of accident (not Physical manifestation sometimes required Corpse handling and wrongful notice of death are limited to parent/child, spouses Missouri Rules Zone of danger Foreseeable plaintiffs o D should have known of unreasonable risk of distress o Distress must be medically diagnosable and medically significant Bystanders General rule not allowed to recover Zone of danger exception California exception. Factors: o Relationship to victim o Proximity to event o Severity of distress Economic Harms Generally, not allowed without physical damage Policy concerns: o Disproportionate liability to fault o Uncertainty as to scope and amount o Arbitrariness when caused Rules for Economic Losses Allowed with physical damages Allowed for some special relationships o Intended to benefit o Foreseeable plaintiff Physical damages that go uncompensated oil spill Loss of Consortium: losses to family members for injury to relative ( for period of injury and prior to wrongful death claim) Derivative claim Spouse only; loss of companionship, sex, household services, parental help Survival (the claim that survives after death and belongs to the estate) & Wrongful Death (claims of family members for death of a relative) Historically, tort claims died with the claimant Solution: Modified by statute to enforce liability (who may recover is listed by statute, generally: family (not mistresses or cohabitants) and dependent parents Analysis: start with statutory language
seen on TV or something), Direct, sensory perception of accident seen at same time, closely related

Actions distinguished Sometimes brought in the same action

Damages - Survival Loss to the estate economic damages, property damages Economic expenses of the estate Pain and suffering usually included, but harder to measure Damages Wrongful Death Generally, out-of-pocket expenses, funeral/medical, life expectancy tables, look to character of dead person to determine potential $$, lost wages, damaged prop Economic losses of family members Emotional distress loss of association, companionship, societal loss Generally, not grief and bereavement Usually no punitive damages Add personal injury ( wages/property) to wrongful death claim to get punitive Defenses Overview Burden of proof on defendant o if dont raise the defense, cant get that defense Must plead defenses Most common affirmative defenses o Comparative fault (replaces contributory negligence) rule in most states MO o Assumption of the risk MO o Immunity mostly w/ government Contributory Negligence: legally contributing cause cooperating w/neg of D bringing about Ps harm. Plaintiffs breach of the duty of care that proximately causes plaintiffs injuries o Consequence: Bar to recovery if Ps conduct is a C-I-F and PC Exceptions o Last clear chance (negligent if P can show D had last chance to avoid accident) if defendant had last clear chance even though plaintiff was negligent plaintiff could still recover. if plaintiff had last clear chance plaintiff is screwed. Who had opportunity to avoid accident o Greater degree of blame not common because needs to be gross neg/extreme recklessness o Scope of the duty includes (safety statutes) broad enough it should include some behavior on part of P.

protect P from doing stupid things CN ignored if D violates statute designed to protect class of person (child labor laws, serving alcohol to drunk people etc) Jury practices not doctrinal juries dont like this rule so they tend to twist it.

Comparative Fault Evolved from contributory negligence (bc CN too harsh) Elements o Duty o Breach o Causation o Apportionment (difficult). Factors: Risk of conduct, strength of causal connection Examples Bike rider runs a stop sign, hit by car o the bike rider is . how do we allocate responsiblity? 95%/ 5%. how did we get the 95% #? work backwards. Car is speeding, hits a car that makes an illegal left turn o look at how the accident occurred. o who got the ticket Sparks from neighbors fire pit sets plaintiffs house on fire, plaintiff had removed fire detectors

Types of Comparative Fault Pure: apportionment based on percentage regardless of who is mostly to blame Modified: apportionment only if Ps less than 50% at fault; if greater than 50% then no recovery Pure v. Modified A and B in an auto accident o A is 60% at fault, has $100,000 in damages A should recover 40,000 dollars (because they are 60% to blame) o B is 30% at fault, has $50,000 in damages he recovers 70% so 35,000 dollars What is the net recovery? o Pure: A gets $5,000 ($40,000-$35,000) this shows the injustice of pure comparative fault o Modified: B gets $35,000 ($50,000-$15,000) A gets nothing because 60% is greater than 50.

Which is better? o MO is a pure comparative fault jurisdiction

Comparative Fault & Joint and Several Liability Comparative fault is not for defendants o Its for plaintiffs Joint and several liability is the default Several liability apportions like comparative fault Multiple defendants o Joint & several treats them together like you would prior to comparative fault o Minority view comparative fault justifies several liability o Minority view risk of insolvency borne proportionately

Assumption of the Risk (US encourages personal autonomy, so if you agree to do

something risky, its legal b/c its okay to risk hurting yourself if you want) If no duty, then no AOR!!

Assumption of Risk: (Canned answer, always put on test) Voluntary: whats involuntary ranges from coercion to unreasonably difficult to avoid Knowledge of risk? Assumed risk (consented)? Exposed oneself to risk? Expressly: Contract or release form, waivers (narrowly construed meaning) Impliedly: Ps conduct Treatment of Implied AoR under CF: Jx Split 1) Some jxs merge AoR w/ CF or they abandon AoR altogether 2) Some jurs. will bar recovery (unreasonable risk) 3) Some jurs. treat AR as an absence of duty Negligence version of consent Elements o Knowledge of the risk (expressly or impliedly) o Voluntary assumption (expressly or impliedly) voluntarily subjected self to danger/risk Judicial limits similar to consent can be overridden by public policy; can be read narrowly; was assumed risk reasonable? Firefighters rule an example FF cant recover against person who caused fire FF
assumed the risk, and theyre paid a salary for risk (cant recover unless someone starts fire in grossly negligent/intentional way).

AoR bars recovery, comp. fault reduces it. If a cts not willing to bar recovery, will not apply AoR.

Relationship to Comparative Fault Express AoR is independent Implied AoR overlaps o Historically, didnt matter because contributory negligence also barred o Now, AoR bars while comparative fault reduces recovery Jx Split Some merge AoR and Comp Fault, or abandon AoR Some keep them separate Some do both and distinguish between primary and secondary Better view: AoR as an absence of duty AoR of P is so extreme that theres no duty of D to be held liable How to Handle on Exam Look for both comparative fault and assumption of the risk as defenses Note that some jurisdictions have abandoned Explain comparative fault, then explain AoR, and identify the 3 legal implications below. If you see reasonable/unreasonable language, then youre dealing w/comparative fault. Identify legal implications o Bar in some jurisdictions o Reduction of damages in some o Distinction based on absence of duty Tort Reform Overview Purpose: to reduce costs associated with tort system Marginal reforms mostly at the margins of tort law Benefits: unclear and still being debated, but may reduce insurance costs and improve some access Primary Reforms Caps on pain and suffering damages Caps on punitive damages Limitations on joint and several liability Reductions or elimination of collateral source rule Missouri Reforms Limit of $350,000 for pain and suffering in medical malpractice cases Limit of $500,000 or 5x compensatory damages for punitive damages Must prove punitive damages more likely than not to get certain discovery Defendant must be 51% liable for j/s Rebuttable presumption that value of medical care is its cost (unclear impact)

Workers Compensation A bargain between employers and employees Workers compensation system the exclusive remedy Workers compensated for injuries without proof of fault Compensation is more modest No Fault Auto Insurance An experiment in selected states Limited impact because of unwillingness to give up tort remedies Kansas has requirement for personal injury protection Emotional Distress & Economic Loss Overview Emotional distress and economic damages generally not allowed Many exceptions and substantial variation by jurisdiction Go through the rules if you see the issue on the exam Bystander is treated separately Policy concerns Not real damages Too easy to fake it May affect too many people, the flood of litigation