TORTS OUTLINE

INTENTIONAL TORTS: Assault Battery Intentional Infliction of Emotional Distress (IIED) Transferred Intent DEFENSES: Assumption of risk Comparative negligence Contributory negligence Consent & Necessity Self-Defense Defense of others Defense of property Shopkeeper's privilege NEGLIGENCE: Duty of care Proximate Cause Actual Causation Res Ipsa Loquitur Duty to Rescue Negligent Infliction of Emotional Distress (NIED) Med Mal LIABILITY: Strict Liability Product Liability Quasi-tort Ultrahazardous activity ECONOMIC TORTS: Fraud LIABILITY/REMEDIES: Last clear chance Eggshell skull Vicarious liability Damages Injunction Joint and several liability Comparative responsibility DUTY TO VISITORS: Trespassers Licensees Invitees Attractive nuisance PROPERTY: Trespass

I. BATTERY, Part 1 (Vosburg, Garratt, Fisher, Leichtman) INTENT and CONTACT - (Basic Definition) Defendant is liable to the Plaintiff if: - Defendant intends to cause harmful or offensive contact to the Plaintiff and; - A harmful or offensive contact with the Plaintiff directly or indirectly results Restatement (Second) 13. Battery: Harmful Contact: - An actor is subject to liability to another for battery if (a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and (b) a harmful contact with the person of the other directly or indirectly results 18. Battery: Offensive Contact: - An actor is subject to liability to another for battery if (a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and (b) an offensive contact with the person of the other directly or indirectly results Intent to Cause Contact Intent to cause contact is present if: D intends to cause the contact even if he doesn't intend to cause harm (VOSBURG); or D doesn't intend to cause contact or harm but knows the contact is substantially certain to follow from her actions (GARRATT); or D intends to cause harm through her actions even though contact is not substantially certain (throwing a knife at someone or shooting at someone from a long distance) Transferred Intent As long as the defendant held the necessary intent with respect to one person, he will be held to have committed an intentional tort against ANY OTHER PERSON WHO HAPPENS TO BE INJUREd Ex) D sees Smith and Chris on D's shed. D throws a stick at Smith or Chris, and accidentally hits P. Assuming D used an UNREASONABLE degree of force, he is liable to P, even though it was not P he was trying to hit. What Constitutes a Contact? Contact exists when: D's actions result in direct physical contact with P (VOSBURG); or D's actions cause P to come into contact with the ground or other harm-causing object (GARRATT); or D's actions result in physical contact with something closely related to P (clothing, something he is holding, etc.) (FISHER); or D propels an object or substance that comes into contact with P (Leichtman); or D has contact with an object which, sometime later, comes into contact with P (STRATTON p.29) - P ate a piece of fruit that D had poisoned two hours earlier Key Elements of Battery INTENT: - To harm or offend - To cause contact - Constructive Intent - "Transferred" Intent CONTACT: - Indirect - Offensive or harmful (damaging to a REASONABLE SENSE OF DIGNITY)

-------------------------------------------------------------------------------------------------------------------------------------------------------1. Vosburg v. Putney (1891 )- INTENT - Intention to commit an unlawful act the intent necessary to make defendant's act an unlawful battery depends on whether the act was or was not unlawful - Defendant could be held liable for battery despite the fact that D did not intend harm to plaintiff - "Eggshell Skull" Rule: defendant is liable for all consequences resulting from his tortious activities leading to an injury of plaintiff, even if P suffers from high level of damage 2. Garratt v. Dailey (1955) - INTENT - In addition to the act, if the actor knew with substantial certainty that the contact or apprehension (harm) will result, then battery will be established (5-year old moved chair as old lady about to sit) 3. Fisher v. Carrousel Motor Hotel (1967)- CONTACT - Direct contact is not necessary; indirect contact through clothing or an object closely identified with the body is sufficient (Defendant, manager of hotel, refusing to serve P due to his race) 4. Leichtman v. WLW Jacor Communications, Inc. (1994) CONTACT - Contact which is offensive to a reasonable sense of personal dignity is offensive contact - Tobacco smoke as "particulate matter" has physical properties capable of making contact --------------------------------------------------------------------------------------------------------------------------------------------------------I. BATTERY, Part 2 (O'Brien, Barton, Bang, Kennedy, Hackbart, State Farm Fire, Courvoisier, Katko, Ploof, Vincent) PRIVILEGES, DEFENSE OF PROPERTY and NECESSITY [DEFENSES] Privileges in Battery - Consensual privileges and non-consensual privileges 1. Consensual privileges - Evidence that P has consented to or allowed the contact - Sometimes consent is communicated - Sometimes consent is determined by facts and circumstance 2. Nonconsensual privileges - Self defense - Defense of others - Defense of property - Necessity - Others Consent to Treatment-Operation - Doctor must get patient's consent on operation, and if not able to get consent, must find someone authorized to consent - No consent is needed in emergency when immediate treatment needed Special Verdict: Consent 1. Did D fail to inform P about the risks involved in the treatment-operation? 2. If yes, would a reasonable person in that position have refused the consent of that treatment-operation if risks were known? 3. If yes, was D's negligence in failing to inform P about risks a direct cause of harm to P? 4. Did D use reasonable care in deciding not to disclose risks involved in treatment-operation and about the alternatives to that treatment-operation? Intent, Consent, and Liability Insurance - Intent and consent both involve CONSTRUCTIVE aspect actors who do not desire certain consequences are deemed to have intended them or to have consented to their taking place - LIABILITY INSURANCE: insurer promises to indemnify insured against losses suffered as a result of insurer's legal liability t other parties Med Mal Issue of Tort and Contract - when physician given consent to perform certain medical operation or treatment and thereafter extends the operation or treatment beyond the boundaries of the consent given

- if treatment is unauthorized and treated without consent: battery - if doctor obtains consent but breached duty to adequately inform patient of risks: negligence Non-Consensual - subjective: what the actor believes - objective: what the reasonable person believes > Are you trusting what the person said what they thought? Or are you judging based on what the "reasonable" person thinks? Defense of Property - Intent is subjective: not a question of whether a reasonable person would intend, but rather, did the defendant have requisite intent? Restatement (Second) 892B 892B. Consent Under mistake, Misrepresentation or Duress 1. Except as stated in (2), consent to conduct of another is effective for all consequences of the conduct and for the invasion of any interests resulting from it 2. If the person consenting to the conduct of another is induced to consent by a substantial mistake concerning the nature of the invasion of his interests or the extent of the harm to be expected from it and the mistake is known to the other or is induced by the other's misrepresentation, the consent is not effective for the unexpected invasion or harm 3. Consent is not effective if it is given under duress Restatement: Protect Property 77. Defense Of Possession By Force Not Threatening Death Or Serious Bodily Harm An actor is privileged to use reasonable force, not intended or likely to cause death or serious bodily harm, to prevent or terminate another's intrusion upon the actor's land or chattels, if (a) the intrusion is not privileged or the other intentionally or negligently causes the actor to believe that it is not privileged, and (b) the actor reasonably believes that the intrusion can be prevented or terminated only by the force used, and (c) the actor has first requested the other to desist and the other has disregarded the request, or the actor reasonably believes that a request will be useless or that substantial harm will be done before it can be made 79. Defense Or Possession By Force Threatening Death Or Serious Bodily Harm The intentional infliction upon another of a harmful or offensive contact or other bodily harm by a means which is intended or likely to cause death or serious bodily harm, for the purpose of preventing or terminating the other's intrusion upon the actor's possession of land or chattels, is privileged if, but only if, the actor reasonably believes that the intruder, unless expelled or excluded, is likely to cause death or seriously bodily harm to the actor or to a third person whom the actor is privileged to protect Restatement (Second) 196 Public Necessity One is privileged to enter land in the possession of another if it is, or if the actor reasonably believes it to be, necessary for the purpose of averting an imminent public disaster Restatement (Second) 197 Private Necessity 1. One is privileged to enter or remain on land in the possession of another if it is or reasonably appears to be necessary to prevent serious harm to (a) the actor, or his land or chattels, or (b) the other or a third person, or the land or chattels of either, unless the actor knows or has reason to know that the one for whose benefit he enters is unwilling that he shall take such action

2. Where the entry is for the benefit of the actor or a third person, he is subject to liability for any harm done in the exercise of the privilege stated in (1) to any legally protected interest of the possessor i nthe land or connected with it, except where the threat of harm to avert which the entry is made is caused by the tortious conduct or contributory negligence of the possessor --------------------------------------------------------------------------------------------------------------------------------------------------------1. O'Brien v. Cunard Steamship Co. (1891) PRIVILEGE [consent] - Consensual privilege is established when there is evidence or communication by P of consent - Sometimes consent need not be communicated to D and willingness in fact for conduct to occur sufficient (P getting off ship got vaccinated but showed no consent/defiance) 2. Barton v. Bee Line, Inc. (1933) PRIVILEGE [consent] - A consenting female, under the age of 18, who also has knowledge of the nature and quality of her act does not have a cause of action 3. Bang v. Charles T. Miller Hospital (1958) PRIVILEGE [consent] - Where a physician/surgeon can ascertain in advance of an operation alternative situations and no immediate emergency exists, a patient should be informed of the alternative possibilities and given a chance to decide before doctor proceeds with the operation 4. Kennedy v. Parrott (1956) PRIVILEGE [consent] - Where an internal operation is indicated, a surgeon may lawfully perform (as it is his duty) such operation as good surgery demands, even if it is an extension of the operation than was originally contemplated, and he cannot be held liable for damages as for doing an unauthorized operation - When one voluntarily submits himself to a physician for treatment, a consent of what the doctor is authorized to do will be implicitly or expressly presumed 5. Hackbart v. Cincinnati Bengals, Inc. (1979) PRIVILEGE [consent] - The inherent violence of sports games and understanding of a sport's generally violent nature does not extinguish all rights to recover for egregious conduct that is beyond its customs when it is possible for one to go beyond the customs of such sport and be liable for injuries in tort 6. State Farm Fire & Casulaty Company v. S.S. & G.W. [intent, consent and liability insurance] - If an insurance contract includes an exclusion provision, it must show SUBSTANTIAL CERTAINTY (constructive intent) in defendant's conduct for the exclusion to take place 7. Courvoisier v. Raymond (1896) SELF-DEFENSE [non-consesual] - To justify on a plea of necessary self-defence, the plaintiff must state that his fears were reasonable under the circumstances and also of the reasonableness of the means made use of, as well as him acting honestly in using force 8. Katko v. Briney (1971) DEFENSE OF PROPERTY [non-consensual] - RESTATEMENT: it is the accepted rule that there is no privilege to use any foce calculated to cause death or serious bodily injury to repel the threat to land or chattels, unless there is also such a threat to the defendant's personal safety as to justify a self-defense ... SPRING GUNS AND OTHER MAN-KILLING DEVICES ARE NOT JUSTIFIABLE AGAINST A MERE TRESPASSER - [DISSENT] No absolute liability for injury to a criminal inruder by setting up such a device on his property, and unless done with an intent to kill or seriously injure the intruder, absolve owner from liability 9. Ploof v. Putnam (1908) NECESSITY [non-consensual] - Necessity-based privilege is recognized where an entrance into land of another in order to avoid serious hram to one's person, land, or chattels, or to those of a third person is required 10. Vincent v. Lake Erie Transportation Co. (1910) NECESSITY [non-consensual] - In cases where a party is acting under private necessity, liability for damages incurred to the property of others is enforced on the defendant -------------------------------------------------------------------------------------------------------------------------------------------------------

II. ASSAULT (Read v. Coker, Beach v. Hancock) ASSAULT - A Defendant is liable for assault if: - Defendant acts intending to cause harmful or offensive contact or an imminent apprehension of such contact; and - Plaintiff is put in such imminent apprehension - If Defendant does not intend to cause the contact or apprehension, no assault for imminent apprehension even if act involves unreasonable risk of causing it and thus would be negligent or reckless (negligent or reckless v. substantial certainty)

JURY INSTRUCTION: ASSAULT PROOF of an assault: - An assault occurred if: 1. Defendant acted with the intent to cause apprehension or fear of immediate harm/offensive contact with plaintiff; and 2. Defendant had the apparent ability to cause the harm/offensive contact, and 3. Plaintiff had a reasonable apprehension or fear that the immediate harm/offensive contact would occur Restatement (Second) of Torts 29. Apprehension of Imminent and Future Contact (1) To make the actor liable for an assault he must put the other in apprehension of an imminent contact (2) An act intended by the actor as a step toward the infliction of a future contact, which is so recognized by the other, does not make the actor liable for an assault under the rule in 21 > EXAMPLES OF ASSAULT 1. A and B are engaged in altercation in A's shop. B refuses to leave A's shop at A's order. A collects his workmen, who muster around B, tucking up their sleeves and aprons and threatening to break B's neck if he doesn't leave. A and his workmen are subject to liability to B. 2. A threatens to strike B and rushes toward him with hand or weapon raised. A's purpose is frustrated while he is still some few feet from effective striking distance. A is subject to liability to B. - A points an uncocked pistol at B, who knows it is uncocked. The pistol can be cocked and made ready for effective use in an instant. A is subject to liability to B. - A threatens to shoot B and leaves the room with express purpose of getting his revolver. A is not liable to B. Restatement (Second of Torts) 25. Source of Danger Defendant can engage in assault by putting Plaintiff in apprehension that a third person or force of nature, rather than the Defendant, is about to inflict the contact > EXAMPLE For the purpose of frightening B, A comes up behind B in the desert and sounds a buzzer which is an excellent imitation of a rattlesnake. B believing he is about to be bitten, is frightened, but suffers no bodily harm. A is subject to liability to B for an assault. ---------------------------------------------------------------------------------------------------------------------------------------------------------1. Read v. Coker (1853) - An assault must be more than a threat of violence; it must be an attempt coupled with a present ability to do personal violence to the party; there must be some act done denoting a present ability and an intention to assault 2. Beach v. Hancock (1853) - Apprehension of harmful/offensive contact, when in reality no such harmful/offensive contact exists, is still assault Ex) gun not loaded, but because plaintiff feared he was about to be shot, it still counted as assault ----------------------------------------------------------------------------------------------------------------------------------------------------------

III. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS (IIED) The only harm here is mental/emotional distress, which is sometimes severe enough to create physical symptoms. Restatement (Second) of Torts 46 Outrageous Conduct Causing Severe Emotional Distress - Defendant is liable for emotional distress and/or bodily harm if: - she engages in EXTREME and OUTRAGEOUS conduct intentionally or recklessly - the extreme and outrageous conduct causes emotional distress and/or bodily harm - Where such conduct is directed at a third person: - defendant is also liable to members of that person's immediate family present at the time for emotional distress even if no bodily harm - defendant is liable to any other person present if such distress results in bodily harm MN Jury Instruction - To show the intentional infliction of emotional distress, it must be proved that; 1. The conduct of the defendant was so extreme and outrageous that it passed the boundaries of decency and is utterly intolerable to the civilized community, and 2. The conduct was intentional or reckless, and 3. The conduct caused emotional distress to plaintiff, and 4. The distress was so severe that no reasonable person could be expected to endure it Use of Standards to Judge Behavior - SUBJECTIVE STANDARD: What did the actor HONESTLY perceive or believe? - Issue of proof deals with assessing whether there was in fact a perception or belief - OBJECTIVE STANDARD: Was what the actor believed, perceived, or did REASONABLE? - Would a reasonable person believe/perceive/do what the actor believed/perceived/did? -----------------------------------------------------------------------------------------------------------------------------------------------------1. State Rubbish Collectors Association v. Siliznoff (1952) IIED - Unless in case of especially sensitive persons, one is liable for IIED if he subjects the other to mental distress and resulting bodily harm from intentional act of frightening the other person, even if there is no physical harm 2. Snyder v. Phelps (2011) IIED - First Amendment can protect a defendant from an IIED claim if content, context and form - When context, content, and form are all of public issues, then it is protected under the First Amendment (as it is at a public place on a matter of public concern) and thus cannot impose IIED -----------------------------------------------------------------------------------------------------------------------------------------------------IV. ACTUAL CAUSATION (Hoyt, Rapid Transit Inc, Summers, Ybarra, Dillon, Kingston) Cause in fact: When plaintiff alleges that defendant "caused" his injuries, injuries were the actual FACTUAL result of defendant's actions. "But for" test: the defendant's conduct is the cause of plaintiff's injuries and it is said to be that, "Had the defendant not so conducted herself, the plaintiff's injuries would not have resulted." 1. General Causation: whether activity engaged in by defendant capable of causing harm to plaintiff 2. Specific Causation: was the injury in fact caused by the tortious act? Did the defendant's wrongful conduct specifically cause the plaintiff's injuries? Question to ask: Would the injury in question have occurred in the absence of the tortious act?

Multiple Possible Tortfeasors - ALTERNATIVE LIABILITY: Two or more actors' negligent behavior could have caused injury, but can't tell which - JOINT LIABILITY: Two or more actors' negligent behavior (may or may not have acted in concert) caused injury; may be joined in a single suit - SEVERAL LIABILITY: Each defendant is liable in full for plaintiff's damages - MARKET SHARE LIABILITY: Can't determine which company produced a defective product but all produced the same product Vicarious Liability - All defendants will be responsible for the harm actually caused by only one of them. - Master/servant relationship: vicarious liability - Independent contractors not fit this rule (employer has no control, or have the right to control, how independent contractor performs work) - Employer will be liable for damages caused by employee's action when they're acting in the course of their employment Concurrent and Successive Causations - Two events CONCUR to cause harm, and EITHER ONE WOULD HAVE BEEN SUFFICIENT to cause substantially the same harm without the other Restatement (Third) of Torts Liability for Physical and Emotional Harm 27. Multiple Sufficient Causes - If multiple acts occur, each of which alone would have been a factual cause of the physical harm at the same time in the absence of the other act(s), each act is regarded as a factual cause of the harm. MN Jury Instructions "Definition Independent Contractor Employee" - "Independent Contractor": An independent contractor agrees to work for a person/entity. The person/entity does not actually control, and does not have right to control, how the independent contractor performs the work. - "Employee": An employee is hired by an employer to perform work for him or her. The employer actually controls, and has the right to control, how the employee performs the work. - The mode of testing relationships: 1. The right to control the means and manner of performance 2. The mode of payment 3. The furnishing of materials and tools 4. The control of the premises where the work is done 5. The right of the employer to discharge ----------------------------------------------------------------------------------------------------------------------------------------------------------1. Hoyt v. Jeffers (1874) Actual Causation - Circumstantial evidence is allowed to prove causation in lack of direct evidence (witness) 2. Smith v. Rapid Transit Inc. (1945) Actual Causation - Naked probabilistic evidence itself does not prove actual causation and is insufficient in itself to be established as an actual causation - Unlike HOYT, no past wrongdoings were established, and thus if it were to be established, it would've helped plaintiff 3. Summers v. Tice (1948) Alternative Liability

With alternative liability, where uncertainty of which negligent tortfeasor's negligence caused the harm, and it cannot be determined how much damage each person has caused, then defendants are both liable and it is up to the defendants to figure out apportionment

4. Ybarra v. Spangard (1944) Alternative Liability - Where an injury can only have come from negligence of two or more liable tort feasors, but the circumstances do not allow plaintiff to prove the specific cause of injury or WHO among tort feasors was negligent, the possible tort feasors are jointly and severally liable and responsibility of defendants to apportion the damages. 5. Dillon v. Twin State Gas & Electroc Co. (1932) Concurrent and Successive Causation - If there are two independent causes of harm, where one of them is negligent, and the cause of the injury is from a non-negligent cause, then the party who is supposed to be negligent is not negligent - If non-negligence causes the MOST harm, the negligent party is only liable for incremental harm 6. Kingston v. Chicago & N.W. Ry. (1927) Concurrent and Successive Causation - Defendant is liable for the entire damage even if one event that merged with the defendant's negligence was not the defendant's fault ----------------------------------------------------------------------------------------------------------------------------------------------------------V. NEGLIGENCE: DUTY OF CARE AND PROOF OF BREACH (Brown, Carroll Towing Co., Louisiana Power and Light Co., Weirum, Herzog, Tedla, Shyne, Trimarco, The T.J. Hooper, Helling, Iowa High School Atheletic Ass'n, Kaufman's, Inc., Humphrey, Escola, Rowland, Erie, Tarasoff) Prima Facie elements of negligence (what a Plaintiff must prove): - Duty - Defendant owed a duty of care to Plaintiff to conform to a certain standard of conduct - Duty of care if most cases is to ACT REASONABLY under the circumstances - Breach - Defendant breached the duty of care owed to the Plaintiff (negligent conduct) - Did NOT act reasonably - Causation - Defendant's negligent conduct was the cause of Plaintiff's harm - Cause-in-fact ("but for" cause) - Proximate cause ("legal cause") - Damages - Plaintiff sustained actual loss or damages from Defendant's conduct - There has to be an ACTUAL loss that the negligence has caused - "Unreasonable": Ask whether the act itself was what a REASONABLE person would have done from an OBJECTIVE standard a) DUTY: MN Jury Instructions - Definition of "REASONABLE CARE": Reasonable care is the care a reasonable person would use in the same or similar circumstances. Hand Formula (B < P*L) B: Burden (cost of precaution) P: Probability L: Loss Restatement (Second) of Torts 291. Unreasonableness; How Determined; Magnitude of Risk and Utility of Conduct

Where an act is one which a reasonable man would recognize as involving a risk of harm to another, the risk is unreasonable and the act is negligent if the risk of such magnitude as to outweigh what the law regards as the utility of the act or of the particular manner in which it is done. Restatement (Third) of Torts 3. Negligence A person acts negligently if the person does not exercise REASONABLE CARE under all the circumstances. Primary factors to consider in ascertaining whether the person's conduct lacks reasonable care are the foreseeable likelihood that the person's conduct will result in harm, the foreseeable severity of any harm that may ensue, and the burden of precautions to eliminate or reduce the risk of harm. b) BREACH OF DUTY: Ways of Proving Breach - Evaluate Hand formula: B < P*L Violation of safety statute Failure to conform to industry custom or standards Res Ipsa Loquitur Restatement (Third) of Torts The fact finder may infer that the defendant has been negligent when the accident causing plaintiff's physical harm is a type of accident that ordinarily happens as a result of the negligence of a class of actors of which the defendant is a relevant member. MN Jury Instructions Res Ipsa Loquitur Events speak for themselves From the events of the accident, you may find that Defendant was negligent. You may do this if you find that: 1. The accident was of a kind that, in the ordinary course of events, would not have happened if Defendant had used reasonable care; and 2. Defendant was responsible for a condition that was the direct cause of the injury; and 3. The condition that caused the injury was not substantially due to actions of Plaintiff. If all of these elements have been proved, then you may or may not find that Defendant's negligence caused the accident. Res Ipsa Loquitur - For this doctrine, it applies if: 1) Defendant has exclusive control of the thing/instrument that causes injury, AND 2) Accident would not ordinary occur in the absence of Defendant's negligence; would not occur if REASONABLE CARE had been exercised - Courts use the word "DUTY" to decide that NO REASONABLE FACT FINDER COULD CONCLUDE THAT THE DEFENDANT FAILED TO MEET THE APPLICABLE STANDARD OFCARE - Duty in typical sense: asks whether the defendant had a legal obligation to the plaintiff to conform his/her conduct to a particular standard of care - NEXUS: defendant's injury-causing breach of a duty must be the breach of a duty owed specifically to the plaintiff Sudden Emergency Doctrine - a person who is suddenly confronted by an emergency through no negligence of his/her own and who is compelled to decide instantly how to avoid injury and who makes such a choice as a reasonably careful person placed in that such a position might make, is not negligent even though it is not the wisest choice Negligence Per Se; Violation of Criminal Statutes

- You have duty to obey the law and a violation of a criminal statute or administrative rules that dictates standards of behavior intended to protect others can be viewed as NEGLIGENCE PER SE - If one fails to abide by criminal statute/administrative statute that is intended for the safety of others, then it is NEGLIGENCE PER SE Categories of Visitors - Invitee: person present for business purposes; property is generally open to the public - Licensee: social guest; someone on the property with the permission of owner - Trespasser: someone on property not open to the public and without permission (explicit or implied) or the owner Restatement (Second) of Torts Trespassers 335. Artificial Conditions Highly Dangerous to Constant Trespassers on Limited Area A possessor of land who knows, or from facts within his knowledge should know, that trespassers constantly intrude upon a limited area of the land, is subject to liability for bodily harm caused to them by an artificial condition on the land, if (a) the condition (i) is one which the possessor has created or maintains and (ii) is, to his knowledge, likely to cause death or serious bodily harm to such trespassers and (iii) is of such a nature that he has reason to believe that such trespassers will not discover it, and (b) the possessor has failed to exercise reasonable care to warn such trespassers of the condition and the risk involved. 337. Artificial Conditions Highly Dangerous to Known Trespassers A possessor of land who maintains on the land an artificial condition which involves a risk of death or serious bodily harm to persons coming in contact with it, is subject to liability for bodily harm caused by trespassers by his failure to exercise reasonable care to warn them of the condition if (a) the possessor knows or has reason to know of their presence in dangerous proximity to the condition, and (b) the condition is of such a nature that he has reason to believe that the trespasser will not discover it or realize the risk. Restatement (Third) of Torts 52. Duty of Land Possessors to Flagrant Trespassers (lowest standard of care owed) (a) The only duty a land possessor owes to flagrant trespassers is the duty NOT to act in an intentional, willful, or wanton manner to cause physical harm. (b) Notwithstanding (a), a land possessor has a duty to exercise reasonable care for flagrant trespassers who reasonably appear to be imperiled and (1) helpless; or (2) unable to protect themselves. MN Jury Instructions Duty to Invitee and Licensee Duty to Possessor and Entrant Possessor's duty to protect entrants A possessor of property has a duty to an entrant to use reasonable care to protect him or her from unreasonable risk of harm (caused by the condition/activities on the premises). Entrant's duty to use reasonable care An entrant on another's property has a duty to use reasonable care for his/her own safety while on the premises. Definition of Entrant An "entrant" is a person who enters or stays on the property of another [and is not a trespasser]. MN Jury Instructions Duty to Trespassers Duty of Possessor to Trespasser Injury Caused by Condition of the Premises

Possessor's duty to warn a trespasser A possessor of property has a duty to use reasonable care to warn a trespasser of an artificial condition on the property if: 1. The possessor knows, or should know from facts already known, that trespassers regularly go on specific parts of the property where the injury happened, and 2. The possessor created or kept an artificial condition that the possessor knows is likely to cause death or serious injury, and 3. The possessor has reason to believe that trespasser will not discover the danger. MN Jury Instructions Attractive Nuisance & Trespassing Children Injury to Trespassing Children "Attractive Nuisance" Possessor's duty to trespassing children A possessor of property who keeps a structure or other artificial condition on property that injures a trespassing child is negligent if: 1. The possessor knows, or has reason to know, children are likely to trespass on the property at the place where the condition exists, and 2. The possessor knows, or has reason to know, that this condition exists, and 3. The possessor realizes or should realize that this condition involves an unreasonable risk of death or serious injury to children, and 4. The children are too young at the time of the accident to understand the risk of playing with, or being near, the hazard or do not discover the condition, and 5. The benefits to the possessor of keeping the structure or artificial condition as is and the burden of eliminating are slight compared with the risk to the children, and 6. The possessor does not use reasonable care to get rid of the danger or protect the children. Responsibility of Common Carriers for the Safety of Their Passengers - Common Carriers: held to higher duty of reasonable care and also face expansive vicarious liability on account of its special status

Minnesota Duty to Rescue Good Samaritan Law 1. Duty to Assist A person at the scene of an emergency who knows that another person is exposed to or has suffered grave physical harm shall, to the extent that the person can do so without danger or peril to self or others, give reasonable assistance to the exposed person. Reasonable assistance may include obtaining or attempting to obtain aid from law enforcement or medical personnel. A person who violates this subdivision is guilty of a petty misdemeanor. 2. General Immunity from Liability A person who, without compensation or the expectation of compensation, renders emergency care, advice, or assistance at the scene of an emergency or during transit to a location where professional medical care can be rendered, is not liable for any civil damages as a result of acts or omissions by that person in rendering the emergency care, advice, or assistance, unless the person acts in a willful and wanton or reckless manner in providing the care, advice, or assistance. This subdivision does not apply to a person rendering emergency care, advice, or assistance during the course of regular employment, and receiving compensation or expecting to receive compensation for rendering the care, advice, or assistance. ----------------------------------------------------------------------------------------------------------------------------------------------------------1. Brown v. Kendall (1850) - Defendant hit Plaintiff accidentally while trying to stop dogs from fighting with a stick - An actor is liable for unintentional injuries from an UNLAWFUL act if Plaintiff can provide evidence of FAILURE OF REASONABLE CARE from Defendant 2. United States v. Carroll Towing Co. (1947) HAND FORMULA - Duty of breach to be calculated by seeing if the BURDEN OF PRECAUTION is less than INJURY and PROBABILITY OF LOSS put together

If the burden is less, than a duty of breach has been established

3. Washington v. Louisiana Power and Light Co. (1990) HAND FORMULA & BALANCING PROCESS - When the cost of PRECAUTION is high, the actor does not have duty to take precautions for that harm - Balance the possibility of accident (slight) and the precautions needed to be taken for that slight risk (costly and burdensome) 4. Weirum v. RKO General, Inc. (1975) Issue of Foreseeability - Radio show hosting a chase-the-car situation where two "teens" got into a car crash, fatally injuring a driver - If one's affirmative act creates an undue risk of harm, he is liable for any actions taken by third parties resulting from that risk of harm. 5. Martin v. Herzog (1920) Negligence Per Se; Violation of Criminal Statute - Violation of a safety statute is NEGLIGENCE PER SE, but it can only be the basis for liability if the violation was a contribution to the accident 6. Tedla v. Ellman (1939) Negligence Per Se; Violation of Criminal Statute - Violating a safety statute does not immediately constitute negligence - In this case, the statute was designed to control the behavior of those who were to be protected (rules of the road), not those who were going to cause the harm (pedestrians) - If the sole purpose of the statute is safety, then an act that seems counter to what it states should take place if it overall protects the safety that the statute was originally set out for 7. Brown v. Shyne (1926) Negligence Per Se; Violation of Criminal Statute - Breach/neglect of duty imposed by statute/ordinance may be evidence of negligence only if there is logical connection between the proven neglect of statutory duty and the alleged negligence - In other words, there must be a LINKAGE between the duty imposed by the statute and the NEGLIGENCE itself to have NEGLIGENCE PER SE; otherwise, the violation is IRRELEVANT - [FACTS]Person, posing as a doctor with certification, gave physical treatment resulting in harm to Plaintiff - Lack of license does not mean a failure to meet standard of skill 8. Trimarco v. Klein (1982) - Custom - Shattering of glass shower doors - Customary practice can be indicative of how a reasonable duty of care is fulfilled provided the custom is reasonable 9. The T.J. Hooper (1932) - Custom - Court has ultimate say if custom is not dispositive of duty of breach - Caution is the ultimate goal and following a custom does not immunize from liability 10. Helling v. Carey (1974) Custom - A physician may still be liable in following custom if it is an inexpensive and easy test 11. Boyer v. Iowa High School Atheletic Ass'n (1967) Res Ipsa Loquitur - One can infer Defendant's negligence, in absence of specific evidence, if (1) Defendant had exclusive control and management of the thing/instrument that caused the injury and (2) if reasonable care had been used, the occurrence of the accident would not have occurred 12. Shutt v. Kaufman's, Inc. (1968) Res Ipsa Loquitur - Res Ipsa Loquitur doctrine can only be applied if there are no other means of establishing negligence - Foreseeability is not an element of Res Ipsa Loquitur 13. City of Louisville v. Humphrey (1970) Res Ipsa Loquitur - Res Ipsa Loquitur is not applicable in the absence of exclusive control over ALL POSSIBLE instrumentalities of injury - Absence of evidence in whether it was the fellow prisoners or the police officers that led the Plaintiff to his death (City does not have control over prisoners, only employees) 14. Escola v. Coca Cola Bottling Co. (1944) Res Ipsa Loquitur

Res Ipsa ONLY applies if (1) defendant has exclusive control over the instrument of injury, and (2) accident would not ordinarily occur in absence of defendant's negligence (lack of due care)

15. Rowland v. Christian (1968) Responsibility of Possessors of Land for the Safety of Entrants - When the possessor of property is aware of a concealed condition that poses an unreasonable risk of harm, the fact finder may find the possessor NEGLIGENT if he/she does not remedy the condition, or warn the guest about it, regardless of the person's status as trespasser, invitee, or licensee 16. Erie R. Co. v. Stewart (1930) Duty of Care - The voluntary revision of safety measure which the public relies on creates a duty of the provider that cannot be withdrawn without reasonable care to inform the public that the safety measure is being discontinued - If a person expects service, they have a duty to continue that service due to a RELIANCE-BASED DUTY 17. Tubbs v. Argus (1967) Duty of Care - There is no common law duty, but MORAL and HUMANITARIAN considerations may require assistance and failure of such assistance is negligence - If the actor knows or has reason to know that by his conduct, whether tortious or innocent, he has caused such bodily harm to another as to make him helpless and in danger of future harm, the actor is under a duty to exercise reasonable care to prevent such further harm 18. Tarasoff v. Regents of University of California (1976) Duty of Care - Defendant killed plaintiff after informing therapist he would do so; not tell plaintiff herself - Duty of reasonable care to protect potential victim through warning; if not BREACH OF CARE - Mental health provider determines that a patient who presents serious danger or violence to a third person, or pursuant to standards of profession should have determined that he has a duty to exercise reasonable care to protect that third party from the danger ----------------------------------------------------------------------------------------------------------------------------------------------------------VI. PROXIMATE CAUSE [NEGLIGENCE] (CSX Transp., Inc., Trident Fisheries Co., Lyons, Cahoon, Palsgraf, Shuell, Nugent, Quality Pontiac, Stahlecker, Gorris) Proximate Cause (legal causation) - There must be a SUFFICIENT relationship between what Defendant did was negligent and the harm Plaintiff experienced - Proximate cause asks whether the harm was a REASONABLY FORESEEABLE RESULT of Defendant's negligent conduct - Lack of proximate cause cuts off liability as a public policy matter even though other elements of negligence are met Issues in Assessing Proximate Cause Proximate cause issues raise one or more of the following issues: 1. Was the negligent aspect of the conduct the cause of Plaintiff's harm? 2. Was the harm to the Plaintiff WITHIN FORESEEABLE RISK posed by Defendant's negligence? 3. Was harm to this Plaintiff REASONABLY FORESEEABLE? 4. Did any superseding or intervening cause "break" the chain of proximate cause to the Defendant? Foreseeability - Defendant may be liable for foreseeable consequences of negligence - Issues to Plaintiff as a potential victim of Defendant's negligent conduct, OR a particular way in which the Plaintiff was injured - Question of FACT for the jury Mechanism/Type of Harm - Need to look for mechanism of harm for proximate cause - Was the mechanism of harm foreseeable? - Was the harm a foreseeable result of defendant's negligence? - Apply OBJECTIVE standard: What would a REASONABLE person see as the mechanism of the harm?

Differences between Proximate Cause & "Egg Shell Plaintiff Rule" - With Egg Shell rule, if the Defendant wrongfully and foreseeably causes the plaintiff's person to be invaded, and if the initial invasion systemically leads to further injury, then the defendant is liable for all injuries to the plaintiff, even if the final extent of the plaintiff's injuries was unforeseeable at the time the initial invasion occurred - For Proximate Cause, defendant is only liable for the FORESEEABLE, and not unforeseeable, consequences of the negligent conduct

----------------------------------------------------------------------------------------------------------------------------------------------------------1. CSX Transp., Inc. v. McBride (2011) Proximate Cause - If negligence played a part, no matter how small, in bringing about an injury, then negligence has played a part in the defendant's conduct 2. Ford v. Trident Fisheries Co. (1919) Proximate Cause - Defendant is liable if his negligence was a necessary condition for the injury - To be liable, there must be a nexus between the negligence and the injury incurred 3. Lyons v. Midnight Sun Transportation Services, Inc. (1996) Negligence - For a negligence claim, you need all the separate and distinct elements (duty, breach of duty, causation, and damages) - All are needed for Defendant to be liable for Plaintiff's claim 4. Cahoon v. Cummings (2000) Proximate Cause - Decedent had 25-30% chance of survival with diagnosis - "Loss of Chance" doctrine of recovery: has to be more than 50% (more likely than not) - the remedy of damages normally intended to compensate claimant's loss of expectations - In a loss of chance case, the jury must determine the probability of survival without negligence and probability of survival with negligence and damages shall be proportional to the difference 5. Palsgraf v. Long Island R.R. (1928) Foreseeability, Intervening Cause, Proximate Cause - Liability for negligence only if tortfeasor could reasonably foresee if injury will occur from his conduct - Beginning of proximate cause - Duty is general foreseeability (matter of law), Proximate cause is specific foreseeability (matter of fact) - A person suing in negligence must sue for a wrong personal to her and not as a vicarious beneficiary of a breach of another - If the act was NOT WILLFUL, then Plaintiff must show that Defendant owed her a duty (ie. That action of pushing a man on train had possibilities of danger to her) 6. Solomon v. Shuell (1990) Rescue Doctrine - Duty of care to rescuer: tortfeasor has duty of care that is independent of duty owed to the victim - Even if ACTUAL DANGER not there, REASONABLE BELIEF is only needed for rescue doctrine - Need three elements: BELIEF, ATTEMPT, PERFORMANCE 1. Is it reasonable for rescuer to believe rescue is necessary? (Reasonable belief is independent of what is actually happening to the victim) 2. Reasonable to attempt the rescue? 3. Did rescuer carry out rescue in a reasonable manner? - A negligent defendant may be liable to one who is injured in an effort to rescue another put at risk by the defendant's negligence 7. Marshall v. Nugent (1955) Foreseeability of the Nature and Circumstances of Plaintiff's Particular Harm - Question of proximate cause is a matter of FACT - For fact of foreseeability, it is not necessary to predict the EXACT TYPE OF HARM to be foreseeable 8. Herrera v. Quality Pontiac (2003) Intervening Act - If there is an intervening cause, then defendant is not liable and no proximate cause of defendant's negligence - However, even with this rule, court is not saying that this is not the holding - Saying that it's left to the jury to see whether it IS or it's NOT a proximate cause because of intervening act

9. Stahlecker v. Ford Motor Company (2003) Intervening Act/Cause - If the defendant has a duty to foresee intervening criminal act and prevent it, that act does not remove defendant's liability - If defendant had duty to foresee intervening cause, then criminal act cannot supersede defendant's liability 10. Gorris v. Scott (1874) Statutory-Based Negligence - For statutory-based negligence, statute's purpose must be in accord with the injury - Sheep being washed overboard was not a part of the statute ----------------------------------------------------------------------------------------------------------------------------------------------------------VII. NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS [NIED] (Waube, Dillon, Thing) - Mental and Emotional Upset: result of the defendant's negligent conduct, but with no physical injury predicate - Plaintiffs are upset by the prospect of themselves being physically injured, or from having experienced other victims suffering physical injury - Approach: "PURE LIABILITY BASED ON FORESEEABILITY RULE" - Plaintiff may recover for mental and emotional upset whenever it is determined that the psychological harm to the plaintiff was foreseeable - 1st Liability-limiting rule: "IMPACT RULE" - No recovery for any resulting physical manifestations of fright alone Dillon v. Thing DILLON: Secondary liability requires that the emotional distress of the third party be "reasonably foreseeable", and that foreseeability must be a primary concern in determining liability 1. Whether Plaintiff was near the scene of the accident as contrasted with one who was a distance away from it 2. Whether Plaintiff actually observed the accident (as contrasted with learning from others after its occurrence) 3. Whether Plaintiff was closely related to victim (as opposed to absence of any relationship or a distant relationship) The evaluation of the three factors will indicate the degree of the defendant's foreseeability

THING: To be compensable, emotional distress must be something more than "that form of acute emotional distress or transient emotional reaction to the occasional gruesome or horrible incident to which every person may potentially be exposed in an industrial and sometimes violent society." Recovery should be available only to "the class of potential plaintiffs ... who because of their relationship suffer the greatest emotional distress." A plaintiff may recover damages for emotional distress caused by observing the negligently inflicted injury of a third person if, but only if, said plaintiff: 1. Is closely related to the injury victim; AND 2. Is present at the scene of the injury producing event at the time it occurs and is then aware that it is causing injury to the victim; AND 3. As a result suffers serious emotional distress a reaction beyond that which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstances [i.e., an abnormal response is not compensable] ----------------------------------------------------------------------------------------------------------------------------------------------------------1. Waube v. Warrington (1935) Impact & Zone of Danger - If not in zone of danger, then it doesn't matter how severe the emotional distress is, you are not entitled to damages - In order to collect, must be in ZONE OF DANGER - Potential tortfeasor has no duty to of care for persons outside of zone of danger

2. Dillon v. Legg (1968) Liability to Bystanders - Negligent driver may be held liable for the suffering of a close relation who, when the injury happened, was AT THE SCENE and OBSERVED the accident occur; if not, she/he was not within zone of danger - For secondary liability, primary liability is needed; if primary liability is barred, then secondary liability is barred as well 3. Thing v. La Chusa (1989) Liability to Bystanders - Emotional relief may be granted if 1) the bystander is closely related, 2) present at the scene of the injury-producing event, 3) suffers beyond normal emotional distress - Creating a bright-line rule and saying need some level of foreseeability ----------------------------------------------------------------------------------------------------------------------------------------------------------VIII. PURE ECONOMIC LOSS (Donau Maru, J'Aire Corp., Consolidated Rail Corp.) Purely Consequential Economic Loss - Damages not payable for purely economic loss - i.e., On the way to airport, miss flight due to accident but prepaid for everything in advance - Could analyze this under PROXIMATE CAUSE but main loss was MONETARY - If there was personal injury or damages, then could collect damages, but if not, cannot collect damages RULES: 1. No Liability Rule: - Without attendant physical/emotional harm, Plaintiff cannot recover for purely economic loss 2. Special Relationship exists between parties? - 6 Duty of Care criteria: 1. The extent to which the transaction was intended to affect the plaintiff 2. The foreseeability of harm to the plaintiff 3. The degree of certainty that the plaintiff suffered injury 4. The closeness of the connection between the defendant's conduct and the injury suffered 5. The moral blame attached to the defendant's conduct, and 6. The policy of preventing future harm 3. Proximately caused economic loss to particular Plaintiff: - Defendant who has breached his duty of care to avoid the risk of economic injury to PARTICULARLY FORESEEABLE PLAINTIFFS may be held liable for actual economic losses that are PROXIMATELY CAUSED by its breach of duty - When a specifically identifiable class is likely to suffer loss EXCEPTIONS: 1. Special causal relationship between the Plaintiff and the Defendant 2. Defamation 3. Commercial Fishermen ----------------------------------------------------------------------------------------------------------------------------------------------------------1. Barber Lines A/S v. M/V Donau Maru (1985) No Liability Rule - Negligently caused economic loss is not recoverable absent SPECIAL CIRCUMSTANCES, even if the damages are foreseeable - No contact? No recovery 2. J'Aire Corp. v. Gregory (1979) Special Relationships - Recovery for negligence with prospective economic advantage is limited to instances where risk of harm is foreseeable, and is closely connected with defendant's conduct where damages are not wholly speculative and injury not a part of plaintiff's ordinary business risk 3. People Express Airlines, Inc. v. Consolidated Rail Corp. (1985)- Particular Foreseeability - Defendant owes a duty of care to take reasonable measures to avoid the risk of causing economic damages, aside from physical injury, to particular plaintiffs comprising an identifiable class -----------------------------------------------------------------------------------------------------------------------------------------------------------

IX. CONTRIBUTORY FAULT (Butterfield, Mann, Meistrich, Stelluti, Jewett) - Issues in contributory fault: - Contributory negligence - Assumption of risk - Comparative negligence - All are AFFIRMATIVE DEFENSES defendants must raise Contributory Negligence - Plaintiff who is negligent (not taking reasonable care for his safety) and whose negligence contributes PROXIMATELY to his injuries, is TOTALLY BARRED FROM RECOVERY - A complete defense shifts the loss totally from the defendant to the plaintiff, even if plaintiff's departure from reasonable was less marked than the defendant Restatement (Second) of Torts Last Clear Chance 479. Helpless Plaintiff A plaintiff who has negligently subjected himself to a risk of harm from the defendant's subsequent negligence may recover for harm caused thereby if, immediately preceding the harm, (a) the plaintiff is unable to avoid it by the exercise of reasonable vigilance and care, and (b) the defendant is negligent in failing to utilize with reasonable care and competence his then existing opportunity to avoid the harm, when he (i) knows of the plaintiff's situation and realizes or has reason to realize the peril involved in it or (ii) would discover the situation and thus have reason to realize the peril, if he were to exercise the vigilance which it is then his duty to the plaintiff to exercise. 479. Inattentive Plaintiff A plaintiff who, by the exercise of reasonable vigilance, could discover the danger created by the defendant's negligence in time to avoid the harm to him, can recover if, but only if, the defendant (a) knows of the plaintiff's situation, and (b) realizes or has reason to realize that the plaintiff is inattentive and therefore unlikely to discover his peril in time to avoid the harm, and (c) thereafter is negligent in failing to utilize with reasonable care and competence his then existing opportunity to avoid the harm. Assumption of Risk - Express: Explicit by verbal or written contract (or other express acknowledgement) - P agrees by contract in advance to waive right to bring a tort action against a defendant EXAMPLES: - Plaintiff waives right to sue landlord in residential lease - Plaintiff waives right to sue ski hill when buying a lift ticket - Plaintiff waives right to sue white water rafting company - This type of assumption of the risk has nothing to do with plaintiff's conduct or negligence aside from the agreement to waive tort rights - These contracts are generally upheld unless court determines they are against public policy or they are in some sense unreasonable - "Primary": Risk inherent in the activity and given that risk, Defendant did not breach a duty of care Primary assumption of risk (PAR) is about failure to prove breach of a duty of care because of the TYPE of activity engaged in or plaintiff's status PAR doesn't focus on whether plaintiff is negligent or not; it's a deficiency in plaintiff's prima facie case, NOT an affirmative defense PAR allows jury (or judge) to find no liability for defendant because type of activity or plaintiff's status allows conclusion that no duty was breached PAR can apply when plaintiff engages in a dangerous activity or is in a dangerous profession (i.e., firefighter rule) Plaintiff's decision to engage in activity not necessarily unreasonable but plaintiff has assumed a known risk inherent in activity

- "Secondary": Plaintiff knew risk that defendant would be negligent and proceeded knowing that risk Secondary assumption of risk (SAR) is based on plaintiff's awareness of risk already posed by defendant's potential negligence but plaintiff proceeds anyway Many jurisdictions now say this is no longer a separate affirmative defense, but has been merged into contributory negligence (i.e. it was negligent for plaintiff to undertake the action) Meistrich Other jurisdictions (and Second Restatement) say if plaintiff recognizes a risk posed by defendant's conduct or property and still goes forward even though other options are available, SAR can be either a complete or a partial defense to liability Comparative Negligence - Rejecting the contributory fault "all or nothing" approach (either the plaintiff is not contributorily negligent where he receives full damages or if he is, he gets nothing) - Attempts to divide liability between plaintiff and defendant, in PROPORTION to their relative degrees of fault i.e., If plaintiff 75% negligent and defendant 25% negligent, then 25% recovery for plaintiff - If plaintiff's negligence is as much negligent as defendant's, NO RECOVERY ----------------------------------------------------------------------------------------------------------------------------------------------------------1. Butterfield v. Forrester (1809) Contributory Negligence - One person being at fault does not eliminate the need for the other to use ordinary care for himself - Defendant is at fault for putting obstruction on the road and Plaintiff used no ordinary care to avoid it 2. Davies v. Mann (1842) Contributory Negligence - Barring plaintiff's recovery on contributory negligence, there must be evidence of PROXIMATE CAUSE - Plaintiff's negligence does not necessarily exempt defendant's duty to exercise reasonable care 3. Meistrich v. Casino Arena Attractions, Inc. (1959) Assumption of Risk - It is contributory negligence when plaintiff proceeds with risky activity, even with knowledge of defendant's negligence - Primary assumption of risk: breach of duty (Did defendant have a duty that was breached?) - Plaintiff's burden to prove defendant breached duty - Secondary assumption of risk: contributory negligence (Was the plaintiff also negligent?) - Burden on defendant to show plaintiff knew the risk and went with it anyhow 4. Stelluti v. Casapenn Enterprises, LLC (2010) Express Assumption of Risk & Exculpatory Clause - S 5. Knight v. Jewett (1992) Comparative Negligence & Primary Assumption of Risk - If an intentional conduct is not within the range of ordinary activity in an inherently risky activity, it is a breach of legal duty - Primary Assumption: risk inherent in the activity and given that risk, defendant did not breach a duty - Stress on the defendant and whether defendant breached a duty ----------------------------------------------------------------------------------------------------------------------------------------------------------X. STRICT LIABILITY (Rylands, Turner, Kuhlman, PSI Energy, Inc., Preston Mill Co.) - Strict Liability: - Animals - Escape due to non-natural use of land - Abnormally dangerous activities - Products liability - Strict liability can impose liability on a party without finding fault - Strict liability does not need negligence claim to be applied - A claimant only needs to prove tort occurred and that defendant responsible - law imputes strict liability to situations it considers to be INHERENTLY dangerous

Restatement (Second) of Torts 520. Determining if an Activity is "Abnormally Dangerous" - Whether the activity involves a high degree of risk of some harm to the person, land or chattels of another; - Whether the gravity of the harm which may result from it is likely to be great; - Whether the risk cannot be eliminated by the exercise of reasonable care; - Whether the activity is not a matter of common usage; - Whether the activity is inappropriate to the place where it is carried on; and - The value of the activity to the community. Restatement (Third) of Torts 20. Determining if an Activity is "Abnormally Dangerous" a. An actor who carries on an abnormally dangerous activity is subject to strict liability for the physical harm resulting from that activity; b. An activity is abnormally dangerous if: 1. the activity creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors; and 2. the activity is not one of common usage 1. Maintaining Custody of Animals - Restatement adopted, saying that "a possessor of livestock which intrude upon the land of another is liable for their intrusion and for any harm done while upon the land ... although the possessor of the livestock exercised the utmost care to prevent them from intruding" - For domestic animals, owner of animal strictly liable to injured person if the owner knows of the vicious tendencies of the animal

Restatement (Third) of Torts 23. Abnormally Dangerous Animals An animal or possessor of an animal that the owner or possessor knows or has reason to know has dangerous tendencies abnormal for the animal's category is subject to strict liability for physical harm caused by the animal if the harm ensues from that dangerous tendency. 2. Abnormally Dangerous Activities - There must be: 1. High degree of risk must have a high degree of risk to person, land, or chattels of others 2. Risk of serious harm likelihood that the harm will cause GREAT results 3. Cannot be eliminated even by due care 4. Not a matter of common usage 5. Appropriateness inappropriateness of activity to the place it is carried on 6. Value extent to which value to community is outweighed by the dangerous attribute ----------------------------------------------------------------------------------------------------------------------------------------------------------1. Fletcher v. Rylands (1866) Abnormally Dangerous Activities & Natural Use of Land - A person is liable if he brings something on his land, whether it be lawful or not, that will naturally do mischief once it gets out of the land, even though it may not cause any harm while within that person's land - Also, since the keeping of the water was an UNNATURAL use of land, the owner had a duty to keep the water within his property - Water from Defendant's reservoir came and flooded the Plaintiff's mine and Plaintiff awarded damages, even though there was no negligence on the part of Defendant and the soil defect was unknown to the Defendant 2. Turner v. Big Lake Oil Co. (1936) Abnormally Dangerous Activities & Natural Use of Land - If a usage of chattel is a NATURAL use of land, then the Fletchers v. Rylands rule cannot apply

Also, the keeping of salt water is a necessary part to the defendant's business, and thus, in this case NEGLIGENCE is required for recovery

3. Siegler v. Kuhlman (1972) Abnormally Dangerous Activities - Strict liability is applied to cases of abnormally dangerous activities and defendant is liable even if utmost care was taken to prevent such harm - Factors for abnormally dangerous activity: (1) high degree of risk of some harm, (2) gravity of harm likely to be great, (3) not common usage, (4) inappropriate to place where it is carried on, (5) value of activity to community - Hauling explosive materials like gasoline constitutes an abnormally dangerous activity that is subject to strict liability 4. PSI Energy, Inc. v. Roberts (2005) Abnormally Dangerous Activities - In working with asbestos, plaintiff grew sick over time and pursuing suit against employer - Although asbestos is inherently dangerous, if work is not intrinsically dangerous IF reasonable care is used in working with such toxin, then it is not "abnormally dangerous activity" and thus no strict liability 5. Foster v. Preston Mill Co. (1954) Abnormally Dangerous Activities - Although strict liability imposed in blasting cases, but - Strict liability should be confined to CONSEQUENCES lying within the EXTRAORDINARY risk of the ABNORMALLY DANGEROUS activity (the extraordinary risk not wild animals killing their young) - Although blasting (generally considered an abnormally dangerous activity), court will not apply strict liability to HYPERSENSITIVE reactions to activities ----------------------------------------------------------------------------------------------------------------------------------------------------------XI. PRODUCTS LIABILITY (Buick Motor, Bloomfield Motors, Vandermark, Union Pump, Fairbanks Morse, Hankscraft Co, Black & Decker, Jumpking, Heaton, General Motors, Branham, AGV Corp, Badger Mining) Three Types of Cases: 1. Manufacturing Defect: - Something screwed up in the manufacturing process, and batch of units might have contaminated a run of a product - Where strict liability is most relevant - Subset problem - Strict Liability - Warranty 2. Design Defect: - Not just this UNIT that is bad, but the design itself is at fault - Not just a subset problem, but a problem with all products with this design - Express Warranty - "Strict Liability" with elements of negligence 3. Defect in Warnings or Instructions: - Product advertised for things it should not be used for - Inadequate advertising/warning - "Strict Liability" with elements of negligence Three Bases for Liability in Products Liability Claims - The three elements are, although distinct theories of liability, often combined in the plaintiff's claim for relief 1. Negligence 2. Breach of Warranty (contract claim) 3. Strict Liability 2. Breach of Warranty 2-314. Implied Warranty: Merchantability; Usage of Trade (1) Unless excluded or modified, a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. Under this section the serving for value of food or drink to be consumed either on the premises or elsewhere is a sale.

(2) Goods to be merchantable must be at least such as - Pass without objection in the trade under the contract description; and - In the case of fungible goods, are of fair average quality within the description; and - Are fit for the ordinary purposes for which such goods are used; and - Run, within the variations permitted by the agreement, of even kind, quality and quantity within each unit and among all units involved; and - Are adequately contained, packaged, and labeled as the agreement may require; and - Conform to the promises or affirmations of fact made on the container or label if any. (3) Unless excluded or modified other implied warranties may arise from course of dealing or usage of trade Three Types of Warranties 1. Express Warranty 2. Implied Warranty of Merchantability 3. Implied Warranty of Fitness for a Particular Purpose 3. Strict Liability - A manufacturer's liability is sufficient when plaintiff proves that he was injured while using the product that was intended to be used and as a result of a defect in design the plaintiff was injured. Restatement (Third) of Torts 19. Definition of "Product" (a) A product is tangible personal property distributed commercially for use or consumption. Other items, such as real property and electricity, are products when the context of their distribution and use is sufficiently analogous to the distribution and use of tangible personal property that is appropriate to apply the rules stated in this Restatement. (b) Services, even when provided commercially, are not products... Plaintiff's Prima Facie Case: CAUSATION 1. Actual Causation (Cause-in-Fact) 2. Proximate (Legal) Causation Reasonable Alternative Design - Risk-utility analysis: Does utility of a product outweigh the unavoidable risks (i.e., risks that cannot be designed out)? - Reasonable alternative design (not all states) - No alternative design required if the existing design is "manifestly unreasonable" - Do increased costs of making or using alternative design result in significant loss of productive utility? - Does alternative design introduce new risks that are equal to or greater than existing risks? - Expert testimony often needed, and while Restatement does not require that a prototype be produced, some courts may interpret aspects of the Daubert decision on expert testimony as imposing such a requirement to prove that alternative is in fact practical and doesn't create new risks in order for expert's testimony to be deemed "reliable" Restatement (Third) of Torts 2. Categories of Product Defect A product is defective when, at the time of sale or distribution, it contains a manufacturing defect, is defective in design, or is defective because of inadequate instructions or warnings. A product ... (b) is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative esign by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe Consumer Expectations Test Not Dispositive - Restatement (Third) of Torts states that the consumer expectations test should be considered a FACTOR in deciding whether a product is defective, but NOT A DISPOSITIVE ONE Risk-Utility/Balancing Process - Where a negligence standard is used, the key issue is the REASONABLENESS OF THE MANUFACTURER'S CONDUCT IN PLACING THE PRODUCT ON THE MARKET (a) the relative need for the product (b) the likelihood that the product will cause injury, as well as the probable severity of such injury,

(c) the availability of an affordable and safer alternate design ----------------------------------------------------------------------------------------------------------------------------------------------------------1. MacPherson v. Buick Motor Co. (1916)- Negligence in Products Liability - If a product is reasonably expected to be dangerous if negligently made and the product is known to be used by those other than the original purchaser in the normal course of business, a duty of care exists - Plaintiff sued defendant for negligence in faulty wheel, but defendant argued that the wheel was by another manufacturer, and also that it did not have care of duty since it went through the retailer 2. Henningsen v. Bloomfield Motors, Inc. (1960) Breach of Warranty in Products Liability - A seller may not use standard contract language of implied warranty of merchantability such to limit liabilities of defective products where the power is such that the buyer does not have bargaining leverage - A buyer may recover damages for defective parts under implied warranty of merchantability since manufacturers may not limit warranty to replace only defective parts as this would violate fair dealing and public policy 3. Vandermark v. Ford Motor Co. (1964) Strict Liability in Products Liability - Both manufacturer and others in the chain of distribution are subject to strict liability in tort for injuries or damages caused by products that are defective due to manufacture assembly or adjustment - Even if the process is delegated to third parties, a manufacturer cannot escape liability when it authorizes the dealers to do the final checking/selling 4. Union Pump Co. v. Allbritton (1995) Proximate (Legal) Causation - For strict liability, a "producing cause" is the test and for negligence, requires a PROXIMATE CAUSE - Producing cause is a CONTRIBUTING cause, where (1) it must be a substantial cause of the event, and (2) it must be a BUT FOR cause, one without which event would not have occurred - Since the fire was extinguished by the time the accident had occurred, everything had "come to rest" 5. Murray v. Fairbanks Morse (1979) Contributory Fault (Affirmative Defense) - When plaintiff's conduct is faulty (exposing himself to an unreasonable risk of harm which causes part of his injuries), the manufacturer should not be required to pay that portion of the loss attributed to the plaintiff's fault - However, even if plaintiff's fault is determined to be greater than that of defendant's, plaintiff can still recover under strict product liability - Comparative fault should apply to products strict liability claims (fault is ascribed to defendant when product is found to be defective) - Trier of facts should reduce proportion of damages in relation to the plaintiff's causal contribution to his own injury 6. McCormack v. Hankscraft Co. (1967) Defective Design - A defective design, in which there is an alternative design available that can reduce the user's risk to injuries, is an instrument for product liability - A manufacturer's breach in exercising reasonable care and failure to adequately warn makes it liable for strict liability 7. Troja v. Black & Decker Manufacturing Co. (1985) Defective Design & Balancing Process - Risk-utility balancing test is required in deciding a defective design suit - A balancing process should be weighed with factor in determining whether a product is safe: (1) usefulness/desirability of product; (2) safety aspects of product; (3) availability of substitute product that is not unsafe; (4) manufacturer's ability to eliminate unsafe character of product without making it too expensive; (5) user's ability to avoid danger with due care; (6) user's awareness of inherent danger in product; (7)feasibility of manufacturer of spreading loss by setting price 8. Parish v. JumpKing, Inc. (2006) Defective Design & Social Purpose - 2 categories regarding inherently dangerous products: (1) products with LOW social utility Restatement suggests that there is no need for ALTERNATE design due to its inherent dangerous trait; serving no social utility purpose; (2) common and widely distributed products need to show alternative; trampoline falls in the LATTER CASE (plaintiff cannot win without showing alternate design) - Also, if there is sufficient warning for the common and widely used product, then the plaintiff should take reasonable care in using the product

9. Heaton v. Ford Motor Co. (1967) Defective Design & Consumer Expectations Test (not dispositive) - Even if there is no evidence to prove exact manufacturing flaw, plaintiff can recover if product didn't perform within the REASONABLE EXPECTATIONS of the user - Consumer Expectations Test: (1) A reasonable person's expectation OR plaintiff's actual expectations? 10. Soule v. General Motors Corp. (1994) Defective Design - The Consumer Expectations Test should be used when ordinary knowledge may permit an inference that product did not perform as safely as it should have - The Risk-Utility test should be used when there is a complex product that ordinary consumers will have NO IDEA about the performance expected 11. Branham v. Ford Motor Co. (2010) Defective Design - In complex design cases, consumer expectation test should not apply; risk-utility balancing process should be used instead 12. Sheckells v. AGV Corp. (1993) Failure to Warn - There is no duty to warn if the danger is open and obvious ----------------------------------------------------------------------------------------------------------------------------------------------------------XII. DAMAGES (Bright, Coyne, Ruzzi, Mauro, Grayson, Hitchcock, McDougald, Jones, Campbell) Two Types of damages - Compensatory Damages - Special Damages (Economic Damages) - Medical Expenses (past and future) - Must be reasonably necessitated by tort - Must be reasonable in nature (treatment and charges must be reasonable) - Lost Wages (including lost earning capacity) - How much COULD the plaintiff have earned/made? - Property Damage - Other Expenses (home modification, assistance) General Damages (Noneconomic Damages) - Pain and Suffering - Other Noneconomic Damages: Loss of enjoyment of life (hedonistic damages), Disfigurement, Loss of ChildBearing Capability, Loss of Consortium

- Punitive (Exemplary) Damages - Specifically intended to PUNISH over and above damages that are compensatory - Punitive damages are beyond compensation - Nominal Damages - Intentional torts only - No need for proof Economics of Settlement - Concept of Risk Preference - Risk Neutral - Risk Averse - Risk Preferrer - Case Parameters - $20,000 at Stake - 70% Chance that Plaintiff Will Win - Cost Plaintiff $4,000 to Go to Trial - Cost Defendant $3,000 to Go to Trial Gore Factors (Punitive Damages)

1. The degree of reprehensibility of defendant's conduct. - Physical vs. Economic Harm - Reckless disregard of the health or safety of others - Target of conduct was financially vulnerable - Repeated actions or isolated incident - Was intentional malice, trickery, or deceit, as opposed to pure accident, involved 2. The disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award. 3. The difference between the punitive damages award by the jury and the civil penalties authorized or imposed in comparable cases. ----------------------------------------------------------------------------------------------------------------------------------------------------------1. Williams v. Bright (1997) Compensatory Damages Special - (Medical Expenses) - For failure to mitigation of damages due to a specific religious belief, jury must determine whether plaintiff acted reasonably AS A PRUDENT PERSON in caring for injuries under all circumstances confronting her, with factor of religion taken into consideration 2. Coyne v. Campbell (1962) Compensatory Damages Special - (Medical Expenses) - Collateral sources received out of gratuitous service cannot be compensable if plaintiff did not pay for services rendered and the services were rendered by relatives, neighbors, friends, etc. 3. Ruzzi v. Butler Petroleum Company (1991) Compensatory Damages Special - (Lost Wages) - When permanent injury is involved, the whole life span must be considered, and thus it is not the status of the immediate present which determines capacity for remunerative employment 4. Mauro v. Raymark Industries, Inc. (1989) Compensatory Damages - Special - If the probability of harm does not exceed 50%, recovery for SPECULATIVE damages may not be awarded - This case was a speculative damage because plaintiff didn't have lung cancer, but had high risk 5. Grayson v. Irvmar Realty Corp. (1959) Compensatory Damages Special - (Lost Wages) - For speculative and prospective damages in relation to young adults, jury must assess GENUINE potentialities, as evidenced by objective circumstances - This case was for speculative and prospective damages because it was a young woman who did not yet enter into the profession and was not yet generating any source of income 6. Walters v. Hitchcock (1985) Compensatory Damages General - If the damages given "shock the conscience," then the size of the verdict is excessive 7. McDougald v. Garber (1989) Compensatory Damages General (Hedonistic Damages) - Cognitive awareness is a prerequisite to recovery for loss of enjoyment of life - For pain and suffering, there must be "some level of awareness" in order for plaintiff to recover 8. State Farm Mutual Automobile Insurance Company v. Campbell (2003) Punitive Damages - In deciding whether an award of punitive damages violates due process is the RATIO OF THE PUNITIVE DAMAGES TO THE ACTUAL DAMAGES - Few awards exceeding a single-digit ratio between punitive and compensatory damages will satisfy due process - Gore Factors: 1. The degree of reprehensibility of defendant's conduct: - The behavior in some states is lawful 2. The disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award: - Single-digit multipliers are more likely to comport with due process, reasonable and proportionate 3. The difference between the punitive damages award by the jury and the civil penalties authorized or imposed in comparable cases: - Punitive damages are not a substitute for the criminal process and the remote possibility of a criminal sanction does not automatically sustain a punitive damage award -----------------------------------------------------------------------------------------------------------------------------------------------------------

XIII. INSURANCE

Various kinds of insurance that get involved in torts: o Most common: AUTO insurance Covers damage to your own car with deductible o Second common: HOME OWNERS/TENANTS insurance Both include liability as a kind of coverage, mostly covering premise liability (something happens on your property to someone else, up to whatever limits you got it's covered) Do not include deductible, like auto May have umbrella policy (adds on, increases liability) o Commercial liability policy Liability insurance bought by commercial entities to cover auto accidents by employees, etc Medical malpractice liabilities do not have deductibles o Professional negligence liability policy (?) Difference between commercial/individual/professional is that they have deductible for liability o Self-insured retention Situations where there is large amounts of self-insured retention Self-insurance will, in effect: you have to pay those out as insurer yourself before drawing out of insurance Cost of defense included in limits? Or over and above limits? Eg. 100k $ auto insurance, over will be paid to other side? o Workers compensation insurance Workers comp: if you're covered, you cannot sue employer for employer's negligence But if you're involved in injury where other party to blame other than employer, then interaction between tort liability and workers comp Significance of insurance: o One issue: settlement idea; RISK PREFERENCE, RISK-NEUTRAL (indifferent to two choices as to value) 1% chance of losing $10k, 10% chance of losing $1k, or paying $100 If you are risk-neutral, all the same If you play the game over and over again, on average, it's the same outcome If you're risk-averse, you would pay over the premium to transfer risk o Insurers are most of the time risk-neutral o Get into risk-pooling If you're insurer, may decide to change $2500 to transfer risk If you sell 10,000 policies, what is the chance you'll lose money? What insurance companies do Problems of insurance: o Imperfect information Insurer may know more about you than yourself Adverse selection: those at greater risk are more likely to buy insurance Challenge: who is more likely at risk? Do it through various categories (health insurance: look at age) But also people will behave depending on their perception of risk What underlies health insurance mandate Must charge more because person meting it will have to pay more Everyone will have chance of meeting it, but will pay more when you do Moral hazard: more likely to engage in risky behavior Problem: insurance works as compensating victims (tortfeasor has to pay victim) Small role of tort system for compensating personal injuries o Only small part of money on tort system spent on compensating o When talking about tort system, not just cases that get into court (most auto cases never get into lawsuit being filed) If accident is fault of an uninsured motorist, who does not have insurance, and you still have to prove that other person liable, insurance company will pay maximum of uninsured auto o Will pay difference between tortfeasor motorist coverage and your under-insured coverage? If you're under-insured

Insurance central to how money WILL be paid o Plaintiffs will settle cases for no more than how insurance settled Most states have upheld compulsory liability insurance o Liability insurer notified when insurance lapses

Conflict between insured and insurer o Aside from under-insured or non-insured, where conflict in prosecuting a tort claim A question about coverage (whether or not insurance covers insurance - state farm vs gw) A possibility that damages exceed policy limit? Insured happy to have insurance covered Coverage case: o Issues to whether defend reservation of rights (yeah I will defend it) If you don't have coverage, you're out of there

Crisci v. Security Insurance Co. (1967) Issue: o What duty does insurer have when insured exceeds insurer's policy? Does the insurer have duty to protect insured? o Emotional damages: mix of contract and tort (contract: no damages for emotional harm) If pure contract case, there is no emotional damages for emotional harm If tort element: there is emotional harm Implied covenant of good faith and dealing: no harm to another o In a liability insurance policy, there is obligation of insured to cooperate with defense/assist defense o If insured is not cooperative, there is grounds for insurance company to discontinue coverage Not just obligation by insurance company o "Where there is great risk of recovery" "Warranted rejection of an unreasonable offer" Insurer may not gamble insured's money to further interests They have to be ready to waive policy limits o Gamble with your money not her money if you think you're going to win o If you don't, however, it will be award of 100$k, then you must cover that whole amount DUTY TO SETTLE -----------------------------------------------------------------------What are the duties of a lawyer who is hired by insurance company to defend an insured? (ie. In auto accident, sued: you don't pick lawyer, the insurance company hires and pays for lawyer: what obligations and issues does that create for lawyer?)

State Farm Mutual Automobile Insurance Company v. Campbell (2003) Insurance company's own advisers: advised settling o State farm, insurer, insured defendant in initial case (Campbell) Assets were safe, no liability for accident, and State Farm would represent their interest so no need to hire separate council o At first trial, went to jury, jury found for plaintiff and damage award for $135k over Campbell's insurance limit Lawyer from State Farm "You may want to put a for sale sign to get things moving" o State Farm refused to provide any council for appeal o Campbell retained own lawyer Bifurcated trial: o First trial liability o If liability found, trial for damages Here, they tried liability and compensatory damages Then, separately, dealt with question of punitive damages

Before second trial decided,

Gore Factors 1. The degree of reprehensibility of defendant's conduct 2. The disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award 3. The difference between the punitive damages award by the jury and the civil penalties authorized or imposed in comparable cases

Decided it was successive due to Gore Factors They found that in gore factors, degree of reprehensibility in elements of case, but not as much worth as found Doesn't say that the conduct was totally irrelevant o In what way conduct out of state relevant? Cannot be basis for talking about AMOUNT of punitive damages Can talk about whether punitive damages awarded or not, but not to HOW MUCH for punitive damages Punitive damages: o Punishing behavior that impacts many people Compensatory award in this case: o So large that it incorporates punitive element Except in exceptional circumstances, punitive damages too much