TORTS

Prosser, Wade and Schwartzs Torts: Cases and Materials Schwartz, Kelly, and Partlett Part IIntentional TortsElements I. Intenta desire to bring about a consequence or belief that the consequence or belief that the consequences are substantially certain to result. An act is intentional if it is done for the purpose of bringing about a certain result or with knowledge to a substantial certainty that particular result will occur. a. Intent to make contact is most important for intentional torts i. Exthrowing a rock at a person a long way off. Intentionally threw the rock, but lacked the purpose of causing contact and the knowledge to a substantial certainty that contact would occur. b. Mistake in identityone who intends to cause contact but mistakes the identity of the object he is contacting is liable for the tort committed. Mistake is irrelevant. i. HypoHunters were in the woods. They saw what they thought was a wolf, so they shot the animal. After they shot the animal, they realized that they shot a dog. The court found that the hunters were liable for damages, because the hunters intended to shoot the animal. ii. If a person was not liable for damages done by mistake in identity, then the person could be unjustly enriched. If did not have the rule, then people would make up stories to escape liability. iii. Defendant may escape liability if the Plaintiff induced the mistake in facts, since both parties are equally at fault. c. Insanitynot a defense i. Where an insane person by his act does intentional damage to the person or property of another he is liable for that damage in the same circumstances in which a normal person would be liable. Insane person must have been capable of entertaining that intent and must have entertained it in fact 1. Fact Pattern and ApplicationAn insane person hit her nurse in the head with a lowboy. The person threatened to hit the nurse. The court found insanity was not a defense. ii. Exceptionsome jurisdictions have held that an institutionalized mentally disabled patient who cannot control or appreciate the consequences of his conduct cannot be held liable for injuries caused to those employed to care for the patient. iii. Exceptionif mentally ill person lacks the ability to form the intent to commit a tort, an action may lie against persons responsible for caring for the mentally ill person, based on negligent supervision. d. Childrenif they can form the intent, then they are liable if they have the purpose and intent Transferred Intent a. When the defendant intends to cause a tortuous act to another person and accomplishes a tortuous act on the plaintiff. When defendant intends one tortuous act to the plaintiff but succeeds in another tortuous act to the plaintiff. i. Fact Pattern and ApplicationA intended to B with a stick. Instead A hit C in the eye. A is liable for the damages to C. b. The idea behind transferred intent is that a defendants act is so wrongful that the defendant should not be permitted to escape liability for the damages that were in fact inflicted merely because the defendant did not anticipate the course of events as they matured. c. Transferred between torts and persons. There must be a tortuous act and tortuous intent. d. Does not apply if doing a lawful act. Exshooting a deer. The bullet misses deer and strikes a person This would not be a transferred battery because it was a lawful act to shoot the deerhunter was not committing a battery by shooting the deer. e. Applies to five torts
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i. Battery ii. Assault iii. False imprisonment iv. Trespass to land v. Trespass to chattels f. HypoA intentionally burns down a house (trespass to chattels) A believes to be empty and kills B who is sleeping inside (battery). A is liable for the battery because he intended to commit trespass to chattels. g. If tort committed or accomplished does not fall within these five torts, then the intent does not transfer. Eggshell Skull Theorya person is liable for all injuries resulting from a tort they commit, whether or not the injuries were foreseeable. ExA trespasses onto Bs land, scaring Bs bull. The bull charges, breaking through the fence, trampling C, charging through Bs barn, knocking over a lantern, lighting a fire that burns down the barn. A is liable for all the damages. Battery a. Acting for the purpose of causing or knowing to a substantial certainty that the act would cause a harmful or offensive contact or the imminent apprehension of harmful or offensive contact to the person or a third person and contact results to the person. a. Harmful Contactcauses pain b. Offensive Contacta reasonable person would find offensive; no change to the person of the person and no measurable damage to her property. b. Interest protectedinviolability of a person c. Exceptions i. A person does not have to aware that the battery occurred. Exif A kisses B while B is sleeping, B can sue A for battery. ii. Extended Personality Rulecontact with a person or something so closely connected to a persons body to be considered a part of the body. Exsomething someone is holding with his hand or his clothes. Kick a cane out from under an old man. iii. Known Sensitivity Ruleif the defendant has knowledge that a certain contact is offensive to the plaintiff, then the contact can be a battery. iv. Indirect Contactbattery is committed if the defendant set the action in motion. Hyposic a dog on Blair v. Customary Contacta person is not liable for contact that is customary to the society. Extap a man on his shoulder to get his attention vi. Eggshell Skull Theorywhen defendant intentionally cause plaintiff to undergo an offensive contact and the resulting injuries are more extensive than a reasonable person might have anticipated, the defendant will be liable for those injuries. vii. Trying to help anotherof A tries to assist B against Bs will, then a battery has been committed. viii. Transmission of a Diseaseif a person who has a transferable disease touches another without transferring the disease, the person is not liable for battery. This would not be an offensive contact. Exdentist with HIV treats patients without telling them he has HIV.

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Assault a. Acting for the purpose of causing or knowing to a substantial certainty that the act would cause a harmful or offensive contact or the imminent apprehension of a harmful or offensive contact with the plaintiff or a third person. Imminent apprehension occurs with the defendants present apparent ability to effectuate the battery. b. Apprehensionbelief that battery is about to happen without measurable delay. (Not necessarily fear) HypoBlair hits Tyson. Tyson did not fear the punch, but there was an imminent apprehension. c. Interest Protectedthe apprehension or threat of unwanted contact d. Exceptions i. A person must be aware that the assault is happening to recover for assault. ExA points a gun at Bs back. B does not see point the gun at him. Therefore, B does not know of the assault. B cannot sue for assault. ii. A mere preparation to commit a violent injury on the person of another, or a mere threat to do so, unaccompanied by physical effort to do so, is not enough to constitute assault. iii. Threats of a future action do not constitute an assault. ExA says to B, I am going to kill you in two days. Not an assault because the battery is not imminent. iv. Conditional Threatsnot assault because there is not imminent apprehension of a battery. ExIf you were not a woman, Id smack you. False Imprisonment a. Acting for the purpose of causing or knowing to a substantial certainty that the act would cause confinement of the plaintiff within fixed boundaries against the plaintiffs will with no reasonable means of escape, and confinement results. Also, either the plaintiff must be aware of the confinement at the time confinement occurs or the plaintiff must be harmed as a result of the confinement. 1. Reasonable means of escapea discoverable exit which will not cause bodily harm to the confinedHypoMorris locks A in the law school basement. Not false imprisonment unless Morris locks all exits out of the basement. 2. Unreasonable if it involves exposure of the person, material harm to the clothing, harm to the person, danger of substantial harm to another, or the person does not know of the escape. Excrawling through a sewer to escape. Unreasonable if the plaintiff does not know of its existence, and it is not apparent. b. Interest Protectedunlawful confinement, detention, imprisonment, or restraint of physical liberty without legal justification c. Exceptions i. Avoidable Consequences RuleIf a person can safely remained imprisoned when there is an unreasonable means of escape, then the person should remain falsely imprisoned. If the person attempts to escape by unreasonable means, then the imprisoner will not be liable for the damages but will be liable for the false imprisonment. ii. Plaintiff must prove knowledge at the time of confinement. It does not matter if the plaintiff cannot recall the confinement some period of time after the confinement. Ex a drunk man forgets the events of the previous night when he was forced into a police car. However, police evidence shows that he was aware of the confinement at the time it occurred. Therefore, Plaintiff was aware. iii. If collecting for injuries, then the injury must be tied to the confinement, in the place of confinement. iv. If Plaintiff consents to the confinement, then he cannot maintain an action for false imprisonment. v. Threats can constitute false imprisonment depending on the facts. Must differentiate between a threat of force and a threat of non-forceful consequence. False imprisonment has not been extended beyond threats of physical force. ExA says to B, If you leave, then I will blow your brains out. A loaded gun is sitting on the table. B stays. Versusif you leave, then I will divorce you. HypoA points a gun at B and B says nothing and follows Afalse imprisonment because person was not free to leave
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vi. It does not matter if plaintiff asked to leave. It may help Plaintiffs case but is not a requirement for false imprisonment. This will only show that Plaintiff entered into confinement. vii. Boundaries 1. Can be small, like a car. Hypoin a moving vehicle, the driver will not let a passenger out of the car when the passenger asks to get out. This becomes false imprisonment once the driver refuses to stop. 2. Can be large, like a city 3. This size of the boundary depends on the facts. Boundary is fixed by the defendant. viii. False Arrestwhen a police officer arrests someone for an act that is not unlawful. The arrest must be against the persons will. Defensethe person commits the act in the presence of the officer. Exa police officer arrested and charged a woman for breaking a leash law. The arrest was motivated not by her breaking a leash law but rather her failure to produce her drivers license when asked. 1. If a private citizen helps a police officer make a false arrest, then the citizen can be held liable for false arrest if he knows the arrest is unlawful. ix. Court Order will allow a person to be confined against his will. No false imprisonment if statutory commitment procedures were followed even if doctor was negligent in diagnosis. No false imprisonment if a hospital detains a person in good faith and for good reason. x. Exclusion from a place of businessnot false imprisonment because a business may refuse service to any person it sees fit except where statutory limits, such as race, age, etc xi. If a plaintiff submits merely to persuasion, and accompanies the defendant to clear himself of suspicion, without any implied threat of force, an action for false imprisonment does not lie. HypoAn employee steals a watch. The employer interviews the employee. The employee asks to leave the interview, but the manager says, Yes, but dont come back to work.not false imprisonment because there is no threat of bodily harm. Employee could have left without any harm. xii. Shopliftinga shopkeeper may detain a suspected shoplifter for a reasonable period of time if he reasonably believes the customer has taken goods from his store xiii. It is not a defense to false imprisonment that the defendants acted with a good motive. Exkidnapped by a religious cult to be deprogrammed. d. Hypo i. A guy is passed out. Police place him in the back seat of the patrol car and drive him around to show him to his friends. Police then dump the guy back out where he was picked up before he wakes back upthere is no false imprisonment because the guy was not aware of the confinement. ii. Take Joes crutches.false imprisonment because he cannot walk without the crutches iii. Baby locked in vaultnot false imprisonment because of a lack of awareness. Imprisoner is liable for false imprisonment if injury results.

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Intentional Infliction of Emotional Distress (IIED) a. Intentionally or recklessly causing severe emotional distress to the plaintiff through extreme and outrageous conduct. {Intent does not transfer.} 1. Extreme and outrageousbeyond all bounds of decency tolerated by a civilized society 2. Recklessacting in conscious disregard for a high probability that emotional distress will result 3. Severe Emotional Distressmust be actual damages caused by the extreme and outrageous conduct b. Where conduct directed at third party, the actor is subject to liability if he intentionally or recklessly causes severe emotional distress i. To a member of such persons immediate family who is present at the time, whether or not such distress results in bodily harm, or ii. To any other person who is present at the time, if such distress results in bodily harm. iii. The actor must be aware or should have been aware of the third partys presence. (NOT black letter, but hard to argue intent without knowledge of presence.) c. Interest Protectedemotional and mental tranquility d. Exceptions i. Threats over the telephone are not actionable ii. Solicitation of sexual favors does no give rise to an IIED case. iii. Insulting Language is not sufficient to establish IIED. Exceptions 1. Known sensibilities a. Pregnant woman b. Child, invalid, or an incompetent person 2. Pattern of abuse from superiors 3. Racial slurs 4. Sexual harassment 5. Common carriersa higher standard of caredefbusiness which transport persons, goods, or messages for compensation) iv. Depending on the relationship, some situations do not require the family member to be present for IIED to stand. The person must be very closehusband, wife, parent of a young child, fianc v. Collecting agenciesreasonable attempts to collect debts are not sufficient for IIED despite the fact that they are meant to and do create emotional distress. vi. Dead Bodiesmany cases have allowed for recovery for the intentional mutilation or disinterment of a dead body, or for interference with proper burial. Trespass to Land or quare clausum fregit a. The intentional, unconsented, and unprivileged physical invasion onto, under, or above the land of another.. (Intent to be present at the place in question.) b. Do not have to prove damages. The law infers damages if nothing more than the treading down of grass or herbage. If no actual or compensatory damages, then the court will award nominal damages. Suits for trespass when there are no damages are allowed to prevent another from gaining a prescriptive easement or to prevent the trespass from occurring again. c. Interest protectedexclusive possession of land d. Exceptions i. If the action is against a manufacturer, then the plaintiff must show substantial damages. If manufacturers were held liable for every trespass if commits, then it would pass the costs to the customers. Exsue a manufacturer for particulate matter entering onto the property. The particulate matter must cause substantial damages. ii. Mistakenly enter anothers property thinking it is hismistake is not a defense because the trespasser intended to enter into the land. Unless the mistake is induced by the plaintiff.
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iii. It does not matter that a defendants behavior was socially useful or even beneficial to plaintiff. Exmowing neighbors yard iv. Where the alleged trespass is deliberate and accompanied by aggravating circumstances, emotional damages may be recovered even in the absence of physical injury. v. The air space near the ground is as inviolable as the soil itself. Any air beyond the immediate reaches of the ground is the national air space. Therefore, an airplane flying above a persons house is not trespass. It may be a nuisance. However, if a person throws an object onto the land of another, then this could be trespass q.c.f. vi. Trespass includes staying beyond ones welcome or exceeding the scope of your privilege. Experson remains at anothers house after the owner asks him to leave. A goes to a store and enters a door that says employees only. Both of these are trespasses. vii. Trespass must be a tangible mass, thus trespass will not lie if a light from a neighboring race track shines on ones property. viii. Owner owns what is under his land, such as a cave. However, some western states allow miners to follow a vein for as long as it will go. ix. One who extends her arm over a fence dividing her own premises from those of another is a trespasser, though her body remains on her own side of the fence. x. A privileged entry onto the land of another may be limited not only by time and space, but also by purpose. Extwo kids use a neighbors garage to play in. The kids start a fire. An action for trespass lies. xi. Trespass will not lie when a private individual controls territory so extensive that it becomes public. This will limit the owners right to exclude and right to limit expression. Exa company owned town xii. Egg Shell Skull Rule applies Trespass to Chattels or de bonis asportatis a. Acting for the purpose or knowing to a substantial certainty that the act would cause intermeddling with the chattel of another, and the chattel is impaired as to its condition, quality, or value, the possessor is deprived of the use of the chattel for a substantial period of time, or bodily harm is thereby caused to some person or thing in which the possessor has a legally protected interest. {Intent to touch} b. Interest Protectedfreedom from minor intentional interference with personal property c. Action can be brought by the owner or one entitled to possession of the chattel. d. Exceptions i. No liability when the act is intentional but the interference is unintentional. ii. Mistake is no defense. Extake anothers sheep thinking they are yours. Conversion a. Acting for the purpose of causing or knowing to a substantial certainty that the act would cause intermeddling with or exercise of dominion or control over the chattel of another, and the intermeddling or exercise of dominion or control so seriously interferes with the right of another that the actor may justly be required to pay the other the full value of the chattel. {Intent to exercise control. Intent does not transfer.} b. Determining the seriousnessconsider 1. Extent and duration of actors exercise of control 2. Intent to assert a right inconsistent with the others right of control 3. Good faith 4. Extent and duration of resulting interference with the others right of control 5. Harm done to the chattel 6. Inconvenience and expense cause to the owner c. Ways conversion occurs i. Acquiring possession of the iteme.g. stealing the chattel ii. Damaging or altering the iteme.g. intentionally running over an animal and killing it iii. Using ite.g. bailee seriously violates the terms of the bailment iv. Receiving ite.g. obtaining possession after a purchase from a thief
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v. Disposing of ite.g. a bailee wrongfully sells the chattel vi. Misdelivering ite.g. delivery to the wrong person by mistake so that the chattel is lost vii. Refusing to surrender ite.g. bailee refuses to return the chattel d. Damagesthe market value of the good at the time of conversion. For fluctuating values (stocks), highest intermediate value between time of conversion and the expiration of a reasonable time for making a replacement. NO nominal damages. Cannot recover sentimental value. e. G.R.Applies only to tangible property, chattel. Does not apply to real estate or intellectual property. f. Exceptions i. Intellectual Property 1. Copyrighted material 2. Patented ideas and Trademarks 3. Market value in commerce. ii. Conversion occurs when one who is authorized to use a chattel uses it in a manner exceeding the authorization. iii. Good faith does not prevent liability for conversion. Unless a person receives goods for safe keeping, like a parking garage, without an inquiry of the title to the goods, the person is not liable unless he learns of the true owner. ExA picks up torts book. A burns the book. Later finds out the book belonged to Bconversion, despite good faith. ExThief parks a stolen car in a secured lot. Action against owner of the lot? no, as long as there is no notice that the car is stolen. ExThief obtains car from A by fraud. Then, sells it to B. B has no notice of As claimnot conversion because fraud gives color of title or equitable title. Therefore, the thief had something to transfer to B. iv. If the item is in the hands of the bailee and two people come to claim the item, then the bailee has the responsibility to retain control over the item to let the court determine the owner. If not, then the bailee would be liable for conversion if the item went to the wrong party. The bailee must act the property is his and treat it as such. ExTwo people bring a valet ticket for the same car. Valet gives car to the wrong personconversion v. A purchaser cannot obtain title from a thief because a thief does not have good title to give to the buyer, so there is not an exchange between the buyer and the thief. The buyer is liable for conversion. If a seller fraudulently sells a car to B, then B is not liable for conversion because there is color of titlea transfer occurs between the seller and buyer. ExAs car is stolen. B buys it from thiefconversion because a thief obtains no title by stealing the car. There is no title to transfer the property. vi. Demandan owner does not have to demand the return of chattel when the converter has unlawfully came into possession of the item. An owner must make a demand when the converter lawfully comes into possession of the chattel. vii. Returnan owner does not have to accept the return of chattel that has been converted. Some courts force owners to accept chattel if the chattel is still in good shape. viii. Intangible Rightsif the special item is converted, then the possessor is liable. ix. A converter can bring action against another converter. An action can be brought by anyone whose possession is superior to anothers. g. Hypos i. A drives off in Bs car, thinking it belongs to Anot conversion because not serious exercise of dominion. ii. Valet service gives C As car because of a forged valet ticketyes

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Part IIIntentional TortsPrivileges G.R.If the act is privileged, then the actor is protected from liability for the damages of his actions. I. Consent a. Definitionwillingness for the conduct to occur b. 892AEffect of Consent i. One who effectively consents to conduct of another intended to invade his interests cannot recover in an action of tort for the conduct or for harm resulting from it. ii. To be effective, consent must be 1. By one who has the capacity to consent or by a person empowered to consent for him, and a. Incapacity includes infancy, old age, medical disability, and intoxication (only after sever impairment). 2. To the particular conduct, or to substantially the same conduct. a. Hypoif A agrees to a fist fight with B, A is not consenting to be beaten with brass knuckles. iii. Conditional consent or consent restricted as to time, area or in other respects is effective only within the limits of the condition or restriction. iv. If the actor exceeds consent, it is not effective for the excess. v. Upon termination of consent, its effectiveness is terminated, except as it may have become irrevocable by contract or otherwise, or except as its terms may include, expressly or by implication, a privilege to continue to act. c. 892BConsent Under Mistake, Misrepresentation or Duress i. Except as stated in subsection (ii), consent to conduct of another is effective for all consequences of the conduct and for the invasion of any interests resulting from it. ii. 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 others misrepresentation, the consent is not effective for the unexpected invasion or harm. iii. Consent is not effective if it is given under duress. d. 892CConsent to crime i. Except as stated in Subsection (ii), consent is effective to bar recovery in a tort action although the conduct consented to is a crime. ii. If conduct is made criminal in order to protect a certain class of persons irrespective of their consent, the consent of members of that class to the conduct is effective to bar a tort action. e. Emergency Action without Consent i. Conduct that injures another does not make the actor liable to the other, even though the other has not consented to it if, 1. An emergency makes it necessary or apparently necessary, in order to prevent harm to the other, to act before there is opportunity to obtain consent from the other or one empowered to consent for him, and 2. The actor has no reason to believe that the other, if he had the opportunity to consent, would decline. f. Difficult to decide who has the burden of proof, because it must be shown that the plaintiff consented for the defendant to not be liable. Conversely, a plaintiff may wish to show during his case that a lack of consent existed.

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g. Exceptions i. Consent by Silence or Objective Manifestation Rulewhether a reasonable person in the defendants shoes would have understood the plaintiffs conduct to indicate consent to the conductapparent consent. HypoF says to M, Im going to punch you. M stares blankly at F. F punches M in the nose. F cannot argue M consented to the battery because he did not respond to the threat. A reasonable person would not think another would consent to being hit. ii. Customary ContactG.R.if there is a history of a certain type of behavior, then consent can almost be assumed. No action will lie unless the plaintiff has clearly indicated that the contact is unacceptable. Consent is assumed for customary contact. HypoA pitcher throws a pitch at the batter on deck, causing severe injury. The pitcher cannot say the batter consented to be hit by the pitch. It is not customary in baseball for a pitcher to throw a pitch at a batter on deck. iii. Prolongation of Lifecan collect nominal damages and no compensatory damages because there are no real damages. A doctor would rather take a risk of going against a living will than facing a lawsuit against the family of the deceased. iv. Informed Consenta physician or surgeon is required to disclose to the patient the risks of proposed medical or surgical treatment. If she does not do so, she may be liable when injury results from the treatment. This has now become an action of negligence. v. Mutual Consent 1. G.R.Consent is effective, therefore plaintiff cant recover. 2. Majority Ruleconsent is ineffective, therefore plaintiff can recover. 3. Minority Ruleconsent is effective, unless a statute exists that protects a certain class of people against their own judgmentchildren, incompetents, etc vi. Consent can be withdrawn after consent has been given. ExA and B start kissing. A and B both consent. B starts to push A away and says no. A does not stop. B no longer consents to the contact. Therefore, A is committing a battery once the consent is withdrawn. Self-Defense a. G.R.anyone is privileged to use reasonable force to defend himself against a threatened battery on the part of another. b. Minority Rulethe defendant is required to retreat before self-defense becomes a privilege. If escape is impossible or dangerous, then the privilege exists. c. Exceptions i. RetaliationG.R.privilege does not extend to retaliation. Once the battery is no longer threatened, the privilege is terminates. Once the privilege terminates, the original victim becomes liable for battery. ExY slaps Z. Z waits for Y and attacks Y. Z is liable for battery because there was no longer a threat of battery from Y. ii. Reasonable beliefG.R.privilege exists where the defendant reasonably believes that the force is necessary to protect himself against battery, even though there is in fact no necessity. ExA and B are arguing. B says, Im going to shoot you. Then, B reaches into his pocket to get his handkerchief to wipe the sweat from his brow. Thinking B is getting a gun out of his pocket, A punches B in the chest, knocking B to the ground. A has privilege despite the mistake because the threat made A reasonably believe that B had a gun. iii. Abusive words and threatsG.R.Insults, verbal threats, and opprobrious language do not justify self-defense. Exceptionif the abusive words are accompanied by an actual threat of physical violence reasonably warranting an apprehension of imminent bodily harm, one may be privileged to defend. iv. Amount of Forcelimited to the use of force that is or reasonably appears to be necessary for protection against a threatened battery. Age, size, and relative strength are things to consider for amount of force. Deadly force may be used only when there is a threat of death or serious bodily harm. v. Transferred privilegewhen the defendant has the privilege of self-defense and during the course of protecting himself, the defendant accidentally hits a bystander. The defendant cannot be held liable for negligence.
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Defense of Others a. Two views i. G.R.may be invoked by anyone who reasonably believes force is necessary to protect another from physical harm. ii. G.R.the defendant may use reasonable force to protect another from a physical harm if the defendant places himself in the shoes of the person he is defending and the person he is defending has the privilege of self-defense and reasonably believes force is necessary. b. If the person who the defendant is protecting is not privileged, then the defendant is liable for assisting the aggressor. ExA, an undercover cop, is trying to arrest B, a person impersonating a cop. B is resisting. C sees the scuffle and helps B. C is liable for the battery against A. Defense of Property a. G.R.a defendant may use reasonable force to protect his property. b. Deadly Forcemay never be used to protect property, unless there is a threat to the life and safety of the defendant and his family. {Then, this raises a self-defense or defense to others argument.} Warnings of deadly force are not enough to protect the defendant. HypoThe owner of a store turns a vicious dog loose in the store after hours to protect against burglars. If the dog causes dead or severe injury, then the owner of the store and dog will be liable for injuries if all that is at stake is a property interest. If there is a sign warning of the presence of the dog, then the sign does not protect the owner from liability. c. Public Policysociety will not allow people to use deadly force where a property interest is all that is at stake. d. Threat of deadly forceIs the threat reasonably necessary? Exstop or Ill shoot you full of holes. i. If the plaintiff is running away, then the assault is not privileged. ii. If the plaintiff is running towards the defendant, then there is an argument that a privilege existed. e. Reasonable mistakemistake as to the existence of this privilege will not protect the defendant. ExIf the defendant made a mistake thought the plaintiff was an intruder and hit the plaintiff. The plaintiff was actually a man from the power company to check the meter. The defendant is liable. f. Exceptions i. Peaceful invasion in the presence of the possessorthe use of force will be unreasonable unless the possessor asks the intruder to leave. Request does not have to be made if the reasonable person would think that the request would be useless. ii. Possessor may not eject a trespasser if the ejection will cause harm to the trespasser. HypoA trespasses on Bs land by hiding in his barn to get out of a snowstorm. B ejects A. A suffers from frostbite as a result of the ejectment. B is liable for As injuries. A has a defense of private necessity. Recovery of Property (Chattel) a. G.R.an owner or possessor of a chattel, wrongfully dispossessed of that item by fraud or force, has a privilege to take prompt action and use reasonable, non-deadly force to recapture the chattel. Fresh pursuit is required. Must not breach the peace. b. Fresh (HOT) pursuitprompt discovery and pursuit without unreasonable delay c. Reasonable forceno force is reasonable until a demand for return of chattel has been made unless such a demand would be futile or dangerous. If the wrongful possessor refuses to return the chattel, then the confrontation is over. The owner must use the courts to recover. d. Deadly force is never allowed, except to defend life or limb from the use of deadly force by the thief. Self-defense will come into play. e. Contractual clauses to recapture propertya peaceful, non-forcible entry is allowed. If peaceful entry is unable, then the defendant must use the courts for recovery. f. Mistakedefendant is not privileged. Defendant is liable. Shopkeepers Privilege
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a. G.R.a merchant may detain a person, who the merchant has probable cause to believe has concealed merchandise, in a reasonable manner and for a reasonable period of time, where the detention is on the merchants premises or in reasonable proximity. b. Age of Minoritythe merchant shall make a reasonable effort to call or notify the parent or guardian of the minor. c. Reasonable force is permitted if the suspected shoplifter refuses to stay. Necessity a. G.R.privilege exists if it is necessary to invade the interests of the plaintiff in order to prevent greater harm. Can be exercised by anyone. If there is a mistake, then the behavior must be reasonably necessary. b. Public NecessityG.R.the defendant will not be liable for damages caused by an act reasonably or appears to be reasonably necessary to protect the interests of society complete defense. Excrash a plane into the ground because it is hijacked to hit the White House. A public necessity because it is to protect a public interest. c. Private NecessityG.R.the defendant will be responsible to pay for damages caused by an act reasonably necessary to protect a private interest but will not be liable for the intentional tort. The plaintiff cannot resist this privilege if the harm that is being protected against is greater than the harm that will be caused if the privilege is not exercisedpartial defense. Exland a plane in a cornfield because the engine stopped working. Liable for damages. Ex a power company employee comes to check meter. The owner attacks the man because he thinks the man is a person trying to break into his house. The owner is liable because the employee was privileged to be on the property. Authority of Law a. G.R.if the defendant is duly commanded or authorized by law to do what he does, he is not liable for the damages of the act. Expolice officer Discipline a. G.R.persons who have the control of others have the privilege of exercising reasonable force and restraint upon them b. Exceptions i. Parentsmay use reasonable force to the point they are protected by the law. May not inflict serious bodily harm. ii. Teachersprivilege to discipline predicated on the need to maintain reasonable order in the classroom. Therefore, a teacher may discipline a child despite a parents objection. May not use excessive force. The extent of privilege is governed by statute. iii. Military Officerscontrolled by military law Justification a. G.R.a defendants behavior may be privileged, despite not falling under any of the other privileges, if the conduct was acceptable under the circumstances. b. Considerations to Determine Appropriateness of Conduct i. The need for the defendant to protect persons and property ii. The defendants duty to aid in apprehending wrongdoers iii. The manner and place of the occurrence iv. The feasibility of other alternative courses of action

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Part IIINegligence I. Definitionconduct which poses an unreasonable risk of harm to others. a. Reasonableness of the conductif the burden of reducing the risk is less than the risk of injury, then the requested behavior is reasonable. Formula for reasonablenessBurden < Probability x Liability ElementsPrima Facie Case of NegligenceDuty, Breach of Duty, Proximate Cause, and Damages. Must prove all four or the case will fail. Subpart A: NegligenceDuty and Breach of Duty Dutystandard of care a. The legal duty to exercise due care of a reasonably or an ordinarily prudent person under similar circumstances to protect another from a foreseeable injury. POLICYUsed because it would be difficult to determine the intelligence and capacity of each person. b. The Reasonable Prudent Person i. Matters of Common Knowledgeall adult actors are charged with knowledge of certain characteristics of other people, animals, objects, and natural forces that are common knowledge in the area where the actor places himself, as well as laws (common or statutory) and general customs that are likely to influence the conduct of others. Those who undertake to become involved in special situations and activities are charged with acquiring the specialized knowledge of the activity, its characteristics and risks which are common knowledge among those who undertake such involvement. Exa bald tire needs to be replaced, law of gravity, or fact that fire burns. 1. Superior knowledgewill not be held liable because the person failed to exercise superior knowledge 2. Ignorancethe law may impose an obligation on a person to find out what something means or to discover a dangerous condition where it would be easy to discover it by a reasonable inspection. Exa purple light at an intersection. ii. Custom Practiceindustry practices can be used to show what a reasonable person would do. Must be fairly well-defined and from the same industry so that the person can be charged with knowledge of the usage. Must look at the reasonableness of the practice. Exa custom for tugboats to not use radios to track weather. An unreasonable practice. iii. Emergency Doctrinesame standard of care, but under similar circumstances. Emergencya situation requiring instant action to avoid injury to himself or others. Exa taxi cab driver that is held up. 1. To use this doctrine, the actor must not have made any negligent contribution to the existence of the emergency; the actor must have acted reasonably in light of the situation; a persons fear of impending danger must be reasonably well-founded for him to be able to claim that he acted reasonably when faced with a sudden emergency. iv. Physical Disabilitythe legal duty to exercise the due care of a ordinarily prudent person with the same disability under the same circumstances, which as a matter of general knowledge might be the exercise of greater caution in order to compensate for the disability. The person may have to take precautions that an ordinary person would not. Therefore, the conduct must be reasonable given the actors disability. 1. Exceptionintoxicationthis is not a physical disability because the actor voluntarily got drunk. v. Insanity or Mental IllnessG.R.not a relevant consideration in deciding whether the person behaved reasonably for negligence when the condition is longstanding, ex Alzheimers disease or mental retardation. 1. ExceptionSudden, unforeseeable and temporary insanity or physical incapacitation and the insanity or incapacitation caused the negligence examplesepileptic seizures, stroke, fainting, sudden heart attack vi. Children
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1. Majoritysubjective standardheld to a standard of care of a child of the same age, intelligence, and experience a. Exceptionwhen the child is performing an activity ordinarily reserved for adults and for which adult qualifications are required, the child will be held to an adult standard of care. The activities reserved for adults depend on the region of the country. Adult Activitiesdriving a car or operating heavy machinery. Exa child driving a tractor in a farming area would not be an activity reserved for adults. In a city, the opposite will be true. 2. MinorityNC Rulearbitrary, objective standardRule of Sevensage 0 to 7 then the child is incapable of any negligence. Age 7 to 14 then the child is presumed incapable but may be proved capable, but the presumption may be overcome by evidence that the child did not exercise the care typical of a child of the same age, capacity, discretion, knowledge, and experience, under the same or similar circumstances. Over the age of 14 then the child is presumed to have an adult capacity but may be proved incapable or that he lacks the capacity of a normal child his age. c. Professionalstandard of care of a reasonably prudent professional person under similar circumstances. Malpracticeany professional misconduct, unreasonable lack of skill or fidelity in professional or fiduciary duties, evil practice, or illegal or immoral conduct. i. Objective standardmust act with the level of knowledge, training, and skill (or ability and competence) of an ordinary member of the profession in good standing. Exceptionspecialists. ii. Legal Malpracticemust prove the following 1. Dutystandard of care is that of attorneys in the same or similar locality under similar circumstances. a. Possession of knowledge or skill b. Exercise of best judgment (Good Faith) c. Use of due care or diligence in the application of the professionals skill and knowledgeCustomary Practice i. Violation ofit is not enough that an expert witness testify that he would not personally follow the defendants practice. He must also testify that the practice was not recognized as valid. 2. Breach of duty 3. The original case would have been won had the attorney not been negligent 4. Damages iii. Medical Malpracticeapplies to medical, dental, or other health care by a health care provider 1. Elements of General Malpracticeprima facie caseduty to disclose, breach of duty, causation, and injury a. Dutyheld to comply with the standards of practice among members of his profession with similar training and experience situated in the same or similar communities under the same or similar circumstances. i. Possession of knowledge or skill ii. Exercise of best judgment (Good Faith) iii. Use of due care or diligence in the application of the professionals skill and knowledgeCustomary Practice 1. Violation ofit is not enough that an expert witness testify that he would not personally follow the defendants practice. He must also testify that the practice was not recognized as valid. b. Breach of Dutydoctor must do something in his treatment of his patient which the recognized standard of good medical practice in the community in which he is practicing forbids in such cases, or he must have neglected to do something which such standard requires. 2. Informed Consentcompletely different action than general malpracticea physician owes his patients an obligation to inform the patient of the material
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risks associated with proposed treatments or procedures and of his personal interests unrelated to the patients health, whether research or economic, that may affect the physicians professional judgment. A risk is material if it would be likely to change the patients decision. a. Prima Facie Case i. Duty to disclose any material risks and alternatives 1. NC viewdoctors are required to disclose the risks customarily disclosed by doctors similarly situated under similar circumstances and in the same or similar communities (no matter what the patient wants to know and how much the patient may want to know). 2. Other viewdoctors are required to disclose all material risks. 3. Exceptions 4. Common Knowledgerisk is known by everyone 5. Risk ought to be known by the patient. Exanother doctor. 6. Therapeutic PrivilegeDisclosure will do more medical harm than to not tell patient 7. Emergencypatient is in no condition to give consent ii. Causation 1. Majority Ruleobjective rulereasonable person would have consentedNC rule 2. Minority RuleSubjective Rulewould the patient have undergone the same course of treatment? iii. Injury b. No recovery if i. The doctors action in obtaining consent conformed with the standards of practice among members of the same health care profession with similar training and experience situated in the same or similar communities, and ii. A reasonable person under the circumstances would have a general understanding of the procedures and treatments and of the usual and most frequent risks and hazards inherent in the proposed procedures or treatments. iii. If a reasonable person would have undergone the treatment had he been informed in accordance with the requirements of the statute. Shows the causal relationship between the breach and the damages. c. Analysis i. What duty? ii. Do the standard practices require the disclosure of the risk? iii. If the risk was disclosed, would the patient have chosen the same course of treatment? 1. If yes, then the case dies. 2. If no, then iv. What rule does the jurisdiction use to determine causation? d. Exam Tipif there is an informed consent problem, then there is also a battery problem. 3. Expert Testimonyrequired to show the standard of care and that there was a breach of the standard.. The doctor did not follow the customary practice. 4. In medical malpracticegenerally, plaintiff must show that a doctor did not follow a customary practice for the court to allow recovery. iv. Expert testimony is required to establish the standard of care and to establish that there was a breach of the duty or standard. Unless the negligence is so obvious that
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it is within the common knowledge and experience of lay jurors. Exdoctor sews a hypodermic needle inside a patient or sews a sponge inside a patient. v. Specialistsheld to a higher standard of care than a general practitioner. Exa doctor claiming to be a specialist in obstetrics or an attorney claiming to be a specialist in labor law. d. Statutory Standards of Care i. Statutes show the standard of care and the breach of duty (little n). ii. Where a statute or municipal ordinance imposes upon any person a specific duty for the protection or benefit of others, if he neglects to perform that duty, he is liable to those for whose protection or benefit it was designed to prevent, and which were proximately produced by such neglect. If the statute provides for civil remedy, then there is no problem because the statute clearly establishes the standard of care. If the statute prohibits the application of the statute to civil matters, then the statute cannot be applied to civil matters. ***Safety Statutes almost always apply to civil matters in NC.*** iii. For a court to apply the statute the following must be present 1. The statute sets out a standard of care 2. The statute protects an identifiable group of people 3. Party seeking to charge the other with violation of the statute is a member of the protected class 4. The hazard that occurred was one the legislature intended to prevent 5. Injury was caused by the neglect. Is there a linkage between the violation and the injury? Exlicensing and reporting statutesno linkage in the injury and violation. 6. Whether it is appropriate to impose tort liability for violations of the statute. (Reasons not to apply the statute) Appropriateness factors to consider a. Whether the party being charged has a duty under common law for the violation. Would adoption create a new duty? Yes, then most likely will not be adopted. b. Whether it is appropriate to impose tort liability for violations of the statute. Is the liability proportionate to the wrong? c. Whether adoption will create strict liability. d. Linkage. e. Vagueness. f. Whether the statute will impose liability without fault. g. Floodgateswill adoption of the statute cover too broad a class of defendants? iv. Statutes that may not be used to establish the standard of care 1. Licensing Statutes 2. Reporting Statutes 3. Revenue Raising Statutes v. Safety Statutes will always set the standard of care in NC. vi. Procedural Effect of Adopting a Statute as a Standard of CareThree ways to interpret the violation of a statute if a court adopts the statute for civil remedy (Note: negligence here is defined as duty and breach of duty.) 1. MajorityViolation of the statute constitutes negligence per se if the violation results in an injury to a member of the class of persons intended to be protected by the legislation and when the harm is of the kind which the statute or regulation was enacted to protect . There must also be a causal relationship between violation of the statute and the injury. 2. Violation of the statute is evidence of negligence. This approach is primarily used for the violation of ordinances and administrative regulations. A minority apply this to a violation of statutes. 3. Violation of the statute is a prima facie case of negligence that may be overcome by the party violating the statute showing positive, unequivocal,
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strong, and credible evidence of a legally sufficient excuse under the facts and circumstances of the case. If the defendant violated the statute and no excuse, then this is negligence per se; the jury must find that the defendants conduct fell short of the standard of care. If there is an excuse, then the common law standard applies. However, it will be hard to prove that the defendant acted unreasonably if there is a legally sufficient excuse. a. Legally Sufficient Excuses include i. Actors incapacity. ii. Actor neither knows nor should know of the occasion for compliance. Extail light burns out in the middle of a trip. iii. Actor is unable after reasonable diligence or care to comply. Ex cant shovel snow off walkway fast enough during a blizzard. iv. Actor is confronted by an emergency not due to his own misconduct. Exdriver swerves to avoid hitting a person. v. Compliance would involve a greater risk of harm to the actor or to others. Excant walk on sidewalk because it is covered with ice. b. Exceptions to allowance of an excuse. Strict Liability Statutes i. Child labor acts ii. Pure Food Acts prohibiting the commercial sale of adulterated foods (contain something it is not supposed to) iii. Federal Safety Appliance Act requiring the use of certain safety devices on railroad cars iv. Safe Place statutes requiring lighting in public places v. Statutes prohibiting the sale of firearms to minors vii. Compliance with the statute does not mean the party being charged used reasonable care per se. Breach of DutyProof of Negligence a. Direct Evidenceevidence that is based on personal observation or knowledge and that, if true, proves a fact without inference or presumption. b. Res Ipsa Loquitur (race ip-suh l-qui-tor)the thing speaks for itselfthe facts of the occurrence establish a prima facie case for negligence. The occurrence itself warrants an inference that the defendant was negligent. i. Circumstantial Evidenceevidence based on inference and not personal knowledge or observation; all evidence that is not given by testimony. Acts where the existence or non-existence of the fact in issue may reasonably be inferred. Not whether the thing speaks for itself, but rather, when the thing speaks, what does it say. Ex handprint in wet concrete. ii. Plaintiff must show 1. The occurrence is one that ordinarily would not happen without the negligence of someone. Exan elevator falling, derailment of trains, or barrel of flour falling from a shop window. 2. Instrumentality causing the injury was under the defendants exclusive control and right of control at the time negligence took place. Defendant more likely than not caused the injury. If there is more than one possible cause, all possible causes must be under the defendants control and cannot have split responsibility. Defendant does not have to be the legal owner of the instrumentality. Exchair falling from hotel window. It was not more likely than not the hotels fault. A guest may have thrown the chair out of a window. 3. No direct evidence of the defendants behavior or of the negligence. Only circumstantial evidence. 4. Event not caused by the plaintiff. 5. Evidence of what really happened is more available to the defendant than to the plaintiff (Not always required) Exunconscious patient.

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iii. Multiple DefendantsG.R.Res Ipsa Loquitor does not apply because plaintiff cannot show one person was more likely than not the person who caused the injury. 1. Exception2 doctors may be held liable if the doctors both oversaw the surgery and the doctors both had a duty. Exforceps sewed up in a patient. Applies to both doctors because both doctors had a duty. iv. Captain of the Ship and Agency Relationshipsan employer will be responsible for the negligence of its employees. A person will be responsible for the negligence of those who become his temporary servants. Exdoctor overseeing a surgery. The doctor is responsible for the negligence of nurses even though the doctor does not work for the hospital and the nurses do not work for the doctor. v. Medical Malpracticeneed expert testimony to show the injury would not ordinarily occur. Negligence is not necessarily the reason a procedure went wrong. 1. Exceptionwhen foreign objects are left in the body. vi. Procedural EffectJury is free to accept or reject the inference of negligence. It is not required to find the defendant negligent. Burden of persuasion is on the plaintiff evidence that excludes other causes strengthens the case against the defendant. Burden of proof is on the defendant to show that he is not liable.

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Part IIINegligence Subpart B: Proximate Cause I. II. G.R.a person is liable for all consequences proximately caused by his negligence. 2 Components a. Cause in Fact, AND b. Proximate Cause Cause in FactSine Qua Nonan indispensable element a. Traditional RuleNegligence is the cause in fact if the injury would not have occurred absent the negligence. But for testBut for the negligence of the defendant, the injuries would not have occurred. i. Exceptionintoxicationintoxication will be the cause regardless. A public policy. ii. ExB has a vasectomy performed by D. After the surgery, B has a child F. F burns down the neighbors garage. Ds negligent performance of the surgery is a cause in fact of the fire, but it would not satisfy proximate cause. b. G.R.Plaintiff must show that more likely than not the Defendants negligence was the cause-in-fact of the Plaintiffs injury. A particular act might be expected, under the circumstances, to produce a particular result and that result has in fact followed. i. Character of the negligencewhere the negligence of the defendant greatly multiples the chances of accident to the plaintiff, and is of the character naturally leading to its occurrence, the mere possibility that it might have occurred absent the negligence is not sufficient to destroy cause in fact. An action can never be a substantial factor unless it greatly multiplied the risk of harm so much that harm was more likely than not to occur. This is a question for the jury. Jury can consider circumstantial evidence, expert testimony, or common knowledge. Exa person fails to light a stairwell and a corpulent woman falls down the stairs. ii. Post hoc ergo propter hocit is not enough that the plaintiffs injury follows the defendants negligence. Extruck rolls over an infant. iii. Other possible causesa defendant is free to prove other possible causes of the injuries. The jury has to find the negligence was more likely than not the cause of the injuries. iv. Legal MalpracticeBut for the attorneys negligence, the more likely than not would have won the original lawsuit. v. Medical Malpractice based on lack of informed consentplaintiff must show that a reasonable person would have foregone the treatment had he been adequately informed of the risks. 1. Loss of Chance (of Survival) RulePlaintiff may have less than a 50% chance of survival and still have a case against the defendant who reduced the chance of survival even more. Plaintiff must prove that the defendants negligence more likely than not caused the loss of chance of survival. Ex 25% chance reduce to 14% chance. Must prove the 15% decrease was caused by s negligence. vi. Expert TestimonyQualifying expert testimonyDaubert 1. Court must determine a. Gatekeepingthe party must satisfy the court that the evidence meets a certain standard of reliabilityWhether the experts testimony reflects scientific knowledge, whether their findings are derived by the scientific method, and whether their work product amounts to good science. b. Whether the proposed testimony is relevant to the task at hand, i.e. that it logically advances a material aspect of the proposing partys case. c. Exceptions to the more likely than not rule. Situations where there is more than one cause or a mere possibility that the defendant caused the harm. The burden shifts to the defendants to dis prove his or her liability. i. Rule of Joint and Several LiabilityConcurrent CausesNeither act alone would be sufficient to cause the injuryG.R.where separate acts of negligence combine to
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produce a single injury, each party is liable for the entire harm, even though his act alone might not have caused the injury. ii. Independently Sufficient CausesEither act alone is sufficient to cause the injury Material and Substantial Factorif defendants negligence is found to be a material and substantial factor, then the defendant is liable. Exforest fire caused by A merges with a fire of unknown origin. Bs house burns down as a result. If it is found As fire was a material and substantial factor, then A will be liable. iii. Alternative Liabilitywhere all defendants are negligent, the burden of proof shifts to the defendants to disprove his or her liability. ExA, B, and C are hunting. A and B shoot at a bird in the direction of C. C is hit in the eye by one shot. Burden shifts to A and B to disprove liability. iv. Concert of Actionthose who act in concert share an illegal or wrongful common purpose or intent, and each acts in some way to further that purpose. Burden of proof shifts to the defendants to remove liability from and the actors are jointly and severally liable. Applies when the parties act together to achieve a certain end. The proportionality of liability is determined by the jury. Excivil conspiracyracing. Aiding and Abetting. Joint Enterprisepartnership. IncitementHustler case v. Market Share LiabilitySubstantial Share of the Appropriate Marketburden of proof shifts to the defendants to prove that they could not have made the substance or object that injured the plaintiff. Liability would approximate its responsibility based on market share. Applies in products liability cases where the manufacturer is unknown. Exdrug that causes birth defects and the manufacturer is unknown. DES cases. 1. Concerns a. How many producers does have to bring into court? b. Can s prove themselves out of the case? c. What kind of liability will be imposed? Joint and Several? Several (apportioned according to market share)? d. What is the market? National? State? Local? e. What happens when a party proves itself out of the case? Does lose that portion of the case, or does that liability shift to the other parties? f. Would the legislature be a better place to answer these questions? 2. Problems a. Overcompensate some s and undercompensate others b. Overpenalize some s and underpenalize others vi. Enterprise Liabilitywhen there are a small number of manufacturers in the industry and they all act together, all the producers are liable for the injury. Proximate CausePolicy BasedPlaces a limitation on liability. a. Definitiona cause which in the natural and continuous sequence, unbroken by any new and independent cause, produced the plaintiffs injuries, and without which the injuries would not have occurred, and one from which a person of ordinary prudence could have reasonably foreseen that such a result, or consequences of a generally injurious nature, was probable under all the facts as they existed. b. Direct-Causation ViewPolemisdefendants liable is limited to all consequences directly traceable to the defendants negligence and not due to an intervening cause, no matter how unforeseeable the harmstraight line. c. Foreseeability ViewWagon Mound 1defendants liability is limited to foreseeable damages. Foreseeable to a reasonable person (the defendant) at the time of the negligent conduct? Concerned with the foreseeability of the general risk and character of the injuries, not the manner or extent of the harm. i. Plaintiff must be a member of the class of persons to which danger was foreseeable. Must owe a duty to the plaintiff. Exboat breaks free from dock. People downstream are members of the class. 1. Unforeseeable Victimliability does not extend to anyone outside of the circle of foreseeability, not in the class of persons at risk. Not ordinarily affected by the specific negligence. ExPlaintiffs upstream from the dock.
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ii. Manner of the negligence is irrelevant if the injury was within the risks that made the defendants conduct negligent. Circle of foreseeability. Orbit of harm. Zone of hazard. Bundle of risk. Exdrive into a work zone. iii. Foresight of a remote possibility of harm may be sufficient to impose liability, if the gravity of the threatened harm is great and the cost of adequate precautions is minimal. iv. Extent of Harmdefendant need not foresee the extent of harm, so long as the harm which ensues is of the same general sort that was risked by the defendants conduct. v. Fire in a highly populated areaa defendant will probably be liable for the damages since it will be foreseeable for a vast amount of damage in a highly populated area. ExChicago fire. vi. Thin Skull Rulea defendant takes a plaintiff as he finds him. Once a plaintiff sustains a foreseeable injury, even a trivial one, the defendant is liable for all physical consequences, even unforeseeable injuries, so long as they do not stem from superceding causes. 1. Preexisting conditionliable for the aggravation, not the manifestations of the condition already present. d. Intervening Cause and Superceding Cause i. Intervening Causea force which comes into play after the defendants tortious conduct occurred and actively contributes to the production of harm. ii. Superceding Causewhere an intervening cause is sufficient to prevent the defendants previous tortious conduct from being a proximate cause of the plaintiffs injuries. iii. An intervening cause is superceding and breaks the chain of causation if 1. The intervening cause is unforeseeable, AND 2. The harm which ultimately results in unforeseeable. iv. Foreseeabilityif the intervening cause is foreseeable, then the defendant must guard against the intervening cause. If he does not, then he will be held liable. Thus, the chain of causation will not be broken by the intervening cause. v. Doctors negligenceG.R.a doctors negligence in treating an injury caused by the original defendants negligence is not a superceding cause. If doctors subsequent negligence is extraordinary, then it is a superceding cause. vi. Suicidenot superceding if there is an irresistible urge to kill oneself created by the negligence of the original defendant. NC may not follow this rule. vii. Criminal Actsalways a superceding cause whether foreseeable or not. There may be narrow exceptions where the defendant had notice of the criminal activity and failed to act properly to protect against the activity. viii. Acts of GodG.R.not foreseeable and cut off liability

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ix. Rescue DoctrineDanger invites rescue. It is foreseeable that a rescuer will come to the aid of a person imperiled by the tort-feasors actions and thus owes the rescuer a duty similar to the duty he owes the person he imperiled. Negates the presumption that the rescuer assumed the risk, so long as he does not act rashly or recklessly. 16.84.3 1. Purposeallows an injured rescuer to sue the party which caused the danger requiring the rescue in the first place. 2. Requirements a. Defendant was negligent to the person rescued. b. Defendants negligence cause the peril or appearance of peril to the person rescued. c. The peril or appearance of peril was imminent. d. A reasonably prudent person would have concluded such peril or appearance of peril existed. e. The rescuer acted with reasonable care in effectuating the rescue. 3. Danger created by the negligence of the person being rescuedthe same rule applies if the rescued created the danger. 4. Negligence of the rescuerthe defendant is liable for injuries caused by the negligence of the rescuer, so long as the rescuer did not act rashly or recklessly. 5. Going to the sight of an accident if not performing a rescue without a specific purpose and manner to rescue. 6. Mere investigation is not intervention for a rescuer. 7. Professional Rescuerscannot use this doctrine since they are being compensated for their hazardous duty. Firefighters Rule. x. Intoxication 1. Social Host Liability a. NC ViewA social host who serves alcohol to an adult social guest is liable for injuries inflicted on a third party as a result of the negligent operation of a motor vehicle of the adult guest when such negligence is caused by the intoxication, if the host i. Knew or had reason to know that the guest was intoxicated when the alcohol was served (visible impairment), AND ii. Knew the guest would be operating a motor vehicle thereafter. b. Other ViewAn irrebuttable presumption that anyone whose blood alcohol level tested at less than .10% was not visibly intoxicated. A rebuttable presumption that anyone whose blood alcohol level tested between .10% and .15% was not visibly intoxicated. c. The social host is not jointly and severally liable. 2. Commercial Vendors/Barsthe vendor is liable if someone in his position would know or have reason to know that selling alcohol to an individual created an unreasonable and foreseeable risk of harm. 3. Serving Alcohol to Minorsanyone serving alcohol to minors is liable for any injuries caused by the minors negligence.

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Part IIINegligence Subpart C: Damages I. II. G.R.a plaintiff is entitled to recover all damages proximately caused by the defendant. Reasonable Certainty Rulethe plaintiff must prove damages to a reasonable certainty. Defendant must have caused the damages. The plaintiff must prove/show how much the damages actually are because the jury should not be able to speculate how much the damages are. Kinds of Damages a. Nominalused to vindicate a persons rights b. Compensatoryintended to represent the closest financial equivalent of loss or harm suffered by the plaintiff; to make the plaintiff whole again c. Punitiveawarded to punish the defendant, to make an example of the defendant, and to deter defendant and others engaging in similar tortious conduct Personal InjuryCompensatory Damages a. Economic Damages or Special Damagesharms/damages that can be measured i. Medical Expenses (Past and Future) 1. Pastprove by producing the bills for medical expenses related to the injury. 2. Futurerequires expert testimony to establish the anticipated medical needs and predicted costs (physician and economist). 3. Entitled to only reasonable medical expenses. 4. Unable to recover for a. Medical procedures unrelated to the injury. Expregnancy test b. Unnecessary procedures. c. Excessively high procedures. Ex$1,000/hr doctor ii. Lost Wageslook at what the person would have made based on the persons wage at the time he was injured. iii. Loss or Impairment of Future Earning Capacity or Future Earnings 1. Can collect only if the plaintiff will not recover and reenter the workforce. 2. Two Requirements a. Jury must be persuaded the injury is permanent. b. Expert testimony to assist jury in determining what the plaintiff would have earned during his lifetime 3. Do not need to take into account future taxes (?) iv. Medical Monitoringsome courts allow recovery of the cost of future periodic medical examinations that are intended to facilitate early detection and treatment of diseases caused by exposure to toxic substances. b. Non-Economic Damages or General Damagesharms/damages that cannot be measured; subjective. Depends on the geographic area the case is being brought. Call an attorney that practices in the area to help determine damages. i. Pain and Suffering (Past and Future) 1. Must be conscious to recover because if the plaintiff is unconscious, then he could not feel the pain and did not suffer. 2. The worse the injury, the higher the award. 3. Per-diem Argumentbreak pain and suffering down into a per unit amount. Then, pain and suffering is turned into a time. The problem with this is it gives the appearance that pain and suffering is an exact number. Ex$.50 per second. Multiple the total number of seconds of pain and suffering by this rate. ii. Mental Anguishsame requirements as pain and suffering iii. Loss of Enjoyment of Life or Hedonic Damagesmust be conscious to recover (aware of the loss) iv. Permanent Disability and DisfigurementLoss of Function or Appearancescars, disfigurements, loss of senses, impotency, change of personality, etc
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v. Emotional Distress 1. Can collect in one of two ways a. Physical injury, or b. Invasion of the plaintiffs rights vi. Loss of Consortiuma derivative suit brought by the spouse of an injured person. Loss of conjugal relations, society, companionship, or household services during the time period that the injured person is recovering or for a permanent loss. Consortium is a spouses legal right to the company, affection, and service of the other spouse. Generally, has to be brought with the negligence claim. Non-recoverable Damages i. Litigation-Induced Stressbecause alleged tortfeasor should be able to defend himself. ii. Reduced Life Expectancy iii. Litigation Expenses Reducing Future Economic Damages to Present Value i. Two Steps 1. Estimation of list stream of income or cost of surgery. 2. Determination of discount rate. ii. Inflation 1. Inflation-Discount Methodincrease future earning to account for inflation, then discount. 2. Real Interest Methodreal interest rate is perceived to be stable regardless of inflation. 3. Total Offset Methodthe discount rate is completely offset by inflation. iii. Rule of 7money invested at 7% interest will double in 10 years. iv. Damages that are reducibleFuture economic damages and lost earning capacity. Some court allow pain and suffering to be reduced. Federal Income TaxCompensatory damages are exempt, but punitive damages are subject to taxation. Jury must be instructed on taxes. Can use a structured settlement to avoid tax liability. Interest i. Prejudgmentmajority of the jurisdictions allow recover, but generally only from the time the action is commenced. ii. Postjudgmentalmost all courts provide for this. Plaintiff cannot recover until a judgment is entered or until verdict is reached. Judicial Control of Jury Verdicts i. Determining if Damages are Excessivethere is no law used to decide if damages are excessive. 1. Maximum Recovery Rulewhether the verdict of the jury exceeds the maximum amount the jury could reasonably find. The trial judge decides what the maximum amount is. If the amount is below the judges amount, then the damages are not excessive. 2. Outside the Range of Fair and Reasonable Compensation 3. Results of Passion or Prejudice 4. Shocks the Judicial Conscience 5. Indicative of the Injury 6. Not supported by the evidence. Exaward exceeds the amounts given by experts. 7. Duplicative ii. Grant a whole new trial or a partial new trial on damages. iii. Conditional Grants of a new trial 1. Additurnew trial conditioned upon defendants refusal to pay a larger sum set by the court. Additur has been denied in the federal courts.
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2. Remittiturnew trial conditioned upon plaintiffs refusal to accept a lesser amount. h. Collateral Source Rule i. G.R.payments made to or benefits conferred on the injured party from other sources are not credited against the tortfeasors liability, even though they cover all or part of the harm for which the tortfeasor is liable. 1. Exceptions a. The defendant paid for part of the plaintiffs damages. b. To show an insurance company or another person paid for the plaintiffs injuries on behalf of the defendant c. To show payments were made by a joint tortfeasor or one who mistakenly thinks he is a tortfeasor d. To rebut plaintiffs testimony that financial necessity compelled the plaintiff to return to work early or forgo medical treatment. e. To show the plaintiff attributed his condition to some other cause. f. To impeach (discredit) plaintiffs testimony that he paid his medical expenses himself. g. To show that the plaintiff actually continued to work instead of being out of work as claimed. ii. G.R.a plaintiff can double recover for damages. 1. Exceptions a. Workers Compensationthe government will place a lien against a tort claim recoverysubrogation b. Health Coveragesome insurance policies provide for subrogation. In NC, there is no subrogation in regards to health coverage. iii. Gratuitous Benefits/Servicesa plaintiff is entitled to recover the reasonable value of the services from the defendant. Applies even if it is a family member providing the services. Exa wife who is a nurse stays at home to care for her husband after he is injured as a result of the defendants negligent conduct. Excompromised medical bills. iv. Applies if the employer pays the plaintiff for the time he was out of work. i. Doctrine of Avoidable Consequencesapplies to the plaintiffs unreasonable behavior after the injury i. Objective StandardA plaintiff may not recover for any aggravation of damages which could have been avoided by the exercise of reasonable care after the legal wrong was committed by the defendant, or cannot recover damages that could have been avoided or lessened by submitting to treatment by a physician when a reasonable person would do so under the circumstances. Would a reasonable person under the circumstances have taken steps to mitigate her damages? 1. Factors to Consider in Determining Whether Failure to Submit to Procedure was Unreasonable a. Risk of the Procedure b. Probability of Success c. Expenditure of money or effort required d. Pain involved ii. The plaintiff is under no duty to mitigate damages. He is unable to recover for what could have been mitigated. iii. Limits the award for loss of wages and pain and suffering iv. Conflict between two principlesTake the plaintiff as you find him v. Avoidable Consequences 1. Take your plaintiff as you find them is not meant to vindicate a plaintiffs bad decisions. v. Other problem areas 1. Idiosyncratic secular beliefcourt tends to go against. Exthe plaintiff does not like doctors.
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2. Cultural Suspicionscourt will more likely than not go against. Exblack females believe going to a doctor will make matters worse than they already are. 3. Religious Beliefs j. Miscellaneous i. The plaintiff is entitled to attend the trial and will be excluded only if there is disruptive conduct. ii. Trial/Claim is generally divided into two partsliability and damages iii. Structured Settlementsannuityhas tax benefits because the income on the annuity is tax-free. iv. Expenses of Litigation 1. Plaintiff a. Consists of out-of-pocket expenses and the contingency fee. b. First, take the contingency fee out of the damage award. Next, subtract the out-of-pocket expenses. c. Contingency feegenerally 30% to 40% of a damage award. 2. Defendant a. Pays an hourly fee. b. The fee is generally paid by the defendants liability insurance carrier Physical Harm to Property a. If destroyed or converted, then the measure of damages is the value at the time and place of the tort. b. If damaged, then the measure of damages is the difference in value before and after the injury. c. If a mere deprivation of use, then damages consist of the value of the use of which the plaintiff has been deprived. The rental value of the property. d. Market Valuewhat the property in question could probably have been sold for on the open market, in the ordinary course of voluntary sale by a leisurely seller to a willing buyer. It is the highest price that could have been realized. Based on the market at the place where the wrong occurred. e. Market Value of Goods that Increase in Value after the wrongValue FluctuatesEx. Stock or Priceless Art i. Rule of Highest Intermediate Valuedamages are the highest value which the goods have reached during the period from the time of the wrong to the trial of the action ii. Highest Replacement Value Ruleplaintiff may recover the highest market value between the time of conversion and a reasonable period within which he could have replaced the goods by purchase on the market iii. Problemthese rules assume that the owner would have sold the property during the time of conversion. f. Value of Chattels with no Market Valuemay recover value to the owners, as distinguished from the value to others. Consider things such as the original cost of the property, the use made of it, and its condition at the time of the wrong. Exheirloom items, cabbage patch kids, priceless art. g. Consequential damages may be recovered for the conversion of property, or harm for to it, when they are proximately caused. Punitive Damages a. Purposeto deter and to punish. b. Excessive Damagesa court will not upset a punitive damages award unless it appears that the award was actuated by passion and prejudice and is so excessive as to be deemed unreasonable. Factors to consider i. Degree of Reprehensibility of the Conduct ii. Disparity between the harm or potential harm suffered by the plaintiff and the punitive damages award

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iii. Difference between the damages award and the civil penalties authorized or imposed in comparable cases Available for intentional torts, aggravated wrongdoing, and negligence that involves recklessness, willful misconduct, wantonness. Conduct that is merely negligent, even if it causes severe damages, is insufficient to justify punitive damages. Must bear some reasonable relation to the compensatory award. The burden of proof for establishing entitlement to punitive damages is clear and convincing evidence. Vicarious Liabilitya principal is liable only if the principal authorized or ratified the act, was reckless in retaining or employing the agent, or the agent was employed in a managerial capacity and was acting in the scope of employment. Insurance policies cover punitive damages if the damages are within the policy amount. i. Proincreased premiums to deter drivers ii. Consspreads costs to other insured (increases their premiums) and no deterrence. Problem with punitive damagesallows early claimants to recover big punitive awards, but the people who file later receive little or no punitive damages. It overcompensates some and undercompensates others. Some states have tried to fix this by requiring a percentage of a punitive damages award to go to a state fund to divide among later victims who do not receive a lot of punitive damages. NC Rules i. Requires that aggravated wrongdoingfraud, malice, willful, wanton conductbe shown by clear and convincing evidence (shows the criminal nature of punitive damages. Punitive damages punish as the criminal system punishes behavior). ii. Punitives must be determined separately from other damages. iii. Amount limited to 3x compensatory damages or $250,000, whichever is greater. 1. Exceptionno cap on defendant who is liable because he was driving while intoxicated.

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Part IVJoint Tortfeasors I. Joint and Several Liability a. Definitioneach tortfeasor who contributes to the plaintiffs harm is individually liable for the entire amount of the plaintiffs damages. The plaintiff may seek full recovery from any or all of the wrongdoers but may not receive double recovery. b. Joinder of Partiesall joint tortfeasors may be joined, and a judgment may be had against each of them for the entire liability, there can be but one recovery or satisfaction of the judgment. i. Traditional Rulecan only join defendants if they acted in concert. ii. Modern Rulecan join defendants if the claims arise out of the same transaction, occurrence or series of transactions or occurrences. c. Rule Applies when i. Concert of ActionRequirementsthose who act in concert (1) share an illegal or wrongful common purpose or intent, and (2) each acts in some way to further that purpose. 1. Inciting another (shouting encouragement) to commit a tort can also form the basis for concert of action. The party accused of inciting must be physically present when the tortious conduct actually occurred. 2. Exthree people beat up another. Exdrag racing. Exkeeping rescuers at bay. Exhelping to plan an act. ExA is beating B. C is watching and cheering A to keep hitting B. ii. Failure to perform a common dutywhen two or more defendants share a duty and each fails to act on the duty. Exelevator maintenanceboth the owner of the building and the maintenance contractor have a duty to maintain the elevator. Ex party wallsboth owners that share the wall share a duty to maintain the wall. Ex two doctors supervising a surgery have a duty to make sure nothing is left inside the patient, such as a pair of forceps. iii. Concurrent Negligencetwo or more independent acts of negligence combine to cause a single indivisible harm. Each act must be the proximate cause of the harm. Ex two-car wreck iv. Liability by Operation of LawVicarious Liabilityliability based on the parties relationship. An employer is liable for employees torts committed within the scope of employment. Exemployee and employer. d. Contributory Negligencetraditional rule and NC ruleminoritya contributorily negligent plaintiff may not recover damages if his contributory negligence was a proximate cause of the injuries for which he seeks recovery. When the plaintiff is partially negligent (plaintiff fails to act reasonably for his own safety), then the plaintiff recovers nothing. Ex is 1% neg. 1 is 40% neg. 2 is 59% neg. cannot recover because he was neg. e. Comparative Negligencemodern majority rulea comparatively negligent plaintiff may recover damages reduced by the amount that plaintiff was negligent. Compares the fault of plaintiff to the fault of the defendant. Reduce award by the percent of the plaintiffs fault. Ex $10,000 verdict. was 25% the cause. s were 75% of the cause. can collect only $7,500. i. Majorityjoint and several liability applies. Policydefendants should bear the burden of the insolvent defendant. ii. Minorityjoint and several liability does not apply. Policythe risk of the insolvent defendant should fall on the plaintiff. Satisfactionwhen the claimant accepts full compensation for his injury. a. A plaintiff may obtain multiple judgments but there may be only one satisfaction. A plaintiff cannot double recover for her injuries. However, the judgment collected must be a total award for the plaintiffs injuries. b. Dischargethe satisfaction of a judgment operates as a discharge of all other joint tortfeasors. c. Partial satisfactionmust be credited to the other parties who are also liable. For a partial
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satisfaction in a comparative negligence jurisdiction, first reduce the damages by the percentage of plaintiffs negligence and then subtract the partial satisfaction. d. Payments made by a tortfeasors liability insurance company are made on the tortfeasors behalf and therefore credited against the judgment. Contributionthe partial reimbursement of one joint tortfeasor by another tortfeasor; available only in cases where the defendants are jointly and severally liable. a. The right of contribution exists only in favor of a tortfeasor who has paid more than his pro rata share of the common liability. Total recovery is limited to the amount paid by him in excess of his pro rata share. b. Intentional wrongdoingG.R.there is no right of contribution in favor of any tortfeasor who has intentionally cause or contributed to the injury. c. Immunity Rule applies. d. Three General Rules i. Traditional Common Law Ruleno contribution allowed. ii. Contribution allowed between joint tortfeasors but only if a joint judgment has been obtained against them. iii. NCcontribution allowed among joint tortfeasors even though judgment has not been recovered against all of them. e. A settling tortfeasor is immune from any liability for contribution to the other tortfeasors. A settling tortfeasor is not entitled to recover contribution from another tortfeasor. f. Liability Insurers that have paid in excess of a tortfeasors pro rata share is entitled to contribution. g. Pro rata sharesgenerally is divided equally among the tortfeasors. Do not take into account the relative degree of fault. Ex$10,000 judgment and 4 tortfeasors. Therefore, each tortfeasor owes $2,500. h. If a party against whom contribution is sought is insolvent, then his pro rata share may be distributed among the solvent parties. Indemnityshifts entire liability/loss from one defendant to another; when one person has discharged liability for which another should have paid. Available only when the indemnitees liability is by operation of law. a. G.R.when a defendant had to satisfy a judgment and his liability is derivative or vicarious, the defendant has a right of indemnification from the wrongdoer. b. Permitted only when the indemnitee does not join in the negligent act. c. Cases where indemnity applies i. Vicarious liability/Respondeat Superior. Exemployee/employer. ii. When contract guarantees indemnity, or reimbursement for damages. Exliability insurance. iii. Acting under the direction of another. Exowner of a car directs the driver. iv. NCsomeone passively negligent, the other actively negligent. v. When one is liable because another breached a duty to plaintiff. Exowner of a car liable for acts of the driver. d. MinorityNCallows indemnification when one actor was passively negligent and the other was actively negligent. The passively negligent party can seek indemnity from the actively negligent party. Exbrakes on a Trailways bus is negligently repaired, but Trailways does not look for risk and fail to discover the risk. The brakes fail. Trailways as the passive actor has a cause of action against the maintenance company. i. Policyone was more negligent than the other. Immunity Rule a. G.R.Non-immune tortfeasors may not seek contribution or indemnity from those who are immune. b. Immunity is generally created by relationship. Exhusband/wife or parent/child. c. Workers Compensationprevent an employee from suing the employer in tort. d. An expiration of the statute of limitations does not make a joint tortfeasor immune from contribution or indemnity.
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Releases and Covenants Not to Sue a. Definitiona release is a surrender of the plaintiffs claim, which may be for partial compensation or be for no compensation at all b. Traditional Rule and Common Lawa release of one tortfeasor is a release of all other who have liability. Policysince the injury of all is considered to be one, a release of one tortfeasor is a release of all. i. The court favors settlement and wants to encourage settlement. This rule does not encourage settlement because a plaintiff does not want to settle with a party if everyone else will be released by settling. c. Modern RuleWhen a release or a covenant not to sue or not to enforce judgment is given in good faith to one of two or more persons liable in tort for the same injury, it does not discharge any of the other tortfeasors from liability for the injury unless its terms so provide. i. Settlements must be made in good faith. Good faith prevents collusion between the plaintiff and a defendant. d. A release reduces the judgment against other tortfeasors in the amount of the release, or is a credit to the other tortfeasors. e. A settling party is immune from contribution. f. Mary Carter Agreementswhen the plaintiff enters into a settlement agreement with one defendant and goes to trial against the remaining defendants. The settling defendant, who remains a party, guarantees the plaintiff a minimum payment, which may be offset in whole or in part by an excess judgment recovered at trial. Most courts will hold these to be against public policy. g. Consent judgmenta settlement that becomes a court judgment when the judge sanctions it. Acts a release or covenant not to sue unless it provides otherwise. Apportionment of Damagesapplies when the plaintiffs injuries are separable and identifiable. a. If the defendant can show his negligence was not the cause-in-fact of an identifiable part of the harm, then the harm should be apportioned. ExA injures B in wreck. D negligently treats B in hospital. b. Plaintiff has the burden of proving apportionment unless there is a good reason to shift the burden to the defendant. Exwhen the proof is more accessible to defendant. Exfactory emissions. c. Concurrent Tortfeasorsthe injury is generally not apportionable. Extwo cars in an accident. d. Successive TortfeasorsThe burden shifts to the defendants to prove who was responsible and to what degree. Defendants must show the basis for apportionment. ExFactory emissions. e. ExA causes accident, injuring C. D is negligent in treating C. As actions cause $5,000 in damages. Ds actions cause $3,000 in damages. This is apportionable. Also, this situation is not one of the four that falls under joint and several liability. f. Indivisible injury includes death, crash of an airplane, destruction of a building by fire, and vicarious liability. g. Independently Sufficient Acts of Negligence Causing an Indivisible Injurymust look at the probable result of the first act of negligence and compare this to the subsequent act of negligence to determine liability. The defendants are liable only for the damages they caused. ExA pushes B off a building. C shoots and kills B before B hits the ground.

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Part VDuty of Care Concerns duty, not liability. There may be a duty, but that does not mean the party is liable for the harm. I. Privity of Contract a. Between Parties in Privity i. NonfeasanceG.R.failure to perform a promise is a contract action, not tort. 1. Exceptionif at the time a party entered into a contract the party did not intend to fulfill the promise, this is a tortfraud. 2. Exceptioncommon carrier/passenger and innkeeper/guest ii. MisfeasanceG.R.injured party has a cause of action. b. Between Parties not in Privity i. NonfeasanceG.R.no liability to a third party. 1. Exceptionthird party beneficiaries ii. Misfeasancemust be an undertaking. If no undertaking, then the privity limitation may apply. Exceptions to the privity limitation 1. Duty to RepairFailure to properly repairNature and Knowledgeif the nature of the thing (activity) is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger. If to the element of danger there is added knowledge that the thing will be used by persons other than the purchaser, and used without new tests, then the manufacturer of this thing is under a duty to make it carefully. Duty to any foreseeable victim. Exmanufacture a car or repair brakes. 2. Products Liability 3. Failure to properly maintainexcontractor fails to maintain an elevator is liable to a person injured while using the elevator. 4. Professional Malpracticewhen a professional is negligent, he is liable only to his client for damages. a. ExceptionThird Party Beneficiarieswhenever a professionals work product is primarily for the direct, rather than incidental, benefit of a third party. Has been applied to attorneys, doctors, architects, and accountants. Factors to consider i. The extent to which the transaction was intended to affect the other person ii. The foreseeability of harm to him iii. The degree of certainty that he suffered injury iv. The closeness of the connection between the defendants conduct and the injury v. The moral blame attached to such conduct vi. The policy of preventing future harm b. ExceptionDrafting a will Failure to Act a. G.R.one does not have a duty to assist or warn others if that which causes the harm is not the result of his acts. i. Exception to the General RuleDuty based on defendants relationship to the victim 1. Common Carrier/Passenger 2. Private Host/Invited Guest 3. School/Student 4. Warden/Prisoner 5. Family Membersparent/child 6. Landlord/Tenant 7. Employer/Employeesituations where the employee is in trouble. Limited to the course of employment and while on the employers premises.
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8. Innkeeper/Guest 9. Ships captain/seamanman overboard. Policyno one else is around to give aid. 10. Owner of Land/Entrantdepends on the type of entrant. Trespasserno duty. 11. Invitor/Customerduty for things under his control. 12. When the injury resulted from the use of an instrumentality under the control of the defendant. Exchild falls on escalator and gets his hand stuck. The operator of the escalator is liable. b. G.R.one does not have a duty to avert harm threatened by the conduct of third persons against the plaintiff. i. ExceptionDuty based upon the defendants relationship to the tortfeasor 1. Parent/Childa parent is under a duty of care to exercise reasonable care so as to control a minor child and prevent the child from intentionally harming others or from creating an unreasonable risk of harm if the parents a. The ability and opportunity to control b. Know or should know of the necessity and opportunity to exercise that control c. The threat must be specific 2. Counselor/Patienttension exists between the patients right to confidentiality and societys interest. Must consider several factors (most courts have not followed) a. Professional relationship. b. Reliable information. c. Danger to identifiable person. 3. Doctors/Patient who have been prescribed medication 4. Custodial/Suicidal Patientexschool psychiatrist and student. Expatient hangs himself. 5. Attorney/Clientfuture threat 6. Entrustment of dangerous instrumentalityexA gives B a gun. B uses the gun to shoot C. 7. Owner/Occupierexdriver of a car and the owner of the car. The owner is in the car. 8. Social Host Liability 9. Vicarious Liability ii. When duty exists, it is generally to an individual. The courts are split when the threat is general. iii. Cases of First Impression that present the question of whether a duty should be imposed on a defendant to protect the plaintiff from conduct of a third person, to warn of the danger, or to take some other affirmative action for the plaintiffs safetythe court must determine two things: 1. Is a duty owed? Factors to consider a. Foreseeability and severity of the underlying risk of harm b. Defendants opportunity and ability to exercise due care to prevent the harm c. Relationship between the parties d. Relative interests of the parties e. Public policy and fairness f. Societal interests at stake or advance by imposing such a duty g. Availability, cost, and prevalence of 1st party insurance against the risk h. Moral blameworthiness of defendants conduct i. Closeness of connection between defendants conduct and plaintiffs harm

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2. What is the scope of that duty? Scope may be limited by requiring the defendant have any or all of the followingParticularized Foreseeability a. Actual knowledge or special reason to know of the threat b. To a particular person or identifiable class of persons c. Of a particular type of injury c. Law Enforcement OfficialsG.R.no duty to protect individuals from criminal attack. They have a duty to the public at large. i. ExceptionsDuty based on the police officers relationship to the victim 1. Undercover Agents, Informants and States Witnessesduty owed during the investigation and prosecution of a person who is dangerous to them. 2. When a representation is made to an individual that police protection will be afforded ii. ExceptionDuty based on the police officers relationship to the tortfeasor 1. Custody of dangerous mental patients 2. Custody of criminals d. Good Samaritan Statutesprotects two classes of persons from liability: i. Any person rendering aid at the scene of a motor vehicle accident, unless their conduct is wanton or intentionally harmful. ii. Volunteer emergency health care providers rendering aid to someone in immediate need of care. e. Duty of Person who causes perilif an actors negligence causes the peril, he has an affirmative duty to aid. i. 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 further harm, the actor is under a duty to exercise reasonable care to prevent further harm. ii. NCthe driver of motor vehicle who knows or reasonably should know that injury or death has resulted from an accident in which he was involved has a statutory duty to render reasonable assistance, including calling for medical assistance if it appears necessary or if the injured party requests it. iii. When an actor creates a dangerous condition in the highway, he is under a duty to take reasonable precautions against injury to persons using the highway. ExA hits a cow with his car. The cow dies in the road. A must warn other motorists of the cow or remove the cow from the highway. f. Voluntary Assumption of Dutywhenever an actor assumes a responsibility to act and such undertaking increases the risk of such harm or is relied on by the victim to her detriment, the actor is under a duty to act. i. Abandoning a rescuean actor who abandons a rescue after making an affirmative act may be liable because the affirmative act 1. May discourage other rescuers from coming to the victims aid. 2. May place the victim in greater danger. 3. May induce or encourage the victim to stop helping himself 4. Exswimmer is drowning. A throws a rope and pulls the swimmer in halfway and quits. ii. Gratuitous Undertakinga promise to render aidOne who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the others person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if 1. His failure to exercise such care increases the risk of such harm, or 2. The harm is suffered because of the others reliance upon the undertaking. iii. Prevention of Assistance by a Third Party 1. An individual who knows that a third person is ready to give aid to another and negligently prevents them from doing so is subject to liability. 2. Assistance can be prevented by:
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III.

IV.

a. Injuring third person so they cannot render aid. b. Interfering with third persons efforts to render aid. c. Damaging or destroying the instrumentality that third person was to use to render the aid or preventing third person from so using it. d. Obstructing third persons access to the injured party. iv. Undertaking if the act increases the risk, creates a new risk, or abandonment of act returns the victim to their previous condition. Pure Economic Lossplaintiff has no physical damage to a proprietary interest, only consequential damages. a. G.R.there can be no recovery for economic loss absent physical injury to a proprietary interest. b. Policythe wrong has to be a wrong to the Plaintiff. Plaintiff cannot bootstrap onto the back of claim of a wrong to another. Negligent Infliction of Emotional Distress a. Traditional RuleDefendant does not owe a duty to a plaintiff who suffers only emotional distress. i. Policy(1) too easy to claim emotional distress without physical injury, (2) floodgates, and (3) want claim to be legitimate and foreseeable. ii. Exceptions 1. Misdelivery of Messagesrecovery is allowed for the mental anguish of persons who are negligently delivered messages informing them of the illness or death of a relative. One cannot recover for the mental anguish that would normally be brought on by the death of a relative. Extelegraph is received concerning As wifes grave illness and is not delivered until after the wifes death. 2. Mishandling of Corpsesconduct resulting in liability includes (1) the negligent dismemberment and mangling of already dead bodies on railroad tracks, (2) the commission of unauthorized autopsies, (3) the wrongful withholding of a body from burial as security for an unpaid embalming bill, and (3) the deceased is buried in such a way that the casket allowed bodily fluids to escape and water to enter the burial chamber. b. Impact Ruleplaintiff must show some physical impact, no matter how trivial. c. Physical Injury or Physical Manifestationsexheart attack, irritable bowel, insomnia, anxiety. d. Bystanderto determine the foreseeability in bystander cases i. Contemporaneous Observertemporal proximity ii. Relation between plaintiff and victimrelational proximity iii. Plaintiffs proximity to the negligent act. iv. Test to determine whether a bystander/witness can recover 1. Did the person witness the event? 2. Is the person closely related to the victim? 3. Was the injury to the victim substantial? 4. Was the bystanders injury substantial or SED? e. Modern RuleNC i. Elements 1. Defendant negligently engaged in conduct. 2. It was reasonably foreseeable that such conduct would cause the plaintiff severe emotional distress or mental anguish. a. Defendant must have knowledge that plaintiff was subject to SED as a result of Defendants negligence and its consequences. b. Relationship alone is insufficient to establish foreseeability. Policytoo many plaintiffs, and insurance would be too high. 3. The conduct did in fact cause the plaintiff severe emotional distress. ii. Severe Emotional Distress 1. Neurosis, psychosis, chronic depression, phobia, OR
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2. Any other type of severe and disabling emotional or mental condition which may be generally recognized and diagnosed by professionals trained to do so. iii. ExA is served alcohol by B. A is killed in an accident. C, As parent, sues for NIED. Cs SED is unforeseeable as a matter of law because Defendant did not know C existed and could not be put on notice that C would suffer SED. C was not present at the accident. Wrongful Birth and Wrongful Life a. NC does not recognize these causes of action because the plaintiffs have not suffered an injury in the legal sense. b. These are lack of informed consent cases. c. Wrongful Lifea claim for relief by or on behalf of a defective child who alleges that but for the defendants negligent treatment or advice to its parents, the child would not have been born. i. Damagesdifference in life versus death. d. Wrongful Birtha claim for relief of parents who allege that the negligent treatment or advice deprived them of the choice of terminating pregnancy by abortion and preventing the birth of the defective child. i. Damagesentire cost of rearing the child. If the parents were trying to get pregnant but wanted to abort because of a defect, damages are only the extraordinary costs of raising a child with those defects. e. Argumentthe doctor caused the life or the birth. He did not cause the defect. Wrongful Conception a. Cause of action where the mother alleges that the doctors negligence resulted in pregnancy and the birth of either a healthy child or a child born with birth defects or disease. b. Damagesexpenses associated with the pregnancy, but not the costs of rearing the child. c. Exdoctor failed to put an IUD back in. Woman conceived a child. Woman did not want a child. Wrongful Death of a Viable Fetus a. Common Lawno cause of action for the death of a person. b. NC Wrongful Death Acta cause of action lies for the death of a viable fetus when caused by the wrongful act or neglect of another, such as would, if the injured person had lived, have entitled him to an action for damages therefore, the person or corporation would have been so liable. c. Viable fetuscapable to live independently of the mother. d. Beneficiariespersons designated by the NC Intestate Succession Act e. Damages i. No damages that are based on pure speculationlost wages, loss of services, companionship, advice, etc ii. Pain and suffering are recoverable if they can be reasonably established. iii. Medical and funeral expenses. iv. Punitive damages where they would have been available had the fetus survived. v. Nominal damages. f. Side notea baby injured in utero can sue for personal injury.

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Part VIOwners and Occupiers of Land Plaintiff is either injured on the premises by something on the premises or adjacent to the property. I. Owners Liability to Someone Outside the Premises a. Natural ConditionsG.R.no duty. i. Exceptionowner alters the property from the natural condition, causing the danger. ExD grades driveway. Rocks slide into Ps collard patch. D may be liable. Ex owner diverts the natural direction of a stream. ii. Exceptiontree ownersthe landlord is liable for injuries resulting from a fallen tree if the owner (1) knew or had reason to know the tree was going to fall and (2) failed to take reasonable precautions against the harm. iii. Self-Helpcutting off the roots and limbs of a neighbors tree that cross the property line. A landowner can do this, but it is not the neighborly thing to do. b. Activities on the land that carry outside the landwhere an activity on the property poses a foreseeable risk to the traveling public, the landowner has to take reasonable precautions for the protection of the traveling public. A landowner may not use his land so as to interfere with the rights of the persons lawfully using the highways. Exbaseball or hunting. c. Artificial ConditionsG.R.owner must exercise reasonable care for the protection of those outside the premises. Owners Liability to Someone who Deviates onto the Premisesowner must exercise reasonable care for the protection of those individuals who deviate onto the land in the following situations: a. Excavations and put adjacent to the road. b. Travelers who inadvertently stray a short distance from the highway. c. Travelers who intentionally deviate from the highway for some casual purpose connected with travel. d. When the land has the deceptive appearance of being a continuation of the public way. e. Must distinguish between a necessity of travel and a non-necessity. An owner has a duty to protect those who deviate onto the land for a necessity of travel. Owners Liability to Someone on the Premises a. Classification i. Trespassera person present on the land without consent, privilege, right or necessity to be on the land of another. G.R.no duty owed. Exceptions 1. Constant Trespassera person who cuts across the owners yard without permission. Owe a duty to warn of latent defects. Exchildren walking through yard to go to school. 2. Known or Discovered Trespasserowe a duty to warn of latent defects. 3. Attractive Nuisance Doctrine 4. No Solicitation signputs party on notice that their presence is not wanted. ii. Licensee 1. Definitionsomeone on the property for his own benefit. Includes people who enter out of necessity or privilege and social guests. 2. Dutyreasonable care to warn of latent defects unknown to of which the owner has knowledge and to refrain from willfully or wantonly injuring. 3. Owner must have knowledge of the defect. 4. Jehovahs Witnesses and Mormonsat least a licensee because of social custom to welcome people to your house. Once they are asked to leave, they become a trespasser after given a reasonable period of time to leave the premises. 5. Meter Reader, police officer, firemanhave a privilege to be present. Are licensees. iii. Invitee 1. Definitionsomeone present for the mutual benefit of the parties or the benefit of the owner. Generally, the owner starts the solicitation.

II.

III.

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2. Dutyreasonable care to make the premises safe. Includes duty to inspect, repair, and warn. 3. Criminal Acts of Third Partiesduty to protect if the criminal behavior is foreseeable. 4. Situations where the visitor is an invitee a. Those attending public meetings. b. Spectators at public amusements, entering on a free pass. Exfree concert at the public university. c. Free use of a telephone provided for the public. d. Entering a bank to get change for a $20 bill. e. Coming to get things advertised to be given away. f. Use of state or municipal land open to the public. g. Visitors to national parks. h. Bathroom for the public. i. Exceptiona trespasser if the person goes to an employees only bathroom. b. North Carolina i. Lawful Visitorsduty to exercise reasonable care in the maintenance of the premises for the protection of lawful visitors. ii. Trespassersno duty. c. Attractive Nuisance Doctrine i. Elements 1. Artificial Condition 2. Owner knows or should know that children are likely to trespass 3. Condition which the owner knows or should know poses an unreasonable risk of death or serious bodily harm 4. Children do not realize the risk or appreciate the risk 5. Burden of eliminating the danger is slight as compared with the risk to children 6. Owner fails to exercise reasonable care to eliminate the danger or otherwise to protect the children ii. Does not apply to natural conditions. Lessor and Lessee a. G.R.no liability upon the landlord, either to the tenant or to others entering the land, for defective conditions existing at the time of the lease. Exceptions i. Undisclosed dangers known to the lessor and unknown to the lessee and no reason to expect the lessee to discover the condition or realize the risk. ii. Conditions dangerous to persons outside the premisesthose using the adjacent public way. iii. Premises leased for admission of the publicaffirmative duty to exercise reasonable care to inspect and repair the premises before possession is transferred, to prevent any unreasonable risk or harm to the public who may enter. iv. Parts of land retained in lessors control which lessee is entitled to usecommon areas. v. Where lessor contracts to repair but fails to repair. vi. Negligence by the lessor in making repairsliable for injuries to the tenant or others on the premises in his right, if the tenant neither knows nor should know that the repairs have been negligently made. b. Common AreasLandlord owes the same duty of care to a lessees guests as he does the lessee. Landlord owes a duty to exercise ordinary care in the maintenance of the premises. c. Exculpatory Clausesvoid as against public policy. A landlord may not escape liability from damages caused by negligence in maintaining the common areas. d. Liability for Criminal Acts of Third Partiespremised on a failure to act. i. Common Lawno duty. Exceptioninnkeeper, common carrier, etc
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1. Policyalways done this way; act is a superceding cause; not going to make the landlord an insurer against this type of harm; imposition of duty will result in passing the cost to the tenant. ii. Landlord has a duty to take those steps that are within his power to minimize foreseeable risk to his tenants and which can reasonably be expected to mitigate the risk of criminal activity when the landlord 1. Has notice of repeated criminal activitymore the better. Makes it clear that the landlord should anticipate further acts. Makes it stronger that the landlord knew. 2. Has notice that these crimes occurred in the common areas 3. Has every reason to expect like crimes to happen again 4. Has the exclusive power to take preventive action iii. Landlord is obligated to protect those parts of his premises which are not usually subject to periodic patrol and inspection by the municipal police. iv. Some courts have a no duty rule unless the landlord assumes the duty to protect. v. Duty when the criminal activity is foreseeable and reasonable steps to increase security will prevent. vi. B > PLa factor to consideris the burden of correcting the defect less than the probability of harm times the severity of harm. e. Landlord duty to a tenants social guestG.R.duty to exercise ordinary care to protect the guest from harm on the demised premises. ***MINORITY RULE***

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Part VIIWrongful Death and Survival Must distinguish between injuries to the decedent and the beneficiaries I. Common Lawno cause of action for wrongful death. a. Policy for CL rule, against statuteallowing a claim would lead jurors to award runaway damages. b. Policy for CL rule, against statuteit is immoral to place a monetary value on a human life. c. Policy against CL rulewhere existing law imposes a primary duty, violation of which are compensable if they cause injury, nothing in ordinary notions of justice suggests that a violation should be nonactionable simply because it was serious enough to cause death. Maritime Common Lawthere is a cause of action for wrongful death. Recovery is allowed for (1) loss of support; (2) monetary value of services the decedent provided and would have continued to provide but for his wrongful death; (3) compensation for loss of society; and (4) damages for funeral expenses. Modernstatutes provide for wrongful death actions. BeneficiariesNorth Carolina a. Survival Actionsare considered a part of the decedents estate and is administered as a part of the estate. The persons who benefit are those that are takers from the estate. Benefit of the estate. b. Wrongful Death Actionsas provided for in the Intestate Succession Act. Generally, spouses and children. Parents when the person dies w/o a spouse or children. Benefit of those under the statute. DamagesNorth Carolina a. Recovery is not allowed on sheer speculation, however some speculation is necessary. Generally, limited to losses suffered by designated beneficiaries. Attempting to compensate the beneficiaries/survivors for their loss. b. Medical Expensesexpenses for care, treatment, and hospitalization incident to the injury that caused the death of the decedent. Up to $4,500. Ordinarily these damages would be part of the survival action. c. Burial Expenseslimited to reasonable funeral expenses up to $2,000. d. Deceaseds Pain and Sufferingfor the time from injury until death. If the decedent dies from causes other than the injuries for which pain and suffering is sought, only a survival action will lie. Ordinarily these damages would be limited to a survival action. e. Deceaseds Present Monetary Value to Beneficiariesrecovery for the value of companionship, society, comfort, guidance, kindly offices and advice to the persons entitled to recover damages. i. Net Income or Pecuniary Lossesthe portion of the decedents income that the person seeking to recover might have reasonably expected to receive from the decedent if deceased had lived. ii. Services, care, assistance, and protectionwhether voluntary or obligatory. iii. Society, companionship, comfort, guidance, kindly offices, and advicewill be determined by the degree of kinship, closeness, and the details of the relationship between the beneficiary and the decedent. iv. All damages are reduced to present value. f. Punitive and Nominal Damages are allowed. g. Decedents are children, unborn children, or eldersgenerally, a net gain in terms of pecuniary benefits to the parents/survivors. Recovery allowed for everything except pecuniary losses. Survival ActionsModernall actions survive except libel, slander, false imprisonment, and causes of action in favor of the decedent where the relief sought could not be enjoyed or granting it would be nugatory after death. Meant to compensate for injuries to the decedent. G.R.PI actions fall under. a. Common Lawno survival actions if either the defendant or plaintiff dies. The actions die along with the person.

II.

III. IV.

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VII.

b. Damages in most jurisdictions include pain and suffering, medical expenses, property, lost wages for period prior to death. In NC, pain and suffering and medical expenses are part of the wrongful death action. c. If the plaintiff sues as part of a survival action and the plaintiff was negligent, the plaintiffs portion of the judgment and the estate is allowed to recover the remainder. Reduce the judgment on a pro rata basis. Ex and decedent in car accident. d. If decedent is contributory negligent, then the action is banned. Only the personal representative or collector of the decedent may bring either a wrongful death or survival action.

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Part VIIIDefenses Contributory Negligencea complete defenseAll or Nothing a. Definitionthe failure to exercise due care for ones own safety. The actors conduct unreasonably threatens his own well-being rather than the safety of others. b. G.R.a contributorily negligent plaintiff may not recover damages if his contributory negligence was a proximate cause of the injuries for which he seeks recovery. Must be no want of ordinary care by the plaintiff. i. ExceptionLast Clear Chance was the last one to act negligent. This is s defense to contributory negligence. 1. G.R.the contributory negligence of the plaintiff will not bar recovery if the defendant had the last clear chance to avoid the accident that produced the plaintiffs injury. 2. Plaintiff establish the following elements a. Plaintiff, by his own negligence, placed himself in a position of peril from which he could not escape by the exercise of reasonable care. b. Defendant saw, or by the exercise of reasonable care should have seen and understood, the perilous position of the plaintiff and his incapacity to escape before he suffered injury. c. Defendant had the time and means to avoid the accident if the defendant had seen or discovered plaintiffs perilous position and his incapacity to escape from it. d. Defendant failed or refused to use every reasonable means at his command to avoid impending injury to plaintiff. e. Plaintiff was injured as a result of defendants failure or refusal to avoid impending injury. 3. Applies in all jurisdictions where the was helpless and the knew. 4. Applies in most jurisdictions where the was helpless and the should have known. 5. Applies in some jurisdictions where the was inattentive and the knew. 6. Does not apply where the was inattentive and the should have known. c. The rules for standard of care apply for contributory negligence. However, the rule for mental deficiencies does not apply. Courts are willing to take mental deficiencies into account because are not asking whether a mentally retarded person should be barred from collecting from a negligent . There are different equities. d. Burden of pleading and proving is on the defendant. s are rarely successful on a motion for summary judgment based on contributory negligence. e. Not a defense to reckless, willful or wanton conductan intentional tort. Not a defense to strict liability. Still a defense to negligence per se. f. Do not confuse with doctrine of avoidable consequences or duty to mitigate, which arise after plaintiff has been injured. Comparative Negligencelook at the relative degrees of fault of the and . a. G.R.the plaintiffs lack of due care may limit the extent of his recovery, but does not necessarily operate as a complete bar. b. Pure Comparativea plaintiffs damages are reduced in proportion to the percentage negligence attributed to him, no matter what it is. is allowed to recover even if is more at fault than . c. Modified Comparativeplaintiffs recover as in pure jurisdictions, but only if the plaintiffs negligence either (1) does not exceed {Not Greater Than} (50 percent rule) or (2) is less than {Not As Great As} (49 percent rule) the defendants negligence. If the plaintiffs negligence exceeds that of the defendant, plaintiff is barred from recovery. d. Multiple Tortfeasorsplaintiff is entitled to recover if the plaintiffs negligence either does not exceed or is less than the combined fault of all tortfeasors. e. Joint and Several Liability i. Survives comparative negligenceMajority Rule. ii. Obsolete under comparative negligenceMinority Rule.
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f. III.

Burden of pleading and proof is on the defendant. Defendant must prove (1) plaintiff was negligent and (2) his negligence was the proximate cause of his injuries. Assumption of Risk Express signs a contract or release. i. G.R.parties may enter into an agreement where plaintiff looks after himself and defendant is not liable for negligence. ii. Can cover the inherent risks. iii. Exceptionwhen one party is at such an obvious disadvantage of bargaining power that the effect of the contract is to put him at the mercy of the others negligence, the agreement is void as against public policythere must be equal bargaining power for it to not be against public policy. iv. Exceptionexculpatory agreements 1. Void as to transactions involving public interest, e.g., common carriers, public utilities, innkeepers, and public warehousemen. Public interests include a. A business of a type generally thought suitable for public regulation. b. Performing a service of great importance to the public or of practical necessity. c. Party holds himself out as willing to perform the service for any member of the public who seeks it or member who meets the established standards. d. Standardized contract of adhesion? e. Equal bargaining power? f. Person or property placed in care or control of defendant? 2. Cannot cover willful, wanton, reckless or gross negligence 3. Cannot cover an intentional tort 4. Terms must be known to the plaintiff 5. Contracts for medical treatment and other private bailees. v. Analysis 1. Whether the risk that injured the plaintiff or the injuries fell within the terms of the agreement. 2. Whether the plaintiff knew or should have known about the contract or release. 3. Whether the contract itself violates public policy and therefore should not be enforced. b. Impliedmust show a willingness for the defendant to not act reasonably for his safety. i. Assumption is effective if the plaintiff 1. Actual knowledge of the particular riskknowledge of the specific risk. If the plaintiff does not know the particular risk, no assumption of risk. 2. Appreciation of its magnitude 3. Voluntarily encountered the risk ii. A party may voluntarily encounter the risk, but if there is no reasonable alternative but to encounter the risk, then the courts may determine that there was no assumption. iii. When a party voluntarily assumes a risk, the person must be saying he does not expect the defendant to act reasonably for his safety. Assumption of risk is different than taking a chance of getting hurt. Ex walks onto I-40 at 4:30pm. may be saying in his head I hope no one hits me. is not saying he does not expect the drivers to act reasonably for his safety. iv. Applies when the facts support consent by the plaintiffa willingness for the to take no precautions for the plaintiffs safety. v. A party may not have acted carelessly, may have exercised the utmost care, yet may have assumed, voluntarily, a known hazard. vi. Assumption of risk will bar recovery in an action founded on reckless behavior but not ordinary negligence. vii. If the risk encountered exceeds the scope of risk assumed, then the assumption of risk is ineffective. a.
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viii. Plaintiff protestevidence of no consent; but some court hold that a reluctance to accept the situation will waive the protest. ix. Some courts have held that implied assumption of risk does not remain an affirmative defense separate and apart from contributory negligence. x. If the plaintiff has been contributory negligent or there has been no negligence by the defendant, then assumption of risk has no place. xi. Comparative Jurisdictions 1. Most dont use assumption. 2. Some apply assumption as a complete bar. xii. In NC, implied assumption of risk is only available where there is a contractual relationship. xiii. Strict Liabilityassumption may come into play because contributory negligence doesnt come into play. Contributory negligence is not a defense to strict liability.

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Part IXStatutes of Limitation and Repose I. Differences a. SOL cuts off liability after a right to bring an action, i.e., prescribe a period of time within which an action must be commenced. Whereas, SOR cuts off liability before there is a right to bring a cause of action, i.e., set a time beyond which an action may not be commenced, whether the cause of action has accrued or not. b. SOL is a procedural rule. SOR is a substantive rule. c. SOL always applies. SOR do not always apply. d. SOR is generally longer than the SOL. e. Generally, SOL and SOR begin to run at different times. SOR usually apply to cases that arise from a certain fact situation. Legislatures find SOR useful to protect individuals who engage in certain activities from unlimited liability. Exgeneral aviation aircraftmanufacturers were going bankrupt from liability suits decades after the aircraft were manufactured. A cause of action will be time barred if both the SOR and SOL are not met. Analysis a. What statute of limitations applies? b. How long is it? c. What does the statute say must happen within the period? d. From what point does it begin to run? e. Is there an applicable statute of repose? f. How long is it? g. What does the statute say must happen within the period? h. From what point does it begin to run? DisabilityNCGS 1-17the SOL tolls until the disability is removed if the disability exists at the time the action accrues. However, the SOR does not toll. Disabilities include insanity, minority, and incompetence. Ordinary Negligence a. SOLNCGS 1-52(5)action must be commenced within 3 years from the time the action accrues. An action accrues at the time the injury occurs. If the damages are not apparent ( 1-52(16)), the action accrues once the damages becomes apparent or reasonably ought to have become apparent. b. SOR i. 1-52(16)cause of action shall accrue more than 10 years of the last act giving rise to the cause of action. ii. Products Liability 1-50(a)(6)no action may be commenced more than six years after the date of initial purchase for use or consumption. Survival Actionsif a person entitled to bring an action dies before the expiration of the time limited for the commencement thereof, and the cause of action survives, an action may be commence by his personal representative or collector after the expiration of that time, and within one year from his death. Medical/Professional MalpracticeNCGS 1-15(c) a. Malpractice or Lack of Informed Consent i. SOL 1. If injury is discovered less than two years after the last act, has until the end of year three to commence an action. 2. If injury is discovered two or more year after the last act giving rise to the action, has one year from the time of discovery to bring a cause of action. ii. SORa cause of action cannot be commenced more than four years after the last act giving rise to the cause of action. b. Foreign Object left in the body i. SOLone year from discovery of the object.
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ii. SORaction shall not be commenced more than 10 years from the doctors last act. c. Last ActContinuing Course of Treatment Doctrineas long as a patient continues to go to the doctor for treatment and diagnosis for the condition, the last act is the last visit for that condition.

Notereview the problems done in class.

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Part XImmunities I. II. III. IV. Definitiona defense that is based on the status of the tortfeasor because of who the tortfeasor is. There is a trend towards abrogating immunities. Spousal ImmunityG.R. and NCspouses are not immune in tort to a spouse. A general abrogation. Parental ImmunityG.R.parents are immune in tort to their children. However, there are islands of liability a. Exceptionnot immune for intentional, malicious, willful & wanton conduct, e.g., sexual abuse. b. Exceptionnot immune if the child is emancipated. Emancipation is determined from the facts. c. Exceptionautomobile accidents. In NC, a parent is not immune from claims by a child arising out the operation of a motor vehicle owned or operated by a parent or child. Motor vehicle includes cars, boats, motorcycles, and ATVs. Employer ImmunityG.R.employers covered by workers compensation statutes are immune in tort to an employee for injuries by accident arising out of an occurring in the course of employment. Charitable Immunityabandoned in most jurisdictions. In NC, abolished by statute. a. Charitya tax-exempt organization that operates without expectation of profit and primarily for humane and philanthropic objectives. Volunteer Immunity a. A volunteer is an individual who does not receive compensation or anything of value in lieu of compensation, for their services, other than reimbursement for expenses actually incurred. b. Act must be in good faith and be reasonable under the circumstances. c. The conduct cannot amount to gross negligence or intentional wrongdoing. d. Does not prevent liability when the injury arises from the operation of a motor vehicle. e. Does not apply to those rendering professional services. f. Does not apply to paid employees. Sovereign/Governmental Immunity a. Identify who is being sued; who is the plaintiff wanting to pay for her damages? The rules vary depending on who is being sued. The party will be either the federal government, State of NC, a municipality (county or city), or a public official. b. Apply the correct rules for the entity. i. Municipalities 1. Identify and characterize the activity that produced the injury. a. Governmental v. Proprietary i. Governmentalactivities exclusively done by the government or uniquely governmental or something traditionally done by the government. Expolice force, sewage drains, streetlights, public library, public parks (depends on revenue generationhow much and what percentage of the operating expenses are covered by the revenue?), spraying for mosquitoes, collecting leaves. ii. Proprietaryactivities a private corporation could do. Tends to be money making, something not sanctioned by the legislature, and something someone else could do just as well. Ex coliseum, public housing, golf course. iii. Unclear on airports, transit system. Split decisions on trash collection iv. Road Maintenancewhile this appears to be a governmental activity, the municipality is liable for failure to properly maintain the roads. b. Test
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IX.

i. Is the municipality acting to advance the health, safety, security and general welfare of its citizens? If yes, governmental. ii. Is this an activity traditionally carried out by the government? If yes, governmental. iii. What is the source of power being exercised? If legislature, governmental. 2. Does the municipality have liability insurance? G.R.the mere act of purchasing liability insurance operates as a waiver to governmental immunity. When there is liability insurance, the governmental and proprietary distinction no longer matters. Notethe policy must cover the person and activity causing the injury. a. Civil Procedureplead in complaint if the plaintiff knows the municipality has liability insurance. b. Waiver is effective up to the level of coverage. Ex$1 million policy. c. Self-Insurancesome municipalities self-insure up to $1 million and buy liability for any amount over $1 million. However, this is generally only for proprietary claims. d. Politicsgood policy to waive immunity. ii. State of NCimmune in tort except to the extent it has waived immunity. 1. NC Tort Claims Act a. Industrial Commission is the exclusive forum for resolving claims. b. Waiver is for negligence only. c. All negligence defenses apply. d. $500,000 cap on damages. e. Must identify the agency in the complaint. 2. No governmental and proprietary distinction 3. ExNCDOT removes stop sign, resulting in an accident. iii. Federal GovernmentG.R.federal government is liable in tort except to the extent it has retain immunity. Federal Tort Claims ActIslands of Immunity 1. Intentional Torts. 2. Discretionary Functions, Decisions and Duties. 3. Injuries to military personnel on active duty. iv. Public Duty Rulea municipality is not liable for the failure to provide police protection to specific individuals, unless a special relationship exists between the public officer and the person asserting liability or a public officer creates a special duty by promising protection to a particular individual, fails to provide the protection, and the person suffers injury by relying on the promise (voluntary undertaking). 1. Special Relationship between police and victiminformers, undercover agents, persons under court orders of protection, school children with municipality providing a crossing guard. In NC, failure to protect when there is a restraining order is not a violation of the rule. 2. Voluntary Undertaking a. Statement or representation by the police. b. Evidence of reliance, e.g, did not get out of the house, did not call anyone else for help, did not pursue any other means to protect herself. c. Evidence that the failure to respond was the cause in fact of the harm. 3. This rule has recently been applied to a variety of activities besides police protection. However, the crux of the rule is failure to provide police protection. 4. Policythere are limited resources, and it is up to the municipality to decide how to allocate those resources. Official Immunityapplied when the public officer is named as a party and the plaintiff is trying to hold the officer personally liable and want that officer to personally pay the damages. Applies only to acts done within the scope of employment. Does not extend to corrupt or malicious acts. Does not apply to intentional torts.
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a. If the officer is being sued in his official capacity, the court will treat the case as if the government is being sued. b. If the officer is being sued to be held personally liable, different rules apply and the plaintiff needs to state this in the complaint. c. Identify and categorize the eventdiscretionary v. ministerial i. Discretionaryrequires judgment. Immune. ii. Ministerialone which a person performs in a prescribed manner in obedience to the mandate of legal authority, without regard to the exercise of his own judgment upon the propriety of the act being done. exclerk of court has to file deeds. Ex fireworks. Not immune. d. Absolute v. Qualified Immunity i. Absoluteimmune for acts done within the scope of employment. Applies to judges, members of Congress, President, and governor. ii. Qualifiedthe party is protected so long as no fraud or corruption. e. NC i. OfficialsImmune. Extraffic engineer or road designer. 1. Have discretionary power. 2. Granted part of the sovereign power of the state. 3. Has to take an oath of office. 4. Position created by statute. X. ii. Mere Employeesnot immune. Exlaw professor or pot hole filler. Good Samaritan Statutesany person who renders first aid or emergency assistance at the scene of a motor vehicle accident to any person injured as a result of any such accident may not be held civilly liable unless their acts amount to wanton conduct or intentional wrongdoing. a. Another statute applies to volunteer medical professionals and volunteer rescue squad members who provide care to an unconscious, ill, or injured victim and are not compensated for their services. Nonconsensual medical treatment of minorsa physician may treat a minor without parental consent and escape liability if time is of the essence and the parent or guardian cannot be located with reasonable diligence. Analysis a. Who are we suing? b. Is there an immunity that applies to the person? c. What are the rules?

XI.

XII.

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Part XI: Vicarious Liability I. Definitionvicarious liability refers to liability arising not because of a persons own conduct or wrongdoing, but because of his relationship to the wrongdoer. Where the employer or the person ultimately responsible to the plaintiff is personally blameless, his liability is properly called vicarious. a. Noteif an employer is sued for negligent hiring or retention of an employee, liability is direct, not vicarious. Respondeat SuperiorG.R.employers are liable for torts committed by their employees who are acting in the scope of their employment, when the employer authorizes the employee to act tortiously, or when the employer later ratifies the employees tortious acts. a. Determine if the wrongdoer is an independent contractor or an employee. i. If an independent contractor, employers are not liable for the torts of an independent contractorG.R. ii. If an employee, was he acting within the scope of his employment? b. Independent Contractor v. Employee i. Employee if the employer maintains the right to control and direct the manner in which the details of the work are to be executed. ii. Independent contractor is one who contracts to do work according to his own methods and judgment, who is not subject to the employer except as to the results of the work, and who maintains the right to direct how and in what manner the work shall be done. iii. Considerations of the court 1. Business, occupation, training, and skill of the party to perform the work. 2. The terms of his paymentlump sum v. hourly. 3. The degree to which the employed party is free to adopt his own methods for performing the work, to hire and to control assistants, and to choose his own time for doing the work. iv. Vicarious liability arises from the right of supervision and control. c. Within the Scope of Employmentthe employer is liable only where the acts are in the discharge of some responsibility the employee was hired to do, or where the conduct can be viewed as a wrongful method or means of performing the duties of employment. i. An employee acts within the scope of employment when he is doing something in furtherance of the duties he owes to his employer where the employer is, or could be, exercising some control, directly or indirectly, over the employees activities. ii. Control Theoryliable when the act of the employee was committed within the implied authority, acquiescence, or subsequent ratification of the employer; liable if the employer had the power to control the employees activities. Policyan employer should only be responsible for those acts it can control. iii. Enterprise Theoryliable whenever the enterprise of the employer would have benefited by the context of the act of the employee but for the unfortunate injury. A much broader theory that allows for a wider scope of liability depending on how the context is defined, e.g., spit on hamburgerserving hamburgers or spitting on burger? Policycompanies should internalize these costs of business. iv. When the employee acts from a purely personal motive, he is considered to have departed from his employment and the employer is not liable. v. G.R.employees are not acting within the scope of their employment when they are coming to or going home from work. 1. Exceptionif the job involves traveling, e.g., traveling salesman, traveling to and from home is considered to be within the scope of employment; from portal to portal. vi. Intentional TortsG.R.employers are liable for the intentional torts committed by their employees who are acting in the scope of employment. Many assaults, batteries, and other intentional torts are held to be outside the scope. If an employee has the responsibility of collecting accounts, receiving complaints from customers, or maintaining order of the employers premises, an employer will most likely be liable for an assault or battery or false imprisonment that arises in connection with these responsibilities. Exstore manager for false imprisonment; bouncer; collection agent.
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vii. Acts held not to be within the scope of employment 1. Sexual Harassment. 2. Going to and from work. 3. A security guard who horseplays by pointing a gun at another person and pulling the trigger believing the gun to be unloaded. 4. Use of the employers vehicle for a pleasure trip. d. The employer or the person ultimately responsible to the plaintiff can seek indemnification from the employee or wrongdoer. The employer can recover all damages from the employee. e. Borrowed Servant Doctrinea person who borrows another employee is a temporary master and may be held liable for the negligence of the borrowed employee under Respondeat superior if he has the same right of control as that possessed by the primary employer over the manner in which the employee performs his work, regardless of whether he exercises this right. Generally, applied in hospital settings where independent doctors use the hospitals nurses during surgery. Independent Contractor Exceptionswhere a duty is held to be non-delegable, or the activity to be carried on is inherently dangerous, the employer may be vicariously liable for the torts of an independent contractor. a. Non-delegable Dutiesemployer cannot escape liability for a non-delegable duty by hiring someone to do it for him. Examples i. Duties imposed by a public authority as a condition of granting a franchise. ii. The duty of a condemning agent to protect a severed parcel from damage. iii. The duty of a general contractor to construct a building safely. iv. The duty to exercise due care when an independent contractor is employed to do work which the employer should recognize as necessarily creating a condition involving an unreasonable risk of bodily harm to others unless special precautions are taken inherently dangerous. v. The duty of landowners to maintain their property in a reasonably safe condition and to comply with applicable safety ordinances. vi. The duty of employers and suppliers to comply with the safety provisions of the labor codeexmining. vii. One who carries on an activity which threatens a grave risk of serious bodily harm or death unless the instrumentalities used are carefully maintained and who employs an independent contractor to maintain such instrumentalities. Excranes or carnival rides. viii. One who by statute or by administrative regulation is under a duty to provide specified safeguards or precautions for the safety of othersliable to those the statute or regulation was meant to protect. ix. A towns duty to keep the streets and sidewalks in reasonably safe condition. x. The high degree of care owed by a common carrier to its passengers. xi. An innkeepers duty to exercise reasonable care to keep the premises safe and to warn guests of non-apparent hazards. xii. States obligation to provide medical care to prison inmates. b. Inherently Dangerous Activitieswhether the activity is the kind that could produce injury if negligently done or is the kind that is likely to do so. Inherently dangerous work, though it may be safely done, will likely cause injury if certain precautions are not taken. Not inherently dangeroustrench excavation at construction sites, erecting a building, re-roofing a building, raising a building to street level. Inherently dangerousexcavating below the foundation of adjacent structures, hauling giant logs over the highway, marking traffic lines on a busy street, selling ice cream to children from a vending truck on a busy street, and excavating a trench in a residential area (also non-delegable). i. ExceptionCollateral Negligencewhen the contractors negligence is collateral or not recognizable in advance as particularly likely to occur or as calling for special precaution. Because too dangerous to allow the independent contractor to get off the hook. Exhauling six foot diameter logs. ii. Dont confuse with abnormally dangerous activities, which fall under strict liability.
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V. VI.

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c. Contracts for Illegal Activitiesone who contracts for performance of an illegal act is vicariously liable for any damage even if the agent is an independent contractor. Apparent Authorityone who expressly or impliedly represents that another party is his servant or agent may be held vicariously liable for the latters negligent acts to the extent of that representation. This result may occur even though the negligent party is an independent contractor or even when there is no employment relationship whatsoever between the negligent actor and the party making the representation. Allows an injured party who reasonably relies on the representation to hold the party who made the misrepresentation liable. Partnershipsthe partnership is liable for injuries caused by the wrongful act or omission of any partner acting in the ordinary course of the partnership business. Joint Enterpriseif there is a joint enterprise, one joint enterpriser is liable for the acts of another joint enterpriser. A joint enterprise is an alliance between two or more people in pursuit of a common purpose such that the negligence of one participant may be imputed to another. a. A joint enterprise exists when i. There is an agreement, express or implied, among the members of the group. ii. There is a community of interest in the objects or purposes of the undertaking. iii. There is a common purpose. iv. There is an equal right to direct and govern the movement of each other with respect thereto. b. A profit motive is not required. Generally, it must be a business, a pecuniary enterprise being advanced. c. Car pooling and the participants collect money to pay for gasnot a joint enterprise. The money part of the enterprise is ancillary to the greater purpose of getting to and from school. Bailments a. G.R.a bailment relationship is insufficient to make a bailor liable, e.g., loan a chainsaw to a neighbor. Therefore, no vicarious liability. b. ExceptionsAutomobilesunder these doctrines, the negligence of the driver may be imputed to the owner. Policyallow the victim to fully recover; financially responsible party. i. Owner-Occupant Doctrinewhen the owner of the automobile is also an occupant while the car is being operated by another with the owners permission or at his request, the drivers negligence is imputable to the owner. That the owner does not exercise control or is physically incapable of exercising control, e.g., sleeping, is of no consequence. 1. The owners presence gives rise to the presumption that he has maintained the right to control and direct the operation of the vehicle. Generally, the owner is unable to overcome this presumption. 2. Right to control the vehicle, not actual control, is the determinative factor. The owner must show that he relinquished the incidents of ownership and his rights to control the method and manner of the use of the car. 3. Indemnification allowed. ii. Family Purpose Doctrineimputes the negligence of the driver to the owner of the vehicle, usually when the owner is not a passenger. 1. Does not necessarily apply to the owner, but rather the person who has the right to control the vehicle. Ownership presumptively indicates the right to control. Therefore, an executor of an estate may be liable, or a parent when the vehicle is registered in the name of a minor child. 2. The plaintiff must prove a. The driver was negligent. b. The driver was a member of the owners family or household and was living in his home. c. The vehicle was owned, provided and maintained for the general use, pleasure and convenience of the owners family. d. The vehicle was being operated for a family purpose, e.g., driving to buy food for Snowball.
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Driver had the owners consent, express or implied. Exfather prohibits son from driving the carno consent. 3. Has been applied when a member of the household allows another person to drive the vehicle while he remains in the car as a passenger. 4. Indemnification is allowed. iii. Automobile Consent Statutesdriver is treated as the agent of the owner, if driving with the owners consent. Need for consent statutes is diminished because of omnibus clauses in auto insurance policiesinsurance covers policyholder, family members, and anyone using vehicle with owners permission. c. Distinguish Negligent Entrustmentdirect liability, not vicarious. Applies to any chattel, not just automobiles, e.g., lawn mowers, gun, cigarette lighter. In the case of automobiles, bailor has duty not to loan to a bailee who is known to be an incompetent, careless, or reckless driver or who is known to be given to excessive and habitual use of intoxicants. Ex alcoholics or drug addicts; unlicensed minors; father paid for sons car and knew son was an irresponsible driver. Imputed Contributory NegligenceNC applies a. Both-Ways Testcontributory negligence will be imputed if negligence could be imputed. Applies to any area of vicarious liability, i.e., respondeat superior, bailment. Exautomobile accidentif the drivers negligence can be imputed to an innocent party, the innocent party will be barred. b. Not all jurisdictions impute contributory negligence when negligence is imputed. e.

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Part XIIStrict Liability Is the activity suitable for the imposition of strict liability? I. Under strict liability, one is not evaluating how carefully a person carried on an activity. You want to examine the activity itself, e.g., operating a mill, transporting dangerous chemicals. Key to strict liabilitycannot eliminate the risk of harm in the exercise of reasonable care. G.R.a person is liable even if he acted reasonably, or exercised all due care. If the harm could have been avoided by the exercise of reasonable care, cannot use strict liability because the party has a valid remedy under a negligence theory. Wild AnimalsCLa keeper of a wild animal is strictly liable for injuries caused by the animal, e.g., elephant steps on a kidliable if the animal attacks or if the harm resulted from the dangerous propensity of the animal. Wild animal is one that is a member of a species that, by custom of the place where the animal is kept, is not devoted to the service of mankind. Domestic Animals a. Trespassing AnimalsFencing OutNCproperty owners are required to fence out animals belonging to others. Property owner could recover if he maintained an adequate fence. Applied to cattle, hogs, horses, and mules. b. G.R.an owner is liable for injuries if i. can show the owner was negligent in his keeping of the animal, OR ii. The owner knew or had reason to know of a vicious propensity of the animal, AND Knowledge 1. The breed of the animal is known to have vicious tendencies, e.g., Rottweiler, pit bull. 2. Knew or should have known. a. The animals prior behavior, i.e., the animal bit before or acts like he wants to bit a person, OR b. What a reasonable person in the defendants circumstances would have known. iii. The harm resulted from that dangerous propensity. c. Owners DefenseExceptionif a person with full knowledge of the evil propensities of an animal and wantonly excites him, or voluntarily and unnecessarily puts himself in the way of such an animal, he brought the injury on himself and cannot recover. Like assumption of the risk. Abnormally Dangerous ActivitiesG.R.persons engaging in abnormally dangerous activities are strict liable for an injuries caused as a result of the activity, regardless of whether the actor demonstrated the utmost care. Must be abnormal in the locale. a. Consider the appropriateness of the activity at the place where it is being conductednatural v. non-natural. What has historically been done on the property? Exmilling in a mining community. b. Factors to consider if an activity is abnormally dangerous=question of law to be determined by the judge i. The existence of a high degree of harm. ii. Likelihood that harm will be great. iii. Inability to eliminate the risk by reasonable carethe most fundamental of all the factors. iv. Extent to which the activity is not in common usage, e.g., transmission of electricity. v. Appropriateness of the activity to the place where it is carried onsecond most important factor. vi. Extent to which the value of the activity to the community is outweighed by its dangerousness. c. Blasting in a heavily populated areadefendant is strictly liable for trespass, e.g., flying debris, and otherwise, e.g., vibrations. d. Strict liability against the governmentfederal NO. NCYES. MunicipalityYES. Workers Compensation a. Employers must compensate workers who are injured on the job.
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b. RequirementsNC i. Employee was injured by accident. ii. Injury arose during the course of employment. iii. Injury arose out of employment. c. One may recover lost wages and medical expenses. Defenses and Limitations a. Does not apply where the injury results from an act of God, which the owner had no reason to anticipate, e.g., dam overflowing as a result of a hurricane. A foreseeability issueforeseeability of the nature of the act. b. Limited to consequences resulting from that which makes the activity abnormally dangerous, e.g., risk of blasting is damage to person or property by flying debris or vibrations. Consequences within the scope of risk created by the activity=foreseeability proximate cause. c. Comparative and Contributory Negligence are not defenses. There must be more than the failure to exercise reasonable care by to bar s recovery. must knowingly place herself in risk or harms way. Rationalesince liability of the defendant is not based on fault, the defense cannot be based on fault without more.

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XIIIProducts Liability I. Strict Liabilitymost jurisdictions recognize strict products liability (NC does not). In those jurisdictions, the requirements are a. A product is defective so as to be unreasonably dangerous for its ordinary use i. A manufacture defect is one where the product does not conform to the design specifications and becomes unreasonably dangerous. ii. A design defect is one where all the products manufactured are unreasonably dangerous because of a flaw in the products design. b. The defendant is a commercial supplier c. The product reached the plaintiff with no change in condition Right to SuePrivity of Contract a. Generally, a manufacturers liability extends to persons the manufacturer should expect to use chattel or to be in the vicinity of the reasonable use of the chattel. b. Party not in privity can sue when i. Manufacturer knows the product is going to someone not in privity. ii. Manufacturer makes a statement to the public to generate demand for the product. iii. The lack of those qualities which the manufacturer represented the product as having could not readily be detected by the consumerno opportunity to test the warranty. c. Vertical Privityprivity along the supply chain. Manufacturer WholesalerRetailerBuyer. d. Horizontal Privityprivity among individuals other than the buyer. Buyer 1WifeChild e. Consumera person who, in the reasonable contemplation of the parties to the sale, might be expected to use the product. Theories of Liability a. Breach of Warrantywarranties run with the chattel. i. Express Warrantyapplies to any seller 1. Requirements a. An express warranty was made. b. The warranty was a part of the basis for the bargaininduces the buyer to purchase the goods and is reasonably relied on by the buyer. c. The warranty was breached by the defendantthere was a misrepresentation. d. The breach proximately caused the property damage, personal injury, or death of which the plaintiff complains. 2. Warrantythe representation must in fact be a warranty. a. Must be fact and not opinion or puffery b. Warrantyany affirmation of fact or any promise made by the seller; any descriptions of the goods; any model or sample. c. Not a warrantyan affirmation merely of the value of the goods or a statement purporting to be merely the sellers opinion or commendation of the goods. 3. It is not a defense a. That the manufacturer did not know the statements were false, or b. That the manufacturer believed the statements to be true. 4. Any seller can create an express warranty. This is not limited to merchants. ii. Implied Warranty of Merchantabilityapplies only to merchants 1. Warranty that the goods are merchantable, i.e., fit for the ordinary purposes for which such goods are used, e.g., refrigerator should chill, dryer blows air that is too hot. 2. Requirement a. A merchant sold the goods. b. The goods were not merchantable at the time of sale. c. The plaintiff or his property was injured by such goods.
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d. The defect or other condition amounting to a breach of the implied warranty of merchantability proximately caused the injury. e. The plaintiff so injured gave timely notice to the seller. 3. Merchanta person who deals in goods of the kind, or one who does not deal in goods but who otherwise holds himself out as having knowledge or skill peculiar to the practices or goods involved, e.g., building contractors, hospitals, farmers. A merchant is not one who provides professional services, e.g., dentists, physicians. 4. Applies to goods, not services. Noticea buyer must, within a reasonable time after he discovers, or should have discovered the breach of warranty, notify the seller or be barred from recovery. iii. Implied Warranty of Fitness for a Particular Purposeapplies to any seller. 1. Implied whenever the seller has reason to know that the goods are to be used for a particular purpose and that the buyer is relying on the sellers skill or judgment in selecting the goods suitable for that purpose. 2. If the goods are not fit for that purpose, the seller may be liable for any damages proximately resulting from the breach. 3. Where the goods are manufactured according to the buyers specifications, the buyer does not rely on the sellers expertise. 4. Particular purpose connotes something different than the ordinary purpose for which such goods are used. iv. Damages=value of goods as warranted actual value of the goods + consequential damages (personal injury and property damage, e.g., window shattered and lost an eye) v. Express and implied warranties extend to the members of the buyers family or his household and to guests in his home who suffer personal injury if it is reasonable to expect that they will use, consume, or be affected by the goods. vi. A seller or manufacturer may limit its liability under the warranties, e.g., for the first 12,000 miles, as-is clause, with all faults. Consequential damages may be limited or excluded unless the limitation or exclusion is unconscionable. Some states prohibit exclusion or modification of implied warranties. Negligence i. Theories under negligencethe party has acted unreasonably and the product is defective in 1. Manufacturethis one product is defective or wrong 2. Designall the products are defective or wrong. 3. Some warning or lack of warning ii. DutyIf the nature of the thing is such that it is reasonably certain to place life and limb n peril when negligently made, it is then a thing of danger. Its nature gives warning of the consequences to be expected. If to the element of danger there is added knowledge that the thing will be used by persons other than the purchaser, and used without new tests, then, irrespective of contract, the manufacturer is under a duty to make it carefully. iii. Misfeasancelack of privity is not a defense. iv. Nonfeasancelack of privity bars a plaintiffs action. Products Liability Actdefenses of sellers and manufacturers in products liability cases 99B-1scope and definitions i. Manufacturerany person or entity who designs, assembles, fabricates, produces, constructs or otherwise prepares a product or component part of a product prior to its sale to a consumer or user. ii. Sellera retailer, wholesaler, or distributor and means any individual or entity engaged in the business of selling a product, whether such sale is for resale or for use or consumption. Also, a lessor or bailor engaged in the business of leasing or bailment of a product. 99B-1.1no strict liability for defective products. 5.
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c. 99B-1.2a party may bring an action for breach of warranty, and the defenses in the Act apply to warranty actions. d. 99B-2Privity Eliminated and Sealed Containers i. Eliminates the privity requirement in a products liability action for breach of implied warranty. Does not eliminate privity requirement for negligence or express warranty. ii. One must have an express warranty to sue a seller if 1. The product was acquired and sold by the seller in a sealed container, OR 2. The seller had no reasonable opportunity to inspect, AND 3. The seller did not mishandle or damage the product. iii. The seller is not protected if the manufacturer of the product has been declared insolvent or the court is unable to obtain jurisdiction over the manufacturer. e. 99B-3No Liability for Altered or Modified Products i. Manufacturers and sellers are shielded from liability if 1. An alteration or modification of the product 2. After it has left their control 3. A proximate cause of the claimants injuries 4. Unless the alteration or modification was done according to instructions or specification, or with the express consent, of the manufacturer or seller, e.g., add a booster pack to a battery operated vehicle per manufacturers instructions. ii. Alteration or Modificationincludes changes in the design, formula, function, or use of the product from that originally designed, tested, or intended by the manufacturer. iii. Failure to observe routine care and maintenance is an alteration. iv. Ordinary wear and tear is not an alteration. f. 99B-4Conduct or Knowledge of the Claimant that will Prevent Liability of Manufacturer or Seller i. Using the product in a manner contrary to express and adequate warnings or instructions, of which he is or should be aware will bar recovery. ii. Aware of the risk and voluntarily expose to riska claimant who knew of or discovered the defect or dangerous condition of the product that was inconsistent with the safe use of the product and who, with awareness of the danger, nevertheless unreasonably and voluntarily exposed himself or herself to the danger may not recover. Like assumption of the risk. iii. Contributory Negligenceclaimant failed to exercise reasonable care under the circumstances in the use of the product, and such failure was a proximate cause of the occurrence that caused injury or damage to the claimant. g. 99B-5Claims based on Inadequate Warnings or Instruction. Argumentthe product would have been safe if the manufacturer had properly warned. i. Breach of warranty is unavailable as a theory of liability for failure to warn. The theory of recovery must be negligence. ii. There is no liability for inadequate warnings unless the plaintiff shows that 1. The manufacturer or seller acted unreasonably in failing to provide warnings or instructions. 2. The lack of information was the proximate cause of the harm for which damages are sought. 3. One of the following is true a. At the time the product left the control of the manufacturer or seller, the product, without an adequate warning or instruction, created an unreasonably dangerous condition that the manufacturer or seller knew, or should have known, posed a substantial risk of harm to a reasonably foreseeable claimant. b. After the product left the control of the manufacturer or seller, the manufacturer or seller became aware of or should have known that the product posed a substantial risk of harm to a reasonably foreseeable consumer and failed to take reasonable steps to give adequate warning
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or instruction or to take other reasonable action under the circumstances. iii. A manufacturer or seller is not liable for failing to warn about an open and obvious risk or a risk that is a matter of common knowledge, e.g., a gun shoots and kills, a knife cuts. iv. Prescription Drugsproviding warnings or instructions to the doctor and/or pharmacists will protect the manufacturer or seller of a prescription drug unless the FDA requires direct consumer warning or instruction to accompany the product. h. 99B-6Inadequate Design or Formulation i. Plaintiff can only assert negligence. No cause of action for breach of warranty. ii. Argumentdefendant was negligent in not designing or formulating another way. iii. Plaintiff must prove 1. At the time of manufacture, the manufacturer acted unreasonably in designing or formulating the product. 2. The conduct was the proximate cause of the harm for which damages are sought. 3. At the time the product left the control of the manufacturer, one of the following was true a. Manufacturer failed to adopt a safer, practical, feasible, and otherwise reasonable alternative design or formulation that could been reasonably adopted and that would have prevented or substantially reduced the risk of harm without substantially impairing the usefulness, practicality, or desirability of the product, OR b. The design or formulation of the product was so unreasonable that a reasonable person, aware of the relevant facts, would not use or consume a product of this design. iv. Factors to consider to evaluate the reasonableness of manufacturers behavior 1. Nature and magnitude of the risks of harm associated with the design or formulation in light of the intended and reasonably foreseeable uses, modification, or alterations of the product. 2. Likely awareness of product users of the risks of harm. 3. Extent to which the design or formulation conformed to applicable government standards in effect at the time the product left the manufacturers control. 4. Extent to which the labeling for medicines conformed to any applicable government or private standard that was in effect at the time the product left the manufacturers control. 5. Utility of the product, including the performance, safety, and other advantages associated with that design or formulation. 6. The technical, economic, and practical feasibility of using an alternative design or formulation at the time of the manufacture. 7. Nature and magnitude of any foreseeable risks associated with the alternative design or formulation. v. No liability is claim is based on inherent risk of the product that cannot be eliminated without substantially compromising the products usefulness or desirability and that is recognized by the ordinary person with the ordinary knowledge common to the community. vi. Prescription Drugsno liability for side effects. i. 99B-10No Liability for Donated Food, unless an injury is caused by gross negligence, recklessness, or intentional misconduct by the donor, organization, or corporation. j. 99B-11Firearmsapplies to design defects of the product, not the possibility of harm by the product. Plaintiff must prove i. The actual design of the firearm was defective, causing it not to function in a manner reasonably expected by an ordinary consumer of firearms or ammunition, AND ii. Any defective design was the proximate cause of the injury, damage, or death.

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Part XIVFraud and Misrepresentation I. II. Procedureplaintiff must allege all circumstances constituting the fraud with specificity. CLDeceit a. Elements i. Defendant made a false representation of a material fact ii. Defendant either 1. Knew the representation was false, or 2. Made the representation recklessly without regard to truth or falsity iii. Defendant intended to deceive the plaintiff by the representation (to induce reliance) iv. Plaintiff justifiably relied upon the representation v. Plaintiff suffered damages (actual, pecuniary losses) b. Representation i. Can consist of a statement, nondisclosure, or concealment. ii. Liability for a statement and concealment is the same because both are affirmative acts by the . iii. Nondisclosurenonfeasance 1. G.R.no liability for nondisclosure unless the defendant was under a duty to disclose. 2. Duty exists when a. Special or Fiduciary Relationshiplawyer/client, realtor/buyer, etc Notea fiduciary relationship is one in which the fiduciary puts the other partys interest before his own. b. In a business transaction, one party has information that may justifiable induce the other party to act or refrain from acting if the other party would reasonably expect the knowledgeable party to disclose. c. If a party makes a statement that is thought to be true at the time the statement is made but later learns the statement is false. d. Undertakingif a party raises the issue or begins to discuss the issue, the party may have to fully disclose. e. Statutory duty to disclose. c. Fact i. Must be a past or existing fact, or a subsisting and ascertainable fact. ii. Must be distinguished from an expression of opinion because a misrepresentation of opinion will not support a fraud action. 1. Factdefinite. 2. Opinionstatement that expresses the speakers judgment about the facts or beliefs in absence of the existence of a fact. 3. Prediction and Intention a. Predictionwhat is going to happen in the future. A matter of opinion, therefore reliance is not justified. b. Intentionwhat the speaker is going to do. must show that did not perform and did not intend to do so at the time the intention was expressed. 4. Puffingsales talkstatements upon which no reasonable person would rely. A seller can exaggerate, so long as the seller says nothing too specific. 5. Words of Qualificationmore or less, approximatelyindicate a margin of error and therefore justify reliance. iii. Statement of LawG.R.not a fact because no one knows what the law is until the court rules. d. Material

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III.

i. A fact as to which a reasonable person would attach importance to its existence or nonexistence in determining a choice of action in the transaction in question subjective. ii. A fact that the maker knows or has reason to know that the recipient is likely to regard as important, regardless of whether a reasonable person would so regard the fact objective. e. Knowledge of Falsity i. If honestly believed the representation was true, no knowledge exists and an action for fraud cannot be maintained. ii. If reckless, no knowledge is required. Recklessconscious disregard of high probability of the existence of a risk. f. Intent to Deceiverepresentation was made for the purpose of inducing to rely, to enter into the agreement. g. Justifiable Reliance i. Reliance may be shown if the plaintiff proves that because of the defendants representation, the plaintiff acted or refrained from acting in a certain manner. ii. Justifiable 1. Determined on a case-by-case basis. 2. Factors to consider a. Burden on the to uncover the truth. b. The relationship of the parties. c. Relative knowledge of the subject matter by the parties. d. Circumstances under which the transaction took place. 3. If the statement is obviously false, then not justifiable. 4. G.R.not justifiable to rely on opinion. However, reliance on opinion may be justified depending on the facts, e.g., jeweler appraising jewelry. iii. For to avoid liability, he must show was stupid for believing him. iv. Does not require that the plaintiff act as a reasonable person h. DamagesTwo measures i. Benefit-of-the-Bargain (BOB)put where he would be if there had not been a misrepresentationforward looking 1. More of a contracts measure of damages. 2. Damages = Value as Represented Actual Value ii. Out-of-Pocket (OOP)put where he was before the harmbackward looking 1. More of a torts measure of damages. 2. Damages = Value Given (K price) Value Gained iii. Which measure to use is jurisdictionally determined. Some use OOP unless there is evidence to support BOB. In NC, it is unclear which measure the courts use; both measures are used. iv. If OOP = $0 and BOB = $2K, some courts have held that there is no cause of action. i. Contributory negligence is not a defense because fraud is an intentional tort. j. Exam notewhen analyzing fraud, focus more on was the reliance justified? rather than was the representation of a fact or opinion? Negligent Misrepresentation a. CLno action for negligent misrepresentation unless the person suffered personal injury or direct physical injury. b. NCapplies only in business transactions because damages are generally purely economic. c. Restatement 2dTo be liable for negligent misrepresentation, a must i. During the course of a business, profession or employment, or in any other transaction in which the defendant has a pecuniary interest ii. Supplies false information for the guidance of others iii. In their business transaction, is subject to liability for pecuniary loss caused by them iv. By their justifiable reliance upon the information
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v. If defendant fails to exercise reasonable care or competence in obtaining or communicating information. d. Liability to Third PartiesLimitationliability only extends to loss suffered i. Either 1. By one who is a person or one of a limited group of person for whose benefit and guidance the defendant intends to supply the information, OR 2. By one to whom the defendant knows the recipient intends to supply the information. ii. Through reliance on the information in a transaction that either 1. Defendant intends the information to influence, OR 2. Defendant knows the recipient intends to influence, OR 3. In a substantially similar transaction to the one (insert 1 and 2) e. Contributory negligence is a defense to a claim of negligent misrepresentation.

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Part XVNuisance I. Theories of Liability a. Intentional TortTrespass b. Negligence c. Strict Liability Two Typesdistinction between the two is not in the nature of the character of the conduct involved but rather the nature of the interest affected. a. Public Nuisance i. An unreasonable interference with a right common to the general public, or with the right of the community at large. ii. Any act or condition that disrupts public order, obstructs public rights, or undermines public morals or decency; anything that threatens life, promotes disease, affects the health of the community, or shocks the public morals or religious feelings of a community. Examplesfactory that emits toxic fumes, obstruction in a public highway, business for prostitution, assignation, or gambling, sale of obscene or lewd matter. iii. Interest Protecteda public right iv. Who has standing 1. Private citizen who can establish some damage or injury special and peculiar to himself that differs in kind from that suffered in common with the general public, not just a greater degree of harm. a. One who suffers pecuniary loss should be regarded as having a loss different in kind from the general public. b. A sufficiently greater degree of harm can be a factor influencing a finding of a difference in kind. 2. District attorney or other government official. v. Action to abate the nuisancedoes not lie if there is an adequate remedy at law or if criminal prosecution provides an adequate remedy. vi. Does not have to be a crime. vii. Conduct that constitutes a public nuisance may also affect an individuals use and enjoyment of his land and thus become, as to that individual, a private nuisance. That individual can maintain a nuisance action notwithstanding the fact that the nuisance is causing damage to several landowners in the area, or that the damage to others occurs in the same manner. Plaintiff need not establish special damages. b. Private Nuisance i. Any unreasonable interference with the use and enjoyment of a property interest in land; a nontrespassory invasion of anothers interest in the private use and enjoyment of land. ii. Interest Protectedprivate use and enjoyment of land.
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iii. Who has standingneighbors of the land upon which a nuisance exists whose rights have been disturbed. iv. Two types 1. Nuisance per se (in law)an act, occupation, or structure that is a nuisance at all times, regardless of location or surroundings. a. A lawful business operated in an authorized place probably cannot be characterized as a nuisance per se. 2. Nuisance per accidens (in fact)an act, conduct, or structure that is a nuisance by reason of its location or the manner by which it is constructed, maintained, or operated. v. Unintentional v. Strict Liability v. Intentional 1. Unintentionalliable when the defendants conduct is negligent, reckless, or ultrahazardous 2. Strict Liabilityunclear if NC uses because there are no court decisions on this. 3. Intentional a. Intentional when the defendant acts for the purpose of causing the invasion, knows that the invasion is substantially certain to result from his conduct. b. Factors to consider in deciding what intentional interferences are nuisances whether the interference was reasonable Learned Hand-i. The circumstance of the case. ii. Interference must be substantialmet if the plaintiff shows an effect on the health, comfort, or property of those who live nearby that results in substantial annoyance, material physical discomfort, or injury to the plaintiffs health or property. Slight inconvenience or petty annoyance is insufficient. iii. Whether a reasonable person, objectively looking at the entire situation, taking into account plaintiffs, defendants, and the communitys interests, would consider the interference unreasonable. iv. The surroundings and conditions under which the defendants conduct is maintained. v. The character of the location. vi. The nature, utility, and social value of defendants operation.

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III.

IV.

vii. The nature, utility, and social value of plaintiffs use and enjoyment that have been invaded. viii. The suitability of the locality for defendants operation. ix. The extent, nature, and frequency of the harm to plaintiffs interest. x. Priority of occupation between the partiescoming to the nuisance by moving into the sphere of its injurious effect does not preclude recovery, especially when the annoyance has increased due to changes on defendants property after the plaintiff moved there. vi. Liability does not attach for invasions caused by natural conditions. 1. Exceptiontrees when the landowner knows that the tree is decayed and constitutes a threat to the property of others and is negligent in regards to the harm caused by the tree. vii. Defenses 1. Contributory negligence if the basis for liability is negligence. 2. Assumption of risk has limited application and is probably not applicable to nuisance actions. 3. Coming to a nuisance is not a defense but merely one of the matter to be considered. a. The residential landowner may not have relief if he knowingly came into a neighborhood reserved for industrial or agricultural endeavors and has been damaged therby. viii. Different than trespass quare clausum fregit. Nuisance does not require a physical entry upon the plaintiffs premises. Damages a. Injunction i. Conditionalgives the defendant a choice: take measures to avoid the interference or pay damages. ii. Permanentprohibits the defendant from carrying on the activity at the location in question. b. Damages i. Compensatorywhen the damage has already occurred. ii. Permanentcovers past and future harm. 1. Something to think aboutwhat if a feasible method of controlling the invasion is discovered in the future? What motivation does the actor have to adopt the new method? Self-Help to Abate a Nuisance
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V.

VI.

a. This privilege extends only to those to whom the condition is a nuisance. A public nuisance may be abated by a private individual only when it causes or threatens special damage to himself, apart from that to the general public. b. This privilege depends on the actual existence of a nuisance. An honest but mistaken belief will not justify the action. c. Privilege to use reasonable force according to the necessities of the situation, and may extend to the destruction of valuable property. d. Infliction of personal injury or a breach of the peace if not justified. e. When time permits, the actor must notify the wrongdoer of the existence of the nuisance and demand removal of the condition. This is not required when it is apparent that the wrongdoer is already aware of the nuisance and that the demand would be futile. Right to Farm StatutesNCno agricultural operation after it has been in operation for one year, can be a public or private nuisance, because of any change conditions in or about the locality when the operation (a) was not a nuisance at the time it began and (b) does not result from negligent or improper operation. Applies to any facility for the production for commercial purposes of crops, livestock, or poultry. Interference with the use of Water a. Riparian Rights i. English Rulenatural-flow theorythe right to have the water flow as it was wont to flow in nature, qualified only by the right of each riparian owner to make limited use of it. ii. Reasonable-use theorymajoritythe right to be free from unreasonable uses that cause harm to the proprietors own reasonable use. iii. Prior-appropriation theorybeneficial use of the water is the basis of the right to it and that priority of use is the basis of the division of it between appropriators when there is not enough for all. b. Ground Water i. English Ruleabsolute ownership ii. American Rulereasonable use, a rule of correlative rights iii. Other Rulean underground stream is treated like a surface stream

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