Torts Outline Elena Pernice

I. Negligence A) Duty B) Standard of Care C) Breach D) Cause in fact E) Proximate cause F) Damages Order of arguing a case: ID Duty, ID Standard of Care, ID Breach, Frame the Breach

A. Duty
In many cases decided by a judge as a matter of law Some courts allow juries to find facts Moral obligation is not a legal duty. If you see an infant on train tracks and dont save it, in the absence of some kind of special relationship, you cant be held liable for the infant getting run over.

Weinrib article: Misfeasance v. Nonfeasance Driver who doesnt apply breaks Person who doesnt save drowning man in pool Misfeasance Nonfeasance Is engaged in creating the risk A mere passive failure to take any action which harms or endangers P Is a duty Is not a duty

Misfeasance / Nonfeasance are typically decided by a court as they are legal determinations As a General rule there is No Duty to act UNLESS: 1. There exists a special relationship between P/D (common carrier, parent, ect.) 2. Defendant has control over injury causing instrument (i.e. gun) 3. D innocently causes harm (law imposes a duty to avoid further harm) 4. D actions raise risk above that inherent in an activity 5. Defendant voluntarily assists Affirmative Obligations to Act Heaven v. Pender scaffolding collapses on a man. R- Misfeasance and risk creation. Duty arises to use ordinary care and skill when a person is placed in such a position with regards to another that one can foresee harm to the other through their actions if they did not use ordinary care.

Torts Outline Elena Pernice Harper v. Herman diver, a friend of a friend was on D boat. P asked D if he was going in the water, D said yes and P dove into super shallow water breaking his spinal cord and becoming a quadriplegic. R- An affirmative duty to act only arises when a special relationship exists between the parties. If the harm arose from nonfeasance, a duty exists only if there is a special relationship, i.e.: 1) Common carriers 2) Family 3) Innkeepers 4) Possessors of land who hold it open to the public 5) Persons who have custody of another person under circumstances in which that other person is deprived of normal opportunities of self-protection. 6) School with Students 7) Manufacturer 8) Doctor/ physiatrist 9) People together on a social venture Special relationships also apply to misfeasance cases

MacPhearson v. Buick Motors A case of misfeasance, where the notion of privity was not an issue R- Manufacturer of a thing of danger has a duty to make thing carefully Farwell v. Keaton Two friends were picking up on chicks and were chased by a group of boys. Farwell was beaten severely. R- When there is a special relationship there is an affirmative duty to render aid. If you begin to administer aid you cannot just stop but MUST follow through with your care. Scope of social venture is important when determining whether or not there is a duty. NOTES: Ronald M. v. White 2 sober kids charged with duty to control their 8 drunk friends. R- If the D are in the minority and not part of the social venture (drinking) then how can they be expected to control the majority? H.R. Moch Co. v. Rensselaer Water Co. D water company did not supply P hydrant with adequate water and his warehouse burnt down. R- Privity draws the line for duty in the case of utilities. Special Relationship was between D and the city which contracted them, not the P.

Torts Outline Elena Pernice Rudolph v. Arizona B.A.S.S. Federation Fishing competition turns deadly when jet skiers are killed by speeding boat. R- There exists a Duty to foreseeable P when a D increases the inherent risk in an activity, whether or not the P is associated with the D. Rogers v. Retrum: Evil teacher told student he failed a test he had actually passed. Angry student and friend left class thanks to an open class policy and drove off. Friend crashed car, student sues teacher. R- Cant be held negligent if youve done nothing to increase the risk of the activity

Randi W. v. Muroc Joint United School District Former employers of a molester highly recommended him for a position at another school where he subsequently molested a girl. R- Misrepresentation is a basis for negligence / fraud. Application of Rowland Factor Test. Rowland Factor Test: 1. Foreseeability of harm to P 2. Degree of certainty that P suffered injury 3. Closeness of connection between D conduct and injury suffered 4. Moral blame attached to D conduct 5. Policy of preventing future harm 6. Extent of burden to D 7. Consequences to community of imposing a duty to exercise care with resulting liability for breach 8. Availability, cost and prevalence of insurance for the risk involved Not appropriate in every case/ operate in a circumstance where were pushing the duty rules

NOTES: Garcia v. Superior Court Parole officer basically lied to a woman worried about her ex-lover, saying she had nothing to fear. The Ex murdered her. Applied Rowland test to find duty to victim to either not speak at all or speak truthfully. Tarasoff v. Regents of the University of California Girl was killed by a psycho who previously told his psychiatrist of his intentions. R- There is a duty to warn/ inform a NAMED 3erd party of a KNOWN danger. NOTES: No Duty Hawkins v. Pizarro D physician negligently told P that she had tested negative for Hep C. Later P future husband contracted Hep C as well. R- Under Tarasoff there is no duty to P husband as D did not know of Husbands existence and for Tarasoff to work the identity of the person in peril must be known.

Torts Outline Elena Pernice Thompson v. County of Alameda County released violent juvenile offender even though he had threatened to kill an unspecified person. Juvenile proceeded to kill a local neighborhood boy. R- Need a name for the Tarasoff rule to work. Negligent entrustmentknew or should have known that giving a chattel to a certain person will cause danger to third parties.

Vince v. Wilson Grandmother bought grandnephew a car despite her knowledge that he had no license and a drug problem. Nephew crashed car injuring his passenger. R- Enabling another to cause harm to third parties through negligent entrustment will make a lender of the chattel liable for third party injuries.

Policy basis for Invoking No Duty Reynolds v. Hicks Underage nephew of groom got drunk at the wedding and crashed into P. P wants to sue Groom/Bride. R- Social Hosts are not held to same standards as commercial vendors as they are less equipped to control alcohol consumption.

NOTES: Hanson v. Friend held that a minor that is injured from intoxication has a cause of action against the social host that supplied him with the booz. (Dram shop act) R- Statute is construed to protect minors, not so much third parties.

Policy Bases for invoking no duty: Court wants to draw a line to prevent huge social implications and keep fairness. In cases of holding a utility company liable they drew the line at privity.

Strauss v. Belle Realty Co. The great NY power outage. A man walking in the common area of his apt. complex in the dark tripped and injured himself. R- Liability for injuries in buildings common areas should, as a matter of policy, be limited by the contractual relationship. A case of crushing liability. If everyone could sue the Power Company, which was the sole supplier of energy, the company would go under and this would not be in the publics interest.

Torts Outline Elena Pernice NOTES: Pulka v. Edelman Man was hit by a car backing out of a public garage and tried to sue the garage. R- Garage not liable because that would place too heavy a burden on these parking establishments. The court is trying to create a general public policy rule; they need to draw the line somewhere and dont want to put an impractical burden on the garages.

Duties of Landowners and Occupants Landowner: Categories 1. Invitees People on land to benefit the owner or are on land for a specific public event. a. Duty of reasonable care (RPP standard). b. May include duty to warn, inspect, and eliminate unreasonable risks that the landowner knows or should have discovered. c. No duty owed if danger is open and obvious 2. Liscensees Persons on land with owners permission but not conferring any benefit to owner. a. Possessor must conduct activities reasonably. b. Duty to warn of known, hidden dangers. 3. Trespassers: People on land without landowners permission/consent. a. No willful or wanton harm. b. In some cases, duty to warn of hidden dangers. Child trespassers: Duty to try and prevent an attractive nuisance from luring a child onto property to their peril. In these cases must also look to whether landowner has acquiesced in trespassing childs presence. (If yes acquiesced, then children will likely be viewed as lisencees.)

Carter v. Kinney A man slipped on some ice in front of a house where he was going to attend a Bible study. Man claimed to be an invitee who the D owed a higher level of care to. RP remains a licensee because he gave D no material benefit which is required for this type of distinction. An intangible benefit doesnt count; it MUST be a tangible/material benefit. NOTES: Holland v. Baltimore & O.R. Co. A trespassing child was hit by a train on D land. RThere is a higher duty required for children; mostly seen as licensees and landowners should take on minor burdens when it comes to ensuring childrens safety. However, this does not apply to OBVIOUS dangers, which even a child would be aware of. 5

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Landowner liability as applied to recreational land: Nearly all states have enacted statutes to limit liability of recreational landowners. Willful misconduct is generally required for liability. However, some courts have found that on land open to the public for a specific purpose (i.e. a concert), the attendees will be viewed as invitees who are owed a duty of care. Heins v. Webster County A man visiting his daughter, a nurse at a hospital slipped in front of hospital on patch of ice. P argues that common law classifications should be done away with and replaced with negligence. R-- Factors to be considered for determining reasonable care to lawful visitors: 1) foreseeability or possibility of harm 2) purpose for which the entrant entered the premises 3) time, manner and circumstances under which the entrant entered the land 4) use to which the premises are put or are expected to be put 5) reasonableness of the inspection, repair, or warning 6) the opportunity and ease of repair or correction or giving of the warning and 7) the burden on the landowner or community in terms of the inconvenience or cost of providing adequate protection. Court of NE in this case felt that by abolishing the common law distinctions the focus was back where it should be; on the foreseeability of the injury. Had the P been an invitee then he would have been able to receive damages. Why is the fact that he was a social visitor change the amount of care owed someone exiting the hospital?

Lopez v. McDonalds A homicidal maniac went nuts inside a McDonalds and killed 21 people. Family members of the dead claimed McDonalds had a duty to protect against this kind of massacre. RWhen the burden of preventing FUTURE harm is great, a high degree of foreseeability is required. Under Rowland test factors 1, 5, and 6 are NOT met. This case is too random, it could have happened anywhere, there was no possible way to foresee it. NOTES: Sargent v. Ross A child visiting a tenant in D residential apartment building fell to her death from a stairway. RLL has a reasonable duty of care on the land to keep things in repair and to act as a RPP.

Torts Outline Elena Pernice Posecai v. Wal-Mart Stores, Inc. A woman was robbed of her jewelry at gunpoint in a Sams Club parking lot in a bad part of town. RThe Totality of Circumstances Test: The greater the foreseeability of harm, the greater the duty of care that will be imposed on the business. Foreseeability is influenced by the location, nature and condition of the land as well as the frequency of similar prior incidents.

Municipal and State Liability Riss v. City of NY A woman was terrorized by her ex-boyfriend and the police would not help her despite her pleas. Finally the ex hired someone to throw lye in her face, blinding her. RA duty to everyone is a duty to no one. NOTES: Schuster v. City of NY P had recognized a fugitive from a police flyer and gave the cops info. 3 weeks later P was killed after the cops denied him protection. RActive/Passive public interaction. When the government is actively engaging the public for police benefit then the municipality has created a risk and thus, has a duty. Cuffy v. City of New York P and downstairs neighbors had several altercations. Police assured P that an officer would come by the next morning, which didnt happen. That night downstairs neighbors attacked P with knifes, badly injuring them. RCuffy Test: An AND test, all factors must be met. Notion of justified reliance/ P must have relied on police promise to their detriment. Cuffy Factors Test: 1. Assumption of an affirmative duty to act on behalf of party who is injured 2. Knowledge that inaction could lead to harm 3. Direct contact between the municipality and the injured party and 4. Injured partys justified reliance on the municipalitys promise to respond

Types of Gov. Immunity: Ministerial Acts: No immunity. Mostly removes immunity / Lauer case; must analyze if theres a duty Lauer v. City of NY A lazy medical examiner failed to report finding for cause of death to police and so the cops focused in the father of the dead child for months until the truth was revealed. R There are 2 types of acts which evoke governmental immunity: 1. Ministerial (Lauer) 2. Discretionary Proprietary: Open for suit. Traditionally private enterprises taken over by gov. (Hospitals, public transit) 7

Torts Outline Elena Pernice Governmental: generally cant sue; unless Cuffy factor apply. Discretionary Acts: Immunity from suit. Involves a social economic policy which the courts generally will not question. Lost when a decision is irrational or pointless or takes much too long to implement.

Discretionary test: 1. If there is a statute telling you how to act and youre following it youre immune 2. Does the discretion implicate social or economic policies?

Ministerial Acts of employees: Prescribed by statute or Rule If youre following statute then youre immune If agent FAILS to comply with statute then you can find a duty Qualified Immunity: you can lose your immunity under certain circumstances. Is based on good faith, does not provide absolute immunity. Friedman v. State of New York There was a super dangerous bridge that had caused many accidents. At first the municipality decided not to fix it, but later on changed its mind. Years after it had changed its mind the city still hadnt acted on building a median and another crash occurred. P sued the City for the unreasonable delay in construction. ROnce it has decided to act the government can be held liable for inaction without an excuse.

Cope v. Scott A park road never intended for heavy traffic was dangerous and P had an accident. RFTCA discretionary Acts: 1. Is there a federal statute, regulation or policy that specifically prescribes a course of action? 2. If not, is the discretion implicate the political, social or economic policy choices that congress sought to protect from suit?

Emotional Harm Parasitic Injury: When you have verifiable damage your emotional harm follows the physical harm. Impact: If you suffer an impact you can also recover for emotional damages Zone of Danger: Fright from reasonable fear of immediate personal injury can be compensated where physical manifestations of fear such as medical attention are needed. 8

Torts Outline Elena Pernice

Emotional Distress Policy Implications: Compensating harms Difficulty separating legitimate/ ungrounded claims Unlimited or unprecedented liability Potential for a flood of unimportant / trivial claims Acknowledged that this was a world of limited resources might diminish possibility of recovery for those with physical harm Falzone v. Busch Wife watched her husband get hit by a car and was nearly struck herself. Wife suffered physical trauma as a result of her fear. RA person can recover from fright but only if the proximate injury or sickness occurred as a consequence of the fright. NOTES: Ward v. West Jersey & Seashore Older case that established 3 criteria of emotional harm/ still used in HIV needle cases 1. It was thought that emotional injury was not a natural and proximate result of a negligent act. This is better left to medical evidence 2. The court has allowed recovery for physical ailments in which there was minor physical impact and in cases in which there was willfully inflicted emotional harm even though the connection may be hard to find; causation is difficult to show in many other types of cases. Courts concluded that no liability exists without physical impact. 3. Courts feared that allowing recovery in these cases would result in a flood of litigation. This does not appear to be the case in other states which permit suit from fear-induced injury. (These old Impact rules have virtually disappeared) HIV cases: most jurisdictions require actual proof that needle which a person pricked themselves on actually had HIV on it in order to win a claim for emotional distress due to fear of AIDS. Porter v. Deleware Lackawanna Woman watched a bridge collapse and court upheld emotional harm because dust went in her eyes causing an impact. Wooden v. Raveling Court allowed P to recover from emotional distress as she was well within the danger zone when her neighbors car almost hit her. RYou can recover damages in CA if you are in the zone of danger. Lawson v. Management Activities Some people tried to recover for fear caused by a plane crash nearby. RExtent of emotional distress is hard to measure as some people are more robust than others. For this reason many courts require zone of danger test.

Torts Outline Elena Pernice Shatkin v. McDonell Douglas R must be pre-crash awareness of impending doom for emotional damages to be collected.

Metro-North Commuter Railroad Company v. Buckley P was exposed to asbestos on his job site and suffered emotional distress that due to his employers negligence he would develop cancer. Rmust prove it is more likely than not that cancer will occur.

CA cancer/ emotional harm criteria: 1. Exposure due to negligence 2. More likely than not a P will develop cancer 3. Breach: must tie 1 and 2 together 4. CIF 5. Emotional harm Toxic Exposure: A P cannot recover under FELA unless they can prove that they actually suffered a physical damage from fear of cancer. NOTES: Norfolk & Western Railway v. Ayers FELA was used by several railway workers who contracted asbestosis and sued for emotional harm too. Rthere were physical consequences already present here as a result of the contact. Potter v. Firestone Tire and Rubber Co. D dumping of toxic waste in a landfill exposed P to carcinogens. RIf youre exposed to a carcinogen AND it is more likely than not that you will get cancer then the fear is serious and a remedy is justified. Gammon v. Osteopathic Hospital of Maine, Inc. P father died and the hospital sent him a bag of dads personal effects, but by accident hospital sent P a severed leg meant for the pathology department. R Minority Rule Gammon Test: Foreseeability Plus Psychic harm reasonably expected to befall the ordinarily sensitive person PLUS severe emotional distress.

Portee v. Jaffee A mother watched as her 7 year old son was slowly crushed to death in an elevator. She suffered severe emotional trauma as a result. RUsing Dillon factors if you have a close relationship to victim of injury you have a good chance at recovery.

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Torts Outline Elena Pernice Dillon Test: 1. Proximity to the scene of the accident 2. Shock resulting from contemporaneous and sensory observance of the accident 3. Close relationship. (Must be immediate family) NOTES:
Ochoa v. Superior Court P mother watched as her child deteriorated from a serious illness which juvenile hall officials did not respond to. Child died that night and court granted relief as all 3 Dillon factors were met. Thing v. La Chusa P mother did not see accident that injured son but heard about it and ran out to scene to find her child bloody and unconscious on the street. Rfamily member must actually SEE the injury causing event for recovery to occur. Bovsun v. Sanperi NY court extended a duty to members of immediate family members who were themselves in the zone of physical danger. RCan only recover for emotional distress under Dillon if there was a physical threat of danger. (Very restrictive view).

Johnson v. Jamaica Hospital A baby was kidnapped from a Jamaican Hospital and returned 4 months later. R Direct/ Indirect contacts. Rejection of duty to a 3erd person. Parents were not the ones kidnapped or in Zone of danger, so hospital owes them no duty.

Economic Harm Economic harm in personal injury contract; some type of bill which can be verified with a receipt. Loss of income/ job with no personal injury: something monetary, no violation of property rights Reluctance of courts to award damages of economic harm Economic harm is easy to measure/ bright line rule

People who can be found liable for Economic Harm: 1. Accountants 2. Attorneys 3. Professionals

Nycal Corporation v. KPMG Peat Marwick LLP Negligently prepared audit harms a third person who the accountants did not know would see the audit. Rthe auditor must know the information will be relied on by others, and ideally who those others are in order for a claim of economic harm to stick.

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Torts Outline Elena Pernice Approaches to Accountant Liability: a) Actual privity -- only a very small group of states still requires this. b) Near-privity-- restricts liability by demanding a "linking" between the accountant and the relying party that requires more than notice from the relying party to the accountant. c) ForeseeabilityVery broad. Close to general foreseeability thereby allowing more expansive liability d) Restatement viewAt the time the report is published to the client, the professional must actually know the identity of the person (or class of persons) who are relying on the report and the transaction that is going to be influenced by the report.

Attorneys and Clients: a) Meeting filing deadlines-- Client may have a good legal claim for malpractice if it is possible to show that the action, if filed, would have been successful. b) Making Strategic choices-- judgmental decisions that usually occur after a strategic choice turns out badly. c) Recommending settlements-- Advice to settle a claim for too little may lead to liability for malpractice. d) Criminal Cases-- Law provides damages only for harms to the P legally protected interests and the liberty of a guilty criminal is not one of them. Wiley v. County of San Diego court held that a P who had been convicted of a crime could not sue his defense attorney for malpractice without proving that he was innocent of the underlying crime. e) Emotional Distress-- P must show that they sustained highly foreseeable shock stemming from an abnormal event.

Madison Avenue Gourmet Foods, Inc. v. Finlandia Center, Inc. Partial collapse of Madison Avenue shuts down the street to the public adversely affecting merchants in the vicinity. RMust show property damage or physical harm to obtain economic damages. Factors for determining validity of a claim for economic harm: Reasonable expectations of parties and society generally Proliferation of claims Likelihood of unlimited or insurer-like liability Disproportionate risk and reparation allocation Public policies affecting the expansion or limitation of new channels of liability. NOTES: Beck v. FMC Corp FMC plant caused physical vibrations and rained down debris from an explosion. Workers tried to sue for lost wages due to temporary shutdown of Beck plant. RNo property damage or injury = no liability Dunlop Tire & Rubber Corp. v. FMC FMC plant caused physical vibrations and rained down debris from an explosion. Store suffered property damage from explosion and was granted economic damages for harm to the property AND lost wages. RYou can get lost wages IF there is accompanying property damage. 12

Torts Outline Elena Pernice

B. Standard of Care
When should Unintended Injury Result in Liability? Hammontree v. Jenner: D was an epileptic who after 12 yrs without incident had a seizure and lost control of his car hitting P store and injuring P R-You cant be held liable if you have no control over your actions (seizure, unconscious) Hammontree was unconscious and did not make a choice to expose himself to higher risk. Negligence requires a conscious act; Hammontree did not do this and so was not negligent or liable Strict liability as applied to manufacturers not applicable to drivers / does not take into account unforeseen heath failures like a heart attack NOTES: Holmes: People are supposed to act. Acting creates risk. Risk is good. Unless the act is of a nature to threaten others, or unless a prudent man would have seen the possibility of harm Posner: Negligence is determined via cost-efficient choices. The Parties and Vicarious Liability Christensen v. Swanson: employee driver hits someone while on undocumented lunch break R- Employer can be held liable for employees actions under Respondeat Superior Scope of Employment/ Birkner test, Scope of Employment / Birkner Test an AND test For Respondent Superior you MUST have all 3 of the following elements: 1. General kind of activity the employee does for the employer 2. Within the hours and spatial boundaries of employment 3. Motivated by purpose of serving employers interest (The employer would be liable for their employee if these are present). NOTES: Respondeat Superior is a type of Vicarious liability which: a. encourages better hiring and supervising. b. provides better compensation. Examples: Barker v. St Francis Hospital: D banged a babys head against table in frustration. Vicarious Liability since occurred in course of employment and in furtherance of the job the caregiver was performing. Foster v. Loft: Bartender hit somebody. Owner at fault for hiring an employee with criminal past.

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Roessler v. Novak : sick patient had a bad tumor which made him sicker due to a misdiagnosis Apparent Agency/ Authority: (for independent contractors)a. representation by the principal b. reliance by P on the representation of the third party c. A change in position in reliance on the representation. i. Changing what you would do as a result of that reliance. d. B & C are sometimes combined to be called detrimental reliance. NOTES: Hospital could have posted notes/ signs informing patients that the doctors they saw were Independent Contractors separate from the hospital. (Baptist Memorial Hospital)

Bethel v. New York City Transit Authority: Chair on Bus breaks injuring passenger. R- Common Carrier standard should no longer be applied to busses in NY. Common Carriers held to higher standard of care. Reasonably Prudent Person Standard A should have known/ Objective Standard The Standard of Care for the ordinary prudent person: Genderless Motive irrelevant Average Intelligence/prudence Experience doesnt matter (unless youre an expert with high level of expertise) Ageless (unless a child) Physical Disability (Then it is subjective) Acting at moment of event RPP is NOT infallible The circumstances do matter Exceptions to RPP: a. Experts in that field are held to a higher standard of care. (Lance Armstrong) b. Children are held to the reasonably prudent child of that same age, ability, intelligence. (Some jurisdictions have 0 liability for children under a certain age.) / If engaging in adult activity, then children are held to the adult standard. c. Physical Disability (Held to the standard of care of someone of the same disability.) d. Total unconsciousness will completely absolve you from negligence. (Hammontree) NOTES: Ramsbottom: Physical disabilities only count in the extreme case. If you have a stroke before driving and choose to continue driving, we dont count the disability. Bashi v. Wodarz: Dont care about subjective mental state at time of accident; just freaked out doesnt matter.

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Torts Outline Elena Pernice Emergency Doctrine 1. An honest exercise of judgment 2. Some states, it is not universal Creasy v. Rusk A violent Alzheimers patient injured his nurse. R- Mental intelligence level not a factor in determining RPP

Negligence Brown v. Kendall : D tried to break up a dog fight and hit Brown in the eye with a stick R- P has burden of proof to show that D did not use ordinary care If one injures another accidentally while in pursuit of a lawful act, then no negligence

Adams v. Bullock: kid swinging metal wire struck trolley wires burning him. R- An act or failure to act is not negligent if the accident was not reasonably foreseeable and prevention would have been economically unsound. NOTES: Braun D never tended to wires in an area where development was highly foreseeable. A worker many years later was electrocuted R-can be held liable if one must only anticipate what was usual, rather than exceptional Greene v. Sibley: Mechanic working in store moved, lady tripped over him. R- to find him liable required extraordinary provision, law only requires ordinary provision

C. Breach
United States v. Carroll Towing Co.: Barge in NY Harbor broke free and sunk while bargee was away. R-How heavy is the burden BPL/Hand test B < PxL (probability x Loss) McCarty v. Pheasant Run, Inc. : Womans hotel room was broken into and she was attacked. P claimed hotel needed better locks even though her room door was not locked at time of robbery. R- Breach must be connected to cause How to frame a Breach: 1. Duty? 2. Standard of Care? 3. ID Breach 4. How heavy is the burden? 5. Is it safer in a way that matters? 6. Is it feasible? 15

Torts Outline Elena Pernice 7. Reasonable Cost 8. Does not impair usability or function

Role of Judge and Jury Baltimore & Ohio Railroad Co. v. Goodman : A man was driving through railroad tracks and was hit by a train R- When dealing with a standard of conduct and that standard is clear it should be laid down once and for all by the courts NOTES: Judge Holmes says that since judges often see a bunch of these kinds of cases, theyre well equipped to set a standard that will reduce the occurrence. Pokora v. Wabash Railway Co.: Man was hit by train but it wasnt his fault as he couldnt see the tracks well. R- Its inappropriate for judges to determine the standard of conduct. That is better left to the legislature and the jury. NOTES: Judge Cardozo says that because a judge cant foresee every eventuality, a jury better knows whats needed.

EXAMPLE: Akens v. Glens Falls School District Foul ball to the eye. Example of a case where a jury was not needed and the clear evidence pointed only to one correct outcome/party and court could decide case as a matter of law. (Courts not going to let jury decide and institute new safety standards for all baseball fields).

Andrews v. United Airlines, Inc. Falling luggage hit a chick in the head. R- Judges cant determine what is proper practice for an industry, e.g. planes. A jury could have decided this case either way, summary judgment would not be appropriate.

Custom Trimarco v. Klein: P fell through old shower door. P claimed Landlord had ignored custom of installing safety glass. Defining Custom: A should have known standard: Objective/Subjective

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Torts Outline Elena Pernice 1. Prevalent 2. Need not be universal 3. Well Defined in same calling/ business 4. Reflects judgment of many 5. Knowledge NOT required *Courts can overturn a custom or establish a new custom.(T.J. Cooper tug boats didnt have custom to carry radios so court mandated a new custom of doing so.)

Statutes Martin v. Herzog Couple in buggy with no lights on were hit by car. R- Not abiding by a statute meant to protect human life is negligence per se. You can use the violation of a statute for negligence per se if: 1. It benefits the class of persons that includes the P 2. Protects against the type of harm that resulted 3. Violation was a causal connection in bringing about the harm Excuses: a. If observance of the statute would cause more harm b. Incapacity c. Necessity d. Impossibility (Bassey v. Mistrough) (The courts are free to establish a statute as a standard of care) NOTES: De Haen v. Rockwood Sprinkler Co. radiator falls on someone. Statute was there to make ppl more careful in open areas and would have prevented the accident had it been followed. Telda v. Elderman people walking down highway were hit by a car. R- Pedestrians must follow rules of law unless doing so would place them at greater peril.

Proof of Negligence Negri v. Stop and Shop Inc. Woman slipped on broken baby food jars which had been left uncleaned in aisle. R- D should have realized situation given the circumstantial evidence of elapsed time and cleaned up mess. Gordan v. American Museum of Natural History: Man slipped on some wax paper outside Museum he contends came from the concession stand. R- P must prove constructive notice Constructive notice: 1) Defect must be visible and apparent 2) Must exist for long enough time for D to hear about it. 17

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NOTES: Faricelli Slip on a banana peel. R- Evidence must be relevant to proximate cause Randall v. K-Mart Corp Man slipped on loose bird seed. Self service method carries with it a duty to keep the area clean Exception for business practice rule: creates a foreseeable risk to invitees. (no constructive notice) Byrne v. Boadle Man hit by falling flour barrel. R- Res Ipsa Loquitur. If there are any facts inconsistent with negligence it is for the D to prove them. Res Ipsa Loquitur only in cases where there is no real HARD evidence it speaks for itself This is used when there is no actual evidence present. a. The accident would not usually have occurred in absence of negligence. b. The instrumentality was in the exclusive control of the defendant. c. Not due to any voluntary act or contribution of plaintiff. d. No direct evidence of Ds conduct *Burden of Proof on P, but the D can rebuttal evidence **Want to help people whove been hurt that have no direct evidence of injury Policy- preventing conspiracy of silence To give P ability to sue when there is only circumstantial evidence of breach

McDougald v. Perry Rouge Spare Tire flies off truck and hits P car. R- Res ipsa loquitur. 1) P must establish that instrumentality of injury under exclusive control of D 2) Accident would not have occurred without negligence on the part of one in control.

Yberra v. Spangard Appendix surgery creates more problems for a patient. Paralysis of shoulder muscles. R- If unconscious, res ipsa loquitur is not inappropriate, but you have to sue everybody who could be potentially negligent if the person responsible for the instrumentality is unknown.

NOTES: Inouye v. Black: Doctor put a metal wire in Ps back. Wire had issues. Res ipsa was unusable because Ds negligence was only one of many possible answers. 18

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Res ipsa is a last-ditch for cases where there is no direct evidence, if there is some, dont use. Contributory Negligence: Contributory Negligence on the part of P will SOMETIMES (not always), constitute a failure to meet the requirement for res ipsa loquitur. Medical Malpractice Requires an expert witness in order to establish it. Proximate Cause Cause in Fact Damages Medical Malpractice

a. b. b. c.

Sheely v. Memorial Hospital Doctor accused of not upholding Standard of Care. Judge initially denied P her expert witness. R- Any doctor with knowledge of or familiarity with a procedure, acquired through experience, observation, association or education is competent to testify as a witness. NOTES: Same or similar: Minority view: must use a doctor in a same or similar locality. Came about for provincial areas where the medical standard is inherently lower. A problem arises when a conspiracy of silence can arise in small communities. Statutory limitations: a few states have explicit requirements; i.e. must have active clinical practice within one year in Ds specialty Schools of thought: There are 2 schools of thought; as long as you use a RECOGNIZED medical procedure / practice, even if it is uncommon as long as it is accepted and practiced by others in profession it is as equally valid as a wider used method / approach. You dont need an expert if its in the laymans general knowledge. Mattke v. Deschamps:P lost his case on a res ipsa claim because he neglected to bring expert testimony. Leonard v. Watsonville Co. Hospital D tried to say there was a custom of not counting tools before closing up a patient. Court ruled that it should be a custom then since it helps establish due care.

States v. Lourdes Hospital P arm experienced dystrophy following a surgery unrelated to the arm. R- Expert testimony may be used to help jury bridge the gap between its own common knowledge and that of the specialized knowledge needed to conclude res ipsa. Matthies v. Mastromonaco Case of broken hip made worse due to doctor prescribed bed rest. R- Patient Rule / Informed Consent 19

Torts Outline Elena Pernice 3 theories for informed consent cases: 1) Medical battery: Based off of unwanted touches (surgery on wrong leg, etc.)Minority view 2) Medical Malpractice: didnt conform with general practice or standard of care. 3) Informed Consent: about denying the patient the right to choose (not informing properly of ALL options even those the doctor wouldnt recommend)- Majority view To bring an informed consent claim: a) Communicative: miscommunication or failure to communicate b) Material options and risks; (Burden on the doctor) c) Cause- Specifically the with-holding of information is what caused the problem / would a Reasonable patient with P medical condition have chosen differently if better informed? Reasonable Patient Rule: What a reasonable patient would want to know (Subjective Standard) need to look at objective standard NOTES: MICRA, California legislation that restricts that amount of pain and suffering damages that can be incurred in a medical malpractice case to $250,000 -patient can change mind about a particular treatment option; this takes both parties back to square 1, requiring a re-explanation of everything. -we assume people who are unconscious want to be saved. -You can reject life-saving care if you so desire. -surgeons personal characteristics and experience are not relevant to informed consent.

D. Cause in Fact
Cause in fact is linked to Breach. Frequently there will be multiple causes of any event and we do not require that X be the (only) cause; so long as X is a cause it is sufficient. But for cause in fact: But for the D breach, the P harm would not have occurred Substantial Factor Test: A negligent act is deemed wrongful because the act increased the chances that a particular type of accident would occur; and mishap of that very sort did happen. 5 steps to Analyze cause-in-fact Must use the same B youre using in your BPL analysis Must apply SUBSTANTIAL FACTOR TEST (because nearly anything can be a butfor cause). 1. Identify the nature of P injury 20

Torts Outline Elena Pernice 2. Identity the D wrongful conduct (Is D conduct enough to be considered a cause of the injury/P harm)? 3. Create the counter-hypothetical 4. Assess what is likely to have occurred absent D conduct 5. Answer the question: is there cause-in-fact? Rinaldo v. McGoven D hit P with a golf-ball. Breach was D not yelling fore before hitting ball. However even if D had yelled, P likely would not have heard him in time to react. Rfor there to be cause in fact there must have NOT been injury absent D misconduct (step 3). Stubbs v. City of Rochester City messes up water lines and people drink nasty sewer water instead. Man contracts Typhoid as an alleged result. RP does not have to disprove other possible causes, just demonstrate by a preponderance of evidence that D negligence was proximate cause of injury.

Zuchowicz v. United States A woman was prescribed an overdose of medication. She soon after developed hyper tension and died. R If: (a) a negligent act was deemed wrong because the act increased the chances that a particular type of accident would occur; and (b) a mishap of that very sort did happen, this is enough to support a finding by a tier of fact that the negligent behavior caused the harm.

Sowles v. Moore Some horses fell through an un-guarded hole in the ice and drowned. R D must have neglected a particular duty that would have prevented the injury were the duty properly performed. New York Cent. R. Co. v. Grimstad A captain fell overboard a boat with no buoys and drowned. RP must have a preponderance of evidence showing that absent D negligence would have prevented injury. ( Use Sub. Factor Test. Otherwise anything could be cause in fact).

Alberts v. Schultz Man had a condition that was causing gangrene. For a variety of reasons doctors did not address issue quickly enough. RLoss of Chance. P must be below a 51% chance of recovery in order for this rule to apply. (P cant recover 100% of damages, only percent that D diminished through negligence). NOTES: Carroll v. Whitney 2 doctors were involved in an operation which injured P, one was more liable then the other. 21

Torts Outline Elena Pernice RAssignment to non-parties is OK as long as non-parties are identified. However, in these cases some courts will allow the sued parties to bear the cost of the absent party as well.

Summers v. Tice D's were quail hunting and accidently shot P. P could not say which D had shot him. RJoint and Serval liability: 1. 2 or more D acting in concert 2. Concurrent contributions to a single, indivisible injury 3. Injuries that are incapable of any reasonable or practical division (What you do with damages amount once you decide which D to sue.)

Hymowitz v. Eli Lily & Co. A morning sickness pill was found to have caused birth defects and later problems to pregnant ladies kids. Several different companies made the pill and Ps could not prove which company made the pill that messed up their baby. RMarket share theory: using the national market to determine liability and apportionment of damages. Whatever you market share before, thats your percentage of payment now. Concerted Action cannot apply here as the D manufacturers did not work in tandem to create torts.

E. Proximate Cause
The type of harm must be foreseeable but the extent of harm need not be. However, the injury which occurs MUST be within the scope of the risk which D created. At this time it is likely D has a duty which it has breached Prox. Cause can be very broad Proximate cause is decided by a jury Benn v. Thomas P was injured when D rear ended him. P had heart problems and 6 days after the accident P had a heart attack and died. REggshell Plaintiff Rule: 1) Preexisting Condition AND 2) D conduct caused latent condition to light up Makes tortfeasor liable for full damages including those disabilities which were already present. Doesnt matter if extent of harm is foreseeable/ matters how much harm P suffers

NOTES:

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Torts Outline Elena Pernice Pridham v. Cash & Carry Building Center P was being transported to hospital in an ambulance. Driver suffered heart attack and ambulance crashed, P died. RIf medical services are rendered negligently, the rule based on questions of policy makes the negligence of the original tortfeasor a proximate cause of the subsequent injuries suffered by the victim. Wagon Mound D discharged furnace oil into harbor. D did not think oil could ignite on water, however oil was ignited by molten metal dropped by P workman and fire destroyed dock. RD may only be held liable for the kinds of injuries which he could/should have foreseen. (D liable for damage caused by actual oil spillage, not fire.) Liability must be imposed on the ground that it was reasonably foreseeable; within scope of risk created by D

NOTES:
Darby v. National Trust P died from drowning in D lake. D should have warned guests about rat urine in the lake causing a deadly disease. RFor proximate cause to exist the injury which occurs must be within the scope of the risk created by D. Drowning was not within risk of warning about pee disease. Berry v. Sugar Notch Borough tree fell on a trolley car whose excess speed had put it in the wrong place at the wrong time. RScope of risk is not the same as cause in fact

Tree falling on tracks is not within the realm of risk created by the D

Superseding / Intervening Causes: A negligent D whose conduct creates or increases the risk of a particular harm is not relieved from liability by the intervention of another person, where the harm is foreseeable and within the scope of the risk created by D conduct. Doe v. Manheimer A woman working in a bad part of town was raped behind the overgrown bushes on D property where other crimes had been committed as well. RHarm suffered must be of same general type that makes D conduct negligent in the first place. You can foresee tripping on the bush but not the bush prompting criminal acts. NOTES:
Hines v. Garrett Train took 18 yr old girl a mile past her stop and conductor told P to walk back to other station even though he knew the walk was through a bad neighborhood. P was raped. RIt was foreseeable that a rape might occur/was within the scope of the risk (D dropped girl off in bad neighborhood it was foreseeable that girl might be hurt by criminal element). Addis v. Steele guests had to jump from 2end story building to escape fire. D had no safety precautions in place for a fire but claimed that since fire was started by arson it didn't matter. RScope of risk was not having precautions in place/ hotel had a duty to protect guests from fire regardless of the cause.

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Phan Son Van v. Pena Minor gang members bought alcohol and at a gang initiation ceremony raped and murdered two girls who were walking by. RNo proximate cause here / foreseeable that minors might be hurt but the malicious group activity was the Prox. Cause and it was not foreseeable.

Palsgraf v. Long Island RR Co. Man carrying an unassuming package was assisted by RR guard, causing him to drop package. Package was full of fireworks which exploded when they hit the ground and caused scales form train station roof to dislodge, falling and injuring P. Rthe risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within range of apprehensionCardozo Rule for Proximate Cause

Dissent: Broad duty to the world at large to avoid risk creation Distance is a limiting factor has there is more opportunity for an intervening cause to occur the further removed from the actual event you are. What we do mean by the word proximate is, that because of convenience, of public policy, of a rough sense of justice, the law arbitrarily declines to trace a series of events back beyond a reasonable point.Andrews on proximate cause

NOTES:
Moore v. Shah P was denied recovery for donating a kidney to his dad who needed one due to D malpractice. RFor rescuers as foreseeable P there cannot be a significant amount of time to consider/act. Actions must be instantaneous and spontaneous and made during emergency conditions.

Firman v. Sacia P claimed that when D hit a child 7 years ago causing brain damage that D was also responsible for when 10 yr old child, unable to stop himself due to his injuries, shot P.

RRemoteness in space and time can cut off liability Kinsman Ship that was poorly moored broke loose in a storm, hit and set loose another ship and both ships hit the bridge that the City had negligently not raised, creating a dam and causing massive water damages to surrounding properties. RNo pure economic harm under proximate cause however there is liability for injury and property damage. D did not have to foresee exact harm to be found liable for it.

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Defenses
a. Contributory Negligence The P conduct must be the proximate cause of P harm. This totally bars the P from recovery at Common Law. b. Comparative Negligence attempts to divide liability between P and D in proportion to their relative degrees of fault. P recovery is reduced by a proportion equal to the ratio between his own negligence and the total negligence which caused the accident. 1. Pure System: A P who is 90% at fault for an accident can recover 10% of the damages from D. D who was also hurt could recover 90% of damages from P. 2. Modified System: 2 variants A P under one variant can recover under the pure system BUT ONLY if P negligence was less than D; (P can recover up to 49%). Under the 2end variant, P can recover under the pure system BUT ONLY so long as P negligence was less then OR equal to D negligence. (less than or = to 50% at fault).

Fritts v. McKinne A man was injured in a drunk driving accident. He underwent surgery at a hospital and died. R Pre-treatment conduct should not be considered in a liability phase of a medical malpractice suit. The driver and doctor were separate occurrences which we dont compare.

Express Agreements/ Assumption of Risk a. Assumption of RiskA P assumes certain risks of harm if she has voluntarily consented to take her chances that the harm will occur. b. Express AgreementsP explicitly agrees with D in advance of any harm that P will not hold D liable for certain harm. (i.e. signing a waiver). Three exceptions: 1. If D intentionally causes the harm or brings about injury by acting in a reckless or grossly negligent way. 2. When the bargaining power of one party protected by the clause is grossly greater than the other party. 3. There is some overriding public interest which demands that the court refuses to enforce the exculpatory clause.

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Torts Outline Elena Pernice Dalury v. S-K-I, Ltd. P had signed a waiver and then hit a pole while skiing. Was this an express assumption of risk? RPolicy reason; Either everyone is agreeing to D terms and D has no incentive to play it safe or D lets everyone on without signing and makes the resort safe. Tunkle Factors: An agreement is invalid if it exhibits some OR all of the following characteristics 1. Is generally thought suitable for public regulation 2. Is of great importance to the public 3. Party holds itself as willing to perform this service for any member of the public who seeks it 4. Poor bargaining strength of one or the parties 5. Agreement is a take it or leave it situation with no other options available 6. The buyer is subject to the sellers negligence

Implied Assumption of Risk Even if a P never makes an actual agreement with the D, her conduct may demonstrate that P has in fact assumed certain risks. For this doctrine to apply a D MUST show that a. P knew of risks in question AND b. P voluntarily consented to bear the risks herself. Murphy v. Steeplechase Amusement Co. P rode the flopper and hurt his knee. Claims lack of padding was the reason. RIf P was reasonable in taking the risk then D is reasonable for providing the entertainment which causes the risk. P assumed risk of falling when he got on the ride Davenport v. Cotton Hope Man falls down an unlighted flight of stairs. He knew the steps were unlighted but took them anyway. RIn comparative negligence, assumption of risk does not bar recovery unless P fault is greater than D fault. A balancing act of who was more reasonable; P or D Chance both parties could be negligent but assumed the risk

Levandoski v. Cone A cop trips and falls in the woods while pursuing fleeing D. RThe firefighters Rule can apply to cops. This case is about ppl who knowingly assume risks and then sue other people who create risks. A landowner is already paying taxes which pay the firefighters worker compensation, so if a firefighter gets injured on someones land they cannot sue for damages.

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Torts Outline Elena Pernice Geier v. American Honda P hit a tree and claims her injuries would have been less had her car had an airbag installed. State regulation v. Government regulation Policy argument: knowledge of the jury and influences of regulatory agencies Preemption: Sometimes just complying with federal regulations is not enough. But if there is congressional intent to create a national standard, then this can preempt a tort claim where the manufacture followed the set standard.

Strict Liability This is liability regardless of Ds intent and regardless of whether D was negligent. RThere must be no substantial change in the product after it leaves D hands. ALSO there must be: 1. Sale of a defective product 2. D must be in the business of selling products (manufacturer, wholesaler, retailer, ect.) People are more likely to sue under a strict liability standard because the payout is often larger. Strict Liability, unlike the negligence system does not engage in much accident investigation. This means that youre less likely to learn something about the product. We want to learn from our mistakes. If P have to prove fault then attorneys for P are going to look for the cause of the accident to find the most cost effective solution.

Rylands v. Fletcher Reservoir floods a neighbors mine. D refuses to pay for damage as he was not negligent. RWhen D put their land to a non-natural use or introduce non-natural elements onto it, they are responsible for the damage these elements may wreck, regardless of D exercise of reasonable care. The consumers of cotton are the real party that has to pay if D found liable, as D would up his prices to pay for P damages. Indiana Harbor Belt RR v. Cyanamid Chemicals in D train car started leaking at P train stop. The cleanup was pricy and P was pissed. R6 factor test to determine abnormally dangerous. This affects the P in determining BPL. Whether an activity is abnormally dangerous: 1. High degree of risk of harm to others 2. Likelihood that resulting harm will be great 3. Inability to eliminate the risk by exercise of reasonable care 4. Activity is not a matter of common usage 5. Inappropriateness of the activity to the place where it is carried on 6. Value to the community of the activity (is value outweighed by risk of harm?) 27

Torts Outline Elena Pernice

Goals of Tort Law:

Compensation: We want to make people whole again Loss Spreading: Is expensive; will often detriment the consumer in a product liability suit Deter tortious conduct: trying to stop unnecessary accidents (we use BPL to do this) We apply RPP to these applications

Defective Products Liability Use BPL to determine if burden outweighed the risks. Specifically, looking at magnitude, social utility, appropriateness of location, and frequency. Ultimately in products liability its the consumers who pay more for damages awarded to a victim/seller will have to up prices to pay for insurance. Three theories of products liability: 1. Negligence: Manufacturer failed to use reasonable care in designing, manufacturing or labeling the product. No privity required so long as P was a foreseeable victim 2. Warranty: several ways for breach to occur: express warranty implied warranty, merchantability (fit for ordinary purpose for which such goods are used) fitness for a particular purpose 3. Strict Liability: A seller is held liable to a buyer for injuries caused by a product sold: a) In a defective condition that is b) Unreasonably dangerous to the user MacPherson v. Buick Motor Co. P bought a car from a dealer. The car had a defect and the wheel broke off causing an accident. Ra manufacturer who negligently manufactures a product is liable for ANY personal injuries proximately caused by his negligence, irrespective of privity. Inherently dangerous products are the exception to the privity rule Escola v. Coca Cola Coke bottle explodes in a womans hand injuring her. P claims Coke didnt use reasonable care. P has to show that D failure resulted in the accident D has the better ability to cost spread Contracts Policies in Tort: Implied Covenant of Merchantability: Manufacturer must deliver what is promised and P does not have to prove fault when this doesnt occur.

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Design Defects When design renders a product unreasonably safe. Restatement 402: A Special Liability for seller of Products 1. One who sells a defective product to a user is subject to liability for physical harm thereby caused to the ultimate user IF: a. The seller is engaged in selling such products b. It is expected to and does reach the consumer without any substantial change 2. This is true EVEN if a. The seller has exercised all possible care in the product preparation CA approach: rejects restatement formulation. In Barker CA courts created a 2 prong test for product defects. Consumer Expectations OR Risk utility. (Risk Utility uses BPL to measure the utility of a design against the risk of it). The jury must look to the condition of the product itself NOT the reasonableness of the manufacturers conduct. Risk-Utility approach: Can the foreseeable risks of harm posed by the product be reduced or avoided by the adoption of a reasonable alternative design on the part of the seller? If the utility of the product outweighs the irreducible risks then the product is NOT defective. Consumer Expectations: A design may be found defective if the product failed to perform as safely as an ordinary/reasonable consumer would expect when used in the intended or reasonably foreseeable manner.

Soule v. GM Co. In a car accident P ankles were crushed when allegedly defectively designed wheel wells collapsed inward. How do you determine Consumer Expectations? Comacho v. Honda Man purchased a motor cycle without leg guards. Shockingly, in a crash his legs were injured. He claims defective product design. RUnder Risk Utility Test it is more risky then useful to not have leg guards. You can use the 7 Ortho factors to determine Risk Utility but it is WAY easier to use BPL. Manufacturer is in a WAY better position to determine the P (probability) and L (degree of injury which may occur) in Risk Utility BPL.

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Torts Outline Elena Pernice Safety Instructions and Warnings Apply only to properly manufactured and designed items. Warning must be adequate for a variety of situations. Must be of a size and length that ensures a customer will actually see and read it. Must warn about type of harm and likely consequences Seller is required to give a warning against a danger if he has knowledge or by the application of reasonable developed human skill and foresight should have knowledge of the danger (majority rule). Hood v. Ryobi Man took off the saws safety guards despite warnings that said not to. As a result the saw blade flew off and hurt him. P claims that D was not specific enough in their warning about what type of harm might occur. RBurden goes to the effectiveness of the warning. Warning said you WILL get hurt if you remove guards. This should have alerted P immediately to the fact that removal was a bad idea Edwards v. Basel Pharmaceuticals Man was smoking cigs and wearing a nicotine patch. Big surprise he had nicotine induced heart attack. This was not warned against. RDoctor has to warn patients about ALL side effects even those with a low likelihood of occurring. D has to warn what FDA mandates; In this case D did and was still liable Exception to the rule for mass immunizations

Defenses Several different types: 1. Those that divide product derived harms from others 2. Those that separate strict liability and negligence OR 3. Those that distinguish among personal injury, property damage and economic harm Courts may apply common law or statutory principles in cases of comparative fault and products cases.

General Motors v. Sanchez Man was found smashed to death by his truck. Supposedly it misshifted. RA consumers conduct OTHER than to guard against the defect is subject to comparative responsibility. Its not negligent to not check whether or not a product is defective BUT P should have considered WHY it was important to use parking break. This standard compares expectations against foolishness

Jones v. Ryobi, Ltd Woman smashed her hand in a printing press. Her employer had messed with it to make it dangerous. 30

Torts Outline Elena Pernice RProduct MUST be defective when it was sold (left D hands), not after third party modification. P rebuttal is that the machine didnt function as expected with the guards on so consumer expectations were not being met.

Royer v. C.M.C P had a knee implant surgery and the implant was defective. P wants strict products liability to apply since D sold the knee. R Two things required for strict liability: 1. Sale of a defective product 2. D must be in the business of selling products D sold a product that was defective, but is not in the business of selling products. D is in the Health Care business which the court holds as separate from the selling of products

Intentional Harm What the actor sought to achieve or knew would occur rather than whether causing the harm was intentional. a. The person acts with the purpose of producing the consequence OR b. The person acts KNOWING that the consequence is substantially certain to occur, whether you intended them or not. Garratt v. Dailey 5 year old kid pulled a chair out from under an old lady. Did he intend her to fall? RWhile D may not have intended physical injury he did intend contact which resulted in the harm

Battery: An act that is intended to cause and does in fact cause an offensive contact or unwanted touching of, or trauma upon the body of another. a. Need not necessarily be their body, but objects connected to their person (like holding a cane) do count. b. For it to be offensive, it must be offensive to the ordinary person c. If D intended to cause an imminent apprehension of harmful/offensive contact and such contact occurs this counts as battery Picard v. Barry Pontiac-Buick, Inc. After tensions at a repair shop, D approached P in a menacing manner and touched the camera P was holding. RBattery does not necessarily have to produce an injury. It is merely an offensive contact with a person or an item closely connected to victims person.

Assault: Immanent threatening act which causes an apprehension of harmful or offensive contact. For intent: D must have intended to cause apprehension of contact OR have intended the contact itself 31

Torts Outline Elena Pernice Old English Hatchet case Guy swung a hatchet at a tavern owner but missed. D was found guilty of assault. Assault is when you SEE the harm; an apprehension of imminent battery Policy reasoning: We want to grant people a monetary remedy to encourage them to go to court when their dignity has been offended, rather than take matters into their own hands and fight back. If someone has the intent to assault but not batter, through the doctrine of transferred intent the intent from assault can transfer to a battery. False Imprisonment: All or some of these factors must be present a) There must be actual OR apparent physical barriers b) Overpowering physical force, OR by submission to physical force c) Threats of physical force d) Other duress e) Asserted legal authority f) Area must be relatively small (i.e. dont leave China doesnt work)

Lopez v. Donut House P claimed she was locked in the donut store for questioning

Intentional Infliction of Emotional Distress: Must have these elements present and generally cannot be used in connection with a case for alienation of affections: a. Emotional distress must be severe b. Wrong doer was intentional or reckless c. Conduct outrageous and intolerable, offends standard person d. Causal connection between conduct and emotional distress First Amendment Defense- Public figures cant recover Hustler Magazine, Inc. v. Falwell The porno defamation. Pastor was defamed in an outrageous comic in a porno. RThis comic was a parody which was obviously false and D was a public figure. Courts do not want to impinge on freedom of press It is not enough for someone to intentionally want to cause emotional harm; its the question of what is the standard for outrageous Defenses & Privileges: Consent- split of authority, but generally cant recover if consented to the action In some districts if actions is illegal, consent is irrelevant Hart v. Geysel Illegal prize fight. Loser tries to sue despite consent and illegal nature of activity RMajority Rule: Consent to do something illegal is void Minority Rule: We arent going to let you profit from illegal activity

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Torts Outline Elena Pernice Self-defense- need to determine what was basis for self defense Objective test- what would reasonable person have done? Courvoisier v. Raymond Shopkeeper was surrounded by a mob and mistook a cop as an attacker and shot him in perceived self-defense. Policy of allowing people to defend themselves but you still have to pay if you were mistaken (as in this case) Protection of Property- one cant use deadly force to protect their property 1) Policy is people are more important than property 2) If intent is to deter rather than to cause harm it might be ok Katko v. Briney The Shot-gun booby trap. All to protect some rusty jars, a farmer blew a guys leg off with a spring loaded shot-gun. Gotta love hicks. Private Necessity- in emergencies can cause damage if is for greater good. Courts will allow this type of behavior but you must repay the owner or the property you used/ damaged in your necessity Vincent v. Lake Erie During a storm the captain tied the ship inappropriately to the dock. The ship hurt the dock. The captain had to pay. Qualified Immunity- Have to determine what was law at time of the incident Wilson v. Layne COPS goes after the wrong people. Too bad the camera crew was there. This suit was only against the state cops acting under color of state/ federal Marshals were thus exempt If didnt realize you were violating someones rights, you shouldnt have to pay

Intentional Economic Harm- A pecuniary harm that does not result from personal injury or property damage. Predictions cannot be basis for a fraud claim (no one knows the future) Promises cant be fraud (not facts) Opinions arent fraud (depending on the promisor) Intentional [mis]representation: you intended a statement you knew was false (intended to deceive), OR you had no idea about what you were saying but spoke as though you did. Recklessness: Purposely ignoring all facts which point to the truth because you didnt WANT to know the truth/reality. Negligent Representation: Said something that was false, but thought it was true. However the reliance on the validity of the statement was unreasonable.

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[Mis]representation: There are deliberate misrepresentations and fraud through silence Deceit: 5 elements to determining a material [mis]representation 1) 2) 3) 4) 5) [Mis]representation of material existing fact (i.e. a lie or representation that is false) Falsity Deception Scienter (knowledge) Injury/damages

Silence: 1) What is said is a misrepresentation because of WHAT IS LEFT OUT OR 2) D prevented investigation Either type of deceit requires that a P believed the false statements and acted in reliance on them. In addition, this reliance must be the proximate cause of the harm Ollerman v. ORourke Co. The secret well. D did not mention the fact that there was a hidden well on the vacant lot P bought. P found out during construction. P claims fraud through silence. Rtraditionally silence isnt fraud UNLESS 1. D prevented buyer from discovering defects (active concealment) 2. Preventing buyer from investigation 3. Telling a half truth or ambiguous statement 4. Where there is a fiduciary relationship 5. Buyer is not in a position to discover facts for himself AND seller has particular knowledge or the issue

All-Tech Telecom, Inc v. Amway Corp. P claims that D made false representations which convinced P to stay in D failing business venture. RMateriality is determined from looking at a RPP perspective/ would the information be important or relied on by a RPP Puffing is an opinion from someone who wouldnt believe what they are saying (salesman; this product is awesome!) To prove fraud in the scienter you need to prove the speaker KNEW/had evidence presented to them that the opinion they gave was false

Interference with Contract: D knowing of the existence of a contract between P and a 3erd party deliberately undertakes to interfere with that contractual relationship

Imperial Ice P and 3erd party had a contract not to compete. D induced 3erd party to breach noncompetition contract. UNKNOWENLY inducing the breach of a contract by a 3erd party is not actionable 34

Torts Outline Elena Pernice Business competition does NOT outweigh a contract You MUST prove interference

Della Penna v. Toyota To prevent the sale of Lexus in Japan by third parties, D levied sanctions on their dealers who sold to people like P. P claimed that by doing this D had intentionally interfered with P perspective economic advantage. However, D actions did not cause any breach of contracts, just prevented P from getting NEW contracts. RIf there is no contract between the parties a P has to prove interference AND independent wrongful action on the part of the D.

Defamation The core concern of defamation is protecting peoples reputations. Before you can defame someone, someone ELSE must hear/read the statement.

Romaine v. Kallinger D wrote a nonfiction novel about the death of another woman. In the book was ONE sentence which P claims makes it seem like P either sells drugs or associates with junkies. Rdefamatory statements do not necessarily have to be false, just damaging.

Slander: An ordinary oral statement In order to establish slander a P must show that he sustained special harm, usually of a pecuniary nature. Evidence of Special Harm: other peoples opinion of P was lowered because of D slander; P has suffered injury to his reputation. If P can prove special damages then he can tack on damages for emotional distress and loss of friendship as well, which on their own would not satisfy the special harm requirement. Slander per-se: If you fall under one of these categories you do not need to prove special harm: 1. Serious Crime: Statements imputing criminal behavior to P. Must be of the kind punishable by imprisonment or is regarded in the public opinion as involving moral turpitude. (Accusation of a minor crime generally is not enough) 2. Loathsome disease: Allegation that P currently suffers from a venereal or other communicable disease. 3. Business, Profession, Trade or Office: An allegation that reflects on P fitness and ability to conduct her trade, business, ect. a) Allegation MUST relate directly to P fitness to conduct these activities. b) Disparagement of goods and not the P themselves is not good enough (i.e. if P is a manufacturer of goods criticizing the goods but not P personal reputation will not be considered slander). 4. Imputing Sexual Misconduct: Must be serious sexual misconduct such as adultery. Can apply to men as well and may include allegations of homosexual activity. 35

Torts Outline Elena Pernice Materson v. Marchello While on a radio program D made statements that they had slept with P wife and that P was gay. P claimed this had damaged his reputation and marital relationship. Libel: consists of all written or printed matter, or a communication embodied in a physical form Radio or TV can constitute libel if the program originated with a WRITTEN SCRIPT. Libel per se: Traditionally if the defamatory nature of communication was apparent from the statement itself (such as the categories for slander per-se), then it was libel per-se. If you have to introduce extrinsic facts to explain how the writing is defamatory to P then this is NOT libel per-se Must be clear that writing is about P. Other people must see/hear the publication and understand it is about P This definition has been substantially cut back by Supreme Court decisions requiring ACTUAL MALICE Actual Malice: Proof that D knew of the falsity of his statements OR recklessly disregarded the truth. If P is a public official/figure or the matter is one of public interest Actual Malice MUST be shown to exist Malice does not refer to ill-will but D attitude toward the truth of the defamatory statement. Defenses: If you can prove the statements were true, this can act as a defense Public Figures: Those who are known throughout a community/region and due to their position in the government as an official, or because they have thrust themselves into the lime light. Have easier access to the media outlets then a normal person and thus can more easily rebut defamatory publications. Specifically defined categories of officials: PolicePolice are public officials because of the important role that they have in enforcing the law. FirefightersNot public officials. School TeachersThere is a split in authority on this point. Former Public OfficialsThey are still subject to commentary on their activates when they were a public official, but otherwise may sue for defamation like a private individual. New York Times P was a public official who supervised the AL police department. NY Times ran an advertisement which stated that AL police had attempted to terrorize civil rights protesters. RIn order to recover for defamation a public figure/official MUST show actual malice P has to show actual malice AND that his reputation has been damaged by the statement P was never mentioned by name; if it is a group who is being defamed then it must be a small group in order for an individual P to make a defamation claim. (police department of AL too big a group to meet this standard). 36

Torts Outline Elena Pernice

Private Individual: Someone who is neither a public official nor a public figure and has not achieved or sought fame or notoriety in the community. Has not sought out the media/lime light Being well known BECAUSE of the libel does not make a normally private individual a public figure (did not intentionally seek notoriety) Private persons seeking defamation damages need not prove/show actual malice Policy: Private people have less access to media with which to dispel attacks on their reputation

Gertz: P was an attorney representing a youth killed by cops. Media outlet called him a communist among other things. D tried to claim P was a public official since he was working on a well-publicized case. R2 parts to the rule for private P: 1) No need to prove actual malice; common law definition of defamation will apply 2) P does still have to prove damages (to reputation, occupation, ect.) Publishers duty to investigate: If a publisher has reason to doubt the validity/facts of a story then they are required to investigate. Herbert v. Lando Ex-Vietnam Vet gets pissed at an article about his conduct in the war. Court gives 3 examples of where an editor was required to further investigate: 1. Inherently Improbable Story (i.e. P is an alien) 2. Story was fabricated 3. Theres obvious reasons to doubt the source of the information If P is a private figure and D is a media outlet, P must prove AT LEAST NEGLIEGNCE by D failing to discover the falsity of their publication.

Privileged Communications: Two types, Absolute and Conditional 1. Absolute: The speaker cannot be held liable even if they spoke/wrote with malice. In cases of judicial proceedings judges, lawyers and parties are absolutely privileged in what they say during the proceedings so long as they have some relation to the matter at issue. High ranking state officials have absolute immunity, as do husband and wife 2. Conditional: There is privilege UNLESS the D is acting primarily from malice or from other purposes not protected by privilege. Look to purpose of the statement; was it just to spite P OR was there a valid reason for expressing it. If statement was made to further public awareness or as a public service by warning about D conduct/reasonably believed conduct then this communication will be protected even if D does not like P personally. (Not that two people hate each other but about WHY D made a certain statement). 37

Torts Outline Elena Pernice Known False Statements: Saying knowingly false things about someone and trying to harm them does not advance an interest and is not protected. (POLICY: we dont want people bad mouthing each other but if there is a worthy interest then its ok because we want to advance the interests of the listener). Liberman v. Gelstein D told a 3erd party that P was bribing cops to not give his residents parking tickets. Asked if 3erd party knew anything about it. RConditional privilege existed because D and 3erd party held a common interest as Landlords and were discussing an issue pertinent to that relationship.

Privacy The publicizing of details of P private life may be an invasion of their privacy Elements of the Common Law privacy tort: 1. Offensivewould the statement be highly offensive to a reasonable person? Involves the subject matter and the way in which it is presented. A mention of an offensive matter in passing without narrative details is not sufficient. 2. Not of legitimate public concernPress/media is allowed to bring story and people into information that is of the public interest. Those who insert themselves into the public limelight are not subject to the same degree of protection as other citizens. Public interest with people is not limited to the matters that made the public interested. Haynes v. Alfred Knopf P claimed that in historical book D invaded P privacy by describing his life with his ex during a time when P was an alcoholic SOB. Now P is reformed and concerned about his reputation. In cases of public interest like this, it is important for author to maintain credibility by using the real names of people Even if D had used pseudonyms, people who knew details of P life would have realized the book was about him anyway Public DisclosureThis has to be a large number of persons, but is not at any set number. Disclosure of information that is on public record Source of the public record and the public interest in that record Court RecordsInformation in court records that is otherwise private may be disclosed to help the public scrutinize the court system. Must then look at: 1) Was the information lawfully obtained? a. If the matter is public record it can be published. b. Government can withhold information to protect the state interest. c. If the information is already public it may be a matter of public knowledge already 2) Is there a state interest of the highest order? 3) Would this result in timidity and self-censorship? 4) Does the statute prescribe some standard other than strict liability? 38

Torts Outline Elena Pernice a. Have to analyze whether the publication would be harmful or public interest in the publication. Constitutional Privilege: Media has privilege to disseminate TRUE materials released by the government and cannot be sanctioned for publishing lawfully obtained, truthful information Florida Star A newspaper published the name of a rape victim in the paper. The name/information was lawfully obtained from police public records. Because of the publication the victim endured phone calls from the alleged attacker and severe mental anguish. RIn determining whether a truthful statement can be punished we must look at: 1) Whether or not the information was lawfully obtained 2) Whether information furthers the states interests of disseminating information of the highest order 3) Would restriction punish or dissuade the press from publishing lawful information through a type of self-imposed censorship? Criteria similar to that of publishing court materials, since much of this legislation has to do with revealing the names of crime victims (usually rape)

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