TORTS OUTLINE FINAL

Privacy We look at Prossers 4 branches Know the difference between Defamation and Privacy 1. False Light (elements) 1. Publicity i. The information must get out to the public(gossip is not enough) more than said to 1 or a few whereas def is publication(dont need the public) 2. Must represent the Plaintiff in a false light 3. The false light must be highly objectionable 4. The fault must be on the defendant i. Pre-gertz plaintiff could recover for defamation by showing knowledge or disregard, gertz said that the common person only needs to show negligence ii. (Cantrell)- she prevailed on false light by showing knowledge and disregard iii. no decision on fault weather they must show negligence or constitutional malice iv. Time v hill 1st false light case to supreme 1. made def show knowledge or disregard for the defendants-this was pre Gertz v. Cantrell 1. they already establish constitutional malice so did not have to decided private and public\ vi. there is a split as to how the supreme court will private/ public person what they need for false light constitutional malice or no vii. some courts dont recognize this if there is no definition then we wont hear it (Levertington) o - quintessential Girl is in a car accident and is helped up by someone 1 year later a picture of this is put in with the caption they asked to be killed a article about careless pedestrians o Is it defamatory to say to a 7 year old that they are careless NO does not seem like defamation, the communication dose not harm her reputation o How about False light Concerned with putting you in front of the public other than as you are must be offensive. defamation protects reputation , Privacy protects your feelings o They found false light in this situation (Flying pig case) P 962 A womans job was to catch a pig from a diving board o Editor of hustler liked it so much that he wanted to put it into hustler and it was published o The woman sued (she was a good girl) o She is in a convinces store and a man recognizes her o Picture is not airbrushed and no bad caption o IS IT FALSE LIGHT??? o Her false light theory was that people with think she is the type of person that would associate with this type of magazines o SHE WON (Falwell v. Hustler)- intentional infliction of emotional distress He loses on defamation and false light because the ad can not be understood describing actual facts When the party is seeking for IIED is a public figure and there is a media def and there is a publication. The P must show there was a falsity and constitutional malice (Cantrell) o The paper said she had an expressionless face, but she was not there, this was on the second interview. The def was portrayed as poverty stricken and so on.

o o o o 2.

Could this story be ok for a liable action: is this something that would harm their reputation. This may not rise to the level of defamation. This case is based mainly on the theory of false light The trial court said that she had to show constitutional malice the supreme skirted the bigger question and said she showed constitutional malice Maybe a private Plaintiff could collect on a showing of mere negligence????

Publication of a Private Fact 1. Need publicity not just publication of a private matter i. Must reach public 2. Highly offensive to a ordinary person 3. Not of legitimate public concern hard to prove i. Reasons for allowing publication 1. is it the truth 2. people should know facts about who they are going to emulate 3. Rape victim it encourages people to come forth Very few private maters Is this constitutional defense is you can not punish us for publicizing a private matter, this has never been decided the court usually find some legitimate public interest (Cox Broadcasting v Cohn) Statue if rape victim is under 17 you cant say their name. The name got put in the record it was published judge said if it is part of the public record it can be published and is not a private fact Sine this decision all cases dealing with a fact on a public record even when there is a state statue preventing publication of the fact the court has found for the person publishing (Brisko) Over time stuff on the record can be private (Sidious case) Genius prodigy disappeared a reporter found the plaintiff and reported on him. The court held it was a ligament public concern (Sipple case) 2 assignation attempts on ford. Sipple saves fords life he was gay and the media told everyone. The court held that there was a legitimate public concern BASICALLY EVERYTHING IS PUBLIC CONCERN-except maybe POOP, HEALTH, SEX Appropriation Plaintiff appropriates the D name or likeness for their own benefit Does not have to be offensive Also biographies are protect Privacy is meant to protect your feeling a lot of jur have split this to appropriation(feelings hurt), and the right of publicity(protects value of name persona so on)- this can go one beyond death, and is transferable You need to know who plaintiff is o there was an add of a woman running through a forest and it showed here in a bad light she tried to collect but you would not know who she was by looking at the add so not appropriation NO SURVIVIAL ACTIONS for privacy o ends with the death of the plaintiff. That is why many states have recognized the right of publicity. In Cali death plus 50 years o Lisa Presly assigned the right to market Elviss name for 500,000,000 Plastic surgery not enough

Changing name is not enough but if you use the name to get something then it is If it is an add about you to sell something then no, but if it is a story about you the ok Today name and likeness is probably not. Vana white and the robot turning letters. Be cautious, the media uses pictures with and with out permission you do not have a causes of action for this particular use, but can use them as an advertisement

3.

Intrusion into Seclusion 1. There must be an intrusion into solitude or private affairs 2. Highly offensive i. This tort does not require trespass 3. dont need to publicize or discover

couple finds a bug under there bed and they sue for intrusion into seclusion if you look though someones window after climbing a tree and see something private the intrusion must be into someones private affairs or (solitude)- this is expanding quickly maybe unwanted sexual advances. Generally no expectation in public Jackie o sued the father of the paparazzi she got an injunction to keep him off of a certain part of 5th avenue and 6 feet from O and here kids The Nadder case the court found that even in public you have some expectation of privacy.(someone looking over his should at all times). Some phyical space even in public Being expanded to sexual harassment , unwanted question leering and remarks represents an intrusion into the plaintiffs solitude. Probably will see a lot of litigation in investigative reporting (Person v Dodd) They did not actually intrude so no liability The tort does not require publication They also tried to sue on publication of private facts o They did not find this because it was a ligament public concern Court did not hold publishers liable because the publishers did not intrude and the info was not private

(Peep hole) Tort was complete just by there being a hole NEGLIGENCE: Elements o Duty o Breach Elements for a of action for negligence(for someone to be liable you need) o Duty o Breach o Causation Factual Legal o Damages Not all conduct which is the factual cause a harm = neg The D must expose the P to an unreasonable foreseeable risk Forcibility- probability

Unreasonable ORPP

(Lubitiz v Wells) Suing the father for negligence the father left the club out and his kid accidentally hid the other kid with the golf club. o He is arguing this to the judge as a matter of law. The leaving the club out does not constitute negligence as a matter of law. Not battery because no intent but neg was alleged on the child If it was a shotgun it would be at lease a jury question Found for the father that he was not neg (Blyth v. Birmingham) Water from main goes into the def house the P sued the installer claiming that the installer was negligent 25 years before when they installed the pipes, --did not put the pipes far enough down-Trial level found for the plaintiff Def wins on the appeal as a matter of law. Uses the frost of 1855 and says it was a lot colder than other years, and it is unforeseeable a reasonable prudent person could not have anticipated this. This was worse than what ordinarily occurs (Pt) YOU MUST ANTICIPATE THE AVERAGE CIRCUMSTANCES -Court probably means ordinary circumstances (Gulf Refining) The drum not cared for in 25 yeas was in bad repair and when the plaintiff removed the cap it sparked and caused a fire. Def says o The reasonable person takes into account the ordinary circumstance. This is clearly not ordinary never happened before so how can Gulf be held liable. o ARGUMENT-The risks should be probable- this is not true the risks just must be foreseeable. o You must know of the possibility that something can happen how serious and look at the chance it will happen. If the something is serious you are more likely to be found neg. o A foreseeable risk does not have to be probably just one that a reasonable person would consider. (Chicago v. Krayenbrul) The RR has a rule that says the turntable is supposed to be locked at all time it is not always locked, A young girl 4 years old is injured and sues. The girls case is that because of the danger of the turntable it should have been locked and guarded Is the railroads conduct reasonable, are there actions ordinary, is this a foreseeable risk. o Clearly foreseeable because the def had a rule to lock the turntable o You also must look at the forcibility and the serious of the injury The attorney for the RR says that the general benefit outweighs the occasional infliction of injury. RR is suggesting that this will cause the RR to stop if they have to reduce the risk to 0 The court says that they only have to reduce the risk to a reasonable amount and a padlock would have done this Locking the turntable may impede efficiency but that is an ok trade off. The cost of taking precautions a pad lock is less than what we are trying to avoid The RR was not neg because injuries and loss in life is to insignificant in the grand scheme of things No unreasonable riskan unreasonable risk is where your cost is less than the worst possible harm.

(Davison v Snohomish) Plaintiff is suing the county because they went off an embankment the guardrail didnt hold wood guard rail.. His theory is that they guard rail was not strong enough The municipality said it would have been to expensive, to make all guard rails strong enough to hold Court found: It is foreseeable that a car could go through guardrail, but it would have been to great of a burden to make all guardrail strong enough compared to the benefit. Carroll towing Negligence can be found in a formula we look at the chance something will happen the injury and then compare it to the cost P=Probibility, Injury = L Burden = B Liability depends on weather B<L*P If B is less then LP = liable / If B is more then LP= not

ORPP Objective Ordinary reasonable prudent person, full name is ORPP under the circumstances o The court will look at the legally relevant circumstance, if you were drunk the court will not look at you dove reasonably for being drunk, but that ORPP would not drive while drunk Orpp is not always right but always right but always reasonable He is a myth and can not be personalized if he is personalized it is a mistrial. As a juror you can not put yourself in the shoes of Orpp there are certain things ORPP knows and even if our actor cant know them they are held to a standard of knowing them If Orpp is confronted with something new he would take the necessary steps to learn about the new thing Orpp can be a man or a woman and there can be a difference between them o Tribal people who know nothing who be held to the standard of ORP in the community Orpp does not follow all customs o Must show there is a custom and that it is reasonable o Customs are probative not determinative o Ie. Orpp would not jaywalk even if everyone did We say ORPP with know certainty things in the community ORPP knows and understand certain facts Customs might show that most people engage in it and maybe a good idea Superior endowments Must use them ie. If you have better vision that is the standard you are held to HOW about children Some Jur it would be unfair to hold a child to the adult standard so they look age, maturity and so on Other Jur have said with a child actor o 0-7(child not capable of neg) o 7-14 (reputable presumption child is not capable of neg o 14-adult(reputable presumption child is capable of neg) Another theory not yet adopted but scholars have written(when the child actor is the def and has inflicted harm hold the child to an adult standard, but when the child is the plaintiff and def is claiming contributory to look at his age maturity and so on of the child New theory the adult activity standard, and Inherently dangerous standard- hold to adult standard

o Hunting might be an adult activity but it probably is inherently dangerous Another Jur When child is P child standard, when child Is D then adult HOW about the insane we do not normally make an exception for insanity the exception if it is a sudden onslaught of insanity then we treat it like a heart attack. IT must beonly a few Juristions) o Unexpected o your mental capacity must be interfered with such that you no longer ability to act reasonable o Mental illness or hallucination must affect a persons ability to understand and appreciate the duty that rests on her How about retarded people In (tate) the court refused to allow consideration that the defendant was retarded, it said if they do this they will have to have a different standard for everyone of different intelligence: In some places the jury will allow if a P to show his retardation if he is contributory neg We dont do this for def , may just P maybe Both we dont know (Vaughan v Menlove) Def built a hay-rick, it was near the property line and he was warned 5 time that it was unsafe and could catch fire. V is suing M for negligence. At the trial the plaintif prevails, he lost his cottage. Def appeals says ORPP should be subjective not reasonable prudent person but instead reasonable prudent person for him. Court disagrees and affirms the trial courts decision, Orpp is an objective standard. ORPP is expected to know some thinks: Gravity Paper will ignite from a match (Delair v. McAdoo) Car accident, plaintiff sues the defendant for not changing his tires, tire was bare. Orpp knows that tires need to be changed. Orpp would check his tires every day. Orpp is the minimum of what you have to do Orpp under the circumstances = is the full name o What is reasonable under the Circumsatances Def was also claiming even if the tires were is disrepair and I should not have know I did not understand the significance of that.==Orpp understands the significant (Trimarco) Def is injured when glass shatters in his shower. He is claiming that the Landlord is negligent for not putting shatter proof glass in his shower. The defendant is saying that it is a custom to use shatter proof glass in this situation. The LL is arguing that the custom is that the tenant gets shatter proof glass when they ask for it or if the glass breaks FOR A CUSTOM TO BE ACCEPTED AS EVIDENCE o That it is a custom o That the custom is reasonable o That in this particular case the custom is reasonable

Weather or not it is a custom it will only help the jury access if the person has acted

as orp.

What is usually done may be evidence of what ought to be done , but what ought to be done is fixed by the standard of reasonable prudence(ORPP), weather it usually is compiled with or not. Industry standard- the least amount that everyone in the community would agree on o (Cordas) 2 robbers jump in a cab and put a gun against a cabbies head. The cabbie pulls the E brake and jumps out. The cab hit people and they are suing the cab company. The ideal person to sue might be the robber but they probably have no money. The ORPP might jump out of a moving vehicle under these circumstances.

EMERGENCY DOCTRINE(how would orpp act) Standard of care in an emergency is Orpp in that emergency ORPP can consider danger to himself o This doctrine will not come into play where my neg caused the emergency Ie. I run a stop sign (my neg) then have to swerve to miss a car (emergency) and hit and hit someone else This doctrine will not come into play where I should have anticipated the emergency

(Roberts) Physical handicaps A Blind man working in a post office knocked over an elderly person, who suffers serious injury. He sues the state for employing a blind person. The negligence would have been the state being careless in the supervision of the blind person. For this to be found the blind person must be found for doing something wrong. The plaintiff was saying the blind person not using a cane while going to the bathroom, which made him negligent. o We must consider a blind ORPP This mean we will hold the blind person to the same standard that we would hold an Ordinary Reasonable prudent blind person We would hold this for other characteristics also Handicap and Physical challenges, def, mute; a court has held height to be considered so on o The def only had one expert that said blind people should uses canes, the plaintiff had experts that said the cane would make the situation more dangerous and o Even if the blind person was told to use it he would not This will not get the blind person off unless it is reasonable o We also have a duty to handicap people, hence because we know blind people might walk on the side walk, ORPP would keep that in mind when repairing the sidewalk we cant just put a big hole in it with no way of protecting the blind (Robinson) The trial court held for Anderson because they used the standard of care for a child The appellate court overturned this and said the snowmobile was inherently dangerous and they wanted to deter children from using inherently dangerous stuff there for they held him to the standard of care to an adult Other Jurs instead of using the inherently dangerous standard uses the Adult activity standard (Brenuig) woman though god told her to drive into the truck in front of her she did the trucker is suing for negligence the woman is claiming insanity, the courts do not allow this unless it is like a heart attackunexpected, sudden and impairs you

the court ruled in this case because the woman though she had spoken with god on previously occasions she would be liable, - IE this could have been expected

(Lynch) 22 year old retarded man who lived with but was not adopted by a farmer they were walking together behind a corn picker and he got injured his theory is that the farmer was negligent for not telling him to so close to the machine P admits it was he knew it was dangerous they found that he was not contributory negligent this is an anomaly we normally hold retarded people to a regular standard o Consideration can be give when the retarded person is the plaintiff (Wright) Says we should not consider retardation it just puts us back to letting dumb people off menlove THE PROFESSIONNAL How do we judge ORPP that is a professional (member of the professional in good standing), it does not matter what this party is o Professional Mal-practice 4 professions Doctor, Lawyer , Education, Religion we mainly see Dr, JD malpractice Courts normally only call post hs edu a professional Often you need an expert witness unless very obvious Often need an expert Lawyer o If you have a cause of action against your attorney you must show(2 suits at once) 1. that the profession deviated from there required standard of care 2. that you would have prevailed in the underlying case(ie. When suing a lawyer you must show damages) blowing the statue of limitations is almost always malpractice for a lawyer to blow that, even if you do not work their case.

Doctors Great need for an expert Must have testimony that there was deviation of what a member in good standing would do courts give greats weight to customs for med mal practice- they dont want to change a med custom 3 case Us. V Quints o Plaintiff developed aids from the def blood supply. The supplier was trying to show the blood bank complied with every custom, the court challenged the customs Optomigist case o A women visited the eye doc 9 times in 11 years she was 23 when she started visiting. She was 34 when they found glaucoma. Both experts agreed that they do not give glaucoma pressure test until 40. The court held that this custom was unreasonable. (Legislator stepped in the next year making a law to follow customs) Inclingo v youin parents were the non-patient of the def doc. The doc testified that it was a custom in pa for a doc to give a diagnosis over the phone for a non-patient. This was a custom. There kid died when following the custom the court found unreasonable

(Heath v Swith) p 166 o There was a plane crash def is suing the pilot estate for not using flaps. o The court instructed the jury use the orpp pilot with the same training as the def Remand for new trial because of these instructions o THE standard is a pilot in good standing, following the FAA standards is not enough must as a a pilot in good standing (Hodges v. Carter) Malpractice against his lawyer for not serving process by hand but by following the custom and doing it by mail. Because the service was wrong the case was lost by statue of limitations o The areas where an attorney can be held liable for mal-practice are Damages result from lack of knowledge, skill, and training He fails to use reasonable care Fails to exercise his good faith best judgment (discerning judgment) o Attorney would owe damages if Must tell client about any and all settlement offers Or failing to discuss all offer for settlement with the other side (Boyce v Brown) Woman is making a claim that the doc is neg because he did not take an X-ray, and her expert said he probably would have. o not enough and the fact that her new doc would have does not matter we only look at what a doctor in good standing would have done. o Also the expert doc witness only said that is what he probably would have done (Morrison v MacNamara) Patient brought a case saying that the national standard was not followed. Old rule was local custom the rule that comes out of this is the court USED A NATIONAL STANDARD- trend THIS OR A SIMILAR COMMUNITY- new rule many courts use-this would cause a curtain of silence o The old rule was to protect rural docs o Also an MD has the right to be held to a MD standard not a DO but these 2 schools are becoming closer and closer (Lakenau) If there is 2 schools of though on a procedure and doc use the minority so long as there is testimony that a doctor in good standing would follow this approach case will not go to jury. Someone who practice holistic med must be reviewed by a holistic practitioner DOCTRINE OF INFORMED CONSENT- Is patient alleging that doctor has done anything wrong in treatment- no, instead whole case revolves around doctors failure to inform. What alternatives the doc have to tell about o Risk of doing nothing yes o Alternatives risks but not what 1 doc in the Dominican says o How about 15 years after you treat do you have to tell them the risks(saline implants) at least one court said yes DOCTRINE of INFORMED CONSENT Information to patient: Doctor must tell patient all material risks what ever a patient would want to know, not what a doctor in good standing would do, all material risks and the risk must come to fruitions and there must be a causation element- had orpp been properly apprised would they have chosen something else,. Not in Pa

o Material risks- be overly inclusive Unless emergency situation, unless some risk everyone would know, something you think it is patients best interest not to know (not advised, tell all; document why, discuss w/family) Information about doctor: Information about healthcare provider Some jurisidictions say must know if he is HIV Some states need to know about substance abuse (not PA) doctors right to privacy may trump patients interest Information about healthcare provider: If have agreement w/ insurer to not prescribe specialist Provision in contract w/insurere that they couldnt settle unless doctor okd it Some doctors would transfer all assets to wifes name (Scott) Def is claiming that the Dr. did not inform the plaintiff of all the potential risks of the surgery Dr. will be judged in prior standard o the old standard was the Dr. had to inform the patient what a member of the profession in good standing felt they should tell you. o the new standard they have to inform the patients of all important things that a reasonable patient would want to know, full disclosure of all material risks must be made now unless everyone knows of the risk, its an emergency, or if it is in the patients best interest not to know this is a tough one material risk- something that is likely to effect the patients decision in some jurisdictions must be evidence that if give the proper info the patient would have done something else Reasonable patient or what this patient would have done o in certain situations like a model might want to know about 2 scaring techniques in other they treat it as a battery and you need no causal relationship 2 views

For an informed consent action o Duty to inform doctor forgot to tell you of material risk o Causation- patient would have chosen NO TREATMENT or DIFFERENT treatment had alternatives and risks known to him this risk actually came to fruition (note, if nothing happened, no cause of action) o Injury- adverse consequences that were not made know did occurred (Moore) The doctor did not tell the patients that he was making money on his blood Person has right over own body to determine whether or not to submit to medical treatment, Must have informed consent Physician has duty to disclose all information material to patients decision (1) physician must disclose personal interests unrelated to patients health that may effect physicians personal judgment (2) failure to disclose can lead to cause of action for performing w/o informed consent OR breach of fiduciary duty HERE- possibility that physician's economic interest has effect in physcians judgment is something patient would want to know when determining whether to consent it is material

o Physicians extraneous motivation may affect his judgment- material to patients consent A physician who is seeking patient consent for medical procedure must disclose personal interests unrelated to patients health, whether research or economic that may affect his medical judgment. Dr. Must disclose if they have aids because even thought small chance transmission of can cause death. In pa dont have to disclose alcoholism

1980s med malpractice crisis Insurers stopped covering doctors Doctors were putting all of their assets in their spouses name, and it changed how the doctors treated patients- defensive medicine. Ex: small claim would come in, how much would it take to pay out vs. litigating. Lets put nuisance value on it. Some doctors by paying higher premiums were allowed to get right to say what cases they wanted to litigated and which to pay (so if insurance wanted to put nuisance value on it, they couldnt) Malicious abuse of process- if you can show case was settled in your favor and you can prove party who brought suit had no reasonable belief in merits of it, you could get atty. fees. b) California model for reform in this area Caps on damages for pain and suffering Sliding cap on what the attorney could get Limited the amount that doctors could testify Determining Negligence Ways: Common law- neg as fact, jury determines as a fact Rule of law, judge will say as a matter of law ORPP would or would not, rare o Because as in the train case it can come back to bite you o Ie. Always follow at a safe distance Legislator will pass a statue that sys you can or cant do this o Legislator tends not to do this o Dram Shop Act If a bar serves alcohol to someone who becomes intoxicated and drives away and injures 3rd party b/c of ingestion of alcohol - licensed seller of alcohol can be liable if they serve- before this the 3rd person could not sue the bar You can also barrow the standard of care from the statue and say orp would do this Interpretation of statutes. Legislative history Where we as the court to barrow a statue as the standard of care o 2 tests convince the court the statue is designed to protect this class of statue statue was meant to defend against this type of injury o even if this passes the test judge can throw it out Proc Effects of negligence per se o Majority unexcused violation is negligence per se o Few violation of statute is presumption of negligence o Real Few violation of statute just creates inference of negligence

1.

Negligence Per se o When a court barrows a statue to bring negligence o There can be an excuse for violating the statue and then there is not negligence

Still need causation factual and legal

Ex: Stanicheiwz- court does not allow use of statute b/c impossible to show jury that more likely than not giving more alcohol caused this fight. (would he have fought anyway)- regulation provided that owner had to rid place of rowdy patrons, here you CAN argue that it is more likely than not that if owner complied w/statute the PL probably would not have gotten caught in this fight Sometimes PL does comply w/statute. Does this mean non-negligence per se? NO Ex: if driving at 35mph (statute) not violating statute, but if it was blizzard it still could be negligence per se. Judge Declares this is Negligent, what ORP would do Very rare for judge to say this Ex: assured clear distance rule was judge made law before traffic law. Rule was that ORP would always stop in this distance, but there is always an exception (i.e. black ice) Pokora- ORP would get out of car at RR crossing. Former rule. But there are also look and listen rule and stop look and listen rules. Could have adopted this as new ORP standard, said no. b/c here this guy did these things and still got in accident. Also, always will be exception- i.e. could be chased w/guns- thus not good idea to stop look and listen. Court gets in trouble when says as a matter of law it is negligent when

(Ney v Yellow cab) The p says this is an anti theft statue D says this is a public safety statue Court found this to be a public safety statue but p won In order for a statue to be used as a standard of care it must be designed to protect the parties that were injured Isnt reasonable that an anti theft statue would be designed to protect the parties injured here (Osborne v Mcmasters) the def pharmacy did not label the poison, if there was no statue that said def had to label the poison the plaintiffs estate could have still won though you dont want it to go to the jury is you dont know what the jury will do if the statue is used you dont need the jury to determine what orpp would do you need to convince the judge that the statue was designed to protect the type of person that was injured even if the statue was designed to protect the kind of person in the action at hand it is the judges discretion as to whether or not to use the statue (PERRY) In our case we are focusing on the friends of the care takers of children(PERRY), witnessing the care takers sexually and physically abuse the children. Plaintiff claimed negligence per se because there was a statue There was a statue that required requiring Any person who has cause to believe that childs physical or mental health or welfare has been or may be adversely affected by abuse to report it The kids were the type of people that the statue was designed to protect but the judge chose not to use the statue, the common law says you have not duty to do anything. Why judge probably did not rule for the kids o This is radical change from common law which says you can watch kid get absuded and do nothing- no duty w/kid normally at common law o Also imposes a duty to act. Negligence is more concerned w/misfeasance, not nonfeasance.

Also, allowing civil liability would be out of bounds. These people were not direct harmers of children. Yet these people would pay significant damages to conduct and actual abusers would pay nothing.

places where the statue will not come into play ORP not determined in statute: o EX: what if I go to doctor and sue for losing hair from radiation. And sue under statute b/c he does not have valid licensed and he violated it. Statute designed to protect patients from substandard medical practice. Cannot use statute to sue for negligence, b/c too broad. In order to prevail must show that he failed to act as member of profession I good standing, what if he did? Statute is not relevant o Ex: involved in accident w/unlicensed driver. Statute to mandate drivers is for safety of people on road. You are w/in protected class and meant to make people better driver. Can statute work as standard of care? Held to ORP who is driving as standard, not statute. Not relevant Risk not relevant o Ex: We are in a state that says stores cant be open until 12 mine is open at 11 someone gets hurt at 11 can I be sued for neg per see no. does not help us with orp. (Martin v Herzog p 218) There was a buggy on the road with no lights and car came around the couner in the wrong lane and hit the buggy killing the man. Defendant and plaintiff are claiming negligence per se o If a DEF. travel w/o lights, not to pay damages for fault unless no lights caused disaster. If PL. travels w/o lights is not to forfeit right to damages unless absence of lights is as least contributing cause of disaster. Conduct can be negligent but not always contributory negligence o Cardozza says, in NY violation of statute is negligence per se. but here, he is using it in procedural sense, and the buggy driving widow can not collect. Cardoza held that an unexcused violation of the statue is neg per se (Zeni v Anderson p 220) The def wants to use the statue to show contributory negligence. The plaint was walking on the wrong side of the road in the road not on the sidewalk.- she was in violation of the statue o Is it negligent per se- negligent and out of court? Here th court reject negligence per se o This court says negligence per se- is admitting of no excuse. IF you violate statute, you are negligent. It may be possible to violate statue and not be negligent. It may be have been impossible under circumstances to comply with statute. o Restatment. Suggests many reasons for violating statute. Thus they say that they do not accept negligence per se- as finding negligence and lose case. o They find neg per see causes a reputable presumption- the def needs to come up with a good excuse. Looks like they were against Cardozza, but werent. He said an unexcused violation of statute was negligence per se There are a few statues where they say violation of the statue causes strict liability Child labor laws and FDA regulations (STACHNIEWICZ (PL.) v. MAR-CAM CORP (DEF) Pl gets into fight with Indians and is found outside the bar(Def) with a amnesia The Pl did not sue the native Americans because he either could not find them or they may be poor There were 2 statues in this case

1st Statute in place said no person shall give alcohol to a person visibly intoxicated o Seems like this is definitely the conduct it was trying to prevent o Cant use statute b/c cant show causation: cant show giving more alcohol to already intoxicated person made them get into bar fight. o Court said need to look at causation and it cannot exist in this case 2nd statue: regulation that says you cannot allow rowdy behavior to remain on premise. o Can use this regulation to show that violation of it CAUSED bar fight and this injury o Can make argument that had bar keeper stopped fight, there would have been more likely than not, no injury to PL. o This is where they found the possible negligence per se

(POKORA (pl.) v. WABASH RY. CO (def.)) Car is struck by a train because they could not see past box cars. The def claims the plaintiff is neg because they did not get out of there car and look and the court in GOODMAN found. This is how the district court finds. Cardoza overturns this o The Supreme Court does not like to say what is negligence and what is not it b/c there are always exceptions Ex: formerly rule that you will be negligent unless you can bring car to a stop when behind someone in assured cleared distance. What if guy cuts you off? Automatically found negligent b/c you didnt stop. (not fair) o Obviously after this Cardozza did not make new rule b/c maybe there would time when it would be inappropriate to not stop look and listen. (Foster v Pa RR) o On a Sunday Mr. F upon a railway crossing and finds 2 of his mules dead they were hit by a train. o He sues RR for violation of 2 statutes 1st RR doesent run or sun They must use there bells at a crossing The pa supreme said the mules were contributory negligent

PROOF OF NEGLIGENCE 1. EVIDENCE AND PROVING NEGLIGENCE C. Types of evidence Direct Evidence (fact A) Right to the issue Circumstantial evidence (fact B) We have learned that when Fact B is proven to exist, usually so does fact A. So by proving fact B will prove fact A. EX: testify did not see someone walk in front of you- direct evidence; but there were footprints- indirect evidence Real evidence - pictures D. Burden of Proof Who has the burden of pleading you have burden of pleading all elements that you need of proving negligence. If DEF have burden all elements to prove contributory negligence o Burden of Production Have you met your burden so the judge will send the case to the jury

Have you produced enough evidence that reasonable people could find cause of action exists more than not The judges job is could reasonable people find for you Burden of Persuasion DO reasonable people find this way? Have you proved your case? Finder of fact looks at evidence, assessing credibility of testifying people, looks at pictures. So long as finder of fact concludes that more likely than not all elements existed, they can find for PL. Party w/o burden of persuasion: have 2 ways to win. If judge say no way reasonable person, win, if find scales in your favor, win. If find scales evenyou win

Ex Banana Peel Cases-what do you want to prove? Burden of Production- could reasonable people determine that banana there for long time. o DEF. Created condition-, must clean up immediately need evidence Direct evidence- Ex: saw driver eating banana and throw it on ground Circumstantial- saw him eat it, that no one saw peel before he ate it, and then after he ate it banana peel suddenly on ground o DEF. had actual knowledge- must clean as soon as you know Direct evidence- I saw conductor say be careful there is a banana peel there Circumstantial- watched conductor make wide circle to walk around peel o Constructive Notice- that ORP would have been aware and cleaned it up Direct- witness says I saw it there for 15 minutes (she has not duty) and then saw PL fall Circumstantial- condition of banana Burden of Pleading o Burden of Production- could reasonable people determine that banana there for time. o Burden of Persuasion- jury will decide if scales tipped. If yes, we think it was there for a while, for PL(who has the burden). if find equal, for DEF. if find not there for long period of time, for DEF (GODDARD) 225 First banana Peel Case def. Pl just arrived on the platform and slips on a banana Peel When does duty to clean it up arise o If an employee drops it- right then o If Someone drops it and tells RR employee- then, when they have actual notice. o Instead of actual notice- constructive notice. We use ORP to determine how long constructive notice- when ORP would be aware of peel and would have taken reasonable steps to pick it up. PL. contends that ORP would pick it up DEF contends PL did not meet burden of production- you have not produced enough evidence to show ORP would have picked it up. Def wins (ANJOU v. BOSTON ELEVATED RR CO.) Pl. slipped on banana peel on platform. It was dry and gritty as if had been there for sometime, she was walking with an employee and had waited for the platform to clear DEF had duty to remove from platform whatever. Evidence of negligence on his part b/c banana there for sometime. o She did produce evidence that banana was black and gritty to convince finder of fact banana been there for a while. Claiming constructive notice- that banana there for so long b/c ORP would have known and cleaned it up. Appellate court says- you have met enough evidence that a reasonable person COULD find that ORP would have picked up. (has not met burden of persuasion, just production)

She met burden of production using circumstantial evidence.

(JOYCE v. A&P) At the A&P a lady slipped on a banana peel She is claiming constructive notice Plaintiff says the banana is old and dirty and brown but no one saw it until she after she fell. The court says it could have been there for 2 min or 2 hours Why is it ok here but not in Anjou, because people only saw the banana right after she fell. It could be dirty stick brown because she stepped on it or because it was there for awhile Therefore she did not meet her burden of production Returned for PL. but judge said no b/c no one had seen it before. PL. could have put it there. (JASKO v. WOOLWORTH) Plaintiff falls on pizza on the floor: Plaintiff did go to the jury because the court said that the def created the situation and such there duty is to clean up the situation immediately. Res Ipsa Loquitur (RIL) Def-Some instances where if certain circumstances we will allow jury to infer there was negligence. Inferences of Neg arising from the fact that the inference occurred Requirements- RIL Requirements: 1. exclusive control 2. Does not ordinarily have in absent of negligence 3. plaintiff was not negligent(this has be eliminated)

1. Does not ordinarily happen absent of neg---Check with jens notes

2. if the neg was likely to be caused by the def There times when jury will NOT know if this event ordinarily occurs unless negligence, bring in expert testimony Ex: no expert needed if go in for tonsils and get 3 toes chopped off. Obviously some type of negligence EX: what if need wisdom teeth removed and lost a tooth in front of them? DO you know if this ordinarily occurs in presence of negligence? DO you know that it is more likely than not when doctor acts as member of profession in good standing this happens sometimes? No 1. Need expert to come in and say when this happens this is usually in presence of negligence EX: taken to hospital for knee surgery, but used someones crutches. When come out of surgery he has no feeling in right arm. Court says no RIL. b/c too many circumstances where injury could have occurred. (when he used misfit crutches when got pulled out of car, etc) RIL with multiple parties General Rule You cannot use Unless when the court concludes there is a single duty owed to the parties by the multiple people When there is a common law recognition of 1 duty o Landlord tenant duty to clear ice and snow, and I fall and both the landlord and tenant owe me the same duty in common Procedural effect of Res Ipsa Loquitur - Vast majority of RIL is simply an inference to negligence, just evidence, and jury can just disregard it. - RIL in majority juris helps meet burden of production, just evidence - However, few other procedural approaches o Some juris, if party gets to finder of fact on RIL, proc effect is to say that it creates a presumption of evidence unless D presents some evidence they werent negligent

Few juris, RIL actually switches the burden of persuasion onto the party against whom RIL is being used. B/C now if we cant decide, its negligence, scales tip in their favor even though maybe just split.

(Byrne v Boadle) plaintiff was walking down the street and a barrel of flower fell out of a guys store and hit the plaintiff, the plaintiff sues the owner of the flower shop, the Plaintiff says that the owner is negligent just because the barrel fell on him. the trial court said that the plaintiff did not prove any evidence that would show negligence the appellate court created RIL- the thing speaks for itself Scale tips slightly in the Ps favor. Barrel could have been dropped for other reasons, but PL. does not have to limit all these possible other explanations, just that it is most likely negligence by DEF. and DEF had exclusive control at appropriate time. (MCDOUGALD v. PERRY) o P claimed spare tire left truck and was RIL Ct. agreed b/c ordinarily spare tires dont leave their holdy things w/out negligence Test: is negligence the most likely explanation Test is not: are there better explanations When jury doesnt know whether when it occurs it is likely from negligence P has to generally get expert I.e. oral surgeon comes in, testifies, that when a tooth cracks, it is due to negligence Do we know for sure this was not an example of terrorism If the def wants to defeat RIL he might be able to bring in the FBIbut in the absent of stuff like that this does not often happen. (LARSON v. ST. FRANCIS HOTEL) o Chair falls out and hits guy in head o Ct. does not allow RIL against D, why not? B/C cannot say that the most likely source of the negligence was the defendant hotel. Because, the tenants are at least as likely to have thrown the chair. Even if hotel was closed, is there another problem with using RIL in this case? If a chair comes rolling out a barrel its probably not the result of negligence (chairs dont roll) (Ybarra v. Spangard) We can uses RIL against multiple defendants. P goes in for his appendix taken out, as a result of this he had pain in his shoulder and his neck eventually ending in paralization The docs were not employees of the hospital , if they were employees of the hospital then the hospital could be sued under RIL The problem with using RIL is that all the defendants complain that the plaintiff was not able to show who caused the injury, who was in exclusive possession The court holds that the plaintiff was unconscious and could not determine where the injury came from so they said every single def can have neg conferred on him o Ybarra--- the crux of this case is every def with any possession of the plaintiff there duty is not only not to be neg yourself but protect the plaintiff from everybody else o Many juris have rejected a case similar to this one, some however, have accepted

Can also be used against more than one like in the escalator case-Check with jen In order to avoid mixing negligence per se and RIL: o NEGLIGENCE PER SE

Shortcut way of showing what the standard of care is. Addressed to issue, what would ORP do. Borrowing statute of standard of care Two foundation arguments must be made to judge b/c this is issue of law: 1. Did legislature intend this statute to protect the class of the person whos relying on it. 2. Did the legislature intend to reach this type of event or risk that occurs 3. It is a matter of judicial discretion (perry case) 4. If the court concludes as a matter of law that the statute can be used the jury still has role; must determine whether or not the statute was violated (question of fact), if so, was the violation a cause of the harm. (stachowitz case, native Americans in bar, problem with causation) o And what would the damages be 5. Ordinarily, if ct concludes you cant use the statute, P is still in court and just makes an ordinary ORP argument Proc Effects of negligence per se o Majority unexcused violation is negligence per se o Few violation of statute is presumption of negligence o Real Few violation of statute just creates inference of negligence Type of circumstantial evidence, way of proving negligence in the absence of ordinary circumstantial evidence or direct evidence In order to use RIL, 2 foundations: 1. Even ordinarily doesnt happen in absence of negligence 2. Most likely source of the negligence is the defendant If ct. allows jury to get case under RIL, jury still has to decide if there was negligence; was there causation; was there damages Procedural effect of RIL Majority RIL simply is an inference of negligence Few Creates a presumption of negligence . Very Few Switches burden of persuasion onto party against whom its being used. If judge decides cant get RIL charge, ordinarily you are out of court, b/c RIL is evidence that you use when you dont have direct or circumstantial evidence.

RIL

Causation Factual causation o Must have factual causation Majority Easiest way is the but for the def negligence the P would not have suffered the harm then you meet the test for factual causation o It is cause in fact of damage if event would not have occurred but for that conduct. o Must no only say there is potential cause, but that this was THE CAUSE to THIS INJURY, The P must only prove more likely than not. When having a doctor testify on a medical case you want then to say to a reasonable degree of medical certainty in order to win o Sometimes you will need an expert to determine factual causation Ie Plane one of 4 engines turned off. Even if we can show neg that one of the engines turned off we will need an expert to show but for the engine turning off the plain would not have crashed Burden on P to show that D is the cause We have a problem with Junk science

o The judge is to determine if the science is reliable and relevant

Is it good and can we determine that this D illness was caused by the P negligence Benedictine litigation Judge had to determine if the science was reliable and relevant Reliable o One way is if it has been published not a per se rule but must be considered Relevant o P must show that there symptoms were caused not just that it could cause the effect. Statistical evidence-Some not all jur allow statistical evidence You must show that the chance is slightly more than doubles ie taking the drug slightly more than doubles that chance of this plaintiffs birth defects

(PERKINS v. TEXAS AND NEW ORLEANS RR. CO.) - Suing rr b/c railway admitted they were negligent (going 12 mph too fast) - Was D negligent, and there were damages,but P never proved they were connected. - Problem was, even if they were going the appropriate speed, the train would not have been able to stop w/in the requisite time, even at 25m.p.h - Ps other theory: o Had the train been going 25 miles per hour, the car would have made it across the tracks o This is only a theory maybe would have worked if their was an accident reconstructionist (not a real word) testifying that if it was going 25 mph could have made it across safely. (GENTRY v. DOUGLAS HEREFORD RANCH INC.) Guy slips and falls while he is carrying a hunting rifle and shoots a woman in the head killing her The steps that he tripped in were in disrepair and this is negligent(ORPP would not leave his steps in disrepair) but there is no factual causation because Bacon doesnt remember how he fell. Causation is satisfied by proof that partys conduct was cause in fact of damage (REYNOLDS v. TEXAS & PAC. RR. CO) P suing a railroad Reynolds walking down steps, falls and lands on head, sues RR. There were no lights or handrails and she was being hurried off the train (thats what shes suing for). We dont know for sure if there was a handrail that she wouldnt have fell. It is Ps but P only has to convince the judge or jury more likely then not that if there had there been a handrail or adequate light, she would not have fallen. (KRAMER v. WILLIAMS) o We need an expert because no one but an expert knows what causes cancer. o Piece of glass falls on a guys head and he gets cancer on the spot where the scar is, then he sues for the damages that the cancer causes o The P has 2 docs they 1 doesnt know other says it could have caused the cancero You need the doctor to say to a reasonable degree of medical certainty o In this case even if the doctor said this you would still need to show that the trauma actually caused the cancer o The P did not meet her burden of production o even if doctors said cancer could be caused by trauma, still not enough b/c skin cancer caused in absence of trauma and no proof this cancer cause by this trauma. (WILDER v. EBERHART)

Woman claims the doc caused her Esophagus problems The def brings in an expert this, the def wants to bring in an expert who would show other possible causes The plaintiff objects because no 1 causes is said to be more than likely then the Ps suggest cause It is the plaintiffs burden to prove factual causation, not the def, all the def wants to do is get the hands in an equilibrium because then the Def wins

(HERSKOVITS v. GROUP HEALTH COOPERATIVE OF PUGET SOUND) Guy comes to the doctor with a 39 percent chance to live and it gets reduced by 14 percent, P dies Must ask: members of the jury can you find more likely than not but for the DEF. negligence the PL. descendent would not have died o If P has 51 percent or more of survival and then chance of survival is lowered by the doc and they die the doc will be held negligent for wrong full death o If a P has less than 51 percent chance of for survival the doc cant be held negligent for wrongful death In some Jur o We are really recovering for loss of chance not the death. Assuming there is a substantial loss of chance Now just say can you find more likely than not but for DEF negligence, the PL would have had 14% more chance of survival?- HERE, YES Had doctor not been negligent, would have had additional 14% o What is loss of chance worth Yale law journal said value PL. life total (pretend what his estimated worth be if he did not have cancer), get in actuary, then take whatever % of that that it is = to doctors negligence Here, take his total worth, and take 14% of that They do not like that need death for loss of chance Some jur reject that if the P have a 2 per cent and it is reduced to 0 percent and dies owe money compared to comes in at 99 and reduced to 1 nothing- this seem odd

DAUBERT v. MERREL DOW PHARMACEUTICALS Babies born with small limbs, there mothers took Benidectin. Some people consulted an attorney and said we took B and gave birth to babies with deformed limbs. The FDA approved the B. The plaintiff brought experts that said B caused the limb defects These experts conclusion was not the result of independent research but of a re look at research prompted by the plaintiffs attorneys o This should not be a decision making thing but give you pause These experts also have no publication only stated in the courts room, publication gives room for scrutiny and acceptance OLD RULE Frye test- used if generally acceptable in scientific community, had to have published or someone expert say it was- Supreme court said no NEW RULE- Look at Relevance and Reliable o Relevant- in this case all the doc said B can cause limb reduction you need SPECIFIC CAUSATION- Can you show that this PL damages were more than likely caused by this DEF. negligence o Reliable- in this case the study was not published this does not look as good and there was no original study also not as good- not per se rules but tests

Hill v Edmonds CONCURRENT CAUSATION o Car stops in middle of road and it hit from back. Passenger sues both drivers o 2 or more independent acts of negligence. Combine to cause 1 injury to PL. o each tortfeasor is responsible for the entire result even though his act might not have caused it alone. Anserson

Multiple sufficient causation several sources that combined to cause one harm but each individually would cause but for would not work o When there is MSC- the def must just prove that the multiple causes were substantial factor in bringing about the result

SUMMERS v. TICE Hunting party both def shot at a bird and some shot hit the P This is not case of concurrent causation b/c concurrent causation is when DEF combined to cause injury- here their negligence does not combine to cause individual injury Not multiple sufficient causation- 1 of the 2 didnt cause any harm. Used to be thrown out of court- PL has not met burden, cannot show that all the DEF were negligent and cannot show which DEF caused injury. Court here comes up with rule o burden of production and persuasion shifts to DEF to show that more likely than not he is not factual cause, if he cannot then all DEF liable. o All PL. must show that all DEF were in fact negligent- the DEF had duty and breached it through no fault of PL own can determine which DEF- used due diligence but not possible to determine who EACH DEF IS LIABLE FOR THE WHOLE SINDELL v. ABBOTT LABORATORIES Def mother took DES for miscarriages, def gets cancer and sues Causation: o general causation problem because many normal people get cancer, however courts are comfortable with the general conclusion that DES causes this type of cancer. o specific causation problem- how can this woman prove that her cancer is caused by the DES, 2 ways 1, it may more than double the incidence of cancer occurring , 2 a special pathway She does not know who manufactured the drug o There are 200 manufactures one manufactured it but P only brought suit against 5

Court develops market share liability o Only one cause harm again but cant tell who. o P can get all def or just enough to get a substantial share substantial share , look at what market are we looking at, no magic number BURDEN OF PROOF AND PRODUCTION WILL BE SWITCHED TO THE DEF o Each def must be neg, and each def only pays their share for the unaccounted for share. Sometimes re divide and sometimes make the P eat it o Some courts will say too bad o In NYC they found even the parties that could prove they were not responsible were liable for their share

Legal causation

DEF has been negligent and caused PL Harm. DEF arguing there are reasons why it is not fair to hold me liable. You need factual causation first. o 4 scenarios where if legal causation will be raised they will occur: 1) unforeseeable consequence 2) intervening cause 3) policy making 4) when one shifts the risk

1. Unforeseeable consequence LEGAL CAUSATION If something unforeseeable occurs, is there reason to cut off liability?- several approaches (1) lapses in time/distance (2) strict rule- proximate vs. remote rule (NY) (3) first structure could be recovered for only, (4) first structure that doesnt belong to DEF, btu nothing after that (5) Bartelone (6) Polemis- so long as you expose this PL negligent harm and unforeseeable risk develops, so long as it was direct causation (everything ready, just DEF negl. Brought about harm DEF liable) (7) Wagonmon #1- we dont think Polemis is fair, so this court held that the scope of DEF liability is equivalent only to those foreseeable risks that DEF exposed to PL (so if unforeseeable risk occurred, DEF not liable) (8) Wagon #2- same facts as Wagon 1, but here held that risk WAS foreseeable (looked at what are benefits and burdens to society of getting DEF to change their conduct) o We need to cut off liability somewhere for what consequences should we hold the def liable o In most cases legal causation does not come up Unforeseeable consequence Anderson says look at factors o Long spaces of time and distance (Specific tests ) (RYAN v NEW YORK CENTRAL RR) Def accidentally set fire to his wood shed it spread and burned down neighbors house 150 feet away Court found you are only responsible for you proximate damages not remote damages o Proximate- near, immediate, natural, expected, ordinary o Remote- accidental and varying circumstances that the party has no control over o In a later case they said anything not owned by owned by the P the first on is proximate the rest remote You take the P as you find them, in some jur deals with pre-existing mental problems Remember we judge would the ordinary person suffer emotional distress, under breach and duty not exposing other to unreasonable emotional distress in the average person would not have had emotion distress not liability ??????????????????????????????????????????????????????????????????????????????????? BARTOLON v. JECKOVICH Accident since it the P started suffering from Psychotic symptoms They found the accident triggered a pre-existing mental condition

You take the P as they come , even though the harm here seems remote

What about when risk that occurs was NOT foreseeable but other risks were foreseeable- so DEF conduct was negligent, but end result was unforeseeable- should we hold DEF liable Polemis- says yes, DEF subjected to some risk of harm, another risk occurred, but nothing new had to happen, DEF negligence happened on set stage- why should we cut off liability Wagon and kinsman D has been neg and exposed P to an unreasonable risk of harm But what comes about is unforeseeable if it was the only ham from the neg action it would not be neg at all We have a directly traceable line from D to P in a Polemis you pay in a wagonmound jur you dont Pay

Wagon #1- he put PL at risk, but risk was unforeseeable. That cotton in water and metal and oil ignited and destroyed PL ship, PL relies on Polemis- no matter if risk foreseeable or not. But this court says we dont think Polemis is just or fair- since only reason we judge you negligent is b/c you put PL in certain foreseeable risk of harm it is not fair to extend your liability to unforeseeable risk of harm Wagon 2 not legal causation just because something has never happened before does not make it a unforeseen risk look to the formula Wagon #2- same facts as Wagon #1. ship owners sue for same act of negligence. This time PL prevail b/c in this case use (Probability x Magnitude). In this case, someone is able to prove to satisfaction of judge that a persons whose experienced on sea would realize that although chance very slim, there was a chance that oil could ignitethus now we have a foreseeable risk. So is it one that ORP would avoid? Probability that oil would ignite (low) but if fire does occur the Magitude (very high) and the Benefit to allow oil at sea is (0). So therefore PM>B so ORP would not allow this consequence to come to fruition.

PALSGRAF (PL) v. L.I. RR (DEF)ASK PROF T J. Cardoza- duty is always owing, this PL must show that a duty owed to him is breached before we go on to causation and damages. He can show this by risk reasonably perceived defines those in zone of danger. Here, PL standing v. far away on platform she was out of zone of danger and thus DEF not liable. J. Andrews rule regarding duty; current majority rule;- so long as someone was in zone of danger and exposed to unreasonable risk of harm, thus anyone can come forward and say injured. Not all can recover, this just will cover PL-DEF duty exists, but now PL will depend wheather legal causation Legal causation is about being fair and not about rules but about hints and he says use ALL hints to determine legal causation Natural and continual sequence (Ryan) Substantial factor Direct connection (Polemis) Foreseeable risk (Wagon 1) He comes up w/ Hindsight Rule EX: would anyone reasonably foresee that driving a car thru a red light would cause an explosion and injure someone very far away. He suggests we look at injury which we are seeking recovery for and go back in time to point where negligence has come to fruition

So here, at time negligence comes to fruition- here when explosion occurs, is it not foreseeable that someone far down platform could be injured? YES- it is very likely she could be injured

Cardoza o Neg is duty specific for a P to recover from a admitily neg D you must show that a duty was owed to the P and she was in the foreseeable zone of danger who could orp foresee hurting Andrews o A breach of duty to any one allows the P to establish legal duty and a breach. As long as someone is in the zone of danger the P can use that to get duty and breach For legal causation Andrews says look at a bunch of factors, and he add his own factor Look back from the very incident for palsgraph look at given that the def neg came to furishin and there was an explosion is it unreasonable for the harm

Where the very same risk created by the def came about but by a very unforeseeable manor The risk crearted by the morning was flooding and that is what happened (Kinsman I)- discuss Wagon also fact that risk comes about in unforeseeable manner doesnt mean not liable. Here risk of not mooring ship property was that it would cause property damage to homeowners. Even though no one could foresee noreeaster, and bridge wouldnt get up, we wont cut off liability If same risk comes about but in unforeseeable manner courts will continue to hold DEF liable (Kinsman II) However on other side of bridge there was an farmer of grain who needed to get it upstream to sell. But it took long time to clear debris and use river. His grain rotted and didnt make it out of his warehouse. Was this PL (grain owner) w/in orbit of dangerforeseeable at risk?- YES b/c one of risks of runaway ships is that channel would be blocked. He is a foreseeable PL but he does not recover b/c they go back to Andrews and says that questions of legal causation are about expediency, justice and trying to be fair, when it is just economic loss we will cut off liability of merely negligent DEF. YUN v. FORD MOTOR CO.- even the courts will say is this foreseeable is it aquestion for the jury or judge 1. Generally questions of legal causation are for jury. But when reasonable people could not help but find no legal causation they take away from jury and decide self. Here they view Changs action as extraordinary if not act of suicide. So take away from jury. 2. INTERVENING FACTORS **after DEF negligent, an intervening cause that cuts off my liability*** DEF negligent DEF cause and fact of PL harm But b/c intervening cause, should cut off my liability Many courts will say when the intervening act is intentional or criminal it is unfair to hold the def liable Unless o you cause the situation, or o If you have a duty to protect plaintiff against criminal harm you cant get off for someone doing something illegal. Ie prison guard, body guard, alarm installer, you bring criminal into contract with innocent(burger king) How about God as intervening factor It is not negligent to not anticipate an act pf god

1.

Kindsmen rule So long as intervening act of God brought about same risk that that you brought about, we will not cut off liability, but an unforeseeable risk prob not o Ie. Telephone pole is only 10 in down should have been 12 in fla there is a blizzard an act of god, telephone pole falls and kills me . There would be liability here it was the same thing that the def negligence would have caused. o If the pole fell so I went another way and got hit by a bus then not negligent- then no

What if the intervening person is an ordinary person Usually if the persons intervening is innocent or neg then we normally will not cut off liability Irresistible impulse act in frenzy (in some jurisdictions) if plan for (write note, buy gun) then might not be held as irresistible impulse. Some courts will say even if you plan out, this could be irresistible impulse, will leave it up to jury Rescue Doctrine *allows injured party to sue party which caused danger requiring rescuer in first place* cardoza danger invites rescue-so in zone of danger PL must prove: 1) DEF was negligent to person rescued and such negligence caused peril to person rescued 2) Peril imminent 3) Reasonably prudent person would have concluded such peril existed 4) Rescuer acted w/ reasonable care *Usually when professional rescuer, not liable for injuries suffered by PL* only cut of liability if he act willful wantly and negligent Negligent entrustment if you let friend (drunk, bad driver) drive YOUR CAR and you know they are not a good driver you can be held liable jointly Shifting control of the risk**DEF by his negligence has created risk of harm foreseeable to a group of PL. but before risk comes to fruition someone else actually takes charge of the risk How should this affect liability of the DEF?*** Ex: 2 children go to store and buy dynamite. Kid comes home. Store seller is negligent. But then when kid at home, mom says thats fine dont play in living room- now mom could have taken dynamite from kid Ex: S is employee and makes something for her company. Ms. L buys it. Then S realizes should be guard on it, so sends it to L. but L ignores and gets injured for injury guard meant to prevent. Before risk came to fruition, L took charge EX: car manufacture and make car and sell to dealer, realize problem w/ car. Then send letter to dealer saying problem and we need to fix for a week and $1000. Throw out letter. Buyer gets in accident and sues. Would it be fair to cut off liability of manufacturer? They were originally negligent, even though made someone aware, doesnt negate fact they were negligent in first place. And probably foreseeable that she would throw out letter. If had said we will do for free and will give you loaner car. MAYBE court will say ok, you did everything you could. I cause someone house to catch on fire and fireman do bad job of putting out, your liability is not cut off. Foreseeable that house could burn down. DERDIAN (PL) v. FELIX CONTRACTING CORP (DEF) Work site did not put up barriers and had no flagman. Guy has an elliptic fit and drove into the sight hurting someone Def says b/c driver entered work site b/c of his epileptic seizure, this is intervening unforeseeable risk-

o court says no, same risk just unforeseeable manner, so no matter (like Kinsman) even
risk is that 3rd party will be negligent, this is risk you created o in this case by not putting barriers up they created the risk of a car driving in Another theory: PL claims owner of site negligent b/c should have been flagmen and warning signs. So what if he put up barriers but not flagman. Would DEF still be held liable.? NO, b/c no factual causation. This is a guy that had a seizure, he wouldnt pay attention to flag man. So yes I was negligent but it was not factually related to PL injury

(How much can we keep certain DEF in case?) EX1 W is driving to fast and almost hits B, B jumps in ditch to avoid, upon getting up B puts weight on right ankle and falls in middle of road. o Is W responsible for Bs sprained ankle? YES (car never touched him, but risk is that if you drive too fast risk you create is that person will take steps to avoid you. Then if he is middle of road and K runs over his right arm o Is K liable? What if it was very dark and she couldnt see till he fell in front of her, she might be not negligent at all. OR she might have been putting on cell phone, she was negligent. o Is W liable for run over right arm?- (intervening act) is it unforeseeable that if you hit someone they will be in middle of street that someone else will run them over NO, it is very foreseeable . (no matter if she is negligent or not) (unless she ran him over on purpose, W still liable) Then B is road and G swerves in doing so hits K. G may or may not be negligent. o Can W be liable for this others acts that resulted in harm? YES it is foreseeable that if you hit someone and they are in road that someone else will serve to avoid and get involved in second collision0- YES< o Unless G just switched lanes and hit K on own B is in middle of road. S comes along and knows how to bandage, he goes over to help B. but as he tries to move B, he punctures Bs lung o Is S liable for Bs harm? we give him ORP standard of care. So maybe this wasnt even negligent for him to move him from road. Other court might say ORP would know should move person b/c could puncture lung o Is W liable?- yes, under Rescue Doctrine (PL must be in zone of danger), if S was out of zone of danger, but b/c danger invites rescue rescuer is always w/in zone of danger even if he was home after whole thing (so he cannot be liable even though barely in zone of danger, W will be)- W will be liable for negligence of rescuer As S is trying to pick up B and carry him off street, S hurts back o Can W be liable for Ss preexisting injury.- YES, W can be liable for harm suffered by rescuer S Then F sees S in trouble w/back so carries him to side of road. This makes him flare up his schizophrenia. o Can F sue S? yes if S was negligent o Can F sue W- can W be liable the rescuer of the rescuer- many courts will say YES, that this is not so extraordinary, so unusual Use hindsight approach- Given what happened after negligence comes to fruition- PL falls flat on face in middle of road, none of this is not that unforeseeable Then C, a trained EMT, as she moves S out of road, she punctures his lung. o Will W be liable- probably, even trained rescuer can make mistakes o But if she knew S and crunched him then W not liable If C hurt her back while moving S (legitimately) o Will W be liable NO, b/c Firemans Rule- they cannot get compensation for taking those risks b/c there paycheck includes this compensation Then SC drives over Bs left foots

o Will W be liable- YES B is lying there, finally an ambulance arrives. M and E are driving it. They get B on stretcher and as they are wheeling him over, they accidentally drop him, injuring his back o Will W be liable? YES o If reason E and M drop him is b/c E saw pretty flower and pushes stretcher away and it rolls over. She is def negligent. This might be case which is too extraordinary and might cut off Ws liability. o If drop him b/c back hurt, tripped over rock- W liable still On route to hospital they get into collision w/ L. and B gets whiplash o Will W be liable for Bs whiplash? o Must know what caused collision, if this was a dependent intervening clause they were speeding probably of because it is an emergency, but if they are just run into this seems like an independent intervening clause, this is not a response to def neg, the ambulance drivers duty does not get W off the hook o If he was driving crazy for fun times- then independent reason, W probably not liable o If M and E just stopped and L hits them, this is an independent intervening cause- not a response to DEF negligence. Could argue W not liable. Yes B is in ambulance b/c of W, but L hit them as independent intervening cause. At hospital, R sees B, says here is he the appendectomy patient (mistake) o Will W be liable for this?- prob not, extraordinary o But if T doesnt give him blood transfusion that he couldnt get b/c hospital overworkedW liable If placed next to Ch and B catches pneumonia from him o Will W be liable? Yes, you caused him to be in weakened state At accident scene, J sees Bs right foot and left arm and go to pick up and throw out, as do this you are run over by Q. Q could be negligent (might not be if dark) o Will W be liable for Js injury? maybe S (original rescuer) gets back in car and on way, V hits him. o Will W be liable? maybe depends on how S pulled back onto the road C had picked up body parts too, brings in Ss head. And doctors try head transplants So S head on Bs body o W will NOT be liable for this intentional act by doctor Day B is leaving hospital owned by H, he slips and falls on ice b/c hurt leg from accident calls him to slip and breaks other leg o Will W be liable for this? It is now months after accident. Hospital is negligent too, but W can still be held liable b/c it was caused by the leg that W hurt If B broke leg bungee jumping- W probably not liable Then he comes home from hospital and has flashbacks from S, (b/c has head) and he buys gun and says I cant take it anymore (I hate being mistaken for Steve!) and commits suicide o Will W be liable- if it is irresistible act of suicide- then yes W will want court to find this (and all other acts as superseding acts), cut off my liability, this guy took his own life, but if court says suicide is result of irresistible impulse- then W still liable (even if planned ahead in some jurisdictions) (must be in frenzy, unplanned in other jurisdictions) Public Policy Matter of law court will decide this o Generally speaking there is no liability to someone not yet in existance court will sometimes cut off liability at some place o EX: have guest at your house and Mr. S is guest drinks too much and on way home hits Miss R. until one case in NJ that social host was not liable, unless person drinking was minor.

3.

o (if you are social host and provided alcohol willingly, unwillingly, etc. you will be held
liable if guest minor) (WATSON v. KENTUCKY & INDIAN BRIDGE AND RR CO) there was a RR wreak and gas spilled over the road- the RR was negligent. The question is was the match thrown maliciously. Even though RR negligence was factual cause of presence of gas in street, not legal cause b/c could not have foreseen it probable that one would maliciously do such an act for evil purpose of explosion. Jury must determine Duerrs actions (FULLER v. PREIS) Dr. was healthy got into a car accident. After accident he had 38 seizures. Then the day he killed himself his daughter heard him say I must do it. Suicide (as matter of law) is not superseding cause in negligence law that preclude liability (it does not break factual causation chain) o For suicide by an accident victim to be liable- he is suffering from ensuing mental disease and was unable to control an irresistible impulses to destroy himself One can retain power to know and yet have irresistible impulse and thus be incapable of voluntary conduct ??? Must determine whether suicide was rational act of a sound mind or irrational act or irresistible impulse of deranged mind evidenced by physical damage to brain. (MCCOY (PL) v. AMERICAN SUZUKI MOTOR CORP (DEF)) Pl helping at an accident told to place flares on roadway to warn approaching vehicles PL decided to position himself mile from scene and manually direct traffic w/flares in hand. On way back got hit by car Rescue doctrine. Court found that this did apply and the had to look at these ?s o (1) whether rescue doctrine applies- yes o (2) must show PL legally caused the injury. o (3) Did Suzuki legally cause his injuries?- jury ?s (KELLY v. GWINNELL) Generally not liable NJ Social host case Here they held that when A host who serves liquor to an adult social guest, knowing both that the guest is intoxicated and will operate a vehicle, is liable for injuries inflicted upon a third party as a result. Other places this is held the other way Dissent a social host is not expert in telling when someone is drunk and what kind of force must one use Legislator went and drafted exactly when ENRIGHT v. ELI LILLY CO The granddaughter of a woman took DES and she can allegedly show factual causation that DES caused her cancer. The NY court cuts off her liability at the point of when people were not yet in existence at the taking of the medicine Insurers need to be done with litigation at some point, this could also deter drug companies from continuing to make drugs- plane old public policy decisions I IS THE JOB OF THE COURTS TO CONTROL LITIGATION. 4.Shiffing the risk

Shifting Liability

o creates the risk o Someone else was put in control liability was shifted to he person in control o Vendor sells fireworks kids come into the house and show Mom Mom tells them to go play with them outside.

Vicarious Liability First distinguish between an employee and a independent contractor o Employee you tell them how to do the job, independent contractor just the finish product o In the real world this is on a continuum We are going to attempt to hold some one liable for a tort that the person did not commit because of their relationship between the actual offending party and the party we are trying to hold liable Repsondeat superior- let the master answer for the torts of his servant. o Modern view: employer is bringing risk to community by engaging in this type of business. Community does not give him back risk. So he should pay when risk comes to fruition o determine if R.S. 1) Servant/ master control -whether the employee is a servant of employer or independent contractor (master/ servant relationship vs. employer/independent contractor)- no vicarious liability for acts of independent contractor. general rule a. Mayber look at taxes, b. Who provides the tools c. The working hours d. Are they paid piece meal or salary

o Exceptionso o o Employers will be liable for illegal acts of there independent contractors Non-delegable duty: I cant give my responsibility away When job you hire independent contractor for has a very great risk of inflicinting great harm o Ex: building 90 sorty contract, you are general contractor and hire indp. To install glass 90 stories up. Since this is great risk of great harm general contractor will be vicariously liable. When hire stupid independent contractor, hire is negligent When accept inferior product that ind. Contractor madegeneral contractor can be held liable When general contractor sees ind. Contractor doing something wrong- general can be held vicariously liable When the general contractor act in an intentional tort

o o o o e. f.

Right of control more control master has, more likely he is servant The right to control physical work details i. of course have right to control final product, but not HOW they do work- then independent contractor ii. Factors for employer/ Independent contractor

hours you keep, supervision ,interaction, pay for his expenses- influential but not determinative, taxes in paycheck? influential but not determinative, bring own equipment (master servant usually provides), exclusivity, paid per piece/ paid per week Servant liability o employer will be liable when employee acting w/in scope of employment o old rules driving to or home from work not liability or if I left for the day. The trend seems to be to recognize and hold vicarious liability how about lunch breack at work look at jur o some the employee will only pay when but for the employee was furthering the company o other just ???????????????????????????????????????????? ??????

(MURRELL (PL) v. GOERTZ (DEF)) Paperboy hits woman and she sues paper, was he a employee or I.C. An independent distributor hired him, and the paper boy was an independent contractor to the distributor. In this case we had written contracts that they were independent contractors and this is how the parties viewed the contract- just a consideration not determinitive. (MALONEY v. RATH) Woman when to mechanic he negligently fixed he brakes and she crashed and is being sued You cant get rid of your liability for something like this I did everything I was supposed to do, went to a mechanic so on, but courts have determined in cases like this I can get rid of liability LUNDBERG v. STATE This is not a normal outcome He drove 80 miles to the work sight, He was granted workmens comp, The employer had given him this temporary new position, The court ruled the employer had not control. o It would seem in this case the employer had some control because they were paying his expenses FRUIT v. SCHREINER o is a better example of how these cases normally go o he was on his way home from the bar which could be considered work. o Almost every jur has recognized that an employee might do personal business while working and still considered this in the scope and it will not cut liability o If it is a frolic then there is not liability o Ie : delivery guy and forget wallet and go home to get it- if reasonable distance, employer will still be liable o Ex: if drive truck to AC, this is frolick and employer may escape liability o control theory- liability whenever act of employee was committed w/ implied authority, acquiescence or subsequent ratification of employer o enterprise- liability whenever enterprise of employer would have been benefited but for unfortunate injury. o Ie we are service business, if someone refused to pay for pizza, just leave, no fighting- if employee punches guy who refuses to pay, still inside scope o court said so long as employers interest is part of interest- employer still liable, so only if delivery guy punches guy for personal reason, then employer might not be liable

Even if employee is outside scope of his employment, employer still can be negligent himself (i.e. employer negligent for failing to check background, failing to supervise, failing to explain how to do this, failing to recognize reports)

Indemnity Employer does have right to go back to employee for indemnity- insist employee reimburse in full pursuant to what employer paid on vicarious liability General rule- employers do not do it. B/c 1) reason PL went after employer is b/c employee has no money and 2) not good for employer/employee relationships

Joint Tortfeasors

Intentional joint tort feasors o People involved in the crime No right of contribution A realease of one was a release of all they were seen as action as one Negligent tort feasor
Can have 1 duty employer/employee are seen as one (vicarious liability). When multiple s negligence combines to result in 1 injury to the P. When parties agree to put the at an unreasonable risk of harm. o 2 cars are racing 1 hits the both are liable

Right of contribution Gives 1 joint tortfeasor, who has overpaid in damages, the right to get a contribution from the other joint tortfeasors. o The majority of jurisdictions still follow joint and several liability o Some jurisdictions only impose several liability when s liability is 20% or less. 4 CHOICES for jt and several libality no change J & S liability continues no more J & S liability come up with figures less, only severally liable more, J & S liable. Abolish J & S liability for pain and suffering (Bierczynski) 2 racers, but only X car hits PL and injures PL. Ys car hits no one but Y is liable b/c these parties engaged in explicit or tacit agreement expose PL to unreasonable risk of harm they will both be liable as if they had both hit PL. they are both jointly and severally liable to PL a. Risk you created caused injury b. ORP would not have agreed to this c. Risk agreement does not have to be express: ex: could have 2 strangers both pull up at red light and rev engines and no words spoke, no roles assigned, but they race and court will say tacit agreement and both created unreasonable risk to PL d. Courts have also held those that give encouragement can also be liable (i.e. girl that cheers them on) Joint & Several Liability Common duty respondeat superior

Independent negligent which combined to cause 1 injury to the (concurrent tortfeasors) Agreement tacit or expressed to create a risk of harm Joint tortfeasors are NEVER contributory negligent only 's Contribution gets from each if there were 4 o In order to get contribution the person must be a joint tort feasor, and there must be no legal impediment from the P recovering from the def like spousal immunity JOINT & SEVERAL LIABILITY common law pro rata equally negligent 1 (Bill Gates) --------------$33,333 Award - $100,000 2 (Ordinary Guy) ---------$33,333 3 (Broke Guy) -------------$33,333

If one can not pay, then the other s pay $50,000 each each is liable for 100% but the can not collect twice so they split the damages. Any joint tortfeasor who paid too much is always entitled to contribution from other tortfeasors. Some jurisdictions say that a release of 1 is a release of all s. (majority ) o Some jurisdictions call a release a contract and that can sue other s. o Some say that there must be an expressed right to sue other s. In the release you statae you can sue the others o Payment from one joint tortfeasor must be deducted from the total owed.

Ie. If you get a release from A-> and the liability was 100,000 you can only go after B for 90

Contributory Negligence v. Comparative Negligence Ask 2 QUESTIONS o Does joint and several liability survive? o Is the release of one a release of all? These jurisdictions that favor comparative negligence believe that J & S liability should be abolished. Some jurisdictions think that if the percentage is less that 20%, there should just be several liability If the percentage is more that 20%, there should be joint and several liability. Some jurisdictions hold that states, municipalities, charities, and homeowners can only be severally liable. Some jurisdictions believe joint and several liability for actual damages but only several liability for pain and suffering. COMPARATIVE NEGLIGENCE Award - $100,000 1 (Bill Gates) -------- 20% = $20,000 2 (Ordinary Guy) --- 30% = $30,000

3 (Broke Guy) ------- 50% = $50,000

Ex: DEF1 10%, DEF2 30%, DEF3 60%. And PL damages are $100,000. If in jurisidciton where cut off is 20%, PL can only get 10,000 from DEF1. OR she can get ALL of it from DEF2 or DEF3 If jurisdiction keeps joint and several liability for actual damages, (special damages) but might abolish it for general damages. (punitive damages) Ex: so if PL actual damages are $100,000 and $100,000 for special. (Same % as above). If joint and several survives, PL can get$100,000 at actual damages. But for general damages can only get $10,000. from def 1 If P was even one percent neg in the old rule he would get nothing Collateral Source rule- if PL receives PL from someone other than joint tortfeasor, PL does not have to give credit to remaining joint tortfeasor. Ex: PL has no insurance, so her aunt pays hospital bills. Joint tort feasors do not get credit for that, they will still have to pay for her damages EX: PL has no insurance but one of joint tort feasor or someone on joint tortfeasors behalf (insurance company) pays damages. Now PL must give credit to other joint tort feasors What is the affect of a release? EX: prior to trial PL and DEF2 decide to settle. Release for $10,000. We are not in comparative jurisdictions, so all % same. Jury comes back and says damages are $100,000. How much can PL get from DEF1? must find out what kind of jurisdiction. o If in jurisdiction where release of one is release of all, can get 0 from DEF1. o if in jurisdiction where release is ok. At most PL can get $90,000 from DEF1. o now, though DEF1 has right of contribution. How much can he get from DEF3? $33,333.33 o now DEF1 has paid out $90,000. he has gotten back 33,333.33 from DEF3. that means he has paid $56,666.66. He thinks he only owes 33,333.33. so he is still off 23,333.33 DEF1 will eat this loss in some jurisdictions In other jurisdictions, some will say that release only affected PL right to recovery, therefore DEF2 will not have to pay PL any more, but will have to pay DEF1 23,333. In other jurisdictions, makes PL pissed b/c here. PL must give credit to remaining joint tort feasors for whichever is greater, $ amt. received or % attributed to DEF to whom you gave release. This means at most, PL at most can only get $66,666 from DEF1. so even though PL damages are $100,000. PL will only get $76,000 total (10,000 from release of DEF2, 66,666 from DEF1) PL failure to sue another party cannot preclude other DEF from going after o Other tortfeasor can go against you for contribution o PL must decide for which ever is greater. Dollar for dollar or assessed percentage of party.

Ex: damages 100,000. we have 3 j.t.f. prior to trial gets release from 1 DEF and gets 10,000. PL wants to collect 90,000. but that court has statute that says you must give credit to DEF who released. Either for dollar amt. or DEF percent. (if 33%, then most she can collect is 33,000) PL failure to sue another party cannot preclude other DEF from going after

(Yellow Cab v. Dreslin)

H and W in car by driver and get in accident. They sue their cab driver, and cab driver employer (resp. superior). They counter sue and say husband negl. Find damages for 100,000. they find all 3 negligent. W wants 100,000 who will she go to get it from. cab employer. She collects 100,000 from employer. Employer seeks contribution from other joint tort feasors, including from H. Employer thinks he will ge t50,000 (b/c cab and employer seen as 1 DEF). But to collect: o He must show that other party was Joint tort feasor, o they were negligent and their negligence was o legal cause for injury, and there was no legal impediment. (PL must have been able to sue from that DEF you seek contribution) There was legal impediment b/c PL W could not collect 50,000 from husbandspousal immunity. Ex: now, if employer sees taxi cab had damages for 1000. how much can he sue H for? When impute negligence to employer, you were negligent also and cannot recover (When we have 1 accident right after another) o Ex: what happens when PL involved in more than 1 accident, but at different period of time. PL suffered whiplash in both of them. DEF will say yes I am responsible for your back but only for what happened from my accident. Yes hurts a lot but if I am driver 1 (causer of accident number 1) and only responsible for first less severe injury o Bruchman- PL if you cannot show exactly what damages driver 1 is responsible for, you are out of court. PL burden to prove o Court much hard on DEF 2. say PL HOMAGE. PL doesnt have to show exactly what injury caused. If DEF doesnt want to pay whole thing, it is their burden to prove what the first injury caused What to argue separate damages-to help client (Michie v. Great Lakes)- more progressive jur o 2 def spew pollution into the plaintiffs river, yet one def does only 10 percent of the business that the other one does o Some jurisdictions would say we do not have only 1 indivisible injuery here. o We can say DEF 1 you do 10% of business, you are only liable for 10% of damages o DEF 2 you do 90% of business, you are liable for 90%, o Suppose throw match in river and set fire to all of town. o Now court would probably say all 3 jointly liable. Argument would hold for what % of pollution damages, but not for fire damage. Defense 1. Statute of limitations o The honest to raise this is on the defend o Usually begins when accident happens o Now many jurisdictions have discovery rule- begins when PL knew or should have known about injury. (is this just for surgery?)

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3.

o Note- Supreme Court has recently restricted this rule Statute of Repose o Provides date certain o Ex: in med malpractice, in addition to statute of limitations will have statute of repose will say in any case, no matter when PL becomes aware of tort, no PL can bring action 10 years after procedure took place. o Idea that tort law needs some finality, need to get no w/ lives, that past is past o DEF must bring this up (this and statute of limitations) Immunity o Formerly, immunity was huge defense- dont need so much anymore

Especially governmental defense- could not sue the king- (he came from God) Federal torts claim immunity act (need to find out if your tort falls w/in it, if does cannot sue federal government) Charity- formerly could not sue charity. Ex: free surgery Banned b/c said did not encourage safe procedure Also banned b/c courts said charities are big businesses and need insurance for this Familial immunity Formerly and still in many jurisdictions, cannot sue w/in family b/c family is united Also wife could sue husband to protect insurance companies (they planned it to really sue insurance company)- problem b/c why cant use same argument for best friends Some jurisdictions say if really thing fraud, up to insurance company to prove fraud, we will not assume Parental immunity- not allowed for children to sue before b/c Real idea is that when kid turns 21, kid will sue mom and dad for emotional distress Some courts say- if this is cause of action that could be brought against stranger (i.e. mom driving negligently and injured kid) we will abolish inter-family immunity, but if cause of action that arises from parent child relationship we will continue to say kids cannot sue parents.

Failure in advance to take precautions defense:

Ex: PL forgot to wear seatbelt this caused reduced recovery or barred recover. But did failure to wear seatbelt actually cause accident? in this sense it does not preclude PL from recovery, it just says any damages you can prove PL would not have suffered had PL worn seatbelt. You will not be responsible for

Contributary Negligence o If the P is in any way liable then not liability for the D. theP is subject to the same orp under the circimstance o (Butterfield) -guy left tavern and hit obstruction but not able to recover b/c drunk and riding too fast. 1. s conduct If 's negligence was cause in fact of the 's injuries, gets nothing (in jurisdictions that recognize contributory negligence) Last Clear Chance Doctrine a. If 's negligence occurs but has the last clear chance to avoid injury, and he doesnt, will be held liable.

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5.

What if multiple DEF? PL damages 100,000 PL liable 40% DEF1 50% DEF2 5% DEF3 5%

Comparative Negligence Most jurisdictions abolish contributory negligence, replaced w/ comparative 3 TYPES a. PURE if is 20% negligent, pays only 80% of damages b. Not As Great As so long as 's negligence was 49% or lower, he can recover his % as well c. Not Greater Than if the 's negligence is 50% or lower, he can recover If there are joint tortfeasors, add up all the s percentages and evaluate whether the 's negligence is low enough to collect. What is the effect on the doctrine of joint and several liability- majority rule not effect

Step 1: ask if joint and several liability survive? Step 2: ask what jurisdictions: pure, 50% 49% Pure jurisdictions-PL can get 60% in joint and several from anyone Not as great as & Greater then jurisdiction: if joint and several liability survives o Provided joint and several liability survives PL can get 60,000 from DEF 2 or 3 or 1 b/c jurisdictions have said we add up all DEF % and then compare them If joint and several doesnt survive: Greater/ not as great as: from DEF1, PL can get 50,000. from DEF2 nothing, from DEF3 nothing \ Same thing for pure:

What about phantom or uninsured DEF? Ex: there were 3 cars, but one did not stop and not found. Negligence is assigned percentages. Do percentages have to add up to 100% or can we leave space for phantom DEFsome jur say no good with phantom other say on PL: 10% DEF: 40% DEF 40% ----only adds up to 90% At trial they will try to push liability on phantom DEF As long as joint and several liability survives, ok for PL If does not maybe not be fair for PL Release: Damages 100,000 PL` DEF1 (rich) 30 DEF 2 (avg) 20 DEF3 (poor) 50 If pure: PL and joint and several survives, can get all from DEF1, If it does not can only get the percentage that someone owe, also ask if there is a limit that someone who is only 20 percent liable they may not qualify for jt and several liability In not as great as if joint and several survives: PL can get all from any DEF. gets from DEF1 and he can use contribution to get rest from other DEF

Ex: prior to trial DEF2 pays PL 10,000. at most, PL can hope to recover 90,000. Step 1: ask if joint and several survive, b/c if it doesnt, she can get only get 30,000 from DEF1. if joint and several survives, now ask about release (if in jurisdiction that means release of one is release of all she gets nothing, but not jurisdiction like that So : Joint and several survives, at most she can get 90,000 from DEF1. in contribution, at most from DEF3 he can get 50,000. but he says I paid 90, I got back 50. I was only responsible for 30. there is a missing 10,000? DEF1 unhappy Ex: PL gets DEF2 for release to pay 10,000 PL from DEF1= 90,000 Then DEF1 goes to DEF3, asks for contribution, can get 50,000. still out 10,000 This jurisdiction sees release differently and court says that was only for w/ PL. you have to pay contribution. DEF2 unhappy has to pay the 10,000 Ex: PL you must give credit for whichever is greater, either dollar for dollar amount you received or dollar amount that represents % .- whichever will be greater! So if PL released DEF2 for 10,000 PL gives credit for DEF2 % which is 20,000 Joint and several liability survives DEF1 can only pay up to 80,000 now. Then DEF1 can get 50,000 contribution from DEF3. DEF1 only paid 30,000 (their % ultimately) PL unhappy. Ex: If not joint and several. (it doesnt survive) PL releases DEF2 for 10,000. PL can collect 30,000 from DEF1 and 50,000 from DEF3

6. Assumption of the Risk

Expresses and implied Expressed- not effected by change from contrib. To comparative neg a. In an area where DEF not under duty to provide w/ something safe, you agree to hold DEF harmless i. Only way to defeat: 1. Risk that came to fruition is not one you accepted 2. OR public policy reason a. Very hard, court respects your right to your body. If you decide to bungee jump and accept risk the court will say you accepted the risk even though you were stupid ii. Usually comes up in scenario where DEF not required to provide activity and PL not required to participate. 1. Ex: Dr. I will delvier baby if you sign this assumption of risk- this will NOT work. Dr. has duty and PL has not choice but to be there 2. EX: DEF owns ski mountain and PL signs assumption of risk PL skis on it. PL under no obligation to ski, Def under no obligation, no public interest- no recovery 3. Ex: PL skiing on mountain and DEF owner shoots PL. this is not a risk PL assumed to take, so probably not precluded from recover, probably can recover b. Public Policy i. Ex: life ticket usually on back assumption of risk express. Formerly PL would say no baraginign I had no opportunity to read it. Now, it is printed in line before you buy it. Now in also some states there is statute- you have assumed risk to ski

Primary Implied Assumption of the Risk a. Risk is not an unreasonable one i. If we did P * m = B it would be reasonable b. The accepts the risk by engaging in the activity. c. Almost everything has risks that can not be reduced by reasonable costs. d. is injured by one of the risks but the was not negligent e. Flying in a plane and coffee spilled ice skater slips and falls on the ice, ballpark. f. Not used frequently but when used is unaffected by the change from contributory to comparative negligence. g. Plaintiff does not have to know or voluntary accept the risk- you put a guy from France in a baseball park Secondary Implied Assumption of the Risk a. has exposed the to an unreasonable risk and for some reason the chose to remain within the zone of danger. Def was already neg yet P has knowingly and voluntarily stayed there used to be a complete def , what we have discoved is it is possible to reasonable assume the risk must be voluntary i. Knowingly it does not matter that orp would know ii. Jur have been saying an unreasonable assumption of the risk is basically like neg and the P can collect some money iii. However where there is a reasonable assumption of the risk it is a complete defense 1. if you unreasonable assume the risk you might get something but if you reasonable assume the risk nothing b. must know the risks. c. Requires a knowing and voluntary acceptance of the risk under circumstances which indicate the was relieving the from liability. d. The is negligent but the agrees (impliedly) to remain in the area of risk. Rational Assumption of the Risks a. Most jurisdictions have abolished this. b. 's reasonable assumption of the risk is a complete bar to recovery. c. 's unreasonable assumption of the risk is NOT a complete bar to recovery treated as negligence.

Is it ever reasonable to assume the risks? If you know that there is a risk but you accept it because there is an emergency may be reasonable under the circumstances. In most jurisdictions, this is a complete bar to recovery. Unreasonable assumption of the risk is NOT a complete bar to recovery (seems counterintuitive). (Cases)

MCINTYRE v. BALENTINE FACTS: DEF McIntyre was traveling south on highway when PL entered. DEF hit PL from behind. Evidence that both had been drinking. Evidence that DEF had been exceesively speeding. PL brought negligence action and DEF answered that PL was contributorily negligent in part b/c drunk driving. PROCEDURE: Jury found them at fault equally for DEF. PL appealed (on jury instructions b/c no info on comparative negligence). Court of Appeals said comparative negligence is not law in TN, affirmed, PL appealed

ISSUE: Whether PL who contributed negligently to tort can still collect HOLD: Yes. TN will now have comparative negligece. Reversed and remanded RATIONALE: Formerly contributory negligence means PL cannot collect unless: (1) DEF conduct intentional (2) DEF grossly negligent (3) DEF had last clear chance w/ exercise of ordinary care to avoid PL injury (4) PL negligence was remote Court abandons this rule and adopts comparative negligence 2 types: Pure: PL can recover for amount not responsible for Modified: PL can recover only if PL negligence does not exceed DEF (50% and 49% jurisdictions, Court here adopts 49% rule Court says equal at fault by jury not determinative b/c didnt have these instructions- remanded This rule also means: o Last chance rule obsolete o PL fault < all DEF fault o PL fault < all DEF and nonparty (if PL tried to get nonparty as DEF)
WINTERSTEIN v. WILCOM FACTS: PL Winterstein was driving on drag race track owned by DEF when he hit long cylinder obstruction and was seriously injured. PL had signed release form that said he could not bring DEF as Def in cause of action. PL argued release form was violation of public policy PROCEDURE: trial court dismiss ISSUE: is release violation of public policy HOLD: no affirmed RATIONALE: It is violation of public policy when release form has one party not dealing at arms length (bargaining disadvantage) or when activity affects public interest. HERE, PL knew what he was getting into, knew about release. Sport is not public interest sport- affirmed. RUSH v. COMMERCIAL REALTY CO. FACTS: PL lived in apt building controlled by DEF. to use facilities she had to walk across a privy also owned by DEF. this time while walking across the privy gave way through a trap door and she fell 9 ft below. She sued DEF for negligent maintence PROCEDURE: trial court said would not refuse nonsuit, refused finding for DEF. DEF wanted her to be found negligent contributory ISSUE: was PL negligence contributory? HOLD: NO, jury question even if so. affirmed RATIONALE: PL Rush had no choice but to go across privy. This was not assumption of risk (she was not required to leave premise and go elsewhere). If it was contributory negligence when she stepped on floor which she knew was in bad order it is up to jury to find out she had knowledge or should have known of conditions. Not a matter of law to determine here.

Limited Duty Failuer to act Unreasonable inducement of emotional distress The unborn

Dealing with a lender Generally, there is NO duty to help another person in need. When must one act? o When you are a profession (MD)? No, there is NO duty to act. o When you are a police officer? No, there is no duty to act? Good Samaritan Laws there is not duty to act, but if someone does act, they will only be liable if their actions are reckless or wanton. Then you have control over the thing causing harm the escalator case Preexisting Relationships with victim Parent/Child Employer/Employee Inviter/Invitee There is a duty to act reasonably without putting yourself in peril. Relationship to the Perpetrator If you know that your child has a known predilection for violence. Parent only has to act reasonably to make sure the child is acting reasonably. Psychiatrist / Psychologist Tarasoff if psychiatrist becomes aware that the person intends to commit harm, they have a duty to act. There must be a reasonable belief that this person presents a danger and there is a specific target. STANDARD: psychiatrist or psychologist in good standing. When there is a contract When the created the harm

o
o

o
o

Either created the injury or created the risk leaving a car on the road. When you are intimately involved in the incident. Even if you were not negligent to begin with. If there is an accident, you have a duty to act reasonably to help the injured call the police if you do not know how to help. The courts have held that when a wife knows of her husbands pedophiliac tendencies, she has a duty to warn because of her intimate and unique position. Can not leave deer in the middle of the road. If you start to act, you must act reasonably.
You have a duty not to put the in worse peril than he was before you started to act or the best situation you had him in . If you promise that you will help that results in others not helping or the not helping themselves, you will be held liable.

o
(Cases)

J.S. AND M.S. v. R.T.H. FACTS: 2 young girls (12 and 15) spent substantial time w/ their neighbor at his horse barn riding and caring for the horses. Neighbor sexually molested them. Following his conviction girls and their parents sued him and his wife for damages. Man conceded for liability for both intentional and negligent injuries. His wife denied she could be found negligent for girls injuries PROCEDURE: trial court entered summary judgment for RTH (Mary) (DEF), on appeal reversed and remanded
whether a wife who suspects or should suspect her husband of actual or prospective sexual abuse of their neighbors children has any duty of care to prevent such abuse. and if there is does a breach of that duty constitute a proximate cause of the harm that results from sexual abuse? They wanted to make the wife liable for the husbands child molestation, They found a duty

Negligent Infliction of Emotional Distress (NIED) If there is IMPACT, the can recover without physical injury. MAJORITY RULE Zone of Danger Test (R2T) o If , by his negligence, has put the in risk of physical harm, he will be liable if physical consequences result. o The risk must manifest physical symptoms. o Must be in the zone of physical danger. Some jurisdictions say that shock is a physical symptom = recovery Some jurisdictions say that shock is a mental symptom = no recovery Pre-Impact fright o Can not recover damages o Anytime there is a guarantee of genuineness, may recover even if they are NOT in the zone of danger. Mishandling of corpses Miscommunication o When there was almost a plane crash, those on the plane were able to collect for NIED found that they were able to anticipate the impact of the crash. Percipient Witness 3rd party o Many jurisdictions consider this to be too long of an extension of liability. o If there is no IMPACT, use the zone of danger test. Zone of danger test must be within the zone of danger.zone of danger must suffer physical symptoms. must have a close familial relationship. o parents, children, spouses, fiances, and grandparents have all been recognized by the courts.fanices ???? Dillon forcibility test ??????? o Thing v. LaChusa Must be present at the time of the injury. A few jurisdictions do not require the witness to be present at the time of the event. Must perceive the injury. Must understand that they are watching an injury producing event. Distress must be a proximate result of the shocking event, not of the death or the injury. The courts expect people to become injured and to die so they do not allow witnesses to recover for the grief that they suffered.

Direct victim must be injured

Duty to the Unborn The idea that there is no duty to the unborn but if there is a special relationship maybe Can there be recovery for preconception injuries? o 14-year old girl had a pelvis injury from a car accident which resulted in a difficult pregnancy and a deformed child 10 years later. The mother can collect for her difficult pregnancy but the unborn child can not collect. o Generally, there is NO duty to the unborn. Some courts have imposed a duty on a who has a special relationship with the fetus (geneticist). Many courts impose a duty on birth control/condom manufacturers if parents want to avoid pregnancy due to the high risk of deformity and due to the negligence of the s, the becomes pregnant and child is born with a handicap. o Parents do not have to mitigate damages by seeking a abortion or adoption. A child has the right to be born without problems. o If child is born handicapped, the will be liable. If there is a car accident with a pregnant mother, the will be liable for the babys injuries in utero. o If a child is stillborn, will not be liable. Some courts look at the viability of the birth and set a threshold date. If the baby dies before that date, there is no liability. If the baby dies after that date, there is liability. Children may sue their mother for negligently caring for herself while she was pregnant. o Smoking crack, drinking, or for taking harmful antibiotics.
I want money because I lived o Ie. Allowing the child to sue someone whose neg was not causing the injury but instead that someone did not help the parents get an abortion

Wrongful Life

Majority of the jurisdictions can not determine how life with impairments measures up in damages to a normal life. Some courts allow children to recover because of public policy.

Landowner in possession
Did the injury producing event happen on or off the property Does what you do on your property cause harm to someone out side it then we will probably allow recovery o Was it a naturally occurring event- generally less liability You may not even owe a known about tress passer o An artificial event generally more liability What about an injury on the property o What is the relationship with the person that is injured If they are there for there own purpose then act as orp Or for owners benefit less duty owed to you Tress passes for the reason of travel o more protection, they must come on the land next to the high way. Ie there is a major accident and to get around the accident they walk on your land. licenses o there there as your guess you owe them a duty to warn of condition of stuff they would not dicover on their own Invitee o At least as good as other 2 due care with naturally and atrtifical stuff, and if despite the warning it is not safe you must make it safe You walk into Kmart and ther is cones around a spill you run over the wet floor when you heard about a sale and you slip Also icy steps with a warning and only way in and out o Public Land open to the public for the reason open to the public o business they give you a benefit it can be a mutual benefit

Children are treated as atleas licenses Ask on or off property natural or artifical status of the plaintiff who is the def land owner in or out of possession, ect Damages o Nominal- no good in neg law a o Actual this is what we talk about Special they must be specially pleaded and prove General damager- do not have to be pleaded and proven specificallty o Punitive- not ok alone