Torts Fall 2024 Podcast Outline PDF

Torts Fall 2024 – Brooke McCawley- Professor Simon Intentional Torts (all intentional torts require intent) Battery: A party is liable for battery if they 1) intentionally 2) cause 3) harmful or offensive contact. Elements (injury/actual damages is an element in n...

Torts Fall 2024 – Brooke McCawley- Professor Simon Intentional Torts (all intentional torts require intent) Battery: A party is liable for battery if they 1) intentionally 2) cause 3) harmful or offensive contact. Elements (injury/actual damages is an element in negligence not intentional tort) o 1) Intent § Purpose or substantial certainty that contact will result from willful action Single intent jurisdictions only require that the defendant intended the contact, not that they appreciated it would be harmful or offensive. Dual intent jurisdictions require the additional element that the defendant understood the contact would be harmful or offensive. o Dual intent adds a layer of protection for defendants (they’re not liable for battery if they didn’t realize the contact would offend or harm). o 2) To cause (Caused by defendant) o 3) Harmful or offensive contact § Harmful: Results in physical injury, pain, or illness (objective standard). § Offensive: Violates a reasonable person’s sense of dignity (objective standard), though subjective factors may be relevant in some cases (e.g., cultural norms or particular sensitivities the defendant is aware of). Subjective: What the person who was harmed thinks Objective: what the reasonable person would think § Contact Direct physical contact (i.e. one body touching another) Indirect contact o Contact with clothing, accessory, or anything else “so connected with the body as to customarily be regarded as part of the other person” (Fisher v. Carrousel) o “Harmful physical element” that is visible, detectable through the senses, and/or may be ingestible or inhaled (Smell, sight, sound, touch, taste, light) o (4) Causation: § The defendant’s act caused the harmful or offensive contact. Scope of Liability o Intent to cause harm is sufficient to sustain battery claim, even if the harm done is of a different kind than the one intended (not a question of foreseeability). § A) liable for damages beyond intended (Walters v. Blackshear)  § B) liable even if harm is different than what was intended (Nelson v. Carrol) Assault: A party is liable for assault if they 1) intentionally 2) cause 3) harmful or offensive contact OR imminent apprehension of harmful or offensive contact and 4) the plaintiff experiences imminent apprehension of harmful or offensive contacts. 1) Intent o Purpose or substantial certainty that contact will result from willful action § Single Intent: party acts knowing, to a substantial certainty, that a contact will result. § Dual Intent: party acts 1) knowing to a substantial certainty that contact, or apprehension will result AND 2) party acts appreciating that the contact will be harmful or offensive. This is more prominent for battery cases 2) To cause (Caused by defendant) 3) Harmful/offensive contact OR imminent apprehension of harmful or offensive contact 4) imminent apprehension results o Apprehension (not necessarily fear, requires awareness of immediate threat) § Subjective: Must expect harmful/offensive contact; AND § Objective: Reasonable apprehension o Imminence § Apprehended contact must include someone’s apparent present ability to take an intended action. If someone points a gun at another person but it’s unloaded, the victim could still have imminent apprehension harm. Transfer of Intent o Intent can transfer: § Between torts (assault and battery) § Within torts (offensiveness to harmfulness) § Between persons (from one person to another) Intending to harm someone, but accidentally harming another o Only rarely transfers between non-battery/assault torts False Imprisonment: A party is liable for false imprisonment if they 1) act intending to confine the other or a third person within boundaries fixed by the party 2) their act directly or indirectly results in confinement of the other, 3) the person is conscious of the confinement or is harmed by it. Length of Confinement: Though you've touched on this in the shopkeeper’s privilege, it’s also worth noting that false imprisonment can apply even if the confinement lasts only a short period of time—it doesn't need to be lengthy to be actionable.  o Transitory or harmless confinement isn’t actionable though could be negligent/reckless if risk of bodily harm was involved. Escape: o False imprisonment can occur even if there’s an opportunity to escape (the person just couldn’t escape due to lack of knowledge, fear of force, etc.). Involuntary Confinement: o The person doesn’t need to be physically restrained—involuntary confinement can occur when a person is unable to leave because they are threatened, misled, or trapped. Lack of actual knowledge is not a defense (Whirl). o Jail example Damages: nominal, pain and suffering, emotional distress. o Can be punitive if the conduct was outrageous or involved malice Shopkeeper’s Privilege (affirmative defense) o An actor may use the shopkeeper’s privilege if there is: § a) reasonable method of detention No excessive force § b) for a reasonable period of time Limited to the time necessary to investigate the alleged theft § c) because of a reasonable belief that a customer stole/attempted to steal from a place of business. You must have all of the above o Non-employee may also claim shopkeeper’s privilege. Trespass Trespass to Land: A party is liable for trespass to land if they 1) interfere with a landowner’s (or leaseholder’s) right to exclusive possession 2) without permission 3) as a direct result of an intentional act. Intent o Intent consists only of acting with the: § purpose of being where you are OR § Purpose of placing an object where it is o It does not matter if you were mistaken or ignorance of ownership § Good faith does not matter Interference with an exclusive right (Thomas v. Harrah’s) o Moving onto land and remaining, or causing someone else to do so o Placing on object on land Scope of Liability (Baker v. Shymkiv) o NOT based on foreseeability of harm that results from a trespass to land o Person who commits trespass is responsible for § A) all physical damages (to landowner/members of landowner’s family) These damages include the loss of use or enjoyment of the land § b) during the continuance of a trespass  If someone remains on the land after the trespass occurred If an object is left on the land § c) even if there would be no liability for the conduct without the trespass Trespass to Chattels: A party is liable for trespass to chattels if there is 1) intent, and 2) dispossession or intermeddling. Intermeddling with Liability Dispossession A party is liable for intermeddling A party is liable for intermeddling if the party 1) if they 1) assume physical control intentionally 2) impair the condition, quality, or value of over another’s personal property, the chattel, 3) deprive the possessor of the chattel for a or 2) destroy possessory interest substantial period of time, or 4) cause bodily harm to the (by exercising control) possessor or chattel. Harmful interference: Impairment or damage to the chattel’s condition, quality, or value. Harmless interference: Deprivation of possession or control over the chattel, even without physical harm. Conversion 1) Intentional 2) exercise of dominion or control, 2) which so seriously interferes with another’s right to control it that the actor may be justly required to compensate the other for the full price of the chattel. Factor-based analysis to determine whether conversion occurred: o Extent/duration of dominion/control o Intent to assert right inconsistent with another’s right of control o Good faith o Extent/duration of interference w/ right of control o Harm to chattel o Inconvenience and expense Damages: o Nominal o Compensatory o Cost (market value) + interest accrued since interest at time of conversion § If not market value: cost to replace + interest Intentional Infliction of Emotional Distress: A party is liable for IIED if they 1) intentionally OR recklessly 2) engage in outrageous conduct and 3) cause 4) severe emotional distress. Intentional/Reckless: o Intent (purpose or substantial certainty) OR o Recklessness § 1) Actual/constructive knowledge of an unreasonable risk of harm § 2) Acting with that knowledge anyway Outrageous: o Must be so utterly intolerable as to go beyond all possible bounds of decency. o Judged on the totality of the circumstances § Important Factors (Zalnis v. Thoroughbred Datsun): Actual/apparent authority of tortfeasor over plaintiff Knowledge of peculiar susceptibility § Other factors (Jones v. Clinton): Conduct Intensity and duration Relationship between P and D Defendant’s awareness of vulnerability Severe emotional distress o Must be so severe that a reasonable person could not be expected to endure it § Majority of jx: expert testimony NOT required to prove severe emotional distress Testimony Physical manifestations Evidence of medical treatment Intensity/duration o All of these are alternatives to expert testimony § Minority of jx: Requires expert testimony Damages: emotional distress + physical results from emotional distress Marital infidelity – not generally included. o Courts do not want to get involved in damages 1st Amendment Free Speech Defense o 1st Amendment may prevent some tort claims if the speech involves public speech. § Pertains to matters of public concern based on Content – is the subject of the speech regarding public issues Form – is the speech conveyed in a form that is public Context – is the speech conveyed in an appropriate context § Distinguished from private speech. Relates to particular individuals or business purposes. Limited distribution and reach intended. Defenses (to intentional torts) Consent: A defendant must show by a preponderance of the evidence that there was 1) a demonstrated willingness to engage in conduct AND 2) the action or inaction could reasonably be understood to be a manifestation of consent (objective standard). Consent: o Express (actual or apparent): verbal or physical consent o Implied: actions (participation in an activity, etc.) o A party can terminate consent by giving notice. § Once notice is given, consent is revoked, and any further contact may become tortious. Limitations: o Exceeding the scope of expected risks: consent to a particular kind of contact does not mean consent to ALL contact (Koffman v. Garnett). § Custom can determine what risks are to be expected. o Fraud: Consent based on fraud is ineffective. § Defendant must know (or should know) of fraud – know and fail to disclose information that could result in harmful touching that would have discouraged plaintiff from engaging in an activity. § Affairs? Majority jx: affair doesn’t go to nature of touching Minority jx: knowledge of an affair DOES go to nature of touching. Necessity: A defendant can enter land without permission to avoid a greater harm. o This defense is commonly used in emergencies where the harm prevented outweighs the harm caused by the entry. Public Policy: In rare cases, public policy considerations may justify an entry on someone else’s land (e.g., government action)  Defense of Self, Others, and Property: Defendant must show that they had a 1) subjective belief that you, your property, or another is in danger, 2) objectively reasonable fear of serious bodily injury and 3) use of reasonable (not excessive) force to prevent serious bodily injury to themselves. Defense of Others: Immediacy (past or future threats are not sufficient) Objective reasonableness of belief: Look to all facts and circumstances (Slayton v. McDonald) Character and reputation of attacker Belligerence of attacker Difference in size/strength Overt act of attacker Threat of serious bodily harm Impossibility of peaceful retreat Reasonable Force: Judge by intended force, NOT result In this case intent of harm does matter Deadly force NEVER reasonable to defend property. This is because property is never considered to be more important than a person Negligence (no intent required) Elements: 1) Duty ==> 2) Breach ==> 3) Causation [ a) But-For Causation, b) Proximate Cause, c) Superseding Causes] ==> 4) Injury Duty The Reasonable Person Standard: the objective “reasonable person under the circumstances” Think MR. POTATO HEAD Knowledge of Actual: Knows what D knew the defendant Constructive: Knows what D should have known Advanced/supe Attention, perception, memory, knowledge, intelligence, judgment rior abilities or Skills and expertise skills (SUPER SMART) Physical Reasonable person with such a disability who takes precautions to Disabilities safeguard themselves, given the disability (e.g. blind person would (BLIND) walk with a cane and/or seeing eye dog, etc.). Children (also Majority jx: “reasonable child” under the circumstances a reasonable o Exception: when performing inherently dangerous activities. person Then, takes on adult standard of care. standard, just a Illinois Rule: No negligence if D is younger than 7 reasonable 7- Third Restatement: No negligence if D is younger than 5 year-old) Extraordinaril Same standard of care, but the "circumstances” under which the y dangerous objective reasonable person operates varies with the dangerousness. activities Sudden 1) Actor seeking instruction wasn’t negligent prior to the Emergency accident Doctrine 2) Emergency arises suddenly and without warning 3) reaction to emergency spontaneous without reflection o OR Restatement: not routine, unexpected Allows jury instruction to consider whether conduct was affected by an emergency. Some jx abolish (generally or in auto cases) Some restrict use to particular cases Some allow but don’t require (judge’s discretion) “Lower” Doesn’t include “lesser” mental capabilities (Vaughan v. Menlove) Mental Capacities Mental In general, people with mental disabilities have same duty of care Disability as those without a mental disability most of the time. To decide whether duty exists, court must weigh: o 1) relationship between parties o 2) foreseeability of harm o 3) Public Policy: does holding the person to a duty of care: § a) allocate losses between parties to the one who caused the loss. (want to heal the injured party) § b) create an incentive for those responsible for people with disabilities to prevent harm and “restrain” those possibly dangerous. § c) Remove inducements to fake a mental disability. § d) avoid administrative problems involved in identifying and assessing the significance of an actor’s disability.  § e) force the disabled person to pay for damage they do so that they can also live in the world on equal terms. Mental disabilities that bring about physical disabilities are treated as physical disabilities. Special Duty Rules (these things may negate or create duty) General Duty to Act No duty to act if acting would improve the position of a person who requires assistance. o UNLESS: § 1) the defendant is the reason for the plaintiff’s peril § 2) the defendant undertakes rescue. Rescuers o If you choose to act to help someone, you are held to an ordinary standard of reasonable care with the traditional negligence standard (reasonable person under the circumstances). § While rescuing did you act reasonably, this cloud involves “dangerous” acts Special Relationships (often businesses open to the public) Defendant has duty to: 1) protect the plaintiff from unreasonable risk of physical harm 2) give “first aid” and “care for” plaintiff once business owner has actual or constructive knowledge that the plaintiff is ill or injured Good Samaritan Statutes: laws that can immunize businessowners from liability for aid: 1) Rendered in good faith 2) Does not put the plaintiff in a worse position 3) Acts with reasonable care OR without gross negligence You do not want to punish someone who tried to help. Pre-existing duty provides an exception (e.g. physician's duty to treat) Length of duty: lasts as long as relationship lasts. Once you leave the doctor’s office the special duty is over. Rescue Doctrine Defendant owes the plaintiff-rescuer a duty if: o 1) Defendant was negligent to the person rescue and the negligence caused peril or appearance of peril to the person rescued. o 2) Imminent peril or appearance of peril caused. o 3) Reasonably prudent person would have concluded that such peril or appearance of peril existed. o 4) Rescuer acted with reasonable care in carrying out the rescue. § Must still prove causation and proximate cause Big takeaway: When someone does choose to affirmatively undertake a rescue, you have a duty to use reasonable care and not leave the person in a worse off position than they were before the rescue. Firefighter Rule  Bars recovery by police and firefighters for injuries they suffer: o 1) While performing their duties o 2) in responding to negligence that necessities their response. § Does NOT apply to intentional torts, negligence that starts AFTER the responders arrive, or negligence other than that which necessitated heir response. Duties to 3rd Parties: some people have the duty to prevent people from harming other people. Healthcare Workers o Harm By Patient: the patient wants to harm others § Duty to warn of potential harm can arise 1) if there is a special relationship (doctor/patient) AND 2) mental health professional determines (or should determine) that their patient represents a serious risk of violent harm o 1) specific and immediate threat § The threat must clearly state what you will do and to who o 2) communicated to a mental health professional o 3) made against a specifically identified or readily identifiable person § Dischargeable by least expansive warning under the circumstances (Emmerich v. Philadelphia Center). o Harm By Patient’s Condition: patient is infected by something that could harm others § Duty to warn immediate family members of potential harm raised by a disease if: 1) there is a special relationship (doctor/patient) 2) the doctor or healthcare professional knew/should’ve known of patient’s suffering from the disease 3) an identifiable third person in the patient’s immediate family exposed to foreseeable risks emanating from the patient’s illness. o Both a contagious disease and a non-contagious disease, if a family member’s being harmed by the origin of the disease is “reasonably foreseeable.” Employers and Employees o Employers have a duty to protect others from acts by employees when those employees are: § 1) on the employer’s premises § 2) using the employer’s chattels § 3) when the employee is incapacitated AND the employer exercises control over the employee because of this incapacity Think the drunk worker case The employer has/should have known the employee was drunk. Duty Limited by Nature of Primary Harm: the scope of the defendant’s duty can be constrained by the type of harm that is reasonably foreseeable because of their actions Negligent Infliction of Emotional Distress: the rules kept being expanded to keep it fair.  o GENERALLY: No standalone NIED cause of action generally (Boyles). § NIED only recoverable where some other breach of duty entitles the plaintiff to damages for emotional harm (i.e.. Battery, negligence). E.g. a physical injury caused by emotional harm (i.e.. Miscarriage from witnessing a beating). o NIED recognized in respect to some bystanders: § Impact Rule: plaintiff must suffer some physical impact (however small) from negligence (single hair on head, slight bump against seat, dust in eyes, etc.) to recover for NIED. Policy: Prevents fraudulent claims (fright is easy to fake); hard to prove causation (fright is too remote from the actual negligence); fright isn’t serious enough. o The fraud does not really happen, courts are dumb § Zone of Danger Rule 1) Plaintiff is within the immediate area of physical danger that negligence produced 2) Physical manifestation of emotional distress results o Not always required § Damage to property not sufficient for NIED alone o Policy: Prevents fraudulent claims (fright is easy to fake); hard to prove causation (fright is too remote from the actual negligence). § Dillon Rule (evolution of the zone of danger rule) (bystander rule) Depends on the presence of any of the following factors, indicating the degree of foreseeability: o 1) Physical proximity – plaintiff is physically close when the harm occurs. o 2) Temporal proximity – the plaintiff observes the event as it happens. o 3) Familial proximity – the plaintiff is close family with the injured party. § Must be immediate family members by blood or marriage May be a question of law (if clearly immediate family members) or a question of fact (if it’s debatable how close they are) depending on jx. § Most courts also require serious bodily injury or death to harmed party o Policy: Allows harmed parties to recover without the artificial and often unfair outcomes caused by the zone of danger rule. § A few feet shouldn’t make a difference to whether you can recover. Mere Economic Harm  o Recovery is barred where only damage plaintiff can assert is economic (no physical or property damage). The street that was closed and the business couldn’t get customers during the time. § If property damage occurs, then economic loss (lost revenue, wages, etc.) can also be brought in conjunction. § Policy: duty limited to prevent individual parties from becoming the insurers of various others. Businesses can take out insurance policies for this Additionally, no duty owed directly to an individual where there is no traditional injury AND no special relationship (so no duty). o Economic loss is not a traditional injury. o There is no duty owed to allow someone to make a certain amount of money. Wrongful Pregnancy, Birth, and Life o Wrongful Pregnancy (the parents bring this claim) § Duty: to perform sterilization or associated procedure § Harm: healthy child instead of no child § Damages: Four Theories 1) No Recovery (only in NV) 2) Benefits Rule: recover amount determined by weighing economic costs against intangible benefits of child-rearing 3) Limited Damages Rule (MAJORITY JX): Recover for the costs related to pregnancy and birth only o Costs of medical care: pregnancy, abortion, medication, surgery, etc. o Economic harm: lost wages including from pregnancy-related events (e.g. morning sickness, etc.) o Pain and suffering, including emotional distress 4) Full Recovery: Recover costs of pregnancy, birth, AND child- rearing (possibly CA) o Wrongful Birth (the parents bring this claim) § Duty: to diagnose/advise about a possible birth defect § Harm: child born with a condition instead of a healthy child/not having the child § Damages: none, special, limited Claims allowed in most jurisdictions o Some jx: no recovery o Some jx: limited to special damage (medical expenses until maturity, for example) o Some jx: emotional pain/suffering, lost wages, etc. o Wrongful Life (the kid brings this claim) § Duty: to diagnose of possible condition § Harm: the child’s own existence with the condition instead of no existence (harm is simply existing) § Damages:  Most jx: logical problem (can’t judge the benefit of simply not existing against the harm caused by existing), deny recovery altogether Minority (CA/WA/NJ): special damages only (no general damages) Duty Limited by Nature of the Activity Primary Assumption of the Risk o Where a plaintiff takes on a risk voluntarily, a defendant has no duty to plaintiff for the inherent risks that are obvious and necessary to the activity itself (Steeplechase). § Focused on the nature of the activity, not on the plaintiff’s conduct § NOT an affirmative defense. o Two kinds of inherent risks: § 1) Positive dangers (essential to the activity) - risks being encountered as part of the activity (i.e. Risk of falling while skateboarding, etc.) § 2) Negative dangers (unavoidable but predictable) - risks that people would avoid except that it’s impossible to do so (blizzards while skiing, etc.) § NOT difficult or impossible to observe, OR those which are very serious and should be avoided for policy reasons (i.e.. unnecessary risk is so severe that society shouldn’t allow it to continue) Duty Based Upon Victim’s Status (Liability) No or Modified Categories o 1) NO CATEGORIES § Reject any distinction between people (licensee/invitee/trespasser) § Duty: reasonable care o 2) Licensee/invitee rejected; trespasser kept § Licensees/invitees are owed a duty of reasonable care, while trespassers (criminal and “mere”) are treated as they were before. Trespassers o Adults § “Mere” trespassers: without permission, without criminal intent Duty: Landowner must not injure by gross negligence (or intentional conduct). § Criminal trespassers: without permission, WITH criminal intent Duty: Landowners must not intentionally injure. o Children § Generally: duty to avoid negligence (rather than gross negligence) § Attractive Nuisance Doctrine: 1) D maintains an artificial condition on their premises that caused physical harm to a child trespasser o Some jx: only mad-made conditions; some jx exclude swimming pool  2) Located in a place where D had actual or constructive knowledge that a child would be likely to trespass 3) Because of their youth, the kids either don’t discover the condition OR don’t realize the risk created by the condition 4) Benefit of condition and cost of eliminating it are slight for defendant compared to risk to children 5) Possessor fails to exercise reasonable care to eliminate the danger or otherwise protect children who might wander onto land Licensee o Privilege to enter/remain on a landowner’s land because of the landowner’s consent and for own convenience or business purposes. o Duty: § 1) Dangerous activity by the landowner – not to cause harm by gross negligence. § 2) Dangerous condition on the land: duty of reasonable care to warn the licensee or to make the condition reasonably safe (when landowner knows, and plaintiff doesn’t). E.g. Police/firefighters, social guests (generally) Invitee: same condition for dangerous activity and condition (reasonable standard of care) o Enter premises with owner’s knowledge AND for mutual benefit (usually customers or business associates). o Duty: Landowners must exercise reasonable care to reduce or eliminate dangerous conditions posing an unreasonable risk of harm of which the landowner has actual knowledge or constructive knowledge after reasonable inspection (real or hypothetical) § Constructive knowledge when: Landowner is responsible for a dangerous condition OR Would have discovered the condition or latent defect by using “reasonable care” (Commodore) o “Reasonable care”: depends on nature and purposes of land (higher level of duty of business owners than private landowners) § Can include duty to perform a reasonable inspection § Length of time (proven “more likely than not”) that the condition exists can be sufficient to create an inference of constructive notice (Gonzalez) § Open and obvious danger doctrine (typically only applies to invitees) Objective inquiry: would the defendant reasonably conclude that a visitor of ordinary intelligence would perceive and avoid risks? Objective analysis of defendant’s reasonableness, assuming that the defendant is thinking about a visitor of ordinary intelligence (reasonable person under the circumstances) o Natural accumulation rule: version of the OOD doctrine but applies only to weather-related phenomena. § Landowner s not typically liable for injuries resulting from natural accumulations of snow or ice, because  such conditions are expected due to nature, and are often open and obvious. Not true if the ice was able to accumulate because of the defendant’s negligence § Criminal attacks (Taco bell) When a landowner has actual notice (can be a “sequence of conduct” and not “long and continued”) of a dangerous patron, landowner must: o 1) Warn others of danger o 2) Protect invitees (prevent or forestall danger) Must also protect invitees from foreseeable criminal acts (not just those that are happening now) (Delta Tau Delta) o Specific harm test – no duty unless a landowner knew or should have known that the specific harm happened or was about to happen. o Prior similar incidents test – No duty unless there is evidence of prior similar incidents of crime on or near the landowner’s property. Number of prior incidents/proximities in time and location to the present crime/similarity of the crime). o Balancing test – weighs the burden of imposing a duty of care upon the landowner against the foreseeability of harm. o Totality of the circumstances test – Duty based on the nature, condition, and on location of the land, as well as prior similar incidents, to determine whether a crime was foreseeable (and therefore, whether the landowner had a duty to safeguard from it). Duty Based Upon Defendant’s Status (Professionals) Duty: determined by professional custom UNLESS standard pertains to an issue within common knowledge. o “Reasonable care” based on “good faith and honest belief that advice is well- founded.” § NOT: Mere error of judgment or mistake of law where unsettled and reasonable doubt entertained. o Expert testimony must be used and is conclusive proof of the professional standard of care (case will often be dismissed without it) Professional duty applies to groups based on: o 1) Nature of a group (is it a group solely driven by profit? Professional association with conduct standards?) § Self-imposed professional obligations (bar association) § Insulated from commercial profit (not driven solely by profit) o 2) Special relationship with clients (are you required to put client above your own interests?) Informed consent o Plaintiff can bring a malpractice suit against a physician who:  § 1) failed to disclose material risks (risks that would’ve changed the patient’s decision making) § 2) the patient wouldn’t have consented to the treatment with the undisclosed information a) reasonable patient standard (a reasonable patient under the circumstances wouldn’t have made the decision they made) b) subjective standard (the patient testifies that they themselves wouldn’t have gone through with the procedure) § 3) one of the undisclosed risks was the injury that the patient suffered o Affirmative defenses to this cause of action (applies only after the plaintiff has proven prima facie case): § 1) actual or constructive knowledge: risks either ought to have been known by everyone OR were actually known by P § 2) More harm than good: full disclosure would be detrimental to patient’s total care/best interests § 3) emergency: patient in no condition to determine whether treatment should be administered Limitations on Professional Duty o Privity barrier can generally prevent professionals from being subject to unlimited liability. o Lawyers sometimes owe duties to third parties for negligent acts that cause them foreseeable harms § In estate planning, three approaches (Jxs.): 1) no liability 2) may owe a duty to named beneficiaries in the trust/will OR 3) anyone who is harmed as a result of the lawyer’s negligence (should’ve been named in a will but wasn’t) Breach Learned Hand Formula (Default approach) If (Burden < Probability x Loss), then breach o Liability attaches if the burden of changing behavior is less than the total harm multiplied by the probability the harm occurs. o DON’T LEAVE THIS OUT Negligence Per Se (“Shortcut”): The plaintiff does not have to prove that the defendant acted unreasonably; instead, the defendant’s violation of the law is seen as an automatic breach of the standard of care. However, the defendant may still argue that their violation of the law was excused under certain circumstances (e.g., if it was impossible to comply with the statute due to an emergency). Elements o 1) Defendant’s violation of a statute, regulation or ordinance o 2) Causation  o 3) Person injured is a “member of the class” statute designed to protect AND o 4) the injury is the type that the statute/ordinance is designed to prevent § Defense: person violating the statute did what might be reasonably expected of a person of ordinary prudence acting under similar circumstances § Defense is that you were actually being reasonable Levels of liability based on statutory language o 1) Strict liability § No excuse or defense If proven, breach is shown without the ability to rebut § Must be explicitly stated in statute that strict liability is intended o 2) Evidence of negligence § Excuses permitted (not negligence per se) Still need to prove breach, but evidence of violation is admissible at trial Not compelled to find someone negligent, even in the absence of rebutting evidence o 3) Negligence per se § If NPS only establishes ordinary care breach: Majority jx: rebuttable presumption (subject to excuse or to evidence of no violation) Minority jx: jury is allowed an inference of negligence only § Excuse is a defense Defendant must show evidence of excuse, or else jury must find defendant negligent Excuses o 1) Actor’s incapacity o 2) No actual or constructive knowledge of the requirement to comply o 3) unable after reasonable diligence or care to comply o 4) confronting emergency not due to their own misconduct o 5) compliance would involve greater risk of harm to the actor or to others Defendant can still show that the plaintiff was contributorily negligent. Custom (Not determinative) Industry custom does not generally determine the standard of care o Can be offered at trial as evidence of blameworthiness or lack thereof § Offensive Use (“Sword”): argument that defendant HADN’T followed industry custom § Defensive Use (“Shield”): argument that defendant HAD followed industry custom “Personal” custom does not set the standard of reasonable care, but nay be admissible evidence for jury to consider. o Think the Walmart case with the store policy that they then did not follow, they were like yeah we said that but that’s just our policy and doesn’t set the duty of care.  Res Ipsa Loquitur: “How else could it have happened” Elements o 1) nature of accident suggests negligence o 2) D had exclusive control over what caused accident (person’s body is generally held to be under their control) o 3) P lacks direct evidence; AND o 4) Instrumentality unlikely to produce harm without negligence by defendant Recklessness/Gross Negligence/Willful and Wanton Conduct Elements o 1) Viewed objectively from the actor’s standpoint, the act or omission involved extreme degree of risk (high probability and loss) o 2) Subjective awareness of risk by proceeds anyway § May also hold that a person aware of the facts but unaware of risk liable so long as reasonable person would’ve been aware o 3) Low cost of eliminating risk compared with high probability (indifference) § Think Learned Hand Forumula You must then show o Causation: a) but-for-causation; b) proximate cause; c) no superseding causes o Injury Defendant acted despite knowing that their conduct was likely to cause very serious harm (though they didn’t have intent to cause harm per se) Causation Must prove: o 1) But-For Causation (if yes, then move on to proximate cause) o 2) Proximate Causation (if yes, check for superseding causes) o 3) Superseding Cause (if no, then you’ve satisfied causation) Must go through all these tests. 1) But-For Causation Must show o Act or omission was an ESSENTIAL cause of the injury (injury would not have occurred but-for D’s negligence) o “More probable than not” (over 50% chance) Direct AND circumstantial evidence is sufficient ( Alternatives to But-For Causation (conceptual/evidentiary problems, etc.) Multiple Problem: Conceptual. Two or more causes that are sufficient to cause Independent harm. Sufficient Causes Solution: Hold both parties responsible. (MISC) If multiple human D’s: join all Ds, require them to litigate damages. If one D and one natural cause: only one D in the lawsuit (majority jx) o Minority jx: If one cause is not of human origin, then no liability. § The forest fire might be considered a superseding cause in this example, and it will relieve the defendant of liability. Think Forest Fire Case Alternative Problem: Evidentiary. Two or more causes of harm where only ONE is Liability (AL) the actual cause. Solution: plaintiff proves that defendants fulfill elements of Alternative Liability – shift burden to defendants to prove that they WEREN’T the cause. Applies where: o 2 or more tortfeasors o Only one could’ve caused harm o Plaintiff can’t determine which caused the harm (by no fault of the plaintiff’s) Each defendant must be brought before the court for them to defend themselves. Think the shot to the eye Think 3 Spiderman’s pointing at each other Modified Problem: Evidentiary. Two or more causes of harm where only one is Alternative the actual cause and where AL doesn’t apply. Liability (MAL) [Market Share Not all defendants are before the court Liability] Solution: plaintiff proves that defendants caused harm and shifts burden to the defendant to prove their innocence. Court apportions liability among the defendants who compose a “substantial percentage” of the market (