Torts Outline PDF

Outline Torts GENERAL Types of Verdicts- Directed Verdict- had a trial, but at the end of it, judge decided didn’t need to go to jury and decided the case right there to P- EXTREMELY RARE Torts are the civil side. Suit brought on by Plaintiff seeki...

Outline Torts GENERAL Types of Verdicts- Directed Verdict- had a trial, but at the end of it, judge decided didn’t need to go to jury and decided the case right there to P- EXTREMELY RARE Torts are the civil side. Suit brought on by Plaintiff seeking compensation from another- Plaintiff must establish Defendant liability through evidence. Tort law incentives people to act right (economic) creates fairness in society (corrective justice) Intentional Tort- Deliberate Contact Unintentional Tort- Inadvertent harm Strict Liability- Defendant pays damages caused by activity regardless of how action was committed Liability for Negligence- Defendant pays only for harms caused by failure to use reasonable care Case of Liability- Case where D was found to do wrong, and P is entitled to compensation Case of nonliability- Case where D was not found to be liable, no entitlement. Eggshell- Skull- Plaintiff rule- Defendant is normally liable for the full extent of harm caused by tort, even if severity is due to P innate condition or preexisting vulnerability, of which D could not know (White v Muniz) INTENTIONAL TORT: BATTERY (PRIMA FACIE CASE) Battery Includes an ACT by a person with INTENT to cause harm or OFFENSIVE contact with another and that contact occurs, with no CONSENT from the other party Elements of Battery: (A) INTENT TO TOUCH (B) TOUCH OCCURS (C) OFFENSIVE CONTACT ACT Restatement (2) of Torts- An external manifestation of will is necessary to constitute an act, and an act is necessary to make one liable for battery. An act may by either an act of COMMISSION or an act of OMISSION Act must be volitional (Voluntary) movement of D body (a) Unconscious acts are not voluntary (sleeping, seizure) Laidlaw v Sage- Act done under duress of death or extreme injury is involuntary (b) Legal Incompetence is not relevant (RoT comment b) Polmatier v Russ- An act done under insanity is still an act (A)INTENT TO TOUCH Plaintiff must only prove that Defendant (1) purposely touched or had the (2) substantial certainty that touch would occur. (3) Intent to cause offensive contact/harm is not required and (4) intention does not matter. (5) Lack of intent leads to no liability for Battery (1) Purpose Intent (2) Substantial Certainty- A reasonable person would be able to know to a substantial degree that contact could occur from action Garratt v Dailey- Knowing that an action could lead to an offensive touch is enough to be liable for battery  (3) Intent to cause harm/offensive not required Vosberg v Putney- Intention to cause harm is not required to be liable for battery, only the intent to make the contact Lambertson v United States- Defendant must only intend for the contact to occur, not the injury itself (4) Motive behind the intent is not relevant White v UoI- Whether the intent behind the contact was good or bad, it does not bar liability for battery. Intent to do harm is not needed either. Lambertson v United States- Restatement of Torts 13- Defendant may be liable where he has only intended a joke (5) Lack of intent leads to no liability- where it is proven that Defendant never intended to cause any contact with plaintiff Knight v Jewett- Stipulated that D had no intent of contacting J, even though it occurred- no proven intent- no liability Madden v DC Transit system- There was an absence of malice, willfulness, or specific wrongful intent- thus no liability. Rule of Transferred Intent- Intent can be transferred, holding Defendant liable for battery even if it resulted accidentally, due to D committing or assisting in the wrongful act, as long as this contributed to contact. (A throws rock at B, but hits C- intent is transferred and A liable) Different tort against same person, same tort against different person, or different tort against different person Keel v Hainline- Defendant liable for battery even though he did not throw the eraser that caused contact, because his actions helped lead to result Manning v Grimsley- Held that the throwing of the ball, while intended for the fence, in an unlawful manner was enough to constitute battery. Also, allowed for transfer of liability to an employer (RoT 13) Think multiple choice question where tiger purposely hit ball toward phil but did not intend to hit him, but it accidently did- battery (B) TOUCH Can be (1) direct person to person, (2) contact with something closely attached to a person, and (3) does not need to be felt by the person at the time. DID TOUCHING OCCUR (1) Direct contact can be more than just physical- smoke, spit, etc that is offensive Body to Body, something attached, causing object or instrument to make contact Leichtman v WLW J Comm- Court ruled that tobacco smoke has particular matter capable of making physical contact and causing offense. (2) Intentional snatching or grabbing of an object closely attached to a person meets requirement for contact in battery (grabbing plate, poisoning food, setting a trap) Prosser (Law of Torts) Battery protection extends to any part of body, or anything attached, Morgan v Loyacoma- Court held that seizure of a package out of P hands constituted a battery Fisher v Carrousel Motor Hotel- RoT 18- anything directly grasped by hand so intimately connected to persons body is universally regarded as a part of the person (3) Touch does not need to be felt at the time (so light as to barely be a touch, so long as the touch did occur and is proven Vosburg v Putney- the touch was not felt but was stipulated and lead to the issue. (C) OFFENSIVE CONTACT OCCURS/ HARMFUL RoT 3- A contact is offensive if (1) the contact is offensive to a reasonable sense of personal dignity OR (2) the contact is highly offensive to the others unusual sensitive self of personal dignity, and the actor knows that the contact will be highly offensive- LIABILITY NOT imposed if determined that avoiding contact would be unduly burdensome or a violation of public policy. (1) Contact is offensive to a reasonable sense of personal dignity-Objective standard used to deem if a reasonable person would be offended, given social customs, venue, implied license Leichtman v WLW- Court ruled that an ordinary person would deem the purposeful act reasonably offensive- disagreeable, nauseating, painful or insulting Wallace v Rosen- Court deemed that the contact was not offensive to a reasonable degree because in a crowded world- ordinary contacts that are customary and reasonably necessary are to be expected and accepted. Tapping a shoulder to get attention at a club, or to wake someone up, implied license of being on a playground playing or dancing Wishnatsky v Huey- An ordinary person would not be offended by a door being closed in their face when they were not invited (2) If contact that would be deemed to be unoffensive to a person, but that offensiveness has been communicated, these acts are deemed to be offensive Cohen v Smith- Court held that because the P had expressed that being seen naked and touched by the doctor would be offensive, this was deemed battery Tapping on the shoulder after being asked to stop CONSENT AS DEFENSE- TORTS BATTERY RoT892- (1) Consent is willingness in fact for conduct to occur, may be manifested by action or inaction and does not need to be communicated by actor. (2) If words or conduct reasonably understood by another to be intended as consent, they constitute APPARENT CONSENT, and are as effective as consent. Comment c Apparent Consent- Even when person concerned does not in fact agree to conduct of the other, his words are acts or even inaction may manifest consent that justifies the other enacting, when words or acts or silence and inaction would be understood by a reasonable person as intended to indicate consent. Implied License- in some areas, the situation gives itself to conduct occurring- think playing dodgeball on the playground. Plaintiffs Consent as Defense (Consent Exists- No battery) Consent based Fraud Concerning Collateral Matter (Restatement) Counterfeit money for transfusion is battery. Counterfeit money for sex is not battery Question 9 Consent Implied in Law (Implied Consent) In event of medical procedure with emergency and an inability to gain consent- implied consent is given to D Werth v Taylor- Court ruled that due to the medical emergency, the hospital had implied consent to give blood (against religious view) and that any statement prior for refusal was not made in needed state of mind Question 8 Consent Implied in Fact (Apparent Consent)  When a person’s acts suggest actual consent to the touching- Unwanted kiss received without Objection Consent to Combat for Business or Sport Consent to invade privacy bars recovery from the invasion Hart v Geysel- Engaged in an illegal fight in which both parties expressed their willingness to suffer invasion and contact, therefore barring right to recover Consent Based on Fraud Related to Unreasonable Fears P cannot recovery for battery based on fear that has not been proven, consent is not vitiated when a patient is touched in the exact way they consented to be Broska v Olson- Court ruled that there was no rationale behind their fear of injection and that they were operated on exactly as they consented. Plaintiffs Consent is not a Defense (No Consent Exists- battery) Consent Based on Fraud, Mistake or Duress IF ACTION GOES BEYOND CONSENT- BATTERY Consent to Unlawful Act (CONSENT TO CRIME=DEFENSE, UNLESS LAW PROTECTS CLASS) Consent to unlawful act is no defense to a claim of battery Mcneil v Mullin- Court ruled that because P consented to an unlawful act, this was not sufficient to bar recovery Consent when Drunk/ Impaired Consent when given impaired and the other party has knowledge of this impairment is ineffective Hollerud v Malamis- Court ruled that an impaired P is incapable of expressing a rationale will and that D cannot take advantage of this Consent to Doctor/Nurse Other than Doctor Who Performs the Surgery RoT- If you go to hospital, you generally consent to all staff, but this staff can exceed their scope. Consent during a medical procedure and not an emergency must be obtained in any change of that procedure Grabowski v Quigley- Ghost Surgery. When patient is mentally and physically able, new consent must be obtained Consent to Operate on a Different Body Part Mohr v Williams- Consent to operate on another part that needs it needs to be obtained when it is not an emergency TRESPASS to LAND Tort trespass protects an owners interest in exclusive possession of land Elements: (1) Intentional (2) Invasion (3) of Plaintiffs possessory interests (4) in land Intentional – meant to be where they were, whether knowing or not, (mistake irrelevant) Single Intent- Intent does not need to be to trespass, enough that D enter the land Mistake is no defense as long as the D entered No intent to be where they were, or accidental intrusion- not T Malouf v. Dallas Athletic County Club- D not liable for T as they never intended golf balls to go over into property, had no substantial certainty that it would happen, and was the result of an accident Liable for Intentional Intrusions—does NOT need to cause harm (a) enters land in possession of another, or causes a thing or third person to do so OR  (b) Remains on the Land OR (c) fails to remove from the land a thing under which he is under duty to remove Van Alstyne v Rochester- D had the duty to remove the substances from P land, failure to do so resulted in T Invasion Know or has substantial certainty to know that an invasion will occur (a) D need not enter land, can satisfy invasion in other ways Flooding land, throwing rocks onto it, force third party onto it Pegg v Gray- D held liable for T by allowing animals to roam onto P property, even though D never entered. CAUSING ENTRY OF A THING (b) Lawful Right of Entry Expired- Trespass may exist where the D remains after lawful right of entry lapsed Plaintiffs possessory Interest Constructive Possession of land- even without title. If action by lessee- some decisions allow recovery only to extent trespass damaged leasehold interests, others allow full recovery, but require lessee to account to the lessor for excess over damages In Land o Trespass may occur on surface, below, or above. Edwards v Lee- established owner of land has rights exceeding above and below o It is to the height or depth that P can make beneficial use out of space Smith v New England- Acts constituting trespass do not have to do harm, just need to interfere with P use of space  Stringing lights, flying low, tunnels under property Defenses to Trespass of Land Accidental Intrusion o RoT 166- Except where the actor is engaged in an abnormally dangerous activity, an unintentional and non-negligent entry on land in the possession of another, or causing a thing or third person to enter the land, does not subject the actor to liability to the possessor, even though the entry causes harm to the possessor or to a thing or third person in whose security the possessor has a legally protected interest EXAMPLE: Walking down street, trip over a dog and break shop glass- not T EXCEPTION- Abnormally Dangerous Activity EXAMPLE- driving 100 miles an hour, losing control, driving into shop- T Consent o In general, consent obtained by fraud or mistake is a defense to trespass, UNLESS the act exceeded the scope of consent Desnick v. American Broadcasting Companies- Consent that was gained through fraud was ruled to still be valid bc the fraudulent parties did exactly what they were consented to do o RoT 1965 168: A conditional or restricted consent to enter land creates privilege to do so only in so far as the condition or restriction is complied with Van Alstyne v Rochester- exceeded the scope of consent by leaving materials on land- resulting in T  Mistake (not usually a defense) o Second Restatement 164: One who intentionally enters land in possession of another is subject to liability to the possessor of the land as trespasser, although he acts under a mistaken belief of law or fact, however reasonable, not induced by the conduct of the possessor, that he (a) is in possession of the land or entitled to it OR (2) has the consent of the possessor or of a third person who has the power to give consent on possessors behalf OR (3) has some pother privilege to enter or remain on land CONVERSION- trespass to personal property as opposed to land This is an intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the channel Elements: (1) Intentional (2) Exercise of Dominion or Control (3) over Chattel (4) that Seriously Interferes with P Rights Restatement of torts 217- Ways of committing Trespass to Chattel A trespass to chattel may be committed by intentionally (a) dispossessing another of the chattel OR (b) using or intermeddling with a chattel in possession of another Acts of Conversion- (a) Wrongful Acquisition (theft, embezzlement) (b) Wrongful Transfer (selling, misdelivering, pledging) (c)Wrongful Detention ( refusing to return chattel to owner) (d) Substantially Changing (e) Severely Damaging or Destroying (f) Misusing Chattel Palmer v Mayo- exceeded the scope of consent in contract- Transferrred conversion, D gave permission to use chattel to other that lead to harm Liability to Person in Possession- One who commits a trespass to a chattel is subject to liability to the possessor of the chattel IF BUT ONLY IF (a) he dispossesses the other of the chattel OR (b) the chattel is impaired as to its condition, quality, value OR (c) the possessor is deprived of the use of the chattel for a substantial time OR (d) folly harm is caused to the possessor, or harm is caused to some person or thing in which the possessor has a legally protected interest Intentional The only intent required is the intent to perform the act that interferes with the P right of Possession. Even if conduct is innocent, liability may attach where interference is serious in nature Accidental Conduct is Insufficient- Accidentally causing damage to or loss of another chattel does not amount to conversion UNLESS actor using without permission, or exceeded reasonable time. (SEE SERIOUSNESS) o Spooner v Manchester- D must intentionally cause conversion, not induced by another. Taking the wrong path by accident and horse went lame- not intentional, not conversion Bona Fide Purchaser- May be liable if chattel stolen from original possessor and they did not receive a title o Okeefe v Snyder- 3rd party purchaser is LIABLE as they did not receive title for goods  o Phelps v. McQuade- NOT liable- received a title, even though it was gained through fraud o Kelley Kar co v Maryland Casualty- Cash cannot be chattel FRAUD w TITLE- NO CONVERSION THEFT w NO TITLE- CONVERSION Exercise of Dominion of Control May be committed by unreasonably withholding possession from one who has the right to it Person not in lawful possession of chattel may commit conversion by: (a)intentionally dispossessing the lawful possessor of the chattel, (b)intentionally using a chattel in his possession without authority so to use it, (c)receiving a chattel pursuant to an unauthorized sale with intent to acquire for himself or for another a proprietary interest in it, (d)disposing of a chattel by an unauthorized sale with intent to transfer a proprietary interest in it, or (e)refusing to surrender a chattel on demand to a person entitled to lawful possession. Russel-Vaugh v. Rouse- D refused to deliver chattel in timely manner resulting in conversion. Also, established that it is not on P to resolve issue Chattel The legally owned possessions of the P. To establish Conversion claim, P must prove: (a)it had a possessory interest in the property, (b)the defendants intentionally interfered with the plaintiff’s possession, and (c)the defendants’ acts are the legal cause of the plaintiff’s loss of property. Having possession is what matters, not how possession came to be. If chattel obtained by P tortiously and D converted this chattel, P still has right to retain Anderson v. Gouldberg- the only thing that can dispossess one from chattel is a better title Chattel does not need to be possessed physically- intellectual properties are deemed chattel CompuServe v. Cyber Promotions- Intentional intermeddling of a cyber system enough to harm and cause loss on part of P is conversion Kremen v Cohen- Intellectual property- domain names, are subject to conversion Seriously Interferes with P Rights In determining the seriousness of the interference and the justice of requiring the actor to pay the full value, the following factors are important: A. The extent and the relation of the actors exercise of dominion or control B. The actors intend to assert a right in fact inconsistent with the other's right of control C. The actor is good faith D. The extent and duration of the resulting interference with the others right of control E. The harm done to the chattel. F. The inconvenience and expense caused to the other MOTIVE MATTERS- bad intent (stealing) is enough to turn short deprivation into conversion FALSE IMPRISONMENT Elements- (1) Intentional (2) Confinement of another (3) who knows of the confinement or is harmed (4) with Lack of Privilege Intentional- for FI- required that you know you are confining someone Ex- store manager tells employee to go get something in freezer, manager forgets and locks him in there- argue that this does not fill intent RST 35- (1) Actor is subject to liability to another for FI if: (a) he acts intending to confine the other or a third person within boundaries fixed by the actor AND (b) his act directly results in such a confinement of the other AND (c) the other is conscious of the confinement or is harmed by it (2) an act which is not done with the intention stated in 1a does not make actor liable to the other for a merely transitory or otherwise harmless confinement, although the act involves an unreasonable risk of imposing it and therefore would be negligent or reckless if the risk threatened bodily harm Confinement of another RST 36- (1) to make the actor liable for false imprisonment, the other's confinement within the boundaries fixed by the actor must be complete. (2) The confinement is complete although there is a reasonable means of escape, unless the other knows of it. (3) The actor does not become liable for false imprisonment by intentionally preventing another from going in a particular direction in which he has a right or privilege to go. RST 38- May be actual or apparent barriers Ex. Taking crutches away from B, making unable to walk, confining B Confinement can be: Physical barriers, physical force, implicit or explicit threat of physical force, false assertion of legal authority to confine, duress of goods. Confinement Area- Bounded area, can be quite large, all based on circumstances Ex. Merely blocking someone on a path is not FI, Moral Pressure or Future Threats are typically not sufficient enough to be a cause of action Who knows of the confinement or is harmed by it Victims need to know that they are being confined or are harmed by the confinement. Ex. Infant locked in a vault for 3 days Time of confinement is immaterial, except as to extent of damage. Lack of Privilege Consent (must be valid) can be a defense to FI, or Shopkeepers Privilege, or having the means to escape Parental Privilege- when parent, or agent, acting under conviction that judgmental capacity of adult child is impaired, seeks to extricate that child, from cult, limitations placed on child’s mobility do not constitute meaningful deprivations of personal liberty sufficient to support FI- as long as CONSENT is given at some point. Peterson v Sorlien- P showed consent thru actions. Court ruled that actions in first 3 days, P did not have mental ability to make voluntary decisions. Parents had privilege to try and extricate P from cult  Cult v Church- more recruitment, separation piece, smaller in size, newer as compared, not many branches that are connected, autonomous, one charismatic leader Consent- It must be made validly and any actions that indicate lack of consent make one liable for FI. Look at means of escape to see if consent made in legit or false Eilers v Coy- Consent was only given to trick to escape. Actions never showed willingness to be there. Never had true means of escape. Shopkeepers Privilege- (1) There must be a reasonable belief as to the fact of theft; (2) The detention must be conducted in a reasonable manner and only nondeadly force can be used; and (3) The detention must be only for a reasonable period of time and only for the purpose of making an investigation. Limited protection Citizens Arrest and role in FI- Heavy reliance on state statutes to determine if citizens arrest can be made without FI. Actions in excess of legal authority can FI. With today’s tech, less need for citizen’s arrest Bright v Ailshie- bounty hunter reasonably believed that the person he was arresting was the bail jumper who posed as his brother. (set limits on private citizens ability to make arrest) Under not common law- can only arrest someone who actually committed the crime, if not- false imprisonment RST 45 Instigating or participating in FI- one who instigates or participates in unlawful confinement liable for FI. NOT instigation where actor req authorities to make proper and lawful arrest AND has in no way invited or encouraged an improper one Baggett v National Bank & Trust co- this is a stek up case. No direct instigation- the shopkeeper has the authorities be the actor, and the preponderance of evidence showed that the FI was reasonable, based on good info, and in good faith- shopkeeper had probable cause, and they were not the reason for arrest of P Comment c. Instigation- If confinement is unprivileged, the one who instigates is subject to FI. Instigation consists of words or acts which direct, request, invite, or encourage FI. NOT enough that instigator give information to police about crime, or accuses the other of it, so long as he leaves the decision solely to the police to determine what shall be done- no influence or persuasion. Melton v LaCalamito- uhaul case- LIABILITY WHEN A PARTY IS THE INSTIGATING OR CAUSING FACTOR OF FI, WHEN THERE IS NO PROBABLE CAUSE OR GIVES FALSE INFO TO AUTHORITY LEADING TO AREST, OR PERSUASION IS DETERMINING FACTOR ASSAULT Elements- (1) Intentional (2) Act/ion (3) that Creates IMMINENT Apprehension in P (4) of Harmful or Offensive (5) Physical Contact (1) Intent- TO A SUBSTANTIAL CERTAINTY Knowing to a SC that harm or apprehension could occur from an act is enough to be liable Bennight v Western Auto Supply- (bat warehouse case) had the SC that forcing worker in the warehouse could lead to imminent apprehension RST 32. Character of Intent Necessary (1) To make actor liable, they must have intended to inflict a harmful or offensive contact upon the other or to have other put on apprehension of such contact (2) If act is done with the intention of affecting third person in manner stated in 1a, but puts another in apprehension, actor is subject in full to other (transferred intent) Ex. A throws stone at B who he thinks is asleep. B is awake, sees A throw and dodges it. A is liable  A and B are trespassing on C wood. C points gun at B threatening to shoot. A comes from behind tree and sees gun pointed at him and is put in apprehension. C liable to A and B (2) Act Restatement (2) of Torts- An external manifestation of will is necessary to constitute an act, and an act is necessary to make one liable for battery. An act may by either an act of COMMISSION or an act of OMISSION Act must be volitional (Voluntary) movement of D body (a) Unconscious acts are not voluntary (sleeping, seizure) (b) Legal Incompetence is not relevant (RoT comment b) Tuberville v Savage- (old case about swordsman) Assault requires intent to create an apprehension of harmful or offensive conduct in the victim and an ACT- overt act that actually causes this apprehension (3) that creates IMMINENT APPREHENSION in P- having the knowledge IMMINENT- The contact must be perceived as imminent. There must be an apparent intent and apparent present ability to carry out the threat immediately. Mere words, unaccompanied by a physical act, are not an assault. But words may give meaning to movement. A conditional threat may be an assault, unless D is privileged to enforce the condition. Brower v Ackerley- threats of future acts of violence are not sufficient- D had been receiving calls and messages threatening violence- not immediate enough- not assault APPREHENSION- P must have been aware of D’s threatening act at the time, before it is terminated. Apprehension is all that is required; P need not be afraid. If D’s assault is directed against P, D is subject to liability even though P’s apprehension is unreasonable. An assault may occur even when D’s act is directed against a third person, or when it is apparent to P that D intended only an assault, provided P reasonably perceives the threat of a battery to P (4) Harmful or Offensive Context is important- not offensive being scared at a haunted house. Intent to do harm is not relevant Joke is no defense Langford v Shu- ( trick played on D to scare her, transferred intent. Rationale- By playing along with the joke, D was aiding and abetting Even if she didn’t doing the springing, she had knowledge of it and took part in it) , If an act is done with the intention of bringing about an apprehension of harmful or offensive conduct on the part of another person, it is immaterial that the actor *212 is not inspired by any personal hostility or the desire to injure the other.) Newell v Whitcher- (D went into room of blind P and made solicitations for sex, P repelled. P frightened and suffered) D acts constituted an assault because he had the intent to offend P, acted by coming into her room and P had apprehension of imminent offense (5) Physical Contact (OR FEAR OF CONTACT) MAKING ACTUAL PHYSICAL CONTACT IS NOT ASSAULT- JUST THE FEAR THAT IT COULD HAPPEN Intentional Infliction of Emotional Distress – all in the mind Elements- (1) Intentional or reckless (2) Extreme and Outrageous (3) a Casual connection between wrongful conduct and emotional distress and (4) SEVERE emotional distress (1) Intentional or Reckless  Defendant will be liable not only for intentional conduct but also for reckless conduct, i.e., acting in reckless disregard of a high probability that emotional distress will result Intent is satisfied if D told that P does not want a particular action, but D does it anyway. Muratore v M/S Scotia Prince- P continued to tell D that she did not want to be photographed, continued (2) Extreme and Outrageous- MUST IMPORTANT ELEMENT Must be so extreme in degree as to go above all possible decency, regarded as atrocious and intolerable in civilized society- must be TRULY devastating Abuse of power- A common fact situation resulting in liability involves an abuse by D of some relation or status which gives him actual or apparent power to damage P’s interests, where D’s threats go beyond the ordinary demands or means of persuasion and become flagrant abuses of power in the nature of extortion Greer v Medders- Power relationship (doctor to patient) established outrageous conduct ( abusive statements made to patient and family) court ruled this relationship must be viewed differently than strangers (3) Casual Connection between wrongful conduct and emotional distress Conduct Directed at 3rd Person- D’s distress-producing conduct directed at a third person (T) is actionable by P if D intentionally or recklessly causes severe emotional distress 6 CAPSULE SUMMARY to P by such conduct, provided either: (1) P witnesses D’s conduct, T knows of P’s presence, and T is a member of P’s immediate family; or (3) P’s severe emotional distress results in bodily harm. In compelling cases, the presence requirement may be relaxed (4) SEVERE Emotional Distress LIABILITY DOES NOT ARISE FROM MERE INSULTS, INDIGNITIES, THREATS, ANNOYANCES, PETTY EXPRESSIONS. MEMBERS OF PUBLIC ARE EXPECTED TO BE HARDENED TO CERTAIN AMOUNT OF CRITISM, ROUGH LANGUAGE, AND OCCASIONAL UNKIND INCONSIDERATE ACTS OR WORDS Roberts v Saylor- Court ruled that even tho D intended to insult P- behavior did not meet the criteria of outrageousness needed. Failure of P to prove ED Actual Damages are req- on P to prove that they suffered true damages- must show TRULY DEVASATING EFFECT Pemberton v. Bethlehem Steel Corp- (union hired investigator to spy on P, caught him cheating and mug shots, publicized both) Court ruled that P did not show devastating distress and that this was not IIED For a bystander- must be closely related to victim, present at scene of event when it occurs, and is aware it causes injury, and as a result suffers emotional distress DEFENSE PRIVILEGE- Self Defense, Defense of Property, Defense of Other Rules Privilege- general term applied to various defenses in which special circumstances justify conduct which would otherwise be tortious. REASONABLE FORCE RULE: The possessor of land or chattels may use reasonable and proportionate force when necessary to defendant possession of land or chattels against intrusion, taking, or harm: Non-deadly Prior demand required unless futile  Hull v Scruggs- D used all means to stop egg sucking dog. Finally resulted in killing the dog. Court ruled that reasonable efforts were exhausted and no liability Mistake destroys privilege RECAPTURE OF PROPERTY: A property owner has the right to use non-deadly force to recapture property that has, at that moment, been taken from him by another. The law’s preference is that the property owner use the legal process to regain possession. Katko v Briney- P used spring gun to protect lands- Court ruled that you cannot use force capable of death or serious harm for property defense SELF-DEFENSE RULES: The Defendant may use reasonable force to defend himself against an unprivileged act – Deadly force may be used if person is defending against deadly force Wright v Haffke- D used deadly force against P to defend armed robbery. Court ruled that you can use lethal force to protect property or self against felony Defendant cannot be the initial aggressor Reasonable mistake okay DEADLY FORCE: DUTY TO RETREAT: Majority Rule: No duty to retreat Minority Rule: Must retreat before using deadly force if (a) you know you can retreat in full safety and (b) you are not in your own home DEFENSE OF OTHERS: A person may use reasonable force to protect another. Is a mistake as to the need for force, okay? Majority: Defendant stands in the shoes of person he defends Minority: Reasonable belief = no liability Difference- standing in shoe- you have same rights defending 3rd person as if they were defending themselves. Say you shot someone who was about to stab a person, but it was a film set- bc 3rd party didn’t have the right to kill this person- so no defense Minority- reasonable belief would have a defense in this case PRIVATE NECESSITY Necessity- Privilege that allows for trespass or destruction of property to preserve a greater interest. APPROPRIATE WHEN (1) saving property (2) detour because normal course is cut off (3) sacrifice personal property of another to save human life (4) to flee from harm (5) animal stray, to reclaim them(if beast is properly driven but eats grass morsels- not a trespass, unless you aren’t driving them proper, allowed to leave feces), (6) entry on land to save goods at risk of loss from fire Actor may commit an act that would otherwise constitute: a. Trespass to land; or b. Trespass to chattels; or c. Conversion of chattels 2. To prevent imminent harm to a. themselves or b. their property or c. to a third person or d. their property 3. IF the action taken is reasonable. Intruders Superior Privilege- The intruder's privilege to enter or remain in cases of necessity to save herself from death or grave bodily harm will be superior to the possessor's privilege, at least for reasonable period. (1) and (4)  Ploof v Putnam- boat to dock during tempest- Inability to control movements due to act of god. Rossi v Deluca-One is privileged to enter land in the possession of another if it is necessary to prevent serious harm to the actor or his property. This relieves the intruder from liability for trespass and destroys the possessor's immunity from liability in resisting the intrusion. (girl trespassed to run from dog and got bit by dog on property- won) (1) and (6) Vincent v Lake Erie Transport- Can invoke private necessity, but if you cause damage doing so, you must compensate for damages done. (Efficient outcome) boat damaged doc during storm. Texas Midland – (kicking family out of station during storm) Liablility if D forces P out if he knows to substantial certainty it will cause her harm London Borough- Homelessness not a defense. It is not rare enough( emergency situations are one offs. Repeat players are not favored as it’s a societal loss PUBLIC NECESSITY Use of private property by a public official for a public reason- potential harm to society necessitates destruction or use of private property for GREATER GOOD. An actor may commit an act that would otherwise constitute; a. Trespass to land; or b. Trespass to chattels; orc. Conversion of chattels 2. In order to prevent an imminent disaster to the community affecting a. Real property or b. Personal property or c. Persons Mouses Case- Danger needs to be imminent, Ok to destroy property to protect life 3. IF the action taken is reasonable. Surocco-Right to destroy property to prevent spread of fire is the highest law of necessity. The private rights of the individual yield to the considerations of general convenience and the interests of society. Plaintiffs cannot recover for the value of the goods (mayor destroyed house to prevent spread of fire) NEC MUST BE REAL, NOT A REASONABLE MISTAKE Struve- Public necessity doctrine does not exist if there is no need of the destruction (i.e. they're wrong about the danger. The person who commits the act is responsible for damages ALLOWED TO MAKE MISTAKE IF THERE IS A DANGER NOT ALLOWED TO IF THERE WAS NEVER DANGER One is privileged to enter land in the possession of another if it is, or if the actor reasonable believes it to be, necessary for the purpose of averting an imminent public disaster (Rst 196). One is privilege to commit an act which would otherwise be a trespass to a chattel or a conversion if the act is or is reasonably believed to be necessary for the purpose of avoiding public disasters. (Rst 262) Public Necessity with Police Weigner- - In situations where a third party's property is taken, damaged, or destroyed by the police in the course of apprehending a suspect, it is for the municipality to compensate the innocent party for the resulting damages.  Customer Company- City is not liable because the attempt to smoke out a suspect is within the exercise of a state's police power DISCIPLINE The common law provides certain D with a Limited privilege to impose discipline in various circumstances; this privilege permits parents and teachers, as well as some others, to use reasonable force to maintain order. Forbes- discipline at sea- discipline ok for cook for life and death situations Lander- A teacher can discipline a student for their conduct they do outside and inside of school. Corporal punishment is allowed but D must exercise reasonable judgment and discretion in determining when to punish and to what extent. Hogensen- force can be used if the coach is trying to enforce compliance with command or punish the child for breaking the rules; their conduct must be reasonable and not disproportion to the activity or the offense NEGLIGENCE Based on idea of Breach- Can only be liable if you do something wrong When P sues for negligence, first question is did D owe P a duty. Second- did D breach that duty by failing to use reasonable care- did they take reasonable precautions against harm. Defined: A person acts with negligence if the person does not exercise reasonable care under all circumstances. Primary factors to consider in ascertaining whether the person's conduct lacks reasonable care are the foreseeable likelihood that it will result in harm, the foreseeable severity of the harm that may ensue, and the burden of precautions to eliminate or reduce the risk of harm. (Rst 3) Contributory Negligence- plaintiffs whose own carelessness contributed to their injuries could collect nothing from a defendant. Not bared from recovery if couldn't avoid accident even though used due care. The plaintiff might not recover damages. Common law- acts as complete bar to recovery. Comparative Negligence- reduces recovery by negligent plaintiffs in proportion to their fault but did not prevent them from recovering altogether (majority) Friedman v State- Girl jumps off ski lift bc religion- Moral Compulsion does not change Reasonable person standard Standard of Care- Unless the actor is a child, the standard of conduct to which he must conform and avoid being negligent is that of a reasonable man under the circumstance Reasonableness (reasonable person)- Very loose and ambiguous, JURY decides RST283- Conduct of Reasonable man, standard- Unless actor is a child, the standard of conduct to which he must conform to avoid being negligent is that of a + Mental Ability- Allowances are not made for mental capacity (unless child), except specific circumstances. MENTAL DEFECT NOT A DEFENSE- they are still required to act reasonably to standard of reasonable man Why- Public policy- relatives of insane need to restrain them (Poltamier). Tortfeasors may not stimulate or pretend insanity as defense to wrongful act Williams v Hays- (MENTAL ABILITY) Boat capt fighting tempest- after 3 days becomes mentally physically incompetent- Lunacy is no defense, unless due solely in efforts to perform duty- no breach Vaugh v Menlove- (MENTAL ABILITY) lacking higher intelligence does not negate standard of care- haystack in a chimney, stupidity no defense Lynch v Rosenthal- (MENTAL ABILITY) When dealing with mental deficient individual, one must exercise proper reasonable care- retard getting caught in corn picker- D did not warn of harm (CON NEG) Superior Physical Abilities- RST 298- - The actor must utilize with reasonable attention and caution not only those qualities and facilities which as a reasonable man he is required to have, but also those superior qualities and facilities which he himself has. If you can avoid danger by using your superior quality then you must. i.e superior vision or strength. Or a doctor not recognizing a disease in which they should Physical Infirmities-Requires P to exercise care for own safety, which a RP would under circumstances. Reasonable efforts must be made to compensate for affliction Kerr v Connecticut- Deafness- CON NEG, He never took precautions, so it is his fault Davis v Feinstein- Blindness, Took all necessary precaution by using cane, falling into hole was not his fault Roberts v Reign- old person with bad eye sight hit kid- held to reasonable standard of care, child not Rule of 7s 7 and under- incapable of negligence Dunn v Teti- Not Liable Holding: 7 yr old not negligent swing sticks at another 7 yr old. What would a reasonable 7 yr old under ordinary circumstances. Not old enough to be liable for their actions. 7-14- presumed incapable but weakened by circumstance- engage in activity that is (a) dangerous to other and (b) normally engaged in only by adults 14 above- reasonable standard of like age and intelligence and experience Element: (1) Duty (2) Breach (3) Causation (4) Harm STANDARD OF CARE If a duty exists, SOC must be determined, generally as a matter of law with a few exceptions. SOC is to act as a reasonable person would in the same or similar circumstances. Fredericks v Castora- Truck driver hit regular driver- cannot hold them to higher standard- One degree of care UNLESS: 1. Jury Instructions: The judge modifies it. a. The defendant may be entitled to “excuse” instruction; see II(3)(c)(i)-(iii). b. Other times the standard is not modified but the evidence which may be admitted on breach to satisfy the standard is broadened. i. Ex: Superior Knowledge 2. Sports Personal Injury: The standard of care, in a growing number of jurisdictions, is changed to be that “personal injury cases arising out of an athletic even must be predicated on reckless disregard of safety.”18 a. Under “Assumption of Risk” 3. Negligence Per Se: It is provided by statute or regulation. a. The standard of care is set by a statute. i. The judge determines whether Negligence Per Se is applicable. b. Is plaintiff entitled to a negligence per se instruction? (The judge decides all of the following issues.) i. Does the statute fail to provide for a private, civil cause of action? ii. Does the statute set forth a specific and particular standard of conduct? iii. Is the statute designed to protect against the type of harm that occurred?  iv. Is the statute designed to protect a class of persons of which the victim belongs? c. Is the defendant entitled to an excuse instruction? i. Judge decides which excuses, if any, are legally recognized jurisdictionally. ii. The jury decides whether the statute violation is excused, unless there is no triable issue of fact. iii. The Restatement (Third) of Torts: Liability for Physical Harm 1. § 14: Statutory Violations as Negligence Per Se a. An actor is negligent if, without excuse, the actor violates a statute that is designed to protect against the type of accident the actor’s conduct causes, and if the accident victim is within the class of persons the statute is designed to protect. 2. § 15: Excused Violations a. An actor’s violation of a statute is excused and not negligence IF: i. The violation is reasonable in the light of the actor’s childhood, physical disability, or physical incapacitation. ii. The actor exercises reasonable care in attempting to comply with the statute; iii. The actor neither knows nor should know of the factual circumstances that render the statute applicable; iv. The actor’s violation of the statute is due to the confusing way in which the requirements of the statute are presented to the public; OR v. The actor’s compliance with the statute would involve a greater risk of physical harm to the actor or to others than noncompliance would. 4. Med Mal: Medical customs set the standard of care and is established by expert witnesses. A physician must exercise that degree of care, skill, and proficiency exercised by reasonably careful, skillful, and prudent practitioners in the same class to which they belong, acting under the same or similar circumstances.19 a. Turns into a factual question for the jury. b. Instances of common knowledge may not require expert witnesses. i.This includes Medical Res Ipsa. c. Physicians i. Expert Witness Locality Rules 1. Strict Locality: Courts don’t use anymore but that was when the expert witness needed to be from the same locality as the defendant. 2. Modified Locality: Expert witness most come from similar markets. Measures physician's conduct by the standards of other doctors in the area or similar localities. Gambill v Stroud- A person engaged in a similar practice in similar localities, giving consideration to geographical location, size and character of the community. The similarity of the communities should depend not on population or area in a medical malpractice case, but rather upon their similarity from the standpoint of medical facilities, practices and advantages. Johnon v Willis- Locality rule is appropriate in a case in which the adequacy of a hospital's facilities or services is questioned. 3. National Medical Standard: Expert witness can be from anywhere in the U.S. to give what the national standard is. Did the physician exercise the degree of  care and skill of average qualified practitioner- matching those of a reasonably doctor under similar circumstances Question 4 on MC a. Multiple expert witnesses are possible i. Jury decides which standard to use when this happens. 1. They can permit more than one medical standard from different witnesses. ii. IF the physician can’t do what the industry standard is, their standard of care becomes referring patients to another physician, expert, or facility that can. iii. The expert MUST practice in the same area of medicine. 1. Not constrained by title of MD. a. Ex: Neuro and Orthopedic surgeons both perform spinal surgery. 2. IF the defendant presented themselves as an MD, they receive the standards as outlined above. Brune v Belinkoff- proper standard is whether the physician, if a general practioner, has exercised the degree of care and skill of the average qualified practioner, taking into account the advances in the profession d. Nonmedical practitioners i. Standard is established by the school of belief that they profess, not medical standards. e. Nurses i.are held to the standard of nurses in a similar practice. f. Hospitals i. Owe a duty of reasonable care under national standards fixed by the Joint Commission on Accreditation of Hospitals. g. Specialists20 i. Specialists are held to the standard of their specialties. 1. Most courts disregard locality rules for specialists. 5. Landowners/Possessors (but not lessors): Duties owed to persons on land a. Common Law “Status” Approach i. Trespassers 1. Undiscovered trespassers: Reduced standard of care. 2. Discovered/frequent trespassers: Reasonable standard of care. a. Discovered: Defendant (1) knows or from facts within their knowledge should have known (has reasons to know) that plaintiff was on the property AND (2) knows or from facts within their knowledge should have known (has reasons to know) that plaintiff was at risk of harm. b. Frequent: Defendant (1) knows that an area of their land is frequently used by trespassers and (2) knows that a trespasser could encounter a risk of harm there. 3. Child trespassers: Reasonable standard of care IF attractive nuisance. ii. Licensees- social guests- Duty is actual knowledge RST 330- Licensee is a person who is privileged to enter or remain on land only by virtue of the possessors intent RST 341 Activities dangerous to licensees- A possessor of land is subject to liability to his licensees for physical harm caused to them by his failure to carry on his activities with reasonable care for their safety IF, BUT ONLY IF, (a) he should expect that they will not discover or realize the danger, AND (b) they do not know or have reason to know of the possessors activities and risks involved. RST 341 Dangerous Conditions known to Possessor- Possessor of land is subject to liability for physical harm caused to his licensees by a condition on the land IF,BUT ONLY IF, (a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees and should expect that they will not discover or realize the danger, AND (b) he fails to exercise reasonable care to make the condition safe or to warn licensees of condition and risk, AND (c) the licensees do not know or have reason to know of condition and risk Davies v McDowell- No duty if no knowledge of hazardous conditions. Lordi v Spiotta- If A does not know that the road poses danger but could have discovered it, A is not liable to B. so not knowing but having the ability to know does not make one liable. 1. Undiscovered licensees: Reduced standard of care. 2. Discovered/frequent licensees: Reasonable standard of care. a. Discovered: Defendant (1) knows or from facts within their knowledge should have known (has reasons to know) that plaintiff was on the property AND (2) knows or from facts within their knowledge should have known (has reasons to know) that plaintiff was at risk of harm. b. Frequent: Defendant (1) knows that an area of their land is frequently used by licensees and (2) knows that a licensee could encounter a risk of harm there. 3. Child licensees: Reasonable standard of care IF attractive nuisance. iii. Invitees- business visitors- Duty is should have known (if you acted reasonably you would know something is amiss) business guest or public guest. Because the owner benefits from them being there - think sales. → need constructive knowledge. Duty to use reasonable care in maintaining the premises and in their activities. RST 332- (1) an invitee is either a public invitee or a business visitor (2) a public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public (3) a business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land. Comment- if invitee goes outside, becomes trespasser or licensee depending on if he goes with or without consent of possessor. Boca Raton- The deceased was a volunteer but cannot be considered a trespasser because he had implied permission. A licensee takes the premises as he finds them and the duty of the owner of the premises is to refrain from wanton negligence or willful misconduct that would injure the licensee and there must be knowledge of danger. Jacobsma v Goldbergs Fashion Forum- If P's activity was outside the normal business invitation but his purpose was to benefit D, the purpose is sufficient to sustain invitee status 1. Reasonable standard of care.  b. Rejecting the Status Approach and Using Reasonable Standard of Care i. For all persons, regardless of entrant status; or ii. For all persons, regardless of entrant status EXCEPT trespassers. ROWLAND- must act reasonably, no matter what category they fall in- A landmark case that abolished the distinction between trespassers, licensees, and invitees in tort law. The court applied common law negligence to determine the liability of a landowner to a ONLY IN CALI- SO LOOK FOR FACT PATTERN 6. Common Carriers a. Standard of care becomes heightened standard. 7. Host Drivers a. Reduced b. Statutory 8. Children a. Age, maturity and intelligence (rule of 7) Reasonable like age Purtle v Shelton- For 17 yr old shooting a 16 yr old while hunting. For a minor to be held to Adult standard of care must be involved in an activity (a) dangerous to others and (b) normally engaged in only by adults. This rule not used because kids go hunting all of the time.) Different state of mind than intentional torts- involves accidents. (1) Duty RST 321 Duty to act when prior conduct is found to be dangerous- (1) if the actor does an act, and subsequently realizes or should realize that it has created an unreasonable risk of causing physical harm to another, he is under a duty to exercise reasonable care to prevent the risk from taking effect. (2) The rule in subsection (1) applies even though at the time of the act the actor has not reason to believe that it will involve such a risk. Difference between 321 and 322- 321 you realize you did something that created risk of harm, but hasn’t happened yet. 322, the harm has happened and you need to mitigate. These are exceptions to 314 RST 322 Duty to aid another harmed by actors conduct- If the actor knows or has reason to know that by his conduct, whether tortious or innocent, he has caused such bodily harm to another as to make him helpless and in danger of further harm, the actor is under a duty to exercise reasonable care to prevent such further harm. RST 323 undertaking Negligent Performance of Undertaking to Render Services- One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person or thing, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if (a) his failure to exercise such care increases the risk of such harm, or (b) the harm is suffered because of the other's reliance upon the undertaking. RST 324- One who, being under no duty to do so, takes charge of another who is helpless adequately to aid or protect himself is subject to liability to the other for any bodily harm caused to him by (a) the failure of the actor to exercise reasonable care to secure the safety of the other while within the actor's charge, or (b) the actor's discontinuing his aid or protection, if by so doing he leaves the other in a worse position than when the actor took charge of him. RST 315- There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless (a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct, or (b) a special relationship exists between the actor and the other which gives to the other a right to protection. RST 314- The fact that the actor realizes or should realize that action on his part is necessary for anothers aid or protection does not of itself impose upon the actor a duty to take such action. Does a Duty Exist? Yes unless no duty rule applies Defendant owes a DUTY of care to P- most of the time you owe a duty to others- Standard of Care is reasonableness 1. Lessors (Duties owed to tenants and their guests, i.e. licensees and invitees) a. Traditional Rule and its Exceptions: i. Lessors owe NO DUTY to their own tenants and the tenant’s guests (i.e. licensees and invitees) 1. Landowners owe no duty to trespassers. a. The lessor might as the possessor. ii. Exceptions which impose a duty to act with reasonable care: 1. If the landlord has contracted to repair defects, and landlord learns about the defect; 2. If the landlord knows or has reason to know that a defect exists at the time the tenant takes possession, and the lessee does not know or have reason to know of the defect; 3. If the premises are specifically leased for public use; 4. If the premises are retained in the landlord’s control; a. Ex: Hallways in apartment buildings. Exterior of apartment buildings included in scope of landlord’s control. 5. If the landlord repairs something on the premises. a. Whether or not they have a contractual obligation. b. Discarding the traditional rule and its exceptions: i. Lessor owes a duty to its tenant and the tenant’s guests [i.e. licensees and invitees] to act with reasonable care. 2. Nonfeasance: The No-Duty-to-Act Rule a. Traditional Rule and its Exceptions i. No duty to act in cases involving nonfeasance. Courts have incorrectly included misfeasance into this rule ii. Exceptions or qualifications which impose a duty to act with reasonable care: 1. Defendant knows or has reason to know their conduct, whether innocent or tortious, has already caused some harm to the plaintiff. 2. Defendant does an act, whether tortiously or innocently, which they subsequently realize or has reason to realize creates an unreasonable risk of harm to plaintiff. 3. Statute imposes the duty: Good Samaritan Statutes 4. Assuming the Duty: Defendant takes charge of assisting or caring for plaintiff; a. Negates: i. No duty to rescue 5. Defendant and plaintiff are in a special relationship. Relationships; a. A common carrier and its passengers; b. An innkeeper and its guests; c. A business or possessor of land that holds its land open to the public with those lawfully on the land;  d. An employer with its employees, who while at work are either in imminent danger or are injured or ill and thereby rendered helpless; e. A school with its students; f. A landlord with its tenants; g. A custodian with those in custody, IF the custodian has superior ability to protect the plaintiff.. 6. Defendant has made certain promises; contractual obligations. 3. No Duty to Protect from Third Persons a. Basic Rule: Defendant owes no duty to protect plaintiff from third persons regardless of whether the defendants conduct constitutes nonfeasance or misfeasance. i. Often nonfeasance but can be misfeasance. 1. Debate in legal community on whether this is a no duty rule under nonfeasance or its own standalone rule. b. Exceptions: i. Statutorily imposed duty ii. Undertakings to do so; promises iii. Special relationships; 1. Between defendant and plaintiff: a. A common carrier and its passengers; b. An innkeeper and its guests; c. A business or possessor of land that holds its land open to the public with those lawfully on the land; d. An employer with its employees, who while at work are either in imminent danger or are injured or ill and thereby rendered helpless; e. A school with its students; f. A landlord with its tenants; g. A custodian with those in custody, IF the custodian has superior ability to protect the plaintiff. 2. Between defendant and third person: a. Employer-employee with facilitation; i. Position has to have some play in the tortious act. ii. Can bring both negligence and respondeat superior. b. Custodian-ward; i. Exception to the exception:state/probation officer. c. Parent-dependent, minor child; i. Specific dangerous habit not necessary element for exam. d. Therapist-patient; i. There has to be an identifiable victim. Tarasoff- Therapist owed duty to warn the victim of a crazy guy who repeatedly told the therapist he was specifically going to kill the victim iv. Negligent entrustment of chattel 1. Such as a weapon or keys to a drunk person. v. Commercial vendors of alcohol for on premises consumption. 4. No Duty to Rescue a. The Rescue Doctrine17  i. One who sees a person in imminent danger caused by the negligence of another cannot be charged with contributory negligence UNLESS 1. The rescuer assumed the duty, AND 2. Acted recklessly. Misfeasance. ii. After comparative negligence, courts will sometimes leave the allocation of fault between the defendant and rescuer plaintiff to the jury. 5. Prenatal Duties and No Duty Rules a. Child born alive with a prenatal injury: i. Mother: Likely owes a duty, split. ii. Third party defendant: Duty owed unless other no duty rule. b. Child stillborn from prenatal injury: i. Mother: Likely no duty owed. ii. Third party defendant: Duty owed if viable at the time of injury unless other no duty applies. c. Pregnant mother’s personal injury i. Third party defendant: Duty owed unless other no duty applies. d. Child’s prenatal injury due to mother’s preconception injury: i. Third party defendant: Duty owed unless other no duty applies. 6. Pharmacists a. Owe no duty to: i. Warn of side effects, ii. If the physician prescribed too high a dosage, OR iii. That a drug is counter indicated, even though the patient may be seriously injured if the prescription is filled. Duty Arising from Affirmative Acts (a) an actor ordinarily has a duty to exercise reasonable care when the actor's conduct creates a risk of physical harm (b) in exceptional cases, when an articulated countervailing principle or policy warrants denying or limiting liability in a particular class of cases, a court may decide that the defendant has no duty to that the ordinary duty of reasonable care requires modification. Rst 7 A D ordinarily cannot be held liable for simply doing nothing, even if the failure to act causes harm(nonfeasance) a. Yania v Bigan- RST 314- Being a reasonable and full possession of mental facilities, the words or urgings of another party are not enough to make negligent. Also, when that party was not legally responsible for the negligent act, they have no legal obligation to help (moral obligation yes but this isn’t enough) b. Weirum v RKO- If one's affirmative act creates an undue risk of harm, he is liable for any actions taken by third parties resulting from that risk of harm. c. Globe Malleable- NONFEASANCE Train conductor sees fire coming from a factory BUT doesn't stop to let hose cart clear the intersection; Factory extensively damaged by the fire. the railroad had a DUTY to the public to manage its trains in such a way so as NOT to INCREASE A PUBLIC HAZARD 314,315 don’t apply d. Soldano- While there is no duty to come to the aid of another, liability can be imposed for negligent interference with a third person who the actor knows is attempting to render aid. e. Strangle- - No duty if threat not imminent; no general duty to act Not Liable Established companies with private phones owe no duty to the public  Duty Undertaking- Traditional RST 324- one who undertakes to act may not discontinue assistance if he has, in some way, put the plaintiff in a worse position If you start but stop but don’t leave in worse position- you ok If you start and stop but don’t leave in worse position, but your starting causes others not to help- that’s a problem Modern RST 323- once defendant has voluntarily chosen to act, he must act reasonably- Must act reasonably, so if you start picking someone up after water, stop, not reasonable Ocotillo- RST 324, 323 If P relies on D then D has undertaken a duty to P (Ocotillo; Golf Club; drunk driver-friend gave keys back) D assumed duty to use reasonable care when he took keys and interfered with golf club's efforts, putting P in a worse position) Cuppy- rst 315 No duty to control a 3rd person to prevent him from causing physical harm to another Not Liable Facts: Bunch was following White but swerving around. White served and hit P. P sued White and Bunch. Rule: D just said follow me so no undertaking, no affirmative act of giving the keys, no duty to injured third party because drunk would have driven anyway Duty Special Relationships P and D's relationship may cause the D to be held liable if the P is injured. Captain&Crew, Common Carrier, Third Party, Social Host (Argue Both), Landlord & Tenants Limit: Public Duty Doctrine Duties to rescue or assist others It is the duty of every ship-owner and ship operator to use every possible available means to rescue from the sea any and all persons and members of its crew who may be unfortunately washed overboard. Bosnahan- Common carriers have a duty to ensure passengers' safety while on their vessel (luggage hit head of passenger) Boyette- Duty ends once passenger leaves vessel Social Hosts Charles- No duty for social hosts to guests (majority) No liability for accidents arising from sale or gift of alcohol- common law rule, Kelly- social hosts, minority) duty for social hosts to third party- when the guest injuries a third party- some courts impose liability on the hosts. Under statutory law- Dram shop acts forbid sale of alcohol to already intoxicated customers and most impose liability on a negligent seller when customer goes on to injure third party, but does not attach liability to injures sustained solely by customer Argue Both Public Duty Doctrine the rule that a governmental entity cannot be held liable for an individual P's injury resulting from a governmental officer's or employee's breach of duty owned to the general public rather than to the individual P. Riss- : Absent legislation creating such liability, a municipality is not liable in tort for a government service's failure to protect the public from criminal activity Shuster- public has duty to protect those who help prosecute criminals otherwise nobody will help; no real promise but implied. Duties Arising from Occupation of Land- PREMISES LIABILITY Trespassers- The law imposes affirmative obligations on landowners to use care toward those who come into their property. They take the land as it existed. Have to warn about traps though. Duty to warn for frequent or known trespassers (well-known path). Haskins- No duty to unknown trespassers except for intentional harm. Under an obligation to refrain from intentional injury and from wilful wanton and reckless conduct. Herrick- - DUTY TO KNOWN TRESPASSERS Ehret- Duty if activity extends to the general public (Tresspasser) Liable Facts: D laid a pipe under the surface of a street to drain water from houses. D encased part of an existing gas main inside the drain pipe. It leaked. Asphxiated a trespasser in one of the vacant houses. Holding: Injury could have happened to anyone within the zone of danger. P assumed risk that such danger would arise from a condition existing outside in the public street that was heedlessly created by the D or any other person. RST 334 Activities highly dangerous to constant trespassers on limited area- A possessor of land who knows, or from facts within his knowledge should know, that trespassers constantly intrude upon a limited area thereof, is subject to liability for bodily harm there caused to them by his failure to carry on an activity involving a risk of death or serious bodily harm with reasonable care for their safety. Beaten path rule. Key is failure to carry on activity. If you know they are there, act with reasonable care if youre doing something (harris case) same for artificial conditions if landowner knows about it and if the trespasser won't readily discover it (Restatement §337) Artificial conditions highly dangerous to known trespassers- Landowner who knows that people trespass frequently on a limited part of his land has a duty to trespassers if that part of the land has a highly dangerous aspect. This is a failure to warn of a condition on the land that you know about RST 333- Except as stated in 334-339, a possessor of land is not liable to trespassers for physical harm caused by his failure to exercise reasonable care (a) to put the land in a condition reasonably safe for their reception, or (b) to carry on his activities so as not to endanger them Attractive Nuissance- A landowner may be held liable for injuries to children trespassing on the land if the injury is caused by a hazardous object or condition on the land that is likely to attract children, who are unable to appreciate the risk posed by the object or condition. Possessor of land subject to liability for physical harm to children trespassing caused by an artificial condition upon the land if D knows kids will enter, D knows it could cause injury or death, D fails to exercise reasonable care in preventing the children from entering, and children do not know of danger due to age, and passes the hand test (Restatement §339 Elements- A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if a) The place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and b) The condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or death or serious bodily harm to such children, and c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and d) the utility to the possessor of maintaining the condition and then burden of eliminating the danger are slight as compared with the risk to children involved, and e) The possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children. Keffe- Knowledge of the children playing meant the D was alluring the children who cannot control themselves. Therefore, the Railroad is bound to use care to protect them from to danger. Weirs v Jones- No duty to go above and beyond to ensure non-English speaker can tell by sign. (CON NEG) (2) Breach- Did D breach duty to use SOC prescribed Defendant breaches the Duty of care- breaches by failing to exercise reasonable care in fulfilling duty. HAVE TO DO SOMETHING WRONG 1. Defendant must have created an unreasonable risk of harm in light of the applicable standard. a. Typically determined with a BPL analysis. b. Various tools can be used to help the fact finder evaluate whether this is the case. 2. Proving the underlying conduct. a. Generally i. Burden of proof on the plaintiff ii. Standard of proof: preponderance of the evidence. b. Evidence i. Generally ii. Direct evidence: evidence that can be factually proven. iii. Circumstantial evidence: evidence that can be inferred from direct evidence. c. Common knowledge vs. expert testimony 3. Evaluating the Underlying Conduct to Determine if it Constitutes an Unreasonable Risk a. Common knowledge vs. expert testimony b. Defendant’s own rules of conduct c. Industry custom 4. Negligence Per Se: Breach is determined without a BPL analysis. a. Did the defendant violate the duty and standard set by the statute as interpreted by the judge (without a legally recognized excuse)? i. Binary question: Yes or no. ii. The jury decides whether defendant has violated the statute as interpreted, unless there is no triable issue of fact. occurs when an individual violates a law or statute that is meant to protect the public, assuming the violation proximately causes harm to another. The doctrine is applied when the law in question prescribes certain actions in clear terms. The court uses a ‘but-for’ test to ascertain causation; it must be shown that ‘but for’ the defendant’s action, the harm would not have occurred. Additionally, the court examines whether the harm was a foreseeable consequence of the defendant’s conduct. RST 286- Statute as Standard if (1) designed to protect a class of persons which includes the one whose interest is invaded, (2) designed to protect the particular interest that is invaded; (3) designed to protect that interest against the kind of harm that has resulted; (4)designed to protected that interest against the particular hazard from which the harm results Violations of Criminal Statutes Martin v Herzog- Failure to comply with laws designed for public safety constitutes a breach of duty and falls short of societal standards of diligence- driving the buggy without head lights Tedla v Ellman- violating a statute governing conduct does not automatically mean neg per se- when obeying the statute will reasonably cause greater harm- not necessarily negligent to do so- walking down the wrong side of the road because it was the only side lit up by lights before being hit by negligent driver- no CONNEG Tingle v Chicago- Breaking a statute alone is not enough- must have casual link- statute said trains cant run on Sunday, cow broke loose, train hit it- P lost control of cow White v Levarn- Shooting on Sunday during a hunt against statute- liable Selger- Woman falls on poop on sidewalk in front of store- statute says its not allowed to neglect sidewalk- holding that it is a standard of care not for pedestrians, but the municipality Falling asleep at wheel is negligence as matter of law Baltimore v Goodman- P's failure to "stop, look and listen" was negligence as a matter of law Thiesen- Falling asleep at the wheel is negligent as matter of law 5. Med Mal: Breach is determined without a BPL analysis. a. Did the defendant do what the expert witness(es) set as the standard via medical custom? i. Binary question: Yes or no 6. Custom- Custom is the industry standards used. TJ Hopper- even if not customary by standard, look to universal disregard- not keeping radios on barge- Hand: Cost is small and reasonable reliable if kept up; source of great protection. There are precautions so imperative even their universal disregard will not excuse their omission Ellis v Louisville- The test of negligence with respect to instrumentalities, methods etc. is the ordinary usage and custom of mankind. D was permitted to following the custom of not providing masks for employees of similar work. MacDougall v Penn Power-Fuse box in the rain- Lack of usage is not sufficient to bar negligence- ( a prudent person would realize that a fuse box is dangerous and should be placed out of the way Rodi Yachts- Compliance with custom is NO defense to a tort claim Risks and Precautions Law of economics approach in Negligence- what is the incentive to make people choose the safer option The Hand Formula- Probability of the accident (P) gravity of the resulting injury (L) burden of adequate precautions (B) When P x L > B --> the D is liable. B- burden or cost of the untaken precaution that plaintiff claims the D should have taken P- probability of the accident occurring if precaution were not taken L- loss that would result if accident were to occur How we determine what is and is not reasonable- JURY Hand v Reasonability- Car helmet hypo: Yes, it meets hand but is not reasonable- people will not wear it Adams v Bullock- Reasonable care taken- was a lawful exercise of franchise. In applying hand, high B (putting wire underground) with low P (wires were high above ground- one off) Eckert v Long Island- CONTRIB NEG- not contributory when acting in every effort to save person, compatible with reasonable regard for own safety. Can apply Hand to situations- acting with thought that he could save child and self Margharita- Ship didn’t stop to help amputated leg- not negligent because B of D greater than B of P RST3- LIABILITY FOR PHYSICAL AND EMOTIONAL HARM Person acts with Neg if the person does not exercise reasonable care under all circumstances. Primary factors to consider if persons conduct lacks reasonable care are foreseeable likelihood that it will result in harm, foreseeable severity of harm that may ensue, burden of precautions to eliminate or reduce risk of harm Compliance Errors- lapses in case where D fails to take some precaution that everyone agrees is reasonably prudent. Failures to comply with agreed upon SoC. Failures to take repetitive causation i.e driver looking both ways all the time NEGLIGENCE RES IPSA LOQUITUR- The thing speaks for itself Difference between per se and ipsa- per se takes issue away from jury, ipsa gives issue to jury The accident speaks for itself- it does not happen unless someone messed up and acted unreasonably. Allows Plaintiff to avoid pointing specifically to what happened- it is enough to show that this would not happen on its own. The factfinder may infer that the defendant has been negligent when the accident causing plaintiff's physical harm is a type of accident that ordinarily happens as a result of the negligence of a class of actors of which the defendant is the relevant member. Rst 17 LIKELIHOOD OF NEGLIGENCE- Meaning of accident being one that ordinarily would not occur without negligence: (a) If due care had been used, the accident would have been unlikely to occur. (b) the type of accident that occurred becomes much more likely when someone is negligent than it is when due care is used. (c) when accidents of this sort occur, they are, more probably than not, due to negligence RULE FROM YBARRA-188 REBUTTABLE BY DEFENDANT WITH PROOOF BY PREPONDERANCE OF EVIDENCE Elements: A. Accident must be of a kind which ordinarily does not occur in the absence of someone’s negligence a. The facts as we know them, combined with common knowledge or expert testimony, give rise to an inference that it is more likely than not that someone was negligent. i. Bryne v Boadle- Barrel rolls out and hits person on head. No evidence of how it occurred- D responsible to prove they didn’t breach SoC ii. Combustion v Hunsberger- Wedge fell on worker- Wedge fell on worker below as worker above was using it.Holding: It cannot be supposed that such a thing is  probably the result of negligence every time it occurs. At times, it must be expected despite all precautions. Unexpected resistance while working with a wedge can happen causing it to drop. Looking at this from hand formula perspective- the B of maintaining every single tool and piece would be large. Likelihood of it hitting someone would be pretty low. B. It must be caused by an agency of instrumentally within the exclusive control of the Defendant i. Larson v Francis- P hit by chair from hotel- Rule of exclusive control is not limited to the actual phsyical control but applies to the right of control of the instrumentality which causes the injury. chair was not in the exclusive control and management. A hotel does not have exclusive control over furniture, instead guests do 1. Doctrine applies only where cause of injury is shown to be under the exclusive control and management of the defendant and can have no application ii. Connolly v Nicollet- crazy hotel party, not VE day, hotel knew of craziness iii. Braunuer v Peterson- The event must be a kind not ordinarily occurring in the absence of someone's negligence. A cow could readily escape from perfectly adequate confines. Cow escaped on highway, no evidence of negligence. Cow can readily escape perfectly adequate confines iv. Guthrie v Powell- Cow on second floor that fell thru- Event is not ordinarily occurring in the absence of someone's negligence. v. Wilson v Stillwill- Just because it is a rare occurrence, does not make it negligent- hospital case where P became paralyzed due to infection b. be mindful that there can be more than one person who is negligent – e.g., a plaintiff or an additional defendant – and that multiple negligent parties will not necessarily preclude Res Ipsa. c. If a plaintiff’s comparative negligence does not lessen the probability that the defendant was also negligent, then requirement (II) is met as to that defendant. d. The same goes for a case where there are multiple defendants, all of whom allegedly contributed to the plaintiff’s injury. i. If defendant A’s negligence does not lessen the probability that defendant B was also negligent, then requirement (II) is met as to defendant B. ii. Assuming the converse is true – that defendant B’s negligence does not lessen the probability that defendant A was negligent – then requirement (II) will be satisfied as to defendant A. iii. Ultimately, then, it might be satisfied as to both defendants A and B. Multiple defendant parties and cannot determine who caused it: Ybarra- Hospital case were can only recover under Rs ipsa. The number or relationship of the D alone does not determine if res ipsa applies. Every D whose custody the P was placed for any period was bound to exercise ordinary care to see that no unnecessary harm came to him and each would be liable for failure in this regard. P that receives unusual injuries while unconscious and in the course of medical treatment, all those D who had any control over his body or the instrumentalities, which might have caused the injuries, may properly be called upon to meet the inference of negligence by giving an explanation of their conduct.  Wolf v American Tract- Some proof must be given to enable the jury to point out or identify the author of the wrong. It is far better and more consistent with reason and law that the injury should go without redress, than that innocent person should be responsible. NO RELATIONSHIP Bond v Otis Elevator- Relationship between owner of elevator and building For a group to be called in under Res ipsa loquiter they must work together as a team (hospital). A random group in elevator, one steals wallet. You can't bring them all in. Level of integration - higher degree of working together = greater likelihood of res ipsa being applied to whole group C. It must not have been due to any voluntary action or contribution on the part of the Plaintiff When we do not know what happened and cannot know what happened: Judson v Giant Powder Co- Massive explosion due to dynamite. Everyone died. Res Ipsa applies due to doctrine of possibilities- needed better safety that did not violate hand formula Haasman v Pacific Alaska- Crash determined thru probability Walston v Lambertson- Boat sank in sea- Res ipsa does not apply because of nature of sea NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS Main categories- near miss, bystander, fear of disease- there is no physical manifestation of what did happen 5 approaches to NIED- 1. Impact rule(have to be touched in order to have a claim for NIED)xx 2. Zone of danger 3. Physical consequences 4. Foreseeability 5. Preexisting duty RST 46 Neg conduct directly inflicted ED of another- An actor whose negligent conduct causes serious emotional disturbance (weeds out weak claims) to another is subject to liability to the other if the conduct: (a) places the other in immediate danger of bodily harm and the emotional disturbance results from the danger (physical consequences of Robb are gone); or (b) occurs in the course of specified categories of activities, undertakings, or relationships in which negligent conduct is especially likely to cause serious emotional disturbance. (already owe a duty to them) RST 47 Conduct Intended to Invade Other Interests But Causing Emotional Distress (3rd person)- An actor who negligently causes serious bodily injury to a third person is subject to liability for serious emotional disturbance thereby caused to a person who: (a) perceives the event contemporaneously, and (b) is a close family member of the person suffering the bodily injury. Two types of fact patterns generally- near misses ( P is dire