INTENTIONAL TORTS

Battery

I. Definition a. The intentional infliction of a harmful or offensive contact w/ the person of the πb. “unconsented offensive touching”

II. Elements a. ∆ must actb. ∆’s act must be intentionalc. the act must cause a contact with the victim d. the contact must be either harmful or offensive

III. Intent Requirement a. To commit a battery, the ∆ must not only intend the act; he/she must act:

i. for the purpose of inflicting a harmful or offensive contact on the π, ORii. realize that such a contact is substantially certain to result

b. Battery protects against intentional invasions of the π’s physical integrityi. Purpose of the intent requirement is to confine intentional tort liability to cases

in which the ∆ acts with a higher level of culpability than mere carelessnessc. No contact is intentional if it is not the result of a voluntary actd. ∆ intends those contacts that she is substantially certain will occur, as well as those

she desires to see happen e. Transferred Intent

i. Intent standard may be met if the ∆ intends to commit a battery on one person and actually inflicts one on somebody else

ii. Allows recovery where actor attempts one intentional tort but causes another

IV. Harmful or Offensive Contact Requirement a. Bodily harm: “any physical impairment of the condition of another’s body, or

physical pain or illness” (Restatement (Second) of Torts §15)b. A contact is offensive if:

i. If a reasonable person in the circumstances of the victim would find the particular contact offensive

1. Not liable under this for a contact considered socially acceptable2. However, if she makes a contact that the reasonable person would

find offensive, it is not a defense that she did not mean to give offense, or that she did not realize that the victim would be offended

V. Contact Requirement a. ∆ need not actually touch the π at all, or even be present at the time of the contactb. an actor is liable, regardless of whether she uses her fist or a city bus to cause the

contact, if it is intended to cause a harmful or offensive contact to the victim c. Consequences

i. If a battery is committed, the ∆ is liable for all of the π’s injuries, even those that are not foreseeable (“take your π as you find him”)

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Assault

I. Definition a. An actor is subject to liability to another for assault if:

i. He acts intending to cause a harmful offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and

ii. The other is thereby put in such imminent apprehension

II. Elements a. ∆ must act with intentb. to place the victim in apprehension of a harmful or offensive contact or to mke

such a contact, andc. the victim must reasonably be placed in apprehension of such a contact

III. Intent Requirement (expanded) a. ∆ must act:

i. with the purpose to cause apprehension of a contact, ORii. substantial certainty that the apprehension will result

b. ∆ cannot avoid liability by claiming that he did not mean to place the π in fear of an unwanted touching if he knew to a substantial certainty that fear of a touching would result (same as in for battery)

c. a ∆ who attempts to batter the π but misses is liable for assault if the π is placed in apprehension of a blow

d. π must prove that she feared the type of contact tht would support a battery claim if it actually occurred

i. thus the analysis of the meaning of harmful or offensive for battery is also necessary for assault

IV. Apprehension Requirement (expanded) a. Means the perception or anticipation of a blow, rather than “fright”

i. Assault protects not only against the fear of an unwelcome contact, but also against the mere expectation or anticipation of one

b. The apprehended contact must be imminenti. ∆’s act must cause the victim to expect that he is about ot be touched

ii. does not mean immediateiii. rather, it means that there will be no significant delay

1. not necessary that one shall be within striking distance or that a weapon pointed at the other shall be in condition for instant discharge

a. it is enough that one is so close to striking distance that he can reach the other almost at once, or that he can make the weapon ready for discharge in a very short interval of time

iv. fear of future conduct will not support liability for assault1. especially because they leave the π time to take other steps to prevent

the harm c. ability to actually cause the threatened contact is not required

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i. only turns on whether the ∆’s act would place a reasonable person in apprehension of an unwanted contact

ii. if he uses a toy gun and the π does not know that it is a toy gun, this could still place a reasonable person in apprehension of an unwanted contact

d. The “Mere Words” Problemi. Many courts have held that mere words alone cannot constitute an assault,

because they do not sufficiently show the ∆’s purpose to immediately batter the victim

ii. Restatement (Second) of Torts §31 provides a more flexible approach1. Words do not make the actor liable for assault unless together with

other acts or circumstances they put the other in reasonable apprehension of an imminent harmful or offensive contact with his person

e. Conditional Threatsi. Some factors undermine the imminence element of the assault either by

showing that the ∆ does not intend to carry out the assault 1. “If you hadn’t fouled out, I’d bet you to a pulp” 2. “If you were not an old man, I would knock you senseless”

ii. Some threats, however, will constitute assault even though they are conditional

1. Example: “If you don’t get off this track, I’ll break your nose”2. Still constitutes assault because we do not want bullies to be able to

impose their will on others by the threat of force and not incur liability

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False Imprisonment

I. Definition/Elements a. An actor is subject to liability to another for false imprisonment if:

i. He acts intending to confine the other or a third person within boundaries fixed by the actor, and

ii. His act directly or indirectly results in such a confinement of the other, andiii. The other is conscious of the confinement or is harmed by it

II. Intent Requirement (expanded) a. ∆ must have acted with the purpose to cause the confinement, or with substantial

certainty that his acts will cause it i. same as other intentional torts

b. one may act deliberately but not intentionallyi. example: zookeeper shutting the door to a tiger’s cage not realizing that

someone is still in there 1. (any remedy would be for negligence, not intentional tort)

III. Confinement Requirement (expanded) a. Confinement must be within some “bounded area”b. Not all restraints on a π’s freedom constitute confinement

i. Preventing the π from going to one particular place does not “confine” her, even though it restricts her freedom of movement in some degree

1. (such s a shopkeeper blocking the door to her shop, not letting the person in)

ii. Similarly, blocking the π’s way in the street will not support recovery for false imprisonment, as long as π can go some other way

IV. Consent by Coercion a. Restraint may be by means of physical barriers, or by threats of force which

intimidate the π into compliance with ordersi. Sufficient that he submits to an apprehension of force reasonably to be

understood from the conduct of the ∆, although no force is used or even expressly threatened

b. Similarly, an actor can confine the π by confiscating significant items of personal property, or by other threats that would cause a reasonable person to submit to confinement

c. These cases all raise questions of fact for the jury, as to whether the π stayed because she reasonably apprehended physical force or loss of valuable property, or stayed for other reasons (such as to avoid dismissal from employment, etc)

d. π need not show any physical injury or other damage in order to recover for false imprisonmenti. π may recover at least nominal damages by proving the fact of the false

imprisonment itselfii. HOWEVER, most πs hope for an award of substantial damages; in which case

she may need to prove psychological damage as a result of the confinement/etc

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Intentional Infliction of Emotional Distress

I. Elements

a. To recover in action for Intentional Infliction of Emotional Distress, π must show: i. conduct that is intentional or reckless;

ii. conduct that is also extreme and outrageous;iii. causal connection between the wrongful conduct & the emotional distress; and iv. that the emotional distress is severe.

b. When extreme and outrageous conduct is directed at a third person, the actor is subject to liability if he intentionally or recklessly causes severe emotional distress:

i. to a member of such person’s immediate family who is present at the time, whether or not such distress results in bodily harm; or

ii. to any other person who is present at the time, if such distress results in bodily harm.

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Trespass to Land

I. Definition a. One is subject to liability to another for trespass, irrespective of whether he thereby

causes harm to any legally protected interest of the other, if he intentionally: i. Enters the land in the possession of the other, or causes a thing or a third

person to do so, orii. Remains on the land, or

iii. Fails to remove from the land a thing which he is under a duty to remove

II. Elements

a. Intentional

b. Entry

c. On the land of another

III. Notes on Trespass to Land

a. Intent: as with other intentional torts, the actor must act with a purpose to cause the intrusion on land, or with substantial certainty that he/she will cause it

i. Transferred intent: if ∆ gets mad at another person and hurls a rock at him but misses and it rolls onto π’s land, he intended to cause a battery but is liable for trespass under transferred intent

ii. Mistake: ∆ is liable for entry on property of another, even if she believes that she is on her own property or some other property, where she is entitled to be

1. She intended to walk where she walked and her intentional walking caused an intrusion on the inviolable grounds of her neighbor

b. Damage to property is not an element of trespass to landi. Allows a court to award at least nominal damages for the intrustion, in order

to vindicate an owner’s right to sole possession of her property1. Historically, the tort of trespass to land was probably often used for this

purpose, to prevent trespassers from acquiring easements or adverse possession rights (by staying there for long enough)

c. Consent: consent to ∆’s entry onto the property will defeat a claim for trespassi. most common defense to actions for trespass to land

ii. Consent, however, does not mean that the ∆ may use the property at will1. Consent to entry on one occasion or for one purpose, does not

constitute a general consent to entry2. Consent may also be limited in time, or to certain areas of the property

d. Land extends beneath the surface and at least a reasonable height above ground

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Trespass to Chattel

I. Definition/Elements a. The ways in which an actor can commit trespass to chattels; by intentionally:

i. Dispossessing another of the chattel, orii. Using or intermeddling with a chattel in the possession of another

b. When one commits a trespass to chattel, he/she is subject to liability to the possessor of the chattel, if but only if ,

i. He dispossesses the other of the chattel, orii. The chattel is impaired as to its condition, quality, or value, or

iii. The possessor is deprived of the use of the chattel for a substantial time, oriv. Bodily harm is caused to the possessor, or harm is caused to some person or

thing in which the possessor has a legally protected interest

II. Notes on Trespass to Chattel

a. Harm: unlike trespass to land, which is actionable without any resulting harm, liability for trespass to chattels is limited to those which cause resulting harm

b. Intent: as with other intentional torts, the actor must act for the purpose of causing the trespass or with substantial certainty that the trespass will result

i. Negligent interference with personal property will not support recovery for trespass to chattels

c. One who totally deprives a possessor of a chattel is liable for trespass to chattels, but usually total deprivation is treated as conversion – these two remedies overlap

d. “Possessor”: the definition provides that one who damages or takes a chattel is liable to an “immediate possessor”

i. but it also provides that a tortfeasor is also liable to a “person entitled to future possession”

ii. lawn mower example: A borrows B’s lawnmower, C smashes it with a sledge hammer

1. C is liable to A as an “immediate possessor” but is also liable to B as a “person entitled to future possession”

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Defenses to Intentional Torts

I. Insanity a. Insanity is not a defense so long as the ∆ was capable of entertaining the intent b. Will not inquire into her mental state, only care whether she intended to do the act

c. policy reasons: if insane people can be held liable for their actions, those in charge of them will be more likely to safeguard them from doing harm to others; the one who does the harm should pay (doesn’t necessarily say she is at fault, but someone still must suffer the loss so it is more just to make the person who caused the harm responsible for this)

d. If there is no more than can be done to control the individual, liability will not be imposed (Anicent v. Gant)

II. Consent a. With doctors:

i. Some cases: consent was general in nature and the surgeon may extend the operation to remedy any abnormal or diseased condition in the are of the original incision whenever he, in the exercise of his sound professional judgment determines that correct surgical procedure dictates and requires such extension of the operation originally contemplated

ii. Others: Court said that a patient has a full and complete right to their body and general consent would be too broad

b. CANNOT consent to illegal things (illegal boxing matches)c. Consent can be limited in scope

III. Necessity a. Will justify entries upon land and interferences with personal property that would

otherwise be considered trespass; BUT not if you need it too (Ploof v. Putnam)b. Individual rights of property give way to the higher laws of impending

necessity/yield to interests of societyc. Restatement (Second) of Torts §196: privileged to enter land in the possession of

another if it is, or the actor reasonably believes it to be, necessary for the purpose of averting an imminent public disasteri. but in some cases, if society received the benefit it should have to pay

IV. Self-Defense and Defense of Property a. If one believes his life is in danger he is justified in using self-defense, even

against an innocent victim, if he reasonably believes that the victim posed an immediate danger to him

b. The value of human life/limb, not only to the individual concerned but also to society, so outweighs the interest of a possessor of land in keeping trespassers off; has no privilege to use force intended or likely to cause death or serious bodily harm against another person whom the possessor sees is about to enter his premises unless the intrusion threatens death or serious bodily harm to the occupiers/users

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NEGLIGENCE

In General

I. Elements

a. Duty of reasonable care

b. Breach of that duty

c. Causation

d. Resulting damages

II. The Reasonable Person (“negligent” meaning a breach of duty; element 2)

a. Basic premise of negligence law is that we generally owe our fellow citizens a duty to exercise reasonable care in the conduct of our own affairs

i. This does not require that we avoid all injury to others, but only that we avoid injuring others by carelessness

b. Duty is breached (element #2) by failing to exercise reasonable care:i. Negligence: omission to do something which a reasonable man, guided upon

those considerations which ordinarily regulate the conduct of human affairs, would do, or something which a prudent and reasonable man would not do

c. Who is the Reasonable Man?i. A fiction who always exercises proper self-restraint and weighs appropriately

not only his own interests but those of others as well in regulating his affairs

ii. In deciding whether a course of conduct is appropriate, he considers: 1. The foreseeable risks of injury that the conduct will impose on others2. The extent of the risks imposed by the conduct3. The likelihood of a risk actually causing harm 4. Whether alternatives to her proposed conduct would achieve the same

purpose with lesser risk

d. Hand Forumla

i. An actor’s duty is a function of three variables

1. The probability that the harm will occur (P)

2. The gravity of the resulting injury if it does occur (L)

3. The burden of adequate precautions (B)

ii. B < PL = liability ? iii. Highlights the basic factors that the reasonable person considers in making

choices about risk-creating conduct that reasonable people do consider

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e. The Relevance of Personal “Circumstances” i. Some individual characteristics of the actor are considered part of the

“circumstances” in determining reasonablenessii. Reasonable person standard is a legal judgment, not a moral one

1. Morally we could hardly fault the insane/etc for this conduct2. BUT, for legal purposes, we need a standard that defines “fault” in

some predictable, universal way3. Provides a neutral instrument for deciding disputes, not a value

judgment about a person’s character iii. Allowances are made for physical disabilities, no allowance is made for the

“circumstance” that a person lacks good judgment, is hasty, awkward, etc1. Vaughn v. Menlove

iv. Mentally ill1. The traditional rule is that the mentally ill are held to the same standard

as everyone else despite the “circumstance” of their illness

v. Children1. Generally not held to the adult standard of care, but rather to the

standard of a “reasonable person of like age, intelligence, and experience under like circumstances (clearly does make allowances for their mental ability and development)

2. Rationale: children have to learn to be careful, and ought not to be exposed to tort liability for conduct that is reasonable in light of their stage of development during the learning process

3. EXCEPTION, a good many cases hold that children who engage in certain high-risk activities primarily engaged in by adults, such as driving, to the adult standard of care

f. The Relevance of External “Circumstances”i. External circumstances in which a person acted are always relevant

ii. The reasonableness of the ∆’s decision is always judged in relation to the unique context or “circumstances” in which she made it

1. The so-called “emergency doctrine” means no more than this; that in judging the reasonableness of conduct in an emergency, the “circumstance” that the ∆ must act quickly is relevant

iii. Other circumstances are also relevant

1. Custom: a. It is relevant that the ∆ acted as others customarily do in like

circumstances b. The fact that conduct is generally engaged in by those in a

particular trade or profession at least suggests that such conduct is acceptable

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c. HOWEVER, while relevant, evidence of custom is not dispositive – a custom may continue long after thoughtful analysis would compel its rejection, or a new precaution may be ignored despite its obvious benefit

2. Expert a. Whether the ∆ is an expert in a particular field is relevantb. Does not mean that persons with specialized knowledge are held

to a higher standard of care than othersi. Their standard, like that of others, is reasonable care

under the circumstancesii. BUT, the fact that an actor is a profession or assumes the

role of an expert in an activity is a “circumstance’ that colors the meaning of reasonableness

iii. A professional will be expected to possess and employ the skill and knowledge of his profession, not of the “ordinary reasonable person”

3. Statute (see below – “negligence per se”)

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Violation of Statute as Negligence (“Negligence Per Se”)

III. Overview a. “negligence per se” = negligence in itselfb. While courts cannot elaborate specific negligence rules to define how parties

should behave in all circumstances, legislatures routinely enact statutes establishing standards of care for common situations in private conduct

IV. Policy Arguments a. For violations of statutes being “negligence per se”

i. where the legislature has decreed that certain precautions must be taken, or that certain acts should not be done, a person who violates the statute has ignored the standard of care established by the legislature and reasonable people do not do that

ii. if the jury is permitted to find that the ∆ acted with due care, despite his violation of a statutory standard of care, the jury is being licensed to disregard the command of the legislature

b. Against violations of statutes being “negligence per se”i. in unusual situations, it may be reasonable to disregard the statute

ii. in other cases it may be impossible to obey the law, despite the best will in the world

V. Common Approaches to Borrowing Statutory Standards a. Overview

i. Early cases appear to hold that violation of a statutory standard of care always constitutes negligence per se

ii. However, increased experience with the negligence per se doctrine has led virtually all courts to soften this stance

iii. Most courts have adopted one of the following approaches, allowing the jury to consider the violation of a statutory standard of care in determining negligence but avoiding making it automatically determinative

b. Negligence Per Se with “Excuse”i. An unexcused violation of a relevant statute is negligence per se, but the party

who violated the statute may offer evidence of excuse or justification for violating it

ii. Some acceptable excuses (not an exhaustive list)1. Incapacity2. Lack of knowledge of the need to comply3. Inability to comply4. Emergency5. Compliance poses greater risk than violation

c. “Presumption” of Negligence

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i. Hold that a statutory violation creates a “presumption” that the violator was negligenct

ii. The violator is still free, however, to rebut the presumption by showing that the reasonable person would have acted as he did

iii. Looks a lot like the “negligence per se with ‘excuse’ doctrine” 1. Both allow ∆ to offer evidence of a good reason for her conduct

a. if she does not offer such evidence, the violation of the statute establishes her negligence

b. if she does, the jury is left to assess her conduct under a reasonable person standard, considering both the requirements of the statute and the violator’s reasons for violating it

2. Both keep the burden of proof with the πa. π can prove negligence by proving violation of a relevant safety

statute, if ∆ does not offer evidence of an adequate reason for the violation

b. If evidence of an excuse is offered, the burden remains on the π to convince the jury that, in light of the violation and the reason offered, the ∆ did not behave as a reasonable person would under the circumstances

d. Evidence of Negligencei. Treat violation of a statutory standard of care as evidence of negligence

ii. Evidence that the ∆ violated a statute is admissible at trial1. Jury may consider along with all other evidence that the ∆ did or did

not exercise ordinary care2. May be persuaded that ∆ was negligent but they are not compelled to

find him negligent, even in the absence of rebutting evidence from the ∆a. Free to find that ∆ wasn’t negligent even if he offers no excuse

VI. Requirement of Relevance a. Evidence of the violation of a statutory standard of care is admissible, and can be

conclusive, however- such evidence may not be used to establish breach of the duty of care unless the statute establishes a relevant standard of care

b. Statute is only relevant in establishing negligence if it is meant to protect persons like the π from the type of harm which actually occurred

c. Restatement (Third) of Torts §14i. “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 caused and if the accident victim is within the class of persons the statute is designed to protect”

d. Elementsi. The type of harm caused is the type the statute is designed to protect from

ii. The victim is within the class of persons the statute is designed to protecte. If the ∆ successfully argues that the statute was not aimed at the time of harm the π

suffered or at protecting persons in the π’s situations, violation of the statute will not be given per se effect

i. This does NOT mean that the π must lose the case

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ii. All it means is that she cannot prove the second element of her claim (breach of the standard of care) by proving a violation of the statute

iii. INSTEAD, she must shoulder the usual burden to show negligence under the reasonable person standard

Res Ipsa Loquitur

I. Overview a. “The thing speaks for itself”b. Allows the jury, based on evidence about the accident itself, to infer that it might

have resulted from some negligent act by the ∆i. Fact that it happened at all suggests that someone was probably negligent

c. Originated in Bryne v. Handlei. π hit on the head by a flour barrel which fell from the ∆’s 2nd-story

window ii. no evidence of what caused the flour barrel to fall

iii. allowed to recover under “res ipsa loquitur” because flour barrels don’t just fall out of windows on their own; when they do fall, the most likely reason is the negligence of the person in control of the premises

iv. even though the π cannot offer direct or circumstantial evidence of exactly what caused the barrel to fall, should be allowed to reach the jury on the issue of negligence by proving the circumstances of the accident, b/c they “bespeak negligence” even w/o a more specific showing of chain of events

d. Essentially a special form of circumstantial evidencee. Rationale: facts can sometimes be inferred from other facts

II. Elements π can make a case for the jury under res ipsa loquitur by showing (foundation facts):

a. That he was injured by an accident that would not normally happen without negligence

b. That the negligence is more likely than not attributable to the ∆ rather than to the π or a third party

III. Requirement That it Would Not Normally Happen Without Negligence

a. There are common explanations for such occurrences which do not involve

negligence; BUT many other accidents, by their very nature, do support an inference of negligence

b. This is not to say that negligence is the only conceivable explanation for the accident

c. BUT the π’s burden of proof in a negligence case is not to eliminate all possible alternative causes of his injury

i. his burden is to show that the more probable cause was negligence

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IV. Requirement That the Negligence, If Any, Is Attributable to the Defendant

a. Evidence must point to the ∆ as the negligent partyb. Cases often state that this attribution requirement is not met in a res ipsa loquitur

case unless the instrumentality that caused the harm was “under the ∆’s control” at the time of the accident

i. This formula is clearly too narrow, and most courts have not taken it so literally as to preclude use of res ipsa in appropriate cases

ii. Often say that π may invoke it so long as π can demonstrate that the negligence was likely that of the ∆ rather than himself or other parties

V. Effect of the Plaintiff’s Conduct a. Courts often state that there is a third requirement for the application of res ipsa

loquitur: that the event must not have been due to any voluntary action or contribution on the part of the π

b. Does not mean that a π who is partially at fault in causing an accident can never prove the ∆’s negligence; often circumstances will support an inference that ∆ was negligent, even if the π was too

c. This supposed “third requirement” is really only a corollary of the secondi. Meant to reemphasize that the π must show that the negligence that created

the initial danger is attributable to the ∆ rather than to her1. If it is equally probable that the π’s negligence created the danger

than she has not “brought the negligence home to the ∆”2. BUT, when the circumstances show that the negligence that created

the initial danger was probably the ∆’s, res ipsa should be applicable even if the π was negligent in reacting to the danger

VI. The Effect of the Doctrine at Trial a. Crucial impact of res ipsa is that it allows the π’s case to go to the jury even

though he has not proved a specific act of negligence b. If π establishes the “foundation facts”, the judge will allow case to go to the jury

i. Will then be up to the jury to decide whether the accident was more probably than not the result of the ∆’s negligence

ii. Permits the jury to infer negligence, but it does not require them toc. Res ipsa loquitur does not shift the burden of proof to the ∆, it merely provides

evidence sufficient to support an inference that the ∆ was negligent, but does not compel a finding for the π even where there is no rebuttal evidence

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VII. The Defendant’s Case: Fighting Res Ipsa Loquitur a. Most effective way to rebut res ipsa is to prove the actual cause of the accidentb. Short of that, the ∆ can attack each of the foundation facts necessary to support it

i. May question 2nd foundation fact by showing that other persons mishandled the product that caused the injury after it left his hands

ii. May undermined the 1st foundation fact by showing other, common, non-negligent causes of this type of accident

c. May also try to refute by proving that he generally exercised due care i. Does not conclusively eliminate negligence as the cause, but it could

influence the jury’s thinking about the probabilitiesii. BUT, it can backfire

1. The more careful the ∆’s procedures, the less likely that an accident would happen if they had in fact been followed

2. Could lead them to conclude that, had the procedures been followed, there would not have been an accident at all

d. Often suggest that π should be able to rely on res ipsa because ∆ has better access to evidence of the cause of the accident than the π

i. However, most courts do not restrict the doctrine only to cases in which the ∆ has better access to proof

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Contributory Negligence

I. Overview

a. It compares negligence between the π and the ∆i. Between them, who is more negligent??

b. Must show that but for the π not living up to his duties, the injuries would not have occurred

c. We hold BOTH the ∆ and the π to reasonable person standardi. Same standards, same duties

ii. Π’s alleged contributory negligence must be a cause of the accident (substantial contribution) (see Smithwick v. The Hall & Upson Co.)

iii. Negligence and contributory negligence have the same standard, they just go in the opposite direction (same rules of foreseeability, etc)

d. Contributory negligence is NOT a defense against malicious or illegal actionse. Cannot claim contributory negligence in situations where people are

institutionalized for the very reason that they cannot control their conduct and try to bar their recovery for that behavior (Padula v. State)

f. Π has to show negligence, ∆ has to prove contributory negligenceg. If there is a special relationship (like custodianship) we cannot argue that the one

under supervision is contributorily negligent (Padula; Christensen v. Royal School District No. 160)

II. Property and other rightsa. When it comes to property – you have the right to do what you want with your

land and this shouldn’t be hindered by someone else’s actions unless and until you hurt someone else (Leroy Fibre Co. v. Chicago, Milwaukee & St. Paul Railway Co.)

b. There are some rights that we protect so much (such as property) that we will not let them be encumbered by negligent acts of others and we will not say that you contributed in negligence for your actions

i. But you cannot use your property in a way that would harm 3rd parties (foreseeable)

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Assumption of Risk

VIII. Overviewa. Basic premise: a person who is aware of a risk, and knowingly decides to

encounter it, accepts responsibility for the consequences of that decision, and may not hold a ∆ who created the risk liable for resulting injury

b. Unlike contributory negligence, this is not a wave of the pastc. Early cases applied this to the context of workers on the jobd. Differs from contributory negligence because it requires a showing that the π

actually KNOWS of a danger and chose to proceed

IX. Express Assumption of Riska. Arises when the π expressly agrees that she will not hold the ∆ liable for injury

she suffers from a risk created by the ∆

b. Qualifications

i. It is essential that the consent to accept the risk is freely given1. Emergency voluntary (Tunkl v. Regents of U of Cal)

ii. π must clearly consent to accept the particular risk that led to the injury

1. Thus, an agreement to assume the risk of injuries will not extend to collateral risks beyond their contemplation (those not inherent (can be reduced without affecting it) to the activity) (Moore v. Hartley Motors) unless these are explicitly agreed to

iii. Waivers will not be enforced in certain contexts involving essential services

c. The real basis for rejecting these claims is that the operator was not negligent, the risk was inherent in the activity

X. Implied Assumption of Risk a. A π may also accept risks simply by engaging in activity with knowledge that it

entails certain risks, even if conducted with due care i. In such cases, participants assume the risk of injuries from the inherent

dangers of the activityb. the π considers the trade-off worthwhile and accepts the possibility of injury

because she enjoys the activityc. πs who choose t oengage in unavoidably risky activities assume the inherent

risks of the activity and have no claim for injuries resulting from those risksd. risks not inherent to the activity:

i. dangers created by negligent operation e. secondary implied assumption of risk

1. after becoming aware of the unreasaonble risk created by the ∆, chooses to encounter it and suffers an injury as a result

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2. π has been injured due to the ∆’s negligence but the ∆ argues that the π’s conscious choice to encounter the negligently created risk should bar her recovery

3. common law barred recovery for this even though the π could establish a prima facie case of negligence by the ∆

Comparative Negligence

I. Overviewa. Reduces recovery but does not usually bar it b. Moved from contributory negligence (complete bar to recovery) to comparative

fault and allocating damages accordingly

II. Problemsa. Verdicts where jury doesn’t want to give someone a lot of moneyb. Some courts say “how do you deal with wanton and willful conduct?” c. Not necessarily evident that this is better than contributory negligence but

eliminates the situation in which you are 1% negligent and cannot recover (as such is the case under contributory negligence)

III. “Up to a point” policiesa. In some states (like Wisconsin) your fault must be 50% or belowb. In other states (like North Dakota) your fault must be below 50%c. Why do some states have these?

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CAUSATION

I. Overview a. Fundamental fairness requires that a ∆ be held liable only for injuries he actually

causedb. To assure that liability will only be imposed where the π’s loss is fairly attributed

to the ∆’s conduct, courts have developed two causation requirements:i. Causation in fact

ii. Proximate cause

Cause in Fact

I. Traditional “But For” Test a. The ∆’s conduct is a cause of the event if the event would not have occurred but

for that conducti. conversely, the ∆’s conduct is not a cause of the event if the event would

have occurred without it b. the court asks whether the π would not have suffered the harm “but for” the ∆’s

negligencei. in other words, if we went back and replayed the accident, but take away

the ∆’s negligent act, would π have escaped injury?c. Another way of saying this is that the ∆’s act must be sine qua non of the π’s

injuryi. “without which it is not; an indispensable requisite”

ii. the injury would not have happened without the ∆’s actiii. again invites us to look at what did happen and compare it to what would

have happened if ∆ had not been negligent

II. The Problem of Multiple “But For” Causes

a. Accidents very frequently result from more than one negligent acti. Neither ∆’s negligent act was not enough to cause the accident alone,

each act was a necessary antecedent to the harmii. Each cause contributed to the accident, if we take away the negligence of

either ∆, the accident would not have happened, even assuming the negligence of the other

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iii. In cases such as this, both negligent acts are causes of the injury under the “but for” test

b. It is no defense for one negligent actor that someone else’s negligence also contrubted to the accident

i. There is NO requirement that the ∆’s act be the sole “but for” cause of the injury, only that it be a “but for” cause

III. The Problem of Reconstructing History

a. In many cases it is a complex and speculative exercise to determine if it is a “but for” cause because we can never know for sure what would have happened if history had been different

b. We know the ∆ was negligent but we don’t know whether things would have come out differently if the ∆ had not been negligent

c. ∆ should not be liable in cases where the harm would have taken place regardless of the negligence

i. however, to determine whether the ∆’s negligence affected the outcome, the jury must not only decide what actually happened, but also must speculate about a hypothetical alternative version of events: what would have happened if the ∆ had not been negligent?

IV. Substantial Factor Test as an exception to “but for” test

a. Anderston v. Mineapolis, Saint Paul & Sault Ste. Marie Railway Co. i. 2 fires merged into one and burned the π’s property

ii. only one of the fires was due to the ∆’s negligenceiii. it was impossible to say that but for the ∆’s negligence, the π’s barn

would still stand because the other fire would have likely caused the damage anyway

iv. so the court applied a different, less stringent, test of causation1. ∆ would be a cause in fact of the damage if the jury found that its

act was a “material or substantial element” in producing it 2. ∆ was held liable even though the property would probably have

been burned by the other fire anywayb. this is only used in unusual cases

V. Shifting the Burden of Proof

a. Summers v. Tice illustrates a situation in which the “but for” test yields an unsatisfactory result

i. 2 ∆s shot pellets from their shotguns and π was hit in the eye ii. it was impossible for the π to show it was “more probable than not” that

one ∆ rather than the other did itiii. Cali SC decided it would be unfair to let both of the ∆s off the hook

simply because π was unable to pinpoint which one’s shot caused him the harm

iv. shifted the burden of proof to each ∆ to prove that he had not caused the harm

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1. they were not able to do this, so both were held liable

b. Summers stands for the basic proposition that: where two or more ∆s commit substantially similar negligent acts, one of which caused the π’s injury, the burden of proof shifts to each ∆ to show that he did not cause the harm

i. If they cannot make that showing, both will be held liable for the π’s lossii. Has been followed by a number of courts but some have rejected it

iii. When followed – it is followed narrowly, doesn’t hold every time π sues more than one ∆; only works when “but for” fails

VI. Market Share Approach

a. Particularly in DES (miscarriage prevention drug) cases, courts did not know how to deal with a situation in which π daughters of mothers who took the drug had various medical problems, but couldn’t pin point the exact company that manufactured the drug

b. To avoid the outcome of no one being liable, courts developed the “market share” theory in which the π could sue a number of manufacturers and, assuming they are all found at fault, hold each liable for part of the π’s damages

i. Even though this would mean that some ∆s will be held liable to a π even though they did not cause her any harm

ii. These manufacturers would pay in proportion to the injuries they caused1. Thus if they sold 10% of all DES sold, they would held liable for

10% of the πs damagesc. Looks more like a legislative solution to causation problem than a judicial one

i. Court fashions a remedy that encompasses not only the party that actually caused the π’s harm, but also other parties who contributed to the general risk that harmed her

d. some courts extended this to include recovery in proportion to the national market share; if not all makers are before the court then recovery will be less than full damages (Hymowitz v. Eli Lilly & Co.)

i. radical because it uses national market share; ANDii. it bars any maker from proving that it did not make the DES that injured

that specific π

VII. Causation in Loss-of-a-Chance Cases

a. Herskovits v. Group Health Cooperative of Puget Sound

i. Decedent died of lung cancerii. Evidence showed that he had a 39% chance of surviving with prompt

diagnosis of his cancer, but that the ∆’s negligent delay in diagnosing reduced his survival chance 25; he sued for “wrongful death”

iii. This required a very speculative endeavor: the statistics suggest that the outcome might have been different absent the ∆’s negligence, but probably would not have been

iv. Held that this should go to the jury under “substantial factor” instruction

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b. Some courts have suggested a proportional approachi. If ∆ reduced decedent’s chance of survival by 15%, she should be held

liable for 15% of the wrongful death damages

Proximate Cause

I. The Crux of the Problem

a. ∆s cannot be held liable for every consequence of their conduct, even if that conduct is negligent

b. courts will deny recovery, even though the ∆s action is negligent, if the π’s harm is too unusual, too far removed from the type of harm to be anticipated from the ∆’s negligence to warrant imposing liability

c. this is not based on a lack of actual causationi. if the only issue were cause in fact, the ∆ would likely pay in these types

of situations d. however, unless actual causation (cause in fact) is found, there is no need to

consider issues of proximate cause at alli. if ∆ was not a cause in fact of the harm, court will dismiss the case w/o

reaching the complex policy question of whether liability should follow

II. Efforts to Define Proximate Cause

a. Courts have labored for over a century to articulate such a definiton, to draw a defensible line between consequences of negligence that are actionable and others too remote to support liability

b. An early view: the “Direct Cause” Test of In Re Polemisi. Held that the ∆ is liable if his conduct is the “direct cause” of the π’s

injury, as opposed to a “remote” cause

ii. Facts1. ∆ dropped a board into the hold of the π’s ship, which caused a

spark and ignited petrol vapors in the hold, destroying the ship2. although the explosion was deemed unforeseeable, the court held

that the ∆ was liable, since the negligent act of its employee was the “direct cause” of the harm

iii. the problem with this test is that it doesn’t explain the results in real cases1. it is more restrictive than the cases – suggests that liability would be

cut off where subsequent conduct contributes to the accident, yet courts often conclude that the ∆ should be liable despite intervening forces

iv. thus it is hard to escape the conclusion that “direct” is just a word rather than a method of analysis; it doesn’t help judges or juries to draw the line

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between consequences the ∆ should be held responsible for and those he should not

c. Foreseeability/Scope of the Risk

i. Perhaps the most helpful approach to proximate cause considers whether the ∆, at the time he acted, could foresee the risk that injured the π

ii. Under this approach, the court considers what the risks were that made the ∆’s conduct negligent in the first place

1. If the ∆ should have anticipated a particular risk at the time he acted, and he negligently failed to avert that risk, he would be liable if that risk caused the π’s harm

iii. In other words: an actor is negligent for ignoring foreseeable risks1. When those risks cause injury, liability follows, because ignoring

those risks was negligent2. BUT if some bizarre result happens, a risk that a reasonable

person would not have foreseen, the actor is not liable, because failing to avoid that risk was not negligent

iv. The foreseeability/scope of risk approach to proximate cause has the virtue that it provides an analytical basis for consistent decision making

1. Relates the scope of liability to the faulty aspect of the ∆’s conduct, and the judge/jury can ask what unreasonable risks the ∆ should have anticipated at the time she acted, and compare those risks to the injury that actually occurred

III. Varieties of Forseeability: Wagon Mound and Palsgraf

a. Two most famous proximate cause cases both exemplify a scope-of-the-risk approach to the proximate cause problem

b. Palsgraf v. Long Island Railway i. ∆’s conductors were negligent in assisting the rushing passenger onto a

moving train, causing him to drop a package1. there was no reason for the conductors to suspect it, but the package

contained firecrackers, which exploded, overturning some scales a distance away

a. the scales fell and injured Mrs. Palsgrafii. although the conductors were found negligent, the railroad argued that

their negligence only posed a foreseeable risk of injury to the passenger or his package, but not to Mrs. Palsgraf

iii. Justice Cardoza: held that the duty to avoid injuring others extends only to those risks that the actor should anticipate from her negligent act

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1. Here, the unreasonable risk created by conductors’ conduct was that the passenger or his package would be injured, not Mrs. Palsgraf

2. Since the conductors would not have anticipated injury to her from their conduct, they owed no duty to avoid the injury and were not negligent in relation to her

a. She was an “unforeseeable π” to whom no unreasonable risk was to be anticipated, so she was denied recovery

c. Wagon Mound i. ∆’s oil fouled the waters around the π’s dock, where welding was in

processii. because of its high ignition point, the oil was unlikely to burn, but it did,

through a strange concatenation of circumstances found in the case to be unforeseeable

1. other injury to the dock, however, was foreseeableiii. π could only recover fro the injuries that the ∆ should have anticipated at

the time it released the oil into the water 1. it would be liable for fouling the slips of the π’s dock, a foreseeable

consequence of releasing the oil, but not for the unforeseeable fire which destroyed the dock itself

IV. Some Guidepoints

a. If the π’s injury is truly beyond the type of harm to be expected from the ∆’s conduct, the π will virtually always go uncompensated

i. A basic sense of justice demands that liability should not extend to consequences radically different from those to be anticipated from an act and courts will find a way to reach that result

ii. Conversely, it is worth noting that most tort cases pose no proximate cause problem because the harm suffered is exactly type to be expected

b. Where a particular tpe of injury to the π is foreseeable, the ∆ is liable for the injury sustained, even though it is more serious than might have been anticipated

i. “take your π as you find him”

c. the cases distinguish unforeseeable consequences of a negligent act from consequences that are foreseeable but take place in an unusual manner

i. liable if the same harm/accident to be anticipated is caused even if the manner of the accident is unusual

ii. Doughty v. Turner Manufacturing Co. 1. Facts

a. π was standing next to a vat of molten liquid when the cover of the vat was negligently knocked into it

b. Nothing happened at first, but several minutes later, due to a chemical reaction of the lid with the liquid, it exploded

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c. π argued that the ∆’s employees negligently created a risk that he would be splashed by the liquid, and that, indeed he was injured by splashing, though in an unusual manner

2. The court held that he was injured by a different risk – the risk of an unforeseeable chemical reaction causing explosion, not the physical splashing from the dropping of the cover

d. An injury does not have to be likely or probable in order to be foreseeable in a proximate cause analysis

i. Many acts are culpable even though they pose a relatively small risk of injury

ii. Foreseeability is not to be measured by what is more probable than not, but includes whatever is likely enough in the setting of modern life that a reasonably thoughtful person would take account of it in guiding practical conduct

V. Superseding Cause

a. In a good many proximate cause cases, the ∆ argues that, even if she was negligent, a later act supersedes her negligence and “breaks the causal chain”

b. Derdiarian v. Felix Contracting Corporation i. ∆ contractor was working in an excavation in the traveled roadway and

failed to erect a barrier to protect workers from trafficii. Dickens, an epileptic who had failed to take his medication, suffered a

seizure and lost control of his car, and careened into the excavation, throwing him form the car where his body ignited from a kettle of hot enamel in use for the repairs

iii. Involves a typical scenario in which “superseding casue” argument is raised

1. First, ∆ is negligent (failure to erect the barrier) 2. Second, some other act happens after the ∆’s negligence (Dickens’

passing out due to failure to take meds)3. Third, the two acts together lead to an injury to the π

iv. Applying scope-of-risk analysis, the outcome is clear: working in the middle of a busy street poses a risk that a vehicle will enter the worksite

1. This is a foreseeable risk that makes it reasonable to put up a barrier2. This is the risk that injured Derdiarian, so ∆ should be held liable 3. He was held liable

c. So what kind of events would a court find a “superseding cause” that “cuts off” the liability of the previously negligent party?

i. Generally speaking, courts will not hold the negligent party liable when bizarre, unforeseeable events give rise to a risk different from the one the ∆ should have anticipated

ii. Usually held for criminal acts

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1. However, in many circumstances, criminal acts are foreseeable, and indeed, are the very risk that require the reasonable person to take precautions

a. Hines v. Garrett i. Train passed π’s stop and then let her off a mile down

the line, in an area known to be frequented by vagrants and she was subsequently assaulted while walking back to her stop

ii. The court summarily dismissed the railroad’s argument that the assault was a superseding cause: “the very danger to which this unfortunate girl fell victim is one which would at once suggest itself the average and normal mind as a danger liable to overtake her under these circumstances”

iii. When the risk of criminal conduct is foreseeable, it will not “cut off” the liability of a ∆ who negligently exposes the π to that risk

VI. Emotional Distress a. Overview

i. Cases based on emotional trauma suffered by one person who witnesses or learns of an injury to another

ii. The distress in these cases is often both forseeable and severe1. Thus π will frequently be able to establish that the ∆’s negligence

was an actual and proximate cause of his emotional disturbancea. Thus courts have sought to limit liability for cases of ED

using duty analysis – holding either that there is no duty or that ∆ only owes a duty in very limited circumstances

b. Zone of Danger Rulei. Some courts have adopted tests to define the duty to allow a bystander to

recover for ED if he was in the “zone of danger” – if he was close enough to the ∆’s negligent conduct to be placed at risk of physical injury even if not actually touched

1. Rationale: ∆ owes them a duty of care b/c they are w/i area of the risk created by his conduct and hence injury to them is forseeable

c. Dillon Rule: Limited Forseeabilityi. ∆s have a duty to avoid infliction of ED that is reasonably forseeable,

including infliction of such distress on indirect victims

ii. 3 factors1. whether π was located near the scene of the accident2. whether direct emotional impact was from CSP3. where π and victim were closely related

d. Physical injuryi. Some courts also req. π suffer some physical symptoms as result of ED

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e. Distressi. The cause of action does NOT compensate for general feelings of grief,

loss, or empathy for an injured person 1. Thing v. La Chusa 2. “the impact of personally observing the injury-producing event…

distinguishes the π’s resultant ED from the emotion felt when one learns of the injury or death of a loved one from another, or observes pain & suffering but not the traumatic cause of the injury”

AFFIRMATIVE DUTIES

I. Overview a. Although duty is one of the 4 elements a π must prove to recover for negligence,

courts have not been willing to impose a universal duty of carei. often refused to hold ∆s liable, even though they have clearly caused

foreseeable harm

b. Why courts impose duties or refuse to impose themi. Tort duties are made up by judges because they conclude that a duty ought

to exist under the circumstances 1. Merely conclusory expressions that, in cases of a particular type,

liability should be imposed for damage done

ii. Though the duty issue is complex, we can at least identify major factors that judges consider in deciding whether to impose a duty in a given case

1. Judge’s sense of morality2. Foreseeability and the extent of the likely harm3. Burden that the new duty will impose on ∆4. Alternative ways of protecting π’s interest5. Increased safety likely to result from imposing the duty6. Chilling effect the duty may have on ∆’s conduct

iii. Foreseeability of harm weighs heavily since it makes basic good sense that a ∆ “should” avoid foreseeable injuries to others

iv. Moral argument is also strong in many duty cases

v. Courts hesitate to create duties that impose excessive burdens on actorsvi. Administrative problems of enforcing the duty may also influence the

court’s judgment vii. Legislative policies and other policy considerations will also influence the

court’s duty analysis

II. Principle One: “No Duty to Act”/“Couch Potato” Principle a. Courts generally refuse to impose liability for doing nothingb. Long held view of the common lawc. Policy arguments to support it, even if it seems morally repugnant

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i. ∆ whose act (misfeasance) endangers the π has “created a new risk of harm to the π” while by “nonfeasance” he has at least made π’s situation no worse and has merely failed to benefit him by interfering in his affairs

ii. infringement on individual libertyiii. Difficulty defining the duty if it is to be imposed (How much must he do?

Which bystanders have the duty? Are his interests subordinate to the duty?)

d. Most American courts have not rejected the no-duty-to-act rule outright, INSTEAD, they have nibbled away at it by carving out exceptions

III. AFFIRMATIVE DUTIES : EXCEPTIONS to no-duty-to-act principle

a. Courts have no hesitated to create “affirmative duties” to act for the protection of another where some policy justifies departing from the no-duty rule/principle

i. Imposes a duty to get involved

b. Duty based on a SPECIAL RELATIONSHIP to the Victimi. often impose a duty to aid based on a preexisting relationship between the

∆ and the person who needs assistanceii. ∆ is not the source of the injury-producing conduct, HOWEVER, because

of the ∆’s relationship to the victim, the courts impose a duty on the ∆ to take affirmative steps to minimize or avert the harm

c. Duty based on a Special Relationship to the Perpetratori. Situations in which courts impose a duty to control one person to prevent

him from injuring others 1. i.e.: parent to control a child in certain circumstances, employer to

control an employee, those in charge of mental patients or prisoners

ii. ∆ in these situations is uniquely positioned to prevent the harm

d. Duty based on Innocent Creation of Riski. Involves situations in which the ∆, without negligence, creates the risk that

causes injury to the π1. He has, by his risk-creating conduct for his own purposes, placed

the victim in a position of danger

e. Duty based on Gratuitous Servicei. Situations in which the ∆, though under no initial duty to act, goes to the

aid of anotherii. Liable for any injury caused to the victim by:

1. The ∆’s failure to exercise reasonable care to secure his safety2. The ∆’s discontinuing his aid/protection, if by doing so he leaves

the other in a worse position than when ∆ took charge of him

IV. Principle Two: Risk Creation as a Source of Duty a. Those who do act, who choose to engage in activities that create a risk of injury to

others, do have a duty to exercise care to avoid injuring others

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i. Largest proportion (~90%) of negl. cases involve these types of situations in which ∆ have let loose dangerous forces that have caused injury

b. ∆’s choice to engage in risk-creating conduct for own benefit imposes reciprocal duty to exercise due care toward those who may forseeably be injured by it

i. the law tolerates and encourages activity, including those that impose risks of injury on others BUT, has long been recognized that those who unleash such forces owe a duty to others to keep that risk to a reasonable level

c. in most cases, risk creation is the obvious basis of duty to exercise due carei. Duty is probably the least frequently contested element of a negligence

claim, because most negligence cases arise from active conduct, and it is clear that the actor owed a duty to exercise due care toward those who might forseeably be injured by it

V. Duties of Landowners a. Just because he is an invitee does NOT mean he is invited to the entire area

b. Categories of people i. Invitee: no necessarily what the normal interpretation would be

1. Really a business visitor (someone who comes onto your property to your business benefit) or a public invitee (someone invited onto the property for purpose for which the land is open to the public)

ii. Licensee: person either invited to the property or permitted to be there but not for either of the reasons under invitee (mailman, people invited for lunch, etc)

iii. Trespasser: person who enters or remains on property without privilege/consent

c. Duty to TRESSPASSERS : i. Land possessor must refrain from any willful and wanton conduct

1. you cannot even threten to eject them from there violently2. can do no more than demand that they leave and put a gentle hand

on them – but he is NOT obligated to do so ii. You cannot do whatever you want to someone just because they enter your

property without invitationiii. No duty to discover that your floors are caving in, etc

1. No duty to warn about something everyone knows and should know

d. Duty to INVITEES: i. To take reasonable care to make sure that the premises are safe

1. They are coming for YOUR benefit, so we impose a duty on youii. Just because you invite someone doesn’t mean you can’t engage them in

dangerous jobs (guy working on the roof – no duty)

e. Duty to LICENSEE: i. you cannot allow concealed danger to remain on the premises

1. not just danger that is unknown; danger that is known to you but not to the person you allow over

f. Doctrine of Attractive Nuisance i. Possessor of land must know that children are likely to trespass on the land

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ii. Possessor of land knows or should know that it is risky1. Kids can’t be reasonably expected to understand dangers as adults

iii. Utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children

1. The cost eliminating the burden of the danger is a cost we are willing to impose on the owners of the land

iv. Possessor fails to exercise reasonable care to protect the children 1. Doesn’t have to be “super reasonable” 2. But children possess a different level of knowledge3. It is still the reasonable person standard; just children cannot be

reasonably expected to understand the dangers in the same way as an adult can

VI. Duty of Rescue: Jerks a. No duty to help unless you are legally responsible for putting them in a perilous

situationb. In some situations we do think you should not prevent others from helping even if

you have no duty yourself to help c. Duty to help based on(?)

i. Foreseeability of harm to the πii. Degree and certainty of harm

iii. Closer connection of ∆ conduct to π harmiv. Moral blamev. Policy of preventing future harm

vi. Consequences/burden of requiring it

VII. Duty of Rescue: Nice People a. You aren’t obligated to do anything, BUT, once you start – you must do so with

due care and competence/skill that you possessb. We hold you to your best skill but if you are preventing others from doing a better

job then you are liable c. May have a duty to aid if you were the one who put them in peril

VIII. Duties to 3rd Persons a. No duty to protect absent a special relationshipb. Two varieties

i. Special relationship between ∆ to the πii. Or the ∆ to the one who caused the harm

c. Now that we have a duty – who does that duty run to?i. ONLY foreseeable possible victims

d. Doctor-patient confidentiality problem because there are 2 real public policy problems at stake (keeping people safe v. maintaining secrecy/relationships)

e. mere knowledge of future harm are enough – must have a special relationshipf. Scope of employment – see notes on Vicarious Liability

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VICARIOUS LIABILITY

I. Overview a. Common Law has long accepted the premise that employers should be liable for

the torts of their employees in the scope of employmentb. “respondiat superior” = “let the master respond”c. virtually all jurisdictions impose liability on employers for the torts of their

employers, but the rationales have variedi. employer should pay because she can select and control her employees,

and thereby prevent injuries due to negligence1. however, employers frequently have no realistic chance of

preventing a particular negligent act by an employeeii. a device to provide a “deep pocket” ∆ able to pay the π’s damages

iii. employers are in a position to spread the costs of accidents by purchasing liability insurance and raising the price of their products to reflect the inherent accident costs of the interprise

1. encourages employers to insure, cost of insurance gets incorporated into the price of the product

iv. most basic rationale: the employee acts for the master in the performance of the master’s work

1. where he creates risks for the master’s benefit, it seems intuitively fair to ascribe the conduct to the party for whose benefit it was undertaken

2. if the master didn’t have the work done by another, he would have to do it himself & would be liable for any torts committed

II. The Meaning of “Employee” a. An employer is only liable for the torts of a worker if the worker is its employee

and acts in the scope of his employmentb. In many cases, it is unclear whether a party who acts for another is an employee

or instead acts as an independent contractor

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c. A person is an employee if the employer has the right of control over the person in the performance of the work

i. However, this control test does not resolve close cases, since even independent contractors are subject to some degree of control

1. Factors: extent of control, type of work, etc.

III. “Scope of Employment” a. even if the court concludes that the individual was an employee at the time she

negligently injured the π, the employer will only be liable for her negligence if she acted in the scope of her employment (fair to do so for his benefits)

i. in the course of and for the furtherance of the employer’s work

IV. Vicarious Liability for Intentional Torts a. Another difficult problem is determining when employers will be held

vicariously liable for intentional torts by employeesb. In almost all cases, a deliberate decision by the actor to invade another’s rights

are unwanted, discouraged and probably forbidden by the employer

c. HOWEVER, courts do hold employers liable for at least some intentional torts i. Liable where an employee commits an intentional tort in order to serve

(however misguidedly) the employer’s purposesii. That occur in the course of the work

iii. Sexual misconduct in the course of medical care or psychotherapy1. Acts in these cases clearly do not serve the employer’s purposes

BUT they are a peculiar risk of certain kinds of work 2. Lisa M. v. Henry Mayo Hospital

V. Independent Contractors a. While employers are generally liable for the torts of their employees in the scope

of employment, they generally are NOT liable for torts of an independent contractor, even though they arise from the contractor’s work for the employer

b. Owners may choose to hire independent contractors to perform work rather than using their own employees, simply to insulate themselves from tort liability

i. Of course, where owner knows he is avoiding a potential liability, the contractor knows that he is assuming it and consequently the cost of insuring against tort liability will be considered in setting price of work

VI. EXCEPTIONS to Contractors: NONDELEGABLE DUTIES a. While hiring an independent contractor usually insulates an owner from liability

for torts in the course of the work, it will not always do sob. In some situations, courts have refused to allow owners to insulate themselves

from liability, even if they use a contractor to do the work

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c. In such situations, it is often said that the owner’s duty of care is “nondelegable” so that the owner remains liable for tortious injury from the performance of the work, even though the tort was committed by an independent contractor

i. Means that owner can delegate the work but cannot delegate away the liability for tortious acts in the course of the work

ii. Owner is liable in these cases vicariously for the torts of the contractor

d. Several widely accepted categories of nondelegable duties illustrate the typical rationales for imposing vicarious liability for the acts of independent contractors

i. Often hold a duty nondelegable because it involves inherent danger or requires special precautions

ii. Or for the contractor’s negligence in construction or repair of instrumentalities used in highly dangerous activities

iii. Or for negligence of the contractors for negligence of their contractors in the course of work done in a public place

VII. Liability for the Owner’s Own Negligence a. A nondelegable duty theory will frequently allow a π injured by a contractor’s

negligence to recover from the owner who hired the contractor, even though the owner has exercised due care

b. HOWEVER, it is important to remember that owners can be negligent tooc. Frequently, a π will have a claim against the owner based on his own negligence

in connection with the contract work

d. Owner may be negligent in various ways even though the work was delegated to an independent contractor

i. May hire a contractor incompetent to perform the type of work requiredii. May fail to supervise the contractor properly

iii. May fail to require the contractor to take necessary precautionsiv. May specify that the work be done in an inappropriate mannerv. May fail to inspect the work after it is done

vi. May negligently perform work over which he retains control

e. In such cases, the owner is liable for his own negligence, NOT vicariously liable for negligence of the contractor

f. Frequently, a π will assert claims against the owner based on both the owner’s own negligence and on vicarious liability theories, but it is important to distinguish these two bases for holding the owner liable

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STRICT LIABILITY

Traditional Strict Liability

I. Introduction a. In some situations tort law imposes either more demanding or lesser duties of

care on actors i. Such as common carriers owing passengers “the highest degree of care”

b. In other situations, courts hold that ∆s owe a lesser duty than the exercise of reasonable care

i. Such as a landowner only owing a trespasser a limited duty to avoid willful or wanton injury due to conditions on her property

c. Strict liability deals with cases in which the law applies a very heavy duty on actors, a duty to avoid injury to the π entirely or pay for the resulting injuries

i. when such a duty exists, the ∆ is liable regardless of the care with which she conducts the activity

ii. liability flows not from carelessness but from the very choice to conduct the activity at all

iii. not premised on fault in the conventional sense, but on policy choice to place accident losses from the activity on actor rather than on its victims

iv. the ∆ “acts at her peril” in conducting such activities1. no matter how much care she takes to avoid injuries to others,

she will be held “strictly liable” if such injuries result

II. History a. Today most tort claims require either intentional conduct or negligenceb. Despite that predominance, strict liability has continued to apply in some areas

i. i.e.: keepers of wild animals

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c. Rylands v. Fletcher i. Facts

1. ∆ had introduced a dangerous force (large body of water) onto his land, which escaped unexpectedly and injured neighbor’s property

2. no evidence that ∆ had been negligent in his efforts to contain the hazard, but the court held that the keeping of this metaphorical tiger supported strict liability for the resulting damage

ii. Appeared to limit such liability to activities on land of the ∆ that injure land of an abutter

iii. Lord Cairns appeared to narrow the rationale further to apply only to “non-natural” uses of land, evidently referring to unusual activities that are out of place in the area where ∆ chooses to conduct them

iv. Regardless, the underlying spirit of this case is to impose strict liability on those who impose grave and truly unusual risks on the community

d. In the century since Rylands, strict liability for abnormally dangerous activities has shed much of the doctrinal baggage and come to focus increasingly on the factor of activities that impose grave and unusal risks

e. If an activity poses such high risk, why isn’t it banned?i. Legislatures often DO ban dangerous activities, BUT many activities that

pose unusual risk are also unusually productiveii. Strict liability allows such socially useful activities, but requires them to

bear the accident costs associated with them

III. The Current Doctrine a. Today, many jurisdictions accept the principle that actors should be held liable

without fault for injuries resulting from activities that pose an unusually high risk of injury

b. Rationalei. Based partly on the high level of risk posed by such activities

ii. In part on the unilateral nature of the risk the ∆ has created iii. And in part on the unusual nature of the activity, which may be useful,

but that judges believe should pay its own way if it is to be tolerated

c. Economic concepts of cost avoidance and loss spreading also support strict liability for high risk activities

i. Encourages ∆s who conduct high-risk enterprises to avoid costs in 2 ways

1. Threat of liability will encourage actors to forgo these risky activities entirely

a. Encourages to consider alt. ways of achieving same goal2. Because actors who conduct abnormally dangerous activities must

compensate even for blameless injuries, strict liability encourages them to reduce the cost of accidents by taking extra precautions

a. Make high risk activities safer, but not completely safe

ii. Strict liability places the loss from high-risk activities on the party who can most easily spread the costs of the enterprise by adding the cost of

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compensation for accidents resulting from the activity to the price of the product

“Ultra-hazardous Activity”

IV. Restatement (Second) of Torts §519 a. Suggests 6 factors relevant to determining whether an activity is abnormally

dangerous (or ultra-hazardous)

i. Existence of a high degree of risk of some harm to the person, land, or chattels of others;

ii. Likelihood that the harm that results from it will be great;iii. Inability to eliminate the risk by exercise of reasonable care;iv. Extent to which the activity is not a matter of common usage;v. Inappropriateness of the activity to the place where it is carried on; and

vi. To extent which its value to the community is outweighed by its dangerous attributes

b. Central thrust is that strict liability should apply to activities that pose unusual and irreducible risk

c. Activities generally involve forces or substances capable of causing extensive damage if not properly controlled

i. Each usually goes forward without mishap, but can misfire badly without negligence

ii. The risk of such activities may differ only in degree from other activities, but the extra risk has been enough to convince courts to apply strict liability to them

d. Notei. An activity might give rise to strict liability in an area where it is rare, but

not in another where it is more common

ii. One rationale for “common usage” exclusion is that activies that are common, such as driving or building excavation, often involve creation of reciprocal risks between actor and victim

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1. by contrast, those who conduct unusual activities such as fumigation or blasting impose hazards on the community that are generally not imposed on them by others

e. Strict liability should apply to activities so inherently dangerous that the level of risk will remain high despite all reasonable efforts to reduce it

i. If reasonable care can make the activity generally safe, courts will not impose strict liability (Indiana Harbor Belt RR Co v. Cyanamid Co.)

Products Liability

V. Overview a. Refers to claims for injuries caused by commercial productsb. The recognition of “strict liability” for injuries due to defective products was one

of the most dramatic developments of the 20th centuryc. πs have long pleaded negligence claims in actions for injuries caused by

products, and still do, BUT, there are some significant hurdles to recovery in products liability cases

i. Difficult to prove that a manufacturer’s negligence led to the defect that injured the π

ii. Even with good quality control, a small number of goods come off the assembly line with defects and although a π can invoke res ipsa in such cases, the jury may deny negligence recovery, accepting the ∆’s argument that although it used due care, such defects may still occur

d. Policy reasonsi. Increasing sophistication of products makes it difficult for consumers to

assess their risks, emphasizing the need for manufacturer’s to do soii. Price of the product will reflect its true cost, rather than “externalizing”

accident costs to innocent victimsiii. In addition, the risk of liability will encourage manufactures to make their

products safer and to discover and disclose product risks that the consumer might not recognize

e. Elements (probably not really??) i. By a user or consumer

ii. From a selleriii. Who is engaged in the business of selling the product iv. For physical harmv. Caused by a defective product

vi. That is unreasonably dangerous

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f. Nothing in the above description says how the product came to be defective and dangerous; fault is NOT an element of the claim

VI. Manufacturing Defectsa. in these cases, the π alleges that the product was defective because it did not

meet the manufacturer’s own specifications for the product b. π recovers by showing that:

i. the product does not meet the manufacturer’s own specifications for the product; and

ii. as a result, the product was dangerously defective

c. does NOT matter how the defect occurred if doesn’t meet manuf’s own specs. d. π need not show that negligence led to the defect or that the manufacturer should

have discovered it e. She needs ONLY to establish that the defect existed, made the product

unreasonably dangerous and caused her injuryVII. Design Defects

a. Can also be defective if its design makes it unnecessarily dangerous to the useb. Surely, however, a manufacturer should not be liable simply because its product

involves some risk of injuryc. Since many products cannot be functional without imposing some level of risk,

products liability law needs some standard for distinguishing acceptable designs from those that pose unacceptable risks

d. One test: If it is dangerous to an extent beyond that which would be contemplated by an ordinary consumer who purchases it, with the oridanrary knowledge common to the community as to its characteristics

e. Utility/balancing approach:

i. Factfinder decides, applying a number of factors, whether the product’s design represents a fair balance between the cost of designing the product to prevent the risk of injury, the effect the redesign would have on the utility of the product and the extent of the risk that the product poses

ii. Requires π to establish that “a reasonable alternative design” would have eliminated the risk that injured the π

1. The evidence must show that “the suggested alternatives are not only technically feasible but also practicable in terms of cost and the over-all design and operation of the product

VIII. How Strict is “Strict Products Liability”? a. If strict liability means that the ∆ is liable for causing an injury without fault,

only manufacturing defect cases satisfy that definition in most states today

b. In manufacturing defect cases, the manufacturer is liable simply for selling a product that turns out to be defective, without proof of any fault

c. In design defect cases, however, the π must establish that the product design was inadequate, under a standard that looks a lot like a negligence test

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d. Jury must decide whether the manufacturer made a reasonable trade-off, in designing its product, between risk and the expense of preventing that risk

e. Design defect liability is “strict” if the court sues the consumer contemplation test which theoretically only considers the nature of the product sold, rather than the ∆’s conduct in designing it

i. But this too can be conceptualized as negligence

MISCELLANEOUS

Prenatal Harm

IX. Overview

a. Personal injury action for injuries suffered in utero by mother i. Recognizing this would present unimaginable difficulties for the courts

1. Would have to determine what is the scope of the duty,2. When should a woman become aware of her pregnancy,3. What a reasonable pregnant woman should know, etc.

ii. SOME courts have recognized the right of action against the mother

b. GENERALLY, an unborn child may recover after live birth for prenatal injuries inflicted by 3rd parties

i. Court wont extend this rule to a fetus

c. Unplanned child (because of failed medical procedure to render her sterile) i. Three approaches to recovery in these actions

1. Full recovery of the costs of rearing the child 2. Recovery of costs minus the benefits of having a child3. NO recover (majority of states)

ii. Π need not mitage the damages by having an abortion (or adoption)1. Abortion presents its own emotional and physical pain and π need

not subject herself to it in order to avoid other types of injury2. Deeply personal choices and cannot be imposed on unwilling

individuals

d. “wrongful life” is different from “wrongful birth”i. this alleges that, but for ∆’s negligence, the child would not have been

born and is brought by the child himself for his OWN pain and suffering

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ii. majority of US jurisdictions refuse to recognize this 1. it amounts to repudiation of value of human life 2. life is more precious than non-life3. remedy would be to put the party in the same position he would

be in but for the negligencea. therefore one must calculate the monetary value of disabled

life versus no life at all which is an impossible task 4. 4 states DO recognize this cause of action

a. however, in those states, damages for pain and suffering are generally not available as impossible to fairly compute

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