Table of Contents

Intentional Torts ...................................................................................................................................... 2

The Concept of Intent ........................................................................................................................................ 2 Battery and Assault ............................................................................................................................................ 2 Trespass and Conversion .................................................................................................................................. 3 Defenses ................................................................................................................................................................. 3 The Standard of Care Establishing duty ................................................................................................... 4 Special Methods of Creating Standard of Care ....................................................................................... 5 Cause in Fact / Actual Causation .................................................................................................................... 7 Proximate Cause ................................................................................................................................................. 7 Intervening Causes as Superseding Causes .................................................................................................. 8 Contributory Negligence ................................................................................................................................... 9 Comparative Risk ............................................................................................................................................... 9 Assumption of the Risk................................................................................................................................... 10 Responsibility for Multiple Parties, Including the Plaintiff .................................................................. 10 Group Liability ................................................................................................................................................. 12 The Failure to Aid............................................................................................................................................ 12 The Failure to Warn........................................................................................................................................ 13 Owners and Occupiers of Land .................................................................................................................... 13 Special Immunities .......................................................................................................................................... 15 Governmental Immunities ............................................................................................................................. 16 Negligent Infliction of Emotional Distress ................................................................................................. 17 Animals .............................................................................................................................................................. 18 Dangerous Activities..................................................................................................................................... 18

Negligence ................................................................................................................................................. 4

Causation................................................................................................................................................... 7

Others Conduct as a Contributing Cause ........................................................................................ 9

Special Situations .................................................................................................................................. 12

Strict Liability ....................................................................................................................................... 18

Damages ................................................................................................................................................. 20

Intentional Torts
The Concept of Intent
I. Restatement 1: Intent A. A person acts within intent if the person has the purpose of producing that consequence or the person knows to a substantial certainty that a consequence will ensue from a persons actions II. Substantial Certainty Test A. Jackson v. Brantley (the horse on the road case): Knowledge of the consequences an act is certain or substantially certain to occur can constitute intent B. Beauchamp v. Dow Chemical Co. (the agent orange case): Substantial certainty should not be equated with substantial likelihood

Battery and Assault

I. Elements of Battery A. A voluntary Act B. Intent to cause harmful or offensive contact 1. Offensiveness: offends a reasonable sense of dignity, unwarranted by social usages then and there prevalent 2. Singer v. Marx (Watch Barbie case): A child may have the capacity to intend the violent contact essential to battery and also lack the capacity to know his conduct might foreseeability lead to injury in a negligence case. C. Transferred intent: If a intends to strike one person and inadvertently strikes another, he is liable to the 3rd person (Singer v. Marx: (Watch Barbie case) 1. D. Causation E. Harmful or offensive contact 1. Masters v. Becker (little girl falling off car): must only prove intent to contact, not the intent to injure or cause harm 2. Brzoska v. Olson (AIDS doctor): creates the actual exposure test; a must actually be exposed to a disease causing agent as a prerequisite to prevail on a claim based upon fear of contracting the disease II. Elements of Assault A. Restatement 29(1): A voluntary act with the intent to cause the apprehension of imminent harmful or offensive contact 1. Restatement 31: Words do not make an actor liable for assault unless together or with other acts put the other in reasonable apprehension of an imminent harmful or offensive contact 2. Dickens v. Puryear (Racial violence and death threat): threats of castration and death while was being beaten constitute assault III. Intentional Infliction of Emotional Distress A. Restatement 46: One who by extreme or outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, from such bodily harm

1. Dickens v. Puryear (Racial violence and death threat): A death threat for the future if he does not leave the state that inflicts serious mental distress could be actionable as IIED.

Trespass and Conversion

I. Trespass to Land A. One is subject to liability to another for trespass if he enters onto someone elses land or causes a thing or third person to do so 1. It does not matter if you cause any harm to the others property B. Implications 1. If you make a mistake and trespass, still trespass 2. If you are invited, you are not trespassing so long as you remain invited II. Trespass to Chattel A. Dispossessing another or affecting the use of anothers possession 1. Liability occurs if: dispossession, impairment of the chattel, depravation of use, bodily harm to the possessor or thing which possessor has an interest B. If not destroyed, damages limited to the diminution in the chattels FMV III. Conversion A. Intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another that the actor may be required to pay the full value of the chattel 1. Factors in seriousness: extent and duration of control lost, intent to assert right inconsistent with another right, inconvenience and expense to others, harm to chattel, good faith

Defenses
I. Insanity A. Not an affirmative defense, it is a characteristic that may make it more difficult to prove an intentional tort 1. Whtite v. Muniz (Grandma hits an orderly): an insane actor must intended the contact and intended it to be harmful or offensive II. Consent A. A privileged defense; is saying that it was not a battery because there was consent 1. Hellriegel v. Tholl (kid paralyzed during horseplay): Consent to action means consent to accidental injury within the scope of the act consented to a. Limits to what you consent to B. Limits on consent 1. Must be obtained by someone able to give consent 2. Cannot be obtained if knows is operating on an assumption knows is wrong C. Informed Consent 1. Doctor has an obligation to provide information or ensure a person has information 2. Assumed consent to competent medical care if there is an emergency and the person is incapacitated

a. Mulloy v. Hop Sang (hand cut off by doctor): Doc. overstepped consent when patients instructions were clear but not followed and surgery removed hand. III. Self Defense A. Proportionality and reasonable fear of injury 1. Lane v. Holloway (bar fight w/ brass knuckles): Self defense not a defense when the act is our of proportion to the occasion a. Provocation can reduce punitive damages but not compensatory damages B. Defense with a deadly weapon 1. Silas v. Bowen (drunk NBA player shot for trespass): Use of a deadly weapon is authorized if the conduct of a trespasser produces the apprehension of assault involving serious bodily injury a. A property owner may shoot where incursion upon his property is attended by a threat of personal harm to himself, family, or others he is entitled to defend 2. Restatement 65: deadly force cannot be justified if retreat is possible unless the defender is attacked within his own dwelling C. Defense of Property 1. Brown v. Martinez (watermelon theft shot kid): The use of a gun against a misdemeanant is impermissible unless there is threat of serious physical bodily harm IV. Discipline A. Public schools is a matter of statute, comes down to reasonableness of the act V. Public Necessity A. Is it for the good of all or for the good of just the government B. Example: city drops bomb on radical group inside necessity; not putting the fire out not a necessity VI. Private Necessity A. Ploof v. Putnam (mooring boat in sudden storm): The entry onto the land of another may be justified by necessity 1. Was the decisions reasonable under the emergency circumstances? B. Vincent v. Lake Erie Transportation Co. (moored boat runs against dock in storm): Though it was necessary to dock the boat, still liable for damage caused by the boat C. Restatement 197: Private necessity trumps trespass, but requires compensation if property is damaged

Negligence
The Standard of Care Establishing duty
I. A standard below which no one can fall you are assumed (or legally presumed) to have a minimum sense of what is reasonable A. Example - Delair v. McAdoo: law requires to know the condition of your car, will be assumed they know of the dangers of not repairing B. Goss v. Allen (skiing accident): the nature of the activity itself should be included in circumstances II. Effect of age 4

A. Charbonneau v. MacRury: age and stage of development of the individual in the process of his growth are relevant considerations B. Rule of 7s 1. Under 7 years old: incapable of negligence 2. 7-14 years old: presumed incapable 3. 14-21 years old: can be negligent with age and experience taken into account III. Foreseeability and the standard of care A. Haley v. London Electricity Board (blind man falls into manhole): You owe a standard of care appropriate to persons whose presence are within the scope and hazard of your operations B. Baker v. City of Philadelphia (truck driver runs over paper, kills kid): failure to exercise reasonable care is not excused because you cannot see the particular results of the negligent act C. Pitre v. Employers Liability Insurance (kid hit by baseball at fair): must exercise standard of care commensurate with foreseeable dangers under the circumstances. IV. BPL Analysis United States v. Carroll Towing Co. A. Burden = Probability of injury x Liability B. Problems with BPL 1. Information costs are expensive and generally not perfect 2. How to measure liability V. Ways of establishing a standard of care A. Common law B. Statistical evidence showing foreseeability: Haley C. Expert Testimony: Pitre D. BPL: Carroll E. Legislative Enactment

Special Methods of Creating Standard of Care

I. Statutory standards of care A. Categories of statutes 1. Per se: conclusive presumption of duty and breach 2. Prima facie: rebuttable presumption of duty and breach a. Example Martin v. Herzog (failure to use headlight creates presumption of negligence) 3. Some evidence of duty and breach B. Protected classes and exceptions 1. Brown v. Shyne (chiropractor without a license): Breach of statutory duty may be evidence of negligence only if there is logical connection between proven neglect of statutory duty and the alleged negligence 2. Tedla v. Ellman (pedestrian wrong side of the road struck by passing car): Breach of statutory duty is not negligence when observance would subject a person to danger what could otherwise be avoided 3. Barnum v. Williams (rainy day, sliding car accident, cross center): if a party violates a motor vehicle statute, such a party is negligent unless they produce evidence from which the trier of fact could that party was acting reasonable C. Custom and industry standards 5

1. Dempsy v. Addison Crane Co. (boom of crane fell and hit employee): evidence of custom or industry practice is some evidence but does not establish a duty II. Malpractice A. Standards of malpractice as shown in Shilkret v. Annapolis Emergency Hospital Assoc. 1. Strict locality 2. Similar locality 3. National standards B. Imposing judicial standard of medical care 1. Helling v. Carey (imposing glaucoma test case): there are some precautions that are imperative irrespective of its disregard by standards of profession a. Creates societal benefits/costs III. Informed Consent Miller v. Kennedy (kidney biopsy loss of kidney) A. Doctors have a duty to provide all relevant material information that the patient needs to make and informed decision B. Elements of Informed Consent Claim 1. Physician failed to inform of a material risk 2. Patient consented without being aware of material risk of each treatment choice 3. A reasonable person probably wouldnt have consented if informed 4. The treatment caused injury C. Special circumstances 1. Emergencies: doctor must act and patient cannot consent 2. Given information would be detrimental to patient (dont see often) IV. Res Ipsa Loquitur: The thing speaks for itself A. Elements to invoke of Res Ipsa 1. had exclusive control of the instrumentality 2. What happened reasonably could not have happened without some act of negligence 3. cannot disprove alternatives B. Must still prove causation and damages C. Judge as gatekeeper 1. Not enough to take grant res ipsa 2. Inferences is enough to take to jury and they may (but are not required to) find negligence. a. Example - Foltis v. NYC (water mane break case) 3. Inference is so strong judge directs for if cannot rebut a. Example Swiney v. Malone Freight Lines (tire falls off truck of sheared lug nuts and damages other car) D. Forcing the defendant to explain what happened when the plaintiff cannot 1. Ybarra v. Spangard (patient wakes up from surgery on leg, paralyzed in shoulder): where a receives unusual injuries while unconscious, all s who could have caused may be called to meet the inference of negligence and rebut.

Causation
Cause in Fact / Actual Causation
I. General principles A. Kingston v. Chicago & Northwest Railroad Co. (2 fires converge on s house): If two causes unite and either would have caused the injury, then is liable 1. Even if one cause is not by the 2. If both s act, then joint and several B. We dont go to the jury on a possibility 1. Kramer Services v. Wilkins (falling glass and cancer develops at site of cut): proof that a past event possibly caused the injury or that a certain result was possibly caused by a past event is insufficient to go to the jury. 2. Daly v. Bergstedt (grocery store fall, eventual cancer): where expert testimony indicating actual cause falls on both sides, question of cause is left to trier of fact. a. Look to whether the evidence was reliable II. Exceptions to general principles A. Creating joint tortfeasors where there was non before 1. Summers v. Tice (hunting trip accident): when two or more persons by their acts are possibly the sole cause of harm, and the introduces evidence that one of the two are culpable, then the has the burden of proving that the other person was the sole cause. a. Different from res ipsa because determining causation, not whether duty and breach B. Hotson v. East Berkshire Area Health Authority: anything that is more probable than not is treated as certain 1. Anything that is less probable than not, is treated as uncertain 2. In this case, judge said 75% chance would have gotten necrosis he would have gotten it

Proximate Cause
I. Polemis (falling board spark fire sinking) A. If an act can foreseeably cause some damage, then is liable for all damages that are directly traceable to the negligent act II. Palsgraf (man pushes passenger package falls firework explodes scale hits ) A. Cardozo: orbit of danger 1. If we dont contemplate the orbit of danger to include the , then no recovery 2. Drawing the orbit a. Before the act, around the act (foreseeable risks that come from that act) B. Andrews dissent: stream of foreseeability 1. For a time, you can differentiate between the different causes, but eventually they mix and a line must be drawn 2. Line must be drawn somewhere...matter of convenience or politics C. Drawing lines 1. Cardozo defines who liable to...more deterrent 2. Andrews limiting what liable for...more compensation

III. Wagon Mound I (oil leak falling molten metal hits debris causes fire) A. The essential factor in determining liability is whether the damages is of such a kind as the reasonable man should have foreseen 1. Judge in the case rule did not and couldnt have known the oil would light IV. Hughes v. Lord Advocate (kids near manhole go in tip lamp explosion damage) A. The injury must be foreseen, the mechanism does not necessarily have to be 1. Though the explosion may or may not have been foreseeable, the burn from the lamp was. V. Doughty v. Turner Manufacturing Co. (cover falls into chemicals eruption of chemicals) A. Duty is owed in relation to the foreseeable risks 1. Here, the risk was from splashing, not eruption (a new and unforeseeable event) VI. Kinsman: Pinball ships flood river A. An actor whose negligence has set a dangerous force in motion should not be saved from liability simply because another failed to take action which would have avoided it B. If there is a big risk of little harm and little risk of big harm, you will be liable if the act to mitigate the big harm is the same as the act to mitigate the little harm VII. Wagon Mound II: A. If it is clear that the reasonable man would have realized or foreseen and prevented the risk, then it must flow that he is liable. 1. Here, WM leaked oil and fire eventually sank other ships 2. Not stopping the oil was unreasonable, it was negligibly foreseeable, therefore liable

Intervening Causes as Superseding Causes

I. Restatement of Torts 2d 439 A. If the effects of negligent conduct is active and continuously operating to bring about the harm, then the simultaneous effects of 3rd partys act does not preclude II. Glasgow Reality Co. v. Metcalfe (kid pushes on glass glass falls out stampede below) A. Owner of apartment are liable for failure to maintain (active and continuous) breach of duty III. Brauer v. New York Central and Hudson River Railroad (criminal steals goods after railroad collision) A. Criminal acts do not supersede the original negligent act if the 3rd partys act is foreseeable IV. Other situations A. Suicide depends on the circumstances leading to the act ex: injury leads to depression B. Acts of God will not cut responsibility to the extent they are foreseeable C. Rescuers 1. Duty to a rescuer so long as the rescuer is being reasonable a. The wrongdoer is accountable even if he didnt foresee someone rescuing 2. Does not apply to professional rescuers normally because risk built into fee

Others Conduct as a Contributing Cause

Contributory Negligence
I. General propositions A. Butterfield v. Forrester (pole in role, hits pole while riding too fast, injured): 1. If a s negligence concurs with the s negligence, then the is barred from recovery B. Smithwick v. Hall & Upson Co. ( disregards s instructions to stay on one end so as not to fall, it hit by falling wall) 1. The negligent act by the must act as a proximate cause, not merely as a condition a. You assume the risks of the conduct, falling walls were not foreseeable

Comparative Risk
I. Types of comparative negligence A. Pure: assign a % of fault to each and assign damages based on that % B. Modified: 1. recovers if the s negligence is = or > than s negligence 2. recovers if s negligence is > than s negligence a. If 50/50 fault, then no recovery II. Looking at the two models in Bradley v. Appalachian Power Co. A. Modified comparative negligence has problems of arbitrary line drawing around 50% 1. Jury can make a decision to keep on the hook when they shouldnt be B. Pure is too extreme when each person contributes and must pay a portion of damage caused C. Adopts modified so recovers as long as < 50% at fault III. Martel (illegally climbing a negligently maintained power pole and falling) A. Negligence in all its forms (ordinary, willful and wanton, reckless, gross) can be compared to and offset by each other 1. Plurality rule: intentional torts not a bar on comparative negligence IV. Comparative responsibility A. Look at nature of each persons risk taking activity B. How unreasonable was the conduct under the circumstances C. How much did the conduct fall below applicable legal standards D. What was each actors abilities and disabilities E. Comparative strength of causal relationship V. Last Clear Chance A. Restatement of Torts 2d 479: Last Clear Chance: Helpless plaintiff 1. If through negligence puts himself into a situation of helpless peril which the knows or should have known of, s failure to exercise reasonable care to protect is negligence barring the use of contributory negligence B. Restatement of Torts 2d 480: Last Clear Chance: Inattentive Plaintiff 1. If through negligence puts himself in situation of unknowing peril which actually knows about, the s failure to exercise reasonable care to protect is negligence barring the use of contributory negligence 9

Assumption of the Risk

I. La Frenz v. Lake County Fair Board (monster truck death case) A. Express assumptions of the risk are valid unless 1. Against public policy 2. K of adhesion, not knowingly made, where bargaining is not free or open, lacking consideration, or uneven bargaining power 3. Affects the public interest...such as public utilities, common carriers, innkeepers 4. Extreme form of negligence II. Elements of implied assumption of the risk A. Knowledge by the injured party of a condition inconsistent with his safety B. Appreciation of the danger in the condition C. A deliberate and voluntary choice to expose his person to that danger in a manner to register assent on the continuance of the dangerous condition III. Cases of implied assumption of risk A. Herod v. Grant (falling out of the back of a moving truck while shooting at deer) 1. When one who voluntarily takes a risk, the danger of which is so obvious that the taking of the risk amounts to a failure toe exercise ordinary care, cannot hold another liable B. Jones v. Three Rivers Management Corp. (foul ball hits woman in the concourse) 1. When the risks of an activity are outside the common, frequent, or expected risks of an act or event, then a cannot be said to assume the risk C. Auckenthaler v. Grundmeyer (injury from bad horse kicking the other horse) 1. Implied assumption of the risk is more properly understood within the framework of comparative negligence and should be analyzed under ordinary standard of care D. Seatbelt defense 1. In most comparative states, failure to wear is admissible as a sign of comparative negligence that can be assigned a % a. Some states limit to a maximum % 2. Most contributory states do not admit failure to wear a seatbelt as evidence a. Treated as concurring events even though the seatbelt does not cause the action E. Helmet defense 1. Most see failure to wear a helmet as a % of the damage if there is a law 2. If no law, then what is the difference between no helmet and a convertible

Responsibility for Multiple Parties, Including the Plaintiff

I. Vicarious Liability A. A has done something wrong, B has done nothing wrong, but B will be called on to pay for As negligence B. Joint enterprise (ex: 4 friends road trip across country) 1. Express or implied agreement 2. Common purpose 3. Community of pecuniary interest 4. Equal right to be heard on direction C. Permissive use of a car 10

1. Family Purpose Doctrine: person owns a car and lets his family use it can have vicarious liability over accidents caused by family members 2. Statutory liability created in some states where there is a rebuttable presumption of permission 3. If owner is in the car, must remonstrate if the driver starts driving poorly a. Not liable if sudden change, but otherwise should remonstrate II. Respondeat superior: let the master answer A. An employer is vicariously liable for his employee if the employee is acting within the course and scope of employment B. Exceptions to the rule 1. Frolic v. detour a. Detours may be still liable, will not for a frolic. A frolic ends b. Intentional torts excluded with a few exceptions (a) If employer puts employee in a position where employee has control of people (cab driver, teacher, etc.) C. Independent contractors are generally exempt 1. Hired to do the job, IC is free to carry out as they see fit 2. Cannot get off the hook if it is a non-delegable duty III. Indemnification: a right against the negligent person A. Shifts loss from vicarious to the negligent B. If suing both people: 1. Some states allow a claim for indemnity after the initial case, but could bring during main case 2. Best shot is to say no vicarious, but if I am vicariously liable then negligent is not liable for negligence C. If vicariously liable settles, can still bring suit of indemnity if: 1. had proper and timely notice of the settlement 2. is in fact liable 3. The settlement is fair and reasonable IV. Joint and Several Liability A. Common law 1. Joint and several liability imposed if s acting in concert or in a Summers v. Tice situation 2. can sue any (or all s), then collect everything from any a. The can then go after the other s for payment of pro rata shares B. Variants on J&S liability 1. Several liability: each pays % of responsibility for the damages 2. If 50% at fault, then they are joint and severally liable 3. Some caps on % owed or max amount owed C. Modern view: allocate among the parties 1. Moving to reallocation among remaining s and if one defaults D. Effect of settlement and release 1. If settlement is fair and reasonable and a release is given, then no contribution a. Parties that do not settle are still liable E. Set off for amount paid in settlement 1. damages > settlement: pays difference; damages < settlement: pays nothing 11

Group Liability
I. Sindell v. Abbott Laboratories (DES suit against all manufacturers) A. Summers v. Tice logic must be limited to where s are in a better position to give information than the they werent here B. For a group to be acting in concert, they must be working toward a common tortuous plan/act and support the actual wrongdoer companies working in parallel action are not C. Enterprise liability cannot be established by a pervasive government standard II. Market Share Liability: as created in Sindell A. s liability is based on the market share of that B. If can show injury caused by DES, then can collect 1. can show they did not cause the injury to be released III. Sharkil v. Lederle Laboratories (Vaccine causes retardation no recovery) A. No shift of burden of proving causation when would still be in position to prove B. Policy implications: it is very important to encourage manufacture of the vaccine 1. Congress set up fund for adverse reaction, waived

Special Situations
The Failure to Aid
I. Yania v. Bigan ( allegedly taunted into jumping drown) A. No responsibility to rescue unless legally responsible for placing the person in the perilous position II. Special relationships creating a duty to aid and protect (Rst. 2d. 314) A. Contractual obligation/relationship B. Common carrier, Innkeeper, Custodian C. Possessor of land who holds it open to the public D. Promissory estoppel: one who relied on a promise to their detriment III. Posecai v. Wal-Mart Stores, Inc. (woman robbed in a parking lot) A. Business owners have duty to implement reasonable measures to protect their patrons from criminal acts when acts are foreseeable. (defines foreseeable w/ BPL) 1. Ways to analyze foreseeability a. Awareness of the specific harm b. Prior or similar incident c. Totality of the circumstances d. Balancing test (BPL) IV. Farwell v. Keaton (drunk guy beat up, friend leaves in back of car) A. When two people engage in a common undertaking, there is a special relationship between the parties. This created a duty to aid, so long as it did not endanger the . B. Once one undertakes to help an injured person, one is under an obligation not to be negligent in assisting that person V. The duty to those whose conduct has injured or threatened injury to others A. Restatement 2d 322: if you made them helpless by your conduct you have a duty to exercise reasonable care to prevent further harm

12

B. Restatement 2d 321: If one does an act which at the time he has no reason to believe will involve an unreasonable risk of causing bodily harm to another may have a duty to tae steps to prevent the risk from coming into effect once he realizes or should have realized he has created an unreasonable risk of injury 1. Example: hit a golf ball, then someone runs into the fairway. Not unreasonable to have you yell fore 2. Example 2: serve a drink that puts them over the edge, not unreasonable to impose duty for the bartender to try to prevent further injury VI. Duty of volunteer rescuers A. Restatement 2d 324: one who takes affirmative steps to aid a helpless person must take reasonable care and not leave them worse off 1. Comment g: cannot fulfill the duty by putting them in an equally perilous position B. Parvi v. City of Kindston (cops leave drunks in field, they walk onto road and die) 1. Enough to get to jury because if the was helpless they left him worse off 2. If not helpless false imprisonment C. Good Samaritan Laws 1. Began as a way to encourage doctors to volunteer w/o incurring liability 2. Now, has been expanded to the point where they are not helpful

The Failure to Warn

I. Thompson v. County of Alameda (Parolee threatens to kill a kid in neighborhood, does after released) A. Factors of whether there is a duty to warn 1. Foreseeability of the harm 2. The degree of certainty the was injured (actual cause) 3. Closeness of connection between s conduct and the injury (proximate cause) 4. Moral blame attached to s conduct 5. Policy of preventing future harm 6. Burden to and consequences to community of imposing a duty 7. Availability, cost, prevalence of insurance B. For government, also consider 1. Extent of agencys power 2. Role imposed by law 3. Limitations imposed by budget C. Holding: no duty to warn because policy of granting parole and no actual, foreseeable victim II. Eisel v. Board of Education of Montgomery County (suicide of student when counselor may have known) A. School counselors have a duty to use reasonable means to attempt to prevent a suicide when they are on notice of a child or adolescents intent

Owners and Occupiers of Land

I. Common Law Designations A. Invitee (business visitor): one who is invited onto the land for business persons 13

1. Duty to warn or fix non-obvious dangers a. Known or should have known test b. Duty of reasonable inspection B. Licensees (social guests): on the land with consent for their own purposes 1. Duty not to be more than ordinarily negligent C. Trespasser: no invitation or permission 1. Duty not to commit an intentional tort II. Lunny v. Post (woman trips on a Garden Club Tour of s house liable) A. Eliminates difference in duty between business visitor and public invitee 1. 2nd restatement says any person on land that is open to the public fall under the first categories as invitees a. Public invitee is a person who is invited to enter the land as a member of the public. A business visitor is someone who directly or indirectly connected with business dealings with the possessor of land III. Nelson v. Freeland ( tripped on a stick when going to pick up ) A. Eliminates the trichotomy entirely 1. Reasonable care is owed to all lawful visitors on the property 2. Does not include trespassers, but this creates problems (broken down too) IV. Restatement 3d Draft A. A duty of reasonable care to entrants of the land B. To use reasonable care to investigate and discover dangerous conditions and use reasonable care to attend and to know of a reasonably knowable condition on the property C. Only for dangers the possessor expects entrants will not discover or even if known, will fail to protect themselves against D. Flagrant trespassers: duty not to act in an intentional, willful or wanton manner to cause physical harm E. Even for trespassers: duty for reasonable care when the person reasonable appears imperiled and (1) helpless, or (2) unable to protect themselves V. Bennet v. Stanley: child trespasses and falls into a pool dies A. Restatement 2d 339 Attractive nuisance 1. A possessor of land is subject to liability for physical harm to a trespassing child if: a. He knows or should have known that children are likely to trespass b. The condition is one he knows or should know involves an unreasonable risk of death or personal injury to children c. Children because of their age dont discover the condition or understand the risk involved d. Utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight compared to the risk to the children e. The possessor fails to exercise reasonable care to eliminate the danger or otherwise protect the children 2. Comment n: the public interest in the possessors free use of his land for his own purposes is of great significance. a. A particular condition is regarded as not involving unreasonable risk to trespassing child unless it involves a grave risk to them which could be 14

obviated without any serious interference with the possessors legitimate use of his land. 3. The child need not be injured by the attractive nuisance itself, now concerned with foreseeable trespass a. If child is contrib. then 339 probably wont apply VI. Sargent v. Ross (child falls down stairs of landlords property) A. Traditional rule of landlord liability 1. Not liable unless injury is attributable to: a. Hidden danger which landlord knows about and tenant does not b. Premises leased for public use c. Premises retained under landlords control d. Premises negligently repaired B. Holding: Landlords must exercise reasonable care not to subject tenants to unreasonable risk of harm 1. Must act as a reasonable person under all the circumstances including likelihood of injury to others, probable seriousness of injury, burden of reducing/avoiding VII. Restatement 3d 53 Draft A. a lessor owes a duty of care 1. Portions over which he retains control; 2. Risks that are created by the lessor in the condition of the leased premises; B. A duty to disclose to the lessee any dangerous condition that satisfies all of the following: 1. (1) It poses a risk to entrants on the leased premises; 2. (2) It exists on the leased premises when the lessee takes possession; 3. (3) It is latent and unknown to the lessee; and 4. (4) It is known or should be known to the lessor; C. Duty of reasonable care for any dangerous condition when lessee takes control if: a. Lease is for a purpose that includes admission to the public and b. Lessors has reasonable to believe the lessee will have people on the property without fixing

Special Immunities
I. Charitable immunity A. Societal preference to keep charities in business B. Exceptions 1. Automobile torts up to insurance coverage 2. Often does not cover hospitals or medical facilities 3. Some jurisdictions have caps 4. Greater than ordinary negligence II. Inter-spousal immunity A. Mostly gone, but where it still exists there are tons of exceptions 1. Domestic violence, many others III. Parent-child immunity A. Branner v. Hutchinson Divisions, Lear-Siegler, Inc.: child loses hand in grain auger, files third party complaint against father 1. Blanket immunity is gone, but parental discretion and parental provision of food, clothing, housing, etc. still immune (adopted from Goller) 15

Governmental Immunities
I. Federal Torts Claim Act A. US is liable for any acts or omissions a private employer would be liable for in the jurisdiction where the act or omission took place 1. Allowed to use any affirmative defenses under the jurisdictions laws B. Procedure for filing a claim 1. After exhausting all administrative options, must file Form 95 with the agency. 2. The agency will respond w/i 6 months, then you sue after response. a. If no response, then can sue after 6 months 3. Must file in U.S. Dist. Ct. against the United States, not an employer 4. No jury unless judge empanels an advisory jury C. Feres Doctrine: no claims against the US for injuries arising from or in the course of activities incident to military service 1. May not be good law II. Liard v. Nelms: property damage from sonic boom of SR-71 plan A. The government is no liable for damages based solely on the ultra-hazardous nature of an activity undertaken by the government 1. Dalehite holds that the government is liable for negligent act or omission, but strict liability is not based in negligence at all B. Dissent: Strict liability is not included on the list of exceptions, and it would have been if it was supposed to be 1. Wrongful is a different word than negligent, can impose strict liability on a wrongful act III. Discretionary authority A. In a world of limited resources, it is the governments prerogative to allocate those resources without being second guessed 1. Rare for a to win against the government if there is a question of discretionary authority B. Also seen as a distinction between policy and operational, policy = discretion IV. State and local municipal immunity A. Most states have waived immunity in certain circumstances and situations 1. Many model the FTC act B. 11th Amendment says Fed. Cts. Cannot be used to sue the states. 1. Doesnt apply to municipalities V. Public Duty doctrine A. Duty of protection of the public at large, not of individuals unless there is a special duty to protect B. Tipton v. Town of Tabor: the wolfdog case finding of no special duty 1. In determining if the government has a special duty, look at a. Actual knowledge of dangerous condition (a) Actual knowledge alone is insufficient to create a special duty b. Reasonable reliance by persons on official representations and conduct (a) Not enough to have a general feeling you will be safe c. An ordinance or statute setting forth mandatory acts for the protection of a particular class of persons

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d. Failure to use due care to avoid increasing the risk of harm

Negligent Infliction of Emotional Distress

I. Spade rule: There is no recovery for physical injuries caused solely by mental disturbance A. Must have physical contact/impact to recover for injuries II. Dziokonski v. Babineau: Child struck by car, mother has emotional distress and dies A. The court created a number of exceptions to the Spade requirement of direct physical injuries 1. Fright induces action resulting in injury 2. When sustained paralysis 3. Intentional or reckless infliction of emotional distress 4. Emotional fright leads to immediate physical response (scared to a miscarriage) B. Alternatives to Spade for bystander cases 1. Zone of danger: you could have killed me! 2. Modified Dillon test of foreseeability a. Where there is liability for substantial physical injury caused by emotional distress and proof of s negligence, must consider (a) How did find out about the 3rd party injury (b) Degree of familial or other special relationship C. Holding: both motions to dismiss denied because mother and father are foreseeable victims of negligent inflictions emotional distress. D. Notes 1. In contrib. state: bystander cannot recover if primary victim is contrib. because it is a derivative claim 2. In comparative state: bystander can collect, but diminished by % victim is found to be contrib. III. Molien v Kaiser Foundation Hospitals (CA): neg. diagnosis of syphilis marriage problems A. NIED can be an independent tort claim 1. Physical symptoms can be proven 2. Physical injury requirement is both over and under inclusive a. Over: allows for emotional injury that causes a cold sore b. Under: leaves out profound emotional injury that do not cause important PI B. Duty to refrain from NIED 1. must show ED is such that a reasonable person would suffer a. No thin-skulled, overly sensitive s 2. A very broad rule that has been chipped away at ever since IV. Boyles v. Kerr (TX): filmed sex, leaked and sues for NIED A. Where emotional distress is recognized as an element of damages for breach of a legal duty, the claimant may recover without demonstrating a physical manifestation of the distress B. Eliminates NIED as a standalone tort 1. Leaves NIED against a bystander because bystander must still show the primary victim is killed or seriously injured V. Possible ways to look at NIED A. Direct victim 17

1. Impact rule 2. NIED with important PI that simultaneously or immediately occur after 3. NIED with important PI a. Inability to sleep, nausea, loss of appetite, and dizziness generally not enough 4. NIED without PI (Molien) a. Stand alone claim only in a minority of states, has been chipped away at B. Bystander 1. No recovery because no impact 2. Recovery only if in zone of danger 3. Dillon kind of foreseeablity with limits

Strict Liability
Animals
I. Restatement 2d 509: Strict liability for domestic animals A. A possessor of a domestic animal that he knows or has reason to know has dangerous propensities abnormal to its class is subject to liability for harm done by the animal to another, although he has exercised the utmost care to prevent it from doing harm B. 518: Except for animal trespass, one who possess or harbors a domestic animal that he does not know or have reason to know to be abnormally dangerous is liable for harm if and only if he is negligent in failing to prevent the harm. C. Duren v. Kunkel: Bull attacks , tries strict liability 1. No strict liability because not known for dangerous propensities abnormal to its class. It is a bull, everyone knows theyre dangerous 2. Allowed to proceed on issue of negligence II. Wild Animals A. Owner or possessor of a wild animal is subject to strict liability for physical harm caused by the wild animal 1. Wild animal defined as one that has not been generally domesticated and which is likely, unless restratined, to cause personal injury

Dangerous Activities
I. Historical Development A. Fletcher v. Rylands: builds a reservoirleaks into other propertyfloods other property 1. A person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril. a. Exceptions for vis major (war, rebellion, etc.), acts of god, contrib. negligence B. Rylands v. Fletcher: the damages remand 1. Makes distinction between natural and non-natural uses of land...distinction that has plagued English law C. Limits of Rylands 1. Must escape in order to apply, also must be foreseeable after Cambridge Water Co. Ltd. V. Eastern Counties Leather (ruling Rylands is an extension of nuisance) 18

D. Losee v. Buchanan: runaway boiler through 11 buildings 1. Autonomy of industry necessitates an ordinary negligence standard if the use is a non-nuisance and not managed to become one II. Development of the Restatement A. First Restatement 519 and 520 1. One who carries on an ultra hazardous activity is liable to another whose person, land, or chattels the actor should recognize as likely to be harmed by the unpreventable miscarriage of the activity for harm resulting thereto from that which makes the activity ultra hazardous, although the utmost care is exercised to prevent the harm a. Ultra hazardous is defined as an activity that involves risk of serious harm that cannot be eliminated by utmost care and is not a matter of common usage B. Second Restatement 1. 519 is the same except it removes explicitly reference to foreseeability 2. 520: To determine if an activity is abnormally dangerous, consider a. Existence of a high degree of risk of some harm b. Likelihood the harm that results will be great c. Inability to eliminate the risk by the exercise of reasonable care d. Extent to which the activity is not a metter of common usage e. Inappropriateness of the activity to the palce where it is carried on f. The extent to which its value to the community is outweighed by its dangerous attributes 3. Notes about 520 a. Any 1 is not necessarily sufficient, ordinarily several are required, not necessary that each is there (a) (a-c) is about determining the inherent risk (b) (d-f) is about balancing risk against the need, must consider always III. Applying the Second Restatement A. Klien v. Pyrodine Corp.: firework explosions 1. Fireworks are abnormally dangerous (a-c) all implicated and it is not a matter of common usage Strict Liability a. How you define common usage is really important 2. Complete departure from Rylands because not about land and not about nuisance B. Indiana Harbor Belt R.R. Co. v. American Cyanamid Co. 1. Posner says strict liability is about controlling accidents. Larger risk, the more we want a mechanism to make someone consider alternatives a. Strict liability is supposed to be about compensating accidents that cant be controlled 2. Rejects strict liability because negligence can control this activity a. The evidence was not destroyed, it was easy to determine who did what to whom C. Application of the Second Restatement to different activities 1. Blasting is almost always seen as an abnormally dangerous activity 2. Storage of gasoline is mixed (generally around whether it is a reasonable location) 19

3. Transportation of large quantities of gasoline is often abnormally dangerous 4. Reservoirs and other bodies of water are mixed, but if escape is something more noisome than water frequently imposed 5. Application of poison depends on the type (fumigation, crop dusting: yes) 6. Landfill and toxic wase is subject to strict liability because of Congressional acts 7. Atomic energy requires insurance and SL, but capped D. Very easy for legislature to act when they want to leave no doubt E. Superseding intentional acts may limit strict liability (criminals firing a gun) IV. The difference between strict liability and res ipsa A. Res ipsa requires to have exclusive control and must be injured when knows and cannot know what happen 1. In most SL cases, we know who did it V. Restatement Third Draft A. A defendant who carries on an abnormally dangerous activity is subject to strict liability for physical harm resulting from the activity 1. An activity is abnormally dangerous if: a. The activity creates a foreseeable and highly significant risk of harm when reasonable care is exercised by all actors and b. The activity is not a matter of common usage (a) Comment j: how many people do the activity? Is it pervasive? VI. Foster v. Preston Mill Co.: blasting vibrations excite mother mink kills kittens A. Strict liability should be confined to consequences which lie within the extraordinary risk whose existence calls for such responsibility B. Restatement 524A: abnormally sensitive exception 1. There is no strict liability for harm caused by an abnormally dangerous activity if the harm would not have resulted but for the abnormally sensitive character of the s activity

Damages
Compensatory Damages
I. Property damage A. If totally destroyed FMV at destruction B. If can be repaired lesser of replacement cost or cost of repair 1. Can be compensated for loss of use while repaired II. Physical injury A. Lost wages 1. Past lost wages: what the lost from missing work or working less 2. Future lost wages: Analyze raise structure, time value of money, work life expectancy 3. Diminished earning capacity: wont be able to work at same economic level a. If not working, can show you could have work if you chose and factor B. Past medical bills 1. normally on the hook for the reduced rate

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C. Collateral Source Rule: Plaintiff recovers fully for injury and the damage the defendant caused even if there is another source to support the loss 1. Allowed because no guarantee available in the future 2. Considering abolishing under 3d. Restatement D. Life Care Plan: what is the plaintiff going to need more likely than not III. Taxation A. IRS Codes 104(a)(2): In general except in the case of amount attributable to (and not in excess of) deductions allowed under 213 (relating to medical, etc. expenses) for any prior taxable year, gross income does not include - *** (2) the amount of damages (other than punitive damages) received (whether by suit or agreement and whether as lump sums or as periodic payments) on account of personal physical injuries or physical sickness B. If emotional injury that is a consequence of physical injury, not taxed 1. Solely emotion injury taxed 2. Emotional injury w/ physical manifestations and consequences taxed C. Wrongful death taxed as it relates to lost wages, not for physical injury IV. Other considerations A. Most states use some variation of the thin-skulled plaintiff B. Duty to mitigate

Punitive Damages
I. Generally A. Most states have punitive damages, but many have limitations 1. Higher standard of proof 2. Limits on the amount that can be recovered B. Need something worth punishing (more than ordinary negligence) II. BMW v. Gore A. Three guideposts 1. Reprehensibility of the conduct 2. Ratio between compensatory and punitive 3. Difference between the remedy and those imposed in comparable cases III. Evolving issues A. Exxon-Valdez case says 1:1 in a admiralty case 1. Some states have taken to mean 1:1, others working it out, other see it was an admiralty case and dont apply it

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