Intentional Torts a. Direct Intentional Torts 9.

Battery- An actor must act with 1) intent or substantial certainty 2) to cause a harmful or offensive contact 3) and the harmful or offensive contact must occur. 1. Requires dual intent. 2. Intent or ubstantial !ertainty 1. "e#uirin$ %ault 1. There must be fault in order to &rove liability. 2. Van Camp v. McAfoos 1. "ule- there must be fault in order to &rove liability for battery. 2. was hit in the back of the legs by the on a tricycle. did not provide enough facts to suggest at fault. 1. !orrective 'ustice- holds s liable only for the 2. Intent
harms they wrongfully caused. %airness. (ublic (olicy of

1. in$le Intent- intent to make contact. offenses against ones property. 1. Trespass Trespass to !hattels and !onversion. 2. Dual Intent- intent to make contact and the intent that the contact
be harmful or offensive.

1. White v. Muniz 1. ")*+one must a&&reciate the offensiveness of their actions. 2. had #l&heimers. 'he struck the in the face while trying to change her diaper. (. )ury was instructed that in order to find one liable for battery they must in addition to intending the harmful or offensive contact appreciate the offensiveness of their actions. 9.1.9.2.2.2.1.(.1.1*. !ourt determined this was an adequate +ury instruction. ,. ,-(.- is delusional and shoots his father-inlaw thinking he was a terrorist. "attery. 9.1.9.2.2.2.1.,.1.1*. -+ . There was intent to shoot the father-in-law regardless of who he was. The being delusional doesnt matter because he intended to cause a harmful contact. 2. Mullins v. Parkview Hospital 1. "ule- further establishes dual intent by re#uirin$ /s to &rove acted intentionally. 2. did not consent to student /0 operating on her. 1 given permission to intubate and lacerated her esophagus.

"attery #ssault $%.

(. granted summary +udgment b1c there was no material fact to indicate she intended to harm the . 9. )ust causing a harmful or offensive contact w1out intent is not a battery. ,. Dual Intent- 2o indication intended to harm because she was acting under the directions of her superior and was therefore not required to obtain or inquire about the s consent. 31. Transferred Intent 1. +0tended *iability (rinci&le- the who commits an intentional tort is liable for all damages caused not merely those intended or foreseeable. 2. Stoshak v. East Baton ou!e Parish School 1. ")*+- transferred intent holds that the actor is still liable re$ardless if the harmful or offensive contact was not intended for the in1ured &erson. 2. was attempting to break up a fight in school and a punch intended for the other student struck the and he lost consciousness. (. ,-(.- you throw a beer bottle at a rock miss and it hits someone else. "attery. 9. 2.. The battery was not intended for a person and there is no intent to transfer. ubstantial !ertainty 1. "arratt v. #aile$ 1. ")*+- one must act with intent or substantial certainty to cause harmful or offensive contact. 2. removed chair while was going to sit down.

(.

s liability could not be proven because there was no evidence of intent. !ase remanded to determine if acted with substantial certainty that the was attempting to sit down when he removed the chair. ,. "e#uirements of (roof 9. A. .B. v. Elkin 1. ")*+- &rovin$ of se0ual abuse allows for recovery of dama$es3do not need to &rove harm. 2. !hildren were se4ually abused by their father who admitted to it however they did not provide any medical evidence showing emotional harm. (. %t is common knowledge that with se4ual abuse comes harm and therefore one is not required to show proof of

 emotional in+ury. proof that a battery or assault took place is sufficient in order to award damages.

5. ,-(.- you intend to squirt someone with a water gun and s skin has a reaction to the water. "attery. 1. -+ . 6erson squirting intended an offensive contact and should be liable for resulting harm. 2. +0tended *iability- responsible for all damages not +ust those that are foreseeable or intended. (. ,armful or .ffensive !ontact 1. .ffensive !ontact- what a reasonable person would consider to be offensive. 1. +0ce&tion- when people are informed and have agreed to a different definition of offensiveness then the new definition replaces reasonableness. 2. Sn$%er v. &urk 1. "ule- a &erson is sub1ect to liability for battery when he acts intendin$ to cause a harmful or offensive contact and when a harmful or offensive contact results. 2. became frustrated with grabbed her shoulder and pulled her face to the surgical opening. argued he was not liable for battery because he did not cause harm by grabbing s shoulder and pulling her face to the surgical opening. liable for battery because his contact was offensive. (. ,.
7efines what a battery is with another.

an intentional un-consented to contact

"easonable 4inds Test- whether a reasonable person would find the act offensive. 5. ,-(.- w1o getting frustrated or saying anything to grabber her shoulder and pushed her face towards the wound. 8ffensive contact. 1. -+ . The is not consenting to the touching her. (. Cohen v. Smith 1. "ule- if there is an a$reement to a new definition of offensive contact and that a$reement is bro5en one is liable for the offensive contact. 1. The agreement suspends the reasonable minds test. 2. required !-section. %t was against her religion to be seen naked by a male. 9ale nurse /0 assisted during procedure. liable for battery because his actions were offensive. (. e4ceeded the s consent by assisting in the operating after being made aware of the newly agreed upon definition of offensiveness. 1. argued the s consent was unreasonable. 1. 'imilar to Ashcraft which allows a patient to place limits on their consent to an operation.

,-(.- 'uppose the male nurse had walked into the operating room and saw the naked but did not touch her. "attery. 1. 2.. There was no contact: 6roving of a harmful or offensive contact is not enough to hold one liable for battery if there is no contact. ,. ,-(.- ;ou have a germ phobia and dont want anyone to touch you. ;ou board the T and someone pushes you out of the way. "attery. 1. 2.. The person could not reasonably have known about the germ phobia and therefore did not intend a harmful or offensive contact. 5. ,-(.- 8n the T with a backpack and someone behind you cant get by grabs your backpack and pushes it out of the way. "attery. 1. -+ . <aw recogni&es that personal integrity includes things that are attached to a person. There was harmful1offensive contact because the backpack was attached to the person even though there was no direct contact with the person. (5. Assault- intent to cause a&&rehension of an imminent battery and the a&&rehension occurs. 1. Imminent- there will be no significant delay in the occurrence of a battery= does not mean immediate. 2. A&&rehension- there is an awareness of an imminent battery= does not mean fear. (. Requires dual intent. ,. "easonable 4inds Test- a reasonable person must believe that a battery will occur. 5. Cullison v. Me%le$ 1. was confronted in his home by 'andy her father mother brother > brother-in-law. $ather had a gun in his holster mother kept her hands in her pocket to imply she had a gun. was verbally threatened and believed he would be harmed. 3. ,-(.- 'uppose a person sneaks up behind someone and hits them over the head with a baseball bat. #ssault. 1. 2.. The person did not know they were going to be hit so there could not be 31. %alse Im&risonment- an intent to confine in a fi0ed s&ace6 confinement occurs6 and the &erson confined is aware of the confinement or harmed by it. 1. 2otion of !onfinement- if a reasonable person believes they are being confined. 1. 9ovement must be limited and w1in a confined space. 2. Requires dual intent. (. Interest (rotected- peoples mobility. the underlying goal of the tort of false imprisonment. ,. McCann v. Wal'Mart 1. ")*+- there does not have to be &hysical confinement. 2. and her 2 sons were escorted to the rear of the store and guarded by a security officer while waiting for the ?police.

any apprehension. battery not assault.

,.

confinement. did

not try to leave b1c she was under the impression the police were coming when in fact they were waiting for a store security official.

awareness.

5. ,-(.- 'omeone is locked in a ground floor room but it has a large sliding door thats not locked. !onfinement. 1. -+ . # reasonable person would believe they are being confined in the room despite the door therefore their movement is limited. th 3. ,-(.- # person is on the 5 floor door is locked but there is an open window. !onfinement. 1. -+ . # reasonable person is not going to +ump out the window to escape. Their movement is limited. @. ,-(.- 'omeones passport is revoked and they must remain in the A.'. !onfinement. 1. 2.. !onfinement requires a limited range of motion. Baving the entire A.'. to roam is not a limited range of motion until their movement is restricted. C. ,-(.- Two people are in a room and one is making an unbearable noise. There are no windows. The noisemaking person walks out of the room knowing the door locks automatically when it is closed. $alse imprisonment. 1. -+ . The noisemaking person had the knowledge the door would lock behind them and this shows intent. The other person is now confined w1in the room and their movement is limited. 9. ,-(.- Two people are in a room. There are no windows. 8ne person leaves closing the door not knowing it would lock behind them and the other person will be locked in the room. $alse imprisonment. 1. 2.. $% is a dual intent tort the person who left the room did not intend to confine the other person even though the door locked behind them and the person was locked in the room. Torts to (ro&erty- involve an element of force or physical intrusion which makes them similar to battery assault and false imprisonment. 1. Tres&ass to *and- intent to enter the land of another or to remain on the land after bein$ as5ed to leave and entry onto the land of another occurs. 1. Requires sin$le intent- the intent does not need to be to trespass it is enough that the intended to enter the land. 1. +0ce&tion- if one unintentionally enters the land and is asked to leave but refusesDtheir refusal is considered a trespass. 2. The right to e4clusive possession is an abstract idea and it is harder to prove damage to the land so the mere fact that one is on it is enough to prove intent. 2. +0tended *iability- is responsible for all damages to the land even if he never intended harm or could foresee it. (. (rotected Interest1. That land is real property. 1. "eal (ro&erty- land or the buildings on it. 2. The rights of e4clusive possession. 1. The ri$ht to e0clusion.

,.

,. ,-(.- Eids are fooling around and carry another kid onto someone elses land and dump him into a pond. %s the kid a trespasser. 9. 2.. There is no intent b1c the kid was taken onto the land involuntarily therefore there was no intent to enter. 5. ,-(.- There is a brook that is a dividing line of property. crosses the brook thinking they were still on their land. Trespass. 9. -+ . Trespass is a single intent tort and the only intent needed is to enter onto the land of another. 3. ,-(.- There is a cat sitting on a fence between two peoples property and the cat is wailing. 'omeone throws a shoe at the cat and misses and the shoe lands on the other persons property. Trespass. 9. -+ . The person who threw the shoe knew that either it or the cat would land on the other persons property. 2. !onversion- intent to e0ercise substantial dominion over another/s chattel and the substantial dominion occurs. 1. !hattel- any person or real property. 2. ubstantial Dominion- taking over ownership of the property for a reasonable period of time. (. Requires sin$le intent. ,. 7amage must be serious. 9. +0. Throw a cat off the roof and it breaks its neck. 5. "emedies 9. 7amages awarded based on the value of the chattel at the time of conversion. 1. The interference must be serious enough to +ustify damages. 2. !onsider7 1. F4tent and duration of control. substantial dominion. 2. s intent to assert a right to property. (. s good faith. ,. The harm done. 5. The e4pense of inconvenience caused. (5. Fquitable remedy of an in+unction may be granted requiring the property be returned. 3. ,-(.- ;ou steal someones car and crash it. !onversion. 9. -+ . The person e4ercised substantial dominion over the car by taking it and destroying it. @. ,-(.- # teacher takes a students tort book and throws it into the fire thinking it was hers. !onversion. 9. -+ . The teacher e4ercised substantial dominion over the book because she took it and it was destroyed in the fire. (. Tres&ass to !hattels- intent to interfere with another/s chattel and the interference occurs and there is actual dama$e to the chattel or the other &erson is dis&osed of the chattel. 1. Requires sin$le intent.

7amages does not need to be serious. 1. +0. Throw a cat off the roof and it breaks its ankle and hobbles off. (. School of Visual Arts v. (uprewicz 1. "ule- one is liable for tres&ass to chattels only if the chattel is harmed or the owner is de&rived of its use for a substantial &eriod of time. 2. caused large volumes of unsolicited emails to go to the schools computers which resulted in depleted hard disk space slower processing power and other negative effects. (. had a valid cause of action for trespass to chattels. ,. Difference Between !onversion and Tres&ass to !hattels 1. !onversion requires the e4ercise of substantial dominion and more severe damages= tres&ass to chattels is the interference with someone elses property. 2. Defenses to Intentional Torts 1. 'elf-7efense #rrest and 7etention 7efense of 6roperty and !onsent are dependent on plaintiffs conduct. 2. 2ecessity it not dependent on plaintiffs conduct. (. elf-Defense- the &rivile$e to use reasonable force to defend oneself a$ainst the threat of imminent assault6 battery or confinement. 1. The amount of force used to defend oneself cannot be e4cessiveDit cannot be greater than the force that is being used against you. 2. # reasonable person must conceive the other persons actions as an act of assault battery or confinement. 1. (ublic (olicy of DeterrenceDso people cannot claim self-defense for everything. (. 8ne cannot use self-defense to protect against an intentional tort to their property. ,. 3 tandards1. 8ood %aith Belief- if that person in good faith believes they are in imminent danger. 1. Ghat was the person thinking when they chose to defend themselves. 1. +0. Asing a grenade to defend yourself against someone coming at you with a shard of glass. 2. 'ub+ective inhibitions. 2. "easonable Belief- if a reasonable person believes they are in imminent danger. (. Actual %act- it is an actual fact that the person believes they are in imminent danger. ,. ,-(.- 'teve is working for a television show that pulls HharmlessH pranks on random people. $ilming one day 'teve enters a public park and walks up to a total stranger named $rank. Be pulls out a fake gun and points it at $rank. $rank has no idea the gun is fake and that 'teve has no intention of attacking him. $rank who happens to be legally

carrying his own gun for self-defense purposes pulls out his gun and shoots 'teve. 1. "easonable Belief- # reasonable person would believe that 'teve was committing an imminent battery against him would consider it an imminent threat and would respond with a proportionate amount of force. %n this case it appeared that 'teve had a gun and was about to use it on $rank so $rank defended himself with proportionate reasonable force. The reasonable belief test for self-defense should work for him. 2. Actual %act- %n actual fact $rank was in no danger. The gun was fake. %t was a television show. 'teve was in fact not going to attack $rank. #nd no HattackH in the sense of firing the gun and inflicting physical harm occurred. Fven if you considered the drawing of a fake gun an attack in the sense that it was assault and $rank was put in imminent apprehension of a battery according to the #ctual $act test $rankIs response would not have been proportionate. Therefore $rank would not pass the actual-fact test for self-defense. ,. Arrest and Detention 1. Peters v. Menar% 1. 6eters took a drill set out of the store and was approached by security officers and asked to go with them to speak with the manager. 6eters ran off and drowned in a nearby river. 2. The security officers were privileged by the state statute to follow 6eters off the premises however the Restatement permits detention on premises. 1. "oth state statute and restatement have said there needs to be a reasonable belief that the merchandise has been taken in order to arrest or detain whether it be on or off the premises. (. Actual %act tandard- Barder for store owners to use b1c they are not privileged to detain shoppers who they reasonably believed shoplifted. 5. Defense of (ro&erty- you can use reasonable force a$ainst a tres&asser but not force that can cause serious bodily harm or death. 1. %nterest of the trespasser is protected because human life outweighs the interests and rights of a property owner. 1. +0ce&tion- dwellings and warehouses are likely to be occupied and there is a recognition of the need to protect the lives of the people inside. 2. (atko v. Brine$ 1. "ule- use of reasonable force. 2. The s owned an unoccupied farm house and set up a shotgun trap because people routinely trespassed on the land. The trap went off and in+ured the . (. Brown v. Martinez 1. "ule- use of reasonable force.

2. s were trespassing in s watermelon patch. yelled to the children to leave and shot his gun in the opposite direction of the s. Anfortunately one of the s was in+ured. found liable for battery. 3. (. is liable b1c he used an action that was not equivalent to the actions of the . !onsent- what a reasonable &erson would believe to mean consent. 1. +0&ressed !onsent- e4plicitly gives consent. 2. Im&lied !onsent- e4istence of consent may be implied from s conduct or the circumstances. (. !onsent (rocured by %raud- consent induced by false information is not valid even if the voluntarily participated in the touching. ,. Duress- if consents under duress the effectiveness of the consent will depend on the immediacy and seriousness of the duress. 5. o)ins v. Harris 1. "ule- difficult to &rove consent when there is a discre&ancy of &ower between the &arties. 2. The was an inmate and the was a guard who escorted the to the bathroom during a lockdown so she could perform fellatio. (. could not use consent as a defense b1c there was a power struggle between him and the . 3. +0ceedin$ the co&e of !onsent 1. Ashcraft v. (in! 1. "ule- &atient has a ri$ht to limit consent for an o&eration. 1. !onditional consent. 2. consented to an operation on the condition that any blood being transfused was used from family-donated blood. The blood was used from the general supply and the contracted #%7'. (. e4ceeded the scope of consent. 'imilar to Cohen when made s aware it was against her religion to be seen by a male while the !-section was being performed. 5. (ublic (olicy of 'ustice 2. (enne%$ v. Parrott 1. "ule- (ublic (olicy of Administrative +0&ediency3 encoura$es self-reliant &hysicians to save money and time. 1. did not commit an intentional tort of battery because consent given to a ma+or operation is given in a general manner and is not specific conditional or limited. 2. consented to an appendectomy. 7uring operation also removed cists on her ovaries. developed blood clots in her legs due to the removal of the cists. (. never limited her consent for the operation. ,.

#oe v. *ohnson 1. "ule- consent is not valid if it is induce by false information even if voluntarily &artoo5 in the touchin$. 2. engaged in se4ual relations with and contracted #%7'. 'peaks to s substantial certainty of their actionsDshould have known that he had B%J. 2ecessity- the ri$hts of the individual are not $reater than the value of the benefit to the &ublic and the threat must be immediate. 1. 2ot de&endent on &laintiff/s conduct. 2. Surocco v. "ear$ 1. "ule- &ublic necessity allows one to use or destroy the &ro&erty of another if one reasonably believes it will &reserve communal &ro&erty or life. (. 1. The value of human life over property
the trespasser.

@.

defense of property values

2. s house was set fire by order of the in order to stop the spreading of a larger fire. $ire passed over the s house and continued burning. s lost property they were unable to retrieve. did not have to pay damages. (. Ploof v. Putnam 1. "ule- &rivate necessity entry u&on the land of another may be 1ustified by necessity when one sacrifices the &ersonal &ro&erty of another to save his life or the lives of others. 2. moored his boat to s dock during a storm. ordered servant to unmoor the boat. and his family were in+ured and the boat was destroyed. (. !onversion- e4ercised substantial dominion by unmooring the boat. ,. Battery- dock owner should have known the s would be in+ured by unmooring ,. Vincent v. +ake Erie &ransportation 1. "ule- when &rivate necessity &rovides a valid defense to tres&ass the would-be tres&asser must &ay com&ensatory relief for the dama$e caused to the /s &ro&erty. 2. s boat after unloading cargo signaled for a tug but one could not be found due to the storm. The s boat caused damage to the dock due to the way its lines were kept. had to pay damages. (. Dissent- boat in lawful position and should not be liable for the damages. ,. )n1ust +nrichment- protected his boat at the e4pense of the . 1. was not privileged to keep his boat docked at the e4pense of the . 5. 8pposite of Van Camp' held liable for the damages even though they were not at fault and did what society would have wanted them to do. 1. %f goods lost at sea prices would go up= boat could damage others in the harbor.
the boat during a storm. substantial certainty.

trict liability. (5. 2e$li$ence- conduct that creates an unreasonable ris5 of harm. 1. +lements of a (rima %acie !ase 1. Duty- owes a reasonable standard of care. 2. Breach- breaches his duty owed to the . (. !ause-in-fact- but for test. ,. (ro0imate !ause- foreseeability of the harm. 5. Actual Dama$e 2. 2e$li$ence over trict *iability 1. Fncourages society to act b1c they arent worried about being held strictly liable for in+uries when theyre not at fault. 1. #nti-deterrence- negligence law will encourage action and progress w1in society. 2. Anfair to hold someone liable in the absence of fault. Van Camp. (. 2egligence law is about the efficient allocation of risk. ,. !ontributory 2e$li$ence- a who is negligent and whose negligence contributes pro4imately to their in+uries is totally barred from recovery. 1. Do not cite to anymore6 not current view. 5. !om&arative 2e$li$ence- divides liability between and in proportion to their degrees of fault. is not barred from recovery but is reduced by a proportion equal to the ratio between his own negligence and the total negligence contributing to the accident. 3. Duty- owes a reasonable standard of care. 1. 7uty is owed when one is acting in a way to impose risks on another. 2. Reasonable person e4ercises care only about the kinds of harm that are foreseeable. (. Stewart v. Motts 1. "ule- is held to the standard of care of that of a reasonable &erson under similar circumstances. 2. assisted in repairing a transmission and poured gasoline into the carburetor. started the car it backfired and was badly burned. (. Reasonable care under the circumstances. 1. Reasonable people act with more care when undertaking a dangerous activity. ,. B,orn%al v. Weitman 1. "ule- the standard of care is always that of a reasonable &erson. 2. was driving looking for her fathers broken down car. following behind her and saw s father waving his hands. looked around assuming there was an emergency. returned his attention to the road slammed on his brakes attempted to pass on the left however she turned left as well and both collided. (. )ury instructions said one is not negligent if they find themselves in an emergency situation it is ok to make choices that might not be the wisest choice that would be made in other circumstances. 1. 'upreme !ourt disagreed if emergency instructions given they must not condone unwise decisions b1c there was an emergencyDneed to make a decision that is wise under the circumstances.
this does not increase the reasonable care standard.

Creas$ v. usk 1. "ule- the standard of care is always that of a reasonable &erson. 2. has #l&heimers and was trying to put him to bed and he was resisting. kicked in her left knee and hip causing her lower back to pop. (. by taking that +ob should have been on guard for these types of circumstances and therefore should have e4ercised a higher standard of care to prevent in+ury to herself. 1. $orseeability of her in+uries by working in an #l&heimers facility. ,. 2o sub-categori&ation for people with mental disabilities. 5. (ublic (olicy1. Removes incentive to fake a disability for a defense. 2. 9ore administratively easy if one does not have to identify if someone has a disability or not. (. 7einstitutionali&ation- protects the rest of society. 1. 8pposite of Shepar%. 3. trict *iability Chaffin v. Brame 1. "ule- one cannot be considered contributorily ne$li$ent when the conse#uences of their actions are unforeseeable or not reasonably assumed. +0cused reason from sto&&in$ w9in li$hts. 2. was driving at night when an approaching car refused to dim their headlights. 1 was blinded by the lights and ran into the s car which was left unlit on the side of the road. (. The had no reason to believe the s truck would be on the side of the road and did everything possible to avoid the collision once he saw the truck. 1. not contributorily negligent. +0ce&tions 1. 4otor :ehicles 1. Marshall v. Southern ailwa$ 1. "ule- o&erator of a motor vehicle must e0ercise ordinary care. "i$id rule by court. 2. was driving at night when a car approached with bright headlights. ran into the railroad trestle supports. (. The duty was on the to e4ercise due care and therefore the was not responsible for his in+uries. 2. (hysical Disabilities 1. Shepher% v. "ar%ner Wholesale 1. "ule- a &erson with a &hysical disability is re#uired to e0ercise the same de$ree of care as a reasonable &erson with a similar disability would under the same circumstances. 2. has cataracts. 'he was walking down the sidewalk tripped over raised concrete. (. ,.
F4tra burden placed on the . must take into account the particularities of the many different reasonable persons.

3.

@.

(ublic (olicy ocial )tility

C.

1. 'ocial concern for people who have a physical disability. 2. Fncourages people with disabilities to take part in society knowing they will not be held largely at fault. (. &ecial ;nowled$e 1. Hills v. Spark 1. "ule- a &erson is held to the same standard of care as that of someone else with the same &rior 5nowled$e. 2. was an operator of earth-moving machinery. Be was driving a machine and had his sister ride on it. 'he fell off and the machine ran over her. (. liable b1c the risk was foreseeable due to his knowledge of the activity. ,. !hildren 1. o)inson v. +in%sa$ 1. "ule- a child is held to the same standard of care that a reasonably careful child of the same a$e6 intelli$ence6 maturity, trainin$ and e0&erience would e0ercise under the same or similar circumstances. 2. lost full use of a thumb in a snowmobile accident in which the 1 was the driver of. (. %f a child is engaged in an activity likely to impose significant risks to the rest of society the child should be held to a standard of reasonable care +ust like a reasonable adult under similar circumstances would. ,. ub1ective tandard- narrow sub-group of reasonable people. 1. <ets children be children Kdont want to over deter children by making them liable for everything. 2. Hu%son'Connor v. Putne$ 1. "ule- a child is not held to an adult standard of care when no adult s5ills were re#uired. 2. !hild operating a golf cart hit the accelerator accidentally and hit the breaking her leg. needed surgery. (. Lolf carts are not generally always operated by adults. *imitin$9+0&andin$ Duty of !are 1. *andowner/s Duties to Tres&assers6 *icensees6 Invitees < !hildren 1. Fither no duty or the duty owed was considerably less than the reasonable standard of care. 2. Tres&assers- on the land w9o &ermission. 1. "la%on v. "reater Clevelan% e!ional &ransit Auth. 1. "ule- a landowner owes a tres&asser no duty e0ce&t to avoid in1urin$ him by willful6 wanton or rec5less conduct &rior to discoverin$ the tres&asser. 2. was attacked and ended up on s train tracks. #n approaching train began braking when they saw the s

shoes on the track but the train did not stop in time and the suffered serious in+uries. (. Discovered tres&asser- there is a duty to use reasonable care in carrying out the activities on the landDfailure to use reasonable care may be considered willful wanton or reckless in+ury. (. !hild Tres&assers 9. Bennett v. Stanle$ 1. "ule- The Attractive 2uisance Doctrine holds a landowner liable for harm to the child that was caused by an artificial condition on the land if7 1. The landowner 5nows that the condition is located where children are li5ely to tres&ass. 2. The landowner 5nows of the condition and reali=es or should reali=e that it im&oses an unreasonable ris5 of death or in1ury to children. (. The children do not discover the condition or reali=e its dan$erousness. ,. The utility of maintainin$ the condition and the burden of eliminatin$ it do not outwei$h the ris5 it &oses to children. 5. The landowner fails to e0ercise reasonable care to eliminate the dan$er or &rotect children from it. 2. The s neighbors allowed their pool to naturally turn into a pond. The s son fell into the pool and his mother attempted to save him but both drowned. (. The doctrine applies only to children of grade school age and rarely to teenagers. ,. *icensees- those who are on the land w9 owner/s &ermission but for limited &ur&ose. 9. 'ocial guests. 2. "ule- a landowner owes a licensee no duty e0ce&t to avoid in1urin$ him by willful6 wanton or rec5less conduct and to warn them of dan$erous conditions not obvious to the licensee. (. <andowner may be liable to a licensee in+ured by a condition on the property where the land possessor knows of a dangerous condition on the property fails to make the condition safe or to warn the licensee about the risk involved and the licensee does not know about the danger nor would be e4pected to discover the dangerous condition. ,. Discovered *icensee- landowner owes a duty of reasonable care in carrying out the activities on the land.

5. Invitee- any &erson on the &ro&erty in &art for the &ecuniary benefit of the owner or who is on the land o&en to the &ublic. 9. 6erson hired to take down trees hospice workers customers of a restaurant mall etc. (5. "ule- a landowner owes an invitee a duty to use reasonable care. 3. .&en and .bvious Dan$er 9. -.Sullican v. Shaw 1. "ule- when a dan$er is obvious to the reasonable &erson a landowner may reasonably assume the 2. The dived into the shallow end of the s pool and suffered in+uries to his neck and back. (. did not owe a duty b1c the type of in+ury was foreseeable under the circumstances. ,. did not breach a duty. Stinnett v. Buchelle @. Ado&tin$ a "easonable !are tandard for *andowners 9. Scurti v. Cit$ of /0 1. "ule- landowner owes a duty of reasonable care to all &ersons on their land3it no lon$er matters if they are a tres&asser or a licensee. 2. was electrocuted in a RR yard after crawling through a hole in the fence. C. The %irefi$hter/s "ule 9. Bas been applied outside the land as well as on it. 2. 2o longer limited to firefighters. (. 7oes not apply to private individuals who may attempt to assist during a fire rescue doctrine says it is not contributory negligence or assumption of the risk to assist in a physical emergency. ,. 8nly bars recovery for in+uries caused by the s negligence that created the risk. 5. Minnich v. Me%'Waste 1nc. 1. "ule- &recludes a firefi$hter from recoverin$ a$ainst 2. was employed by 9ed A as a public safety officer and helped load medical waster onto a truck owned by the . notice the truck began rolling forwards +umped inside and stopped it but suffered serious in+uries. 1. "ecreational )se 1. # landowner does not owe a duty of care to keep the premises safe for recreational use or to give any warning of dangerous conditions1structures1activities which people enter onto to his land for such purposes.
a whose ne$li$ence caused the firefi$hter/s in1ury while on the 1ob. no duty rule. visitor has 5nowled$e of it and is not re#uired to warn them of the dan$ers. no duty rule.

(5. <andowners should be given immunity from liability for negligence in order to encourage them to permit the public to use their land for recreation. 2. 4edical 4al&ractice a. Ghat is the duty that doctors owe to patients. 9. 2ot tested by cost benefit analysis. (5. The duty of care is that of another doctor in the same field. b. !risis 9. 9edical malpractice claims do not raise costs do not usually result in heavy damages or punitive awards and do not seem to be the cause of the crisis. 2. The problems seem to be access to the system costs and errors. (. 9edical malpractice claims keep drs from admitting they made a mistake b1c if they do there is proof of a cause of action against them. (. Walski v. &iesen!a 1. "ule- the standard of care is determined by the care customarily &rovided by other &hysicians under similar circumstances. 2. s operated on the to remove their thyroid. There was a known risk of damaging the nerve and a solution to avoid it. The s cut the nerve and the s vocal cords were paraly&ed. (. 2ecessary to use e4pert testimony to establish the medical standard of care. ,. Ver!ara v. #oan 1. "ule- the standard of care is the de$ree of care6 s5ill6 and &roficiency which is commonly e0ercised by ordinarily careful6 s5illful6 and &rudent &hysicians in the same class. 2. The s son was born and the s claim the doctor caused their baby severe and permanent in+uries. 5. Hirpa v. 1HC Hospitals 1. "ule- a &erson who in $ood faith renders emer$ency care 2. became unresponsive during labor. The responded unfortunately the died. (. The statute is intended to encourage doctors to act w1o fear of liability. 'pecialists are held to the standard of care of other doctors in their specialty. 2urses are held to the standard of care of other nurses. Bospitals are held to national standards of care fi4ed by the )oint !ommission on #ccreditation of Bospitals. 6harmacists owe not duty to their clients to warn of side effects an e4cessive dosage prescribed by the physician or that the drug is counter-indicated.
shall not be liable for dama$es resultin$ from their actions. 8ood amaritan tatute

3. @. C. 9.

1*. 2on-medical practitioners are held to the standard of care professed in their schools not to medical standards. 11. "es I&sa 1. The basis for medical res ipsa is that as a matter of common knowledge the s in+ury usually results from negligence. 2. States v. +our%es Hospital 1. "ule- e0&ert testimony may be used to assist the 1ury in determinin$ if the incident that occurred usually ta5es &lace in the absence of ne$li$ence. 2. underwent an operation and claimed she was negligently anestheti&ed causing her in+uries. (. 0)arra v. Span!ar% 1. "ule- where a > receives an unusual injury while unconscious and in the course of medical treatment, all those s who had any control over his body or the instrumentalities which might have caused the injury may properly be called upon to meet the inference of negligence by giving an explanation of their conduct. 2. underwent surgery and was unconscious. Ghen he woke up he had pain in his arm and shoulder which he never had before undergoing surgery. (. 6ossible only 1 breached a duty and the others used due care. 1. 7ifferent from Summers b1c both s breached a duty. ,. #ll s can be held liable in the conte4t of medical malpractice. 1. Fncourages those who did not breach a duty to come forth and say who did. 2. 'imilar to Collins 12. Informed !onsent 1. # person has the right to determine what will be done to their body and surgeon who performs an operation w1o patients permission commits an assault and is liable for damages. 2. 9oves it out of battery and into negligence. (. Harnish v. Chil%ren.s Hospital 1. "ule- a doctor owes to a &atient the duty to disclose in a reasonable manner all si$nificant medical info that the &hysician &ossesses or reasonably should &ossess that is material to an intelli$ent decision by the &atient whether to under$o a &ro&osed &rocedure. 2. underwent surgery and was not informed of the risks of the procedure and she suffered loss of tongue function.

(. ?all significant medical info that is materialDany info that would influence patients decision. 1. ,-(.- 'uppose the dr knew the patient was an opera singer. 1. The risk of loss of tongue function would be material b1c of patients occupation. ,. ?that the dr possesses or reasonably should possess 1. knowledge of an average dr in the same field e4pert testimony to prove 5. 6atient based standard. 3. Fncourages patient autonomy.

use

@. !ausation- the must show that if they had the proper info they would have acted differently and that a reasonable person getting this info would have foregone the procedure. ob+ective test for informed consent causation. ,. Woolle$ v. Hen%erson 1. "ule- the standard of disclosure is that of a reasonable medical &ractitioner. 2. operated on s back and the suffered in+uries similar to the risks of such a procedure but the was not made aware of the risks prior to the surgery. (. Recent trend is moving in the direction of the Harnish rule. 5. Wlosinski v. Cohn 1. "ule- a dr does not need to disclose their success9failure rate to a &atient b9c they are not ris5s of the &rocedure. 2. sought out dr for kidney transplant surgery. The last 5 out of @ surgeries performed by the had failed. The surgery was unsuccessful and the died. 3. Arato v. Ave%on 1. "ule- a dr does not owe a duty to disclose statistical life e0&ectancy info to the &atient b9c those are not ris5s of the &rocedure. 2. underwent surgery for his cancer. indicated to the he wanted to know the truth about his chances. The did not tell him the truth and the died w1o his affairs in order. @. &ruman v. &homas 1. "ule- a dr has a duty to disclose of the ris5s of refusin$ to under$o a &rocedure6 if the &atient indicates that is her intention. 2. was repeatedly advised by the to get a pap smear but never warned of the risks of not getting one. The died of cervical cancer.

Immunities 1. 'imilar to limited duty rules. 2. %amily 4embers 1. &ouse v. &ouse 1. Lenerally permitted but usually only in insurance cases. 2. <iability usually imposed for intentional torts. 2. !hild v. (arent 1. Asually not permitted. 2. Terminated when child becomes an adult or is emancipated. (. <iability usually imposed for intentional torts. ,. "oller v. White 1. "ule- &arental immunity should be done away with e0ce&t when7 1. ?hen the ne$li$ent acts involve &arental authority over the child. 2. ?hen the ne$li$ent acts involve &arental discretion over the child @food6 water6 clothes6 housin$6 medical etc.) 2. was a foster child in s home. allowed to ride on his tractor w1o warning him of the risks and the was in+ured. (. The rule bars most childrens claims of negligent parental supervision. 5. Commerce Bank v. Au!s)ur!er 1. "ule- &arental immunity a&&lies to the /s ne$li$ent acts. 2. s confined a foster child to a shelf in a closet and did not supervise her. died. 3. Hoppe v. Hoppe 1. "ule- &arental immunity does not a&&ly when the duty owed by the &arent is owed to the &ublic at lar$e and not 1ust the child. 2. while in fathers care was given a hammer and an e4plosive nail cartridge. hit the cartridge w1 the hammer and was in+ured. !harities 1. Traditional Rule- charities are not liable in tort. nd 2. Restatement 2 - there is no charitable immunity 1. 9ost states have abolished it by statute or +udicial decision. 8overnment 1. $ederal and state governments immune from tort actionsDe4tends to all their agencies unless statutes prohibit it.

(.

,.

$ederal Torts !laims #ct 1. Gaived immunity for tort suits. 2. 9ostly applies to negligent actsD situations where a private person could also be found liable. (. Gaiver does not apply to many intentional1strict liability torts. ,. Gaiver does not apply to in+uries sustained in military service. 5. Gaiver does not apply to discretional functions. F4. decision to build a dam. 3. To prevent second guessing of legislative1administrative decisions for social economic and political decisions. @. The law followed is state not federal. C. 2S v. -lson 9. "ule- %T!A allows tort actions a$ainst ) where if the ) were a &rivate &erson they would be held liable. 1*. s were 2 mine workers in+ured b1c federal mine inspectors were negligent w. inspections. 11. 3eres v. 2S 12. "ule- %T!A &rovides immunity for in1uries sustained in military service. 1(. !ases were consolidated b1c all ( s were in+ured in some way while serving in A' military. 2. 9unicipalities- not immune. ,. 2onfeasance 1. A &erson does not owe a duty to act in order to &rotect another. 1. F4ceptionsM 1. Restatement ( - if knows or has reason to know his actions caused harm to the then he has a duty to act and prevent further harm. nd 2. Restatement 2 - if created unreasonable risk of harm they owe a duty of reasonable care to prevent harm from occurring. 2. ,-(.- 7awson saw a man approach a woman outside his window with a knife and grab her purse. The man beat the woman to death while 7awson watched. Gomans family brought a wrongful death action against 7awson. 7awsons motion to dismiss the claim was granted. 1. did not owe a duty b1c he was not acting. 2. Fven if you can save someone w1 no risk to yourself the law does not require you to do so.
rd

0ania v. Bi!an 1. "ule- there is no duty to rescue someone in &eril unless the 1 was le$ally res&onsible for &lacin$ the in the &erilous &osition. 2. cut trenches in his property for mining coal. entered s property to assisting him in pumping the mines. fell in and drowned. ,. Wakulich v. Mraz 1. "ule- one who voluntarily renders aid to another must do so w9 due care and is liable for in1uries caused in failin$ to do so. 2. lost consciousness from drinking too much and s provided aid by brining her to a couch and later on to a friends house. The was taken to the hospital but died. (. ,. Restatement ( - when discontinues aid is liable if by acting unreasonably they leave the in a worse off position than before they rendered aid. rd Restatement ( - a who renders aid and knows or should know it will reduce the risk of harm to the has a duty to use reasonable care in providing the aid if failure to do so would increase harm to the beyond what e4isted before giving aid.
rd rd

5. Restatement ( - @ relationships requiring to use reasonable care for s safetyM 1. !arrier-passenger. 2. %nnkeeper-guest. (. <andowner-lawful entrant. ,. Fmployer-employeeDwhen employee acting w1in scope of employment. 5. 'chool-student. 3. <andlord-tenant. @. !ustodian-person in custody. 5. Po%ias v. Mairs. 1. "ule- a has a duty to act when their conduct &laces the in &eril. 2. drove drunk and hit the while on his motorcycle. The driver and passenger left the scene w1o assisting the . The was later run over by another car and died. (. The knowledge of peril death or bodily harm to another which a might avoid at little cost to themselves creates a sufficient relationship to impose a duty of action. 1. Fven where the danger was created through no fault of the . ,. The !ourt is trying to find some reason to hold the 2 passengers liable even though they werent driving the car.

#eShane$ v. Winne)a!o Count$ Social Services 1. "ule- a &ublic entity must have custody of another in order for there to be a duty to act. 2. made regular visits to and observed suspicious in+uries but took no action to remove the from fathers care. $ather beat the into a retarded state. 5. Duty to (rotect from Third (ersons 1. 9ost relationships do not owe a duty to protect from third parties 1. %nnkeepers-invitee. 2. <andlords-invitee. (. !ommon carriers-passengers. ,. Fmployer-employee. 2. /s "elationshi& w9 1. Mar4ua$ v. Eno 1. "ule- em&loyees9em&loyers actin$ in loco &arentis have a duty to &rotect from a third &arty. 2. ( female s alleged teachers1coach se4ually abused them and that other teachers and employees knew or should have been aware of the abuse. (. Ghen school officials know of abuse by teachers1coaches and do nothing they are in violation of their duty of care. 2. Posecai v. WalMart 1. "ule- Balancin$ Test3balance the foreseeability of the harm a$ainst the burden of im&osin$ a duty to &rotect a$ainst the criminal acts of third &ersons. 2. returned to her car in s parking lot. # man hiding under it grabbed her ankle and pointed a gun and robbed her of her +ewels. The store was ad+acent to a high crime area. (. "asis for determining foreseeability in premises liability cases is if there were previous crimes on the premises or nearby. (. <andlords have a duty to maintain common areas in a reasonably safe manner for tenants. (. /s "elationshi& w9 Dan$erous (erson 1. #u%le$ v. -ffen%er Ai% 5 estoration of ichmon% 1. "ule- owes duty of due care to &eo&le he 5nows are at ris5 and to those whose ris5 is foreseeable when rd there is a s&ecial relationshi& w9 or 3 &arty. 2. 'pencer a violent criminal was released to live in s halfway house. 8ne night be broke into the s apartment beat raped and strangled her to death. (. #dds aspect of foreseeability to the general rule where duty is imposed on someone to protect someone else

from the dangers of a violent third party when the risk of in+ury is foreseeable. 2. &arasoff v. e!ents of 2C+A 1. "ule- a thera&ist owes a duty not only to their &atients but also to any foreseeable who are at ris5 of harm from their &atient. 2. 6oddar killed the and confessed his intentions to his therapist who and the was never warned of her risk of harm. (. The duty to warn e4ists only when the patient communicates a threat to an identifiable person. (. Bri!ance v. Velvet #ove estraurant 1. "ule- One who sells intoxicating beverages for on the premises consumption has a duty to exercise reasonable care not to sell liquor to a noticeably intoxicated person. 2. served alcohol to groups of minor who drove a car into4icated and collided w1 the causing his in+uries. 3. 2e$li$ent Infliction of +motional Distress 1. %f someone commits a physical in+ury tort they are also liable for any emotional in+ury that results. 1. ,-(.- 'omeone drops a house on a person and in+ures them and from then on they are afraid to go outside for fear of having a house dropped on them 1. That fear counts as emotional distress. 2. "ru)e v. 2nion Pacific 1. "ule- The essential elements for recovery under the zone of danger test are that > must be within the zone of danger and suffer imminent apprehension of physical harm, which causes or contributes to the emotional injury. 2. was operating train when he saw a car stuck on the tracks and could not stop the train in time. suffered emotional distress and became physically ill. (. did not establish he was in fear of harm at any time. (. #illon v. +e!! 1. "ule- a bystander outside of the =one of dan$er may recover for emotional distress if7 1. is closely related to the victim. 2. is &resent at the scene of the in1ury and 5nows it is causin$ harm to the victim. (. suffers emotional distress. 2. # mother observed her daughter get hit by a car causing her death. (. "road rule of factors where you can have a little of one and

more of another

many courts moving towards rule in &hin!

&hin! v. +a Chusa 1. "ule- a bystander outside the =one of dan$er may recover for emotional distress if7 1. is closely related to the victim. 2. is &resent at the scene of the in1ury and aware it is causin$ harm to the victim. (. suffers emotional distress as a result. 2. was informed her son was hit by a car and rushed to the scene. (. Turned the factors from #illon into a rule and required all ( be met. 5. Bur!ess v. Superior Court 1. "ule- a direct victim @ in a &ree0istin$ relationshi& w9 ) may recover for emotional distress. 2. 7r noticed while was given birth the cord was wrapped around the babys neck and decided to do a c-section. The baby suffered permanent brain damage. (. 7irect victims case based on a breach of duty assumed or imposed on the . ,. Relationships are important in determining the duty owed. 2e$li$ence &er se- allows substitution of a criminal statute for standard of care and violation of the statute is ne$li$ent. 1. 7octrine that describes standard of care. 2. 2o cause of action necessary. (. Ane4cused violation of statute determines the actors negligence. ,. 'tatute that does not create a duty for an identifiable class of people cannot have per se effect. 5. Ghen applied by court statue supplants common law standard of care and violation of the statute establishes breach of duty. 3. 7oes not apply to children. @. Martin v. Herzo! 1. "ule- when one violates a criminal statute they are considered ne$li$ent. 2. driving at night without lights on his buggy hit another buggy and killed the driver. %llegal under statute to drive w1o lights on a buggy. (. !ontributory 2e$li$ence- was negligent b1c they did not have lights on their buggy. ,. !om&arative 2e$li$ence- compare s negligence to s negligence and allocate damages to each. C. -."uin v. Bin!ham Count$ 1. "ule- A "e#uirements of 2e$li$ence (er e7 1. tatute must clearly define the standard of conduct. 2. tatute must have intended to &revent the ty&e of harm. (. ,. must be a member of the class the statute intended to &rotect. :iolation of statute must have been the &ro0imate cause.

9.

2. trespassed onto landfill on a day it was closed and no employees were there and was killed. 'tatute requires the to fence or block public access to the landfill when an attendant is not on duty in order to protect human health. violated statute therefore negligent. (. Dissent- statue not intended to prevent trespassers from in+uring themselvesDintended to prevent trespassers from dumping materials that may be harmful to health. 1. 9a+ority interprets health to include death. 2. 7issent interprets health to not include death. ,. 'tatue replaces common law standard of care which is to use reasonable care. 9. 1mpson v. Structural Metals 1. "ule- "estatement of Torts3e0cused violation of state statute7 1. "easonable b9c of actor/s childhood6 &hysical disability or &hysical inca&acitation. 2. Actor didn/t 5now nor should have 5nown for com&liance. (. Actor e0ercises reasonable care in attem&tin$ to com&ly. ,. +mer$ency not due to actor/s misconduct. 5. !om&liance would involve a $reater ris5 of harm to the actor or others. 2. attempted to pass w1in 1** ft. of an intersection and struck the . 'tatute prohibits passing w1in 1** ft. of an intersection. (. s F4cusesM 1. $orgot the intersection was there. 2. 'ign marking the intersection was small. (. There were no lines to indicate no passing. ,. watching s car ahead of him which was off to the right. ,. negligent b1c his actions were not e4cusable. @. Breach of Duty- owes reasonable care but breaches it. 1. Pipher v. Parsell 1. "ule- actions must be foreseeable or &reventable in order for there to be a breach of duty. 2. and driving in s car. Third passenger grabs the wheel and does nothing. Third passenger grabs the wheel again and the car hits a tree in+uring the . (. %f actions are foreseeable and preventable and one fails to prevent those actions it is a breach of duty. 2. 1n%iana Consoli%ate% 1nsurance v. Mathew 1. "ule- no breach of duty when harm threatened is that of serious &hysical in1ury. 2. was filling lawn mower w1 gas e4ercising due careDpulled the mower away from the garage wall used a funnel filled it N of the way went home for 2* min. to let any spilled gas evaporateD started mower and noticed a flame. left to call 911 and when re returned the garage was on fire. (. not comparatively negligent b1c human life is valued over property.

1. 'erious physical in+ury could have been sustained if the attempted to move the mower out of the garage while the flames were lit. ,. udden +mer$ency Doctrine- requires that when one is faced with an emergency they must do what a reasonable person would under like circumstances. (. Pipher v. Parsell and 1n%iana Consoli%ate% v. Mathew 1. <evel of forseeability. 2. #lternatives. (. Risk to others and selfDhow serious or grave. ,. 6recautions to avoid the risk. 5. 'imilar to )udge <eonard Bands B(* formula. ,. Stinnett v. Buchele 1. "ule- the assum&tion that the em&loyer has a better more com&rehensive 5nowled$e than the em&loyee ceases when the em&loyee/s means of 5nowled$e of the dan$ers is e#ual or $reater to that of the em&loyer. 2. a doctor hired the to repair the roof on one of his barns. has previously worked on roofs before. did not supply with safety equipment and he fell off the roof and was seriously in+ured. (. did not breach his duty and was not negligent b1c s prior knowledge of the possible dangers was greater than the s. ,. 2ot the s duty to supply with safety equipment b1c a reasonable person would not e4pect to be responsible for that b1c the had prior knowledge. 5. Bernier v. Boston E%ison 1. "ule- when considerin$ breach of duty it/s im&ortant to consider the forseeability of the accident and the cost of &revention9alternatives. 2. was in+ured by a pole that fell on him due to an auto accident. The manufactured the pole. (. The incident was foreseeable due to the large number of poles that have been knocked down in the past. ,. #lternative of stronger concrete. 1. Risk to drivers increase if use stronger concreteDRisk to pedestrians increase 1. Risk more serious for pedestrians b1c they do not have a vehicle to protect them. 5. #lternative of hoops and spirals. 1. (ublic (olicy ar$ument of ocial )tility- increased price of electricity. 2nite% States v. Carroll &owin! 1. "ule- 3 (rinci&les to Determine Breach of Duty 1. (robability3forseeability of ris5. 2. 8ravity of loss3seriousness of in1ury (. Burden of &recautions3cost of alternative 2. !argo owner is suing barge owner b1c bargee was not on board claiming accident could have been prevented b1c the bargee could have used the pumps to save the barge and cargo.
if dont use stronger concrete. polycentric problem.

3.

%ormula7 1. %f the "urdenO6robability 0 %n+uryD not guilty of breaching their duty. 2. %f the "urdenP6robability 0 %n+uryD is guilty of breaching their duty and is negligent. (rovin$ *iability 1. everal *iability9!om&arative %ault 1. 7eals with s negligence. 2. 2o tortfeasor is liable for more than their proportionate share. 2. 'oint and everal *iability-when more than one &erson is a &ro0imate cause of /s harm and the harm is indivisible each may be liable for the entire harm. 1. Relationship between s and their degree of negligence. 2. Fither is liable for the full amount of damages. (. can choose which they want to sueDdoes not have to sue both. ,. 8ne tortfeasor could be responsible for all damages but they can collect contribution from the other tortfeasor.

@.

# C*Q 1. 6laintiff -

R2 ***

R1* *** damages

" 2*Q

(. Santia!o v. 3irst Stu%ent 1. "ule- must have a theory to &rove ne$li$ence. 2. was riding a school bus and claims it collided with another car causing her to hit her face against the seat. was unable to offer any details about the accident and could not remember the collision occur. (. s case was missing theory. ,. The accusation that an accident happened is not enough to hold one liable for the supposed accident. ,. &homa v. Cracker Barrel 1. "ule- 3 ?ays to (rove li& and %all7 1. The must show that the &remises owner either created a dan$erous condition.

2. (remise owner had actual or constructive 5nowled$e of a dan$erous condition. 1. !an be established by circumstantial evidence. (. The o&eration on the &remises ma5es it foreseeable that such an accident could ha&&en. 2. slipped and fell on a puddle of liquid in a common area near the entrance to the kitchen. Gitness saw waitresses carry beverage trays but did not see any of them spill anything. (. 'imilar to StinnettDonce caution sign is put out the is absolved of some liability and it is now placed on the . 5. Wal'Mart v. Wri!ht 1. "ule- storewide manual cannot be introduced to show a standard of care. 2. slipped and fell on a puddle of water in the outdoor garden area. Trial court admitted store manual to allow +ury to determine if negligent based on a violation of any rule policy practice etc. (. 'upreme court ruled the store manual could not be introduced to show a standard of care. 1. 'tore manual may pose a higher standard of care than the reasonable standard but the reasoning for the higher standard is unclear. ,. $igure out what level of care is reasonable as to safety. 1. 7ont know what the store manuals aims are. 2. The store manual is only relatable to Gal-9art 3. #uncan v. Cor)etta 1. "ule- evidence of a custom may be used to show reasonableness. 2. was in+ured when top step of an e4terior wooden staircase collapsed. %t was custom to use pressure-treated wood for outdoor staircases. used nonpressure-treated wood which was permissible under building code. 1. This custom should have been used to show reasonableness. (. 7eparture from custom is evidence of negligence but a finding of negligence is not required. ,. Ghat custom &roves7 1. The harm was foreseeable therefore the activity was risky. 2. The knew or should have known of the risk. (. The risk was unreasonable in the general opinion of the community. 5. Difference between #uncan and Wal'Mart 1. #uncan'the custom is general practice. 2. Wal'Mart- store manual belongs only to Gal-9art it is not a general custom. @. &he &* Hooper 1. "ule- when there is no custom it does not mean one acts as a reasonable &erson.

C.

"es I&sa 1. 2 +lements7 1. The accident ordinarily does not ha&&en in the absence of ne$li$ence. 2. The had e0clusive control3there was no ne$li$ence on behalf of the or a third &arty that would have led to the accident. 2. # doctrine that allows the +ury to draw an inference of negligence from the mere happening of an accident. 1. The mere happening of an accident could imply that someone has not acted reasonably. (. !reates possibility of holding s liable w1o fault. strict liability. ,. Ase res ipsa when does not have theory to prove s negligence. 5. B$rne v. Boa%le 1. "ule- the mere ha&&enin$ of an accident is evidence of ne$li$ence.

9. 'hows us what happens when one tries to use a custom argument. 2. # barge was lost at sea b1c the tug boats were not equipped with receiving radios to alert them of the storm. (. %s there a custom that should tell us something about what the reasonable person should have done under the circumstances. 9. #lthough it was not custom for an entire industry to have radios on tugs they still should be required.

2. was walking down the street and a barrel of flour hit him on the heading knocking him un conscious. The s shop was ad+acent and the barrel appeared to have fallen or been dropped from the shop. (. !ase should go to the +ury to make an inference of negligence b1c this is a type of accident that doesnt happen in the absence of negligence. ,. %t is up to the to prove they werent negligent 3. (och v. /orris Pu)lic Power #istrict 1. "ule- res i&sa is a&&lied in the absence of a substantial or &robable e0&lanation. 2. s power line broke and started a fire causing damage to s property. (. +lement B1- the accident does not happen w1out negligence. @. Cos!rove v. Commonwealth E%ison Co. 1. "ule- res i&sa not a&&licable when outside forces rather than ne$li$ence may have caused the accident. 2. 8n a stormy night a power line fell. There was a gas leak which ignited the sparks from the downed power line creating a fire that damaged s property. (. cannot claim res ipsa against the power company b1c other forces besides negligence led to the downed power line. ,. can claim res ipsa against gas company b1c gas leaks do not ordinarily occur w1o negligence. 1. +lement B1- accident does not happen w1out negligence.

Warren v. *effries 1. "ule- res i&sa is not a&&licable when has an idea as to what &ossibly caused the accident. 2. parked his car in the driveway. 5 kids piled into the back seat they heard a clicking noise and the car began to roll backwards towards a ditch. 8ne of the older children yelled to +ump out. The +umped out but fell and was run over and killed by the car. (. 6robability that the accident was due to negligence was reduced b1c did 9. "iles v. Cit$ of /ew Haven
not use the evidence available accident. did not have car inspected after the

1. "ule- the /s use of the instrument does not bar the doctrine of res i&sa. 2. was operating an elevator when the chain broke which caused the cab to shake and the to hit her head and shoulders. 'he directed the elevator to the nearest floor and +umped out sustaining more in+uries. had e4clusive contract with building to maintain and inspect the elevator. (. F4clusive control is a way of proving the s responsibility. 1. The had a long standing contract w1 the building to maintain the elevator. 1*. Collins v. Superior Air'"roun% Am)ulance Service 1. "ule- if more than one &erson has e0clusive control a case can be brou$ht a$ainst both under the doctrine of res i&sa. 2. was transported to and from rehab center. Ghen she arrived home her daughter noticed she was suffering and it was determined she was dehydrated and sustained a broken leg either from transport or her stay at the rehab. (. The s case can go to the +ury under res ipsa b1c only the s know what ,. %n a case of serial or consecutive control the occurrence of in+ury does not usually show which was negligent or that both were.
happened. +ury can hold both liable.

C. !ausation

9. !ause in %act- when the cause and effect chain of events leadin$ to /s in1uries includes /s tortuous conduct. 1. The in1ury would not have occurred but for the /s conduct. 2. Issue 1- 7id the s breach of duty contribute directly to the s damages. 1. ,-(.- a tanning facility in which the s employees mistakenly turn up the dial too far and someone one gets burned. 2e4t day discovers she has liver cancer. 1. Bave to show that liver cancer is causable by too much tanning in order to hold liable. 2. )ust b1c caner appeared simultaneously does not mean it was actually caused in some scientific way by the tanning.

(. Issue 2- %f multiple s breach of duty contributed to the s damages can they all be held liable. Bow do you allocate the damages. 1. Ase the doctrine of +oint and several liability 2. ,-(.- s on bike and they collide with who suffers broken leg and ruptured spleen. 1. 9aybe you can identify which cyclist caused the broken leg. 'pleen may be harder to identify. ,. But-%or Test 1. Hale v. -strow 1. "ule- the &laintiff must establish that but for the defendant/s conduct their in1uries would not have occurred. 2. s bushes had overgrown on the sidewalk making it impassable. The thus had to step into the road. tripped on the crumbled sidewalk as she was checking for traffic. (. s breach of duty directly contributed to the s damages. 2. Salinetro v. /$strom 1. "ule- the &laintiff must establish that but for the defendant/s conduct their in1uries would not have occurred. 2. was in a car accident and the dr. treated her by taking 4-rays of her back. The was unaware she was pregnant at the time and had to have an abortion. (. s duty was not to determine if the was pregnant before the 4-rays were taken. 1. no breach of duty. (. Two (ersons !ausin$ e&arate or Divisible In1uries 1. #s long as the two in+uries are separate liability can be apportioned ,. Two (ersons !ausin$ a in$le Indivisible In1ury 1. ,-(.- # negligently runs into a horse and leaves it on the highway. " negligently runs into the carcass in+uring his passenger. 1. "ut-for #s negligence the accident would not have occurred. 2. "ut-for "s negligence the second collision would not have occurred b1c he would have stopped or taken evasive action to avoid hitting it. (. "oth # and " are but-for causes of the passengers in+ury and both are sub+ect to liability. 2. !ant apportion liability by causation. 1. 9ust use fault apportionment 1. )oint and several liability with contribution or proportionate fault liability.
by causation. each tortfeasor will be liable only for the harms they caused and no more.

+an%ers v. East &e6as Salt Water #isposal Co. 1. "ule- when two or more wron$doers commit an indivisible tortuous act all the wron$ doers will be held 1ointly and severally liable for the entire dama$es. 1. In1ured &arty may see5 1ud$ment a$ainst all or any one of the wron$doers. 2. owned a small lake stocked with fish. Fast Te4as pipes broke and flooded s pond w1 salt water killing his fish. 'un 8ils pipes burst and also flooded the s pond with salt water and oil. (. !ourt said it does not matter whether can prove causal connection. ,. )oint and several liability takes us away from causation and focuses on responsibility. 1. "oth Fast Te4as and 'un 8il breached a duty
held liable for the full amount of damages

"oth can be

2. %n order to invoke the doctrine of +oint and several liability the will have to show that the amount of water that came from both companies was sufficient to kill all the fish. 3. An%erson v. Minneapolis7 St. Paul an% St. Marie 1. "ule- the substantial factor test re#uires that the /s actions contributed to the /s in1uries in order to &rove cause in fact. 1. 'imilar to the rule in i!ht where there must be actual damage in order to prove a negligence claim. 2. The test is used when there are multiple s. 2. s engine set fire in #ugust. s property was burned in 8ctober and argued that fire in #ugust smoldered until it burned the s property. offered proof there were other fires sweeping the area and one of these might have burned the s property. (. was still responsible for the s damages even though a man made fire combined with a natural fire and the natural fire
would have damaged the s property alone than +oint and several liability.

goes a step further

,-(.- a non-negligent fire burned a house first and the s fire burned it a week later after everything was destroyed. 1. not liable b1c there is not proof of damages. @. Increased "is5 ituations 1. An%erson an% +an%ers 2. ,-(.- a swimming pool has a fence around it and the owner of the pool forgets to lock the fence. !hild opens the door walks in and drowns. %s the homeowners breach of duty in failing to lock the fence the cause of the childs in+ury.

,.

1. 7ifficult to show causationDif the risk created by breach of duty is e4actly the type of in+ury that happens -."uin. ,-(.- 1 is driving down the road and hits a large animal killing it and leaves it on the road. This doesnt in+ure anyone but creates a higher risk for 2 who comes driving negligently and does not see the animal swerves and in+ures a passenger or pedestrian. 1. "oth are liable b1c 1 created a type of accident that 2. 8ne created a risk that the other completes. ,-(.- 2 s challenging each other to a drag race down !omm. #ve. 8ne in+ures the .

2s negligence produced.

the can get to a +ury and they can infer causation.

(.

indivisible in+ury.

,.

1. b1c s agreed and acted in concert both are liable +oint and several liability. 1. Summers 2. !onsciously acted together creating a +oint risk. C. (roof of !ause 1. #illon v. &win State "as 1. was on a bridge and high voltage wires were in front of him. lost his balance reaches out grabbing onto the wires is electrocuted dies and falls to the ground. 2. Suestion of what in+ury was caused. 1. 7id the electrocution cause the loss of the s life or simply the loss of a few additional minutes of it. 2. Summers v. &ice 1. "ule- the burden of &roof re$ardin$ causation is shifted from the to the s when they have simultaneously en$a$ed in conduct im&osin$ ris5s on the . 2. Two hunters negligently fired pellets in the direction but the was only hit by one. (. ,-(.- one or more truckers spill a ha&ardous material when making deliveries. #ll @ truckers are sued. %t was proved that one of the truckers spilled the material. 1. different than Summers b1c we dont know if all the truckers breached a duty. +or%. v. +ovett 1. "ule- loss of o&&ortunity doctrine allows a to recover when their &ree0istin$ in1ury is a$$ravated by doctor/s ne$li$ence. 2. suffered broken neck in automobile accident and alleges the s negligently misdiagnosed her in+ury and

(.

did not properly administer therapy causing her to loose a substantially better recovery. (. 3 ?ays to ,andle *oss of .&&ortunity7 1. Traditional- must prove that as a result of the s negligence they were deprived of at least 51Q chance of a more favorable outcome than they actually received. 2. !ausation requirement rela4ed and s may submit their claim to a +ury by showing s negligence more likely than not increased harm or destroyed a substantial possibility of achieving a more favorable outcome. (. needs to establish causal link between their lost opportunity and the s negligence. 9. may recover for the lost opportunity of a better outcome and may receive damages only for this. 1. (ro0imate !ause- foreseeability of the ris5s. 1. Test- whether damages occurred were within the scope of the risk of the s conduct. 2. 6olicy1)ustification for the Risk Rule 1. The rule is pragmaticDliability must stop somewhere. 1. The but-for test would leave people e4posed to liability as long as they lived. 2. %t is +ust and logical. 1. %f liability only for negligence and negligence creates a risk of harm #Dthen liability should be limited only to harm #. 9. #ny other result would create strict liability. (. ,-(.- a doctor negligently performed a vasectomy and the man fathered a child. The child set fire to the s garage. 1. The doctor is not liable for the damage to the garage because it was not a foreseeable risk of his negligent vasectomy. co&e of "is5 1. Me%calf v. Washin!ton Hei!hts Con%os. 1. "ule- the in1ury must be w9in the foreseeable sco&e of ris5 created by the /s ne$li$ence3must establish a necessary relationshi& between the action and the in1ury. 9. Test if the in1ury would be foreseeable if it wasn/t for the /s ne$li$ence. 2. "u&&er system for !ondos was negligently maintained and the was forced to wait to be let in. Ghile waiting she was attacked and suffered in+uries. (. The s in+uries were not a foreseeable risk of negligently maintaining a
bu&&er system to let people into the building 2. A)rams v. Cit$ of Chica!o

,.

unforeseeable in+ury.

1. "ule- the in1ury must be w9in the foreseeable sco&e of ris5 created by the /s ne$li$ence. 2. The failed to dispatch an ambulance for the whose contractions were 1* min. apart. The s friend drove her to the hospital ran a red light and was hit by another driver. The was in a coma for 2 weeks and the child died. (. Take the breach of duty and think of the reasonable risks the one could foreseeDan in+ury occurring from a risk you did not foresee is not the pro4imate cause of the in+ury. (. Pals!raf v. +on! 1slan% 1. "ule- the must be w9in the foreseeable class of &ersons li5ely to be in1ured by /s ne$li$ence. 2. was standing on the platform when the guard assisted a passenger onto the train. %n doing so the passenger dropped his package which contained fireworks. %t e4ploded and in+ured the . (. Anforeseeable . ,. <ook at foreseeability of the given the s negligence in the situation. ,. Me%calf and Pals!raf 1. The is liable only for harms w1in the scope of risks he negligently created 1. The types of in+uries foreseeably risked by his negligence. 2. To classes of person foreseeably risked by his negligence. 2. The is not liable unless a reasonable person in s circumstances should have foreseen that his conduct risked in+uries of the same general type that occurred to a general class of persons which the is w1in. 5. The "escuer Doctrine 1. The rescuer can recover from the whose negligence prompts the rescueDeven when the in+ures himself and the is in+ured in rescuing them. 22. 4anner of ,arm 1. Hu!hes v. +or% A%vocate. 1. "ule- the manner in which the harm occurs is insi$nificant in assessin$ the ris5. 2. s left a manhole unguarded. 2 boys descended into the hold and when the came up unharmed they knocked the lantern into the hole it e4ploded and the was severely burned. (. ;ou do not have to foresee the e4act chain of events that results in in+ury. 2. #ou!ht$ v. &urner Manufacturin! 1. "ule- the manner in which the in1ury occurs does not matter as lon$ as the in1ury is the ty&e that ha&&ens from the /s ne$li$ence. 2. # vat cover was knocked into the molten liquid and no splash occurred. # couple minutes later the vat e4ploded and the was severely burned. (. F4ception to the general rule in Hu!hes

+0tent of ,arm is )nforeseeable 1. Hammerstein v. #evelopment West 1. "ule- is liable for the full e0tent of /s harm even where the e0tent of that harm was unforeseeable. 2. negligently maintained their fire alarm. The who has diabetes was forced to walk down the stairs broke his ankle and suffered gangrene from a blister. 2. Thin 5ull "ule 1. Take the as you find themDthe fact that the harm was much worse than e4pected does not limit the from liability 2. 7oes not impose liability w1o fault. (. ,-(.- negligently strikes and the punch is that a normal person would suffer slight in+ury but the has a thin skull which the is not aware of and suffers terrible in+uries. Acts of an Intervenin$ (erson or %orce 1. Intervenin$- lies w1in the scope of the foreseeable risk or has a reasonable connection to it. 1. 'hould relieve the original of liability only when the resulting harm is outside the scope of risk negligently created by the original . 2. Intentional9!riminal Intervenin$ Acts 1. Watson v. (entuck$ 5 1n%iana Bri%!e 5 1. "ule- is not liable for another/s intervenin$ actions if they are unforeseeable. 2. negligently derailed a gasoline tank car it began leaking and someone threw a match and the gas e4ploded in+uring the . 2. #elane$ v. e$nol%s 1. "ule- is liable when the intervening cause is foreseeable, the causal chain of events remains intact and the original negligence remains a proximate cause of >s injury. 2. s boyfriend kept his loaded police gun in the house where the lived knowing the had drug problems and was depressed. attempted suicide however was only seriously in+ured. (. The traditional rule states that the purposeful act of suicide will be deemed the legal cause of a decedents injury unless the s negligence rendered the decedent unable to appreciate the self-destructive nature of the suicidal act or is unable to resist the suicidal impulse. ,. Restatement 2nd holds 2 exceptions to the traditional rule: 1. When s tortuous conduct induces a mental illness in the which the suicide attempt results the is liable. 2. When there is a special relationship between 2 parties in which the knows of the s risks of suicide the is liable. (. Negligent Intervening Acts

@.

Derdiarian v. Felix Contracting 1. Rule- an intervening act is not a superseding cause when the risk of the intervening act is the same risk that renders the actor negligent. 2. negligently constructed a barrier protecting a vat of liquid enamel. # car drove through the barrier and the was covered with the enamel and severely burned. (. 9anner of harm irrelevant 2. Ventricelli v. (inne$ S$stem ent A Car 1. "ule- the harm from the ris5 must be unforeseeable under the circumstances ma5in$ the ne$li$ent act outside the sco&e of ris5 and a su&ersedin$ cause. 2. rented a car to the with a broken trunk. pulled over in attempts to close the truck and was hit by a car. (. The actions of the car are a superseding cause because the harm suffered by the was outside the scope of risk of the s negligence in renting a car w1 a broken trunk. ,. %f the e4tent of harm was not increased by the s actions anymore than what they would have encountered the did not breach a duty. (. Marshall v. /u!ent 1. "ule- when the ne$li$ently hei$htens the ris5 to the and the is in1ured then the /s actions are the &ro0imate cause of the /s in1uries if they are foreseeable. 2. s truck ran s car off the road. 7efendant stopped to help 6laintiff and told him to direct traffic. #nother car stuck 6laintiff while attempting to avoid hitting 7efendants truck. ,. 9ost courts agree that when a causes harm to a person they are liable for any enhanced harm caused by negligent provision of aid including medical treatment. 1*. Actual Dama$e- le$ally co$ni=able harm 1. There must be proof of harm. 2. must prove the damages claimed were caused in fact by the . (. 7amages are compensatory and limited only by evidence. ,. i!ht v. Breen 1. "ule- must establish dama$es in order to have a ne$li$ence claim. 2. stopped at red light and struck from behind by . 2o physical in+uries were reported at the scene. later brought action alleging he suffered bodily in+ury from the accident. (. ,-(.- # and " get in a verbal altercation " gets mad and intentionally spits in #s face. 7oe # have a battery claim against ". 1. ;es b1c there was harmful or offensive contact
you have a cause of action in an intentional tort even if you cant show specific harm.

1. ;ou have a case of action w1o there being any specific damages.

(ersonal In1ury Torts 1. 6unitive damages are warranted in some cases where the s conduct was willful wanton reckless or malicious. 2. 2ominal damages are not awarded. (. Awardable Dama$es7 1. Reasonably incurred medical e4penses. 2. <ost earning capacity or wage loss. (. 6ain and sufferingDincluding mental pain and suffering. ,. !ost of medical monitoring of the s condition to intercept a prospective disease 5. #ny other specifically identifiable harm. ,. Ghen a is aware of their lost ability to pursue lifes pleasures damages are generally awarded for that ?loss. 5. Ghen a is not aware of their lost ability to pursue lifes pleasures damages are generally not awarded for that ?loss. 3. Martin v. 2nite% States 1. "ule C elements considered in calculatin$ dama$es in a ne$li$ence claim7 1. (ast and future medical e0&enses. 2. (resent value of lost future earnin$ ca&acity. (. (ain and sufferin$. ,. Interference with normal and usual activities. 5. s were riding a motorbike when they struck a sagging power line negligently maintained by the government. "oth suffered severe a permanent in+uries

11. Defenses of 2e$li$ence 9. !ontributory9!om&arative 2e$li$ence 1. !ontributory 2e$li$ence 1. Butterfiel% v. 3orrester

1. "ule- when the acts unreasonably and those actions led to his harm they will be found contributorily ne$li$ent and barred from recovery. 2. left a pole across the road. The was negligently riding his horse very fast did not notice the pole and fell sustaining in+uries. 2. !om&arative 2e$li$ence 1. !om&are the /s ne$li$ent conduct with the /s ne$li$ent actions and determine how much if anythin$ the should recover. 2. 9ost courts have moved away from contributory negligence and adopted a comparative negligence standard. (. (ure !om&arative %ault- not barred from recovery but receives a lesser award of damages based on their degree of fault. ,. 4odified !om&arative %ault- if the s negligence is greater than 5*Q they are barred from recovery. 5. Crownover v. Cit$ of Shreveport 1. "ule- %actors !onsidered in Assi$nin$ De$ree of %ault

1. ?hether the conduct resulted from carelessness or an awareness of dan$er. 2. The ris5 created by the conduct. (. The si$nificance of what the actors sou$ht from their conduct. ,. The actors/ ca&acities. 5. +0tenuatin$ circumstances re#uirin$ the actors to &roceed hastily. (5. # 68 ran a red light then put his lights and siren on. The proceeding through the green light hit the police car and suffered in+uries. rd 3. "estatement 3 A&&ortionment of *iability @&revailin$ view) 9. The persons conduct including awareness of the risks created by the conduct and any intent w1 respect to the harm created. (5. The strength of the causal connection between the persons risk creating conduct and the harm. $. Wassell v. A%ams 9. "ule- wei$h the cost to the of avoidin$ the accident a$ainst the cost of the of avoidin$ the accident3the &arty w9 the lower cost would be more ne$li$ent. (5. was se4ually assaulted by a man while staying at the s hotel. C. Mc/amara v. Hone$man 9. "ule- is not com&aratively ne$li$ent when it was the /s duty to &rotect them from self-harm. 2. was mentally ill and hanged herself while in a state hospital. 1. Christensen v. o$al School #istrict 1. "ule- when the stands in a s&ecial relationshi& w9 the child and owes a duty to &rotect the child then the child is not com&aratively ne$li$ent for their in1uries. 2. 1(-yeard-old student was se4ually abused by the a teacher at her school. (. # child is not comparatively negligent when they have no duty to protect themselves. 2. Assum&tion of "is5- may be barred from recovery if they 5nowin$ly and voluntarily assumed the ris5 of any dama$es caused by the /s acts. 1. "ased on s conduct. 2. ( typesM 1. F4pressed- what the did or knew about the risks and did they voluntarily waive them. 1. rose out of contractual underpinnings. 2. 7oes not need to be in writing. (. must e4pressly waive their right to sue. 2. %mplied- what would a reasonable person have done under the circumstances. 1. %ndistinguishable from contributory1comparative negligence

6rimary- another way of saying that the did not breach a duty. (. +0&ressed Assum&tion 1. Bo$le v. evici 1. "ule- must 5nowin$ly and voluntarily assume the ris5 in order to be barred from recovery. 2. had cancer and was treated by a dr that did not use a medically acceptable method. The dr made the aware of this yet she still voluntarily underwent the treatment and die w1in 1 year. 2. &unkl v. e!ents of 2C+A 1. "ule- b9c of a hos&ital/s su&erior bar$ainin$ &ower and the essential services they &rovide6 they may not use si$ned release forms to bar /s recovery. 2. was admitted to the hospital on the condition that he sign a release form absolving s of all liability for their negligent acts. (. usually does not voluntarily waive their right to sue. (. Moore v. Hartle$ Motors 1. "ule- an e0cul&atory release can be enforced if the intent is to release a &arty from liability for future ne$li$ence is obvious and clear. 2. signed a release form to partake in an #TJ safety course. The 1 was in+ured while completing the course. ,. Im&lied Assum&tion 1. Betts v. Crawfor% 1. "ule- contributory ne$li$ence and im&lied assum&tion of ris5 are mer$ed when raised as a defense to a breach of duty. 2. The was a housekeeper for the and tripped over the childrens toys sustaining in+uries. 5. (rimary Assum&tion 1. Ghat was the duty owed by the and was it breached. 2. Avila v. Citrus Comm. Colle!e 1. "ule- in recreational activities there is a &rimary im&lied assum&tion of the ris5 by the and the /s duty is not to increase the inherent ris5s3don/t be rec5less. 2. was hit by a pitch and suffered personal in+uries. (. The rule establishes a lower duty of care making it harder for the to prove negligence. (. .&en and .bvious Dan$er 1. Stinnett v. Buchele 1. not responsible for roofers in+ury b1c roofer has more knowledge about roofing. 2. did not breach a duty b1c he could reasonably e4pect the roofer to care for himself. 2. -.Sullivan s. Shaw

31.

tatute of *imitations 1. 7oes not focus on s conduct.

1. did not breach a duty b1c the could e4pect the to see that they were diving into the shallow end of the pool.

2. Requires to sue w1in a reasonable amount of time from when the incident took place. 1. !ause of action accrues when the knows that all the elements of the c.o.a. are met. 1. Discovery rule- the cause of action does not accrue until the knows or should have known of the underlying facts necessary to prove each element. 1. 7elays the claim until all elements of the tort are present and the discovers both the in+ury and the s role in causing it. (. %ntentional torts 1-2 yrs. negligence (-5 yrs. ,. "ars old claims which may be unfair or costly b1c evidence is lost or altered w1 time. 5. Cumpton v. Humana 1. "ule- the statute of limitations be$ins runnin$ from the date of the in1ury or the date of the alle$ed mal&ractice. 2. underwent surgery and was in+ured when her bed was being lowered. 'he brought suit more than ( yrs later. 3. Shearin v. +lo$% 1. "ule- the statute of limitations be$ins runnin$ when the can sue on a claim. 2. removed s appendi4 and left a sponge in his stomach. The suffered an infection and required another operation. @. McCollum v. #.Arc$ 1. "ule- statute of limitations is tolled when the has re&ressed 2. recalled of se4ual abuse as a child when she attended a child abuse workshop. 'he was 5* yrs. when she brought the suit. C. #oe. v. Maskell 1. "ule- i$norant re&ression is e#ual to for$ettin$ and will not activate the discovery rule in order for the statute of limitations to be tolled. 2. The s attended a parochial high school in the 193*s1@*s and were physically mentally and se4ually abused. They brought suit in 1992 claiming they repressed their memories until now. 9. (reem&tion and !om&liance w9 tatute 1. 'tatute requires minimum due careDsometimes due care goes beyond statute requirement as set by custom or reasonableness. 2. Miller v. Warren 1. "ule- com&liance with a re$ulation does not constitute due care &er se.
memories of the incident. discovery rule.

31.

trict *iability 1. <iability in which there is no negligence or intent. rd 2. "estatement 3 1. There is strict liability w1o proof of negligence ifM 1. The s activity creates a reasonably foreseeable and highly significant risk of physical harm even where reasonable care is e4ercised. 2. The activity is not one of common usage. 2. 'trict liability is appropriate where the victim was uninvolved. (. %f reasonable care would reduce the risks then strict liability does not apply. ,. %f the activity is common strict liability does not apply. common usage rule. (. ?rit of Tres&ass 1. $orcible harm done directly by the 1. %ntentional torts 2. 2egligence (. 2on-fault or wrongful actions ,. Suestion of whether forcibly and directly harmed the . 2. %ntent and negligence not required. ,. ?rit of Tres&ass on the !ase 1. %ncludes indirectly caused in+ury. 1. 'ome negligence in+uriesDButterfiel% v. 3orrester / left log on the road negligently rode into it0 5. Tres&ass by Barnyard Animals 1. 'trict liability tort 2. !onflictin$ uses- where an area is dominated by ranchers and ones cattle gets out the cattle owner is not liable where as an area is dominated by farmers and ones cattle get out they are liable for damages. (. ,-(.- #s cattle escape from his barn and wander onto 8s property. 1. # is strictly liable for any trampling damage the cattle may do. 2. )urisdictions where ranching predominates tend not to have strict liability for this tortDopposite in +urisdictions where farming predominates. 3. 2uisance 1. %nterference w1 use and en+oyment of the land. @. Abnormally Dan$erous Activities

2. s suffered burns in their motel room by awaking to smoke. There were no smoke alarms in the room and the fire code did not require them. (. %f s know or should have known of a risk that would have been prevented by some reasonable measures not required by regulation they are negligent if they do not take such measures. ,. !ircumstances may require greater care if the knows or should have known of other risks not contemplated by the regulation.

1. s activities creates a reasonably foreseeable and highly significant risk of physical harm even where reasonable care is e4ercised by all actors and the activity is not one of common usage. conflicting uses. 2. $lan%s v. 3letcher 1. "ule- strict liability is im&osed on one who brin$s a ha=ardous nonnatural activity onto their land and it esca&es and causes dama$e. 2. s built a lake on their land in which the planned to operate a mill. Gater from the lake escaped and flooded and damaged the s mine. C. :icarious *iability 1. # can be held liable for "s tortuous acts even though # is not negligent in any way. 2. "es&ondeat u&erior- employers responsibility for the torts of its employees committed w1in the scope of employment. 1. iviello v. Wal%ron 1. "ule- em&loyer is liable for the torts of his em&loyees if they/re committed w9in the sco&e of em&loyment. 2. Fmployer was liable for the s when he in+ured the by accidentally striking him w1 a knife in the eye. 2. 3ruit v. Schreiner 1. "ule- em&loyer is liable for the torts of his em&loyees if they/re committed w9in the sco&e of em&loyment. 2. $ruit attended a convention required by him employer. Be attended a bar after the convention and on his way home struck and in+ured 'chreiner. (. +nter&rise *iability- price of goods and activities should reflect the accident costs they cause. 1. Bolding enterprise strictly liable facilitates internali&ations of costs which reduces costs of accidents. 2. The market will tend to favor the cheaper product giving an incentive to companies to make their products and activities safer. I:. (roducts *iability 1. Those involved in commercial distribution of products are potentially liable for product caused harm. 2. can bring a claim on a contract theory for breach of warranty or on tort theories of negligence strict liability or fraud. (. <ooks at the product itself. ,. s !auses of #ction 1. 2e$li$ence- if the manufacturer was negligent and the risks were foreseeable then the manufacturer is liable. 1. (rivity "ule- basis for liability was the duty undertaken in a contract of sale and the manufacturer was only liable to buyers in privityDthose he directly sold to. 2. $ocuses on s conduct. 2. trict Tort *iability 1. $ocuses on the product. 2. +lements of a trict *iability !laim7

6rove the product was defective. 1. The defect was an actual and pro4imate cause of the in+ury. 2. The product was defective when it left the s hand. 31. 6roducts liability began as a strict liability tort w1 manufacturing defects and has slowly moved towards looking more like negligence w1 the introduction of design and information defects. 5. "ationales 1. !onsumer +0&ectations- consumers rely on manufacturers representations of the products. 2. +nter&rise *iability- ?loss spreading forces manufacturers to create safer products if products costs are to represent the costs of accidents they cause. (. (racticality- since most defective products are made that way the court is saved time by not having to prove negligence. ,. %airness- manufacturer should incur costs of in+ury b1c they en+oy the advantages of putting their products on the market. 1. 2on-reciprocal Risks- manufacturer imposes risks on the consumer which the consumer cannot impose on the manufacturer. 22. Deterrence- if strict liability imposed manufacturers will make products safer in order to avoid liability costs. 3. 4anufacturin$ Defects 1. Asually affect a small percentage of a manufacturers product in a particular line. 2. "estatement 2nd- a product contains a manufacturing defect if it e4ceeded the dangers a 1. %mposes strict liability. 1. $ocuses on the product itself rd 31. "estatement 3 - a product is defective when it departs from the manufacturers intended design even though all possible care was used in preparation and marketing. 1. 9oves away from strict liability. ,. +ee v. Crookston Coca'Cola Bottlin! Co. 1. "ule- the can use res i&sa to $et to the 1ury and rely on circumstantial evidence in which it can be inferred that it is more &robable than not that the &roduct left the manufacturer defective. 2. was a waitress and was in+ured when a coca cola bottle e4ploded in her hand. 22. *ackson v. /estle'Beich 1nc. 1. "ule- consumer e0&ectation test determines defectiveness based on whether the &roduct was dan$erous beyond what the consumer e0&ects3 nd "estatement 2 . 2. broke a tooth on a hard pecan shell embedded in the candy they purchased. @. Desi$n Defects nd 1. "estatement 2 1. # product is defective if it was more dangerous than the ordinary consumer would 2. "is5 )tility Test- weigh the likelihood of harm the gravity of harm and the cost of preventing the harm by using a different design. 1. %f the likelihood of the harm and the cost of preventing it is higher than the gravity of the harm then the product does not have a design defect.
e4pect consumer e0&ectation test. ." reasonable consumer would e4pect. consumer e0&ectation test.

2. %f the likelihood of the harm and the cost of preventing it is lower than the gravity of the harm then there is a design defect. (. 'ame reasoning in B(* formula in negligence from Carroll &owin!. rd 2. "estatement 3 - a product is defective in design when the seller could have reduced or avoided the products foreseeable risks by the adoption of a reasonable alternative design /R#70. 1. 9oves away from strict liability. (. +eichtamer v. American Motors 1. "ule- a product may be found defective in design if the > demonstrates that the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner. 2. s were passengers in a )eep when it overturned the rollbar displaced and both were killed. ,. (nitz v. Minister Machince 1. "ule- ris5 utility test states that if the ris5 of dan$er outwei$hs the benefits of the &roduct/s desi$n then it is defective. 2. s hands were in+ured while operating a press machine owned by the . The machine acted as the e4pected it to. (. !onsumer e4pectation test is not relevant for all situations. 5. Barker v. +ull En!ineerin! 1. "ule- &roduct is defective in desi$n if7 1. shows the &roduct failed to &erform as safely as an ordinary consumer would e0&ect when used in an intended or reasonably foreseeable manner. 2. If &roves the &roduct/s desi$n &ro0imately caused their in1ury and fails to &rove that the benefits of the desi$n outwei$h the ris5s. 2. was operating a lift it began to vibrate as if it were going to fall over. +umped out and was hit by falling lumber and in+ured. (. 'hifts burden of proof to the to +ustify the products design through risk utility test. 1. #ttempts to make the risk utility test stricter. ,. #ll the must do is prove the design caused the harm. Hon%a v. /orman 1. "ule- under the "estatement 3 the needs to show a "AD which must be both technolo$ically and economically feasible. 2. 7ecedent was driving drunk and drove her car off a cliff into water. 'he drowned b1c she could not unbuckle her seatbelt. (. %n addition to proving R#7 evidence must also show that the product was unreasonably dangerous and the harm was foreseeable. ,. R#7 takes consumer preferences into account. 5. 2e$li$ence- the product was defective but someone was designing it and
designing is an action there could be negligence in the process of design. C. Information Defects 1. Risk Atility Test always calls for a warning b1c the cost of one is relatively small.
rd

3.

Ghether or not a reasonable warning would have produced a different outcome. 2. +iriano v. Ho)art "roup 1. "ule- A manufacturers failure to provide appropriate information about a product may make an otherwise safe product dangerous and defective3 acce&ted under both "estatements. 2. was operating a meat grinder and his hand was severally in+ured. The safety guard that the manufacturer attached to the product was removed by the s employer. The machine had no warning indicating it should be operated w1 the guard on. (. 6rescription drugs- warning given to the doctorDlearned intermediary. 1. 7rug advertising developed and consumers challenged the rule. a. Garning should be in the advertisements. 2. %f there is no doctor the warning should be given to the consumer. Ty&e of Defect 4anufacturin$ "estatement 2 !onsumer +0&ectation Test- a product is defective when it is dangerous beyond what the consumer would e4pect. !onsumer +0&ectation Test- a product is defective if it was more dangerous than the ordinary consumer would e4pect ." "is5 )tility Test- if the risk of danger outweighs the benefits of the products design then it is defective. A manufacturers failure to provide appropriate information about a product may make an otherwise safe product dangerous and defective.
nd

Desi$n

Information

"estatement 3 # product is defective when it departs from the manufacturer/s intended desi$n even though all possible care was used in preparation and marketing. # product is defective in design when the seller could have reduced or avoided the products foreseeable risks by the adoption of a reasonable alternative desi$n /R#70 that is technologically and economically feasible. A manufacturers failure to provide appropriate information about a product may make an otherwise safe product dangerous and defective.

rd

9. Defenses i. /s !onduct 1. !om&arative9!ontributory 2e$li$ence 1. Bowlin! 2. Assum&tion of the "is5 (. Bowlin! v. Heil 1. "ule- followed minority rule in statin$ that contributory ne$li$ence by in a strict liability tort bars them from recovery. Assum&tion of the ris5 is an affirmative defense.

2. manufactured dump truck. borrowed the truck and the bed would not lower. placed his head the bed and manipulated the valve. The bed fell killing the . ,. 4isuse 1. %oreseeable 4isuse- manufacturers under duty to design products w1 foreseeable misuse in mind. 1. s misuse can be regarded as comparative fault1assumption of the risk. 2. s use can be foreseeable even if it was used in a way that the manufacturer did not intend. (. Recovery is not barred. 2. )nforeseeable 4isuse 1. 2o defectwhen s misuse is unforeseeable the product may not be 1. "ars recovery. (. Ghether or not the use was foreseeable1unforeseeable is a question for the +ury.
defective. not an affirmative defense.

(5. !ausation 1. !ause-in-fact- the defect has to be the cause in fact and pro4imate cause of the s particular in+ury. 2. H$mowitz v. Eli lill$ Co. 1. "ule- In D+ cases6 any manufacturer that &artici&ated in mar5etin$ D+ may be held liable &ro&ortional to its mar5et share of the national D+ mar5et3mar5et share theory. 2. 7F' was a drug given to women in risk of a miscarriage. %t caused cancer in the offspring of women who took it. s mother took the drug. (. 7esign defect b1c the pills didnt come off the product line different than the manufacturer intended. ,. 9arket share theory is several liability apportioned to the s share of the market