Professional Documents
Culture Documents
Battery
I. Definition
a. The intentional infliction of a harmful or offensive contact w/ the person of the b. unconsented offensive touching
II. Elements
a. b. c. d. must act s act must be intentional the act must cause a contact with the victim the contact must be either harmful or offensive
V. Contact Requirement
a. need not actually touch the at all, or even be present at the time of the contact b. an actor is liable, regardless of whether she uses her fist or a city bus to cause the contact, if it is intended to cause a harmful or offensive contact to the victim c. Consequences i. If a battery is committed, the is liable for all of the s injuries, even those that are not foreseeable (take your as you find him)
Assault
I. Definition
a. An actor is subject to liability to another for assault if: i. He acts intending to cause a harmful offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and ii. The other is thereby put in such imminent apprehension
II. Elements
a. must act with intent b. to place the victim in apprehension of a harmful or offensive contact or to mke such a contact, and c. the victim must reasonably be placed in apprehension of such a contact III. Intent Requirement (expanded) a. must act: i. with the purpose to cause apprehension of a contact, OR ii. substantial certainty that the apprehension will result b. cannot avoid liability by claiming that he did not mean to place the in fear of an unwanted touching if he knew to a substantial certainty that fear of a touching would result (same as in for battery) c. a who attempts to batter the but misses is liable for assault if the is placed in apprehension of a blow d. must prove that she feared the type of contact tht would support a battery claim if it actually occurred i. thus the analysis of the meaning of harmful or offensive for battery is also necessary for assault IV. Apprehension Requirement (expanded) a. Means the perception or anticipation of a blow, rather than fright i. Assault protects not only against the fear of an unwelcome contact, but also against the mere expectation or anticipation of one b. The apprehended contact must be imminent i. s act must cause the victim to expect that he is about ot be touched ii. does not mean immediate iii. rather, it means that there will be no significant delay 1. not necessary that one shall be within striking distance or that a weapon pointed at the other shall be in condition for instant discharge a. it is enough that one is so close to striking distance that he can reach the other almost at once, or that he can make the weapon ready for discharge in a very short interval of time iv. fear of future conduct will not support liability for assault 1. especially because they leave the time to take other steps to prevent the harm c. ability to actually cause the threatened contact is not required
i. only turns on whether the s act would place a reasonable person in apprehension of an unwanted contact ii. if he uses a toy gun and the does not know that it is a toy gun, this could still place a reasonable person in apprehension of an unwanted contact d. The Mere Words Problem i. Many courts have held that mere words alone cannot constitute an assault, because they do not sufficiently show the s purpose to immediately batter the victim ii. Restatement (Second) of Torts 31 provides a more flexible approach 1. Words do not make the actor liable for assault unless together with other acts or circumstances they put the other in reasonable apprehension of an imminent harmful or offensive contact with his person e. Conditional Threats i. Some factors undermine the imminence element of the assault either by showing that the does not intend to carry out the assault 1. If you hadnt fouled out, Id bet you to a pulp 2. If you were not an old man, I would knock you senseless ii. Some threats, however, will constitute assault even though they are conditional 1. Example: If you dont get off this track, Ill break your nose 2. Still constitutes assault because we do not want bullies to be able to impose their will on others by the threat of force and not incur liability
False Imprisonment
I. Definition/Elements
a. An actor is subject to liability to another for false imprisonment if: i. He acts intending to confine the other or a third person within boundaries fixed by the actor, and ii. His act directly or indirectly results in such a confinement of the other, and iii. The other is conscious of the confinement or is harmed by it II. Intent Requirement (expanded) a. must have acted with the purpose to cause the confinement, or with substantial certainty that his acts will cause it i. same as other intentional torts b. one may act deliberately but not intentionally i. example: zookeeper shutting the door to a tigers cage not realizing that someone is still in there 1. (any remedy would be for negligence, not intentional tort) III. Confinement Requirement (expanded) a. Confinement must be within some bounded area b. Not all restraints on a s freedom constitute confinement i. Preventing the from going to one particular place does not confine her, even though it restricts her freedom of movement in some degree 1. (such s a shopkeeper blocking the door to her shop, not letting the person in) ii. Similarly, blocking the s way in the street will not support recovery for false imprisonment, as long as can go some other way
Trespass to Land
I. Definition
a. One is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally: i. Enters the land in the possession of the other, or causes a thing or a third person to do so, or ii. Remains on the land, or iii. Fails to remove from the land a thing which he is under a duty to remove
II. Elements
a. Intentional b. Entry c. On the land of another
Trespass to Chattel
I. Definition/Elements a. The ways in which an actor can commit trespass to chattels; by intentionally: i. Dispossessing another of the chattel, or ii. Using or intermeddling with a chattel in the possession of another b. When one commits a trespass to chattel, he/she is subject to liability to the possessor of the chattel, if but only if, i. He dispossesses the other of the chattel, or ii. The chattel is impaired as to its condition, quality, or value, or iii. The possessor is deprived of the use of the chattel for a substantial time, or iv. Bodily harm is caused to the possessor, or harm is caused to some person or thing in which the possessor has a legally protected interest II. Notes on Trespass to Chattel a. Harm: unlike trespass to land, which is actionable without any resulting harm, liability for trespass to chattels is limited to those which cause resulting harm b. Intent: as with other intentional torts, the actor must act for the purpose of causing the trespass or with substantial certainty that the trespass will result i. Negligent interference with personal property will not support recovery for trespass to chattels c. One who totally deprives a possessor of a chattel is liable for trespass to chattels, but usually total deprivation is treated as conversion these two remedies overlap d. Possessor: the definition provides that one who damages or takes a chattel is liable to an immediate possessor i. but it also provides that a tortfeasor is also liable to a person entitled to future possession ii. lawn mower example: A borrows Bs lawnmower, C smashes it with a sledge hammer 1. C is liable to A as an immediate possessor but is also liable to B as a person entitled to future possession
II. Consent
a. With doctors: i. Some cases: consent was general in nature and the surgeon may extend the operation to remedy any abnormal or diseased condition in the are of the original incision whenever he, in the exercise of his sound professional judgment determines that correct surgical procedure dictates and requires such extension of the operation originally contemplated ii. Others: Court said that a patient has a full and complete right to their body and general consent would be too broad b. CANNOT consent to illegal things (illegal boxing matches) c. Consent can be limited in scope
III. Necessity
a. Will justify entries upon land and interferences with personal property that would otherwise be considered trespass; BUT not if you need it too (Ploof v. Putnam) b. Individual rights of property give way to the higher laws of impending necessity/yield to interests of society c. Restatement (Second) of Torts 196: privileged to enter land in the possession of another if it is, or the actor reasonably believes it to be, necessary for the purpose of averting an imminent public disaster i. but in some cases, if society received the benefit it should have to pay
NEGLIGENCE
In General
I. Elements
a. b. c. d. Duty of reasonable care Breach of that duty Causation Resulting damages
II.
e. The Relevance of Personal Circumstances i. Some individual characteristics of the actor are considered part of the circumstances in determining reasonableness ii. Reasonable person standard is a legal judgment, not a moral one 1. Morally we could hardly fault the insane/etc for this conduct 2. BUT, for legal purposes, we need a standard that defines fault in some predictable, universal way 3. Provides a neutral instrument for deciding disputes, not a value judgment about a persons character iii. Allowances are made for physical disabilities, no allowance is made for the circumstance that a person lacks good judgment, is hasty, awkward, etc 1. Vaughn v. Menlove iv. Mentally ill 1. The traditional rule is that the mentally ill are held to the same standard as everyone else despite the circumstance of their illness v. Children 1. Generally not held to the adult standard of care, but rather to the standard of a reasonable person of like age, intelligence, and experience under like circumstances (clearly does make allowances for their mental ability and development) 2. Rationale: children have to learn to be careful, and ought not to be exposed to tort liability for conduct that is reasonable in light of their stage of development during the learning process 3. EXCEPTION, a good many cases hold that children who engage in certain high-risk activities primarily engaged in by adults, such as driving, to the adult standard of care f. The Relevance of External Circumstances i. External circumstances in which a person acted are always relevant ii. The reasonableness of the s decision is always judged in relation to the unique context or circumstances in which she made it 1. The so-called emergency doctrine means no more than this; that in judging the reasonableness of conduct in an emergency, the circumstance that the must act quickly is relevant iii. Other circumstances are also relevant 1. Custom: a. It is relevant that the acted as others customarily do in like circumstances b. The fact that conduct is generally engaged in by those in a particular trade or profession at least suggests that such conduct is acceptable c. HOWEVER, while relevant, evidence of custom is not dispositive a custom may continue long after thoughtful
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analysis would compel its rejection, or a new precaution may be ignored despite its obvious benefit 2. Expert a. Whether the is an expert in a particular field is relevant b. Does not mean that persons with specialized knowledge are held to a higher standard of care than others i. Their standard, like that of others, is reasonable care under the circumstances ii. BUT, the fact that an actor is a profession or assumes the role of an expert in an activity is a circumstance that colors the meaning of reasonableness iii. A professional will be expected to possess and employ the skill and knowledge of his profession, not of the ordinary reasonable person 3. Statute (see below negligence per se)
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iii. Looks a lot like the negligence per se with excuse doctrine 1. Both allow to offer evidence of a good reason for her conduct a. if she does not offer such evidence, the violation of the statute establishes her negligence b. if she does, the jury is left to assess her conduct under a reasonable person standard, considering both the requirements of the statute and the violators reasons for violating it 2. Both keep the burden of proof with the a. can prove negligence by proving violation of a relevant safety statute, if does not offer evidence of an adequate reason for the violation b. If evidence of an excuse is offered, the burden remains on the to convince the jury that, in light of the violation and the reason offered, the did not behave as a reasonable person would under the circumstances d. Evidence of Negligence i. Treat violation of a statutory standard of care as evidence of negligence ii. Evidence that the violated a statute is admissible at trial 1. Jury may consider along with all other evidence that the did or did not exercise ordinary care 2. May be persuaded that was negligent but they are not compelled to find him negligent, even in the absence of rebutting evidence from the a. Free to find that wasnt negligent even if he offers no excuse
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II. Elements
can make a case for the jury under res ipsa loquitur by showing (foundation facts): a. That he was injured by an accident that would not normally happen without negligence b. That the negligence is more likely than not attributable to the rather than to the or a third party
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a. Evidence must point to the as the negligent party b. Cases often state that this attribution requirement is not met in a res ipsa loquitur case unless the instrumentality that caused the harm was under the s control at the time of the accident i. This formula is clearly too narrow, and most courts have not taken it so literally as to preclude use of res ipsa in appropriate cases ii. Often say that may invoke it so long as can demonstrate that the negligence was likely that of the rather than himself or other parties
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VII. The Defendants Case: Fighting Res Ipsa Loquitur a. Most effective way to rebut res ipsa is to prove the actual cause of the accident b. Short of that, the can attack each of the foundation facts necessary to support it i. May question 2nd foundation fact by showing that other persons mishandled the product that caused the injury after it left his hands ii. May undermined the 1st foundation fact by showing other, common, nonnegligent causes of this type of accident c. May also try to refute by proving that he generally exercised due care i. Does not conclusively eliminate negligence as the cause, but it could influence the jurys thinking about the probabilities ii. BUT, it can backfire 1. The more careful the s procedures, the less likely that an accident would happen if they had in fact been followed 2. Could lead them to conclude that, had the procedures been followed, there would not have been an accident at all d. Often suggest that should be able to rely on res ipsa because has better access to evidence of the cause of the accident than the i. However, most courts do not restrict the doctrine only to cases in which the has better access to proof
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Contributory Negligence
I. Overview a. It compares negligence between the and the i. Between them, who is more negligent?? b. Must show that but for the not living up to his duties, the injuries would not have occurred c. We hold BOTH the and the to reasonable person standard i. Same standards, same duties ii. s alleged contributory negligence must be a cause of the accident (substantial contribution) (see Smithwick v. The Hall & Upson Co.) iii. Negligence and contributory negligence have the same standard, they just go in the opposite direction (same rules of foreseeability, etc) d. Contributory negligence is NOT a defense against malicious or illegal actions e. Cannot claim contributory negligence in situations where people are institutionalized for the very reason that they cannot control their conduct and try to bar their recovery for that behavior (Padula v. State) f. has to show negligence, has to prove contributory negligence g. If there is a special relationship (like custodianship) we cannot argue that the one under supervision is contributorily negligent (Padula; Christensen v. Royal School District No. 160) II. Property and other rights a. When it comes to property you have the right to do what you want with your land and this shouldnt be hindered by someone elses actions unless and until you hurt someone else (Leroy Fibre Co. v. Chicago, Milwaukee & St. Paul Railway Co.) b. There are some rights that we protect so much (such as property) that we will not let them be encumbered by negligent acts of others and we will not say that you contributed in negligence for your actions i. But you cannot use your property in a way that would harm 3rd parties (foreseeable)
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Assumption of Risk
VIII. Overview a. Basic premise: a person who is aware of a risk, and knowingly decides to encounter it, accepts responsibility for the consequences of that decision, and may not hold a who created the risk liable for resulting injury b. Unlike contributory negligence, this is not a wave of the past c. Early cases applied this to the context of workers on the job d. Differs from contributory negligence because it requires a showing that the actually KNOWS of a danger and chose to proceed IX. Express Assumption of Risk a. Arises when the expressly agrees that she will not hold the liable for injury she suffers from a risk created by the b. Qualifications i. It is essential that the consent to accept the risk is freely given 1. Emergency voluntary (Tunkl v. Regents of U of Cal) ii. must clearly consent to accept the particular risk that led to the injury 1. Thus, an agreement to assume the risk of injuries will not extend to collateral risks beyond their contemplation (those not inherent (can be reduced without affecting it) to the activity) (Moore v. Hartley Motors) unless these are explicitly agreed to iii. Waivers will not be enforced in certain contexts involving essential services c. The real basis for rejecting these claims is that the operator was not negligent, the risk was inherent in the activity X. Implied Assumption of Risk a. A may also accept risks simply by engaging in activity with knowledge that it entails certain risks, even if conducted with due care i. In such cases, participants assume the risk of injuries from the inherent dangers of the activity b. the considers the trade-off worthwhile and accepts the possibility of injury because she enjoys the activity c. s who choose t oengage in unavoidably risky activities assume the inherent risks of the activity and have no claim for injuries resulting from those risks d. risks not inherent to the activity: i. dangers created by negligent operation e. secondary implied assumption of risk 1. after becoming aware of the unreasaonble risk created by the , chooses to encounter it and suffers an injury as a result 2. has been injured due to the s negligence but the argues that the s conscious choice to encounter the negligently created risk should bar her recovery 3. common law barred recovery for this even though the could
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Comparative Negligence
I. Overview a. Reduces recovery but does not usually bar it b. Moved from contributory negligence (complete bar to recovery) to comparative fault and allocating damages accordingly II. Problems a. Verdicts where jury doesnt want to give someone a lot of money b. Some courts say how do you deal with wanton and willful conduct? c. Not necessarily evident that this is better than contributory negligence but eliminates the situation in which you are 1% negligent and cannot recover (as such is the case under contributory negligence) III. Up to a point policies a. In some states (like Wisconsin) your fault must be 50% or below b. In other states (like North Dakota) your fault must be below 50% c. Why do some states have these?
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CAUSATION
I. Overview
a. Fundamental fairness requires that a be held liable only for injuries he actually caused b. To assure that liability will only be imposed where the s loss is fairly attributed to the s conduct, courts have developed two causation requirements: i. Causation in fact ii. Proximate cause
Cause in Fact
I. Traditional But For Test
a. The s conduct is a cause of the event if the event would not have occurred but for that conduct i. conversely, the s conduct is not a cause of the event if the event would have occurred without it b. the court asks whether the would not have suffered the harm but for the s negligence i. in other words, if we went back and replayed the accident, but take away the s negligent act, would have escaped injury? c. Another way of saying this is that the s act must be sine qua non of the s injury i. without which it is not; an indispensable requisite ii. the injury would not have happened without the s act iii. again invites us to look at what did happen and compare it to what would have happened if had not been negligent
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ii. Has been followed by a number of courts but some have rejected it iii. When followed it is followed narrowly, doesnt hold every time sues more than one ; only works when but for fails
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Proximate Cause
I. The Crux of the Problem
a. s cannot be held liable for every consequence of their conduct, even if that conduct is negligent b. courts will deny recovery, even though the s action is negligent, if the s harm is too unusual, too far removed from the type of harm to be anticipated from the s negligence to warrant imposing liability c. this is not based on a lack of actual causation i. if the only issue were cause in fact, the would likely pay in these types of situations d. however, unless actual causation (cause in fact) is found, there is no need to consider issues of proximate cause at all i. if was not a cause in fact of the harm, court will dismiss the case w/o reaching the complex policy question of whether liability should follow
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c. Foreseeability/Scope of the Risk i. Perhaps the most helpful approach to proximate cause considers whether the , at the time he acted, could foresee the risk that injured the ii. Under this approach, the court considers what the risks were that made the s conduct negligent in the first place 1. If the should have anticipated a particular risk at the time he acted, and he negligently failed to avert that risk, he would be liable if that risk caused the s harm iii. In other words: an actor is negligent for ignoring foreseeable risks 1. When those risks cause injury, liability follows, because ignoring those risks was negligent 2. BUT if some bizarre result happens, a risk that a reasonable person would not have foreseen, the actor is not liable, because failing to avoid that risk was not negligent iv. The foreseeability/scope of risk approach to proximate cause has the virtue that it provides an analytical basis for consistent decision making 1. Relates the scope of liability to the faulty aspect of the s conduct, and the judge/jury can ask what unreasonable risks the should have anticipated at the time she acted, and compare those risks to the injury that actually occurred
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c. Wagon Mound i. s oil fouled the waters around the s dock, where welding was in process ii. because of its high ignition point, the oil was unlikely to burn, but it did, through a strange concatenation of circumstances found in the case to be unforeseeable 1. other injury to the dock, however, was foreseeable iii. could only recover fro the injuries that the should have anticipated at the time it released the oil into the water 1. it would be liable for fouling the slips of the s dock, a foreseeable consequence of releasing the oil, but not for the unforeseeable fire which destroyed the dock itself
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injury ii. Foreseeability is not to be measured by what is more probable than not, but includes whatever is likely enough in the setting of modern life that a reasonably thoughtful person would take account of it in guiding practical conduct
V. Superseding Cause
a. In a good many proximate cause cases, the argues that, even if she was negligent, a later act supersedes her negligence and breaks the causal chain b. Derdiarian v. Felix Contracting Corporation i. contractor was working in an excavation in the traveled roadway and failed to erect a barrier to protect workers from traffic ii. Dickens, an epileptic who had failed to take his medication, suffered a seizure and lost control of his car, and careened into the excavation, throwing him form the car where his body ignited from a kettle of hot enamel in use for the repairs iii. Involves a typical scenario in which superseding casue argument is raised 1. First, is negligent (failure to erect the barrier) 2. Second, some other act happens after the s negligence (Dickens passing out due to failure to take meds) 3. Third, the two acts together lead to an injury to the iv. Applying scope-of-risk analysis, the outcome is clear: working in the middle of a busy street poses a risk that a vehicle will enter the worksite 1. This is a foreseeable risk that makes it reasonable to put up a barrier 2. This is the risk that injured Derdiarian, so should be held liable 3. He was held liable c. So what kind of events would a court find a superseding cause that cuts off the liability of the previously negligent party? i. Generally speaking, courts will not hold the negligent party liable when bizarre, unforeseeable events give rise to a risk different from the one the should have anticipated ii. Usually held for criminal acts 1. However, in many circumstances, criminal acts are foreseeable, and indeed, are the very risk that require the reasonable person to take precautions a. Hines v. Garrett i. Train passed s stop and then let her off a mile down the line, in an area known to be frequented by vagrants and she was subsequently assaulted while walking back to her stop ii. The court summarily dismissed the railroads argument that the assault was a superseding cause:
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the very danger to which this unfortunate girl fell victim is one which would at once suggest itself the average and normal mind as a danger liable to overtake her under these circumstances iii. When the risk of criminal conduct is foreseeable, it will not cut off the liability of a who negligently exposes the to that risk
AFFIRMATIVE DUTIES
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I. Overview
a. Although duty is one of the 4 elements a must prove to recover for negligence, courts have not been willing to impose a universal duty of care i. often refused to hold s liable, even though they have clearly caused foreseeable harm b. Why courts impose duties or refuse to impose them i. Tort duties are made up by judges because they conclude that a duty ought to exist under the circumstances 1. Merely conclusory expressions that, in cases of a particular type, liability should be imposed for damage done ii. Though the duty issue is complex, we can at least identify major factors that judges consider in deciding whether to impose a duty in a given case 1. Judges sense of morality 2. Foreseeability and the extent of the likely harm 3. Burden that the new duty will impose on 4. Alternative ways of protecting s interest 5. Increased safety likely to result from imposing the duty 6. Chilling effect the duty may have on s conduct iii. Foreseeability of harm weighs heavily since it makes basic good sense that a should avoid foreseeable injuries to others iv. Moral argument is also strong in many duty cases v. Courts hesitate to create duties that impose excessive burdens on actors vi. Administrative problems of enforcing the duty may also influence the courts judgment vii. Legislative policies and other policy considerations will also influence the courts duty analysis
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of another where some policy justifies departing from the no-duty rule/principle i. Imposes a duty to get involved b. Duty based on a SPECIAL RELATIONSHIP to the Victim i. often impose a duty to aid based on a preexisting relationship between the and the person who needs assistance ii. is not the source of the injury-producing conduct, HOWEVER, because of the s relationship to the victim, the courts impose a duty on the to take affirmative steps to minimize or avert the harm c. Duty based on a Special Relationship to the Perpetrator i. Situations in which courts impose a duty to control one person to prevent him from injuring others 1. i.e.: parent to control a child in certain circumstances, employer to control an employee, those in charge of mental patients or prisoners ii. in these situations is uniquely positioned to prevent the harm d. Duty based on Innocent Creation of Risk i. Involves situations in which the , without negligence, creates the risk that causes injury to the 1. He has, by his risk-creating conduct for his own purposes, placed the victim in a position of danger e. Duty based on Gratuitous Service i. Situations in which the , though under no initial duty to act, goes to the aid of another ii. Liable for any injury caused to the victim by: 1. The s failure to exercise reasonable care to secure his safety 2. The s discontinuing his aid/protection, if by doing so he leaves the other in a worse position than when took charge of him
V. Duties of Landowners
a. Just because he is an invitee does NOT mean he is invited to the entire area
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b. Categories of people i. Invitee: no necessarily what the normal interpretation would be 1. Really a business visitor (someone who comes onto your property to your business benefit) or a public invitee (someone invited onto the property for purpose for which the land is open to the public) ii. Licensee: person either invited to the property or permitted to be there but not for either of the reasons under invitee (mailman, people invited for lunch, etc) iii. Trespasser: person who enters or remains on property without privilege/consent c. Duty to TRESSPASSERS: i. Land possessor must refrain from any willful and wanton conduct 1. you cannot even threten to eject them from there violently 2. can do no more than demand that they leave and put a gentle hand on them but he is NOT obligated to do so ii. You cannot do whatever you want to someone just because they enter your property without invitation iii. No duty to discover that your floors are caving in, etc 1. No duty to warn about something everyone knows and should know d. Duty to INVITEES: i. To take reasonable care to make sure that the premises are safe 1. They are coming for YOUR benefit, so we impose a duty on you ii. Just because you invite someone doesnt mean you cant engage them in dangerous jobs (guy working on the roof no duty) e. Duty to LICENSEE: i. you cannot allow concealed danger to remain on the premises 1. not just danger that is unknown; danger that is known to you but not to the person you allow over f. Doctrine of Attractive Nuisance i. Possessor of land must know that children are likely to trespass on the land ii. Possessor of land knows or should know that it is risky 1. Kids cant be reasonably expected to understand dangers as adults iii. Utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children 1. The cost eliminating the burden of the danger is a cost we are willing to impose on the owners of the land iv. Possessor fails to exercise reasonable care to protect the children 1. Doesnt have to be super reasonable 2. But children possess a different level of knowledge 3. It is still the reasonable person standard; just children cannot be reasonably expected to understand the dangers in the same way as an adult can
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a. No duty to help unless you are legally responsible for putting them in a perilous situation b. In some situations we do think you should not prevent others from helping even if you have no duty yourself to help c. Duty to help based on(?) i. Foreseeability of harm to the ii. Degree and certainty of harm iii. Closer connection of conduct to harm iv. Moral blame v. Policy of preventing future harm vi. Consequences/burden of requiring it
VICARIOUS LIABILITY
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I. Overview
a. Common Law has long accepted the premise that employers should be liable for the torts of their employees in the scope of employment b. respondiat superior = let the master respond c. virtually all jurisdictions impose liability on employers for the torts of their employers, but the rationales have varied i. employer should pay because she can select and control her employees, and thereby prevent injuries due to negligence 1. however, employers frequently have no realistic chance of preventing a particular negligent act by an employee ii. a device to provide a deep pocket able to pay the s damages iii. employers are in a position to spread the costs of accidents by purchasing liability insurance and raising the price of their products to reflect the inherent accident costs of the interprise 1. encourages employers to insure, cost of insurance gets incorporated into the price of the product iv. most basic rationale: the employee acts for the master in the performance of the masters work 1. where he creates risks for the masters benefit, it seems intuitively fair to ascribe the conduct to the party for whose benefit it was undertaken 2. if the master didnt have the work done by another, he would have to do it himself & would be liable for any torts committed
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a. Another difficult problem is determining when employers will be held vicariously liable for intentional torts by employees b. In almost all cases, a deliberate decision by the actor to invade anothers rights are unwanted, discouraged and probably forbidden by the employer c. HOWEVER, courts do hold employers liable for at least some intentional torts i. Liable where an employee commits an intentional tort in order to serve (however misguidedly) the employers purposes ii. That occur in the course of the work iii. Sexual misconduct in the course of medical care or psychotherapy 1. Acts in these cases clearly do not serve the employers purposes BUT they are a peculiar risk of certain kinds of work 2. Lisa M. v. Henry Mayo Hospital
V. Independent Contractors
a. While employers are generally liable for the torts of their employees in the scope of employment, they generally are NOT liable for torts of an independent contractor, even though they arise from the contractors work for the employer b. Owners may choose to hire independent contractors to perform work rather than using their own employees, simply to insulate themselves from tort liability i. Of course, where owner knows he is avoiding a potential liability, the contractor knows that he is assuming it and consequently the cost of insuring against tort liability will be considered in setting price of work
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a. A nondelegable duty theory will frequently allow a injured by a contractors negligence to recover from the owner who hired the contractor, even though the owner has exercised due care b. HOWEVER, it is important to remember that owners can be negligent too c. Frequently, a will have a claim against the owner based on his own negligence in connection with the contract work d. Owner may be negligent in various ways even though the work was delegated to an independent contractor i. May hire a contractor incompetent to perform the type of work required ii. May fail to supervise the contractor properly iii. May fail to require the contractor to take necessary precautions iv. May specify that the work be done in an inappropriate manner v. May fail to inspect the work after it is done vi. May negligently perform work over which he retains control e. In such cases, the owner is liable for his own negligence, NOT vicariously liable for negligence of the contractor f. Frequently, a will assert claims against the owner based on both the owners own negligence and on vicarious liability theories, but it is important to distinguish these two bases for holding the owner liable
STRICT LIABILITY
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II. History
a. Today most tort claims require either intentional conduct or negligence b. Despite that predominance, strict liability has continued to apply in some areas i. i.e.: keepers of wild animals c. Rylands v. Fletcher i. Facts 1. had introduced a dangerous force (large body of water) onto his land, which escaped unexpectedly and injured neighbors property 2. no evidence that had been negligent in his efforts to contain the hazard, but the court held that the keeping of this metaphorical tiger supported strict liability for the resulting damage ii. Appeared to limit such liability to activities on land of the that injure land of an abutter iii. Lord Cairns appeared to narrow the rationale further to apply only to non-natural uses of land, evidently referring to unusual activities that are out of place in the area where chooses to conduct them iv. Regardless, the underlying spirit of this case is to impose strict liability on those who impose grave and truly unusual risks on the community d. In the century since Rylands, strict liability for abnormally dangerous activities has shed much of the doctrinal baggage and come to focus increasingly on the factor of activities that impose grave and unusal risks e. If an activity poses such high risk, why isnt it banned?
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i. Legislatures often DO ban dangerous activities, BUT many activities that pose unusual risk are also unusually productive ii. Strict liability allows such socially useful activities, but requires them to bear the accident costs associated with them
Ultra-hazardous Activity
IV. Restatement (Second) of Torts 519
a. Suggests 6 factors relevant to determining whether an activity is abnormally
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dangerous (or ultra-hazardous) i. Existence of a high degree of risk of some harm to the person, land, or chattels of others; ii. Likelihood that the harm that results from it will be great; iii. Inability to eliminate the risk by exercise of reasonable care; iv. Extent to which the activity is not a matter of common usage; v. Inappropriateness of the activity to the place where it is carried on; and vi. To extent which its value to the community is outweighed by its dangerous attributes b. Central thrust is that strict liability should apply to activities that pose unusual and irreducible risk c. Activities generally involve forces or substances capable of causing extensive damage if not properly controlled i. Each usually goes forward without mishap, but can misfire badly without negligence ii. The risk of such activities may differ only in degree from other activities, but the extra risk has been enough to convince courts to apply strict liability to them d. Note i. An activity might give rise to strict liability in an area where it is rare, but not in another where it is more common ii. One rationale for common usage exclusion is that activies that are common, such as driving or building excavation, often involve creation of reciprocal risks between actor and victim 1. by contrast, those who conduct unusual activities such as fumigation or blasting impose hazards on the community that are generally not imposed on them by others e. Strict liability should apply to activities so inherently dangerous that the level of risk will remain high despite all reasonable efforts to reduce it i. If reasonable care can make the activity generally safe, courts will not impose strict liability (Indiana Harbor Belt RR Co v. Cyanamid Co.)
Products Liability
V. Overview
a. Refers to claims for injuries caused by commercial products b. The recognition of strict liability for injuries due to defective products was one
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of the most dramatic developments of the 20th century c. s have long pleaded negligence claims in actions for injuries caused by products, and still do, BUT, there are some significant hurdles to recovery in products liability cases i. Difficult to prove that a manufacturers negligence led to the defect that injured the ii. Even with good quality control, a small number of goods come off the assembly line with defects and although a can invoke res ipsa in such cases, the jury may deny negligence recovery, accepting the s argument that although it used due care, such defects may still occur d. Policy reasons i. Increasing sophistication of products makes it difficult for consumers to assess their risks, emphasizing the need for manufacturers to do so ii. Price of the product will reflect its true cost, rather than externalizing accident costs to innocent victims iii. In addition, the risk of liability will encourage manufactures to make their products safer and to discover and disclose product risks that the consumer might not recognize e. Elements (probably not really??) i. By a user or consumer ii. From a seller iii. Who is engaged in the business of selling the product iv. For physical harm v. Caused by a defective product vi. That is unreasonably dangerous f. Nothing in the above description says how the product came to be defective and dangerous; fault is NOT an element of the claim
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products liability law needs some standard for distinguishing acceptable designs from those that pose unacceptable risks d. One test: If it is dangerous to an extent beyond that which would be contemplated by an ordinary consumer who purchases it, with the oridanrary knowledge common to the community as to its characteristics e. Utility/balancing approach: i. Factfinder decides, applying a number of factors, whether the products design represents a fair balance between the cost of designing the product to prevent the risk of injury, the effect the redesign would have on the utility of the product and the extent of the risk that the product poses ii. Requires to establish that a reasonable alternative design would have eliminated the risk that injured the 1. The evidence must show that the suggested alternatives are not only technically feasible but also practicable in terms of cost and the over-all design and operation of the product
MISCELLANEOUS
Prenatal Harm
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IX. Overview
a. Personal injury action for injuries suffered in utero by mother i. Recognizing this would present unimaginable difficulties for the courts 1. Would have to determine what is the scope of the duty, 2. When should a woman become aware of her pregnancy, 3. What a reasonable pregnant woman should know, etc. ii. SOME courts have recognized the right of action against the mother b. GENERALLY, an unborn child may recover after live birth for prenatal injuries inflicted by 3rd parties i. Court wont extend this rule to a fetus c. Unplanned child (because of failed medical procedure to render her sterile) i. Three approaches to recovery in these actions 1. Full recovery of the costs of rearing the child 2. Recovery of costs minus the benefits of having a child 3. NO recover (majority of states) ii. need not mitage the damages by having an abortion (or adoption) 1. Abortion presents its own emotional and physical pain and need not subject herself to it in order to avoid other types of injury 2. Deeply personal choices and cannot be imposed on unwilling individuals d. wrongful life is different from wrongful birth i. this alleges that, but for s negligence, the child would not have been born and is brought by the child himself for his OWN pain and suffering ii. majority of US jurisdictions refuse to recognize this 1. it amounts to repudiation of value of human life 2. life is more precious than non-life 3. remedy would be to put the party in the same position he would be in but for the negligence a. therefore one must calculate the monetary value of disabled life versus no life at all which is an impossible task 4. 4 states DO recognize this cause of action a. however, in those states, damages for pain and suffering are generally not available as impossible to fairly compute
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