Burden of Proof

1st component Burden of pleading. Fact pleading state facts that make up all the points of the tort. Notice pleading just give notice. There is a standard and if you fail to meet notice of pleading than your case is thrown out. 2nd component Burden of production must meet to be able to move beyond discovery state. A motion called summary judgment (sometimes) will say you dont have enough evidence on every element of the tort. 3rd component Burden of persuasion persuading the trier of fact that you have proved each and every element by a preponderance of the evidence. Judge is the initial assessor of this. There is a motion o test whether jury was correct JNOV judgment despite the verdict. The moving party in this case says taking the evidence in favor of the verdict, was there enough evidence that a reasonable juror could be persuaded to a preponderance of evidence. 4th burden Burden of boredom if you dont carry your burden of not boring the jury, you cant win. If theyre not listening to you they dont hear your evidence.

Intentional Torts
Intent Restatement A person acts with the intent to produce a consequence if: A. a person has the purpose of producing that consequence (purpose test) (likelihood doesnt matter) OR B. the person knows (or believes) to a substantial certainty that the consequence will ensue from the persons conduct. (substantial certainty test.) - Ends if event will occur too far in the future. - Intent is subjective but the way we prove intent is objective. The intent with which tort liability is concerned is not necessarily a hostile intent or an intent to harm. Rather it is an intent to bring about a result which will invade the interests of another in a way that the law forbids. Jackson v. Brantley - 1. Where the defendant acknowledged that he hoped he would be successful in leading the horses and the horses would go on the highway and they do, causing the wreck the purpose test has been met. 2. Where the defendant had 27 years experience with horses and had experience with this situation before is sufficient to show that the defendant had substantial certainty that the consequences would arise. - Note 2 - 2. Garratt v. Dailey point is possible ways to show intent. Beauchamp v. Dow Chemical Company - cases of intentional torts in the context of an employees action against an employer, the substantial certainty standard should be used. This standard requires the following: (1) plaintiff must allege that the Defendant intended the act and (2) the Plaintiff must allege that the Defendant knew that this act would be substantially certain to result in the consequences. Battery and Assault

Restatement (1) If an act is done with the intention of inflicting an offensive but not harmful bodily contact, or of putting another in fear of harmful or offensive bodily contact, and such act cause a bodily contact, the actor is liable to the other for batter although the act was not done with the intention of bringing about the bodily harm. The prima facie case for battery: 1. Voluntary Act 2. Intent to cause harmful or offensive contact (or the apprehension of imminent harmful or offensive contact). a. Intent= purpose/desire or substantial certainty b. Offensiveness= offends a reasonable sense of personal dignity (objective); unwarranted by social usages there prevalent. 3. Cuasation (of injury) 4. Harmful or offensive bodily contact a. Contact need not be directly with person b. The mere making of the contact entitles plaintiff to nominal damages. Beyond that the jury determines damages. Assualt: Apprehension of immediate harm. Words alone are not enough. Masters v. Becker - Intent is established If an act is done with the intention of inflicting upon another an offensive but not a harmful bodily contact or of putting another in apprehension of either a harmful or offensive bodily contact, and such act causes a bodily contact to the other although the act was not done with the intention of bringing about the resulting bodily harm. Brzoska v. Olsen - There can be no claim to recovery for battery for simply the fear of contracting a disease when plaintiffs can prove no physical harm. (Beskind: Question is not intent. The court is doing normative judging they are setting a norm that they think is essential going forward.) Dickens v. Puryear Threats, to be actionable for assault, must threaten immediate harm. Actions for the future are actionable under intentional infliction of mental distress and not assault. Transferred Intent Restatement - (2) If act is done with the intention of affecting a third person in the manner stated in (1), but causes harmful bodily contact to another, the actor is liable to such other as fully as though he intended to affect him. Singer v. Marx - Transferred intent is present when one aims to hit a person and inadvertently hits another person. The intent to hurt the non-injured party transfers to create an intent to hit the injured party. The plaintiff relying on circumstantial evidence does not have to exclude the possibility of every other reasonable inference possibly derivable from the facts proved. Trespass to Land Restatement One is subject to liability to another for trespass irrespective of whether he thereby causes harm to any legally protected interests of the other if he intentionally:

a. enters land in the possession of the other or causes a thing or third person to do so. b. not leaving when asked (not removing things off land when asked.) If you enter anothers land and you think its land youre allowed to be on, you are still trespassing. Trespass to Chattels Intentional interference with rights of possessor, not other harm required, no intent to harm required, nominal damages. Must have intent (purpose or substantial certainty) to interfere with possession. 2 ways: 1. Dispossion of anothers pproperty OR 2. Using or affecting use in possession of another. (ex. Stealing gas out of a car they have affected the ability to drive home.) There is liability only if one of these occurs to the possessor: 1. Dispossession 2. Impairment of condition, quality, or value of chattel 3. Deprivation of use for a substantial time (loss of use). 4. Bodily harm to the possessor or to the person or thing in which possessor has an interest (bodily harm because of the wrongful action). Conversion Intentional exercise of dominion or control over a chattel which so seriously interferes wit the right of another to control it that the actor may be required to pay the other the full value of the chattel (basically it becomes the takers property and they must pay for it.) Factors in seriousness: - Extent and duration of control taken - Extent and duration of control lost - Actors intent to assert rights inconsistent with others right of control - Good faith - Harm done to chattel - Inconvenience and expense to another Intent here is the intent to exercise control (purpose and substantial certainty). Kremen v. Cohen sex.com case. Was the thing the url that was taken a chattel? Or was it enough like a chattel that a claim for conversion could be made? Additional damages under conversion loss of use, value of what someone else made using it. This is generally called special damages (damages that result other than the immediate economic damages like loss of income.

Defenses
1. Insanity Mentally incompetent means (generally) someone who cant manage their own affairs. You cant have the intent to harm if you dont know the act could be harmful. (Lesser of the two innocents). White v. Muniz - In the case of a mentally ill person, the defendant must intend the contact, and

intend the contact to be harmful or offensive. Restatement says: 1. An actor is subject to liability to another for battery if a. he acts intending to cause a harmful or offensive contact and b. an offensive contact with the person of the other directly or indirectly results. 2. An act which is not done with the intention stated in Subsection 1, a does not make the actor liable to the other for a mere offensive contact with the others person although the act involves an unreasonable risk of inflicting it and therefore, would be negligent or reckless if the risk threatened bodily harm. 2. Consent Exceptions in certain cases where the law is supposed to protect a certain party (alcohol to minors, sexual activity with a minor, etc.). Consent can be revoked must be done clearly. You can consent by silence and by custom. Limits of consent: Acts that lead to the injury must be within the consent. Given by a minor or incompetent person. Given by mistake that defendant knew about. Was obtained by fraud (by def. or that def. knew about) or under duress. Terry Shivo consent in this situation is that if person is silent then heir has proxy. Hellriegel v. Tholl - Consent is a valid defense to battery (with certain exceptions) when the injured party consents to the act that results in the injury. The injured party need not consent to the actual injury. - Note 4. Pg. 72 (consent to be injured outside of the rules of a physical game?) Mulloy v. Hop Sang - When a person expressly states they do not want a certain contact, and dont respond to a statement which they dont understand urging for the contact, the person has not given consent. In order to give consent, it must be clear to a reasonable person that consent was given. - No loss of chance here, but, ex. What if there was a 30% chance hand couldve been saved. Then jury must decide what victim should get for losing that chance. - 3 things patient is supposed to know: - 1. What are the risks of the procedure significant risks. - 2. What are the alternatives. - 3. Risks of the alternatives. - Also, there is one more category of information- things the juries in a case would also want to know- has doctor had a drug problem, been disciplined for something, etc. - Jehovahs witnesses dont want blood transfusions. People have the right to refuse blood products if your religion requires it. In some cases, state has intervened (person has children) when there is a compelling state interest. 3. Self-Defense One question is, was self defense beyond any reasonable proportionality. Compensaiton will be the same regardless of provocation but when it comes to punitive damages, provocation can be taken into account. Privilege of police to arrest tumps self-defense (in most places).

For use of self-defense you have to satisfy an objective and subjective test. You have to believe you are in danger and that a reasonable person would feel threatened. Also, level of force is an objective test. Lane v. Holloway - A normal fist fight is an illegal fight and therefore neither party can claim damages. However, a very severe blow that is out of proportion to the occasion can make a party liable for damages unless they can prove it was an accident or self-defense. Mr. Holloway received a blow that was out of proportion to the occasion and can therefore receive damages. Silas v. Bowen - Where a defendant who has committed assault and battery with a deadly weapon and claims self defense, the claim will be valid if the defendant was in his home of his place of business, and was threatened with reasonable apprehension of serious bodily harm by a person of overpowering size. After Plaintiff refused to leave the premises of the Defendant, the Defendant had the right to use reasonable force to eject him. The use of a deadly weapon in self defense is justified, if the conduct of the trespasser under all the circumstances is such as to produce in the mind of a person of reasonable prudence and courage an apprehension of an assault by such trespasser involving serious bodily harm. A defendant in his place of business is not required to retreat in order to claim self defense. This judge was very conservative and cases must be put in the context of the time and place it was heard. 4. Defense of Property It is ok to use deadly force to protect person, home, person is present at business, but not against trespassers or intruders. You can only use a spring gun or other potentially lethal force where the facts are such that you couldve used it if you were there in person. Brown v. Martinez - Use of deadly force against a trespasser who is committing or has committed a misdemeanor affecting property, with no threat to the safety of the owner, is unreasonable force. It cannot be used to make a claim of self defense. Use of deadly force to protect property is unreasonable. 5. Necessity Public or private. Taking for the public good. Philadelphia police dept. dropping bomb on group in house and causing fire. Court found polices actions were of public necessity but the choice not to fight the fire only benefitted the govt so they had to pay damages to those who lost their homes. Ploof v. Putnam - When necessary to save human life, a person may take haven on another persons property without trespass. The owner of the property may not drive the person out or force them away into danger without being liable for the damages. Does necessity require you to make the best choice? No, but it requires it to be a reasonable choice. Vincent v. Lake Erie Transportation Co. - During emergency situations, one may use or take others property, but if by their own cause the property becomes damaged in the preservation of the takers property, the taker is liable to the owner for the cost of the damages. Court wants a distinction between acts of God and acts of man. Act of God forced boat to dock and caused ropes to fail and Erie retying ropes was an act of man (but it is hard to separate them).

Other issues Repossession you are privileged to trespass if you can be unseen and not interfere with the peace. Discipline largely a matter of ordinance or statute. Regardless the amount of force cannot be unreasonable. Choices- can you make a choice to kill one person or do nothing and five will die? Driver can turn and only kill one person or crash straight and kill 5. Restatement and cases differ.

Recklessness
It is not substantially certain, but extremely likely. Restatement A person acts recklessly in engaging in conduct if: a. the person knows of the risk of harm (subjective) created by the conduct (objective) or knows facts that make the risk obvious to another in the persons situation AND b. the precaution that would eliminate or reduce the risk involves burdens that are so slight relative to the magnitude of the risk as to render the persons failure to adopt the precautions. (indifference to risk).

Negligence
Negligence occurs when a person fails to exercise ordinary care under the circumstances. Rule of sevens if child is under seven, they cant be negligent. 7-14 can be negligent but under a standard to fit their age. 14 and up regular negligence standard. Elements: 1. Duty 2. Breach 3. Causation 4. Damages Negligence requires actual harm N.C. allows nominal damages, but most states dont. Reasonable Person Standard Vaughan v. Menlove - To determine whether or not one is liable based on negligence, their actions should be judged against what a prudent person would do in the same situation. It is a balancing of too much or too little risk. Breach failed to do what he needed to do to the hay to prevent it from catching fire. Causation fire was foreseeable, known risk. Damages cottages burned. Delair v. McAdoo - A person who drives a motor vehicle with an obviously defective tire, can be held liable for negligence if the tire blows out and causes damage to another vehicle. From class: A prudent person has an obligation to know the status of their equipment. Variations on the Reasonable Person Standard Charbonneau v. MacRury - The rule for the standard of care for negligence is the same for a

minor and an adult, but the fact that the child is a minor, his age, capacity, maturity, and intelligence will be circumstances that will affect the application of that rule. Goss v. Allen - A minor, no matter how close to the age of maturity will only be held to the standard of care that a reasonable person of similar age and intelligence would use. Skiing is not an activity that is so potentially hazardous as to require that the minor be held to an adult standard of care. Haley v. London Electricity Board - A measure of care appropriate to the inability or disability of those who are immature or feeble in mind or body is due from others, who know of or ought to anticipate the presence of such persons within the scope and hazard of their own operations. Calculus of Risk Barker v. City of Philadelphia - A defendant who has failed to exercise reasonable care under the circumstances cannot escape liability for damage upon the ground that he could not have foreseen the particular results of his negligent act You dont have to foresee the exact manner in which the injury will occur of the extent of the injury. You only need to foresee injury to person or property of another. U.S. v. Carroll Towing Co. BPL. The Hand Formula: Cost Benefit B = Burden P = Probability L = Loss Loss X Probability (PL) is compared to Burden If PL is less than B no negligence If PL is greater than B negligence The Hand Formula Applied No bargee vs. bargee P (without)- once every 200 days (.005) P (with) once every 300 days (.0033) L average of $6,000 PL is $30/day without bargee PL is $20/with bargee PL for case is the $10 the bargee saves B $8/day per bargee in 1944 Since PL is greater than B = negligence Hand Formula Issues Information Costs Information is expensive and difficult to get Poor information = less reliable judgments + Information continues to improve + Perfect information usually not required Commensurability + B cost of a machine guard- can be market priced + P can be calculated - .0001 chance of losing fingers

 L? Ransom theory + Legislative enactment as to what to consider Definitions of common law negligence does not include Hand formula. Pitre v. Employers Liability Assurance Corp. - Ordinary care requires only that precautions be taken against occurrences that can and should be foreseen; it does not require that one anticipate unusual and improbable, though entirely possible happenings. A non-profit organization putting on a fair cannot be held liable for damages resulting from an accident when the organization took the customary precautions that a business that put on the fair to make money would take. Restatement Unreasonableness: How Determined; Magnitude of Risk and Utility of Conduct Where an act is one which a reasonable man would recognize as involving a risk of harm to another, the risk is unreasonable and the act is negligent if the risk is of such magnitude as to outweigh what the law regards as the utility of the act or of the particular manner in which it is done. Factors Considered in Determining Utility of Actors Conduct In determining what the law regards as the utility of the actors conduct for the purpose of determining whether the actor is negligent, the following factors are important: (a) the social value which the law attaches to the interest which is to be advanced or protected by the conduct; (b) the extent of the chance that this interest will be advanced or protected by the particular course of conduct; (c) the extent of the chance that such interest can be adequately advanced or protected by another and less dangerous course of conduct. Factors Considered in Determining Magnitude of Risk In determining the magnitude of the risk for the purpose of determining whether the actor is negligent, the following factors are important: (a) the social value which the law attaches to the interests which are imperiled; (b) the extent of the chance that the actors conduct will cause an invasion of any interest of the other or of one of a class of which the other is a member; (c) the extent of the harm likely to be caused to the interests imperiled; (d) the number of persons whose interests are likely to be invaded if the risk takes effect in harm. Function of Judge and Jury Jurors do facts and judges do law. The reality is that in practice, sometimes judges decide fact (when juries are present.) ex. Summary judgment. Holmes: Thought judges could so some things better than juries. He decided he could figure out standard of care. This is an ongoing struggle over who should decide these things (mixed questions). Standard of Care Ways in which you can establish the standard of care: 1. Becker Standard is based on common sense (reasonable man) 2. Haley Standard in some ways established by statistics (statistical evidence).

3. Pitre Standard was based on expert testimony. 4. Carroll Towing BPL Standard of care can also be established by the legislature. Concept of per se negligence is the borrowing of a standard of care from a criminal statute. Liability per se statutes jump causation as well as duty and breach (causation is accused, there can still be excuses). Negligence per se still requires causation. Martin v. Herzog - Violation of a statute intended to protect others is not evidence of negligence, but actual negligence. When something is a prima facie case, it gets you to a jury. It also creates a presumption but can be rebutted. Per se negligence is an unrebuttable presumption, it is a finding. You must decide if it is a safety statute, who it is designed to protect, and what harms it is trying to prevent. Brown v. Shyne - Breach of neglect of duty imposed by statute or ordinance may be evidence of negligence only if there is logical connection between the proven neglect of statutory duty and the alleged negligence. Tedla v. Ellman - Where a statutory general rule of conduct fixes no definite standard of care which would under the all circumstances tend to protect life, limb or property but merely codifies or supplements a common-law rule, which has always been subject to limitations and exceptions; or where the statutory rule of conduct regulates conflicting right and obligations in manner calculated to promote public convenience and safety, then the statute, in the absence of clear language to the contrary, should not be construed as intended to wipe out the limitations and exceptions which judicial decisions have attached to the common-law duty; nor should it be construed as an inflexible command that the general rule of conduct intended to prevent accidents must be followed even under conditions when observance might cause accidents. Legislature is deemed to not have intended an absolute rule. The legislature made a general judgment that is not applicable in every circumstance. Barnum v. Williams - If a party is in violation of a motor vehicle statute, such a party is negligent as a matter of law unless such party introduces evidence from which the trier of fact could find that the party was acting as a reasonably prudent person under the circumstances We so hold regardless of whether the circumstances do or do not include facts which the law regards as an emergency. From class: Judge would instruct jury that party was negligent if they have no other evidence to support an excuse. Jury would decide causation and damages. (takes away duty and breach). Quote: We continue to consider fault as the basis for imposing liability in automobile litigation. Courts are extremely loath to find a party who has acted reasonably to be negligent or contributorily negligent merely because the party acted contrary to a statute.

Use of Custom and Expert Testimony, Malpractice

Custom generally prevailing practices (not habit), must be a broad group (an industry or a community.) Expert testimony A witness must have firsthand knowledge, the exception is an expert witness. Categories of expert testimony: 1. Explaining an area to the jury. No educational requirement, just must know more than the jury. 2. Tell the jury what happened in this case. Needs training in a certain field. 3. Sets a standard of care someone who understands the standards under which people practice like lawyers, doctors, etc. This is also custom testimony. Largest response to medical malpractice is to cap damages. Standard of consent put greater emphasis on patient autonomy the reasonable patient standard. 2 special situations in informed consent 1. Emergency treatment (doctor has to act and patient cannot consent) here safety is valued over autonomy. 2. Where giving the information necessary would be detrimental to the patient (less concerned with autonomy) doctor is allowed to make the decision for the patient. Legal malpractice has some of the same issues the standard of care can be confusing, but it has not changed that much. Case within a case. Medical malpractice generally is the current med. mal. practice fair? Altnrnatives? Workers comp like system, caps. Dempsey v. Addison Crane Co. - Evidence that a certain action or device is used more commonly in a particular industry than an alternative action or device that is cheaply and readily available does not bar actions for negligence on the grounds that the Defendants actions or device was the most widely used. Common does not always mean reasonably prudent. Shilkret v. Annapolis Emergency Hospital Association - Physicians: A physician is under a duty to use that degree of care and skill which is expected of a reasonably competent practitioner in the same class to which he belongs, acting in the same or similar circumstances. Advances in the profession, availability of facilities, specialization or general practice, proximity of specialists and special facilities are to be taken into account, along with all other relevant considerations. Hospitals: A hospital is required to use that degree of care and skill which is expected of a reasonably competent hospital in the same or similar circumstances. As in cases brought against physicians, advances in the profession, availability of special facilities and specialists, together with all other relevant considerations, are to be taken into account. This case got rid of the strict locality rule. (I think some jurisdictions still follow it though). Helling v. Carey Does not set a clear standard, just says doctor doesnt meet it. Miller v. Kennedy - A plaintiff who alleges that a physician failed to warn him of material risks inherent in his treatment, and to advise him of feasible alternatives, need not produce expert medical testimony that it is the custom of physicians in the same or similar localities to give such warnings in comparable cases. Instructions should set forth that it is the duty of a physician or surgeon to disclose to a patient all relevant, material information the patient will need to make an informed decision on whether to consent to or reject the proposed treatment or operation. The jury should also be instructed that the plaintiff-

patient must prove by a preponderance of the evidence that (1) the physician failed to inform the patient of a material risk involved in submitting to the proposed course of treatment; (2) the patient consented to the proposed treatment without being aware of or fully informed of the material risks of each choice of treatment and of no treatment at all; (3) a reasonable, prudent patient probably would not have consented to the treatment when informed of the material risks; and (4) the treatment chosen caused injury to the patient. It is also appropriate to instruct the jury that in the event a patient has consented to a proposed treatment or operation, a failure of the physician or surgeon to fully inform the patient of all the material risks present in his medical situation before obtaining such consent is negligence; and a physician or surgeon is liable for any injury proximately resulting from the treatment if a reasonably prudent person in the patients position would not have consented to the treatment if adequately informed of all the significant perils. Res Ipsa 3 things judge does in role of gatekeeper w/ res ipsa: 1. Judge can decide the inference is not strong enough for res ipsa. 2. Inference is strong enough and jury is told that they may, but are not required to infer from control and the event that there was negligence. (this is the common situation). In this case the inference is some evidence. 3. The inference is so strong and complete that if there is not contrary evidence, the judge will direct a verdict for the plaintiff at the end of defendants evidence. This makes the inference basically a presumption. (a rebuttable presumption). Res ipsa does not change burden of proof burden of proof is always on the plaintiffs. Res ipsa is an inference that can prove duty and breach. Byrne v. Boadle - In cases where it is apparent that an incident was caused by negligence, the incident itself serves as prima facie evidence of negligence and it is the Defendants burden to produce evidence that would show the accident was not caused by negligence. Access to info is in the hands of the plaintiff so defendant has to prove it wasnt negligence. Res ipsa is an inference of the law. 1. Difficulty of proof 2. Thing controlled by one party who has all of the information. 3. Something telling us this doesnt happen without fault. Azzolini v. Dingfelder - Actions for wrongful birth will not be claims for relief under this jurisdiction absent a clear mandate by the legislature. George Foltis, Inc. v. City of New York - Where a plaintiff establishes prima facie by direct evidence that injury was caused by negligence of the defendant the court may seldom direct a verdict, though the plaintiffs evidence is not contradicted or rebutted by the defendant. In such cases the question of whether the defendant was in fault in what he did or failed to do is ordinarily one of fact to be determined by the jury unless the jury is waived. The practice should be the same where under the rule of res ipsa loquitur the plaintiff establishes prima facie by circumstantial evidence a right to recover. The jury should be instructed in this type of case, why they could draw such an inference and why they may reject the inference if they see fit. To have the inference of res ipsa what we are really

looking at is probable certainty. There does not have to be no other possibilities, but negligence must be more probable. Why this change? Because all of the evidence is in defendants hands so plaintiff gets a leg up. But it is only an inference so defendant has a chance to show it was not negligence. General rule, directed verdicts on the question of negligence should be uncommon. If both sides have evidence, a directed verdict involves picking evidence over other evidence, which is a job for the jury. But when there is no evidence on one side, directed verdict is common. In this case, there was an inference on each side, one of negligence and one of due care. The jury must choose which inference to believe, not judge. Basically, you can find negligence, but you dont have to. The test of application is whether or not the occurrence does in truth point to negligence of the defendant as the fair and reasonable inference from the occurrence. Where there is proof that the party charged has control over the occurrence and there is a low probability that the event would have occurred without some negligence, the inference of negligence is reasonable. Swiney v. Malone Freight Lines - In order to defeat the presumption (or inference) of negligence by the doctrine, the defendants must destroy any reasonable inference of negligence or so completely contradict it that reasonable men could no longer accept it. The evidence required to do this varies with the strength of the inference. But if the defendant merely offers evidence of his own acts and precautions amounting to reasonable care, it is seldom that a verdict can be directed in his favor. Ybarra v. Spangard - Where a plaintiff receives unusual injuries while unconscious,and in the course of medical treatment, all those defendants who had any control over his body or the instrumentalities which might have caused the injuries may properly be called upon to meet the inference of negligence by giving an explanation of their conduct. There have been continued attempt to limit the use of res ipsa in medical malpractice through common law and legislation. Misposisiton is the most common use of res ipsa in medical malpractice.

Causation
Terminology in this area is loose. 1st prong: Actual cause/but-for cause - Did Ds action or inaction actually cause Ps injury? - But for Ds negligent conduct would Ps injury have been avoided? - Would P have suffered the same harm even without Ds negligent conduct? 2nd prong: Proximate cause/legal cause - What is the appropriate scope/limit on Ds liability for negligence? Simple red lightgreen light case but for Ds negligence P would not have sustained harm. Three ways to analyze damages in loss of chance: 1. 100% of damages 2. Jury is asked to value 14% as a loss. 3. Jury is asked to value whole loss like in 1 and then apply an 86% discount. Negligence Analysis Sequence If duty Consider breach

If duty and breach Consider actual cause If duty, breach and actual cause Consider legal/proximate cause If duty, breach, actual and legal cause Consider damages Next 7 cases deal with 2 questions (know case names, starting with in re arbitration . . .). 1. Is there something about the facts of the case that makes us feel uncomfortable about holding this D liable for this Ps injuries? 2. If so, what is the test that we can use as a proxy for fairly and justly limiting the scope of Ds liability. Types of causation: 1. Actual cause - but for or substantial factor test - where there is a known and an unknown cause Kingston v. Chicago and NW R.R General rule if two causes unit and either wouldve caused injury, if only one was negligent, plaintiff collects from negligent party if both are negligent then jointly and severally liable. - where there is more than one cause and one overwhelms the other (same cases) - causation must be established by preponderance (Kramer Service v. Wilkins, Daly v. ) - you must establish that it is more likely than not that a thing was the cause. - rule shifting burden where 2 or more are negligent but P cant show which one was actual cause (Summers v. Tice.) - causation on both when acting in concert (same case) - last chance doctrine of causation (Hotson, Herslearite) 2. Proximate/Legal Cause - direct cause (Polemis, Andrews in Palsgraff) - foreseeable P by location (Cordozo orbit of danger; doughty v. Turner Mfg.) - foreseeable P by type of event (Wagon Mound 1 and Hughes v. Lord Advocate manhole) - test for damages in gray zone (Wagon Mound 2 only if BPL comes out for the P as to the bigger less foreseeable damages, Kinsman) - Andrews test in Palsgraff expediency, need to draw a line. These doctrines and language are used to analyze factual patterns, there is no great American rule. But For Test, Substantial Cause Kingston v. Chicago and Northwest Railway Co. - When there are two agents whose equal negligent acts together cause damage that would have been caused even without one of the two agents, each agent shall be responsible for all of the damages regardless if one of the agents identity is unknown. Called joint and several liability. In these circumstances, the plaintiff can go after either defendant to make them pay the whole thing. Damages are not split. So person who can pay gets sued. This case fails normal application of but-for rule. There is no real evidence that the other fire was caused by humans. Modern rule: If two causes

unite and the situation is that either wouldve caused the injury. If only one was negligent, the plaintiff claims all damages from negligent one. If both are negligent, then they are jointly and severally responsible Kramer Service v. Wilkins - When undisputed evidence shows only a slim possibility of causation, that evidence is not sufficient to allow the question to go to a jury. A probability is required. Argument of remoteness lapse of time between two events in a causation context. There is a more likely than not causation standard that was not met. Plaintiff has not met burden of production if all there is a mere possibility. Daly v. Bergstedt - When natural inferences follow from a proved sequence of events, expert testimony is not always needed to establish a causal connection. When there is differing expert testimony on a medical issue of causal connection, it is a question of fact for the jury. Medical causation requires 99% certainty. Legal causation requires 50.1%. How do we square those? Cause in Fact Summers v. Tice - The rule of joint liability applies whenever a harm has multiple causes. The burden of proving who was responsible is a burden of each defendant. We cant find actual causation. Lesser of the two innocents. 2 ways to become joint tortfeasor 1. Contribution to a joint project (not applicable here). 2. Your negligence joins with the independent negligence of another person. (also not applicable here). Why does the plaintiff win? Because its not fair. This is an expansion of the concept of doing something in concert. This case can be viewed as an exception to the rule. The courts become more uncomfortable with this when there are more than 2 defendants because the chance goes from 50% with 2 people to 10% with 10. This often comes up with product liability. To deal with this, there is market share liability. So burden is shifted to all of the defendants who made the product. But instead of them being jointly liable, we look at the market share from the time of injury and defendants pay based on their market level. Hotson v. East Berkshire Area Health Authority - Causation must be proved by a preponderance of the evidence. Proximate Cause In Re Arbitration between Polemis and Furness, Withy and Co., Ltd. - The presence or absence of reasonable anticipation of damage determines the legal quality of the act as negligent or innocent. If it is determined to be negligent, then the question whether particular damages are recoverable depends only on the answer to the question whether they are the direct consequence of the act. 1. Consequences are only relevant as to whether the act is negligent or not. They only relate to duty and breach. 2. We have a duty to be careful this deals with cause. Courts choose 1. Tests considered: 1. Proximate v. remote(in time and space) Rejected because its about time and space and he wants a rule about common sense and practicality.

2. Natural and probable cause. We look at what is foreseeable as a natural and probable consequences doesnt like this because it is too philosophical and leaves too much to the jury. 3. Direct cause held responsible for foreseeing all things that could be directly caused (likes this one) It imposes a relatively high duty. Once the act is negligent, the fact that its exact operation was not foreseen is immaterial. Palsgraf v. Long Island Railroad - A persons claim to be protected against invasion of bodily security is neither greater nor less because the act resulting in the invasion is a wrong to another far removed. There must be some risk and the foreseeability of some danger from an act in order for negligence to be found. So how do we/ when do we draw the orbit of danger? Before or after the event? Under this case, it is drawn before anything has happened. We draw it around the negligent act and we look at what the reasonably foreseeable risks are and that is how we create the orbit of danger. Who draws it? Judge- when facts are not contested or is trier of fact. Jury when facts are contested and is trier of fact. Dissent much broader view duty to general public. Uncomfortable with notion of being liable for everything, there must be limitations. How do we draw the line? He says not using philosophy because there are no solid answers. He then looks at an analogy(stream). At some point you cant attribute harm to an original source. He says we need a limit set by convenience, public policy, and a rough sense of justice and it will be an arbitrary limit. It is not logic, its practical politics (meaning the art of being in the real world.) He lists hints to guide us(top of pg. 283) He thinks the key for Palsgraf is foreseeability. Read about how he applies this to the facts. Essential difference between majority and dissent both are trying to limit the scope of the tort. Majority restrict who you have a duty to. Dissent wants to restrict what you are responsible for (cause.) Wagon Mound 1 - The essential factor in determining liability is whether the damage is of such a kind as the reasonable man should have foreseen. Hughes v. Lord Advocate - Key here is the foreseeable injury, which was a burn by plaintiff. The mechanism doesnt have to be foreseen, but the injury does. The explosion had a low possibility of probability. When you prove causation, you dont have to show the cause is certain or likely, but when you can eliminate the other causes it would have to be the cause. This is what happened in this case all other possibilities were eliminated in this case. Better test pg. 301 a burn by paraffin was foreseeable, this was just a different type of burn caused by paraffin (explosion). Doughty v. Turner Manufacturing Co. Petition of Kinsman Transit Co. - Where the damages resulted from the same physical forces whose existence required the exercise of greater care than was displayed and were of the same general sort that was expectable, unforseeability of the exact developments and of the extent of the loss will not limit liability. Wagon Mound 2 BPL. This case is a precursor of an application of forseeability that eventually becomes comparative negligence. This would mean there was foreseeability as to both cases.

Intervening Causes as Superseding Causes - If Ds breach and the other cause are concurrent, the other cause is not superseding. - If Ds breach is actively and continuously operating throughout the intervening cause, the intervening cause is not superseding. - If the intervening cause is foreseeable, it is not superseding - courts take different views about later crimes. Glasgow Realty Co. v. Metcalfe - An original negligent actor is not relieved of liability by the subsequent negligent acts of another if those subsequent acts couldve been foreseen. First actor is still in if their negligence is still active and continuously operating. Here, the failure is continuous. Failing to maintain fits in continuing negligence. Cleaning a window couldve done the same thing as Marty so the glass being pushed was foreseeable. Bystander was reacting to an emergency (lower standard of care) and could be found that bystander was not negligent and he could not be an intervening cause. This is probably why bystander is not brought in and Marty is. Subsequent injuries, aggravation of injuries at hospital. New injury usually not. Failure to solve injury from negligence some yes, some no. Making an injury worse some yes, some no. Brauer v. New York Central and Hudson River Railroad - The intervening intentional criminal acts of a third party do not relieve the original negligent party from liability when the acts couldve been foreseen. One thought is that crime always supersedes negligence. This is the crime rule some states go by this. Are Brauer and Watson (note 1) reconcilable? Note 2 bars being held liable for over serving bar I liable usually by statute because if you serve someone too much liquor then they could hurt someone because this is foreseeable. Some states also hold social hosts liable, others do not. No state has a post-service duty (must be able to tell a person is intoxicated before serving). Look over all of the notes from this case.

Otherss Conduct as a Contributing Cause

Contributory and Comparative Negligence Any fault by plaintiff (even if slight) bars recovery. Defendant must plead contributory negligence it is an affirmative defense. Pure each side gets a percentage and damages are split, no point where plaintiffs negligence is a bar to recovery. Modified- 2 kinds 1. Plaintiff recovers if defendants negligence is equal to or greater than the plaintiffs. 2. Plaintiff recovers if defendants negligence is more than. Only difference between the two is 50-50. Most common rule is Wisconsin rule Plaintiff can recover at 50-50. The Future: Comparative Responsibility? The nature of each persons risk taking activity how big was the risk they took towards others or toward themselves? How unreasonable the conduct was under the circumstances? How much did the conduct fall below the applicable legal standard?

 What was each actors abilities and disabilities (affecting their ability to conduct themselves properly) The comparative strength of the causal connection between the risk taking activity and the harm caused How attenuated the cause was from the harm for each person? How close in time was the each persons cause to the harm How does the risk taken by each person compare to the harm created? Butterfield v. Forrester - If a plaintiff is also negligent, there can be no recovery even if the defendant was also negligent. Do Ds and Ps negligence overlap is the main question in contributory negligence. Here, the risk (riding too fast) coincides with hitting the pole so plaintiff is contributorily negligent. You can be contributorily negligent in the same ways as you can regularly be negligent. Smithwick v. Hall and Upson Co. - In order for contributory negligence to exist, the plaintiff must be aware of the possibility of the danger, as much as a person exercising ordinary care. Also, the acts of the plaintiff must be a proximate cause of the injury, and not merely a condition of the injury. Location of plaintiff is actual cause, but it was not proximate cause because it was unforeseeable. Hoffman v. Jones - A plaintiff in an action for negligence will no longer be denied any recovery because of his contributory negligence. Instead, if both the plaintiff and the defendant were guilty of negligence which was a legal cause of the injury to the plaintiff, the jury should apportion the negligence of the plaintiff and that of the defendant and then give the plaintiff only the amount that comes from the negligence of the defendant. Lower courts will be able to settle issues that arise from the rule change by considering the purposes for adopting comparative negligence, which are: (1) To allow a jury to apportion fault as it sees fit between negligent parties whose negligence was part of the legal and proximate cause of any loss or injury; and (2) To apportion the total damages resulting from the loss or injury according to the proportionate fault of each party. Most states have brought comparative negligence through statute. Bradley v. Appalachian Power Co. - A party is not barred from recovering damages in a tort action so long as his negligence or fault does not equal or exceed the combined negligence or fault of the other parties involved in the accident. Last clear chance is still an applicable rule. Jury nullification Jury can change percentage in modified rule so that plaintiff still recovers. Martel v. Montana Power Co. - All forms of conduct amounting to negligence in any form including but not limited to ordinary negligence, gross negligence, willful negligence, wanton misconduct, reckless conduct, and heedless conduct, are to be compared with any conduct that falls short of conduct intended to cause injury or damage. Plurality rule an intentional tort is not a bar to comparative negligence. Last Clear Chance Last clear chance is really a cause that as a matter of law is an intervening superseding cause. Helpless plaintiff and inattentive plaintiff. If inattentive, D must actually know P is in peril, doesnt matter if he shouldve known.

What if the plaintiff is 40% negligent and one defendants negligence is 20%? Doesnt matter as long as all defendants combined negligence is 100%. Restatement Last Clear Chance Helpless P: P through his negligence puts himself in position of helpless peril which D knows or should know of. Ds failure to exercise reasonable care to protect P is negligence barring the use of Ps contrib. as a defense. Inattentive P: P through his negligence puts himself in a position of unknowing peril which D actually knows about, Ds failure to exercise reasonable care to protect P is negligence barring the use of Ps contrib. as a defense. Assumption of the Risk Typical Express AOR Exceptions Contracts Not knowingly made Lacking consideration Unequal bargaining power Public utilities Common carriers Innkeepers Warehousemen and professional bailees, check rooms Garagemen and parking lot owners Negligence worse than ordinary negligence Safety statutes for the protection of the public Implied Assumption of the Risk 1. Knowledge on the part of the injured part of a condition inconsistent with his safety 2. Appreciation by the injured party of the danger in the condition 3. A deliberate and voluntary choice on the part of the injured party to expose his person to that danger in such a manner as to register assent on the continuance of the dangerous condition. LaFrenz v. Lake County Fair Board - Because a contract with an exculpatory clause made between parties with unequal bargaining power contravenes public policy, the party wishing to enforce the contract must prove that the other party knowingly and willingly agreed to the contract. There are exceptions to this general rule: 1. There is a statute, declaring all agreements in construction or design contracts, which purport to indemnify the promise against liability arising from the sole negligence or willful misconduct of the promise, void as against public policy. 2. Bargaining must be free and open. (balance of power) 3. Public utilities, common carriers, innkeepers, and public warehousemen exception. Additional protection: Indemnity if you sue me and your successful or someone else sues me from your injury and is successful, you have to pay me back (even attorneys fees). Herod v. Grant - To prove assumption of risk, the following elements must be found: (1) Knowledge on the part of the injured party of a condition inconsistent with his safety; (2) appreciation by the injured party of the danger in the condition; and (3)

a deliberate and voluntary choice on the part of the injured party to expose his person to that danger in such a manner as to register assent on the continuance of the dangerous condition. : The injured party is judged by a subjective standard. However, subjective knowledge is more difficult to prove. The jury must determine if they believe the injured party. Also, the courts have indicated a willingness to override the plaintiffs claim that he was not aware of the risk where they find that any person of ordinary intelligence must, as a matter of law, have known and appreciated the risk Jones v. Three Rivers Management Corp. - In order for a no-duty rule to apply to cases in places of amusement, the risk mustve been common, frequent, and expected. The general rule is that for places of amusement where admission is charged, the operator is liable for injuries to his patrons only where he fails to use reasonable care in the construction, maintenance, and management of the facility, having regard to the character of the exhibitions given and the customary conduct of patrons invited. Only when the plaintiff introduces adequate evidence that the amusement facility in which she was injured deviated in some relevant respect from established custom will it be proper for an inherent-risk case to go to the jury. Auckenthaler v. Grundmeyer - Cases involving participants in a recreational event are to be applied to the simple negligence rubric. The district court adopted the standard of care for participants in a recreational event that California uses, which requires that to be liable, the defendants actions must have been intentional or reckless. The California court wanted to encourage participation in amateur athletics and recreation. The rule in California is partially based on Californias recognition of primary implied assumption of risk. Nevada has abrogated all forms of implied assumption of risk. In Nevada, assumption of risk is translatable into a degree of negligent conduct by the plaintiff to be used to determine comparative negligence. Assumption of risk focuses on duty, when it is better to focus on accountability. Avoidable Consequences Seatbelt Defense - Treated differently among different jurisdictions. Is it negligent for an injured plaintiff to have failed to wear or properly wear his or her seatbelt? The majority rule is that it is admissible as a negligent cause and can be assigned a percentage when determining comparative negligence. It must also still be a proximate cause. There are crashes that are so bad that a seatbelt wouldve made no difference. There are also crashes where you may be safer not to wear a seatbelt. So causation is still an issue. Some states treat it as any other kind of negligence on the plaintiff and let it have whatever percentage. Other states limit the percentage (5% or 10% usually). Some contributory negligence states do not allow not wearing a seatbelt to be admissible. Thats because there is no seatbelt law because so many people would be barred from recovery. One thing to think about is this conduct by the plaintiff did not have anything to do with the crash occurring. It has to do with the severity of injury, but we treat it as a concurring cause or an intervening cause that is not a superseding cause. Some states have helmet laws and others do not. The failure to wear a helmet where there is a helmet law is going to be considered in the equation. Quote on page 406. The helmetless rider

. . .must bear the consequences of the free choice not to wear a helmet by a reduction of damages that the jury determines couldve been prevented by the rider wearing a helmet.

Vicarious Liability Many of these rules are state specific. There are two ways to deal with multiple defendants and their responsibility. 1.Vicarious liability 2. Joint and several liability A has done something wrong, but B, who has done nothing wrong is going to be called upon to pay for As wrongdoing. It is merely a function of the relationship between A and B that makes B pay. There are situations where an employer may be independently negligent and not just vicariously liable, such as negligent hiring or supervision. But here, we are only talking about where B is completely innocent. Respondeat Superior Let the maser answer. - If the employee is within the course and scope of employment. Course = at work and doing the company work, on the way to work, etc.on the job Scope = while youre on the job are you doing your job or something that is within the scope of what you are supposed to be or allowed to be doing. - Two major exceptions- 1. Frolics and Detours. Detours may be ok; frolics are not. (Case in book about this). If you go off your route (usually happens with drivers) is this a detour (choosing to take a different route) or is it a frolic (dropping by girlfriend or boyfriends house, etc.). Frolics dont last forever. At some point the employee gets back on the route and is therefore back in the course and scope of employment. 2. Intentional Tort. This is excluded with exceptions. The employee intends to do harm, and unless employee is ordered to do it by employer or is doing it to further employers business, then the employer will not be held liable. Exception is if the employer puts you in a situation where you have control over other peoples. (Cab driver rapes passenger). Employer can still be held responsible, even if employer didnt know cab driver had a history of being a rapist. (Ex. Priest, day care workers, etc.) 3. Another defense that arises is the independent contractor defense. Ex. Someone needs a tree cut down. He can hire someone out of the yellow pages and just tell them to cut it down. Or he can choose the way in which the person cuts the tree down (just take it down, dont top it). If tree is just cut and falls on another car, in the first instance the worker is an independent contractor and is solely responsible. In the second instance, when the person gave specific instructions, the worker may be considered an employee and not an independent contractor and the person may be liable. Non delegable duties There are certain duties a person has that he cannot delegate. Ex. Bob retains the responsibility to maintain car in good working order if he takes it out of the highway. Even if mechanic messed up car, Bob can still be liable because he has a duty. Some states only hold Bob liable if he knew there was a problem with a car. Another example is asking people on Bobs property. Even if Bob hires someone to fix a problem, if it doesnt get fixed and someone is injured, then Bob is still responsible, along with the person who was supposed to fix the problem. Outside of employment

Joint Enterprise - Express or implied agreement w/in group - Common purpose of a group - Community of pecuniary interest - Equal right to be heard on direction, equal right of control - Permissive use of a car Is a person who loans a car responsible for the actions of a driver. If car is loaned to a member of a household and it benefits the household, it falls under the family purpose doctrine and the owner of the car is responsible because he is benefiting. Other states deal with this by legislation. Pg. 412. You are not responsible for a thief or a joyrider. You are responsible for people who drive your car with your permission. The North Carolina statute creates a rebuttable presumption that if someone is driving your car, they are driving it with permission. Plaintiff does not have to prove permissive use, but it is a defense. Insurance does not pay for drivers who did not get permission, but it does cover drivers who drive with permission. Thats why there is presumption of permission, because the legislature wants coverage. Footnote 5 on page 413. Beskind disagrees with the footnote. It is true that if owner is passenger and person driving his car is driving recklessly, owner must demand that driver pulls over or starts driving responsibility (must remonstrate). On the other hand, if driver has been driving perfectly for four hours and all of the sudden runs a red light, then owner is not responsible because he couldnt have reasonably prevented it. Owners of cars are not responsible for how its driven normally (no vicarious liability). Indemnification. Employer can have a right of indemnification against negligent person if employer who was not negligent has to write a check. Then employer can sue employee (probably wont do any good, but it might). This comes up in two scenarios - 1. Plaintiff sues negligent party and vicarious party. Vicarious party can file a cross-suit against the negligent party. This can be done after the initial lawsuit in most states, so vicarious party can defend against negligence. Best shot is, not vicarious liable, but if they are, then negligent party was not negligent. 2. Only vicarious party is sued for the negligence of the employee. Employer can settle the case and then turn around and sue the negligent party who didnt get sued for indemnification if 3 things are true: 1. Defendant got proper and timely notice of settlement. 2. Defendant is in fact liable. 3. Settlement amount is fair and reasonable. A Malpractice Trap for the Unwary - Vicarious liability is a single tort by a single defendant - By law an additional person has to pay, too. - So you can sue D and VLD, or just VLD - If you settle with the D, case may be over. Many states take the position that you have settled with the wrongdoer and so that is all that you are getting. Not a joint and severally liable situation. Lawyers must be very carefully in vicarious liability situations not to settle with anybody until he has done thorough research to see if a settlement with negligent party ends the case. Group liability cases are a way through a problem that there is no good handle on yet. Where a lot of people get hurt and it is very hard or impossible to determine which of the many defendants are the one that hurt this of the many plaintiffs. Trouble connecting dot between a

plaintiff and a defendant. No problem connecting dot between group of plaintiffs and group of defendants. Joint and Several Liability History - Common law imposed J&S if: o Torfesors acted in concert, or in o Summers v. Tice situations - P can sue any D - P can collect all damages from any D sued - D who pays can get contribution for overpayment from other D - Shares are pro rata 4 Ds = 25% each (This is done in contrib. states) The problem occurs if there is a defaulting share. Ex. When a company goes out of business, etc. Joint and Several liability works well for the plaintiff because under that situation, the plaintiff never takes a loss unless the aggregate of the 4 defendants are unable to pay the bill. Downside: If you are the one responsible defendant out of the 4, you are going to pay the entire bill. This puts the burden on the deepest pocket. In this context there have been other rules: 1. Several Liability Plaintiff collects from each according to their liabilities. In the above situation, 4 defendants who are each 25% liable, plaintiff will go to each defendant to get the 25% and if one or more cant come up with their 25%, the plaintiff takes the hit. Upside: responsible defendants dont pay for irresponsible defendants. Downside: Plaintiff may not get full recovery. A number of variants have developed. - If you are more than 50% responsible as a defendant, you have joint and several liability and all other defendants are just severally liable. Some of these 50% rules have caps on the amount of percentage you have to pick up. For example, you never have to pay double your share. Others have caps on the amount you have to pick up. Ex. Never have to pay more than 1 million dollars. Current trend is if there are defaulting shares, the liability will be moved. Also, the trend is to include the plaintiff in the shift. Ex. In a 5 party case with 4 defendants, and 25% has been defaulted by one of the defendants. That share would be taken and divided by 4, and the share would be paid in part by remaining defendants and the plaintiff would take a hit. This seems to be a view that is starting to be promoted as the modern view. Liability Today Joint & Several Common Law Rule NC and others Burden is on paying Ds to collect from others No defaulted shares unless solvent Ds together cant pay Several Liability Only P collects from each D only their pro rata shares P eats defaulted shares Variations J&S if you are more than 50% responsible Caps on how much liability can be shifted by % or $ Modern Trend allocate defaulted shares among all parties With 4 Ds and one that cannot pay its 25% share That 25% is allocated amount the three who can and P (6.25% each) P eats 6.25% What is the effect of Settlements and releases?

In common law, a settlement with one defendant, did not release that defendant from contribution. Therefore there was no benefit to settling. The modern rule says that as long as the settlement was fair and reasonable, and a release was given, then there is no contribution attainable from the defendant that settled. - This is different than the vicarious liability situation. - Empty chair defense. Set off for amount paid in settlement. Sometimes juries are told that the amount of their verdict will be reduced by the amount that the settling defendants have paid. If settlement is more than verdict, plaintiff gets nothing more. If the settlement is less, the plaintiff gets the difference between the verdict and the settlement. Others tell juries none of this. Group Liability DES Sindell v. Abbott Laboratories- A drug was to be marketed on an experimental bases for the prevention of miscarriages (1942, low birth rate). Drug was DES. By the time it came off the market, 1.5-3 million women had taken it. It came off the market because it was found out that it was a carcinogen. This drug had 10 to 12 years latency period. All of the drug users used the exact same formula, bottles with no FDA labels, no safety studies, drugs were marketed in the same way (as safe), ignored test results showing the drug was unsafe. They all knew or shouldve known that DES did not meet the safety requirements of the FDA and that it was a carcinogen and did not prevent miscarriages. No one knew which company provided which woman with the medicine. So there is an inability to tell whose pill who got and therefore who is responsible. Judith Sindell had a bladder tumor that required surgery and cancer. She has to be very carefully monitored and have tissue removed. She availed herself in California of a John Doe complaint. She sued 100 unnamed or unknown manufacturers of the drug. Her statute of limitations is running so by filing these john doe suits she keeps her claim alive. This is not allowed in most jurisdictions, because john doe cannot get notice when the plaintiff doesnt know who they are. She was seeking monetary damages for herself, and seeking for the class (other girls and women in the class) medical monitoring and treatment for free. For her purposes joint and several liability was essential, so all of the legal theories she advanced concerned joint and several liability. At the trial court level, the defendants filed a demurrer and it was granted. She lost because she had no causation. She had no proof as to whose DES caused her cancer. So the issue on appeal is, is there a substitute for actual cause of action. She takes three shots: 1. Summers v. Tice She cant know who did this, but it mustve been one of the defendants. Court doesnt allow this for 3 reasons: 1. Too many defendants. 2. In Summers v. Tice, both of the hunters were negligent as to the plaintiff. In this case probably only one or two were negligent as to Sindell. 3. In Summers, the court thought the hunters were in a better position to prove themselves innocent than was the plaintiff. They were looking down the sights of their guns. Here, these manufacturers never knew where their pills went. They sold them to wholesales and wholesalers sold them to pharmacists who sold them to patients. Defendants were not in a position to opt themselves out. 2. These companies were acting in concert. The courts problem with this is that they never talked to each other, and were actually competitors. This was just parallel action. 3. There had been a case about blasting caps used to blow up houses that had injured people. This case was premised on industry-wide or enterprise liability. This notion is that all manufacture to a standard that the trade association promulgated. All were members, paid dues, etc. The court didnt buy this one either because there was no industry standard here. The

formula was just in the government record of drug formulas. There is a general rule here that if the government issues a standard, there is no enterprise liability. The court then came up with its own theory. At this point, the California Supreme Court was deemed to be the most clever and creative court out there in finding new torts to solve new problems. They decided on a modification of Summers v. Tice. The plaintiff sues whatever defendants they choose to sue. If they prove they got their injury from DES, they collect. Actual causation just kind of disappeared. But, if the defendant can show that they didnt sell to this plaintiff, you are out. Some defendants could do that because they only sold to distributors in the east, etc. Also, defendants know how many pills you sold in a specific year and when the plaintiff took the pill. The defendants liability will be your percentage of the pills sold in the year of which the persons mother took the drug. No one had to pick up the defaulting shares. This was termed market share liability. Wisconsin took this differently and said liability is based on risk, if you sold 50% of pills you crated 50% of risk so you pay 50%. You dont see much else that went under this kind of theory, because it was a very unsatisfactory way to take care of causation. It had no intellectual explanation to how a fundamental principle of tort law was overlooked. It was result focused. (Lesser of the Innocents) We have other ways of looking at this situation. Ex. 9/11. There were a lot of potential defendants that needed compensation. Congress stepped in and said they were going to create a fund, and injured parties could opt in to the fund and get compensated. Injured parties can still go to court against the airlines, the designer of the world trade center, the predecessor of TSA who failed to screen passengers and so on. So the fund was an alternative compensation scheme. Shackle v. Latterly Lab Vaccine case. This case poses a problem. The product where 1 out of every 110,000 has an adverse effect to a drug. Within 24 hours of getting a booster shot, a 2 year was very mentally disabled for life. Congress had a problem. There were fewer and fewer vaccine manufacturers because exposure was a problem and the profit margin was enormously small (govt bought it). So in this situation Congress said that liable had to be taken away, and/or put a parallel system in place. This other system was essentially workers comp for children. If you got hurt from this vaccine, you would get a significant amount of money. Not as much money as in a tort case, but there was no burden to prove causation, you had to prove whose vaccine it was. You could opt in or out of this system. This family tried to take a chance at court who denied their claim because: 1. It is easy usually to tell whose vaccine it is. 2. Court didnt want to deter the manufacturing of vaccines. 3. Unlike DES, where there was no other way to get compensated, there is a remedy.

Special Situations
Failure to Aid First Restatement: must aid those made helpless by your tortuous conduct. Second Restatement: must aid those made helpless by your conduct, keep them from being in a worse situation. Reasonable care: not just duty owed but the balance of the duty and the risk involved - One who does something and has no knowledge of its risk can still is liable to take reasonable care to alleviate the risk.

Driver of truck transporting glass, glass breaks and falls over road, truck driver has a duty of reasonable care to warn oncoming cars, sweep up the mess, etc. - Bar serving drinks, only became aware that patron was drunk afterwards, then a duty? - Imposing duty on defendants for non-negligent acts. - Special relationship duty of a volunteer rescuer Good Samaritan statutes - Dont want to discourage aid to others (i.e. doctors) because of fear of being sued. Dont want to penalize people for not doing enough Situations where there is a duty to aid 1. contractual obligation - (written or oral if you jump, Ill pull you out) 2. promissory estoppels promise that insurance is bought and it is not, property loss occurs (requires reliance on a promise). 3. common carriers - owe a duty to passengers. 4. innkeepers duty to guests 5. possessors of land 6. custodians, jailers, schools, mental hospitals Restatement 314 pg. 464. list not intended to be exclusive In employer-employee obligations, there is a duty in some circumstances. Yania v. Bigan - There is no duty not to taunt into a dangerous activity or to warn of dangers on your property that are open and obvious so, there is no duty to rescue unless the would-be rescuer is responsible for the victim to be in the position of peril that requires rescue. There is also no duty not to heckle, taunt, etc. Bigan could be held liable for failing to warn Yania of dangerous conditions on the property if (1) Bigan knew or could have discovered the condition which, if known to him he should have realized involved an unreasonable risk of harm to Yania, (2) if Bigan had no reason to believe Yania would discover the condition or realize the risk of harm and 3) if he invited or permitted Yania to enter upon the land without exercising reasonable care to make the condition reasonably safe or give adequate warning to enable him to avoid the harm. Duty to Aid Posecai v. Wal-Mart Stores, Inc. - Business owners will be decided to owe a duty of care to protect its customers from the criminal acts of third parties based on a balancing test. The greater the foreseeability and gravity of the harm, the greater the duty of care that will be imposed on the business and vice versa. 4 systems for thinking about this: 1. Specific harm rule youll be liable if this same thing has happened before. (court says this is too restrictive). 2. Prior similar instances test event doesnt have to be exactly the same (court says this is too ambiguous, will be interpreted differently by diff. courts.) 3. totality of the circumstances look at everything and figure it out (court says its too broad and puts a big burden on merchant) 4. Court adopts a balancing test foreseeability and gravity BPL 3 elements: 1. Foreseeability 2. Gravity of Harm 3. Burden on store. Here, court basically adopted totality of circumstances test but added BPL to it. The totality of circumstances is incorporated into Probability.

Farwell v. Keaton - 1. The existence of a duty is ordinarily a question of law. However, there are factual circumstances that give rise to a duty. The existence of those facts must be determined by a jury. 2. When there is a special relationship between two parties, such as a common social venture, the two parties have a duty to reasonably aid the other party if he is in peril and the aid can be performed without endangering the aiding party. (Rule here is really about once one starts to aid, one must give reasonable aid it also doesnt require taking any risks.) Duty to Warn Thompson v. County of Alameda - Public entities and employees have no affirmative duty to warn of the release of an inmate with a violent history who has made nonspecific threats of harm directed at nonspecific victims. Duty to Intervene; Duty of a Volunteer Rescuer Eisel v. Board of Education of Montgomery County - School counselors have a duty to use reasonable means to attempt to prevent a suicide when they are on notice of a child or adolescent students suicidal intent. The factors to be considered in determining whether a tort duty should be recognized are: The forseeability of ham to the plaintiff, the degree of certainty that the plaintiff suffered the injury, the closeness of the connection between the defendants conduct and the injury suffered, the moral blame attached to the defendants conduct, the policy of preventing future harm the extent of the burden to the defendant, and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved. (California standard.) Parvi v. City of Kingston - Restatement (2nd) duty if someone who takes helpless person in their care must (a) exercise reasonable care while the person is in their custody and (b) not leave the person in a worse or equally bad position. Owners and Occupiers of Land Common law had 3 categories: 1. Invitees express/implied invitation for a business purpose. Mutual economic benefit test. 2. Licensees (social guest). On land with consent for own purposes. 3. Trespassers No invitation or permission. Duty Invitee: Duty to fix problem on land or warn of danger that is not obvious. Known or shouldve known test duty of reasonable inspection. License: Duty not to be more than ordinarily negligent Trespasser: Duty not to commit an intentional tort. Laws were very protective of landowners, reflected power in society at the time. Lunney v. Post - Florida adopts the invitation test. 3 sets of rules could apply: 1. traditional rules 2. emerging rule from 2nd Restatement (invitation test) - people on property open to the public treated as business invitees - did not alter duty to social guests

- Post not in business relationship with guests, got nothing for letting the garden club use her house. 3. no test, giving up on these rules. Reasonable person standard and status would have some weight. The second test for invitees comes from the 2nd Restatement of Torts and states: (1) an invitee is either a public invitee or a business visitor. (2) a public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public. (3) a business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land. Under this theory, the plaintiff would be an invitee, because she was invited to enter or remain on land as a member of the public for a purpose for which the land was held open to the public. Courts are receiving this new test with wide acceptance. Nelson v. Freeland - Reasonable care standard for all except trespassers. Big trend in tortsmoving from a lot of little rules to specialized rules, to a broader principle. Bennett v. Stanley - Attractive nuisance doctrine. If rescuers are injured even though they acted reasonably, the injury should be attributed to the party that negligently, or wrongfully, exposed to danger, the person who required assistance. Restatement 2nd 339 Elements Possessor of land [D] is subject to liability for physical harm to trespassing children if: Knows or should know children likely to trespass and Condition is one D knows or should know involves unreasonable risk of death/PI to those children and Children b/c of age dont discover condition or understand risk, and Utility to D of maintaining the condition and burden of eliminating are slight compared to risk to children and D fails to use reasonable care to eliminate the danger or otherwise protect the children. Sargent v. Ross - The general rule is that a landlord is not liable, except in certain limited situations, for injuries caused by defective or dangerous conditions in the leased premises. However, courts are starting to re-examine this rule. One exception that resulted was that a landlord can be found liable if the injury is attributable to premises retained under the landlords control, such as a common stairway. New rule adopted here: Landlords, as other persons must exercise reasonable care not to subject others to an unreasonable risk of harm. Pattern rule becomes difficult and courts start making exceptions, then rule is changed. This case didnt get a lot of applause from other states. Generally this rule is last element. Special Immunities Basic principle: People should be responsible for the harm they negligently cause. A part of that is that is there should be equal treatment for everyone. Sometimes though, people forget this and that is why there are immunities for people who injure others in the course of doing kindness or charity. Do we need this immunity? Probably not. It is very rare where someone doing a charitable thing reasonably will be held liable.

4 rationales: 1. Charitable donors do not endow charities so that their money can go to tort victims and that if it did it would be breaking the faith of the donor. However, the person injured has nothing to do with that contract. 2. Employees of a charity are working for the public good. A lot of corporations do civic work so why should 2 groups be treated differently? This might actually reduce volunteerism. 3. Charities are like governments. Asking charities to perform social functions instead of govt and govt gets immunities. 4. Public policy to prevent charities from going out of business. If the charity is so consistently hurting people that they are paying out too much to stay alive, then is the harm worth the good? Also, dont bite the hand that feeds. This only applies if person harmed is receiving benefits of charity or choose to get the services. It is fair to say that overall charity immunities represent a societal preference. (Also seen in tax law with deductions for charities and charitable donations).We also have local preferences because some entities dont pay sales tax or property tax. A way of thinking about this when analyzing the effect of any change in tort law a Q to ask is is the cost of an injury being shifted? If it is from whom to whom and why? Here, we know that cost is being shifted from wrongdoer to injured party, but sometimes shifted from wrongdoer to injured to insurer, employer, or govt. If person cant work, could be shifted to family or govt. Another Q is is there adequate justification of the shift from a policy perspective? Is it good for the general public or an interest group? Does the interest group deserve it? So we have a legal preference that might be unfair so exceptions are created. First is usually automobile accidents (only up to insurance coverage). Another is hospitals (in some places) or other medical services. Another is allowing people to sue, but capping damages. Also, allowing people to sue when there is more than ordinary negligence. All of these exceptions only apply in some states. Depending on the state, children abused by priests are allowed to recovery, others do not allow this. Some states made exceptions for child abuse cases. Texas statute pg. 541-543. 1. Interspousal Immunity Law saw marriage as one unit so husband and wife couldnt sue each other. Ex. Corporation cant sue itself. However, this immunity has been chipped away at over the years. In general, courts are hesitant to interfere in certain relationships (spouses, parental relationships, etc.) Tort of alienation of affections if a spouse is abandoned because other spouse runs off with someone the abandoned spouse could sue third party who steals affections of otherwise faithful spouse but the abandoned spouse couldnt sue the cheating spouse. There is also a tort called breach of promise to marry. In every state except for LA, the complete immunity between spouses is gone. Where it is not completely gone, it is replaced by a rule that has a ton of exceptions (same old pattern). Exceptions: auto accidents, domestic violence, etc. Fed Statute that permits suits for domestic violence when the violence is gender-related (this is a challenge to prove).

2. Parental Immunity Brunner v. Hutchinson Division, Lear-Siegler, Inc. - In limited circumstances, a parent is privileged from liability with respect to certain causes of action. Among those causes of action is a claim of negligent supervision. The Second Restatement of Torts completely rejected general parent-child immunity. Today, a substantial majority of jurisdictions have abrogated the doctrine either partially or completely. Few have eliminated it entirely. Most jurisdictions have retained the doctrine, but have limited its application to certain circumstance. 3 rules: 1. Blanket immunity. 2. California rule reasonable parent standard, no immunity. 3. Goller basically says you have immunity when youre parenting but not as to other things. Illinois case foster parent decided to discipline 4 year old child by putting them In the upper half of a chest and closing door and closet door. Child died and that was still held to be under immunity because it was parenting. Ultimate question is are we over favoring autonomy v. safety and will parents change behavior if they can be sued in tort. Here, court adopts Goller standard and decides that father was parenting. 3. Governmental Liability and Immunity Common law history no claims against the king. Up until mid 19th century no claims against the U.S. govt. Then, the court of claims was created, now called U.S. court of federal claims over the years its jurisdiction has grown. It is a very big court. In 1946 Congress enacts the Federal Torts Claim act this is a very significant piece of legislation. It became the exclusive tort remedy against govt and covers lots of different things. Under TCA, U.S. govt is liable for acts of employees if another employee would be liable in the jurisdiction where the act or omission occurred. U.S. govt can also defend like anyone else (subject to jurisdictional law of state). U.S. is never liable for pre-judgment interest. Some states say interest clock starts running as soon as suit is filed. So if case takes 5 years, and plaintiff gets paid, then they get 5 years worth of interest. Post-judgment interest starts accruing when judgment is entered. Govt is never liable for punitive damages or strict liability (must be negligent). Federal tort claims procedure everything not mentioned is the same. Differences: FTCA 28 U.S.C. 1346 et seg. (more notes on slide) - Has its own statute of limitations (2 years) (state statutes dont apply). - In lawyers fees, you get 20% if you settle case with agency before case is filed and 25% of fee if you file suit. - Cant sue govt until you exhaust administrative remedies 1. Fill out a claim form (95) that is filled out with the agency and sometimes in other places. 2. Once this is filed, agency gets 6 months to decide what to do. Agency can (1) make an offer (if you reject you can file a claim; (2) deny claim (then you can file a suit); (3) do nothing (you can file a claim).

Note: Tolling is part of SOL and SOL can be delayed. Ex. There is a tolling agreement one side agrees not to enforce SOL when negotiations are going on. It only operates against party who signs contract, loses right to sue against any defendant who didnt sign it and SOL is past. - Suit ok soonest of 6 months or agency denies - Suit required within 6 months of agency denial - Suit must be filed in U.S. District Court and must be against U.S. of A. (cant sue an individual employee) - Fed govt gets 60 days to answer instead of 20 days. - No jury you get a federal judge. (A judge can choose to empanel an advisory panel which is not binding on the judge if the judge wants a sense of what a jury would do. This is usually done for damages.) - Judges tend to behave like jurors in damages questions because judges view jurors and know what they usually do. - This is the exclusive remedy against govt and intentional torts are covered (except for law enforcement agents you can sue them). Ferres Doctrine law now, but is under scrutiny. This precludes actions that arise out of or are incurred during the incidence of service. No claims against govt by active military. (even if it has nothing to do with service.) Laird v. Nelms - The Federal Torts Claim Act did not authorize suit against the Government on claims based on strict liability for ultrahazardous activity. Talks about discretionary function of the rule. Policy protected v. operations (ministerial) not protected. Intent of the Tort Claims Act is a limited waiver of liability. Discretionary Function only rarely does plaintiff win if there is a dispute about whether or not a decision is a policy or operational. Ex. If there are limited resources and a decision has to be made, that is a discretionary decision. 4. State and local municipal liability Pretty much every state now has waived some immunity. Caps are common. There is a public duty exception. California retain immunity except for injuries covered by employees where a private entity would be liable. Limited protection given to contractors. There is liability where there is a mandatory duty to protect. Discretionary function immunity Licensing is exempt (no liability) Failing to inspect property (no liability) Misrepresentation (no liability) Advice to small claims court litigants (no liability) In general there is not liability for failure to provide police protection etc. (notes pg575, note 3) Tipton v. Town of Tabor - When determining whether there was a special duty to protect a person or class of persons, any combination of the following four factors determinative in assessing the existence of a special duty: (1) actual knowledge of the dangerous condition; (2) reasonable reliance by persons on official representations and conduct; (3) an ordinance or statute setting forth mandatory acts clearly for the

protection of a particular class of persons rather than the general public; and (4) failure to use due care to avoid increasing the risk of harm. 1. Actual Knowledge of Dangerous Conditions: This means knowledge of a violation of law constituting a dangerous condition. Constructive knowledge is insufficient. A public entity must be uniquely aware of the particular danger or risk to which a plaintiff is exposed. Foreseeability is a necessary element and actual knowledge denotes a foreseeable plaintiff with a foreseeable injury. Here, there is no strong evidence that the defendants knew about the hybrids dangerous propensities. 2. Reasonable Reliance: The Tiptons say they relied on the defendants to keep the town safe. The general licensing enactment of Tabor was created for the general well being of the community, not for any particular persons or classes. Even if the wolfdogs presence in Tabor was legally sanctioned through licensing, it would not be adequate to create personal reliance. Even licensed dogs bite. Reliance must be based on personal assurances. No direct promises were given here. No one was assured of any protection from the wolfdogs. 3. Enactment for Protection of Particular Class: This element permits recovery against a government entity for negligent failure to enforce its laws only when there is language in a statute or ordinance which shows an intent to protect a particular and circumscribed class of persons. There is no statute or ordinance in this case. 4. Failure to Avoid Increasing Risk of Harm: Official action must either cause harm itself or expose plaintiffs to new or greater risks, leaving them in a worse position than they were before official action. Failure to diminish harm is not enough. Here, the risk after licensing the animals was no greater than the risk before they wre licensed. A widely accepted corollary to the public duty doctrine is the special duty or special relationship rule. Under this rule, plaintiffs must show a breach of some duty owed to them as individuals. The reasoning behind this is that when a public entity acts on behalf of a particular person actively causing injury, the law may impose liability because the government has by its conduct already made a policy decision to deploy its resources to protect such individual. This is basically the same as the general tort principle that persons are not liable for failure to render services to another, but if they chose to act, they must proceed without negligence. Police chases- liability would require gross negligence or recklessness. Some other places allow liability if rules of chase are not followed. A common rule is a waiver for certain kinds of events. Ex. Automobile, extent of insurance, proprietary actions. Proprietary actions things that are the government doing something that could be considered not a function of the government. This is very unsatisfactory in helping us draw a line, but it is still the rule in many places. It is easy to argue either way.

Negligent Infliction of Emotional Distress

Historically, we have been uncomfortable for allowing people to recover for thing we cant see. We were worried about fraud. Very reluctant to allow emotional distress claims for feud and for the difficulty of keeping it under control. (stubbed toe- causes paralysis) Disproportionate liability. General rule is take plaintiff as you find them.

Dziokonski v.Babineau Direct Victim 1. Impact Rule 2. NIED w. Personal Injury (simultaneous or immediately after) - PI must be important (not trivial) 3. NIED w/ PI 4. NIED w/out PI (Molien) Bystander 1. No recovery (because no impact) 2. Recovery only if in zone of danger 3. Dillon type (foreseeability test with limits) No winner rule in either area rules are all over the place. In a contrib. state, bystander cannot recover if the person who got hurt was contrib.. This makes DIED a derivative tort. Not entirely clear what happens in comparative states, usually bystander is reduced by the same amount as the victim. Hypo: woman and husband have a deformed baby. Baby dies, but before it dies, blood is drawn. Duke does genetic testing and tells the couple there is nothing genetically wrong. The next baby is the same, but not as bad. Baby will never be able to do anything for herself. This time they realized they made a mistake and there was a genetic defect. Woman wants to sue because she wouldnt have had another baby if she had known. Can she recover for emotional distress for having and raising this child? Med mal with emotional distress as damage. Special relationship? Several ways of thinking about it. (Gallagher v. Duke) Dziokonski v. Babineau - General: Physical harm that one suffers due to emotional distress caused by the injury of a loved one by a negligent party is a valid cause of action. The focus should be on underlying principles. In this kind of case, there must be both a substantial physical injury (only real rule close to a bright line rule) and proof that the injury was caused by defendants negligence. Beyond this, determination whether there should be liability for the injury sustained depends on a number of factors, such as where, when, and how the injury to the third person entered into the consciousness of the claimant, and what degree there was of familial or other relationship between the claimant and the third person. These factors can be regarded as policy considerations or as factors bearing on the determination of reasonable foreseeability itself. Molien v. Kaiser Foundation Hospitals - A cause of action may be stated for the negligent infliction of serious emotional distress. The standard should be whether there is enough proof of the claim to guarantee its genuineness. Note: This issue is always a jury question, reasonable person standard, what they would suffer) and not applicable to pleadings screening. This is a very broad rule. This court was very liberal. It is a very controversial rule. This case does not decide what happens when it is only emotional and not emotional and physical (footnote 76). Boyles v. Kerr - There is no general duty in Texas not to negligently inflict emotional distress. A claimant may recover mental anguish damages only in connection with defendants breach of some other legal duty. This holding does not affect the right

of bystanders to recover emotional distress damages suffered as a result of witnessing a serious or fatal accident. This court is also not imposing a requirement that emotional distress manifest itself physically to be compensable.

Strict Liability
Tort law is premised on the fact that the defendant did something bad (intentionally or because they were not careful). Strict liability is an exception because we dont care if they were careful. Even if good intentions and very careful, still pay. S.L. Elements: 1. SL fact patter, i.e. blasting, etc. 2. Actual causation 3. Damages This is a departure from how weve thought about torts so far, but it is a limited departure. Really only 3 ways this happens: 1. Animals. 2. Inherently dangerous activities 3. Product liability Restatement 519 (1938) one who carries on an ultra hazardous activity is liable to another whose person, land or chattels the actor should recognize as likely to be harmed by the unpreventable miscarriage of the activity for harm resulting thereto from that which makes the activity ultra hazardous, although the utmost care is exercised to prevent the harm. Restatement 520 (1938) An activity is ultra hazardous if it (a) necessarily involves a risk of serious harm to the person, land or chattels of others which cannot be eliminated by the exercise of the utmost care, and (b) is not a matter of common usage. Use of the phrase ultra hazardous activity. This is not the original language, it was extra and not ultra. Ultra is still used by lawyers, but it is not the correct term. This is carried through. - Use of the word person Rylands was only about property. This expansion was never in England. - common usage this language has and still causes a lot of trouble. There has been no completely satisfactory resolution. What happens to plaintiff in cases under these rules? Boiler is new, but was in fairly common use, what do we do with new things? Changes occur the more we learn about the dangers. This probably wouldve presented recovery. Restatement 1964 (pg. 645) - Discard ultra hazardous for abnormally dangerous and we gain idea that abnormally dangerous involves the activity and the surroundings (location) There is not explicit mention of location, but it is a very important part of the test. Restatement 2d 519 (1977) (1) One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm. (2) This strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous. Restatement 2d 520 (1977) -

In determining whether an activity is abnormally dangerous, the following factors are to be considered: (a) existence of a high degree of risk of some harm to the person, land or chattels of others; (b) likelihood that the harm that results from it will be great; (c) inability to eliminate the risk by the exercise of reasonable care; (d) extent to which the activity is not a matter of common usage; (e) inappropriateness of the activity to the place where it is carried on; and (f) extent to which its value to the community is outweighed by its dangerous attributes. - One change is explicit statement of foreseeability is gone. - Big change was what happened to (520), new version is more inclusive and contains 6 factors - Comparing these factors to thinking in Rylands things created, protection of private eland. Here, the operating principle is changed. Why did this change? Urbanization, no longer using land in same way (now we use it for industrialization) - A-c are really a/b how dangerous the activity is. - D-f are really about balancing danger with social value, use. Prima facie case (1) abnormally dangerous activity (2) causation (3) injury. Restatement 3d 20 (draft) (a) A defendant who carries on an abnormally dangerous activity is subject to strict liability for physical harm resulting from the activity. (b) An activity is abnormally dangerous if: (1) the activity creates a foreseeable and highly significant risk of physical harm when reasonable care is exercised by all actors; and (2) the activity is not a matter of common usage. Duren v. Kunkel - In order for the owner of a domestic animal to be held liable without a showing of negligence, the owner must have actual or constructive knowledge of an animals abnormal dangerous propensities. Wild animals strictly liable if animal is not domesticated or unless it is unlikely to harm if not restrained. Fletcher v. Rylands - The person who for his own purposes brings on his lands and collects and keeps there (creating risk) anything (not naturally there) likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape. This is not a personal injury case only applies to property. A lot of this is the notion that my home is my castle. This rule does not apply to every day activities where people assume a risk (driving, etc.) Rylands v. Fletcher - Prima facie case you created it, it caused harm, there was damage. Defenses: 1. Contributory negligence 2. Natural causes/caused This case was non-natural use, where as old case used term not naturally there. More broad rule. Duty is non-delegable (cant be passed to contractors, etc. - Foreseeability is later added to this rule. - In 2004, court says this rule is very limited. In U.S. we moved towards a rule dealing with very dangerous things and not a distinction between natural and non-natural. Losee v. Buchanan - No one can be made liable for injuries to the person or property of another

without some fault or negligence on his part. The world must have factories, machinery, dams, canals and railroads. If a man owns these and they are not a nuisance and are not so managed as to become such, he is not responsible for any damage they accidentally and unavoidably do his neighbor. This is the initial American reaction to strict liability Klein v. Pyrodyne Corp. - General rule is that any party carrying on an abnormally dangerous activity is strictly liable for ensuing damages. There are six factors to be considered in determining whether an activity is abnormally dangerous: (1) existence of a high degree of risk of some harm to the person, land or chattels of others; (2) likelihood that the harm that results from it will be great; (3) inability to eliminate the risk (risk must go down to negligible, not zero) by the exercise of reasonable care; (4) extent to which the activity is not a matter of common usage; (5) inappropriateness of the activity to the place where it is carried on; and (6) extent to which its value to the community is outweighed by its dangerous attributes. The way the factors should be considered: Several will be required for strict liability . . . it is not necessary that each of them be present. The main question is whether the risk created is so unusual, either because of its magnitude or because of the circumstances surrounding it, as to justify the imposition of strict liability for the harm that results from it, even though it is carried on with all reasonable care. What is the lesser of two innocents really about? Partly about compensation (re-balancing the scales), replacement for proof where proof is destroyed by the activity of defendant (fairness). This case shows- its not just about land anymore (departure from Rylands). Indiana Harbor Belt R.R. Co. v. American Cyanamid Co. same as Klein. Intersection of strict liability and res ipsa with res ipsa, instrumentality must be in exclusive control of party and it has to injure plaintiff under circumstances where defendant could or may know and plaintiff cannot know what happened. the gasoline case really doesnt fit under this. Exemption for common carrier. 2nd Restatement has not worked out. Foster v. Preston Mill Co. - The risk caused by a dangerous activity must be the risk that makes that activity abnormally dangerous in order for strict liability to apply. A lot of things couldve produced this outcome and its not real clear which theory they go with. Beskind thinks this was an especially sensitive plaintiff. Theories: 1. Zone of danger 2. Intervening conduct of mink mother 3 Andrews in palsgraff political reason to just say no. 4. Foreseeability. 5. Coming to the risk (loggers had been there). 6. No actual causation 7. Unusual risk (mink ultra sensitive.) 3 views: 1. Rylands: incursions affecting use of private property. 2. 2nd Restatement Particularly dangerous activities that are done in an inappropriate location. 3. Creating liability where negligence wouldnt apply and creating encouragement for people to move more dangerous activities elsewhere.

Damages
Types of Damages

1. Nominal Damages - $1. Damages in name only. Intentional torts that dont cause any harm (trespass with no damage), but still want to hold wrongdoer liable. 2. Compensatory Damages - Re-balancing scale, put injured person back where they were as far as it can be done with money. 3. Punitive Damages - Monetary sanction. Requires more than ordinary negligence. In many jurisdictions its not just preponderance, but must be clear and convincing evidence for punitive damages. Compensatory Damages Damages for property loss chattels If a thing is totally destroyed its damage is the fair market value at the time of destruction. (emotional value is not considered). This may be changing in one area- pets. First pets had no value, then the cost to replace them with a like animal, now there is a stream of cases that suggest that people may be compensated for an emotional component. What if chattel can be repaired? We price it as the lesser of two possible costs 1. Replacement cost 2. Repair costs. What if it will take six months to repair it? Theoretically, you can rent a boat Ex. Car have to pay for a rental car while your car is being repaired. There also may be rescue costs ex. A bulldozer sunk underwater. Damages for physical injures We are assuming that negligence has already been established because of strict liability, negligence and breach, res ipsa, or intentional tort. We look at the physical and emotional consequences of a harm. We need to find a balance when we compensate people between under and over compensating people. Under compensating harms plaintiffs and does not deter conduct. Over compensating harms the defendant unfairly and then puts too much of a premium on safety which can cause a useful act to stop or have people operate their business in an inefficient way (too much money on insurance). If compensation is done properly, it transfers the cost from the guilty to the innocent and asks people to compensate for costs, get insurance, or adjust conduct (incentive for safety). Full compensation is also seen as a moral right you shouldnt be hurt and left without a remedy and as prevention for physical remedy or economic action (boycott). It is also seen as a prevention of unfair cost sharing of innocents (victim or to society as a whole as taxpayers paying for welfare, government services like insurance, etc.). How do you think about this as a lawyer? Once you understand liability, the key is for each side to understand what is the most or least that can be recovered or have to pay. What is the range and then what is the likely outcome within that range. Each of these things (liability and likely damages) is a variable and is made more variable by the parties. The defendants hate uncertainty so plaintiffs have an incentive to make high end of the range as high as possible by advancing every possible theory, argument for damage within each theory, and as many plaintiffs as necessary. The downside of this is jurors dont like plaintiffs that overreach because they look needy. Defendants know that almost all plaintiffs are in monetary need so they try to advance every bar to recovery, every category of damages that should not be allowed, and arguments that create decreased damages. Both sides have an interest in making it as hard as possible for the other side.

There is always a range that each party has of possible damages, plaintiffs range will be higher and defendants range will be less. These ranges might intersect at some mid-point and that is usually a settlement amount. More than 90% or more of cases settle. If the damages ranges do not overlap and there is no other external force (motions, parties feelings, etc.) the case will go to trial. If plaintiff doesnt have insurance or government assistance, the plaintiff may be in dire need of financial resources and may cause the plaintiff to settle the case for less than they would have settled for if they did not need the money so badly. A plaintiff could also be risk averse and just want to settle. Juries A particular jury in a particular case can make a difference, but normally the composition of the jury is not as big of a factor as the public has made it out to be. Usually you are not shocked by the results. There are lots of factors, how likeable each party is, whether each sides theory is an argument that is attractive, or one only a lawyer could love. Plaintiffs overreaching can also make a jury give less. Usually surprises are found outside the jury box like the previous examples. Lost Earnings 1. Past lost wages 2. Future lost wages 3. Lost or diminished earning capacity Past you were working and you had to miss work or you had to work less hours because of an injury. Also can involve not getting a bonus, perks (vacation time, insurance, etc.). Future the wages you are not going to earn in the future because of the injury you suffered. Capacity One part is you were working but in the future you wont be able to do work of the same economic compensation that you used to do. Note: Loss of job satisfaction is part of emotional distress, this only takes income into consideration. Second part is you werent working but you had the ability to if you wanted to. If you ever needed money, you couldve gone into the work force. Now that option is gone. The question is should the plaintiff be paid for that. Past Classic past lost wages question Josh Carter was making 72,500 and a bonus of 5,000 and afterwards it was 60,000 and now he is not working. At what rate should he be paid in the future. Not a hard time to decide that the 60,000 is the rate because negligent party didnt cause the slip in the bathtub. Lost wages are what he didnt make from the time defendant injured him to the time of the trial. Future Some things that are different here are determining if there would be increased earnings. So how accurate can we be in our decisions? Is this merely speculative? Another factor in most places is inflation. Is the raise a real raise or inflation? What about the discount rate for interest from invested damages? The discount rate is based on a percentage discount rate that is either determined by the court at a set rate or determined by the jury. Life expectancy is also an issue. In Joshs case he was injured first before the defendant injured him. Did he have a shortened life expectancy or shortened work expectancy after the first accident? Also the new injury will probably have shortened his work expectancy. If he can only work for 5 years now, does the

defendant only have to pay for the 5 years? What about shortened life expectancy. Usually defendant will only have to pay for the 5 years but also pay something for shortening his life expectancy or pain and suffering or cost of living once he cant work, etc. There is a duty to mitigate duty to conduct yourself reasonably to accept reasonable medical care, reasonable alternative jobs, etc. (There is a societal desire for people to stay productive). Often the dispute will be should there be a medical procedure in the future that can make things better but may make things worse. In general the law will give wide deference to the choices the individual makes as to what treatment to have. You cant refuse non-risky treatment such as physical therapy, but you can refuse a risky treatment that could make things worse. - Mixed in this is a belief that people are good and in the Americans With Disabilities Act that people will hire workers with disabilities and will give them appropriate raises and promotions, etc. - Gender is a big issue in life expectancy tables because women usually outlive men but also usually have a lower lifetime work expectancy. So women are being punished as a group for the bad health habits of men. There can be evidence and testimony about a parties habits and family health history. Morris v. Francisco Pg. 829 Morris had cerebral palsy and had surgery to preserve her ability to walk and the surgeons negligence caused her to be permanently in a wheelchair. She wanted to be a kindergarten teacher, she is now working as a clerical worker and is planning on becoming a CPA. Plaintiffs lawyer wants to argue that she can only be a clerical worker, because she will then get more money. But if the client is going to say she is going to become a CPA then what is the lawyers argument? Maybe argue she cant become a CPA because of difficulties. You could also use an expert here. An expert of disabilities who can talk about difficulties and success rates. People in vocational placement experience of placing people with this disability. Or people who talk about the ability of people who are in wheelchairs to go to school and succeed, etc. North Carolina loss of earnings statute on slide. Judge ends up letting this kind of damage go to the attorney. If court says jury shouldnt have considered that kind of damage on appeal then where are we? New trial. This can be avoided by the use of a special interrogatory. The jury would be asked how much in damages for each thing. Then when the supreme court says no damage for this, then they can just take out that amount. There are vocational specialties out there who know what you need to be able to do to do a certain job. They can do a test to see what a person is capable of. Situation: Couple has children and one spouse is primary caregiver for children and is therefore not in the workplace. That person has the skills, bar passage, etc. to be a lawyer, so that person knows that they can go back to work as an attorney whenever they need to. Then that person is injured and has lost ability to be an attorney. 1. We look at what an ordinary lawyer would make and so you deferred your start so we will start your career now and pay you for that. 2. We say you were going to go back once the kids started high school and then person only gets wages starting from that point.

Housework How do we compensate someone for not being able to in effect work for themselves by doing housework. So we give them the fair market value of those services (housekeeper, etc.). What if a spouse or someone else is doing the work now? Most jurisdictions still compensate. Past medical bills Really interesting issue because the situation with medical billing in U.S. is strange in the moment. There are usually 3 numbers on a bill 1. The charge (HUGE amount). 2. The reasonable and customary charge as decided by health care provider and the institution or doctor (a lot lower). This is the number that actually gets paid. 3. Co-pay or whatever patient has to pay. What should the defendant pay? One option is having defendant pay out of pocket plus insurance premiums. Only problem is how far back must defendant pay and how far forward. (No jurisdictions do this). Problems with just paying 3 because usually if plaintiff gets money they must pay back insurance company. North Carolina and many other states just go with the number of the bill (number 1). Then there is no worrying about it. Lesser of two innocents if someone is going to get extra or keep extra it should be the injured party. In the future: government mandated health insurance could change all of this in the future. (Costs of defendant would go down). What if someone has a million dollars in medical coverage, and a million in expenses. If all of this has to go to insurance company, then what about the lawyer (why would he try case). Some jurisdictions do a loss collection (company will take a reduced amount to pay the lawyers fee). A lot of times lawyer, client, and insurer will make a deal before trial. Collateral Source Rule The traditional rule is that plaintiff recovers fully for the injuries and damage that the defendant caused. That is true whether or not there is some other source of remedy to the plaintiff such as insurance, government benefits, or the volunteer services of family, etc. Reasoning: better for plaintiff to recover from an expense they did not have to have the defendant have the advantage because the plaintiff had insurance or has access to free care. This promotes deterrence and fairness. There is also no guarantee that these services will continue. The Restatement is considering abolishing the rule except for accident and life insurance. Then, will the defendant get the benefit? Will the plaintiff get anything for having the foresight to have health insurance? Problem because plaintiff gets nothing for paying for the insurance and might even have to pay for insurance, getting a recovery for lost wages for example, and having to pay that to the health insurer because of subrogation clauses. This is very controversial. There is a similar argument that gets made in cases and that is the availability of free services. For example, everyone gets a free education and will provide for the special needs or an injured or disabled child. So can defendant argue that plaintiff does not need the money for private versions of that or for supplements to that when the government is required to pay for it. The defendants are generally not allowed to argue that because government benefits change from time to time and may not always be there. They could get cut. In every case involving a long term disability or long term future medical needs, there is ordinarily a life care plan created. This asks doctors or health care professionals what does this person need more likely than not in the future. This can be medical visits, future procedures, nursing care, changes to residence, or special facilities. These things are often very hotly

contested because a small difference in one area can make a huge difference in the overall cost. For example, whether someone needs a 24 hour R.N. care or whether they can get by with 12 hours of LPN care. Then an economist will adjust the table for discount to present value (earnings on investments). There is also an adjustment for inflation. Inflation affects different things in the economy different. Medical costs have gone up way above the average generally for inflation. The problem is that we dont know if trends will continue. Taxes IRS Code Section 104(a)(2) (a) In general except in the case of amounts attributable to (and not in excess of) deductions allowed under section 213 (relating to medical, etc. expenses) for any prior taxable year, gross income does not include .. . (2) the amount of damages (other than punitive damages) received (whether by suit or agreement and whether as lump sums or as periodic payments) on account of personal physical injuries or physical sickness. Punitive damages are taxed. Emotional injuries related to a physical injury are tax free. However, a claim for defamation would be taxable. When you are calculating future lost income with the jury, the question is should the jury take into account the effect of federal income taxation. The general rule is that it is not taken into account but there are many jurisdictions do. The reason most dont is because tax rates are unpredictable and there are deductions and things that would reduce the effective rate of taxes. Post judgment interest This is by and large legislative enactments that say at the time of a verdict, interest starts running. Why? So defendants dont have a reason to delay payment through unnecessary appeals, etc. The interest rate in North Carolina is 8%. Pre judgment interest Interest from the date of filing until the date of verdict. This is not as prevalent. Many states have it and many states dont and the rates vary from fixed rates to fluctuating rates. The rate in North Carolina is again 8%. In theory the pre-judgment interest should be taxable but it never is. Pre-existing injuries Not everyone comes to the table healthy. These are situations where a defendant injures a person with less than perfect health, made an existing condition worse, or activated a dormant condition. Most states use the take the victim as you find them rule. The notion here is that someone is going to have to bear that burden and we like putting it on the defendant rather than the plaintiff. An example of an instruction in the area (AZ on slide). Defendant only pays for increase in damage, not entire damage if there was pre-existing condition. MitigationThe plaintiff must take reasonable steps to get well and to mitigate the harm that the defendant did. This is supposed to be an objective standard, but if you read the cases, it is clearly a

subjective standard. If the plaintiff is fearful of surgery, where a normal person might not be, we indulge that plaintiffs fear. One reason is were not willing to compensate them if they have the procedure and something goes wrong. Instructions to jury (NC on slide). Puntive Damages The big issue here is the federal governments involvement. Most states have punitive damages, but a majority have some kind of control or limitation by requiring a higher standard of proof or limiting the amount that can be recovered. NC says punitive damages are limited to the higher of 3x the compensatory damages or $250,000. All states have something more than ordinary negligence for punitive damages. It must be conduct worth punishing. Usually willful or wanton, reckless disregard, or intentional. (NC on punitive damages on slide). (AZ burden of proof on slide clear and convincing). Some states hold entities liable for the acts of their employees for punitive damages. Others do not do this. If theres a trend its towards not. The exception is if the employer permitted, encouraged, or sanctioned the act. No defendant ever settles a case for punitive damages if they can help it because punitive damages are not deductable as a business expense and plaintiffs dont want to either because punitive damages are taxable. So what you see are settlements with large compensatory damages and no punitive damages. BMW v. Gore - The three guideposts are: (1) the degree of reprehensibility of the nondisclosure; (2) the disparity between the harm or potential harm suffered and the punitive damages award; and (3) the difference between this remedy and the civil penalties authorized or imposed in comparable cases. State Farm Mutual Auto Ins. v. Campbell - There are three guideposts to be considered when \ reviewing punitive damages: (1) the degree of reprehensibility of the defendants misconduct; (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award; and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases. First party bad faith claim is a claim against your own insurer. Third party bad faith claim, you hurt me and your insurer didnt treat me fairly. The standard for first party is considerably higher than the standard you owe a third party. Contractual relationships require good faith and bad dealing, whereas in claims process, the relationship is different (it is an adversarial relationship). If a settlement had been signed, no bad faith case could exist. State Farm ended up paying, so there really was no loss arising from the case. What they now are doing is following the Campbells loss from the maltreatment by insurer. Supreme court ordered a bifurcated trial liability then damages. Can either give two juries or one. The court gave State Farm a break and gave them two juries. A punitive damages case, a jury has to agree that it could order punitive damages, and like in death penalty juries, they are probably more likely to find that way. Criminal (guilty) Civil (liable). Court says: Applying these factors, the handling by State Farm merits no praise

Critical question: You cant punish them for what they did outside of the state, but you can use it as evidence. (this type of evidence may be needed to prove a nationwide pattern or practice). Next case comes out of the Exxon-Valdeez case massive judgment with massive punitive damages. Captain was drunk, history of being a drunk, and company knew he was a drunk. In the end the court said, its a 1:1 ratio. However, the two contesting arguments here were the argument of defendant that no punitive were permissible at all because it was an admiralty case. There was real question about punitive in admiralty cases. The plaintiffs are arguing for massive punitive because of reprehensibility, etc. The court strikes a balance between the two positions and says 1:1. This is working its way through the judicial system. There are judges out there that do not understand this was an admiralty decision. However, some judges understand that and are still interested in using it as a capping mechanism. This is not the modern view because it was an admiralty case. Now: we still have those three factors though it is unclear whether criminal sanctions is a factor. We have the single digit rule. Application of a ration of 1:1 in admiralty case, which could end up being the future trend. So there is no complete understanding of the issue, it is still evolving. Punitive damages are used in a number of ways: There are punitive damages that are used in situations where you want the other side to apprehend great risk, where the plaintiff wants the other side to have to produce information about their wealth because that would be helpful in the case. These uses are leverage uses and courts are uncomfortable about that. There is legitimate concern about abuse of punitive damages. There have been studies of the actual punitive damages awards and they are usually modest, one study says they are less than 1:1 in most cases. Often there are explanations for large verdicts. How would you separate this out of state question? Allowing jury to consider evidence for determining whether misconduct was done in this state and how prevelant it was. Not consider it in the determination of damages, can only consider the misconduct in this state for damages. Underlying this is anger. To some degree punitive damages are about angry juries and there is some evidence that angry juries do not follow the law as well as other juries. Are popeles decisions less correct when they are inspired by anger, emotion, grief? We dont know. In the end, most people agree, that the existence of punitive damages have a long and storied common law doctrine. They are still available in England in some situations: 1. Profiting off egregiously wrong conduct. 2. Government did egregious conduct. It is a work in progress. The question will be when its too big and how that is assessed?