TORT LAW: EVALUATING TORT LAW

1. 2. 4. 1. A. Major Criticisms Affordability crisis - liability insurance costs too much Availability crisis insurance is unavailable to some defendants 3. Some important goods and services will be unavailable b/c treat of tort liability is driving some producers out of business Not all criticisms are true and come from bias against judicial system B. Impact of tort law on injury problem Undercompensation many victims do not get the damages they deserve because: i. Settlement is necessary b/c claimant cant afford to go to trial ii. Settlement b/c trial is delayed or taking too long iii. Settlements = claimant getting less than they deserve iv. Effectiveness of witness, bias of jury, and strength of case v. Uninsured drivers are numerous and dont have enough to cover damages Overcompensation Delay in payment under tort system Failure to deter or compensate 5. People can benefit from the insurance of others without having adequate insurance themselves Lottery? Many elements of a torts case are fortuitous C. Alternatives to tort law 1. Workers comp: strict liability, defenses abolished, compensation limited to fixed amounts for medical and wage only. Workers entitled to immediate, periodic payment. Courts have limited role with no tort actions against employers 2. Public compensation: manufacturers or companies or groups are taxed and those taxes go to helping people injured by those groups. Similar to social security 3. Private insurance: everyone covered by insurance which drivers were compelled to purchase and covered driver, pedestrian, and occupants of the vehicle. Everyone covered for themselves. No fault insurance applies to small injuries

2. 3. 4. 6.

INTENTIONAL TORTS

A. What is intent? 1. Acting with the purpose of bringing about the result OR 2. Acting with knowledge that the result is substantially certain B. Battery 1. an intentional unpermitted act causing harmful or offensive contact with the "person" of another. 2. Elements of battery a. Voluntary act b. Touching includes things like blowing smoke in someones face, shooting someone and grabbing a plate out of someones hand c. Harm or offense offense is when the contact offends a reasonable sense of personal dignity. Protecting privacy, dignity and bodily autonomy d. Intent to touch e. Intent to cause harm or offense 3. Requiring fault a. Van Camp v. McAfoos Rule: MUST ALLEGE EVERY SINGLE ELEMENT Facts: 3 year old riding tricycle rams into the back of P causing injury to her Achilles tendon. Intentionally wrongful or negligently wrongful use of the tricycle is neither pled nor can it be made out from Ps claim. 1

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Cases on Intent a. Snyder v. Turk Rule: evidence of intent of harm or offense can be circumstantial. reasonable minds could conclude that the Dr. intended to or commit and offensive contact or knew with a substantial certainty that his conduct would offend Facts: doctor got upset at nurse perceiving she was making the procedure more difficult. When nurse handed him the wrong tool he grabbed her shoulder and shoved her head toward the operation site and yelled at her. b. Cohen v. Smith Rule: Contact must be offensive but not necessarily physically harmful. Touch itself was not harmful, but the lack of consent is what made it harmful/offensive. Also more emphasis on bodily autonomy Facts: Cohen is giving birth and her religious beliefs say she cannot be seen naked by man other than husband. Doctor agrees to follow her religious beliefs. During c-section Nurse Smith, male, observed and touched Cohens naked body, despite knowing her religious beliefs. c. Mullins v. Parkview Hospital Rule: VanHoey had no reason to suspect that when Dr allowed her to perform intubation that the patient had altered the usual consent. She had neither intent to harm or offend nor knowledge to a substantial certainty. All elements were not proven. Facts: P didnt agree to allow the presence of healthcare learners in her operation. As soon as she was out, doctor not only allowed student in but, allowed that student to practice intubations on P. lacerating her esophagus. Remedies a. A.R.B. v. Elkin Facts: brother and sister no longer living with father brought action for battery against him. Claimed and he admitted to a number of acts of sexual abuse. Trial judge rejected damages for emotional fear and harm because there was no medical evidence to support emotional distress claims. Issue: Did trial court err in not allowing consideration of damages. Holding: upon proof of battery or assault P is entitled to recover nominal damages plus compensatory damages for bodily pain, humiliation, etc. Defining Intent a. Garratt v. Dailey Rule: D has to know with substantial certainty that aunt was going to sit there. Age can be a factor to determine whether he knew what he was doing. Facts: five year old visiting Aunt pulled chair out from underneath her. She fell and the fall resulted in a fractured hip. Thin Skull Doctrine a. Hypo with the girl and the rare bone disorder Kicks her and her leg breaks Should have known what she was doing was wrong Liable for battery even though she didnt know what the result of her kicking would be, intended to kick and intended some kind of harm Double Intent/ insanity a. White v. Muniz Rule: jury must find that the actor intended offensive or harmful consequences, not just the intent to perform the act (double intent) Insanity not a defense to an intentional tort but is a characteristic that makes it more difficult to prove intent. Facts: 83 year old g-ma with Alzheimers in nursing home. G-ma struck 2

nurse in the jaw when nurse was trying to change her diaper. b. Wagner v. State (Utah) Held that the doctrine of double intent was unworkable and the restatement only required single intent. If a man walks up and kisses a woman, in order to be found liable would not only have to have intent to kiss her, but intend that the kiss would be harmful or offensive. 9. Extended Liability a. Dont need to know the extent to which you will harm but that you will harm b. The defendant who commits an intentional tort, at least if it involves conscious wrongdoing, is liable for all damages caused, not merely those intended or foreseeable meant to deter. 10. Transferred Intent a. Transferred intent: if a person intended to hit A but missed and hit B, the intent to commit a battery is transferred from A to B. b. Stoshak v. East Baton Rouge Parish School Facts: teacher struck in head while trying to break up fight. LA law said teachers assaulted or battered by a student of person while acting in his capacity as a teacher was entitiled to extra disability benefits. c. Transferred Intent (type 2) Intent to commit one tort but ends up committing another. Example: Intent to assault, but makes contact- battery Kids stealing watermelon case (Brown v. Martinez) C. Assault 1. Elements of Assault a. Voluntary act b. Intent to cause apprehension of imminent harmful or offensive conduct c. apprehension of imminent harmful or offensive conduct actually results 2. Raess v. Doescher a. Rule: no physical contact needed as long P has an awareness that imminent harmful or offensive conduct can occur. b. Facts: Raess and Doescher got into an argument adjacent to an open heart surgery area about Doeschers professional abilities. 3. Cullison v. Medley a. Rule: It is for the jury to determine whether Cullisons apprehension was one that would normally be aroused in the mind of a reasonable person. b. Facts: Cullison invited 16 yo girl to have a drink at his place. She told her family and they showed up at Cullisons residence with guns and told Cullison to stay away from their daughter. The dad never withdrew gun, but kept patting it and looking at Cullison. 4. Dickens v. Puryear a. Rule: words alone do not equal an assault. D used conditional language so there can be no apprehension of imminent harmful or offensive conduct. b. Facts: after beating P, Ds told him to go home, rip his phone off of the wall, and leave town or they would kill him. D. False Imprisonment 1. Elements of False Imprisonment a. Confinement of another b. w/in bounds c. against their will or consent and no lawful authority d. for an appreciable time, however short e. victim is aware of the confinement or harmed by confinement 2. Cases on False Imprisonment a. Fuerschbach v. Southwest Air Rule: (1) Didnt matter that it was only for 2 minutes it is still an appreciable amount of time. (2)Cannot consent for another person. (3) No probable 3

cause to arrest = no lawful authority Facts: As a prank SWA supervisor had one of her employees arrested. Cops were told that she would be okay with it and agreed to arrest her. b. McCann v. Wal-Mart Rule: mere threat of physical violence or lawful authority = confinement. No physical restraint is required. Facts: Store told mom her kids cant be there because they stole before. Took them to a separate area and said they were calling the police. Wouldnt check the womans ID and actually sent for security guard. They were not the thiefs. E. Intentional Infliction of Emotional Distress 1. Elements a. Extreme and outrageous conduct b. Intent to cause, or reckless disregard of probability of causing emotional distress c. Severe or extreme emotional distress AND d. an actual proximate causation of emotional distress by the defendants outrageous conduct 2. Cohen v. Smith a. Calling police to restrain Mr. Cohen outside of ER coupled with the sensitive nature and strength of Cohens religious beliefs could possibly be IIED F. Trespass; conversion 1. Trespass a. Voluntary entry upon the land of another b. Without consent 2. Conversion a. Treating anouthers personal property as ones own b. Converting that property to ones personal use Finding a watch and keeping it, borrowing a car and never returning it Treating anothers personal property as ones own Converting that property to ones personal use G. Defenses to Intentional Torts 1. Self-defense a. People are privileged to use reasonable force to defend themselves against the threat of imminent assault, battery, or confinement b. Responses to assault, battery or confinement must be reasonable, not excessive 2. Arrest and Detention a. Peters v. Menard Rule: shopkeepers privilege under statute did not limit merchants to the premises and provides immunity so long as Ds actions were not unreasonable. Facts: guard observed Peters take a box to his truck. They confronted Peters and he ran into a lake and drowned. b. Statute: not limited to detention on the premises and provides immunity so long as Ds actions were reasonable. Test: Good cause to believe the person took goods or altered prices on them Ds actions were reasonable Length of time the person was detained was reasonable c. Restatement 120A Similar privilege that permits detention on the premises for reasonable investigation d. Common law If it turns out the person did not steal they may be liable for false 4

imprisonment 3. Defense and Repossession of Property a. Always value life over property b. Katko v. Briney Rule: possessor of land had no privilege to use force intended or likely to cause death or serious harm against another whom the possessor sees about to enter his premises or meddle with his chattel, unless the intrusion threatens death or serious bodily harm to the occupiers or users of the premises. Facts: D set up a shotgun trap to injure anyone who tried to break into their unoccupied farm house. P broke Ds farmhouse, shotgun went off and blew away most of his leg. c. Brown v. Martinez Rule: value life over property. Amount of force was not reasonable Facts: 3 boys go to mans garden to steal watermelons. D came out and intended to fire a warning shot but ended up hitting a boy instead. 4. Discipline a. Parents may use reasonable force as they reasonably believe necessary b. Other child care providers enjoy similar but not as liberal privileges 5. Consent a. Important when considering consent b. Context c. Prior relationship d. Type of relationship e. Implied consent f. Capacity Anything that would affect this capacity Alcohol The dentist case 1. Prior sexual abuse can affect capacity to consent only if the defendant has knowledge of the plaintiffs history Incapacity due to mental disability 1. Ability to appreciate the consequences of a sexual relationship g. Relationships Power relationships 1. Robins v Harris (p 67) a. Rule: An a civil case an inmate can consent to sex with a jailer despite that there is an unequal distribution of power b. Jailer had inmate perform sexual acts on him, saying she consented to it when she exposed herself to him Employer relationships 1. Statutes forbidding sexual harassment of employees Minors 1. Can consent to touch appropriate of their age 2. Major surgery 3. Abortion 4. Intercourse a. Criminal liability for sexual conduct with a minor; consent ineffective and no defense i. Age of consent in most states is 18 ii. Nevada age of consent is 16 h. Medical consent Medical battery 5

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1. Allegations that the doctor exceeded the scope of patients consent Ashcroft v King 1. Rule: in order for consent to exist the act must be within the scope of the consent given 2. Facts: girl agreed to blood transfusion but only if blood came from family members. Drs gave her blood from non-family members and the girl got AIDS. Was outside scope of consent Kennedy v. Parrott 1. Facts: P went in for appendectomy and while there Dr found enlarged cysts and punctured them which caused injuries in her leg. 2. Issue: did Drs go beyond scope of consent 3. Holding: Nosurgeon may extend operation to remedy and abnormal or diseased condition in the area of the original incision when he deems it necessary. 4. NOTE: This case is from 1956, medical imaging has improved dramatically since then. Drs. Should warn of the possibility of other things and may have to perform additional procedures Emergencies Medical battery does not apply in emergency cases 1. Dr. cannot obtain consent from the patient Substituted consent Consent of relatives/guardians Standards 1. Should they make the decision based on: a. Best interest of the patient OR b. What the patient herself would do if she was competence Incompetence to give or withhold consent 1. Miller v Rhode Island Hospital (Note 5, p 71) a. Plaintiff really drunk and needed procedure to prevent internal bleeding b. Plaintiff objected, doctors strapped him down and performed procedure anyway c. Plaintiffs ability: 1. To understand the condition and 2. Nature and effect of the proposed treatment or its rejection Scope of Consent 1. Doe v Johnson (p 72) a. Defendant consented to have sex, but not to have sex with someone with an STD

NEGLIGENCE
A. What is Negligence? 1. Any act that creates an unreasonable risk of harm to others 2. Elements: D owed P a legal duty D, by behaving negligently, breached that duty P suffered actual damages Ds negligence was an actual cause of this damage Ds negligence was a proximate cause of this damage B. Duty 1. Duty owed: 6

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The standard of care generally owed by people is to exercise the care that would be exercised by a reasonable and prudent person under the same or similar circumstances to avoid or minimize risks of harm to others. 2. General duty of care Doe v. Johnson - Rule: ones high risk activity alone is not enough to have a legal duty. There must be high risk activity in conjunction with something else. - Facts: doe and Johnson had consensual sex despite the fact that Magic allegedly refused to wear a condom. Doe alleges that this sexual contact w/ magic is when the HIV virus was transferred to her. Doe claims that magic had multiple partners and should have known he was at a high risk for contracting HIV. Stewart v. Motts - Rule: only one standard of carereasonable care under the circumstances. Level of care changes with the circumstances, but the standard of care is always reasonable care under the circumstances - Facts: P stopped at Ds auto shop and offered the assist D. P suggested pouring gas into carburetor, D did, and the car exploded. Bjorndal v. Weitman - Rule: negligence standard focuses on whether a person acted with reasonable care to avoid harm to others, in light of all the circumstances including any emergency circumstances. General negligence standard encompasses emergency situations. - Facts: car accident, D claims he was unable to see Ps turn signal until it was too late and he was unable to avoid a collision. The jury was given and emergency instruction which the P disagreed with. 3. Disabilities Shepard v. Gardner Wholesale - Physical - Facts: P tripped over a raised concrete slab in sidewalk in front of Ds business. She suffered from cateracts and had impaired vision. - Issue: is there a different standard of care for physically disabled people? - Holding: ordinary care in the case of such a person is such care as an ordinarily prudent person with a like infirmity would have exercised under the same or similar circumstances. Sudden incapciation: - Where a persons alleged negligence is caused by a sudden physical incapacitation that is not foreseeable, there should be no liability. Creasy v. Rusk - Mental - Facts: Rusk has Alzheimers and attacked a nurse at his nursing home. - Issue: is there a different standard of care for the mentally disabled? - Holding: mental disability does not excuse a person from liability for conduct, which does not conform to the standard of a reasonable man under like circumstances. No allowance is made for lack of intelligence, ignorance, excitability or proneness to accident. In cases of caretakers, there is no complaint for injuries because the duty of care is a one-way street. Contributory negligence: Used to have to be totally faultless. Any fault on part of P meant no recovery of damages. Comparative negligence is the newer model and it operates to reduce the plaintiffs recovery of damages, but not necessarily all recovery. Pure comparative negligence = P can get even 2% of damages if Jury deems it was 2% Ds fault. 5. Particular standards or duties 7

Hill v. Sparks - Rule: the standard of the reasonable man requires only a minimum of attention, perception, memory, knowledge, intelligence and judgment in order to recognize risk. - Facts: D operated earth moving machinery. Despite hearing of a child who got injured the same way he allowed his sister to stand on a ladder on the machine. Hit mound of dirt, bounced back, sister flew off and got ran over. Robinson v. Lindsay - Rule: Adult activities should be held to an adult standard despite who is performing the activity. Snowmobiling is an adult activity. - Facts: Kelly Robinson (11) lost thumb in snowmobile accident. Driver was Billy Anderson (13) Hudson v. Putney - Rule: If its not nescessarily an adult activity use the child standard. Ds conduct is not to be judges under the adult standard of care b/c there was no evidence that adult skills were required and no evidence that golf carts were normally operated only by adults. Not a singularly adult activity. - Facts: 14 year old D allowed 11 year old to drive gold cart. Cart ran into P and broke Ps leg. Marshall v. Southern Railway Co. - Rule: it is incumbent upon the operator of a car to keep a reasonably careful lookout and to keep same under such control at night as to be able to stop w/in range of his lights. - Facts: P driving at night on paved road. Ds railroad trestle supported by timbers. Man driving the other way had brights on and P plowed into trestle. Chaffin v. Brame - Test: what would reasonable person have done in same situation? P had no reason to anticipate or expect that Ds truck had been left standing on traveled part of road w/out lights. Once truck came into view P did everything he could to avoid collision. P acted as a reasonable person in same situation would have. - Facts: P driving 40 at night. Car approached who wouldnt dim headlights. P blinded ran into a truck left unlighted and blocking the entire right lane. Martin v. Herzog - Facts: D driving at night crossed over center line on a curve and struck buggy occupied by decedent. Decedent was driving without lights. - Issue: is Decedent guilty of contributory negligence? - Holding: unexcused omission of statutory signals is negligence. Jury was instructed that they could view the omission of lights as innocent or culpable. The instruction gives Juries dispensing power to relax the duty one traveler owes another which they do not actually have. Negligence per se - Applies only to statutes that declare conduct unlawful but are silent as to civil liability - When court applies negligence per se to a statute, the statute itself supplants the usual common law standard of care and violation of the statute establishes breach. - OGuin v. Bingham County o Facts: Kids killed while playing at landfill. Went through an unlocked schoolyard gate, through private field and into unobstructed landfill property. o Holding: A statute that adequately defines the required standard of care supplants the reasonable person standard encompassed in the concept of ordinary negligence. 8

Dissent: neither statute is intended to prevent tresspassers from hurting themselves through an accident at the landfill. Meant to prevent people from dumping things that could be harmful to the public. o TEST: in order to replace the common law duty of care from a statute or regulation, the following elements must be met 1. The statute or regulation must clearly define the required standard of conduct. 2. The statute or regulation must have been intended to prevent the type of harm the Ds act or omission caused 3. The P must be a member of the class of protected persons. 4. The violation must have been the proximate cause of the injury. 6. Defenses to negligence per se Impson v. Structural Metals - Facts: D tried to pass a car within 100 feet of intersection. Statute prohibits this. - Issue: what excuses or justifications are legally acceptable? - Holding: an excused violation of a legislative enactment is not negligence. The list is not exclusive but they give 5 catergories: o Violation is reasonable because of actors incapacity o He neither knows nor should know of the occasion to comply o He is unable after reasonable diligence or care to comply o He is confronted by an emergency not due to his own misconduct o Compliance would involve a greater risk of harm to the actor or to others - Driver made move deliberately, no emergency considerations, not incapacity. No excuse C. Breach of duty 1. The failure or omission to do that which a person is bound by law to do, or the doing of it in an unlawful manner. 2. Exercising reasonable care a. Indiana Consolidated v Matthew (p 117) Rule: Value life over property. As long as D has behaved as a reasonably prudent person would he can not be faulted for acting with his best judgment when an emergency occurs which was not of his own making. Facts: Man started lawnmower in brothers garage and it caught fire, so brothers insurance company sued to get their money back b. Stinnet v Buchele Employer not negligent because the painter knew the job was dangerous and accepted it anyways and knowing what safety tools were needed, did not ask for them. c. Lowery v Echostart Statellite (Note 3, p 121) 1. Def not negligent for not coming out to fix the satellite 2. Plaintiff went up to the roof knowing it was dangerous The obviousness of the risk may make the likelihood of its materializing so slight that there is no need to try to eliminate the risk d. Precautions against risk Bernier v Boston (p 123) 1. Even though they knew the poles had a high risk of falling, did nothing to even study different designs or types of poles 3. Foreseeability a. Harm not only foreseeable but too likely to occur to justify risk without added precautions b. Breach of duty because the harm was foreseeable Pipher v Parsell (p 114) o 9

1. Rule: If, after a driver is on notice that a risk occurs, he does nothing to prevent it from happening again he breaches a duty toward those in his car. 2. Facts: Teenage passenger grabbed the wheel of the car twice, D not negligent in allowing first incident to happen, but is negligent for allowing the second incident to happen Bernier v Boston (p 123) 1. Rule: it is foreseeable that poles will fall over and strike pedestrians when the poles lack ductility. That forseeability lead to a breach of duty. 2. Facts: car hit lamp pole, it fell over and hit pedestrian 3. Do we want to protect pedestrians or motorists? Court picks pedestrians because they arent surrounded by metal. 4. Learned Hand formula a. Is the burden less than the probability times the loss United States v Carroll Towing Co (p 127) 1. Fact that there was no bargee on board = contributory negligence a. High likelihood that the barge would break way because of weather/time of year b. Bargee was off boat for 21 hours 5. Assessing Responsibility when more than one person is negligent a. Contributory negligence i. Most states will let P recover even if she is at fault as well, but with her damages reduced in proportion to her fault. However different states have different percentages for comparative fault and if P is above the limit she will not be able to recover. ii. Historically if P was contributorily negligent she could not seek and damages b. Joint and several liability i. P can enforce her judgment against wither tort feasor and get from them the entire amount of the judgement ii. More favorable to the plaintiff. iii. Contribution: most states will allow the D who is chosen to pay the judgment to sue the other defendant(s) so to make payments proportional to their fault 1. Historically it was pro rata meaning all the Ds paid an equal amount of the judgment 2. If the other defendants are judgment proof then the solvent tort feasor has to cover their share and P still gets all of her judgment c. Several liability i. P must enforce her judgment on all tort feasors and collect the amount they are liable for ii. No tort feasor is liable for more than his proportionate share so if there are Ds that are judgment proof, P will not get all of her judgment because she can not enforce it on the D with the most money d. Assessing responsibility in Nevada i. All cases are joint and several, ii. The exceptions are personal injury or death or injury to property cases where comparative negligence is asserted as a defense 1. In those cases the judge shall instruct the jury that P may not recover if Ps comparative negligence is greater than the negligence of D or the combined negligence of multiple Ds 2. If P is entitled to recovery, the jury shall give a total judgment amount and then a special verdict indicating the % of negligence 10

attributable to each party 3. If a D settles with P before entry of judgment, its comparative negligence and the amount of the settlement should not be disclosed and instead the judge will deduct that amount from the total judgment after the jury returns a verdict compliant with the parameters stated above 4. Each D is SEVERALLY liable for there percent of the judgment iii. The following are not affected by the above exception 1. Strict liability; intentional torts; the emission, disposal or spillage of a toxic or hazardous substance; concerted acts or the defendants does not include concerted acts of medical professionals; or an injury to any person or property resulting from a products liability incident 6. Proving and Evaluating Conduct a. Plaintiff must prove each element of the case by a preponderance of the evidence b. Negligence must be more probable than not c. Santiago v. First Student i. Rule: a hard to prove case does not relieve P of burden of presenting sufficient evidence to demonstrate the existence of a material question of fact ii. Facts: girl claimed she her bus driver collided with a car at an intersection even though she couldnt identify the intersection or describe the car d. Circumstantial evidence: evidence of one fact that permits an inference of another fact. It is involved in almost all negligence cases. e. Thoma v. Cracker Barrel i. Rule: P can show negligence in a spill case by proving 1 of the following 1. D created and failed to take reasonable steps to abate hazard 2. D did not directly create the condition but discovered or should have discovered constructive notice a condition created by others a. Show constructive notice by showing substance had been there for a relatively long time. ii. Facts: P slipped in puddle allegedly left by employee of restaurant 7. Custom and Usage a. Custom of an industry can be used as a sword, not as a shield i. Custom available to P but not to D b. Walmart v. Wright i. Rule: failure to follow a partys precautionary steps or procedures is not necessarily failure to exercise ordinary care ii. Facts: there was a spill in the garden aisle of walmart which had a store policy of cleaning them up a certain way and they didnt follow it c. Duncan v Corbetta i. Rule: Proof of general custom and usage is admissible because it tends to establish a standard by which ordinary care may be judged even where an ordinance prescribes certain minimum reqs. which the custom exceeds ii. Facts: stair collapsed and was made with a wood which met the reqs of the ordinance but was below industry standards d. T.J. Hooper i. Rule: its not custom to have radios, but using Judge Hands test it was shown that it was not a large burden courts must in the end say what is required; there are precautions so imperative that even their universal disregard will not excuse their omission. 11

ii. Fact: boat crashed because they did not have radio to warn them of storm 8. Res Ispa Loquitur a. Proves not only breach of duty but also causation it also shifts the burden of production to the defendants b. Byrne v. Boadle i. Rule: A plaintiff must persuade a jury that more likely than not the harmcausing event does not occur in the absence of negligence. The plaintiff does not have to eliminate all other possible causes for the harm, nor does the fact that the defendant raises possible non-negligent causes for the harm defeat plaintiffs effort to invoke res ipsa loquitur (Latin for the thing speaks for itself). The key is that a reasonable jury must be able to find that the likely cause was negligence. ii. Facts: barrel of flour falls on guys head c. Historical test for res ipsa i. Accident which produced the injury is one which ordinarily does not happen in the absence of negligence ii. The instrumentality or agent which caused the accident was under exclusive control of the defendant AND iii. The circumstances indicated that the event was not caused or contributed to by any act or neglect on the part of the injured person. d. Restatement 2nd test i. Event is of a kind which ordinarily does not occur in the absence of negligence ii. Other responsible causes, including the conduct of the plaintiff and third persons are sufficiently eliminated by the evidence iii. The indicated negligence is within the scope of Ds duty to P e. Restatement 3rd i. Negligence can be inferred when the accident causing the harm is a type that ordinarily happens b/c of the negligence of the class of actors of which the defendant is the relevant member. f. Effect of res ipsa i. Permissible inference allows the issue to go to the jury and they are permitted but not required to draw the inference of negligence 1. Exception: cases that are so strong like hospital sending baby home to the wrong parents ii. Presumption (some courts) 1. Shifts burden of persuasion to D to prove not negligent 2. Shifts burden of production only to D (D must produce some evidence that D not negligent) g. Koch v. Norris Public Power District i. Rule: power lines should be built and maintained so they do not fall w/out the intervention of nature/ people and therefore if a line falls without explanation, it must have been negligently constructed or maintained ii. Facts: powerline fell on a sunny dry day with winds of 40 MPH h. Cosgrove v. Commonwealth i. Rule: cannot rely on res ipsa because a lot of things can cause a powerline to fall like the stormy conditions apparent that night. ii. Facts: stormy night powerline fell and sparks ignited a gas leak i. Warren v. Jeffries i. Rule: without evidence at all about a particular situation and any theories are pure speculation, one cannot invoke the doctrine of res ipsa ii. Facts: car starts rolling back with people in it, kid jumps out and the car runs over him 12

Giles v. City of New Haven i. Rule: Connecticuts adoption of comparative negligence compels the conclusion that res ipsa can apply to a case even where the plaintiffs negligence contributed to the injury. ii. Rule 2: growing trend in control requirement is not to apply it in such a way that renders it a fixed, mechanical and rigid rule. It is enough that D is under a duty which he can not delegate to another. iii. Facts: elevator company claims they did not fail to maintain an elevator chain k. Escola v. Coca-cola i. Rule: we can determine exclusive control by eliminating the negligence of intermediaries ii. Facts: coke can which hadnt been kept at extreme temperatures or dropped, exploded in a womans hand l. Collins i. Rule: where there are only two defendants who had consecutive control over plaintiff and either one could have caused Ps injuries and both are named in the complaint P can rely on res ipsa for both Ds ii. Facts: elderly woman who was dehydrated and had a broken leg was under the control of both the ambulance and rehabilitation clinic at time of injury m. Woosley i. Rule: Res ipsa can still be relied upon despite the fact that there may be contributory negligence by P, NV no longer follows third prong of his. test ii. Man is driving and there is a ladder in the road which he swerves to miss but there is a truck so he swerves back hits ladder and median and dies D. Actual Cause 1. JUST BECAUSE ONE PERSON IS THE CAUSE DOESNT MEAN THAT SOMEONE ELSE ISNT TOO!!! 2. Plaintiff must show not only that she suffered a legally recognized harm, but that the defendant in fact caused the harm. 3. Hale v. Ostrow a. Rule: Ds conduct is the cause in fact to Ps injury if as a factual matter, it directly contributed to Ps injuryWould Ps injury have happened but for Ds act? b. Facts: sidewalk blocked by bushes, forced to go off side walk and tripped 4. Salinetro v. Nystrom a. Rule: Dr. not actual cause because even if he had asked if she was pregnant she would have said no and agreed to the x-ray anyway b. Facts: woman got into accident and Dr performed x-ray without asking if she was pregnant. She was, and the fetus died as a result of the x-ray. 5. Landers a. Rule: Where the tortuous acts of two or more wrongdoers join to produce an indivisible injury, all of the wrong doers will be held jointly and severally liable for the entire judgment. Allocate responsibility by fault b. Rule 2: When injuries are divisible, we allocate responsibility by cause c. Facts: mans lake destroyed by salt and oil cant determine which company caused which injuries 6. Anderson a. Rule: If two or more causes concur to bring about an event then cause-in-fact is established by the substantial factor test: was Ds event a material or substantial element in causing Ps damages? b. Facts: Fire set by Ds engine burned Ps stuff. D claims that other fires were in the area that combined with theirs and would have burned Ps stuff is Ds fire 13

j.

didnt 7. Substantial factor test: a. was Ds event a material or substantial element in causing Ps damages? b. Some courts say it applies whenever multiple causes of injury are present c. Third Restatements approach: if tortuous conduct of one tortfeasor, A, fails the but-for test only because there is another set of conduct also sufficient to cause the harm, As conduct is still a cause in fact. 8. Duplicative and Presumptive causation a. Duplicative: if two events concur and the injury would have happened even if one of the events were not present then the two events are duplicative causes and both are liable i. A but for test would not reach this result b. Preemptive: similar concept to independent intervening cause. Just as a woman puts poison to her lips she is shot dead by someone else, the poisoner would not be the cause of her death. 9. Zuchowicz v. U.S. a. Test: if (1) a negligent act was deemed wrongful because the act increased the chances that a particular type of accident would occur and (2) a mishap of that very sort did actual happen, this was enough to support a finding by a trier of fact that the negligent behavior caused the harm. Shifts burden of production to D b. Facts: Danocrine prescribed wrong, dosage well over the suggested amountwas it the danocrine, or the overdose of danocrine that caused the injuries? 10. Summers v. Tice a. Rule: when two people could be the cause of Ps injury but it is unclear who actually caused the injury, the can be treated as joint tortfeasors and both may be liable. Shift burden of persuasion to Ds b. Facts: 3 men went hunting two of them (defendants) shot in the direction of P and one of the Ds hit him in the eye but nobody can figure out which one did it. 11. Loss of opportunity a. Medical malpractice form of recovery which allows P, whose preexisting injury or illness is aggravated by the alleged negligence of a physician or a health care worker, to recover for her lost opportunity to obtain a better degree of recovery b. 3 approaches to lost opportunity i. Traditional (minority of courts) All or nothing result P must prove a preponderance of the evidence that person would have a more favorable outcome, if burden is met P can recover for entire pre-existing condition. ii. Relaxed causation negligence more likely than not increased the harm or destroyed a substantial possibility of achieving a more favorable outcome. If burden is met P recovers for damages in entirety. Worst possible outcome because all or nothing rule usually in favor of P iii. Lost chance (used my most courts) the lost opportunity for a better outcome is itself, the injury for which the negligently injured person may recover. Does not recover for full injury but instead for just the loss of opportunity c. Lord v. Lovett i. Rule: use the third approach as described above treating loss of opportunity as an injury in and of itself. P must provide jury with a basis upon which to distinguish that portion of her injury caused by Ds negligence from a portion resulting from the underlying injury. This can be done through expert testimony. ii. Fact: P broke neck in a car accident and alleges that D negligently misdiagnosed her spinal cord injury and did not immobilize her properly 14

causing her to lose the opportunity for a significantly better recovery d. Alexander v. Scheid i. Rule: Loss of chance is better understood as a description of the injury than either a term for a separate cause of action or a surrogate for the causation element of a negligence claim increased risk of harm is sufficient to recover for negligence even if full ramifications of negligence are unknown. ii. Facts: doctor didnt take radiologists suggestion to check lung for cancer meaning the diagnosis was late and P suffered decreased life expectancy e. Dillion v. Evanston i. Rule: Jury instructions on increased risk damages requires evidence of increased risk of future harm and damages proportioned to the probability that the risks of future harm would materialize. ii. Facts: catheter broke off inside patient and worked its way into her heart causing pain E. Proximate Cause 1. Case-specific inquiries into whether D should be held legally responsible to P. liability is for the unreasonable risks D created, not for reasonable risks or for those that were unforeseeable 2. Scope of Risk: a. Was the harm a normal or foreseeable consequence of the situation created by Ds neg? b. Medcalf v. Washington Heights Condo i. Rule: proximate cause is an actual cause that is a substantial factor in the resulting harm. The substantial factor test asks whether the harm which occurs is of the same general nature as the foreseeable risk created by Ds negligence. Woman getting mugged not foreseeable risk of not fixing the intercom system ii. Facts: faulty intercom system did not all the woman to enter the building right away and as she was waiting, she was attacked c. Abrams v. City Chicago i. Holding: city could not have reasonably anticipated that a refusal to send an ambulance when labor pains are 10 minutes apart would result in Ps driver running a red light at the same time as a drunk driver was speeding through that same intersection d. Palsgraf v Long island Railroad i. Rule: D is only liable for harms within the scope of the risks he negligently created. D is liable only (a) for types of injuries foreseeably risked by is negligence and (b) to classes of persons foreseeable risked by his negligence. 3. Rescue doctrine: a. Wagner v. International Railway i. Rule: danger invites rescue rescue is foreseeable as a matter of law. Rescuer can recover from D whose negligence prompts the rescue. 4. Manner or Extent a. Hughes v. Lord Advocate i. Rule: As long as it is the same type of harm, manner does not matter. The type of injury that was foreseeable was a burning injury the explosion was simply one way that injury could occur. ii. Fact: lantern fell down a manhole and came in contact with kerosene gas which exploded causing a fire which an 8yo boy was burned in b. Doughty v. Turner Manuf i. Rule: it seems that the manner of the injury mattered in this case, splashing vs. exploding. Possibly falling under the restatement 15

exception of highly extraordinary conditions. ii. Facts: lid fell into a vat of molten liquid and a chemical reaction occurred which caused an explosion. c. Hammerstein v. Jean i. Rule: when the type of injury which occurred is a foreseeable risk of Ds negligent conduct D is liable for the full extent of the injury including any unforeseeable complications with the injury like infection. Thin skull ii. Facts: faulty fire alarm went off and man fell down the stairs injuring his leg, he had diabetes and ankle got gangrene nd d. 2 restatement of torts i. if Ds conduct is a substantial factot in bringing about harm to another, the fact that the actor neither foresaw, nor should have foreseen the extent of the harm, or the manner in which it occurred does not prevent him from being liable ii. Ds conduct may not be a legal cause of harm to another where after the event and looking back from the harm to Ds negligent conduct, it appears to the court highly extraordinary that it should have caused the harm 5. Intervening factors of third parties a. Overall Rule: i. If Ds negligence merely furnished a condition by which the injury was possible and a subsequent independent act caused the injury, the existence of such conditions is not the proximate cause. ii. The emerging trend is to give up on intervening third parties and use a comparative fault system b. Britton v Wooten i. Rule: if D negligently created the increased risk of fire or its spread D could be held responsible c. Hines v Garrett i. Rule: Intervening third parties do not supercede Ds liability where the very negligence of D consists of exposing P to the third parties act ii. Facts: railroad skipped mans stopped and he was forced to get off at a different station and walk where he was attacked by criminals d. Tenney v. Atlantic Assoc i. Rule: the happening of the very event the likelihood of which makes the actors conduct negligent and so subjects the actor to liability cannot relieve him from liability. Landlord liable. ii. Facts: landlord did not keep track of his copy of the tenants keys and someone used the landlords key to rape P, one of the landlords tenants e. Doe v. Linder i. Rule: the criminal acts of which D had no warning and which they had no reason to believe would occur. If injury is not foreseeable then the criminal act of the third party would be a superceding cause. ii. Facts: developer left Ps apartment key laying around and 2 workers took the keys and raped P f. Delaney v Reynolds i. Rule: P should be allowed to show that the risk that she would handle or use the gun in such a way so as to cause intentional injury to herself was foreseeable and that his failure to secure his gun was a proximate cause of her injury ii. Facts: Dalaney high on drugs and alcohol took was told to move out by Reynolds so she got a gun and shot it at the window, but the gun didnt fire. She then turned the gun on herself and the gun went off causing damage to her face but not killing her. iii. NOT THE TRADITIONAL RULE 16

1. Traditional rule: where P intentionally attempts to commite suicide that act is a superceding act freeing D from liability for neg. 2. Restatement (second) allows for two exceptions (1) when Ds conduct induces a mental illness on an uncontrollable impulse in P from which suicide results OR (2) where there is a special relationship between two parties that presumes or includes knowledge by defendant of plaintiffs risk of committing suicide g. Derdiarian v Felix i. Rule: an intervening act may not serve as a superceding cause and relieve and actor of responsibility where the risk of the intervening act occurring is the very same risk which renders the actor negligent ii. DERDIARIAN TEST: P must generally show that Ds negligence was a substantial cause of the events which produced the injury. P need not demonstrate, however, that the precise manner in which the accident happened, or the extent of the injuries, was foreseeable iii. Facts: company did not put up a strong enough barrier to keep people from hitting vat of molten liquid. Negligent driver hit substandard barrier and man is pushed into vat. h. Ventricelli v. Kinney System i. Kinneys negligence in providing a car with a defective trunk lid was reasonably foreseeable but a collision between two cars parked a brief interval before the accident is not. i. Termination of the risk i. Marshall v. Nugent 1. D remains liable for the full consequences of his negligent act when the intervening force is one which a reasonable person would have foreseen as likely to occur under the circumstances, and the issue of foreseeability remains a question of fact for the jury. ii. Emphasizes the idea that P had reached a position of apparent safety. iii. Hospital does not constitute safe place for P 1. If Ds negligence is the cause of Ps injury D is also liable for any enhanced harms of a negligent medical team. Malpractice is always foreseeable iv. Boy who found TNT and mom knew about it = safe place F. Contributory/ Comparative Fault 1. Factors for Assigning a. The nature of the persons risk creating conduct, including any awareness or indifference with respect to the risks created by the conduct and anay intent with respect to the harm created by the conduct AND b. The strength of the causal connection between the persons risk-creating conduct and the harm. 2. McNamara v. Honeyman a. Rule: There can be no comparative negligence where Ds duty of care includes preventing the self-abuse or self-destructive acts that caused the injury b. Facts: mental hospital did not stop a patient from killing herself. 3. Joseph v. State a. Rule: a jury can allocate comparative fault to a person committing suicide in prison and reduce damages accordingly b. Facts: jailor did not prevent inmate from killing himself 4. Mercer v. Vanderbilt University a. Rule: patients who may have negligently injured themselves are nevertheless entitled to subsequent non-negligent treatment and to an undiminished recovery if such subsequent non-negligent treatment is not afforded 17

b. Facts: Drunk driver given CT scan and but on a ventilator, no one checked ventilator and patient stopped breathing and suffered brain damage 5. Christensen v. Royal School Dist. a. Rule: contributory fault may not be assessed against a 13yo child based on the failure to protect herself from being sexually abused when D stands in a special relationship to the child and have a duty to protect the child i. Teachers and school admin in locus parenti 6. Plaintiff Entitlements a. Citizen should not have duty to shaper their conduct around pervasive rape/fear of rape or theft/ fear of theft AKA ct holding that rapper was not negligent for wearing expensive jewelry in bad area G. Traditional Exceptions to the Contributory Negligence Bar 1. The rescue doctrine a. Ouellette v. Carde i. Rule: rule of law holding that one who sees a person in imminent danger caused by the negligence of another cannot be charged with contributory negligence unless the rescuer acted recklessly ii. P saw D trapped under garage door and while trying to safe him was hurt badly. She sued and he requested contributory negligence ruling 2. Last clear chance or discovered peril a. Last clear chance: If D discovered or should have discovered Ps peril and could reasonably have avoided it, Ps earlier negligence would neither bar nor reduce Ps recovery b. Discovered peril: applies consequences of last clear chance only if D actually discovered Ps peril. 3. Ds reckless or intentional misconduct a. Contributory negligence was not defense to willful, wonton or reckless torts, defined as involving utter indifference to or conscious disregard for the safety of others 4. Plaintiffs illegal activity a. Cant sue and collect if you are engaged in criminal activitypublic policy rule of not helping to aid criminals H. Assumption of Risk 1. Express assumption a. Ordinarily express assumption of risks are upheld unless its against public policy or the language is not as broad as D is alleging b. Boyle v. Revici i. Rule: jury should have received an instruction on express assumption of risk and could have found that she assumed the risk and was barred from recovery ii. Fact: cancer patient agreed to undergo a treatment not accepted by Drs c. Tunkl v. regents of University of CA i. Rule: when the service being provided is an essential one that all of the public will eventually have to utilize, one cannot voluntarily agree to assume the risk of any negligence on the part of the service providers instead he agrees out of necessity because he has no other option ii. Man admitted to hospital was told he would not be treated unless he signed away his right to sue for negligence d. Moore v. Hartley Motors i. When a liability release does not touch upon general negligence and P can present facts that could support a finding that the activity was unnecessarily dangerous and therefore not within the scope of release, summary judgment cannot be granted to D ii. Hidden rock on ATV course 2. Implied assumption 18

a. Betts v. Crawford i. Rule: There is no distinction between contributory negligence and assumption of risk when raised as a defense to an established breach of duty. Assumed risk is merged into the comparative negligence system in WY ii. Facts: housekeeper slipped on a toy that was on the stairs b. Avila v. Citrus Comm. College i. Rule: when injury occurs to a player that is a normal part of the sport (regardless of whether it is an allowed move in the sport) the player has assumed the risk and waived right to recovery ii. Facts: hit by a bean ball intentionally threw ball at his head c. Bjork v. Mason i. Holding: Water skier assumed inherent risks of sport, but those did not include dangers arising from Ds defective equipment and frayed ropes d. Sunday v. Stratton Corp i. Rule: if the fall is due to no breach of duty on the part of D, its risk is assumed in the primary sense and there can be no recover. But where the evidence indicates existence or assumption of duty and its breach, that risk is not one assumed by P. ii. Skier going down novice trail fell after hitting bush covered by snow e. Turcotte v. Fell i. Rule: Ps claim was completely barred, even where Ds act violated racing rules because P as a professional rider clearly understands the usual incidents of competition. ii. Facts: Jockey thrown from horse due to foul riding I. Duties of Medical and other Professionals 1. Ordinarily must be asserted by patient and Drs acceptance of patient represents an undertaking of care by the doctor 2. Walski v. Tiesenga a. Rule: Because medicine is not an exact science, P cannot establish a prima facie case merely by merely presenting testimony of another physician that he would have acted differently from D b. Facts: D removed Ps thyroid and instead of locating nerve he made a wide cut to avoid the area where nerve was thought to be. Hit nerve anyway. 3. Medical standards almost always reflect particular customs or procedures used under very particular circumstances 4. Expert medical testimony is usually required to establish the medical standard of care a. Used to establish standard of care, departure from that standard and evidence of causation 5. Where competent medical opinion is divided a Dr will not be liable when he follows a course of treatment advocated by a considerable number of recognized and respected professionals in his given area of expertise 6. Vergara v Doan a. Rule: Dr. must exercise that degree of care, skill and proficiency exercised by reasonably careful, skillful and prudent practitioners in the same class to which he belongs i. Factors to consider include: locality, advances in the profession, availability of resources and facilities and whether doctor is a specialist or a general practitioner b. Facts: negligent Dr. caused permanent damage to son during delivery 7. Because of increased and improved communications between cities and rural areas and the prevalence of technology in all places, courts have moved to a national standard of care. Of course, if the particular locality where the alleged malpractice occurred did not have the same access to up-to-date technology, that fact would be taken into account in determining the standard of care. Usually doctors will be held to 19

the standard of care of a physician with that physicians specialty or expertise. Of course, a doctor without expertise in a particular area (a general practitioner) may be negligent if that doctor does not refer the patient to someone with specialized expertise. 8. Good Samaritan Law a. In Nevada: Any liscensed Dr. who renders emergency care or assistance, including, without limitation, emergency obstetrical care or assistance, in an emergency, gratuitously and in good faith, is not liable for any civil damages as a result of any act or omission, not amounting to gross negligence This section does not excuse a physician, physician assistant or nurse from liability for damages resulting from that persons acts or omissions which occur in a licensed medical facility relative to any person with whom there is a preexisting relationship as a patient. b. HIRPA v. IHC Hospital i. Rule: In emergency situations because of the laws intention to encourage aid w/out fear of liability, the it does not matter that the emergency situation occurred within a hospital as long as the physician had not preexisting duty to aid. ii. Facts: guy coded and random doctor came in to help. c. Some jurisdictions like NV make exceptions for gross negligence 9. Res Ipsa Med Mal edition a. In Nevada 5 med mal occurances are automatically res ipsa i. (1) Foreign substance left in the body (2) an explosion or fire originating in a substance used in treatment occurred in the course of treatment (3) an unintended burn caused by heat, radiation or chemicals (4) injury occurred during course of treatment to a part of the body not directly involved in the treatment or proximate thereto (5) a procedure was performed on the wrong patient or wrong part of the body. b. State v. Lourdes Hospital i. Rule: Expert testimony may be used to close the gap between their common knowledge and the common knowledge of physicians ii. Facts: Dr. hyperabducted womans arm during surgery causing injuries c. Ybarra v. Spangard i. Rule: Where P receives unusual injuries while unconscious and in the course of medical treatment all Ds who had control over his body or the instrumentalities which might have caused the injuries may properly be called upon to meet the unference of negligence by giving an explanation of their conduct ii. Facts: P not in pain before procedure but was in pain after procedure d. Washoe case i. Hospitals do not have an absolute non-delegable duty to provide nonnegligent medical care to ER patient through Drs who are independent BUT hospital maybe liable for ER docs under ostensible agency 1. Non-dlegable duty = strict liability 2. Ostensible agency = injured patient must shoe that the hospital held itself out to the hospital and not on individual doctor for care and that a patient in similar circumstances would reasonably have believed that the physician was a hospital employee. 10. Informed Consent a. Every human being of adult years and sound mind has a right to determine what shall be done with his own body, and a surgeon who performs an operation without his patients consent commits an assault for which he is liable b. Smith v. Cotter i. Rule: There is both an objective and subjective component to whether a 20

J.

patient would have gone through with a procedure had he been fully informed. Not only does the patient have say he would not have gone through with the procedure but must also show that a reasonable person wouldnt have proceeded either 1. Factors: is procedure the only option, what are the alternative treatments with same level of effectiveness, what would not going through with the procedure mean? ii. Facts: Dr. did not inform patient of all the normal risks of procedure c. Nevada Revised Statute i. A physician licensed to practice medicine, or a dentist licensed to practice dentistry has conclusively obtained the consent of a patient for a medical, surgical or dental procedure, as appropriate, if the physician or dentist has done the following: 1. Explained to the patient in general terms , without specific details, the procedure to be undertaken; 2. Explained to the patient alternative methods of treatment, if any, and their general nature; 3. Explained to the patient that there may be risks, together with the general nature and extent of the risks involved, without enumerating such risks; and 4. Obtained the signature of the patient to a statement containing an explanation of the procedure, alternative methods of treatment and risks involved, as provided in this section. d. Harnish v. Childrens i. Rule: a doctor owes his patient the duty to disclose in a reasonable manner all significant medical information that the physician possesses or reasonably should possess that is material to an intelligent decision 1. Info they should reasonably possess is that info possessed by the average qualified physician on in the case of a specialty by the average qualified physician in that field e. Wlosinski v. Cohn i. Rule: A doctors success rate is not a risk related to the medical procedure and physicians are only liable for not informing patients of risks inherent in the procedure itself. ii. Facts: mom gives kidney to son, operation goes badly and kid dies f. Johnson v. Kokemoor i. Rule: patient is entitled to information from her surgeon that more experienced brain surgeons were available and had substantially better success rates than inexperienced surgeons g. Truman v. Thomas i. Rule: if patient indicates that she is going to refuse a risk-free test or treatment then the doctor has a responsibility of advising of all material risks of which a reasonable person would want to be informed ii. Facts: woman died of cervical cancer after refusing pap smear h. Nevada statute on non-economic damages in med mal case i. In an action for injury or death against a provider of health care based upon professional negligence, the injured plaintiff may recover noneconomic damages, but the amount of noneconomic damages awarded in such an action must not exceed $350,000. The Duty to Protect from Third Persons 1. Court decides the duty 2. Foreseeability is a fact question 3. Does not require identical crimes 4. Four basic approaches to determining duty/foreseeability a. Specific harm 21

b. Prior similar events c. Totality of circumstances test (most common) d. Balancing test (depends on the jurisdiction as to who determines the balancing test, some its a matter of law, other its a jury) i. Foreseeability versus burden High degree of foreseeability necessary to warrant extra measures 5. Posecai v Wal Mart Stores p 380 a. Shopping at Sams Club, not super late, not dark, man hiding under car grabbed her and stole $19000 of jewelry at gunpoint b. Attack not foreseeable, used the balancing test in this case 6. Marquay v Eno a. School district employees aware of sexual abuse and harassment of students by teachers b. Duty to report, yes because of compulsory school attendance, taking away control from parents c. Vicarious liability for employees of schools 7. Mirand v. City of New York a. Rule: schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to their lack of supervision. Schools are liable for failing to protect one student from another. 8. Duties of landlords a. Have duty to protect from attacks of third persons i. Control over common passageways and the tenants lack of power to control them or to protect themselves there ii. The special character of the modern urban multiple unit lease iii. The notice of the landlord and that the tenants were being subjected to crimes against their persons K. Strict Liability 1. Historically a. Liability of D without fault b. Activity unreasonably dangerous or a nuisance i. Escape of toxic materials, accumulation of hazardous wastes, blasting and explosives, nuclear accidents, noise, garbage, and smell ii. Common carriers are strictly liable as well c. 2nd restatement Only strictly liable for harms within scope of risk those the possibility of which makes the activity abnormally dangerous d. 3rd restatement case for strict liability strengthened when D actually has knowledge of risks of his chosen activity L. Products Liability 1. Nevada comparative fault statute a. Comparative Fault as a Defense to Wilful or Wanton Conduct or Intentional Torts = NO b. Comparative Fault as a Defense to Gross Negligence = Yes c. Comparative Fault as a Defense to Strict Liability = NO 2. Originally privity was required meaning only seller/buyer lawsuits MacPherson v. Buick changed that to a foreseeability requirement 3. Express warranty (contract) vs Implied warranty (goods are fit for the ordinary purposes for which they are used) 4. Stand Alone Economic Harm a. When defective product causes economic harm and no physical harm at all b. No liability unless under warranty nd 5. 2 Restatement 22

user or consumer liable for physical harm caused to the ultimate user or consumer, or to his property, if i. seller is engaged in the business of selling such a product, AND ii. it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. b. The rule stated in Subsection (1) applies although i. the seller has exercised all possible care in the preparation and sale of his product, AND ii. the user or consumer has not bought the product from or entered into any contractual relation with the seller. c. Product is defective if it is dangerous beyond the contemplation of the consumer consumer expectation test 6. 3rd Restatement a. A product is defective when, at the time of sale or distribution, it contains a manufacturing defect, is defective in design, or is defective because of inadequate instructions or warnings. A product: i. contains a manufacturing defect when the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product; ii. is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a fiscally and technologically reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe; iii. is defective because of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the instructions or warnings renders the product not reasonably safe. iv. Risk-utility/ safer alternative design test for design defect 7. Manufacturing Defects (Products liability) a. Something happens when implementing the correct design of a product b. Second Restatement consumer expectation test i. Is product defective beyond the contemplation of the consumer? c. Lee v. Crookston i. Rule: P not required to prove specifically what defect caused the incident, but may rely upon circumstantial evidence from which it can reasonably be inferred that it is more probable than not that the product was defective when it left Ds control ii. Elements: product was defective and unreasonably dangerous for intended use, such defect existed when product left Ds control, defect was proximate cause of Ps injury iii. Facts: Coke bottle exploded in her hand d. Jackson v. Nestle i. Rule: the foreign-natural doctrine is unsound and we are now going to use consumer expectation test ii. Pecan shell in chocolate covered pecan e. Mexicali Rose i. Rule: a harm causing food product is a defect if a reasonable consumer would not expect the food product to contain that ingredient 23

a. Seller of product in a defective condition unreasonably dangerous to the

3rd Restatement similar to consumer expectation test f. 3 restatement inferences of defect i. It may be inferred that the harm sustained by the plaintiff was caused by a product defect existing at the time of sale or distribution, without proof of a specific defect, when the incident that harmed the plaintiff: was of a kind that ordinarily occurs as a result of product defect; and was not, in the particular case, solely the result of causes other than product defect existing at the time of sale or distribution. 8. Design Defects a. 2nd Restatement = consumer expectation test i. Leichtamer v. American Motors Rule: a product may be found defective in design if P demonstrates that the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner Plaintiff friendly approach rd b. 3 Restatement = risk utility test i. Honda v. Norman Rule: P has to show that (1) there was a safer alternative (2) the safer alternative would have prevented or significantly reduced the risk of injury, without substantially impairing the products utility and (3) the safer alternative is both technologically and economically feasible when the product left the control of the manufacture. c. In OHIO i. Knitz v. Minister Machine Rule: product design is in a defective condition to the user or consumer if (1) it is more dangerous than an ordinary consumer would expect when used in and intended or foreseeable manner OR (2) if the benefits of the challenged design do not outweigh the risk inherent in such design d. In CALIFORNIA i. Barker v. Lull
rd

Rule: product design is in a defective condition to the user or consumer if (1) it is more dangerous than an ordinary consumer would expect when used in and intended or foreseeable manner OR (2) if P proves that the products design proximately caused his injury and DEFENDANT fails to show that the benefits of the challenged design do not outweigh the risk inherent in such design Shifts burden of proof to the Defendant 9. Warning or Information Defects a. Liriano v. Hobart Corp i. When a defendants negligent act is deemed wrongful precisely because it has a strong propensity to cause the type of injury that ensued, that very causal tendency is evidence enough to establish a prima facie case of cause-in-fact. The burden then shifts to the defendant to come forward with evidence that its negligence was not such a but-for cause ii. Two types of warnings: 24

One states simply that something is dangerous The other explains that people need not risk the danger because there is a safer alternative b. Learned Intermediaries i. Many courts say manufacturers must prove warnings only to the doctor who might prescribe, not directly to the patient; when the manufacturer gives an appropriate warning or information to the physician, it is said that the physician is a learned intermediary upon whom the manufacturer can properly rely and that the warning can be couched in terms the physician can understand, not necessarily terms the consumer would grasp Punitive Damages

Type of person Type of injury Direct and continuous

25