Ehrenreich Torts Outline

8/19/2019 Ehrenreich Torts Outline

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1. Introductioni. Torts are injuries/wrongsii. Purposes of a torts lawsuit

1. Compensate people for their inuriesa. Get them back to where they were before the incident

. Pre!ention of future injuriesa. enjoin certain beha!ior

". Punish wrongdoer#. $eterrence of tortuous beha!ior by defendant or others

b. Correcti!e %ustice & 'tilitarian (pproachesi. Instrumental/'tilitarian

1. Pre!ention is major goal. Tort law ought to bene)t society in general". Case is bigger than just the named parties*+ deterrence

ii. Correcti!e %ustice1. Compensation of injured parties. ,etribution/punishment

c. (rgumentati!e techni-uesi. lippery slope

1. C'0T,(,G2 limiting principleii. ,ights 3liberty !s. security4

1. 5iberty*indi!idual rights. ecurity* greater good

iii. 6airness 3between parties41. 7pectations8 reliance8 culpability

i!. 'tilitarian1. Types of beha!ior produced by rule 3deterrence4

!. ystemic* e9ect of a gi!en interpretation on the judicial system1. Too much discretion. asy/hard to apply". 6lood of litigation#. ,ules !s. standards

!i. Institutional Competency1. $eterrence to legislati!e. %udge can decide

d. (reas of tort lawi. Intentional torts

1. Purposefully caused harms. There are speci)c a:rmati!e defenses against all intentional torts

ii. 'nintentional Torts1. 0egligence. ,ecklessness". Carelessness causing injury#. There are speci)c defenses against all unintentional torts

iii. trict liability1. 5iability w/o fault. ;ou caused it8 you must pay for it

e. Prima facie casei. lements of the tort that must be pro!en for a case to lie

f. Types of defensesi. $eri!ati!e

1. $eri!ed from prima facie case.


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1. (dmits commission of tort8 howe!er claims e7tenuating circumstancesas justi)cation for the act

a. elf defenseiii. There is 0 insanity defense in torts===

1. ncourages people to care for mentally illg. Types of Tort Claims

. Intentional Tortsa. re-uirements

i. (ct/conduct re-uirement1. $efendant intended the act that produced the injury

ii. Intent re-uirement1. $efendant intended the resulting injury to the plainti9 3or decedent4. prong test2

a. $esire to bring about the harmful or o9ensi!e conductb. >nowledge of substantial certainty 3>C4 that the harm would

result". 'se a subjecti!e test for intent

a. 0ot what a reasonable person would ha!e been thining? butb. @hat the speci)c person was thinking

b. Aatteryi. Intent re-uirement

1. In generala. $esire to cause of >C of causing contact

. Intending contact that is harmful or o9ensi!ea. The knowledge of substantial certainty that the contact would

resultb. C0T(CT I TB >; 50T 6 A(TT,;c. The contact 3or apprehension of said contact4 that was intended

must be one that is recogniDed by the court as either harmful oro9ensi!e

d. Intent re-uires only that some sort of contact is intended*it is not re-uired that you intend a harmful or o9ensi!e contact

". T;P 6 I0T0T 6, A(TT,;3or (('5T4a. $esire to cause contact 3which is either harmful or o9ensi!e4b. >C of causing contatct 3which is either harmful or o9ensi!e4c. $esire to cause imminent apprehension of contact 3which is

either harmful or o9ensi!e4d. >C of causing imminent apprehension of contact 3which is

either harmful or o9ensi!e4#. $'(5 I0T0T ,'5 3ome states use8 incl. Colorado4

a. 0ot only need intent to contact8 but intend that contact isharmful or o9ensi!e

ii. (lso need intent that the contact be harmful or o9ensi!eConduct re-uirement

1. Causing harmful or o9ensi!e contact 3must be objecti!ely harmful4. ( harmful or o9ensi!e contact with another person directly or indirectlyresults 3there must be a causal relationship between the intent and theactual contact4

". 'T be !oluntary8 not in!oluntary#. Waters v. Blackshear

a. boy puts )recracker in shoe of another boy8 injures himb. there was no (CT'(5 contact between the boys

i. Fisher court said an object Eclosely associatedF with theplainti9s body counted as contact

ii. if defendant put a force in motion that resulted in thecontact8 also works


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H. Polmatier v. Russa. an shoots father in law to death 3man was insane4b. 0o insanity defense...irrational moti!e doesnt mean that it wasc. @hen the court refers to injury8 they mean the in!asion of a

persons legally protected interest. Nelson v. Carroll

a. Carroll hits nelson with gun b/c of debt owed? accidentally shoots0elson

b. $idnt matter that he shot him by accident? he clearly intendedto in!ade 0elsons legally protected interests

c. It is more appropriate for those losses to fall on Carroll as thewrongdoer than to 0elson as the innocent Jictim

K. White v. Muniza. (lDheimers patient hits nurse in jawb. Colorado has dual intent law

i. $efendant must intend both contact and o9ensi!eness/harmfulness

1. $oesnt change what is harmful or o9ensi!eii. A/c she was mentally ill8 $ did not really intend the

o9ense/harmL. 9ensi!e contacts

a. Leichtman v. WLW Jacor Communications, Inc.i. ,adio host blows smoke in face of anti*smoking ad!ocate

1. 9ensi!e contactM ;es? Econtact which is o9ensi!eto a reasonable sense of personal dignity iso9ensi!e contactF 3A%CTIJ TT4

. 0I0(5 $((G2 used where there is minimalinjury 3no actual harm here4? can be as low as N1.

c. (ssaulti. Intent

1. $esire to cause or >C of causing contactii. Conduct

1. Causing apprehension of imminent contacta. (pprehension must be objecti!ely reasonable

. @ords alone are not enough for assault.a. (ctions must )ll the gap

d. Transferred Intenti. types

1. Transfer of intent between two intentional torts 3only battery andassault4

a. Intended to commit one tort8 inad!ertently committed anotheri. Intent to commit an assault satis)es battery8 and !isa

!ersa. Transfer of intent between two people

a. Intended to commit tort against one person8 inad!ertentlycommitted it against another 3intent follows the bullet4b. 6or assault8 In a crowded room8 only people who were

reasonably apprehensi!e 3objecti!e4can suee. 6alse Imprisonment

i. Intent1. Con)ne person

ii. Conduct1. Causing the con)nement of another

f. Trespassi. Intent

1. nter8 e!en if you think its your land


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ii. Conduct1. ntry onto the property of another

g. Trespass to chattelsi. Intent

1. 'se or possess the chattel8 e!en if you think its yoursii. Conduct

1. Interference with the use or possession of chattel of anotherh. Con!ersion

i. Intent1. 'se or posses the chattel 3so as to destroy8 or maybe depreciate4

ii. Conduct1. 'se so as to destroy the chattel of another

i. II$i. Intent

1. desire or ksc of inOicting emotional distress or recklessnessii. Conduct

1. utrageous and causes se!ere emotional distress j. $efenses to Intentional Torts

i. Consent1. types

a. 7pressi. Closely tied to contract lawii. @ritten wai!ersiii. Jerbal wai!ers

b. Impliedi. Consent is implied from the plainti9s actions 3using

objecti!e test of reasonableness4ii. ( reasonable person in the defendants shoes would ha!e

the impression that consent was gi!en. @ithdrawal of consent

a. $id the plainti9 do something that a reasonable person wouldrecogniDe as a withdrawal of consent 3objecti!e std4

b. McQuian v. Bo! "couts o# $mericai. Aoys shooting paper clips at eachother 3game4? plainti9

was playing8 then left and sat downii. @as later shot in eyeiii. Implied consent at -uestion

1. Consent lasts as long as a reasonable person woulde7pect

. ,8 until it is withdrawna. 7pressly withdrawn* I -uitb. ,easonable person test

i. ( reasonable person in thedefendants shoes would ha!e to

understand that the plainti9 hadwithdrawn consent". Consents 5imits

a. Ao7ers consent to a )st)ght8 not shooting each otherb. ,ules of the game...

i. If outside rules of the game8 not consented toc. $e)ning scope of consent

i. 7ample "8 p. H#1. 'nforeseeable result8 something within the rules of

the gameM. ;ou ha!e to ha!e consented to the injury 3contact48

but not the harm/o9ense


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". >ids were just trying to get him into the lakea. Conduct stayed within the rules of the game

ii. %oan v. &avzel 1. @oman has se7 with estranged husband8 Ta!Del8

who knew he had genital warts and did not tell hera. Prima facie case for battery

i. There was intent to make the contactii. There was contact that was harmful

3she contracted Gen. @arts4. Court says this was beyond the scope of her

consenta. he consented to se7? no consent to se7

result in her contracting genital warts". Ta!Dells fraudulent concealment !itiated the

plainti9s consenta. Fraudulently induced as well

#. istake as to consenta. istake as to the nature or -uality of the

injury 3more innocent4iii. Richard v. Manion

1. boys ha!e after school )ghta. angion probably the aggressor8 but ,ichard

chose to show up for the )ght. Aecause ,ichard showed up to )ght8 he ga!e

implied consent for the rules of the gamea. The rules of the game is a )st )ghtb. uestion whether mangion used e7cessi!e

forcei. ,easonable person standardii. le!el of force deemed reasonable by

courtd. @ays to !itiate consent

i. Injury is beyond the scope of the consent gi!enii. 6raudulent concealment of a fact that would likely keep

plainti9 from consenting 3ta!Del4iii. Consent was fraudulently induced 3ta!Del4i!. istake about the nature and -uality of the in!asion

intendedii. $efense of elf & thers

1. People ha!e a right to protect themsel!es 3correcti!e justice argument4. $eters the commission of harmful beha!ior8 because they could get

hurt in return8 and not be able to reco!er". @hen is self defense !alidM

a. Person must ha!e a reasonable belief that their conduct

was necessary to avoid the harm posed or threatened bythe plainti b. The defendant must ha!e had the actual belief that their

conduct was necessary as well 3no lying4c. @hy the reasonable belief part

i. Pre!ent hyper*sensiti!e people from using unnecessaryforce

#. 50T 3need both=4a. Aelief that plainti9 posed a threatb. Aelief that defendants conduct was necessary

i. $efendant belie!ed that the threat was reasonablyimminent 3objecti!e4


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1. If not imminent* G T P5ICii. (0$8 must ha!e reasonable belief that the force used was

proportionate to the threat posed1. bjecti!e

a. $efendant must belie!e that the threat usedis proportionate to the threat 3must beobjecti!ely reasonable4

H. $eadly forcea. 6orce which is likely to cause death or serious bodily injury

. "la!ton v. Mc'onald a. Aoys argue on school bus8 older one follows younger one home8

enters his houseb. ;ounger boy tries to retreat8 warns that he will use force8 shoots

other boy in legc. elf*$efense was accepted by court

i. Test2 it is only necessary that the actor ha!e groundswhich would lead a reasonable man to belie!e that theemployment of a dangerous weapon is necessary8 andthat he actually so belie!es

ii. Court used factors belowiii. Illustrates how this type of force can be proportional

K. 6actors for determining whether fear defendant had was reasonable3from "la!ton4

a. Character and reputation of attackerb. Aelligerence of attackerc. 5arge di9erence in siDe and strength between the partiesd. (n o!ert act by the attackere. Threats of serious bodily harmf. Impossibility of peaceful retreat

L. istaken belief8 pro!ided that the belief was reasonable8 may still allowuse of self*defense defense

Q. $efense of thersa. (ssault on a "rd party in defense of a family member is

pri!ileged only if Edefendant had a well founded belief that anassault was about to be committed by another on familymember...in no e!ent may defendants action be in e7cess of thepri!ilege of self defense granted by law to the family memberF

b. (oun v. Warreni. $efendant shot and killed his daughters boyfriend who

was harassing herii. 6orce was e7cessi!e8 since daughter and kids were not in

imminent dangeriii. Illustrates Oip side of proportionality8 b/c the threat was

not serious bodily harm8 which is re-uired to justify deadly

force in defense of anotheri!. hould ha!e asserted self*defense8 might ha!e workedbetter...

c. (0(5;Ii. ini self*defense from PJ of those being protected by

$efendant1. @ould the daughter ha!e been justi)ed in herself

using deadly forceMa. If so8 then defense of another will work? if no8

then doesnt workii. (0TB, (PP,(CB


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1. ,easonable person... 3ne!er focuses on PJ ofprotected person4

1R.ake y $ay 5awsa. Colorados tatute 3Colo. ,e!. tat. S 1L*1*KR#.H 3RR44

i. ccupant of the dwelling may use deadly force againstanother

ii. @hen that person has made an unlawful entry into thedwelling

iii. (nd when the occupant has a reasonable belief that suchperson has committed a crime in the dwelling 3in additionto the unin!ited entry4

1. r is committing or intends to commit a crimeagainst a person or property 3in addition to theunin!ited entry4

i!. (0$8 when the occupant reasonably belie!es that suchother person might use any physical force8 no matter howslight8 against any occupant

b. 6loridai. (ssumes reasonable fear when someone has unlawfully

entered your homeii. therwise the same as Colorado

iii. $efense of Property1. ust be proportional* usually ne!er justi)es much force. 3objecti!e

std.4k. Intentional InOiction of motional $istress 3II$4

i. Protects an emotional or dignitary interestii. 50T

1. Intenta. $esire or >C to cause distressb. , recklessness

i. ost people would know of this risk...he probably didtoo...subjecti!e

ii. Conscious or deliberate disregard of substantial risk orprobability of causing injury

. Conduct 3 re-uirements4a. utrageousness

i. Community centeredii. The core of this tort 3!ery important4iii. If this is found to e7ist8 it will bolster the other elementsi!. bjecti!e test for outrageousness

1. (n a!erage member of the community would likelyconsider whether the defendant knew that theplainti9 was for some idiosyncratic reason8particularly likely to su9er se!ere emotional

distress. To be outrageous8 the conduct must be so e7tremein degree as to go beyond all possible bounds ofdecency to be regarded as atrocious and utterlyintolerable in a ci!iliDed society

". ,estatement2 3would cause an a!erage member ofthe community to arouse his resentment againstthe actor and e7claim outrageous4

#. 6actors of outrageousnessa. ome courts ha!e said that one occurrence

is not enough 3need more than one4? otherssay one is ok 3if its bad enough4


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b. (buse of authorityi. mployers

c. Taking ad!antage of a peculiar sensiti!ity3with knowledge of said sensiti!ity4

!. If defendant e7ploited an ad!antage8 could strengthenoutrageousness

!i. If defendant knew of a peculiar susceptibility of plainti98could strengthen outrageousness

!ii. 0T 'T,(G'1. ere insults8 indignities8 threats8 annoyances8 petty

oppressions8 tri!ialitiesb. Causes se!ere emotional distress

i. e!ere emotional distress1. ust be (CT'(5 distress su9ered by the plainti9. ust be distress that a reasonable person would

e7perience 3objecti!e4". inority !iew re-uires an e7pert opinion that the

distress was se!ere 3to pre!ent fraud4a. Courts ha!e generally gotten o!er the risk of

fraudulent claimsi. 0o way to de)ne the limits of the

claim 3slippery slope4ii. @orried about liability being

proportional to culpabilityiii. (lso suggested that there is a se7*bias

3women are more prone to emotionaldistress8 while men are more prone tophysical injury4

#. ajority !iew says that the outrageous nature ofthe conduct !itiates the need for e7pert testimony

ii. Types of distress1. 6right8 horror8 grief8 shame8 humiliation8

embarrassment8 anger8 chagrin8 disappointment8worry8 and nausea

a. Courts are less sympathetic to angeriii. ,ecklessness

1. ( conscious disregard of a substantial probability that your conduct willcause 3whate!er the tort is about4 i.e.8 se!ere emotional distress toplainti9

a. (wareness* must be aware of the riskb. Bigh Probability of causing the emotional distressc. 'nderestimating the risk C(0 be recklessness

i!. 0ati!e (merican ascot 7ample1. Type of harm

a. Their e7istence despite the protestsb. ,eminder of genocidei. Jiolent imagery justi)es both their e7istence as mascots

and the genocides which occurred early in history. Intent

a. 5ots of complaints? the schools certainly ha!e notice to knowthis is o9ensi!e to some

". e!ere $istressa. utrageousness

i. $epends on de)nition of community...#. chools ha!e knowledge of the peculiar sensiti!ity=

a. That lowers the re-uirements of intent and outrageousness


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l. Trespass & 0ecessityi. 0ecessity

1. The reasonable belief that 3intentional tort4 was necessary to pre!entserious harm to person or property of self or other

a. Generally used in defense of property tortsi. ay be raised by $ as a defenseii. ay also be raised by a plainti9

b. ome courts re-uire that the harm be imminentc. ome re-uire that there were no other alternati!e actions to

pre!ent harmd. ,easonable belief refers to an objecti!e test

. (ctor must properly weigh costs and bene)tsa. The interests you are protecting must be more

important/!aluable than those you are in!ading". This is an incomplete pri!ilege

a. @hen using this defense8 you ha!e to pay compensatorydamages

b. @hyMi. $efendant has bene)tted at plainti9s e7pense 3correcti!e

justice41. )incent v. Lake *rie &rans+ortation Co.

a. Aoat owner sa!ed boat by damaging dockii. It is important to discourage people from acting in

necessity when it is not reasonable 3Instrumental41. Create incenti!e for people to actually make a cost*

bene)t analysisiii. Counter (rg

1. This rule is a disincenti!e for people to actproperly...

. (lso instrumental arg.#. Ploo# v. Putnam

a. an ties up boat during a storm at a pri!ate dock? $ock ownerunties boat which then drifts and is damaged on shore

b. Aoat owner sued for damage caused to boati. Claimed he was not trespassing because of necessity

H. Mart! v. "tate o# Idahoa. Ps property damaged by $ going onto his land to stop Ooodb. P'A5IC 0CIT;2

i. ne is pri!ileged to enter land in the possession ofanother if it is8 or if the actor reasonably belie!es3subjecti!e4 it to be8 necessary for the purpose of a!ertingan imminent public disasterF

ii. Plainti9 lost here.". 0egligence

a. aking the prima facie case2 # elementsi. $uty1. ,easonable person standard 3objecti!e std.4

ii. Areach1. ometimes people call this negligent. ome say this is a mi7ed -uestion of law and fact

a. %udge decides what the standard wasb. %ury decides whether the standard was met

iii. Causationi!. Barm

b. ,easonable Person tandardi. ( reasonable person would ha!e known of the risk 3it was a foreseeable risk4


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ii. @hat would a reasonable person do under Ethose circumstancesFM1. @e often mean physical traits/disabilities

a. Courts will allow a physical disability to be included in the jurysinterpretation of the standard

. $angerous instrumentalitiesa. ,easonable person dealing with dynamite? dri!ing truck full of

gasolineb. Plainti9s ha!e tried to use this to raise the duty of care 3some

ha!e been successful4i. 7traordinary care standard !s. reasonable care standard

". mergenciesa. Common for courts to adjust the standard8 instructing the jury to

consider how a reasonable person in an emergency would ha!eacted.

#. >nowledgea. %uries may not consider what the defendant knew when

determining what a reasonable person would ha!e doneH. 7pert knowledge

a. If a person has e7pert knowledge8 they must act as a reasonablee7pert in that )eld would ha!e 3may create a higher standard4

. ental traitsa. Treated di9erently than physical traitsb. This works like general knowledge* a!erage traits and e!en

se!ere mental illness cannot be considered 3contro!ersial8 butstill the rule right now4

c. This stance reOects2i. @orries about fraudii. @orries about slippery slopes

K. (gea. ,easonable child of like age8 intelligence8 and e7perience is

applied to children.b. 7ception2 the acti!ity is an adult acti!ity8 e7ception doesnt

applyi. (dults do or dangerous acti!ity or both

iii. ( reasonable person would ha!e a!oided the risk1. Industry practices can play a role here

a. @ater main casei. If industry practice is to bury H feet down and it was only

buried " feet down8 would strongly indicate negligencei!. Calabresi on the ,easonable Person tandard

1. The standard is not a reasonable person but a reasonable man. The standard ought to be more egalitarian8 inclusi!e standard". Problems* where do we stopM Bow subjecti!iDed must the standard beM

!. @hy reject the subjecti!e standardM

1. Gi!es a break to those who are less careful. (llows us to implement societys ideal types of conduct*Instrumental!i. %udge 5earned Band 6ormula

1. If A U P V 58 then the person is negligent where2a. A is the burden of pre!enting or a!oiding the risk

i. Cost of stopping conduct or cost of precautions todefendant

ii. Considers the utility of the defendants conduct1. Bow !aluable is this acti!ity to society

b. P is the probability of lossi. Probability of injury occurring if acti!ity is not stopped

c. 5 is the magnitude of loss


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i. 'sually just the injury sustainedii. Aut8 could include other risks that could ha!e but didnt

occurd. If A + P V 58 then there is no negligence 3under this formula4 and

plainti9s will lose.i. It is better for society to do < e!en though some people

will su9er injuryii. This is utilitarian in the e7treme=

. Problems with the testa. People dont necessarily weigh costs and bene)ts as a

corporation mighti. People are not always rational ma7imiDers

b. Bow do we measure damagesMi. $ollarsMii. ocial CostsM

". McCart! v. Pheasant Run, Inc. p. QHa. @oman assaulted in her hotel roomb. he sues hotel for not locking the sliding glass doorc. %ury decided the hotel acted reasonablyd. @oman )les for %0J and is denied

i. he didnt introduce any info regarding costs that wouldha!e helped calculate A8 the burden of precautions.

#. (pplication of the formulaa. any courts use it8 but not as rigidly as PoDner.b. 'sed to illustrate how the jury ought to think as opposed to a

formula that has a mathematical answer.!ii. Cost*Aene)t (nalysis

1. ome risks are not worth pre!entinga. $ri!ing a car is dangerous8 but its bene)t to society is greater

. Tortfeasors are made to pay damages to deter people from committingtorts.

a. @hat if you are richM!iii. Professional tandard

1. In Professional negligence cases8 custom is the standarda. Compliance with the standards of your profession means no

negligence. @hat is considered when de)ning a professionM

a. %ury knowledgei. Case matter too complicated for reasonable person

b. Pro)t moti!ei. Professionals take an oath8 are e7pected act in clients

best interestsc. Professions self*regulate

i. hould they be allowed to set their own standardsM

". Professional tandard is a (0$(T,; standarda. If the defendant followed the custom8 theyre not liablei. Bere8 jury cannot second*guess the standard of a

profession#. s-orn v. Irin Memorial Blood Bank p. #1K

a. child contracts BIJ from a blood transfusion8 parents sue bloodbank

b. trial court granted defendant a %0Jc. $I$ P,6I0(5 T(0$(,$ (PP5; B,M 0.

H. Noatske v. sterloh p. #"a. an goes blind after surgery8 sues physician


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b. Physician held to standard of a reasonable specialist in hisposition

. Rossell v. )olksaen o# $merica p. #a. Car manufacturer held not to be professional

i. Professionals1. Take an oath. oti!ated by care for clients". 0ot just making a buck

K. $octors8 lawyers8 accountants...L. Informed Consent

a. Areach of duty to obtain informed consenti. ( form of professional malpractice 3usually medical4

b. If 0 consent8 Aatteryc. Conduct e7ceeded scope of consent gi!end. Patients ha!e a right to refuse treatment

i. Clouds up with children and mentally ille. Common scenario

i. Physician doesnt gi!e patient all information on risksrelated to a procedure

1. $id the physician ade-uately inform the patient ofthe risksM 3if no8 W negligence4

f. Physicians need to tell patients about all material risks8 bene)ts8and alternati!es

i. @hat is materialM igni)cant8 rele!ant8 etc.Mg. There is a tension between personal autonomy and medical

e:ciencyh. di9erent standards a court may employ2

i. ,easonable Physician 3majority rule4ii. ,easonable Patient 3minority rule4

1. Canter-ur! /+rudent +atient0a. @ould a reasonable patient ha!e refused

treatment had they known < informationM3and that the patient in -uestion would ha!erefused treatment4

b. If they would not ha!e refused treatment oracted di9erently8 they cannot reco!er3causation rule4

c. Bow to measure causationM part testi. ust show that patient would ha!e

made a di9erent decisionii. ust also show that a reasonable

patient would ha!e also made thesame decision

i. 7ceptions2

i. There is a limitation on what doctors must tell people1. The therapeutic pri!ilegea. If the physician thinks telling the patient <

info would harm them8 they dont ha!e to betold

ii. There is also an e7ception for emergencies1. ometimes no time or way to get informed consent

so doctors may do what is necessary j. Lare! v. Rothman p. #"Q

i. Areast biopsy has ad!erse e9ects that the doctor didnttell the patient about


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ii. The court discussed pro7imate cause8 but in this casethere was no but*for causation either

1. This case employs the prudent patient 3minority4rule

. Causation2 If they had been informed8 they wouldha!e acted di9erently 3applies to both minority andmajority rule4

#. ,ecklessnessa. @hen someone has a conscious awareness of a high probability of causing serious

harm and acts anyways.i. " !ariations8 no majority rule

1. Conscious awareness 3original standard4. ,easonably apparent risk". >nowledge of facts that make the risk ob!ious

a. Policy concerns with the last -uestionsi. $efendant is lying that they didnt know about the risk

b. ,ecklessness re-uires higher culpabilityi. ;ou must actually ha!e foreseen or been consciously aware of a high

probability that your conduct will cause serious harmii. @hat does high probability of serious harm meanMiii. @hat about a substantial risk of causing serious harmM

1. They mean the same thing. ust be a big P and a big 53. If the B is MUCH smaller than !" there is rec#lessness

i!. "andler v. Commonealth p. 1Q1. uit against state of assachusetts. an riding bike through tunnel crashes into hidden drain with missing

co!er". Jicarious liability

a. @hen you are held liable for the conduct of anotherb. mployer*employee relationship most common in !icarious

liability

i. If employee was reckless8 employer is liable#. There was a statute pre!enting suits against the state for negligence

for people injured in recreational use of go!ernment property 3withouta fee4

a. ,ecreational use statuteH. %udge used words Xunreasonable risk8X which hints at reasonable

person standard*+ negligencea. This makes it easier to pro!e recklessness=b. ust only know facts from which a reasonable person would

conclude there was a risk.. Court says there was no recklessness here.

a. There was knowledge8 but no risk of serious harmi. Think of the 5earned Band test

1. b+pl Y liability. To get a high P8 plainti9 will probably ha!e to show

that someone was pre!iously injuredc. T,ICT 5I(AI5IT;

i. ,espondeat superior1. Xlet the master respondX. mployee must commit the negligent act while employed". ust pro!e

a. mployer*employee relationshipb. ust pro!e that employee committed a tort


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i. lements of tort analysisc. mployee was acting within the scope of their employment

ii. )an 1ordon v. Portland *lectric Co. p. 1"1. Bot springs in ri!er park. @ere warning signs at front entrance only8 kid goes in gets badly

burned". A is the cost of signs at second entrance#. 5 is the danger of the hot water* probably se!ereH. P is the risk of someone coming in the back entrance and getting

burneda. $id PG ha!e awareness of the riskM

i. This was a real secondary entrance8 so people wouldcome in

ii. The picnic tables8 signs on the other side8 and opensecond entrance show knowledge of facts that make therisk ob!ious

iii. 0egligence Per e1. 3(%,IT; ,'54 If plainti9 can pro!e that defendant !iolated a

rele!ant statute8 that is conclusi!e e!idence of duty and breach.a. Conclusi!e means that if the jury )nds that they !iolated the

statute8 they must )nd liability. lements

a. tatute sets standard of careb. Plainti9 is in class of people the statute was designed to protectc. The harm plainti9 su9ered is the sort the statute was enacted to

pre!ent". Martin v. %erzo

a. Car collided with unlit buggy at duskb. 0; had statute re-uiring lights on !ehicles after duskc. lemental analysis2

i. tatuteM ;es8 it establishes a clear standard of care toprotect people

ii. tatute intended to protect highway tra!elers fromaccidents on the highway

iii. There was an accident on the highway8 as the statutesought to pre!ent

i!. TB, C'5$ A 0P1. ust still pro!e that they !iolated the statute

#. &homas v. Mc'onald a. Plainti9 collided with a truck that stalled on the roadb. statutes2

i. Truckers are re-uired to display Oares when the breakdown

ii. Truckers are re-uired to carry Oares Z hour before dark1. This argument slips because the plainti9 didntpro!e what time dark was 3should ha!e used afarmers almanac4

iii. Court adds a 1R*minute window to display 3this is called judicial gloss on the statute4

1. If judicial gloss has e7isted for a while andlegislature has not acted contrary8 it merges withthe legislatures intent

H. Waansea Mutual Ins. Co. ). Matlock a. ne boy buys cigarettes8 gi!es to younger boy who then starts a

)re by accident


15/33

b. tatute banning thisi. Court says the statute was not designed to pre!ent )res?

it was designed to pre!ent youth from smoking. Prima facie case* !iolation creates a rebuttable presumption that the

defendant failed to use reasonable care 3defendant may rebut with adefense to bring case to jury4

K. !icensin$ statutes dont work because they dont set standard ofcare8 can help pro!e breach depending on re-uirements8 but notconclusi!e

L. 0P 7cusesa. $ue diligenceb. 5ack of notice 3of !iolation4

i. $eck case 3"!kora v. Wenzel0ii. if the actor neither knows or should know 3reasonable

person4? without notice of the !iolation8 !iolation is notconclusi!e e!idence

c. Impossibilityd. afety considerationse. 0T2 approaches to 0P

i. 0P is conclusi!e8 !iolation W duty and breach 3majorityapproach4

ii. In a case where a court uses the conclusi!e approachmeans that whene!er an e7cuse is presented in asituation where a directed !erdict for the plainti9 wouldbe granted8 the case goes to the jury

iii. ome courts say that !iolation of a statute is JI$0C of negligence8 sends case to jury

i!. Industry Custom1. Industry customs ha!e a similar e9ect to a statute8 but are less

conclusi!e* the jury @I55 get to decidea. There could be an unreasonable custom* too high or too low? the

jury will decide whether negligence e7ists2. &.J. %oo+er

a. Aarge sinks in storm8 didnt ha!e a weather radio on board3despite low cost4

-. Court said that though it was custom not to ha!e a radio8 thatthe custom was unreasonable

i. This is an indirect form of judicial regulationii. %usti)cations for imposing this indirect regulation on

industry standards3. Too important to lea!e to market

4. *llede v. Richland5Le6inton "chool 'istrict 7ivea. Girl hurt on modi)ed playground e-uipment-. Plainti9s try to bring in industry standards as e!idence of the

standard of care2 trial court said that since district had notadopted the standards they didnt applyc. (ppellate court re!ersed8 stating that standards could be used

to indicate a standard of cared. (rguments about transaction costs

i. Imperfect info a!ailable to consumersii. onopolyiii. 'ne-ual bargaining power

e. Wal8Mart v. Wriht i. Plainti9 wanted jury instruction that employee manual

was a representation of the duty of care that @al*artthinks is reasonable


16/33

3. Court says no way? @al*art set a standard theyconsidered abo!e reasonable care

a. $ont want to discourage companies fromsetting high standards for themsel!es

ii. ;' C(0 ' P5; (0'(5 T B@>0@5$G 6 TB ,I>

3. 0ot for e!idence of industry custom* leads tosubjecti!e std.

!. ,es Ipsa 5o-uitur1. Ethe thing speaks for itselfF. @hen a plainti9 relies on this doctrine8 the jury will be allowed to

conclude that the defendant was negligent e!en though the plainti9may not ha!e introduced detailed or direct e!idence about the preciseshortcomings of the defendants actions.

". ( defendant could use res ipsa lo-uitur to assert comparati!enegligence

#. Aasically8 you cant use res ipsa when you ha!e e!idenceH. ome courts will let you plead res ipsa in the alternati!e. lements 3odern test4

a. These kinds of accidents are usually the result of negligenceb. The instrumentality that caused the accident was in the

defendants 3sometimes e7clusi!e4 control.K. (nother test 3,est. "d4

a. rdinarily happens b/c of negligenceb. $efendant is in the class of members whose negligence usually

causes the injuryc. (lternate nd -uestion* whether defendant had a duty to take

reasonable careL. B!rne v. Boadle

a. Aarrel rolls out window of warehouse8 hits pedestrianb. Plainti9 had no e!idence pro!ing negligencec. Court said there was enough circumstantial e!idence to feel

comfortable saying that there was negligencei. (llows plainti9 to a!oid a directed !erdictii. Plainti9 gets a jury instruction telling the jury that they

can )nd the defendant negligent8 e!en though there is nodirect e!idence? they can infer negligence from the factspresented

Q. "hull v. B.7. 1oodricha. $ock plate malfunctions8 injures truck dri!erb. Trial e!idence showed that the malfunction showed that the

product was either defecti!e or improperly maintainedc. tandard of proof

i. Plainti9 is not re-uired to eliminate with certainty all other

possible causes or inferences8 which would mean that hemust pro!e a ci!il case beyond a reasonable doubt.ii. (ll that is needed is e!idence from which reasonable men

can say that on the whole it is more likely that there wasnegligence associated with the cause of the e!ent thanthat there was not

d. 7clusi!e controlMi. $efendant owned the building since before de!ice was

installedii. $efendant always did maintenance

e. Contributory 0egligenceMi. The plainti9 knew dock*plate was malfunctioning


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ii. ld test21. Contained element re-uiring that the plainti9 had

made no causal contribution to the harm. 'nder this test8 if the plainti9 was negligent in the

least8 then no damagesiii. odern test 3comparati!e negligence4

1. Can still use res ipsa. nly can be thrown out if P was solely responsible

for his injuries1R.'over *levator v. "ann

a. an injured in ele!ator malfunctionb. Court denied res ipsa lo-uitur jury instruction

i. Plainti9 presented too much e!idence8 enough to pro!enegligence

ii. ,es ipsa is like a judicial dispensation8 only granted tothose who need it= C0I$, TBI 0 ( TT2 I6 T'CB JI$0C8 C(00T ' , IP( 5'IT',===

H. Causationi. 0ot just an element of negligence? many torts ha!e causation re-uirements

b. Cause In 6acti. @as there a connection between defendants conduct and plainti9s injuryMii. Aut*for test

1. The standard. EAut*for the defendants conduct8 the incident would not ha!e

happened...F". ultiple Insu:cient Causes 3subcategory of but*for43these already

ful)ll but*for4a. Cause 1 3parents know sitter hits8 hire anyway4*+b. Cause 3sitter hits4*+

i. Then run pro7imate cause analysis.1. If one fails8 the other is the pro7imate cause? if both

pass8 then they are jointly and se!erally liableiii. (lternati!es to Aut*for 3for when you cant )nd but*for causation4

1. ultiple su:cient causesa. 'se if you ha!e multiple causes8 either of which would ha!e

been su:cient to create the injuryi. ach of the acts that were independently su:cient to

produce the harm must ha!e been tortious for the plainti9to a!oid the harsh result of the but*for test

ii. (ny defendant whose tortious act was independentlysu:cient to cause the plainti9s harm may be liable e!enif other independently su:cient acts were innocent.

b. nce plainti9 demonstrates that each of the defendants actswere a4 negligent8 and b4 would ha!e been su:cient to cause

the harm8 each defendant must pro!e its act was not apro7imate cause3substantial factor4 in producing the harmi. The burden shifts to the defendants to pro!e that they

were not liableii. 'T TI55 $ 'AT(0TI(5 6(CT, TT

c. 9inston v. Chicao : Northestern Raila! Co.i. Ps property destroyed by )re? )re began as two separate

)res8 one started by railroad8 the other of unknown originii. Court said that just because the nd party could not be

determined didnt mean that the railroad8 who hadob!iously acted negligently8 could escape liability at thee7pense of an innocent bystander


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1. ,ailroad was held fully liablea. (ny one of two or more joint tortfeasors or

one of two or more wrongdoers whoseconcurring acts of negligence result in injury8are each indi!idually responsible for theentire damage resulting from their joint orconcurrent acts of negligenceF

iii. Bad the second )re occurred because of natural causes8the defendant would not ha!e been liable...

1. ubstantial 6actor testd. If two forces are acti!ely operating8 one because of the

actors negligence8 the other not because of anymisconduct on his part8 and each of itself is su:cientto bring about harm to another8 the actors negligencemay be found to be a substantial factor in bringing itabout 3,est. d. #""344

i. The number of other factors whichcontribute in producing the harm andthe e7tent of the e9ect which theyha!e in producing it

ii. @hether the actors conduct hascreated a force or series of forceswhich are in continuous and acti!eoperation up to the time of the harm8or has created a situation harmlessunless acted upon by other forces forwhich the actor is not responsible

iii. 5apse of timee. Bris-o! v. 7i-re-oard Pa+er Products Cor+

i. an dies of lung cancer1. @orked with asbestos for years and

smoked for "R yearsii. There may be more than one pro7imate cause of

an injury8 and thus the mere fact that someother cause concurs8 contributes8 or cooperatesto produce an injury does not relie!e any of theparties whose negligent conduct was one of thecauses of the plainti9s harm

1. moking might ha!e caused the cancer8but the court used the substantial factortest

a. ,uled that asbestos was asubstantial factor in his death8since e!en a single instance of

e7posure could lead to fatalcancer.... ubstantial factor test can limit an actors

liability? but when there are multiplesubstantial factors8 those defendants canbe held liable

". This is the minority test. Concert of action

i. ften applies to drag*racing casesb. Two defendants act together8 both breaching duty of carec. Aut only one of them was directly responsible for plainti9s injury


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i. (ll those who8 in pursuance of a common law plan ordesign to commit a tortious act8 acti!ely take part in it8 orfurther it by cooperation or re-uest8 or who lend aid orencouragement to the wrongdoer8 or ratify and adopt thewrongdoers acts done for their bene)t8 are e-ually liable

d. ,estatement d SLKi. 6or harm resulting to a third person from the tortious

conduct of another8 one is subject to liability if he1. $oes a tortious act in concert with the other or

pursuant to a common design with him8 or. >nows that the others conduct constitutes a

breach of duty and gi!es substantial assistance orencouragement to the other so to conduct himself8or

". Gi!es substantial assistance to the other inaccomplishing a tortious result and his ownconduct8 separately considered8 constitutes abreach of duty to the third person

a. H factors to consider for EsubstantialassistanceF

i. The nature of the wrongful actii. The kind and amount of assistanceiii. The relation of the defendant and the

actori!. The presence or absence of the

defendant at the occurrence of thewrongful act

!. The defendants state of minde. "hinn v. $llen

i. Two drunk men in a car crash into a husband and wife intheir car8 killing the husband and injuring the wife

ii. @ife sues passenger under the concert of action theoryiii. Court considered )!e factors from restatement8 but didnt

)nd enough e!idence". (lternati!e liability

a. hifts burden to the defendants b/c they are in a position ofha!ing more info as to who is liable

b. 50Ti. ach defendant was negligent

1. This justi)es shifting the burden to defendants8since they!e already been pro!en negligent.

ii. nly one of them caused the injuryiii. 'nknown which one caused iti!. 3sometimes4 defendants ha!e access to info 3most courts

dont re-uire4!. 0T2 If court )nds these elements e7ist for both $s8defendants can be held joint and se!erally liable

1. Plainti9 can collect the entire damages from eitherdefendant? lea!es the defendants to sue oneanother for contribution

c. "ummers v. &icei. hunters shoot8 unknown which shot hit the plainti9

d. Burke v. "cha;ner i. $og bite case

#. arket hare 5iabilitya. $esigned to hold manufacturers of fungible goods liable


20/33

i. Cant determine which manufacturers product wasresponsible

b. "indell i. $ 3drug4 caseii. anufacturers e!entually determined that it created risk

of birth defects8 and cer!ical cancer later in lifeiii. They kept selling the drugs e!en (6T, the disco!ery that

the drug was ine9ecti!e and dangerousi!. Plainti9s had to show 350T4

1. -ui!alent acts of negligence or defecti!e productsale

. 0ot possible to show which one caused". P must sue a ubstantial share of $s

!. ,'5T21. Aurden of proof shifts to defendants. 5iability is based on each defendants market share

c. %!moitzi. $efendants are not allowed to dispro!e their causation=

3ince we are holding people liable based on theproportion of the risk they caused8 based on marketshare8 allowing defendants to a!oid liability by dispro!ingcausation is unfair=4

ii. $efendants are only liable for the market share of thesedefendants8 not 1RR[ of the market

iii. Criticism2 windfall for the defendants because theycreated the risk...

i!. $oesnt re-uire a substantial share of defendants to be inthe lawsuit

1. akes it easier for plainti9s to reco!er. ingles out bigger companies

d. I0 P,(TI0i. 'nder "indell 3joint and se!erally liable4

1. If defendant 1 has HR[ market share anddefendant has H[ market share8 and damagesof N1RR8RRR8 $1 will pay N8 and $ will payN""8"""

ii. 'nder %!moitz8 3se!erally liable41. 3( 6(CT ( (AJ4 $1 would pay NHR8RRR

and $ would pay NH8RRR 3plainti9 su9ers loss ofNHk4

e. (rgs in fa!or of arket hare 5iabilityi. The idea is that in the end8 each company will be held

liable for their fair share of the risk they causedii. Courts are ok with this because all defendants were

negligentiii. 0egligence of the defendants often contributed to the lackof plainti9s information on causation

i!. (G(I0T2 we must tie defendants conduct to plainti9sinjury

H. 5ost Chance/increased riska. Tries to compensate plainti9 for the loss of a chance of reco!ery

!s. increased risk of future injuryb. Lord v. Lovett

i. @oman injured in car accident sues for malpractice? here7pert says that had she recei!ed proper care8 she would


21/33

ha!e had an opportunity for substantially better reco!ery3she had a spinal cord injury4

ii. (ny causal link between $s negligence and Ps lostopportunity is compensable

iii. E5ost ChanceF2 cases where to begin with8 P had a lessthan H1[ chance of reco!ery

i!. Traditional ,ule2 no reco!ery in Eloss of chanceF cases!. ajority ,ule2 To recogniDe loss of chance and to allow

reco!ery based on the [ of chance that was lost. 3[ V!alue of reco!ery4

c. 6actors to consider2i. @hat the court identi)es as the compensable harmii. @hat the plainti9 must pro!eiii. @hat damages are awarded

d. Independent cause of injury thats +HR[ responsible 3courtsre-uire negligence to be substantial" or $reater than %&'(

i. $efs negligence increased risk of injury substantiallyii. HR[ refers to a patient who has a pre*e7isting injury or

condition that is more than HR[ likely to causeinjury...5oss of chance is a #R[ chance of reco!eryknocked down to a R[ chance

e. 6uture Conse-uences1. 6or e7ample? an7iety8 lifestyle changes that are

created by the increased risk of future injuryii. 3traditional test4 you can reco!er for future conse-uences

if they are reasonably certain to happeniii. 3new test4 substantial chance

1. [ increase doesnt need to be substantialc. Pro7imate Cause

1. $etermine whether connection between ds conduct and ps injury is su:cient tosupport liability

. 'sually a -uestion of fact for juryd. Palsra# v. LIRR

i. (ndrews* you owe a duty to the world at large for the conse-uences of yourconduct

1. 'se duty to pre!ent limitless liabilityii. CardoDo* plainti9 must be someone who could be foreseeably injured by the

defendants conduct? the injury must also ha!e been a foreseeable injuryiii. $uty is relational you only have a duty to protect foreseeable plaintis

from foreseeable in)uriesi!. $irectness

1. $efendants conduct that is a cause*in*fact of a plainti9s harm is a pro7imatecause if there are no inter!ening forces between the defendants act and theplainti9s harm

a. Inter!ening act must be su:ciently strong to wipe out )rst actors liability. In Re $n $r-itration Beteen Polemis and 7urness, With! : Co. Ltd.a. @hile unloading ship8 a board falls8 creating a spark8 igniting gas fumes

and destroying the shipb. Court said )re was directly caused by the falling boardc. It was reasonably foreseeable that the falling board would cause injury or

damage 3though not of the type that occurred4d. Court said workers were negligent in letting board fall

i. Gi!en the breach of duty which constitutes the negligence8 andgi!en the damages as a direct result of that negligence8 theanticipations of the person whose negligent act has produced thedamage appear to me to be irrele!ant


22/33

ii. If the act would or might probably cause damage8 the fact that thedamage it in fact causes is not the e7act kind of damage one woulde7pect is immaterial8 so long as the damage is in fact directlytraceable to the negligent act8 and not due to the operation ofindependent causes ha!ing no connection with the negligent act8e7cept that they could not a!oid its results

4. Laureano v. Louzouna. Bot water goes out in apartment8 woman trying to heat water accidentally

spills boiling water on herself8 causing injuriesb. The court said that Ewhile the defendants conduct ga!e rise to the

plainti9s attempt to pro!ide a substitute supply of heat8 the act of boilingwater was not the direct cause of the injuriesF

i. Those injuries would not ha!e resulted from the failure to supply hotwater alone8 and cannot be classi)ed as injuries normally to ha!ebeen e7pected to ensue from the landlords conduct

c. 5andlord inspired the accident8 but didnt cause itd. Plainti9s banging pots together was an inter!ening cause that was the

actual cause of the injury!. 6oreseeability 3majority rule4

1. ( cause*in*fact is a pro7imate cause if the plainti9s harm was reasonablyforeseeable

. @hen a defendants conduct is a cause in fact of a plainti9s harm8 theforeseeability approach treats the conduct as a pro7imate cause of the harm ifthe possibility of that harm was within the range of risks that supported theoriginal characterization of the defendant’s conduct as negligent.

a. Plainti9 must pro!e that the harm that occurred was @ITBI0 the riskcreated

i. If youre the defendant8 you need to de)ne the risk creatednarrowly

". Two types of foreseeabilitya. 6oreseeability of plainti9 3$uty4b. 6oreseeability of injury

i. nly general type of injury must be foreseeable8 not the e7actmanner of the injury

#. Courts often rule that tortious and illegal conduct is unforeseeable...H. &ieder v. Little

a. ( woman was killed when she was pinned between a car and a wall8 thewall collapsing on top of her

i. 7perts testi)ed that the walls collapse was probably what killedher

b. To pro!e breach2i. ake a negligence per se argument

1. Auilding codes are safety statutes? plainti9 is in the protectedclass? the injury is of the type the statute seeks to pre!ent

c. It is not necessary8 howe!er8 that the defendant foresee the e7actse-uence of e!ents which led to the accident sued upon? it is onlynecessary that the general type of accident which has occurred was withinthe scope of the danger created by the defendants negligence

d. *he collapse of a bric# wall resultin$ in the death of a person nearsuch wall is plainly a reasonably foreseeable conse+uence ofne$li$ently desi$nin$ and constructin$ such a wall withoutade-uate supports in !iolation of applicable building codes* e!en thoughthe e7act se-uence of e!ents leading to the collapse of the wall...mayha!e been entirely unforeseeable

. McCain v. 7lorida Poer Cor+oration


23/33

a. an is injured while using a motoriDed trencher when it struck anunderground power line 3he was found "R[ negligent4

b. The lines had been located by the power company and he was digging inthe safe area

c. The court di!ided foreseeability into two aspectsi. The duty element of negligence focuses on whether the defendants

conduct foreseeably created a broader EDone of riskF that poses ageneral harm to others

ii. The pro7imate cause element is concerned with whether and towhat e7tent the defendants conduct foreseeably and substantiallycaused the speci)c injury that actually occurred

d. Eit is immaterial that the defendant could not foresee the precise mannerin which the injury occurred or its exact e7tent

e. !en though the court said that we use general foreseeability for duty andmore speci)c foreseeability for pro7imate cause8 its still sort of general

K. Techni-ues for arguing foreseeabilitya. @( foreseeable2 describe risk broadly and generally

i. $escribe as one single e!entb. @( 0T foreseeable2 describe risk narrowly and with particularity

i. Try to break into many steps!i. ubstantial 6actor test

1. Treats a defendants conduct as a pro7imate cause of the plainti9s harm if theconduct is important enough8 compared to other cause of harm8 to justify liability

. 6actorsa. The number of other factors which contribute in producing the harm and

the e7tent of the e9ect which they ha!e in producing itb. @hether the actors conduct has created a force or series of forces which

are in continuous and acti!e operation up to the time of the harm8 or hascreated a situation harmless unless acted upon by other forces for whichthe actor is not responsible

c. 5apse of timee. Can be more than one pro7imate cause here...

. Inter!ening and uperseding forcesa. Inter!ening and superseding

i. Jitiates liability under directness8 also under foreseeability and substantialfactor

b. Inter!ening alone2i. ay !itiate liability under directness alone. 0ot guaranteed.

ii. ggshell plainti9 1. Tortfeasor must accept their !ictim as they )nd them

a. @hat kind of !ulnerabilities will courts considerMi. Physical !ulnerabilities are usually > ii. Psychological !ulnerabilities are less clear

. Aecause defendant caused the injury8 it is unfair to make the plainti9 pay

because they su9ered a more se!ere injury". habby illionaire*e!en if a person looks poor but is really wealthy8 defendantscan be held liable for their higher wage potential8 e!en though they looked poor.

#. perates on Causation 05;a. ust still pro!e duty and breach

H. (!ailable in all jurisdictions regardless of which pro7imate cause test is used. "cha#er v. %o;manK. Petition o# 9insman &ransit Co.

a. Aarges on the Au9alo ,i!er cause damage 3multiple negligent parties4b. 6oreseeability can be -uite limitless as well

i. The court said this craDy scenario was foreseeable


24/33

c. If the connection between ps injury and d is direct8 they will be liable3directness test4

i. If direct connection e7ists but is unforeseeable8 it must be due tothe same physical forces that produced the original duty to usecare8 and of the same general type that was originally risked

d. $ock owner2i. They knew the ri!er8 the area8 the siDe of the boatii. They should ha!e known that if it got loose8 it would cause at least

mass destruction8 and that the boat could by itself dam the ri!er,. -efenses

a. (:rmati!e defenses 3burden of proof on $efendant4i. Contributory negligence 3old approach8 nobody really uses*too harsh4

. Conduct by the plainti9 that contributed to the injury/. if the plainti9 was negligent in any way at all8 the case was thrown out3. to pro!e plainti9s negligence8 you must still pro!e the elements of

negligencea. duty

i. plainti9 had a duty to use reasonable care to protecthimself...

b. breachc. causationd. harm

ii. Comparati!e negligence 3newer approach4. Pure

a. Plainti9 may reco!er from defendant in proportion to theirnegligence

b. If P is QH[ liable and $ is H[ liable8 p may reco!er H[ of theinjury from $

c. (rgs againsti. @aste of courts time 3systematic4ii. Plainti9 shouldnt be able to reco!er if theyre the major

cause of their injury/. odi)ed

a. HR[ approachi. Plainti9 may reco!er damages proportional to the

defendants negligence8 so long as the plainti9 was notmore negligent than the defendant

ii. Plainti9 may reco!er so long as they are not more thanHR[ liable

b. #Q[ approachi. Plainti9 may reco!er damages proportional to the

defendants negligence8 so long as the defendant is morenegligent than the plainti9

ii. If P is up to #Q[ liable8 the can reco!er if HR[ or more8 no

reco!ery3. 'o-son v. Louisiana Poer and Liht Co.a. an is electrocuted by an unshielded power line8 while trimming

a tree and using a metal*reinforced ropeb. Court focused on the burden of elimination of the danger 3like

Band test4c. (n actor with inferior capacity to a!oid harm must e7pend more

e9ort to a!oid a danger than need a person with superior abilityi. ince the power company had better knowledge of the

danger8 their burden of a!oiding the risk was lower andtheir negligence thus higher


25/33

d. Courts ha!e traditionally cited awareness of danger as a factordistinguishing mere negligence from the higher state ofculpability known as reckless or willful and wanton conduct

0. Jensen v. Intermountain %ealth Carea. Plainti9 was #[ negligent in his death8 doctor was 1L[ and the

hospital "[b. '0IT ,'5

i. ;ou may add up defendants8 and the sum of theirnegligence is what the plainti9s negligence is comparedto in modi)ed jurisdictions

ii. Bolds defendants to higher liability than they actuallycreated

iii. (ssumption of the risk. Plainti9 agrees to accept the risks posed by ds conduct/. 7press (ssumption of the ,isk2 when the parties e7pressly agree in

ad!ance8 either in writing or orally8 that the plainti9 will relie!e thedefendant of his legal duty toward the plainti9

3. typesa. Primary assumption of the risk

i. Goes to dutyb. econdary assumption of the risk

i. Goes to causationii. ust pro!e 3for secondary implied assumption of the risk4

. Plainti9 had subjecti!e actual knowledge of the risk/. P had subjecti!e actual appreciation of its nature

and e7tent3. P !oluntarily accepted the risk0. ome jurisdictions re-uire that it was objecti!ely

unreasonable for p to accept said risk0. Inherent risk test2 risks the plainti9 wished to confront or they were

aware of8 as in sports%. "chro!er v. McNeal

a. Botel parking lot is snowy8 icy? woman re-uests room away fromsho!eled 3main4 enterance

b. he knew the part of the parking lot she parked in was slipperyc. he slipped and felld. Ewith full knowledge that the parking lot and sidewalk were ice

and snow co!ered and aware that the ice and snow wereslippery8 c0eal !oluntarily chose to park on the parking lot andto walk across it and the sidewalk8 thus indicating herwillingness to accept the risk and relie!ing the chroyers ofresponsibility for her safety

e. Court held as a matter of law that c0eal assumed the risk ofher injuries

1. '0,(0(A5 IP5$ ('PTI0 6 TB ,I> a. If plainti9 made an unreasonable implied assumption of the risk8the majority of jurisdictions wont call it an assumption of therisk at all8 just comparati!e negligence

,. ,(0(A5 IP5I$ ('PTI0 6 TB ,I> a. ome jurisdictions say that there is no defense b/c they acted

reasonablyb. thers say that the assumption of the risk was still !oluntary8

and that damages will be reduced2. ome ignore whether the assumption was reasonable 3I0,IT; ,'5

05;=4


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a. If p acted knowingly and !oluntarily8 reco!ery will be barredregardless of whether the assumption was reasonable or not

2. -uty1. Palsra# v. LIRR

a. (ndrews* you owe a duty to the world at large for theconse-uences of your conduct

i. 'se causation to pre!ent limitless liabilityb. CardoDo* plainti9 must be someone who could be foreseeable

injured by the defendants conduct? the injury must also ha!ebeen a foreseeable injury

c. $uty is relational you only have a duty to protectforeseeable plaintis from foreseeable in)uries

ii. e all have a duty to act with reasonable careb. $uty limited by type of harm 3usually emotional harm4

i. Initially courts would not recogniDe emotional harm alone? now some ha!e8and that number is growing8 but still not a majority

ii. motional harms causing physical harms1. tarted with miscarriages caused by emotional harms created by

negligence. This may be a foreseeable injury

iii. Concerns21. Pretty hard for defendants to foresee emotional damage that causes

physical harm. stablishing that claim is genuine

i!. Ro-- v. Penns!lvania RR1. Train hits womans car8 she isnt injured? because of the fright of the

accident 3which she was !ery close to48 she sustained physical injuries3emotional injuries caused physical injuries4

. @here results8 which are regarded as proper elements of reco!ery as aconse-uence of physical injury8 are pro7imately caused by fright due tonegligence8 reco!ery by one in the immediate Done of physical riskshould be permitted 3\0 6 $(0G, ,'54

a. This rule shows that you reasonably could ha!e been harmed* justify fearM

!. pecial relationship cases1. James v. Lie-

a. Aoy watches his sister get killed by a garbage truck8 su9ersemotional damage

b. Guidelines from Dillon 3California4i. @hether plainti9 was located near the scene of the

accident as contrasted with one who was a distance awayfrom it

ii. @hether the shock resulted from a direct emotionalimpact on the plainti9 from the sensory and

contemporaneous obser!ance of the accident8 ascontrasted with learning of the accident from others afterits occurrence

iii. @hether plainti9 and !ictim were closely related8 ascontrasted with an absence of any relationship or thepresence of only a distant relationship

c. Court changes Dillon rule8 adopting the following2i. ( plainti9 bystander has a cause of action for negligently

inOicted foreseeable emotional distress upon a showing ofmarital or intimate familial relationship with a !ictim whowas seriously injured or killed as a result of the pro!ennegligence of a defendant


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1. 6oreseeable injury & follows closely. $eath or serious injury to Jictim". arital or familial relationship to !ictim

. 1rotts v.


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which takes into account the uncertainty ofsuch treatment

b. @e will not hold a mental health professionalto be liable for a patients !iolent beha!iorbecause he fails to predict such beha!ioraccurately

c. Court adopts Taraso rulei. Taraso:

1. warning to the !ictim should be the least e7pansi!epossible based on the circumstances 3try to protectcon)dentiality4

. ,e-uirementsa. The e7istence of a speci)c and immediate

threat of serious bodily injury to anothermust have been communicated to theprofessional...

b. The duty to warn will only arise where thethreat is made against a speci)callyidenti)ed or readily identi)able !ictim

". ,ule2a. Aased upon the special relationship between

a mental health professional and his patient8when the patient has communicated to theprofessional a speci)c and immediate threatof serious bodily injury against a speci)callyidenti)ed or readily identi)able third partyand when the professional8 determines8 orshould determine under the standards of themental health profession that his patientpresents a serious danger of !iolence to athird party8 then the professional bears aduty to e7ercise reasonable care to protectby warning the third party against such adanger

d. Therapist was not held liable b/c the warning he ga!e wasreasonably su:cient in light of con)dentiality concerns

". Bradsha v. 'aniel a. an dies from rocky mountain spotted fe!er8 a non*contagious

disease? a couple weeks later8 his widow also fell ill and diedfrom ,6

b. on sued alleging the doctor negligently failed to warn thewidow about her possible e7posure to ,6

c. Court saidi. @hile an actor is always bound to pre!ent his acts from

creating an unreasonable risk to others8 he is under thea:rmati!e duty to act to pre!ent another from sustainingharm only when certain socially recognized relations exist which constitute the basis for such legal duty

ii. The relationship of a physician to his patient is su:cientto support the duty to e7ercise reasonable care to protectthird parties against foreseeable risks arising from apatients physical illness

1. Court cites !arious cases re-uiring doctors to treator warn "rd parties in contact with a patient


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d. Physician was held liable b/c he knew or B> that the wife wasalso at risk of contracting the disease and he should ha!ewarned her but did not

#. ituations where there is a special relationship between defendant anda "rd party who injured the plainti9

a. $efendant had some right or obligation to control "rd partysbeha!ior

i. ocial host1. ocial hosts dont owe a duty to control "rd parties

to protect othersa. 0o legal duty in these situations 3no special

relationship4i. 7. ( host of a dinner party and a

guest who drunk dri!es homeb. Bost has no legal right to control drinking in

his house* no dutyc. Too much of a burden on hostd. The act of drinking made the guest liable

anyhow 3some courts say this4H. 5andowner duty

a. Traditionali. Trespasserii. 5icenseeiii. In!itee

1. In!ited onto land for own pro)tb. odern

i. General duty of reasonable care to e!eryone on your land1. Protects trespassers

ii. le!els of duty1. 5ow duty for trespassers. Bigh duty for lawful entrants onto the land

c. '!kema v. 1us Macker *nter+risesi. an attends outdoor basketball tourney8 storm causes

tree limb to fall8 injuring man.ii. ued claiming defendant had a duty to warn him about

the storm1. Claimed under special relationship e7ception

a. uestion2 whether plainti9 entrusted himselfto the control and protection of defendant8with a conse-uent loss of control to protecthimself

i. Balance social interests" severityof ris#" burden on defendant"li#elihood of occurrence"

relationship between partiesii. 4ther factors5 foreseeability ofharm" -6s ability to comply withproposed duty" victim6s inabilityto protect themselves" costs ofprotectin$" and whether p hadbestowed some economic bene7ton -

b. Court found no special relationshipi. P could lea!e whene!er he wanted? he

could see the storm coming? there wasno business dealings creating a specia


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relationship 3basically8 he ne!erentrusted himself to the control andprotection of $4

d. 1ra; v. Beard i. an dri!es home drunk from house party8 injures

motorcyclist8 who sues the partys host for negligentlyallowing the man to drink to into7ication and to dri!edrunk

ii. Courts opinion1. (lthough dram shop laws impose liability for this

sort of thing on "rd parties supplying alcohol8 it onlyapplies to commercial pro!iders under certaincircumstances8 and not to pri!ate parties under anycircumstance

. In the absence of a relationship between theparties gi!ing rise to the right of control8 oneperson is under no legal duty to control the conductof another8 e!en if there e7ists a practical ability todo so

". Gi!en the ultimate power of guests to control theirown alcohol consumption and the absence of anylegal right of the host to control the guest8 we )ndthe arguments for shifting legal responsibility fromthe guest to the host8 who merely makes thealcohol a!ailable at a social gathering8uncon!incing

#. Common laws focus should remain on the drinkeras the person primarily responsible for his ownbeha!ior and best able to a!oid the foreseeablerisks of that beha!ior

iii. TBI I TB (%,IT; JI@ 0 TBI I'1. In jurisdictions that $ impose liability on this

issue8 some proof of knowledge is re-uired on thepart of the ser!er.

a. Common approaches re-uire proof that theser!er knew or should ha!e known that theperson was into7icated or that the ser!ersold to or ser!ed a person who the ser!erknew or should ha!e known would becomeinto7icated.

e. *isel v. Board o# *ducation o# Montomer! Count! i. Girl told friends she was going to commit suicide? friends

told school counselors about the statements? whencounselors asked her about the statements she denied

them? counselors ne!er called parents? girl commitedsuicideii. Court said the counselors were negligently liable

1. chool counselors ha!e a duty to use reasonablemeans to attempt to pre!ent a suicide when theyare on notice of a child or adolescent studentssuicidal intent

. Court considered a state law regarding suicide as away to determine the communitys intent on theissue

a. The youth suicide pre!ention programspro!ided for by the (ct call for awareness of8


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and response to8 emotional warning signs8thus e!idencing a community sense thatthere should be inter!ention based onemotional indicia of suicide...

". The conse-uence of the risk here was so great thate!en a relati!ely remote possibility of suicide maybe enough to establish duty

#. The burden on the counselors was slight... atelephone call8 communicating information knownto the counselors8 would ha!e discharged their duty

d. Pure conomic $amagesi. ;ou cannot reco!er for purely economic damagesii. Generally8 courts will not impose liability where defendants negligent

conduct has resulted in no physical harm but purely economic harms3concerns about limitless liability4

iii. Peo+le *6+ress $irlines v. Consolidated Rail Cor+1. (ccident at 0ewark rail yard starts chemical )re8 re-uiring e!acuation

of !icinity8 including Plainti9s business. ued for lost re!enue". Court held

a. ( defendant owes a duty of care to take reasonable measures toa!oid the risk of causing economic damages8 aside from physicainjury8 to particular plaintis or plainti9s comprising anidenti)able class with respect to whom defendant knows or hasreason to know are likely to su9er such damages from itsconduct

b. (n identi)able class of plainti9s must be particularlyforeseeable in terms of the type of persons or entitiescomprising the class8 the certainty of predictability of theirpresence8 the appro7imate numbers of those in the class8 as wellas the type of economic e7pectations disrupted

c. ( defendant who has breached his duty of care to a!oid the riskof economic injury to particularly foreseeable plaintis maybe held liable for actual economic losses that are pro7imatelycaused by its breach of duty

#. This position has not been widely accepted by courtsi!. =42 Madison $venue 1ourmet 7oods v. 7inlandia Center

1. 0; building collapses during remodel8 street is shut down for twoweeks

. 0eighboring businesses sue for lost pro)tsa. (rgued that defendants owed them a duty to keep their

premises in reasonably safe condition8 and that this dutye7tends to protection against economic loss e!en in the absenceof personal injury or property damage

". Court considered and dismissed eople !xpress because manyplainti9s who did su9er loss wouldnt be able to reco!er while otherscould

#. 5imiting the scope of the defendants duty to those who ha!e8 as aresult of these e!ents8 su9ered personal injury or property damage* ashistorically courts ha!e done* a9ords a principled basis for reasonablyapportioning liability

H. $ not held liable for Ps economic losses. (ny plainti9s that su9ered property damage can reco!er? the others

cannot.a. conomic damages must arise from some physical harm

e. ,eproducti!e 0egligence


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i. @rongful birth1. Parents claim that they would ha!e aborted the pregnancy if they had

recei!ed accurate genetic or diagnostic information. 'sed to reco!er the additional costs that a disabled child costs to care

forii. @rongful life

1. (n action brought in the abo!e circumstances by the child 3I would bebetter o9 not being born than being born as I am4

. (lso reco!ery for cost of care8 but those e7tending beyond the age ofmajority 3care after age 1L4

iii. 1reco v. >nited "tates1. $octor failed to diagnose fetal deformities while P was pregnant? would

ha!e pro!ided opportunity for abortion. Causes of action

a. @rongful birthb. @rongful life

". Court saysa. ( mother may maintain a medical malpractice action under

0e!ada law based on her physicians failure to properly performor interpret prenatal e7aminations when that failure results inthe mother losing the opportunity to abort a se!erely deformedfetus.

i. Greco should ha!e been gi!en the right to pro!e that shehas su9ered and will continue to su9er damages in theform of emotional or mental distress and that she hasincurred and will continue to incur e7traordinary medicaland custodial care e7penses associated with raising

%oshuab. $eclined to recogniDe Ewrongful life as a tortF

i. 5inked to 0e!ada law re-uiring parents of a disabled childto care for them beyond the age of majority...3not allstates ha!e this law8 could e9ect outcome4

i!. 0o claim for Ewrongful pregnancyF1. ;ou cant reco!er for a healthy child8 e!en if you cant a9ord them.

!. 9set rule1. $amages for emotional distress should be o9set by the Ecounter!ailing

emotional bene)ts attributable to the birth of the child.F 3not uniformlyadopted8 just an e7ample from Idaho4 Barm ^ Aene)t W damages

a. Criticism2 the usual joys of parenthood would often besubstantially o!ershadowed by the emotional trauma of caringfor the child in such a condition8 so that application of thebene)t rule would appear inappropriate in this conte7t.

f. Primary (ssumption of the ,iski. (n alternati!e e7pression for the proposition that the defendant was not

negligent8 that is8 there was no duty owed or there was no breach of ane7isting dutyii. ( type of argument a defendant may use to rebut a plainti9s claim or

e!idence of duty or breachiii. Clover v. "no-ird "ki Resort

1. @oman injured when ski area employee jumped o9 a rise and collidedwith her

. he settled with the employee but sued nowbird for negligent designand maintenance of its ski runs

". Court saysa. ki law was a statutory enshrinement of primary assumption of

the risk


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b. Aut8 if an injury was caused by an unnecessary haDard8 thatcould ha!e been eliminated by the use of ordinary care8 thehaDard is not an inherent risk

i. Inherent risks1. Those dangers that skiers wish to confront as

essential characteristics of the sport of skiinga. r those haDards skiers are aware of

. BaDards that cannot be eliminated by the e7erciseof ordinary care by the ski resort operator

c. $enied snowbirds motion for summary judgmenti!. Jones v. &hree Rivers Manaement Cor+

1. @oman is injured by a baseball while walking on an interior walkway ata baseball game

. Court ruled that the architectural design that allowed the accident tohappen was not an inherent element of the game of baseball8 andplainti9 could reco!er

". 0o duty rules apply only to risks that are common8 fre-uent8 ande7pected

#. Aeing hit by a Oy ball is an inherent risk of baseball? but8 being hitwhile in a concourse is not an inherent risk

a. Court describes risk narrowly 3fans in concourse4 rather thanbroadly 3fans at a baseball game4

Ehrenreich Torts Outline

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