Torts Outline 2l

8/2/2019 Torts Outline 2l

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TORTS NOTES

RulesCaseKey termsCaliforniaProfs opinion

Issues/categories/causes of action

GENERAL

1) Tort is a civil wrong committed by one person against another, can and usuallyoccur outside of any agreement between two parties.a) Main concern is whether one whose actions harm another should be required to

pay consideration for that harmb) Three categories: intentional: D must have know; negligent: D should have

known; strict liability: doesnt matter if D knew.2) Three methods of analysis:

a) Fairness: P is compensated for loss.b) Economic analysis: pays for all of its true costs: balancing of costs incurred by

v. harm to Pc) Loss distribution: how professor sees it. Torts as one part of social welfare

system, as compensation is given for losses.3) Overlap with contracts, crimlaw (but treats matter differently), property.

INTENTIONAL TORTS

1) Intent:a) Meaning of intent

i) Either D desired to bring about the harm or knew to a substantial certaintythat the harm would occur.

ii) There need not be proof that the D intended to cause injuryiii) Reckless behavior is seldom sufficient to establish an intentional tort

b) Burden of proof:i) Burden of persuasion: preponderance of the evidence: enough evidence to

make it more likely than not that the fact the claimant seeks to prove is trueii) Burden of coming forward: P or D will to come forward with this evidence

2) Liability of childrena) Rule

i) a child can be held liable for an intentional tort so long as the child hassufficient capacityto have requisite intent, whether or not he or sheunderstands the wrongness of the act.

b) Applicationi) Garratt v. Daily : kid pulls chair out from under lady when she was about to

sit down: child is liable.3) Liability of the insane

a) Rulei) insanity is not a defense to an intentional tort so long as there is an intent

to commit the act.

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b) Application

i) Williams v. Kearbey : shot and killed people, was found insane.c) Policy

i) need to make people responsible for their actions, or the actions of those intheir care.

4) Vicarious liabilitya) Rule

i) Respondeat superior: master is responsible for torts committed by employeeduring time of employment. Doesnt matter if D did anything wrong or not.

ii) No vicarious liability for parents of intentional torts of kid.5) Battery is an intentional:

a) Rulei) Harmful touching: no need for P to prove D had intent to inflict injury;

Offensive touching: usually must be deemed to offend the personal dignityof an ordinary person; Battery may be defined as intentional unconsentedtouching

b) Applicationi) Leichtman v. WLW jacor Communications, Inc: blowing smoke in anothers

face is battery when the 1. Action is intentional and 2. Either harmful oroffensive to a reasonable sense of personal dignity.

ii) White v U Idaho : if D knows of Ps particular sensitivity, then can be liable forunconsented touching.

iii) Bohrman v. Maine Yankee Atomic Power Co: When federal safety standardsare complied with by D, they do not preclude ones liability in a intentionaltort if P has sustained damages.

c) Notesi) CA: P has burden of proof of lack of consent and intent.

6) Assault:a) Rule

i) intentionally placing another in immanentfear of harmful or offensivetouching. threat cannot merely be as to future action or conditional; mustbe near at time, on the point of happening; Inmost jurisdictions, the fearmust be reasonable; Mere words alone are seldom sufficient.

b) Applicationi) I DE S ET UX v. W DE S : woman wasnt battered when someone hit the

outside of her house, but would have been if they hit her car.ii) Castro v. Local 199 National Health and Human Services Employees Union:

woman threatened by boss; apprehension of harm must be immanent, wordsalone rarely suffice.

7) Transferred Intenta) Rule

i) A D who intends to inflict an intentional tort upon one person, but winds upinflicting it upon another, will be held to have the requisite intent to be liablefor an intentional tort to that person. Battery, false imprisonment, assault,trespass to chattel, trespass to land.

b) Applicationi) Alteiri v. Colasso : D threw rock meaning to scare one person, ended up

hitting another. Was liable.8) Mistake Doctrine

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a) Rule

i) if D injures thinking he has legal right to do so, those acts can still beintentional tort.

9) False Imprisonmenta) Rule

i) intentional, unlawful and unconsented restraint of the movement of oneperson by another; Must confine within fixed boundaries or be physical force

or threat of physical force; There must be consciousness of the confinement.b) Application

i) Dupler v. Seubert : woman confined by bosses to office. Was FIii) Maniaci v. Marquette University : girl held by her university, no FI because uni

went through legal process; BUT see malicious intent.10) Malicious Prosecution:

a) Rulei) the intentional institution of a criminal or civil suit against the malicious

prosecution P: Filed with probable cause; Filed with malice; Terminated onthe merits in favor of the malicious prosecution P (the D in the original suit)

b) Applicationi) Maniaci v. Marquette University: MP not present because Ds hadnt won

any case against her, case was still going.11) Abuse of Process

a) Rulei) the intentional misuse of a civil or criminal proceeding for an ulterior

motive, can be filed while case is still going.b) Application

i) Maniaci v. Marquette University: AoP present because papers were filed withintent of holding her for reasons other than they were intended.

ii) REST says the same as abovec) Note: can have all three causes of action, can win under one and not the other.

12) Intentional Infliction of Emotional Distressa) Rule

i) IIED occurs when the D, through extreme and outrageous conductintentionally or recklessly causes the victim severe emotional distress.

o Mere reckless behavior is sufficient to support the cause of action in

some states, including California. This is different from most othertortso Severe emotional distress must result.

o Most states, including California, do not require P to prove physical

injury.o

If the P has special condition that causes them more harm thannormal, you are still liable. Somewhat subjectivei) Application

a) Slocum v. Food Fair Stores of Florida : begins the IIED claim: woman yelledat by store clerk; no IIED because sitch wasnt extreme enough

b) Rulon-Miller v. IBM : woman fired bc of her BF. IIED found because of wayshe was fired, words used to make her feel inferior, etc.

c) Doc having affair with wife of couple he serves: liable for IIED because ofthe relationship present.

d) Jones v. Clinton : Jones didnt really prove much emotional distress

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DEFENSES TO INTENTIONAL TORTS

1) Affirmative Defenses: D has to plead and prove, after P established PF case2) Self defense

a) Rule

i) The force used must reasonablyappear to be necessary; Wounding force

can only be used to prevent serious bodily harm; Must the D retreatif that ispossible; California, by statute includes defending family members underself-defense; So if your mistake was reasonable, then you still have defenseof self-defenseSD is an innatething, shouldnt be held liable as long asacted reasonably.

b) Application

i) Drabek v. Sabley : snowball case: s-d not an acceptable defense becausethere was no threat when he acted.

ii) Castle doctrine : in your home you can defend it, dont have to retreat. Truein some states, not all.

3) Defense of Others:a) Rule

i) One is privileged to use force to defend another. Courts are divided as towhether one can use this defense if the person rescued had no right of self-defense; usually arent liable for mistake.

4) Defense of Property:a) Rule

i) One can use that amount of force which reasonably appears necessary inorder to protect property; no death or serious injury unless your safety isthreatened; If feasible, a warning must be given before force is used.

o Most authority is that force likely to produce death or serious bodily

injury can never be used in defense of property. Unclear in CA.b) Application

i) Springloaded shotgun: this is never ok to do.5) Consent

a) Rule

b) Consent vitiates an intentional tort6) Note

a) In California, as well as in many other states, consent is not anaffirmative defense., but is part of Ps prima facie case

b) In CA, Consent may be explicit or implicit;

(i) implied in fact: playing baseball, do you need consent to tag person

out?(ii)implied by law: If passed out on the street and doc comes to revive

you, that is consent is . Facts dont matter, it is just the law.

c) Consent obtained by duress or fraud is not effective

d) Consent to an illegal actis ineffective in some states: CA says noliability if there was consent.

6) Defense of Necessitya) Rule

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i) One is privileged to make use of anothers property to prevent harm to theperson or to a disproportionately greater amount of property damage; Thisprivilege is conditional and the actor may be liable for any damage to theproperty used; Most authority holds that if it is a governmental agencyasserting the defense, it is a complete defense

b) Application

i) Vincent v. Lake Eire Tranp. Co : the damaged dock case: DoN is often

conditional: someone else cant untie you from dock, but if you do damagesduring necessity then you still have topay for it.

INTENTIONAL ECONOMIC TORTS

1) Intentional interference with contractual and economic relations

a) CA splits into two categories:i) Interference with K

Elements : 1. A valid K, 2. D knew of this K, 3. D induced a breach, 4. Psuffered damages, 5. Ds actions werent privileged. Buren of proof is in

the air.ii) Interference with Prospective Advantage

One whoo without a privilege to do so,

o purposefully induces another not to enter into or continue a business

relation with another,o thereby causing harm to the P.

iii) Defense of privilege: fair competition, Protecting financial interest of theparty advised, Managers privilege, provide truthful information or givehonest advice requested; Courts are divided on burden of proof(CA puts onP, so P has to prove a negative, that they werent privileged, which is

difficult). The privilege of fair competition is broader in an action for interference

with prospective than is the same privilege in an action for interferencewith K.

K at will can fall under either, but under PA there are more privileges forjustification.

b) Application

i) Lowell v. Mothers Cake and Cookie Co . (CA): mom wont let you sellbusiness case: screwed whether they told buyer or not: there is II, but couldalso be a defense of privilege. In Ca, P has this burden of proof, which isdifficult as it is proving a negative.

ii) Texaco v. Pennzoil: the three way oil contract case: was IK even thoughthere was no solid K yet because parties had agreed on terms and intendedto be bound.

iii) Env. Planning and Information Council, Superior Court: economicinterference was legal because of 1st amendment rights to free speech.

2) Wrongful Terminationa) Rule

i) In every employment contract (even at will) is an implied covenant of goodfaith and fair dealing; Breach of that covenant is breach of the contract

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CA: must be in violation of either constitutional or statutory provisions,public good.

b) Application

i) Foley v. Interactive Data : fired for tattling case: no WT because there was nopublic interest/statutory violation in his being fired. Prof disagrees.

3) Tortious breach of the Covenant of good faith and fair dealingsa) Rule

i) Covenant of good faith and fair dealing is implied in K and breach ofcovenant is breach of K and can be tort; even though specific phrase wasntbreached, sometimes you need CoA. Only applies to Insurance Cos in CA.

b) Applicationi) Egan v. Mutual of Omaha Insurance : refuse to pay disability case: liable.

4) Intentional misrepresentation/fraud

a) Test:i) Material misrepresentation, made with knowledge of the falsity of the

statement or with reckless disregard for the truth, with intention to inducereliance, and the victim justifiably relies on the misrepresentation, causing

damage; an act to conceal can be IM. Cts split on BoPb) Applicationi) Nader v. Allegheny Airlines : the overbooked flight case: D had duty to

disclose overbooking practices, was liable.

c) SubRule: failure to disclose can be IM if 1. There is a fiduciary relationship, thefailure to disclose is likely to mislead, and the knowledge is held by D andunlikely that P can learn of it otherwise. Fuzzy sitch

NEGLIGENCE

0) General: Five elements of a prima facia case:

i) Duty (which prof puts with proximate cause)ii) Breach of duty (also breach of standard of care/ failure to act as a

reasonable person)iii) Cause in factiv) Proximate causev) Damages

b) Rule

i) usually decided by jury asking if they acted as a reasonably careful personwould in those circumstances.

c) Application

i) Windup case : D acted as a reasonable person, followed customs. Risk must

be foreseeable and reasonable.ii) US Fidelity : fell in the ship hull case: Economic analysis: Hand Formula: if

burden of precautions is less than losses from accident times the probabilityof accident, then there was no negligence. Prof says the less conscious theaction the less helpful the hand formula. BP < L * P = no liability

DUTY1) Duty

a) No Duty to acti) Rule

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The fact that an actor realizes or should realize that action on his part isnecessary for anothers aid or protection does not of itself impose uponhim a duty to take such action. no liability for nonfeasance. But thenthere are tons of exceptions to that rule, making most cases come out forliability.

ii) Application

Restatement of Torts 2d #3142) Limitations on Duty

a) Duty to recue:i) Rule

duty to act if the actor or an instrument under the control of the actorcaused the peril.

ii) Application

L.S. Ayres & Co. v. Hicks : car accident?b) Preexisting relationship

i) Rule

duty if preexisting relationship between actor and victim.

c) Voluntary rescuei) Rule

liability can be based on abandonment of that rescue (if that places thevictim in a worse position) or if the rescuer performs it in a negligentmanner. This rule has been changed to no liability in many states bystatute.

ii) Application

Miller v. Arnal Corp frozen mountain rescue case: no duty where the Pdidnt rely on the D, they undertook rescue voluntarily, and didnt put P ina worse position.

d) Duty of parents

i) Rule A parent can be held liable for negligently supervising a child if a victim is

intentionally injured by the child and the victims harm was reasonablyfoeseeable.

ii) Application

Under Cal. Civ. C. 1714.1 a parent or guardian can be held vicariouslyliable for the intentional torts of a child, but damages are limited to$25,000 for medical expenses.

Wells v. Hickman: Parent has a duty to exercise control over minor childwhen the parent knows or should know that injury to another is possible.They didnt know, had no indicators (BS) so there was no liability.

e) Duty of Psychs

i) Rule

The relationship between a client and a psychiatrist is such that if theclient communicates a serious threat of physical violence against areasonably identifiable victim, a duty to warn the victim and a lawenforcement agency of the threat arises.

ii) Application

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Tarasoff v. Regents : shrink was liable to 3rd party because of specialrelationship to them via their patient. Police werent liable as there wasno special relationship.

Cal Civ. Code : limited shrinks liability to when patient has talked ofphysical violence against reasonably identifiable victim

iii) Problems: lack of confidence in therapists, therapists are screwed eitherway, but things are fine after thirty years

f) Purveyors of boozei) Rule

can be held liable for injuries caused by intoxicated in some places, in CAthere is no liability unless they are intoxicated minor.

g) Duty of Policei) Rule

courts are split, often it will depend on governmental liability statute

Davidson v. City of Westminster: laundry room stabbing: there was noliability because P didnt rely on them, there were no express assurancesby police, and no direct contact.

Johnson found liability because the D increased risk to P, whereas inDavidson the police didnt make P worse off.

Thompson found no liability where police didnt warn parents ofdangerous threat of juvenile offender and kid was murdered: said thatthere was no duty because police cant warn and then be liable for harmif it occurs.

BREACH OF STANDARD OF CARE: usually you have a standard of care ofa reasonable person acting in that situation.Exceptions:

1) Sudden emergency:

a) Rulei) elements:

There was a sudden emergency where someone was in actual orapparent danger of immediate injury

That D did not cause the emergency;

That D acted as a reasonably careful person would have acted in similarcircumstances, even if it appears later that a different course of actionwould have been safer.

b) Application

i) Cordas v. Peerless: cab-ditch case: acted as reasonable person in theemergency

2) Mental illnessa) Rule

i) insane are civilly liable for a wrong, but is not liable in exemplary damagesunless at the time of the act they knew the act was wrongful.

o CA belongs to majority rule above, while others allow mental illness as

defense if there was a sudden onset of it.b) Application

i) Breunig v. American Fam Ins : crazy lady and batman: minority rule.3) Minors

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a) Rule

i) child is held to SoC of a reasonable person of like age, intelligence, andexperience under like circumstances, unless activity is inherently dangerousthen adult standard.

b) Application

i) Neumann v Shlansky : the kid golfer case: applied SoC of adult.4) Physicians

a) Rulei) A physician must exercise that degree of skill, knowledge and care

ordinarily possessed and exercised by other members of the professiono A specialist will be held to the standard of that specialty.

o Some states (not California) hold a physician only to the level of care

in the same or a similar localityo Custom doesnt necessarily mean no negligence

b) Application

i) Melville v. Southward: infected foot case: expert has to be substantiallyfamiliar with that specialty. Ortho wasnt good enough here

5) Informed consenta) Rule

i) If a doc doesnt fully inform P of possible complications, etc, can be liablefor not informing.

o Consent will be implied in an emergency.

o In some states (including CA) it is no defense that the doctor complied

with custom.o Courts are divided on causation issue. Is it necessary to prove that a

reasonable person would have foregone the procedure if fully informedof the risks?

ii) No Consent: If a doctor performs a procedure without the consent of the

patient, the doctor can be held liable for a battery.b) Application

i) Cobbs v. Grant : surgery w/o disclodure of complications that led to morecomplications: A doctor can be held liable for negligence if he or shewithheld known and significant risks of a procedure.

c) Determining SoC for docs:i) Rule

Doc Rule: do what reasonable doc would do, so docs decide what isreasonable

Patient Rule: used in CA:if doc knows or should have known of significantrisk, doc has to inform patient, so it revolves around the rights of patientto be informed of all material facts

6) Rules of Lawa) Rule

i) In certain rare repeating fact situations, trial courts will rule as a matter oflaw whether a partys action breaches the standard of care and will not givethe issue to the jury in that case or in subsequent similar cases.

b) Application

i) Akins v. Glen Falls Schools : a matter of law that owner of ball park onlyneeds to provide screening behind home plate.

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7) Negligence Per Se:a) Rule

i) statutory purpose doctrine:

harm was the type harm the statute was meant to prevent

injured party was in the class of persons meant to be protected.

breach of a statute must be a cause-in-fact of the injury.

ii) CA: because presumption state, unless narrow exceptions apply, breach ofstatute = negligenceo The dual purpose doctrine recognizes that a statute may have more

than one narrow purpose.b) Application

i) Gorris v. Scott : the sheep overboard case: statute to protect disease

ii) Wanesa Mutual Insurance : the cigarette log case: minor dropped cigarettethat lit logs on fire. Co held dude who gave cigs to minor liable for breach ofthat statute.

c) Other takes on this issue:

A presumption is an assumption of fact that the law requires to be made

from another fact. A presumption is not evidence. (CA). breach of statuteraises a presumption of negligence, similar to NPS.

Contrast with an inference: a deduction of fact that maylogically andreasonably be drawn from another. Breach of statute is mere evidence ofnegligence.

ii) the barroom brawl case : in CA, owners of bars will not be held liable for theactions of the intoxicated person or injuries that result, unless in veryobvious circumstances

d) Notes on proximate cause:

i) proximate cause: Foreseeability: In the absence of statutory breach, whenthere has been a breach of a standard of care, to hold for liability the harm

that occurred, also must have been within the scope of the risks which madeus call the act negligent. (rat poison case).

ii) Most cts hold that complying with a statute is not proof of due care.

e) Example: If you are driving without a license, are you negligent per se?i) Statutory Purpose: Yes, because you are breaking a statuteii) From cause in fact: No, the lack of license didnt cause accident

CA says it isnt: doesnt matter why license was taken away, or if theyjust forgot to renew it etc: have to prove that there was causation.

CAUSE IN FACT/CAUSATION

3) But for Testa) Rule

i) P must prove by a preponderance of the evidence that but-for the Dsnegligent conduct, the injury would not have occurred.

o can also be established by showing that the action of the D greatly

multiplied the chance of the injury and naturally led to it.o Causation is not negated merely because it is possible the injury could

have occurred without the negligence.b) Application

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i) East Texas Theaters v. Rutledge : leave theater and get a bottle to the head.Didnt meet but for test.

4) Substantial Factor Testa) Rule

i) actor can be deemed the cause-in-fact of an injury if his or her or itsnegligence was a substantial factor in bringing about the harm.

o Some states say substantial factor test includes but-for test,

except in cases of redundant causation where the Ds action alonewould have caused the harm.

A court adopting such a rule must then decide whether to instruct thejury on the but for test. California does not

b) Application

i) Anderson c. Minneapolis : railroad fire case: under but for test there would beno liability here, while under SF test there is liability.

ii) Northington v. Marin : the snitch case: where security guard and inmatesspread rumors that led to beating. BF test leaves no one liable. SF test: allDs whose conduct is one of two or more redundant causes of a Ps injury are

liable. Joint and several liability.5) Compensation:a) Rule

i) Lost opportunity: when docs negligence lowers a patients chance ofrecovery, compensate the P by thepercentthe negligence lowered thechance for recovery. Is this different in CA?

Herskovits v. Group Health Coop : the wrong diagnosis case: doc loweredchance of recovery by 35ish% so should be compensated by this much

Alternative Ruleso Require under a but-for test that P prove by a preponderance of the

evidence that it was more likely than not that the negligence caused

the harm.o Allow all such cases to go to the jury under a substantial factor

instruction.

ii) Alternative liability: when one of two negligent Ds caused a harm and ithasnt been shown that it was more likely than not that either one caused it,then each will be held liable unless they can prove their innocence.

(i) Prof he thinks that if there is a 50/50 chance then its ok to holdboth Ds liable, but from 33% on, P should have burden of proof.

Summers v. Tice : the shot in the face case: one of two Ds shot P in theface, both held liable.

iii) Market Share Liability:If P joins in an action a substantial share of themanufacturers of a product and the product was negligently manufactured,each D will be held liable for the proportion of the judgment represented byits share of the market (unless it demonstrates that it could not have madethe product which caused P's injuries).

Sindell v. Abbott Labs: the DES drug case.

iv)Medical Surveillance: Can get damages for medical surveillance becausethe need is reasonably necessary but cant get damages for enhanced riskunless P can show that harm is reasonably probable.

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Ayers v. Township of Jackson : contaminated well water case: theycouldnt prove that their chances of cancer were up to above 50%, soonly got surveillance.

DUTY / PROXIMATE CAUSE / LEGAL CAUSE:

1) Generally:

a) Two overlapping elements, although most cts talk about them separately, thisisnt necessary.

b) Comparable analytically to negligence per se2) Tests:

a) Scope of Risk/foreseeability

i) For there to be proximate cause, not only must Ds action have beennegligent, capable of leading to reasonably foreseeable harm, the harm thatactually occurred must be within the scope of the risks which made us deemthe act to be negligent.

b) Forseeability Test:i) (1) a reasonably foreseeable result or type of harm, andii) (2) no superseding intervening force.iii) The extent and the precise manner in which the harm occurs need not be

foreseeable.iv) Application

Wagon Mound: for there to be liability the actual injury had to bereasonably foreseeable.

c) DUTY getting muddled into PC

i) Practical Politics test:There are fact situations where even though theDs negligence in fact caused the harm, for policy considerations, the lawdeclines to trace a series of events beyond a certain point.

Applicationo Palsgraf: Cordozos majority talks of duty and says that D didnt have a

duty to P because P was far enough removed for that duty to bepresent. Andrews dissent frames it in proximate cause, says that thecause was close in time and space. Could reverse these methods andarrive at the same conclusion.

d) Old Rules:i) Direct Test:proximate cause is satisfied whenever the D's negligence

caused the injury without any intervening force.

Applicationo Polemis: allows liability so long as the negligence of the D was a

direct cause of the injury.ii) Restatement Test? If Ds action was a substantial factor in harm, there

can be liability unless looking backwards from actors negligent conduct, itappears highly extraordinary that it should have brought about the harm.

3) Recurring proximate cause issues

a) Intervening cause: called dependent when liability is permitted andsuperseding when it is not.

i) Cal judicial instruction: to find that 3rd party does count as interveningforceand so cuts off Ds liability.

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that 3rd partys conduct occurred after Ds conduct

that a reasonable person would consider 3rd party conduct as highlyunusual or extraordinary

that D had no reason to expect that 3rd party would act in negligentmanner.

ii) Unexpected severe injury: injury is rarely too remote for there to beproximate cause merely because the injury was more severe than wouldhave been expected. (the egg-shell P)

Applicationo Steinhauser v. Hertz Corp.: the car accident to schizophrenia case:

issue: whether D is liable when injuries would have occurred sooner orlater anyway. Rule: D is liable even for highly unlikely injury.

iii) Recovery may be limited to difference between two times of injury.iv) different in kind

injury of unusual kind, depending upon how removed the cause is fromthe type injury, the court may or may not rule it a proximate cause.

v) Injury to a rescuer

is proximately caused by the tortfeasor who made the rescue necessary,at least if not too much time has elapsed before the rescue.

vi) Intervening criminal or even intentional torts

can be deemed to cut the chain of causation, but usually not if thenegligence of the D was failure to guard against a known or knowable riskof the activity.

Applicationo Thomas v. US Soccer Fedn : soccer fight: When an intentional or

criminal act of a third person intervenes between Ds negligence andPs injury, liability will turn on whether the intervening act is a normalor foreseeable consequence of the situation created by Dsnegligence.

vii) A tortfeasor can be held liable for subsequent medical malpracticeperformed on an injured victim.

viii) Applicationo Bigabee : phone booth case: addresses negligence to put booth there

and proximate cause of driver as a superceding force. When harm isforeseeable there is a matter of fact for jury to decide.

4) Res Ipsa Loquitor

a) General : used when we know that someone caused harm but we dont knowhow a rule of evidenceburden shifter. Just deals with breach of SoC . If

there is evidence of due care then all districts send it to jury, and if there isevidence of no negligence then RIL is destroyed all together.b) Rule

i) P must demonstrate:o that the accident is of such a nature that it would not usually occur in

the absence of negligenceo that the instrumentality causing the injury was within the D's exclusive

control.o that the P was not at fault.

ii) Application

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Krebs v. Corrigan: the smashed my glass sculptures case: burden of proofmoved to D because elements of RIL were satisfied. If D succeeds indisproving any of the elements, then burden goes back to P.

Ybarra v. Spangard : surgery F-ed my shoulder case: there are multiple Dshere, so prof has an issue with the exclusive control over instrumentality.But RIL is now used almost exclusively in hospital cases where P wasunconscious, even though there are multiple potential Ds.

c) Proof of Negligence: real v. direct v. circumstantial evidence:

RIL is just a rule of who has the burden of providing evidence: if P canprove three elements of RIL, burden shifts to D.

ii) Inference: deduction of fact that maylogically and reasonably be drawnfrom another fact or group of facts found or otherwise established in theaction. (may be accepted or rejected by jury)

iii) Presumption: assumption of fact that the law requires to be made fromanother fact or group of facts found or otherwise established in the action. Apresumption is not evidence. (must be drawn by jury, unless rebutted). CAits presumption which effects the burden of producing evidence

SEPARATE CAUSES OF ACTION / DAMAGES

1) NIED:

a) History: common law, there was no recovery if P didnt have physical impact.b) Rule

i) Amaya: impact rule was abandoned, and there could be recovery so longas the bystander was within thezone of danger.

ii) Dillon : The factors or guidelines (not criteria)o Whether P was located near the scene of the accident;

o Whether the shock resulted from a direct emotional impact upon the P

from the sensory and contemporaneous observance of the accident;o Whether P and the victim were closely related:

Applicationo Dillon v. Legg : CA SC held that there could be liability to a third party

witness not within the zone of danger.

Thing: guidelinesof Dillon changed into requirements, and said that theP had to be AT the scene of the accident not just close by, so that couldbe a bit more liberal of a rule. No need for physical manifestation. sonkilled and mom saw right after. No liability

c) Note

i) Sometimes bystander rule is waived, usually where there was a preexistingrelationship (mom who recovers for NIED from shrink who treated her son)1) Fear of Cancer:

a. Rulei. Have to prove an increase in over 50% and that chances of getting

cancer are over 50%.b. Application

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i. Potter v. Firestone : P must prove 1. as a result of Ds negligent breachof duty to P, P is exposed to toxic substance which threatens cancer,and 2. That Ps fear stems from knowledge, backed by science, that itis more likely than not that the P will develop the cancer due to thetoxic exposure.

a. Note

i. CA allows emotional distress damages only upon proof that cancer is

probable. Medical monitoring is paid if the risk of disease issignificant.

ii. Some courts allow emotional distress damages in proportion to theincreased risk of developing cancer.

2) Wrongful Death:

a. Damages:i. 1. Compensation only for pecuniary losses,

ii. 2. Also include loss of companionship as a pecuniary loss(California rule),

iii. 3. Allow compensation for the pain and suffering of the survivors

depending on the jurisdiction(not CA)b. Two overlapping causes of action may be allowed:

i. Wrongful death:

Rule

a. parties receiving can bring their own cause of action forwhat they lose because of death

Application

a. Gary v. Schwarz: kid killed on bike: the ct did give somecompensation after looking at personality, family relation,grades, etc.

ii. Survival

Rulea. tort of deceased, whether cause of death or not, passes

the estate and can be pursued by heirs.i. No pain and suffering

Note: No double recovery:3) Loss of consortium and society

a. Rulei. loss of love, companionship, society, sexual relations, and household

services. Brought by those that suffer losses due to injury to spouseb. Application

i. Borer v. American Air: kids didnt get LofC, said it was covered underdads claim. Policy: multiplier

4) Wrongful Birtha. Rule

i. If a doc or anyone else, injures a fetus in utero, the child after birthcan bring suit

ii. Damages vary on if the costs are set off by joys of kid and if the kid ishealthy or not.

5) Wrongful life

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a. General: child born with serious health problems has CoA against a D fornegligently having caused the birth.

b. Note

i. Most states allow no such cause of action, CA does for extraordinaryexpenses.

ii. Counterpart to wrongful conception which is brought by parents.c. Application

i. Turpin v. Sortini: deaf girl case: did recover for cost of medicalexpenses

6) Land occupier liability:a. Common law rules depended on status of person as trespasser, licensee

(social guest), or invitee (business purposes)b. Rule

c. Roland: faucet case: Everyone is responsible, not only for the resultof willful acts, but also for an injury occasioned to another by want ofordinary care or skill in the management of his property or person, exceptso far as the latter has, willfully or by want of ordinary care, brought the

injury upon himself. Classification of party no longer matters, due care ofowner does.i. This rule is departed from only when D proves the absenceof:

foreseeability of the harm (most important and usuallywill be a q for the juryalthough this was changed insubsequent decisions)

the degree of certainty of the harm

the closeness of the connection of D's conduct and P'sharm (could be similar to proximate cause)

the moral blame attached to D's conduct

the policy of preventing future harms. the burden of a duty rule on the D

the availability of insurance (this isnt the D specifically,but say that if homeowners insurance is usually held in thecircumstances, this will influence things

Normally this applied to type of harm generally, now they are applied tospecific case

d. Application

i. Ann M : shopping center rape: the court partially abolishes thetotality of the circumstances test and foreseeability test in favor ofan inquiry as to whether there had been a prior similar incident. Noprior rapes = no liability

ii. Weiner v. Southcoast childcare: playground crash: intentionalcriminal act was enough to make D not liableWhy?

7) Negligent misrepresentation:

a. General: P must show justified reliance on the statement. But courts arereluctant to allow negligence actions for purely economic harm

b. Three tests:

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i. Privity: Ultramares: denies recovery to third parties for auditornegligence in the absence of a third party relationship to the auditorthat is akin to privity.

ii. Intended: Restatement of Torts 2d 552: Liability to third persons of alimited group of persons for whose benefit and guidance he intends tosupply the information or knows that the recipient intends to supply it. (adopted in California in Bily v. Arthur Young p.398)

iii. Foreseeability test: Liability to third parties who were foreseeableusers of the statement: prof doesnt see why foreseeability isnt ok:this is how other types of negligence are decided

8) Negligent interference with economic advantage

a. Rule:

i. Duty of care is:

The extent to which the transaction was intended to effect P,

Foreseeability of harm to P,

Degree of certainty that P suffered injury,

Closeness of connection between the Ds conduct and Ps injury,

Moral blame attached to conduct, Policy of preventing future harm

b. Application

i. JAire v. Gregory : contractor took forever case: duty was found but thatis unlikely nowbad decision.

AFFIRMATIVE DEFENSES

1) Comparative Negligence:a) Prior rule: contributory: any negligence of P=no liability

i) Exception: last clear change doctrine

b) Rulei) Li v. Yellowcab: In all actions for negligence resulting in injury to person or

property, the contributory negligence of the person injured in person orproperty shall not bar recovery, but the damages awarded shall bediminished in proportion to the amount of negligence attributable to theperson recovering.

The court adopted pure comparative negligence. No matter how greatPs fault, P will recover under the above rule.

Ps fault will be compared to all tortfeasors, whether Ds or not.

Last clear chance is abolished.

Contrast w/partial comparative: D must be over 50% liable to be able torecover.

ii) AoR? Ct didnt explain this wellsaid that there are two types: 1. Punreasonably undertakes risk then this fades into comparative negligence.2. If the P is held to agree to relieve the D of standard of reasonable conductthen there would be no libility. This doesnt make sense.

iii) Application:

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What if there is intentional misconduct by D? In CA this precludescomparative N. If D is reckless or if P is willful, wanton, or reckless CA ctssplit.

iv)Calculating liability under Li: P can recover their damages minus theirpercentage of fault from any one D.

2) Assumption of Risk

a) Traditional rule:i) AoR was complete bar to recovery, P must have knowingly and voluntarily,

expressly or impliedly, agreed to assume the risk, to hold the D harmless.

Murphy v. steeplechase amusement : the flopper case: P assumed risk

Barran v. Kappa Alpha frat: hazing fratboy casedumbass: P assumedrisk

Woodall v. Wayne productions: the fly-in-a-kite case: he hadnt actednegligently, and had only assumed risk of wind, etc, not of driver sucking.

b) Rule

i) Knight v. Jewett: tag football case: In the sports context, liability lies only forconduct that is intentional or so reckless as to be outside the range of the

ordinary activity involved in the sport. The defense of assumption of therisk is abolished to the extent that it is merely a variant of the formerdoctrine of contributory negligence.

o Primary assumption: D lacks a duty of care to the P relieves the D ofany liability. (express falls here)

o Secondary assumption of risk: D owed a duty to the P, becomes

absorbed into comparative negligence. Whether P had knowledge ofthe danger is no longer relevant. (implied and negligence falls here)

ii) Exceptions:

Avila v. Citrus Community : in this case the ct held that a pitcherintentionally hitting a batter with a pitch wasnt liable because it is

common in the sport and so the payer assumed the risk. Prof doesnt likethis casesays its a wrong outcome.

Shin v. Ahn : golf case: A P can prevail despite a finding that primaryassumption of risk applies by proving that Ds conduct was intentional orso reckless to be totally outside the range of the ordinary activityinvolved in the sport.

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c) Professional AoRi) Rule

Priebe v. Nelson : kennel case: Certain professionals may not recover forinjuries caused by negligence they are compensated to address.o The firefighters rule can be viewed as a separate rule or as a subhead

of assumption of risk.ii) Policy

Because they are compensated for this risk, Public pays for them andpublic causes the riskWould lead to too much litigationshittyargument, Dont want to discourage ppl from calling fire dept, Betterbenefitsnot true these days.

d) Exculpatory clauses: express assumption of risk. Factors:i) Does it involve a business suitable for public regulation?ii) The party seeking exculpation is performing a service important to the

public;iii)The party seeking exculpation holds himself out generally to the public;iv) The exculpating party has bargaining strength;

v) Is it a standard adhesionary exculpating contract?vi) Has the injured party placed himself under control of the other?vii) An exculpatory clause cannot exculpate liability for gross negligence.

3) Immunities: a defense based on the status of D or relationship of P and D.:Governmental still exisits. There used to be charitable, intrafamily, guest statutesa) Application

i) Metcalf v. San Joaquin County : faulty road signage: P has burden todemonstrate the Ds conduct was unreasonable or that it had notice. If Pcarries this burden , then public entity has affirmative defense of that thecost of fixing risk outweighs the harm it poses.

Joint and Several Liability1) Comparative indemnity:

a) Rule:

i) American Motorcycle : D may seek indemnity from other tortfeasors, whetheror not they had been sued by P

o Joint and Several Liability is retained.

o each party is responsible not for pro rata portion of payment but only

their percentage of faulto A P's recovery from non-settling tortfeasors is diminished only by the

amount that the P has actually recovered in a good faith settlement,rather than by an amount measured by the settling tortfeasor's

proportionate responsibility for the injury.ii) Tech-bilt v. Woodward-Clyde : settling D may be liable to a non-settling

tortfeasor if the non-settling tortfeasor can prove that the amount of thesettlement is not within "the reasonable range of the settling tortfeasor'sproportional share of comparative liability for the P's injuries. Good fairth

b) Calculating indemnity:

i) If P collects all damages from D1, and there are two other Ds, then D1 canseek indemnity from the other Ds for their percentage of fault.

2) Set-off issue

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a) If there is A is 75% at fault and suffers a $100,000 injury. B is 25% at fault andsuffers a $100,000 injury, set-off would subtract damages and just give B 50kand A nothing.

b) CA doesnt allow them: K issue.

3) Prop 51:a) Rule:

i) joint liability is retained for economic losses, but not for non-economiclosses. So if there are two Ds and one isnt solvent, the P can collect alleconomic damages from the solvent D, as well as their damages for theirpercentage of pain and suffering, but P cant collect anything from the otherD.

ii) So how does this change how P and Ds act?b) Rule:

i) Crisci v. Security : screwed on insurance claim: good faith and fair dealing ininsurance K: RELEVANCE?

STRICT LIABILITY

1) Generala) PF case doesnt include proving that D acted in blameworthy way.b) Areas normally covered: wild animals, blasting, poison.

c) Policy: Loss Spreading, Risk reduction: reduce number and severity of accidents, Lossallocation: loss to be internalized by enterprise that engendered it, greater dist than availableunder N, Administrative efficiency, Fairness

d) Rylands v. Fletcher : SL when one brings something unnatural onto land that cando harm if it escapes.

2) Ultrahazardous activities: required for SL in Rest 1, not anymore.a) Necessarily involves a risk of serious harm to the person, land or chattels of

others which cannot be eliminated by the exercise of the utmost care, and (b) isnot a matter of common usage.

3) Abnormally dangerous activities:a) Rule:

i) Rest 519:

One who carries on an abnormally dangerous activity is subject to liabilityfor harm to the person, land, or chattels of another resulting from theactivity, although he has exercised the utmost care to prevent the harm

The strict liability is limited to the kind of harm, the possibility of whichmakes the activity abnormally dangerous.

ii) Rest 520: abnormally dangerous activities: In determining whether an

activity is abnormally dangerous, the following factors are to be considered:

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existence of a high degree of risk of some harm to the person, land orchattels of others;

likelihood that the harm that results from it will be great;

inability to eliminate the risk by the exercise of reasonable care;

extent to which the activity is not a matter of common usage;

inappropriateness of the activity to the place where it is carried on; and

extent to which its value to the community is outweighed by itsdangerous attributes.

iii) Note: You dont need all of the elements to prove SL, with the exception ofcommon usage: you cant have SL for something that is clearly of commonusuage.

b) Application:

i) Siegler v. Kuhlman : burned in gas case: SL was found to meet test

ii) Indiana Harbor : acrylonitrile on RR doesnt pass test for SL: chem. Isnt anissue, but transportation, and that cant really be changed muchso noreason for SL.

iii) Kelley v. RG industries : No SL for guns, says they have nothing to do with

land, manufacture of guns isnt inherently dangerous.iv) Foster v. Preston : mother mink killing babies isnt one reason why we call

blasting dangerous.

1) Products liability:2) General:

i) Rule:

Trainer : manu is SL in tort when an article iso placed on market

o knowing it is t be ued w/o further inspection for defects, in

o does have defect

o

that causes injury to person. Today PL can be based on N, Breach of Warranty (express and implied),

SL in tort, and misrepresentation. Can plead all CoAs at once.

ii) Rest 3d attempts to unify them all: One engaged in the business of selling orotherwise distributing products who sells or distributes a defective product issubject to liability for harm to persons or property caused by the defect.

iii) Note: No SPL: for food, beverages, and drugs: Pillars v. RJ Reynolds, chewtoe case.

PRODUCTS LIABILITY

1) Generala) Types

i) Negligence: failure to use reasonable care in designing, manufacturing orlabeling product

Privity is not required.

ii) Warranty:

Breach of an express warranty (2-313); expressly warrants that goodshave certain qualities but doesnt

Breach of the implied warranty of merchantability (2-314), or;

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Breach of the warranty of fitness for a particular purpose (2-315)iii)Misrepresentation

material misrepresentation of fact

D justifiably relies

D suffers physical harmiv)SL

2) Rest 3: consolidate SL, N, Warrantya) Rule:i) One engaged in the business of selling or otherwise distributing products

who sells or distributes a defective product is subject to liability for harm topersons or property caused by the defect.

ii) A productis defective in design when foreseeable risks of harm posed bythe product could have been reduced or avoided by the adoption of areasonable alternative design.

b) Application

i) Potter : where the Ps were exposed to vibrations from power tools, D askedto use Rest3 test, but this would put burden of proving a better design was

available on Pct didnt like that. Even if there is no alternative design, canhave bad product.ii)

STRICT LIABILITY

1) Specifics:

a) Cigarettes:i) Rule:

in CA there is SL for cig manus but not retailersii) Application:

Roysdon v. RJ Tobacco : doesnt pass defective or unreasonablydangerous tests.

b) Note: In CA there is no SL for pharmaceuticals nor liability for failure to warn forpharmaceuticals.

c) Product warning: Ramirez: no SL for failure to warn in spanish.

2) Note: touch on prox cause and cause-in-fact unless it is perfectly clear.

3) Rationales: Loss distribution, Prevention of accidents; encourage themanufacturer to internalize all costs, Remove the difficulties from Ps having toprove negligence thereby encouraging the settlement of suits, Avoid circuitry ofsuits, Res ipsa loquitur is not an acceptable alternative

4) Types of Defect:

a) Manufacturing Defect An error in construction. Product is broken.

b) Design Defect An error in design or blueprint. The entire line is defective.

c) Warning Defect Lacks adequate warning or instructions. Proper warningmight have prevented the P using the product or might have caused theaccident victim to use it in a safer fashioni) Sometimes a subheading under design defectii) Two types:

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Left off a warning, to where the P wouldnt have used the prod. At alllike in a drug.

Had you given proper instructions as to use, and warned about danger ofnot following them, may cut down on number of defects.

5) Application

i) Greenman : tool hits in the head: A manufacturer is strictly liable in tort whenan article he places on the market knowing that it is to be used withoutinspection for defects, proves to have a defect that causes injury to a humanbeing.

ii) Lee : exploding coke:To recover under SL, P doesnt need to show whatexactly caused accident as long as circumstantial evidence leads to areasonable inference that it was more probable than not that product wasdefective when it left Ds control.

6) How to define defect?

a) Barker: use this rule if the setting is in CA.

i) Consumer expectation Test: A product is defective in design if the Pproves that the product failed to perform as safely as an ordinary consumer

would expect when used in an intended or reasonably foreseeable manner(ordinary/consumer test) OR

ii) Risk Utility Test: The P proves that the products design proximatelycaused injury and the D fails to prove, in light of the relevant factors, that onbalance the benefits of the challenged design outweigh the risk of dangerinherent in such design. (risk/utility test or excessive preventable harmtest).

b) Soule (p.546) limited Barkerby holding that its ordinary consumer test cannotbe applied if the allegedly defected product is one that is too technologicallycomplex for an ordinary consumer to have an expectation.

c) Restatement 2d 402A: this is used by most state: proposes strict liability for

anyone who sells a product in a defective condition unreasonably dangerous tothe user or consumer of his property.

d) Courts differ as to whether a product can be deemed defective if the dangeris commonly known to the public. Comment to 402A requires strict productsliability only where the product is, at the time it leaves the sellers hands, in acondition not contemplated by the ultimate consumer, which will beunreasonably dangerous to him.This is not the law in California.

7) Defenses

a) Unavoidably unsafe prods

i) Rule

1. product is inherently unsafe and known to be unsafe by the ordinaryconsumer who consumes it with the oridinary knowledge known to thecommunity AND 2. product is a common consumer prod intended forpersonal consumption, sugar, butter, etc.

ii) Application

Gray: boomdown machine: no liability because ordinary consumer knowsof the danger of the machine. Two wats to get to SL: consumerexpectation test OR the prod is unreasonably dangerous, despite whatthe reasonable consumer would think.

a) SotA defense:

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i) Rule

In a design defect case, is there a defense that at the time of themanufacture of the product, the defect could not have been known to themanufacturer? Unclear in CA. In a failure to warn case, can amanufacturer be held liable for failing to warn of dangers not knowable atthe time of the manufacture?Yes SotA defense in CA.o Most states to have SOTA defense.

ii) Application

Basheda : asbestos case: minority view, held no SL for failure to warn.

iii) Policy

against: incentivize manus to make safer prods, hard to determine whatmanus could have known, manus could intentionally not improve prods,how to define what is SotA?

For: incentivize new prods,

b) Federal Preemption: Premised on the Supremacy Clause of the United StatesConstitution

Express preemption A federal statute or regulation expressly forbids

state regulations or common law actions on the subject matter. Field preemption A federal statute or regulation is sufficiently

comprehensive that there is an inference that any state statute orcommon law action is prohibited.

Conflict preemption A state law or common law action is prohibited ifit actually conflicts with a federal statute or regulation

ii) Application:

Riegal v. Medtronic: heart catheter: fed regs preempted the state law inthis case, so there was no SL against manu nor N against the doc.

McKenny v. Purepac : pharm case: Fed req that a generic have the samelabeling as a reference listed drug doesnt necessarily result in fed

preemption of a stat tort action against generic manu for failure to warn.P can sue for failure to warn if risk was knowable or known.

c) Economic loss:i) Rule:

not covered under SL but under UCC.ii) Application:

Two Rivers: bull sperm case: the loss was intangible economic loss, so itisnt covered by SL. SL only covers physical harm to the prod itself, theperson, or other property.o Policy: hard to saysomething says SL is just for physical harm

d) Comparative Negligence in SL:i) Rule: In a strict liability case, Ps recovery will be reduced by comparing the

proportionate causal contribution of the defective product with the causalcontribution of the Ps conduct. If P is deemed to have assumed the risk, Psrecovery can be diminished or even barred.

ii) Application:

Daly v. Gen Motors : AoR was included in case where drunk guy didntwear seatbelt or lock door, so when faulty door latch broke and led to hisdeath his negligence was deducted from recovery.

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e) Component Parts

i) Rule: A component parts manufacturer can be held strictly liable in torts if itwas delivered to the prime manufacturer in a defective condition.

o I understood the test to be: Component manu is liable for defective

part if it was defective when it left manu, or when the componentmanu was involved in design of integrated prod: and so did the rest ofthe class, but prof goes with rule above

ii) Application: Gonzalez: airbag blind case: manu could be liable under SL if the prod

was defective when it left them.iii) Policy:

o why would we want to have liability stay with the prime manu rather

than going down to components manu?(i) There is better loss distribution that way,(ii) The auto co may want to keep the liabilityso that the smaller

components manu stays in business.

DAMAGES

1) Nominal damagesa) Pay $1 to support injunctive relief (or maybe to allow punitive damages

2) Compensatory damages

a) Best terminology is economic (also special v general)/noneconomici) Economic = med bills, wages, extra expensesii) Noneconomic pain and suffering

b) Rulei) In CA you can present evidence of loss of enjoyment of life but the damages

for that are combined with pain and suffering.

ii) Loss of enjoyment requires at least some degree of cognitive awareness.c) Application

i) McDougal v. Garber : found that loss of enjoyment shouldnt be separate andthat P wasnt eligible because she had no awareness of loss of enjoyment.

d) Calculating pain and sufferingi) Per Diem: ask a jury how much they would be willing to be compensated to

endure the pain that P feels per daythen multiply by life span.

CA does allow this, a lot of states dont.3) Collateral sources

a) Rule

i) If the collateral source rule applies, payments to the P from a collateral

source (one that is totally independent from the D) are not disclosed to thejury

b) Application

i) Helfend v. Southern CA transit: where the Ds bus hitPs car and they wantedhis insurance as evidence. Wasnt allowed based on the collateral sourcerule.

ii) In CA this rule doesnt apply in cases of workers comp, medmal statues, andgov code in limited sitches (so cal source info is allowed into evidence).

c) Policy: incentivize ppl to get insurance

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i) Pros: helps cover attorneys fees that usually arent considered in damagesaward.

ii) Con: may allow for a double recovery (unless subrogation)d) Rule

i) Subrogation: where the D pays back the insurer instead of double recovery

Calculating subrogation:o HYPO: P (subrogor) received $5,000 from his health insurer (subrogee)

for injuries sustained when D injured him. After trial, the accident isdetermined to be 20% the fault of the P and 80% the fault of the D.Total damages were $20,000.

o If the collateral source rule applied and If the P and the health insurer

had a subrogation agreement, how much money does P owe to theinsurer?

o So P gets 16k from D

o And P would have to pay insurance co either 5k or 80% of 5k

depending on the subrogation clause. If K is unclear then you resolveagainst drafter.

o

What about the 4k damages? Insurance co will cover that. Subrogation isnt easy process, says prof.

4) Punitive damages

Granted for malice (ill will, hatred,, reckless disregardb) Rule

i) Factors:

the degree of reprehensibility of the Ds conduct;

the disparity between the actual or potential harm suffered by the P andthe punitive damages award; and

The difference between the punitive damages awarded by the jury andthe civil penalties authorized or imposed in comparable cases.

c) Rulei) Can be unconstitutional if excessive: ration of >9 times compensatory

damages is probably too much.

Lower compensatory damages will allow for a greaterration between thetwo damages.

d) Application

i) State Farm v. Campbell: where the D here brought a suit against state farmafter they lost lawsuit after representing him and refused to pay up. He got1 million in compens. and 145 million in punis, which was reduced.

e) Policyi) Pros: Deterrent, enforces public policy, justice?, allows for recovery when

there hasnt been actual quantifiable damage (like trespass), allow ppl torecover despite flooded crim system,

ii) Con: Duplicative of criminal law, may depletse money for other Ds, toosusceptible to jurys emotional bias, shouldnt act as gov. entity

VICARIOUS LIABILITY

1) General

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a) Vicarious liability is the doctrine that holds one party liable because of thatpartys relationship to a tortfeasor.

b) The party held vicariously liable need not have done anything negligently, suchas hiring or supervising.

2) Respondeat superiora) Rule

For an employer to be liable for the tort of an employee, the act must

have within the scope of employment. Employer may be liable for the intentional tort of an employee if the

occurrence is foreseeable and not too unusual.ii) Application

Rodgers v. Kemper : construction worker case where they were within thescope of employement hanging around after work (conferring a benefitbecause they were available to work) and the employer approved of thatcustom.

b) Rule

i) An employer is not usually held liable for the negligence of an employee

coming or going to work. Exceptions

o errand:

o travel: getting paid for travel

ii) Application

Caldwell v. ARB inc: no liability for accident that happened onemployees way home.

iii) Indemnification:

Labor C. 2802: An employer shall indemnify his or her employee for allnecessary expenditures or losses incurred by the employee in directconsequence of the discharge of his or her duties, or his or her obedience

to the directions of the employer, even though unlawful, unless theemployee, at the time of the directions, believed them to be unlawful.(2001)

Labor C. 2865: An employee who is guilty of a culpable degree ofnegligence is liable to his employer for the damages thereby caused tothe employer. The employer is liable to the employee if the service is notgratuitous, for the value of the services only as are properly rendered.(1937)(Emphasis added.)

How do we reconcile these? Time? Culpability?

Collecting damages: P can sue either or both, and then whoever paysup can seek indemnity from the other side.

c) Policy/rationalei) Otherwise P might not be able to recover since many Ds would be

judgement proof, but employers usually have insuranceii) Because employee wouldnt have acted if not for the employment itselfiii) Incentivizes the employer to hire better employees.

3) Independent contractorsa) General Rule

i) A contractee is ordinarily not liable for the torts of an independent contractor

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ii) Excpetion: A contractee can be vicariously liable for the torts of anindependent contractor if:

The contractee retains substantial control.

The contractee hires a contractor he or she knows to be incompetent.

The work is inherently dangerous.

The contractee owes a nondelegable duty by law or contract concerning

the quality of the work.b) Application

i) Mavrikidis v. Petullo : hot asphalt case: not liable4) Vicarious liability for acts of kids

a) Rule

i) Although a parent can be held liable for his or her negligence in supervisinghis or her child, the common law rule generally does not hold a parentvicariously liable absent such negligence. Exceptions to this rule include:

a parent entrusting a child with a dangerous instrument

A child acting as an agent for the parent

A parent consenting to or ratifying the wrongful act.

ii) Today, there also are many statutory exceptions to this rule, particularlywhen the child is driving a motor vehicle.

b) Application

i) Wells v Hickman : kid murder case again: The defense is saying that thestatute limiting liability was meant to overrule common law but the ct saidthat it wasnt overruling it. But that in this case there was no negligence.

MEDMAL

1) MICRA: Medical injury compensation reform act

a) principal provisions of MICRA have been held constitutional in CA.

2) Provisionsa) Parties can demand periodic payments for future damages against health care

providers, which can be modified on the death of P. (insurance cos pay lessthis way)

b) Ds can introduce collateral source info, but jury cant be instructed on how touse it.

c) No source of collateral benefits introduced into evidence can seek subrogationfrom P.

d) Nonecon damages limited to $250k: can deter ppl from bringing suit, lawyerscant take cases that pay so little.

e) Have to give 90 days notice to health care provider before bringing suitf) Curtails contingent fees that attorneys can charge: again makes it harder for

ppl to get lawyers.

WORKERS COMP

1) Generala) Two scenarios: worker wants to get WC so they have coverage or they want to

avoid WC so they can sue employer.

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b) The statute shall be liberally construed to extend benefits.c) Liability is not based on negligence.d) Recoveries are invariably less than would have been available in a successful

tort action for a similar injury.e) The employer, except in exceptional circumstances, receives an immunity from

a suit in tort. The immunity does not apply to third party tortfeasors.f) If employer hasnt bought WC insurance, then employee sues and can get

either WC or tort.2) Rule

a) The injury must be arising out ofand in the course of employment.3) Application

a) Bletter v Hartcourt: bust a move case: was within the scope of his employmentso P got workers comp for dance move injury.

b) Ralphs Grocery v. Workers comp appeals board: P got heart attack afterlearning he was rehired but part time and w/o benefits: Holds that P doesnt getworkers comp because: he wasnt employed at the time, but the convo wasabout employment; he wasnt at work; the act wasnt within the course ofemployment

c) Hypo: carpal tunnel: can probs recover.

d) Johnson v. Stratlaw : teen driving home late: Parents tried to get out of workerscomp so they could sue and have a higher recovery. Tort suit is barred by WCbecause the special risk exception applies to the normal coming and going rule.

e) Fermino v. Fedco: false imprisonment by employer: SC CA, 1994, pg 669: theemployer held employee for suspected shoplifting. Issue: whether the FI falseunder WC immunity. NO: worker can sue and isnt bound by WC in case ofintentional injury. If there is a criminal suit, then WC doesnt bar it.

AUTO NO FAULT SYSTEM

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1) Arguments in favorof adopting a comprehensive automobile no fault plan. Thepresent system:a) Is too costlyb) Negligence system provides that many injured in automobile accidents will

receive nothing.c) Compensation is slow.d) Leads to a great volume of litigation.

e) Incentive to fraud: abuse of insurance claimsf) Low cost will compensate the poor more, while current system gets a higher %

of compensation for rich than poor.

2) Arguments againstadopting a comprehensive no fault plan:a) Those causing injuries are not held liable for the harm they cause, leading to

misallocation of resources.b) Loses the deterrent effect of our present system, leading to less safety.c) Eliminates the corrective justice aspect of the tort system.

DEFAMATION

1) Generala) Common law that has been changed by statuteb) Balance of free speech v. personal rights of reputationc) cant defame the dead.d) Defamation is from perspective of reasonable as well as right-thinking

person2) Definitions

a) Defamation a false published statement holding another up to scorn orcontempt and harming the persons reputation

b) Libel defamation in written formc) Slander defamation in spoken formi) (modern means of communication such as radio present difficulties of

categorization)

d) Inducement and Innuendo showing that a statement, not defamatory on itsface, has a defamatory meaning

e) Colloquium Showing the statement was of and concerning the P

f) Slander per se Slander whichi) Impugns a persons business reputationii) Asserts a loathsome diseaseiii) Accuses the person of a serious crime

iv) Accuses the person of serious sexual misconductg) Libel on its face A statement libelous without the need to prove extrinsic

facts.i) (Libel per quod A statement which is only libelous with proof of extrinsic

evidence).3) Common law action

a) General

b) Statement must be published: Libel is what you see, slander is what you hear(confusing because of modern tech) (CA)

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c) Radio can be libel if it is read from a written thing4) Slander

a) P had to prove actual damages to recover, unless it was type of slander per se.

b) Relational damages: action taken by third party that hears defamation, mustbe economici) Once some relational damages shown, then all damages are compensable

(emotional distress included).

c) Rulei) To state a cause of action, must be published to third person, must be

untrue, must prove either relational damages or that the statement falls intoone of the slander per se categories.

5) Libela) Rule

i) Maj rule: no need to prove relational damages of defamatory writing to tohave CoA

ii) Min rule: need relational damages (CA).b) Rule

i)Maj rule: if statement is libelous on its face (libelous without extrinsic fact),then actionable without proof of relational damages. However, if thestatement is libelous only by pleading extrinsic facts, then it isnt actionableunless P shows special damages or that it fits in one of the four categories.

6) Notea) All of the categories and rules deal only with one question: bring cause of action

despite being unable to prove relational damages. Important because if canprove any small amount of relational damages can recover all of personaldamages as well.i) if spoken statement feel into slander per se, then P didnt have to prove

relational damages to recover punis or emotional damages

ii) CA: if written statement was libel on its face, P didnt have to prove therewere relational damages to recover for emotional or punis.iii) Not the case in CA: if a written statement is slander per se through proof of

extrinsic facts, P did not have to prove there were(relational) damages toget punis or emotional damages.

7) Applicationa) General

i) Kaplan v. Newsweek : statements made about the Prof werent defamatorybecause statements as a matter of law werent defamatory and they wereopinions, not facts. Prof says this is borderline

ii) Retractions: if P asks for retraction and doesnt get it then punis can be

awarded. If P doesnt ask for a retraction then no punis. Also considersprominence of the retraction.

iii) Bidnram v. Mitchell: nude marathon case, writer published about phsyc innovel.

Rule: whether a reasonable person reading the book would understandthat the fictional character therein pictured was, in actual fact, the Pacting as described.

iv)Weidman v. Ketcham : Postcard case: colloquim hasnt been shown, or thatthird party req was never met.

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Note: how careless the D was makes a difference in outcome.8) Constitutional privileges: Public figures, etc.

a) Rules

i) All purpose: public figure in all contexts: they have to prove NYtimesmalice.

ii) Application

New York Times v. Sullivan: If a media defames a public official or apublic figure, the constitution requires that the P prove by clear andconvincing evidence that the statement was false and made knowing itwas false or made with reckless disregard for whether the statement wasfalse. (NYtimes malice)o to be limited pub figure, P has to have voluntarily entered pub arena

o gov agencies cant sue for defamation

o to get punis, you need to show common law malice, in addition to the

NYTM that is needed to get presumptive damages.

iii) Limited: when they are just public figure in a particular context. To havedefamation CoA, they have to 1. thrust themselves in to public spotlight and

2. the statement has to be concerning that limited purpose for which theyare a public figure.

iv)Private person in matter of pub concern: P must show that statementwas false and made through fault. Without showing of NYtimes malice thereare no punis or preseumed damages, and the above rules dont apply if theP is not involved in matter of public concern.

Gertz v. Welch: defamation of lawyer as a commie: he wasnt publicfigure b/c he didnt thrust himself into spotlight, so he doesnt have toprove NYtimes malice. States decide standard of liability for publisher ofdefamation of private individual, but states cant award punis orpresumed damages unless there is NYtimes malice.

v) Private person in matter not of pub concern: unclear what P must showin terms of proof of foult.

Dun & Bradstreet v. Greenmoss Builders: financial report that wasinaccurate, punis and presumed damages were allowed w/o provingNYtimes malice, because no need to worry about chilling free speech.

Philadelphia News : P has burden of proving that the defamation is false

vi)Ca: Miller: these protections do apply to non-media speakers as well.9) Absolute immunities to defamation:

a) Rule

i) Article I, Section 6, Clause 1, of the U.S. Constitution states in part, "for anySpeech or Debate in either House, [senators and representatives] shall notbe questioned in any other place.

b) Application

i) Hutchinson v. Proxmire: golden fleece case: D senator is still liable fordefamation because statements were made in a press release which isntprotected by constitution.

c) Rule

i) 47 U.S.C. 230 -- Communications Decency Act of1996 immunizes internetproviders and users who republish third partys defamation

d) CA rules

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i) Statements made in proper discharge of official duty (leg, judicial, etc) areabsolutely privileged

ii) Qualified privilege to statements made to persons who have interest in thematter, if done w/o malice. (ex: giving a reference)

iii) Privilege for fair and true report of most pub proceedings in a pub journal.iv) Application

Brown v Kelly : D newspaper argues that their statements are privileged

because of the publics common interest in the news. Common interestdefense doesnt flythat would make anything privileged.

INVASION OF PRIVACY

1) Generala) Conflict of free speech v right to privacyb) Fourth amendment: search and seizure

2) Intrusion upon seclusiona) Rule

i) One who intentionally intrudes, physically or otherwise, upon the solitude orseclusion of another or his private affairs or concerns is subject to liability tothe other for invacion ot his privacy, if the intrusion would be highlyoffensive to a reasonable person.

No need to show any publication

Cal Torts: the action for intrusion has two elements:o Intrusion into a private place

o Ina manner highly offensive to a reasonable person

b) Application

i) Peirson v. Dodd: P senators employees snuck into office and took info, gaveit to reporters who knew how it was obtained, and then publish story on it. D

brings action for intrusion. Holds that these Ds arent liable because theydidnt actually intrude. Prof thinks that this is a close case, that if buyers ofstolen chattels are liable that these guys should be.

ii) Dietemann v Time : D reporters entered into the home of P, a quackery doc,with his permission, and recorded and took pictures without him knowing. Dclaims immunity by 1st amendment, P claims invasion of privacy: intrusion.Finds for P.

3) Appropriation and right of publicitya) Rule

i) Traditional rule: one who appropriates to his own use of benefit the name orlikeness of another is subject to liability to the other for invasion of privacy

ii) CA: give statutory causes of action for abridging the right of publicityb) Application

i) Neff v Time: guy with fly down drunk at gave feature in Sports Illustrated.Prof says Ct should have found for D on implied consent, not by saying thatthe photo wasnt for commercial purposes so no appropriation of name orlikeness, and no pub exposure of private facts because he was in public.

4) Public disclosure of private/embarrassing factsa) Rule

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i) One who gives publicity to a matter concerning the private life of another issubject to liability to the other for unreasonable invasion of privacy if thematter publicized is of a kind which 1. Would be highly offensive to areasonable person, and 2. Is not of legitimate concern to the public.

Exception: if D knew that the person had a particular subjectivesensitivity to something, then the objective standard of offensivenessdoesnt necessarily apply.

b) Applicationi) Sipple v. Chronicle publishing : P stopped shooter from hitting the pres and

sues the news co for outing him. Ct holds it was publicized, was a legitpublic concern, and wasnt private matter. What about highly offensive?

5) False light in the public eyea) Rule

i) Pub disclosureii) Placing the P in a false lightiii) Which would be highly offensive to a person of reasonable sensibilities.

b) Application

i) Cantrell v. Forest City Pub : SCUS 1974, 765: P and kids lost the dad in abridge collapse, reporters covered the story, interviewed the kids w/o mombeing there, and included huge misstatements in the report.

ii) Hustler v. Falwell: P was reverend/pub figure who had been featured inHustlers parodic ad of first time with momIssue is whether Hustler wasprotected by First Amendment. H argued that there was a different standardthan NYTM because this was IIED not defamation. Ct rejected differentstandard, took away damages awarded to F originally.

Unclear if Hustler applies to private persons.c) Note

i) Differences in defamation and false light

D requires that victims reputation be seriously damaged by the falseassertions.

Publicity is reqd for false light, but defamation only requires publication

Both private and pub figures must prove NYTM to recover in FL, but inDefamation only pub figures and officials have to prove NYTM to recoverat least some damages.

ii) Note the overlap between this and defamation: NYT malice must be shownby public officials, pub figures or private persons in matters of pub concern.

6) False light, defamation, and IIED overlap.

Note: insurance for neg, not intentional torts.

Torts Outline 2l

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