final torts outlines 2011

8/3/2019 Final Torts Outlines 2011

1/48

Torts Outline

I. INTRODUCTION

Tort Law

1) Def:a) When one person acts in a way that causes injury to another person. Noncriminal response to an

injury.

b) A collection of principles describing the legal system's civil (non-criminal) response to injuriesone person inflicts on another including an action for bad faith breach of contract

2) Categories of Tort Law:a) Intentional Torts- Intended injury, Blameworthyb) Negligence and Recklessness- Certain standard of care. You have been reckless, carelessc) Strict Liability- didnt do anything wrong but an accident happened.

3) 5 Functions of Tort Systema) Corrective Justice- correcting/restoring moral balance. Fault based torts. Court system is moving

away from corrective.

b) Optimal Deterrence, Specific Deterrence- lawsuit for defective car settlement deters Ford from

making lemons for everyone.c) Loss Distribution- Spread out the loss. Large # of people baring a small loss. Insurance.

d) Compensation- Compensate victim for the loss that they suffered. Can be part of other types of

function of tort.

e) Redress of Societal Grievances- Enforce societal norms.

3) Competing Policies on how tort law serves societya) Compensation- to make victim whole againb) Deterrence

4) Tort law can influence public policy and public policy can also influence tort law. B/c of this courtswill come up with public policy rationales for decisions

II. INTENTIONAL TORTS

Intentionally Inflicted Injury

1) Intent:a) Def: the actor desires to cause consequences of his act, or believes that consequences are

substantially certain to result from it.

b) Def: It does not matter what age the (P) or (D) is. Children are liable for Intentional torts.2) Test of Intent:

a) Desire/Purpose Intent: actor desires to cause the consequences of his actorb) Knowledge/Substantial Certainty Intent: believes the consequences are substantially certain to

result from the act; even if that end act is not desired

3) Intenta) Subjective Test for Intent- Defendant desired to contact the plaintiffOR was substantially certain

that a contact would occur as a result of the defendants act.b) Not intent to harm, e.g. battery but intent to cause offensive or harmful contact

a) eggshell/thin skull doctrine; doesnt matter if D knows of special fragile condition; D is stillliable; take the P as you find them (except intentional or reckless infliction of emotional distressthere is an exception to this exception thoughsee infliction of emotional distress sections)i) need not beforeseeable (not negligence); presumed to have intended consequences of tort;

proof less important

(1) E.g. even though intending nothing more than a practical joke; cant dress up intent innegligence clothing;


2/48

4) Prima Facie Elements of Intentional Torts (with exception of intentional infliction of emotionaldistress the elements are):

a) Affirmative actb) intentc) invasion of a protected interest (e.g. in battery, protection of the interest in freedom from

intentional and un-permitted contacts with the person)

d) causation in fact - not as stressed in intentional torts as in negligencee) damages or injury to plaintiff

5) Mistakea) Mistake in good faith and reasonably so and unavoidably does not by itselfserve to absolve D, so

long as the result was intended; E.g. shooting anothers dog, thinking it was a wolf; bullet in theanimal was intended; trespass to chattel

i) Privilege exception: reasonable mistake; socially important interest6) Insanity

a) Policy considerations take precedence over fault principle; if capable of entertaining intent toinjureliability; regardless of whether the insanity produced the intent

b) Policy Consideration: Injured party shouldnt bear the loss; if D is financially able should paythe loss

c) Efficiency principle; unwise to expend resources attempting to resolve legal question mired inuncertainty or complexity e.g. as in criminal law

7) Transferred Intenta) D liable if: If D acts intending to cause any of the five original trespass torts and injury occurs

to that person or to another person, he intends to commit transferred tort as welli) Battery; Assault; False imprisonment; Trespass to land; Trespass to chattel; E.g. throwing

erasers across classroom in horseplay, accidentally hits third party

b) Can transfer another tort to same person or same tort to another personc) Cannot have transferred intent for conversion or intentional infliction of emotional distress.

8) Principle and Agencya) Respondeat Superior: let the master answer; principle responsible for actions for acts of the

agent ifwithin the scope of employment

b) relation of agency does not depend on express intent; can be an implied intention to create therelationship through words, conduct, circumstances;Battery1) Tort of battery protects a persons right to bodily integrity, which is the right to be free from

intentionally inflicted contact that is harmful or offensive.

a) Insanity: As a matter of policy, New York courts hold mentally ill persons responsible for theact of battery

2) Elements of Battery1) An Affirmative Act- external manifestation (Its visible) of the actors will (Chose to do it).

2) (Subjective) With The intent To Cause Harmful or Offensive Contact With the Person of Another.

Actor desires to cause consequences of his act, or that he believes that the consequencesare substantially certain to result from it. Look at the act subjectively/ from the

defendants point of view.

3) (Objective) Results Harmful or Offensive Contact With Another Results Either Directly or

Indirectly. Whether it would be harmful or offensive to a reasonable person in society.

Intent (in minority jurisdictions P must prove duel intent, see White)

Single Intent- all the defendant has to do is intend the contact.


3/48

Dual Intent- You have to intend the contact and you intend it be harmful or offensive. Do not have to

intend the injury.

3) Damagesa) Compensatory- compensating the plaintiff for the injury. Trying to make them whole. Pain &

Suffer generally small- the number goes up with life left.

b) Nominal- Similar to compensatory but with no implied injury. Intentional torts not negligencec) Punitive- punish defendant. Send a message.

4) Cases:Intentional Torts

A) Intent to Contact w/o permissiona) Waters v. Blackshear D had intent to contact with firecracker; P cannot bring suit for

negligence for harm from an intentional tort. P should have brought suit for battery instead.1) Affirmative act- Placing firecracker in the shoe.

2) Subjective element- What did the defendant think he was doing his desire

3) Objective element- severely burned (P)

b) Polmatier v. Russ Intent to contact; Mentally Insane person can still have intent to contact b/cD meant to cause harm which was shown through testimony; It doesnt matter that D did not

intend the exact harm (death in this case), it only matters that D intended contact.1) Affirmative act- Beating with beer bottle, Shot the (P)

2) Subjective element- What did the defendant think he was doing his desire

3) Objective element- (P) dead.

B)Intending Contact That Is Harmfulaa) Act Requirement & Intent Requirement

a) Nelson v. CarrollIntending contact that is harmful; D still liable even though he didnt intendthe specific harm (of shooting P when all he meant to do was hit P with the gun). All that is

needed is intent to make contact not intend the actual harm.

i) Restatement 2nd distinguishes between harm and injury. Injury denotes the invasion of anylegally protected interest of another. Harm denotes the existence of loss or detriment in fact

of any kind to a person. In an intentional tort case it is only required that D inflicted a legally

recognizable injury on P. Damages however are measured by the amount of harm suffered.Indirect contact- bullet that hit Carroll.

1) Affirmative Act- (a)hitting with gun,unintended gunshot

2) Subjective element- Actors will 2) Intended some contact. 3)Results indirect contact by pistolwiping (P) & gunshot.

3)Objective element- Harmful or Offensive: Whether it would be harmful or offensive to a

reasonable person in society. Pistol wiping and be shot is.

C) Injury vs. Harm1) Injury: the invasion of any legally protected interest of another. To commit an

intentional tort, actor only needs to intend injury.

2) Harm: the existence of loss or detriment in fact of any kind of person- the

measure of how bad the hurt is.

D) Intending Contact that is OffensiveObjective Test for Offensiveness- Evaluate defendants conduct in terms of societalstandards and a reasonable sense of dignity

b) Leichtman v. WLW Jacor Communications intending a contact that is offensive; smoker blew

smoke in face in non-smoker advocates face; No matter how trivial the incident, a battery isactionable, even if damages are only one dollar; Tobacco smoke can constitute physical contact

and P has a stronger case that contact was offensive b/c he was a known anti-smoking advocate;

in this case nominal damages would be awarded to vindicate Ps right, but if P was asthmaticthere could possibly be extensive compensatory damages under the thin skull P doctrine.


4/48

Offensive- defendant gets nominal damages- right to bodily integrity has been violated but no

damages really occurred. Offensive contact to a reasonable (Objective) sense of personal dignity.

Look at a reasonable ordinary person (Not Sensitive) would be offended by the contact. We do

not look at the (P) but at an ordinary person.

*Exception- if the defendant is aware of the particular sensitivity of the plaintiff, the court will

take that in account. *Aware of sensitivity and disregard= its offensive.

Rule: battery because offending personal dignity.Nominal Damages- right to bodily integrity has been violated

1) Affirmative Act- Blowing smoke in (P)s face. Will- yes, Contact-yes.

2) Subjective element- intent (D) repeatedly blowing the smoke particulateMatter in (P) Face. Indirect offensive conduct on the side of thedefendant.

3) Objective element-

Offensive means disagreeable or nauseating or painful because of outrage to taste and

sensibilities. Offensive contact is offensive to reasonable sense of personal dignity.

Subjective Test for Intent- defendant desired to contact the plaintiff OR was substantially

certain that a contact would occur as a result of the defendants act.Objective Test for Offensiveness- Evaluate defendants conduct in terms of societal standards

and a reasonable sense of dignity.c) Andrew v. Peters(Single Intent Approach) intending contact that is offensive; this is the knee

tapping case in which one employee (a man) tapped the back of the knee of another (a woman)

and she suffered injuries; does not matter that harm was intended as long as contact was

offensive; court says that this act was easily offensive; (D) is responsible for the unforeseenresults. an objective test would be used in this situation of looking from Ps point of view todetermine if the contact was offensive to personal dignity; context of case (workplace, and parties

are of opposite sex) provide more proof that contact could be considered offensive.

Bodily contact offensive if it offends a reasonable sense of personal dignityRule: Nature of intent required is irrelevant- intent to invade.

d) White v. Muniz (Dual Intent)Minority position of dual intent; must have appreciated theoffensiveness of the contact.

i) In future cases a plaintiff: P would have to show that there was dual intent: intent to commitan act and intending act to be harmful or offensive (so they can appreciate the result of theiractions). The court uses Horton v. Reeves; 3yr old and 4yr old (that child must appreciate

actions).

Difference between Polmatier. Russ had intent to kill, even though he was insane. In this

case, D lacked the mental state to recognize that her acts were harmful- the action must be a

voluntary movement. If she had been on the street and struck a pedestrian would be different

b/c there would be a duty.

Whether a battery of dual intent. Does the defendant need a dual intent.

1. Contact

2. Harm or Offend- intend to. This element can fail.

e) Taylor v. Barwick Pro se (represent themselves) Case about nominal damages; inmate casewhere the guard made a comment and poked the inmate with a stick found on the ground; courtsshould rule on cases on intentional torts even though only nominal damages would be awarded;

de minimus (Latin expression meaning minimal things; to say that the law is not interested in

trivial matters; means something which is unworthy of the law's attention) argument is brought up

when court talks about prisoner makes mountain out of molehill; however public policy issue:

court doesnt want prison guard personnel to taunt inmates. Flipside is that they dont want a

bunch of frivolous lawsuits from inmates.


5/48

Nominal damages- intention tort cases where the plaintiff suffered invasion of bodily integrity but

no harm. Intentional torts not negligence.

Assault1) The intentional tort of assaultprotects ones interest in being free from the apprehension of imminent

harmful or offensive contact2) In Texas only there is a fusion of assault and battery in both criminal and civil.3) A) Elements:

a) Affirmative Voluntary Actexternal manifestation of the actors will. Words alone are typicallynot sufficient for affirmative act.

b) Intent (subjective)- to put the (P) in Apprehension ofImmediate harmful oroffensive contact.Or reasonably certain to place (P) in Apprehension of an immediate harmful or offensive contact.

c) Results (objective)- in placing the plaintiff in apprehension of an immediate harmful or offensivecontact. (Battery). Would a reasonable person be placed in apprehension of harmful or offensive

contact.

d) Immediate- Not conditional- next thing that is going to happen.Need not foresee the result of how much apprehension the actor creates.

4) Cases:B) Intending Apprehension of Imminent Contact.a) Cullison v. Medley the jump astraddle case; case showing P was in apprehension of imminent

harmful or offensive contact; court applied objective test that apprehension must be one thatwould normally be aroused in the mind of a reasonable person; court rules that from the facts a

jury could reasonably conclude there was an assault and it was error for the court to grant

summary judgment.

i. Apprehension is one which must be normally aroused in a reasonable person

ii. Psychological suffering not relevant to finding assault, but useful for damages as part of the

harm suffered.

iii. Assault is not the amount of harm; but was there a threat

b) Brower v. Ackerley case about reprehensible conduct in which P made threatening phone callsto D, but was not assault b/c no imminent threat; the defendants words threatened action in thenear future but not imminent future. Therefore calls did not constitute an assault. B/c the threat

was over the phone there was no imminent threat of harm. Cullision was more imminent and in

Browerthe language signifies that plaintiff could have escaped. The requirement of imminence

is an element of assault b/c of judicial economy reasons that if the requirement was not present

cases would flood the courts in which it would have been possible for the P to escape.

i. Phone calls did not provide imminent threat-threat must be immediate in nature to be assault.

ii. To prove assault, must show immanency + intent

iii. Fear not necessary element

iv. Words alone are not enough to make an actor liable unless together with other acts or

circumstances they put the other in reasonable apprehension of an imminent harmful or offensive

contact with his person.v. Apprehension of imminent threat based on perception of victim.

C) Transfer of Intent Among People and Between Tortsc) Hall v. McBryde illustrates transferred intent among people and torts in which D claimed that

he only meant an assault on the people in the car by shooting at them and not a battery, but court

said intent can be transferred the intended assault to battery and D could be responsible for

battery if it was found that the bullet that struck P was from his gun.

i. Restatement: if act is done with the intention of affecting a third person, but causes harmful

bodily contact to another, the actor is liable to such other as though he intended to affect him.


6/48

ii. Since he wanted to inflict assault on others, the intent & the actual tort transfers to his actual

victim.

Transfer of Intent between Torts -Plaintiff who suffers a harmful or offensive contact can

recover for battery even if defendant only intended assault. Alternately, Plaintiff who suffers

apprehension of imminent harmful/ offensive contact can recover for assault even if the defendant

only intended battery.

Transfer of Intent among People- Defendant that intends to commit assault and/or batteryagainst one person that ends up committing assault and /or battery against another will be liable to

that other as if they were the intended target.

Intentional or Reckless Infliction of Emotional Distress

1) General:a) The tort of intentional infliction of emotional distress protects a persons right to be free from

serious emotional stress.

b) Courts are very reluctant to let suits be brought due to reasons of possible fraud, and determiningwhat is outrageous.

c) P has to show the D intended to cause emotional distress. Another limitation is that P must suffersevere emotional harm and conduct must be outrageous.

2) Elements:a) Intent or recklessnessb) Outrageous conductc) Causationd) Volitione) Results in severe Emotional Harm

3) Transferred Intenta) Not allowed at common law because not one of the original five torts in the writ of trespass on

the case: Battery, assault, trespass to land, trespass to chattels and false imprisonment.

b) Rule criticized as irrationalc) Restatement allows recovery in two situations:

i) Member of immediate family of the victim, present at the time of the extreme and outrageousconduct, regardless of physical harm

ii) Not member of the immediate family of the victim, present at the time of the extreme andoutrageous conduct, and distress resulted in bodily harm

4) Cases:a) Zalnis v. Thoroughbred Datsun Car Co. Outrageousness; the car dealership case in which

salesman yelled at a buyer after trying to get her to return a car b/c the dealership lost money on

the sale; reasonable minds could differ if the car dealers actions were outrageous and therefore it

should go to jury; this case showcases the exception to the general rule about infliction of

emotion distress on a thin skull P that the reasonable person standard is only not used when the D

knows that P is thin skulled.

b) Strauss v. Cilek Outrageousness; Court found that wife having affair was not outrageousconduct to sustain action against other man; factors the court weighed was that they lived in a

major city and it was a college town o from the court looking at the standards of the communityfinds that the behavior was not outrageous. Public Policy issue that anyone with a cheating

spouse could flood the courts. Court doesnt want to revive the old heart balm statutes that wereabolished. Court does not want to bring these cases back for example this case which is an

alienation of affection wrapped up in an intentional infliction of emotional distress.

c) Miller v. Willbanks Severe Emotional Distress; is expert testimony needed? Court discussesminority (expert testimony is needed) and majority view (no expert testimony is needed). Court

decides to take majority view that expert testimony is not needed in this kind of suit; the

outrageous nature of the conduct invalidates the need for the expert testimony. The court


7/48

concludes that the trier of fact can normally ascertain the existence of serious mental injury

caused by the intentional infliction of emotional distress, therefore invalidating the need for

expert proof.

d) Dana v. Oak Park Marina Reckless infliction of emotional distress; court decision thatMarinas intent could be considered reckless; NY recognizes that the tort of reckless infliction isencompassed within the intentional infliction of emotional distress and the court says that this

jurisdiction (NY) does recognize it. NY does not recognize any privacy torts/actions undercommon law. That is why plaintiff brought intentional infliction of emotional distress claim.

That could be another reason that NY recognized the cause of action.

e) Green v. Chicago Tribune Company Transferred intent for infliction of emotional distress; thiscase was where the newspaper took pictures of the dead sons body in front of the mother andkept her outside the room; transferred intent to mother (immediate family members) following

Restatement 2nd. This court recognizes the restatement view (even though it was only persuasive

authority) of transferred intent versus the common law approach. Defendant must know if the P

was present in plain site for transfer intent. Very often courts will often allow recovery for non

respect of the dead (possibly b/c it is very likely that the behavior will be seen as outrageous?).

Trespass the Land:

1) General:a) Throwing something on the land occasionally is considered trespass the landb) Allows for transferred intentc) Cannot be smells or noise b/c this is nuisance (next semester)d) People do have a right to defend their home, but courts have ruled that the value of life is worth

more then protecting property, especially when no one is living there. This comes from the

booby trap case involving the land owner who set-up the spring gun and plaintiffs sued him for

damages when plaintiff was shot in the leg trespassing on the land. Plaintiff won in this case.

2) Elements:a) Intentb) Unconsented physical presence on, under, or above the land of anotherc) Volitiond) Causation: But for Test3) Damages:

i) Liability attaches even if no harmii) D may be liable for harms that are not foreseen (ex: death of landowner)iii) Compensatory damages and nominal damages for intentional intrusion if no actual damage

(1) Compensatory damages:(2) Consequential damages: damages must be natural and proximate result of trespass(3) Nominal damages: public declaration of public right(4) Occasionally Punitive Damages:

4) Cases:a) Thomas v. Harrahs Vicksburg Corp. Even if no real intent to trespass, the is the case in which

a casino was being built right on the property line; D can be liable for trespass; Court also says

the crane and boon swinging over the land. Under the law air space rights are protected.i) The intention which is required to make the actor liable under the rule stated is an intention

to enter upon the particular piece of land in question, irrespective of whether the actor knows

or should know that he is not entitled to enter. (Restatement Second of Torts 163). It

doesnt matter if the actor thinks the property is his, whether he thinks he has permission, orhas a mistaken belief that he does have permission.

b) Baker v. Shymkiv D can be responsible for unforeseen acts that occur from the trespass; thehusbands death; in intentional torts damages are NOT limited to only foreseeable damages.


8/48

i) A trespass on land subjects the trespasser to liability for physical harm to the possessor ofthe land at the time of the trespass, or to the land or to his things, or to members of his

household or to their things, caused by any act done, activity carried on or condition created

by the trespasser, irrespective of whether his conduct is such as would subject him to liability

were he not a trespasser. (Restatement Second of Torts 162).

Trespass to Chattel v. Conversion:1) Trespass to Chattel: relatively minor interference in Ps right; D intentionally interferes with chattel

by physical contact of dispossession; courts might say if no damages, no trespass to chattel

a) Elements:i) Intentii) Causationiii) Volitioniv) Minor interference with the plaintiff's possessory interest or Dispossessionv) In the absence of dispossession (from which damage may be inferred), proof of damage in the

form of:

(1) substantial loss of use; or(2) Impairment of condition, quality or value.(3) Damage may be inferred if there is dispossession

b) Elements: (Restatement 2nd) trespass to chattels actionable if:i) P dispossess the other of chattel orii) The chattel is impaired as to its condition, quality, or value oriii) The possessor is deprived of the use of the chattel for a substantial amount of time oriv) Bodily harm is caused to the possessor, or harm is caused to some person or thing in which

the possessor has a legally protected interest

c) Remedy: actual diminution in its value of chattel caused by the interference; sometimes loss ofuse; compensatory or nominal damages

i) Split in the courts: typically must be somedamageto property interest, cant be a mere takingfor a short period of time

2) Conversion: more serious intrusion; intentional exercise of dominion or control over a chattel whichso seriously interferes with Ps right that D is required to pay for the chattel (forced sale, P getsmoney damages).

a) Elements:i) Intentto exercise dominion and control over the chattel

(1) No transferred intentii) Causationiii) Volitioniv) Major interference with the plaintiff's possessory interest

(1) Restatement 2nd 222A states that conversion is an intentional exercise of dominion orcontrol over a chattel which so seriously interferes with P's right to control it that D may

justly be required to pay P its full value. It is a trespass to chattel which is serious,

aggravated, or of such magnitude as to justify forcing D to purchase it.

b) Notes:i) Bonafide purchasers: protected from theft ; (thief has no right of title); but not necessarilyprotected if victim of fraud (some consent)

ii) If there is no dispossession then person does intend to exert total controliii) No Duty for victim to exhaust all possible means to recover chattel

(1) Car dealers taking customers keys; symbol of car- got full value of car, as well aspunitive damages because known practice in the industry

c) Damages: market value of goods at time and place of conversion


9/48

(1) Market value at the time of dispossession; It is a forced sale of property from the rightfulpossessor to the converter

(2) Courts have become more creative as conversion for non-tangible items is recognized(3) Courts can also give punitive damages as they did in United States v. Arora(4) Replevin: to get the original chattel back and incidental damages; e.g. art theft

3) Conversion v. Trespass to Chattela) Factors Include:

i) the extent and duration of the actors exercise of dominion or control;ii) the actors intent to assert a right in fact inconsistent with the others right of control;iii) the actors good faith;iv) the extent and duration of the resulting interference with the others right of control;v) the harm done to the chattel;vi) the inconvenience and expense caused to the other.

4) Cases:a) Koepnick v. Sears Roebuck & Co. Trespass the chattel case; court found no trespass; in a

trespass the chattel the court requires proof of actual damages. In this case there was none, so

therefore P does not have a cause of action. Another factor was that the police denied P access to

his truck (to investigate a potential shoplifting claim) not Sears.

b) United States v. Arora Case about conversion; U.S. scientist destroyed valuable culture ofcells for research purposes and U.S. sued under conversion; Arora only had a short time with the

cells, but he had full control of the cells. He interfered with Seis right to control the cells, and

with no good faith, destroyed the cells. Since he completely destroyed the cells there was

conversion and almost as a forced sale to D and now he has to pay for the cells.

False Imprisonment

1) THE DEFENDANT UNLAWFULLY ACTS TO INTENTIONALLY CAUSECONFINEMENT OR RESTRAINT OF THE VICTIM WITHIN A BOUNDED AREA.

2) Elements:a) Intent (purpose or knowledge) to confine;b) Confinement: actual or apparent barriers, P must know, no reasonable means of escapec) To a persond) Volitione) Causation

3) Cases:a) Enright v. Groves Dog case in which woman was falsely arrested and confined. The court

ruled that asking for the drivers license was not a lawful order and refusal to comply was in and

of itself an offense. Therefore the officer was not allowed to use force in arresting her. There

was proof that she was arrested for not producing her drivers license only. In this case P wouldhave to prove false arrest in order to prove false imprisonment b/c D is a police officer.

b) Peterson v. Sorlien The girl cult deprogramming case; shows a defense to false imprisonment;The trial courtbelieved that Ps behavior after the initial 3 days constituted a waiver and theappellate court agrees with this determination b/c it is consistent with the evidence. The parental

relationship is special and that by public policy and society has a right to intervene. Court sayswe really cant say she consented or not consent b/c she did not have the capacity b/c she wasprogrammed by the cult. She waived her right to complain about the first three days. This is a

weak argument.

II. DEFENSES & PRIVILEGES

Even if P has succeeded in proving elements in prima facie case; D escapes liability

1) Consent: some indication on the part of the P suggesting that there is consent


10/48

a) Actual Consent: Also referred to as consent in fact or explicit consent. Can be manifested bywords, affirmative action, or by silence or inaction under circumstances when silence would give

consent.

b) Apparent Consent: If the plaintiffs behavior was such as to indicate consent on her part, he wasjustified in his act, whatever her unexpressed feelings may have been.

c) Implied Consent: legal fiction; courts indulge in absence of consent (either actual or apparent)to justify desirable conduct which would otherwise be tortious

d) Cases:i) McQuiggan v. Boys Scouts of America Defenses to assault and battery; there was implied

consent by playing the game with the other boy scouts; court says Ps withdrawal from thegame was not adequately communicated. The law uses an objective test and whether consent

may be inferred from any particular circumstances must be decided on a case by case basis.

Once the actor has consented, he cannot recover for harms relating to that invasion even if the

harms were unforeseeable. An actor who consents to an invasion on an interest does not

thereby consent to all possible harmful conduct. The court also says that if D went outside of

the realm that was not in the rules of the game then there is cause for an action. This was not

the case in this situation.

ii) Hogan v. Tavzel Defenses to assault and battery; consent that was fraudulently obtained isnot consent and the actor may be liable; One partys consent to sexual relations is vitiated(invalidated) by the partners fraudulent concealment of the risk of infection with venerealdisease. Either deceit/fraud or mistake vitiates consent.

iii)Richard v. Mangion Defenses to assault and battery; there was a fistfight between a 13yrold and 14 yr old; court says there was implied consent between the boys and the fight andthere was no excessive force; When a person voluntarily participates in an altercation, he may

not recover for the injuries sustained unless force in excess of that necessary is used and its

use is not reasonably anticipated. Excessive force is a contact that is not consistent with the

understood rules of the game.

(1) Note in Casebook: Some fist fights and other activities are considered a breach of thepeace. Consent is sometimes not available if the activity is a crime (ex: when abortions

were outlawed). In some states, perhaps the majority, consent is not an available defense

if the fight is a breach of the peace.2) Defense of Self and of Others: Privilege to prevent against imminent apprehension of a battery if

force is reasonable force under the facts

a) Force must be reasonable:i) P is a young, large athlete who threatens older smaller man; In self defense, D fires warning

shot that actually hits Pii) Use of deadly force: must claim that D reasonably feared for his life

(1) D asked P to leave, but he refused(2) Duty to retreat; no duty if occurs at own place of business (or home); West/South: no

duty to retreat ever!; North/East: duty to retreat (exceptions home and business)

b) Cases:i) Slayton v McDonald Deadly forced used was reasonable under the circumstances since D

was in his own home and D shot P in the leg. Factors to consider in reasonability: (1) Thecharacter and reputation of the attacker; (2) The belligerence of the attacker; (3) A large

difference in size and strength between the parties; (4) An overt act by the attacker; (5)

Threats of serious bodily harm; (6) The impossibility of a peaceful retreat. The court says

under the circumstances (being in the persons own home) that the duty to retreat is not

necessary. One may use deadly force only to prevent serious bodily harm. When an actor is

faced with a battery or assault that does not involve serious bodily harm, he or she is entitled

only to use moderate or reasonable force. The court uses the reasonable person testthat if areasonable person would also fear for their life and the person feared for their life then the


11/48

person can use deadly force. The extent of the force used is not measured by the harm

suffered but rather by the harm the D intended to cause or was likely to cause.

ii) Young v. Warren D did not use reasonable force under the circumstances to protect hisdaughter b/c D shot P in back while P was leaving. The necessity must be immediate, and

attacks made in the past or threats for the future will not justify. Evidence showed that force

used was not reasonable. The difference in this case as compared to Slayton is the D

reasonably believed his life was in peril. This is not the case in this.3) Defense of Land and Personal Property

a) The privilege to use force to defend land a personal property is also based on the principle ofproportionality

i) Hypo:(1) Have vacant two family apartments downstairs. Wife does rent it out, but you dont

know. Hear someone moving in apartment, and lock them in and calls police. Person in

apart can claim false imprisonment. Owner can claim defense of property. Is it

successful? Owner has made a mistake, but renter is a legal occupant. If it is a mistake,

then lose the defenses

ii) Defense/use of force must be reasonable:(1) Setting up a spring gun to protect property unreasonable

(a) Policy: spring gun has no discretion; life is more precious than property(2) Although property owners have a right to protect their property, they cant set up traps

that would unreasonably harm someone; not reasonable for trespasser to expect trap

(3) Use of force must be proportionate(4) Law frowns on deadly force in defense of mere property

b) Cases:i) Woodard v. TurnipseedD wasnt justified in using reasonable force b/c the danger to his

property was not imminent. This case was about the employee on the farm who was fired

and then owner used force to eject him from the property. Many factors to rule case in favor

of P that force was unreasonable: D was much bigger and older than P; Evidence showed

that threat was not imminent b/c D walked away with his back towards P; it was not

unreasonable for P to wait for a ride home (justification of why P stayed on property).

4) Necessity: Public and Privatea) Public necessity: if action in good faith to prevent further harm, D is NOT liable for damagesi) Individual rights of property destroyed gives way to higher laws of impending necessityii) Necessity must be clearly shown; appeared at the time to be

(1) Property owners judgment is clouded; no requirement ofconsent of property owner(2) Privilege not necessarily vested only in the public official; also a right open to private

citizen

(3) Doesnt matter if home owner has insurance or not; no compensation for publicnecessity

b) Private Necessity: One has a right to protect private interest, but also held liable to compensatefor damages (if deliberate action); D is liable for any damages

c) Cases:d) Vincent v. Lake Erie Transportation Co. Private necessity case; the case in which D (shipowner) repeatedly kept ship tied to dock resulting in ship banging against dock and causing

damage; D is still liable for damages the ship caused to the dock by banging into it even if private

necessity;

e) Mary v. State of IdahoPublic necessity case; Govt doesnt have to compensate land ownersfor property damage (flooding in this case) b/c they acted for the greater good of the public.

Someone acting in the public good is allowed to act to the detriment of land owners without

compensation. This is very different than private necessity.

5) Authority of Law


12/48

a) Law enforcement privilege6) Discipline

a) Parents and those in loci parentis such as teachers can use reasonable force to discipline7) Justification

a) General privilege that can appear in any context when the Ds intentional tort is excused. It is acatch all for anything not covered in the above defenses.

III. NEGLIGENCE

1) General:a) Negligence is conduct which poses an unreasonable risk of harm to othersb) Elements:

i) Duty Standard of Careii) Breachiii) Causationiv) Damages

2) The Duty of Reasonable Carea) The Reasonable Person Standard

i) Is a hypothetical person and the standard is How would a reasonable person act under thesame or similar circumstances.

ii) Cases:(1) Vaughan v. Menlove Case about the definition of the reasonable person standard; the

hay-rick case. D wants court to judge him through looking through his eyes if he used his

best judgment, but court says no and that there is one standard and that is one of thereasonable prudent person would do in a similar situation.

(a) Notes in Casebook: The reasonable person is not a typical person but a hypotheticalperson who is always reasonably prudent (Restatement 2nd Torts).

(2) Parrot v. Wells, Fargo & Co. (Nitro-Glycerin Case) case in which the care that needsto be taken is one of an ordinary prudent person and D was not responsible b/c they acted

as a ordinary prudent person in the circumstances; Court says that Wells Fargo is acting

as a reasonable prudent shipper and that holding them to the constructive knowledge

standard would be unreasonable.(a)Note in Casebook: The reasonableness of an actors conduct will usually depend on

the knowledge the actor had about the riskiness of a situation. Tort law could treat an

actor as possessing: (1) full knowledge of all the risks of his or her situation; (2) all

of the knowledge a reasonable person would have had; or (3) only the knowledge the

actor actually had. The court uses the second standard in this case.

(3)McCarty v Pheasant Run Inc. This was the case in which an intruder broke into hotelroom and attacked P; P sued hotel for neg. claiming hotel could have taken precautions.

Reasonable conduct as a balancing of costs and benefits; the Learned Hand formula.

Hand Formula: The burden of precaution is less than the magnitude of the accident, if it

occurs, multiplied by the probability of occurrence. If burden is less then precaution

should be taken. (B


13/48

appropriate instruction to the jury? No, there is no duty of extraordinary care, the

reasonable person standard covers situations like this b/c it addresses the circumstances

of the situation

(2)Myhaver v. Knutson Emergencies; should there be a sudden emergency instruction.Court joins other courts that have discouraged the use of the sudden emergencyinstruction and urges trial courts only to use it in rare cases. Court concludes that even

though a judge will use his discretion and give the instruction in a particular case, it willrarely, if ever, be error to refuse to give it. The sudden emergency is just one factor in

determining the reasonable person standard in this case. Current tort law is divided on

whether this type of instruction is a helpful addition to the reasonable person test.

(a) Test for emergency instruction: Applying the principles that (1) the party seeking theinstruction had not been negligent prior to the emergency, (2) the emergency had

come about suddenly and without warning, and (3) reaction to the emergency was

spontaneous w/o time for reflection, the court concluded that the trial judge did not

abuse his discretion in the giving the instruction.

(3) Cervelli v. Gravesan actors knowledge or skill; the reasonable person standard is aminimum and if the person has superior knowledge or skill that should be taken into

account.

(4)Robinson v. Lindsay Special treatment for minors; the case where a 14yr old operatinga snowmobile crashed into D (13yr old). B/c D was involved in a dangerous adult

activity the special standard of care does not apply and the regular standard applies.

Court adopts an adult standard when a child is engaged in an activity that is normally an

adult one AND if the activity is inherently dangerous. All jurisdictions use a special

standard of care for childrens conduct

(5) Peterson v. Taylor Special treatment for minors; child based on evidence at trial couldstill be found liable for contributory negligence using the child standard of care. A

particular childs can be found negligent if his actions fall short of what may reasonablybe expected of children of similar capacity. Evidence must be brought forward at trial

concerning the childs age, intelligence, and experience so a jury may determine the

childs capacity. It is up for the jury to decide and testimony from witnesses of what a

reasonable child of like capacity would do in similar circumstances need not and indeedmay not be presented at trial. This is an objective standard and it is up to the jury to

decide. There was ample evidence of this nature in this case and the evidence was not

such that P could be ground contributory negligent as a matter of law.

(a) Child standard of care: a child is required to exercise the same care that a reasonablecareful child of the same intelligence, maturity, training, and experience would

exercise under the same or similar circumstances.

(b) Some states have statutes that alter the common law position and make parentsfinancially responsible for damage their children cause.

(6) Poyner v. Loftus Physical disabilities; in this case blind man fell off ramp b/c bushwas not present; the physically disabled actor must act as well as a reasonable person

with that physical disability would act; P was found not to have acted as a reasonable

disabled person would act (b/c he did not use aids such as cane or seeing eye dog); this isthe same standard as the ordinary person standard. The standard that applies to the

reasonable person, because you can say that a disabled person falls into the

circumstances. B/c under the circumstances a reasonable person being blind would have

used an aid.

(a) Intoxication: the actions of a person who was intoxicated at the time he or she wasinjured or caused an injury are evaluated with reference to the reasonable prudent

person standard, completely ignoring the fact of intoxication. Intoxication can not be

used as a defense.


14/48

(7) Creasy v. RuskMental disabilities; a patient at a mental hospital kicked one of peopletaking care of him and then they brought suit. Typical tort law evaluates that conduct by

comparing it with how a reasonable person without that mental disability would act for a

mentally disabled person; however court found D owed not duty to P b/c of three factors

considered: (1) the relationship between the parties, (2) the reasonable foreseeability of

harm to the person injured, and (3) public policy concerns. Considering all three factors

the court decided that D owed a duty to P. Parts 1 and 2 were met and out of publicpolicy the court said that it would place too great a burden on D b/c that the potential for

violence was the very reason he was institutionalized in the first place. In addition the

workers compensation system exists to cover such issues (not the tort system) even if theworkers comp system is not adequate. Court seems to be saying that the personwatching the D assumed the risk of watching them.

c) Recklessnessi) Reckless conduct is if a person knows of the risk of harm created by the conduct or knows

facts that make the risk obvious to anyone in the persons situation; and the burden ofeliminating the risk is slight. It is the combination of likelihood and seriousness that makes a

risk serious. This contrasts with a negligence case in which D should have known of the risk

or should have known certain facts.

ii) Recklessness falls in between negligence and intentional torts. Punitive damages areavailable, unlike in negligence cases.

iii) Cases:(1) Sandler v. Commonwealth Court found that conduct was not reckless; the degree of

risk of injury does not meet the standard established for recklessness in this case; this wasthe tunnel bike fall case. The kind of injury that a person would suffer must be really

severe to be in the category of recklessness. In this case P was barred by statute for suing

the city for negligence, but was not barred for suing under reckless conduct.

3) Proving Breacha) To recover damages in a tort suit, a plaintiff must persuade the trier of fact that the opponent

breached a duty.

i) Examples of how a plaintiff would show this are the following:(1) Violation of a statute(2) Not Following Industry Custom(3) Res Ipsa Loquitur

ii) These types of proof may:(1) Require a finding that the D was negligent regardless of contradictory evidence;(2) Require a finding that the D was negligent unless the D offers contradictory evidence; or(3) Have no mandatory effect on the trial outcome

b) Violation of a statutei) If the statutes purpose was to protect the injured party from the type of harm that occurred,

the proof of the violation will have special evidentiary effect. Courts may treat proof of

statutory violation both as establishing a standard of care and as evidence that the opponentsconduct was negligent.

ii) Negligent conduct proved from a statute is only the first two prongs of all four requirementsof negligence. It proves duty and breach, but does not necessarily prove causation and actualharm.

iii) Cases:(1)Martin v. Herzog Negligence per se; the buggy case; the violation of the statute was

negligence, but it is up to the jury to decide if there was a causal connection between that

negligence and the accident. If there was it was contributory negligence by P the buggy

driver.


15/48

(2) Thomas v. McDonald negligence per se; the driver/companies violation of the statutewas negligence per se and satisfies the breach requirement b/c the statute was intended to

guard against the harm in the case. Therefore a negligence per se jury instruction was

necessary. Key Questions to be used in analysis: Is P within the class of people the

statute intended to protect and is the harm such that the statute was made to protect from?

(a) This can also apply (as a general rule) to ordinances, regulations(3) Wawanesa Mutual Insurance Co. v. Matlock negligence per se; jury was not entitled

to negligence per se instruction b/c it did not apply b/c the statute (of not selling

cigarettes to minors) had nothing to do with stopping fires. Therefore it cannot be used

for a negligence per se instruction for the fire damage sustained by the pole company.

Court says that harm the statute was to protect was health risks and not fires so

negligence per se is not applicable. To obtain the benefit of the negligence per se

doctrine, in addition to showing that the D violated the statute, the P must prove that the

harm that occurred was the type of harm the statute was designed to prevent.

(4) Sikora v. Wenzel negligence per se; violation of landlord compliance with certainbuilding codes; D had excuse b/c there was no way for landlord to know b/c D never

knew about the violation and the city still gave a certificate to the building before D

bought the condo, even though the city originally rejected the design of the decks.

c) Industry Customi) If a litigant can show that an industry as a whole has a customary way of doing something,

that proof could support a number of conclusions. Courts acknowledge this, but typically

give less power to proof of violation of an industry custom than they give to proof of

violation of a statute. Compliance with a trade or industry custom is usually treated asrelevant, but not conclusive.

ii) Cases:(1) The T.J. Hooper court rejected the industry custom defense and used the cost benefit

analysis and said tugs should all have radios even though it wasnt the industry custom.The court in this instance goes above the industry custom and custom alone is not a

suitable defense.

(2)Elledge v. Richland/Lexington School District Five the standards of the industryshould not have been excluded and then did not have to be adopted by the school board tobe put in as evidence. If the school board would have adopted the guidelines then it

would have been negligence per se, but since they didnt it is only evidence.(a) Evidence of an industry custom might be introduced to show that an actors failure to

follow it amounts to negligence or might be introduced to show that conduct in

conformity with custom meets a standard of reasonable care. The evidentiary weight

given to custom evidence is the same in both contexts.

(3) Wal-Mart Stores Inc. v. WrightWal-mart should be held to the reasonable personstandard, not the stardard in which they want to hold themselves in their manual. You

can set standards that exceed ordinary care, but that shouldnt be used as evidence againstthe D. You can set standards for yourself that exceed ordinary care and the fact that

you've done that shouldn't be used as evidence tending to show the degree that you

believe is ordinary. The court determines this due to public policy reasons that storesmight not want to have higher standards b/c it could be used against them in court, which

will not be good for public visiting those stores.

d) Res Ipsa Loquituri) Is Latin for the thing speaks for itself. When a P relies on the res ipsa loquitur doctrine, the

jury will be allowed to conclude that the D was negligent even though the P may not have

introduced detailed or direct evidence about the precise shortcomings of Ds actions.ii) Courts tend to apply it only when four elements are present:

(1) The type of injury was usually associated with negligence;


16/48

(2) The D had exclusive control of whatever caused the injury;(3) The P had made no causal contribution to the harm; and(4) The Ds access to information about the event was superior to the Ps

iii) Modern courts rarely refer to all four of these elementsiv) At the end of trial, the doctrine will entitle the P to a special jury instruction. A res ipsa

instruction informs the jury that, despite the Ps failure to offer direct evidence of what the D

did wrong, the jury may infer that the D was negligent.v) Cases:

(1)Byrne v. Boadle the barrel of flour that fell on P case; P was entitled to res ipsa juryinstruction. Four factors introduced for the standard analysis, but that analysis has been

updated, but should still understand this analysis. Pull the factors out of the case.

(2) Shull v. B.F. Goodrich Co. P was injured when dock plate malfunctioned on Dsloading dock; trial court erred in refusing to allow a res ipsa jury instruction; lift was in

exclusive control of D.

(a) This Indiana court uses the 2 step process in the case that was Indiana law todetermine if res ipsa should be invoked. Steps: (1) the injuring instrumentality is

shown to have been under the exclusive control of the D, and (2) the accident is one

which in the ordinary course of things does not happen if those who control the

instrumentality use proper care. In addition to the two basic elements, somejurisdictions have required the P to show that the occurrence was not due to any

voluntary action or contribution by the P. Some states apply another variation in the

elements of res ipsa loquitur. They require the P to show that the evidence for the

harms occurrence is more accessible to the D than to the P.(3)Dover Elevator Co. v. Swann P offered proof (expert testimony) as to the negligence

of D of cleaning the plates instead of replacing them; by offering this evidence he was not

entitled to a res ipsa jury instruction. Idea here is to get benefit of res ipsa you cant say

this is what actually happened then res ipsa instruction is not appropriate. This doesntmean expert testimony can be introduced. It means you cant show proof as to the cause

b/c then D doesnt have superior knowledge over P anymore.

4) Legal Cause: Cause-in-Facta) The P must show that there was a causal connection between the Ds conduct and the Ps harm.This concept is known as cause-in-fact. This requires proof that it is more than likely than not

that the Ds conduct was a cause of what happened to the P. In addition to the cause-in-factrequirement, tort law provides some other limits to liability. These policy based limits on liability

are different from cause-in-fact.

b) Basic Cause-in-Fact: The But-For Testi) The question is whether the P would have been free from harm but for (in the absence of)

the Ds negligent conduct. This is called the but-for test.

ii) Cases:(1) Cay v. State of Louisiana, Department of Transportation and Development the court

uses the but-for test in that if the railing was higher P would have been less likely to fall

from the bridge.

(2)Lyons v. Midnight Sun Transportation Services Inc. the court used the but-for test indeterming that Ds negligence was not the cause of the harm, it was P pulling out in frontof traffic that was really not the but-for cause.

(a) What about if there was a statute about speed limit, would D be liable under neg. perse? No, b/c even thought there was duty and breach, but still need to prove causation

and harm. Since no causation for the harm, therefore he would not be liable.

c) Alternatives to the But-For Testi) A rigorous application of the but-for test would prevent a P from recovering in some cases

where most people would believe that a Ds actions actually did harm the P. These cases


17/48

may involve multiple actors where the conduct of each actor might have been sufficient to

cause the harm.

ii) Multiple Sufficient Causes(1) The but-for test could prevent a Ps recovery in a case where conduct by each of two or

more actors was sufficient independently to have caused the Ps harm. Most courtschange the rules about who must prove cause. Once the P demonstrates that each of the

Ds acts would have been sufficient to cause the harm, each D must prove its act was nota substantial factor in producing the harm. Under circumstances that involve two or more

actors, will the legal system impose any liability at all on any one or more of those Ds?

The answer is often yes.

(2) Cases:(a) Kingston v. Chicago & Northwestern Railway Co.Railroad Company was liable

for all damages even though there were two fires (one started by the railroad and one

of unknown origin). Public policy reason: court is saying is that it is unconscionable

that P should bear the loss and D should get off b/c P could not prove who the other

person who was the other cause. Have to also think what role does each of them

play. If one was so significant and consume a very small fire then, then the D of the

small fire would not be liable. (Commented on in Notes of Casebook) Ds conduct

was substantial. The doctrine of multiple sufficient causes prevents each of the twotortfeasors from escaping liability by blaming the other. This doctrine removes the

obligation to prove that each Ds act was a but-for cause. If each of several acts

would be sufficient to produce the Ps harm, the burden shifts to each D to avoidliability.

(b)Brisboy v. Fiberboard Paper Products Corp. Court found there was sufficientevidence of asbestos exposure to submit to the jury if it was a substantial factor (P

was also cigarette smoker and that could have been a factor also so it was a question

of fact of which was a substantial factor).

(i) The substantial factor Testcan limit an actors liability, since the word mayin the rule allows a court to find that some actors whose conduct was

independently sufficient to cause the harm may not be liable for the harm caused.

Ifthere are many causes and/or if causes other than a particular actors conducthave a much greater effect in producing the harm, the actor will not be liable.

iii) Concert of Action(1) Concert of action and concerted action are names for a theory that sometimes permits a P

who is injured by a Ds tortious conduct to impose liability on some-one else in addition

to the D. This additional Ds relationship to the Ps harm might not satisfy the but-for

test of causation, but the concerted action theory makes the additional D liable to the P.

Allows the (P) to hold someone else responsible even though they did not actually

perform the tort, but assisted, jointly engaged in the activity.

(2) Cases:(a) Shinn v. Allen The case in which D (a friend) was sued for drinking with his friend

who got into a car and drove drunk. Court says that D didnt know that the othersconduct constitutes a breach of duty and did not give substantial assistance or

encouragement to the other to conduct himself, which is required.

RS 876Persons Acting in Concert

For harm resulting to a third person from the tortuous conduct of another, one is

subject to liability if he

(a) Does a tortuous pg. 192.


18/48

Restatement (Second) Torts 876

(a) Substantial Assistance- with knowledge that the other person is in breach.

(b) Common Plan- get together and formulate a plan.

(c) Substantial Assistance- but both in breach

(b) 5 steps required.to find if Allen is responsible(i) Comment d to section 876 lists five factors that can be relevant to whether the

defendant substantially assisted the wrongdoer. These include: (1) the nature of

the wrongful act; (2) the kind and amount of the assistance; (3) the relation of the

defendant and the actor; (4) the presence or absence of the defendant at the

occurrence of the wrongful act; and (5) the defendant's state of mind.

RESTATEMENT (SECOND) OF TORTS 876 comment d (1977).

Mere presence is not enough

Type of assistance, was it substantial, encouragement?

What is Allens state of mind. Does he have knowledge of Faggards condition.

Each would be responsible for the full amount of the damage if found to providesubstantial Assistance.

iv) Alternative Liability(1) There are some other multiple actor situations where all the actors have acted

unreasonably but only one or some of them (not all of them) caused the harm. The

alternative liability theory exposes an actor to liability even when there is a possibility

that the Ps harm was entirely caused by someone else.Used to get beyond a directed verdict

(2) Cases:(a) Summers v. Tice The burden should be shifted toboth Ds that acted negligently inshooting while quail hunting; It will be up to them to absolve themselves and if they

cant they will both be responsible; public policy argument of negligent Ds shouldbear the burden. The court creates and uses the theory of alternative liability. This

case is a framework for future cases. Both have Breached

One of the reasons the usual burden of proof would be unfair in these cases is that the

Ds are likely to know better than the P which one caused the harm, but maystrategically withhold information.

Restatement 876

(b) knows that the others conduct constitutes a breach of duty and gives substantial

assistance or encouragement to the other so to conduct himself or(c) gives substantial assistance to the other in accomplishing a tortuous result and his

own conduct, separately considered constitutes a breach of duty to the third person

(D) has the burden to absolve himself /prove that they are not the cause-in-fact.

One or both of the (d) will bear the financial costs of losing the case. they are jointly

severly liable.


19/48

Seen in drag racing cases, provides for joint and several liability on the part of all

defendants having an understanding, express or tacit, to participate in a common

plan or design to commit a tortuous act

Both Ds are creating the same amount of risk.

Equally likely that the shot could have come from either one of them.

Both defendants are engaged in unreasonable conduct.

Gets beyond Directed verdict.

If one of them is not able to prove there not the cause they arejointly and severally

liable each is liable to the full amount by themselves.

Severely- summers can collect from Tice, so Tice would paid more than his prorada

share 50%. Tice would have an action for contribution with Simonson. They are

liable for the whole but the (P) cant collect more than then 100%. If Simonson is

broke Tice could be liable for the full 100%. Risk of insolvency is on the (D)s.

Difference Between Concert of Action and Alternative Liability.

Did not plan it together

No encouragement to act.

Concert -of- Action only need to prove one (D) was in breach of a duty they owe to

the (P) and one (D) was helping. Encouragement, paln it together.

Alternative Liability-both (D)s in breach of a duty they owe to the (P). Did not

plan it together. No encouragement to act.

Difference between Res Ipsa Loqituir- goes to breach

Alternative Liability- goes to cause.

Burden shifting isnt available unless the (P) can show the specific (d)s were inbreach. Alternative Liability goes to Cause that (D)s were in breach identified the

parties doesnt know which one caused breach. Sue them all and it is up to the (D)sto prove there not the one. Limit to when you are able to show everyone is in breach.

(b)Burke v. Schaffner the case in which person moving over to make room in a truckaccidentally hit the gas causing truck to pin D between it and a parked car; alternative

liability doesnt apply to this case b/c P attempted to prove that a single tortfeasorcommitted a single tortious act. Only one person acted tortiously, not both, so

alternative liability is not applicable. Can she recover under the alternative liabilitytheory? They were hoping to shift the burden of proof from the P to the woman who

shifted her seat. Court says this was not an appropriate case for alternative liability

b/c there are 2 people involved but only one of them acted tortiously. This is

different than Summers in that both acted tortiously. (P) settled with Malone so she

only had one D.

The doctrine requires the P to show that each person whose negligence might have

caused the harm is a D in the lawsuit. Another element identified by the court was

that all of the Ds negligent conduct must have created similar risks.


20/48

Court denies summary judgment because there was a Genuine issue of material

fact

All (D)s must be in court (law suit). and they duke it out.

Alternative Liability Theory: (RS [Second] of Torts 433B[3])

(1) that two or more (all) defendants breach a duty to (P), committed tortuous acts,but only one is the cause.

(2)But there is uncertainty regarding which one caused the injury

(3)The burden is upon each such actor to prove that he has not the harm

(2) that plaintiff was injured as a proximate result of the wrongdoing of one of the

defendants. Only then will the burden shift to the defendants to prove that they were

not the cause ofplaintiffs injuries. This doctrine does not apply in cases where thereis no proof that the conduct of more than one defendant has been tortuous.

v) Market Share Liability(1) In some cases where a victim has been harmed by a product that was produced by a

number of manufacturers to identical specifications, courts have given Ps the benefit of a

modified alternative liability theory.(2) One difference is in the area of activity to which this theory applies. While alternative

liability is a general rule applying to a broad range of activities, modified alternative

liability has been applied only to cases involving unreasonably dangerous products. One

way in which modified liability cases differ from alternative liability cases is that all of

the Ds who could have caused the harm to the P are not included in the lawsuit in amodified alternative liability case.

(3) Cases:(a)Hymowitz v. Eli Lilly and Company Court chooses the use market share liability

and uses a national market; Ds can only be exempt if they prove that the DES theysold was not for pregnancy use. There are many problems brining suit against the

companies who produced the drug: No records, hard to prove cause-in-fact, dont

know which company; statute of limitations has passed, etc. Court first looks atalternative liability and says that this doesnt apply to this situation. Court in Sindelllooked at only market share of CA, but theBrown case then made the market share a

notional one. By basing the market share by an national market then P and future Pswill benefit from this b/c they will not have incur the expense, time, and evidence

trying to come up with a local market share.

(i) In NY: D can exculpate himself by saying that they didnt market DES forpregnancy use and will have responsibility for proving this. This is the only way

they can. Liability in this case is not jointly and severely liable for Ds. Thecourt says in order to apply this remedy of market share liability is to bring suit

of a substantial portion of the market. Assume it should be over 50%, definitely

over the 20%. Idea is that this is a limited unique remedy and can only be

applied to fungible (identical type products) products. In NY P doesnt get fulldamages, P would get only portion of damages based on the total market share of

Ds. the innocent party should not bare the cost.

Market Share Theory/Modified Alternative liability theoryConnecting liability with the amount of risk the (D) created


21/48

Risk of insolvency falls on the (P) differs from alternative in that if one (D) is

broke the (P) can collect all of the money from one (D).

The definition of the market will determine if the (D) can exculpate themselves

from liability by stating that they did not sell their product in that market.

Each (D) is severally liable, only responsible for the percent of the market they

have. If you sue 60% manufactutrers you can only collect 60%

They loosen the requirements in that all the (D) didnt have to breach.

Alternative liability- is the idea that the burden is shifting because the (D) would

have a better idea of what caused the harm.

In this case the (P) is in a better position to know who caused the harm.

The court looked at concert of action: would not work in this case because there

was no parallel activity. No evidence they got together. The companies are

competitors working independently.

Over all the claims. Over the long run each company will be paying for the

amount of risk created by each individual company.

Every (D) does not have to be in front of the court just a substantial share or amajority. Not all manufacturers.

Court uses the national market- looks across the country. (P) needs to have a

substantial (D)s from a national market.

National market is less connected to the (P). so more manufacturers will prove

that they were not involved. If they took a local market the cost involved in

determining who was involved it would be expense. A national market coverseveryone. Once one court has figured out who was involved every court can use

to info. If elli had 30% of the market they caused 30% of the harm.

The drugs were fungible(identical). To use market share they have to be fungible.

Where the products are not identical courts will not generally allow the use of

market share liability.

DES is a singular case

Market share concept by modifying the Summers v. Tice rationale in two ways.

1) Loosened the requirement that all possible wrongdoers be before the court,

and instead made a substantial share sufficient.2) Each defendant who could not prove that it did not actually injure plaintiff

would be liable according to that Manufacturers market share. They could showthey didnt make the product, or that they didnt make it for preganancy

1. Based on a national market

2. Will likely result in a disproportion between the liability of individual

manufacturers and the actual injuries each manufacturer caused in this state.


22/48

3. Apportion liability so as to correspond to the over-all culpability of each

defendant, measured by the amount of risk of injury each defendant created to the

public-at-large.

4. a defendant cannot be held liable if it did not participate in the marketing of

DES for pregnancy use; if a DES producer satisfies its burden of proof of

showing that it was not a member of the market of DES sold for pregnancy use,

disallowing exculpation would be unfair and unjust.

Because liability here is based on the over-all risk produced, and not causation in

a single case, there should be no exculpation of a defendant who, although a

member of the market producing DES for Pregnancy use, appears not to have

caused a particular plaintiffs injury.

The liability of DES producers is several only, and should not be inflated when

all participants in the market are not before the court in a particular case.

This will prevent some plaintiffs from recovering 100% of their damages.

We eschewed exculpation to prevent the fortuitous avoidance of liability, and

thus, equitably, we decline to unleash the same forces to increase a defendantsliability beyond its fair share.

(b)Black v. Abex Corp. P has burden to show that in spite of the differences, theproducts would produce equivalent risks of harm and did not show this and theamount of asbestos contained in the products varied greatly from manufacturer to

manufacturer. Court says this case fails market share liability b/c % of quantity of

asbestos was not close enough to qualify for MSL and also Ps cited Wheeler case

doesnt apply b/c the range of her case was much different.

Market Share Liability/ Modified Alternative Liability

1) injury or illness occasioned by a fungible product (identical-type product) made byall of the defendants joined in the lawsuit.

2) injury or illness due to a design hazard, with each having been found to have sold

the same type product in a manner that made it unreasonably dangerous;

3) inability to identify the specific manufacturer of the product or products that

brought about the plaintiffs injury or illness; and

4) joinder of enough of the manufacturers of the fungible or identical product to

represent a substantial share of the market.

Compared with

Alternative Liability Theory: (RS [Second] of Torts 433B[3])(1) that two or more defendants breach a duty to (P), committed tortuous acts,

(2)But there is uncertainty regarding which one caused the injury

(3)The burden is upon each such actor to prove that he has not the harm


23/48

(2) that plaintiff was injured as a proximate result of the wrongdoing of one of the

defendants. Only then will the burden shift to the defendants to prove that they were

not the cause of plaintiffs injuries. This doctrine does not apply in cases where thereis no proof that the conduct of more than one defendant has been tortuous.

Market share liability is premised upon the fact that the defendants have produced

identical (or virtually identical) defective products which carry equivalent risks of harm.

Under the market share theory, it is considered equitable to apportion liability based upon

the percentage of products each defendant contributed to the entire market.

This reasoning, however, upon each defendants product carrying an equal degree of risk.

Numerous other courts have stressed the importance of a singular risk factor in market

share cases

vi) Liability for Lost Chance of Recovery or for Increased Risk of Eventual Harm(1) Cases:

(a) Matsuyama v. Birnbaum

All-or-nothing doctrine- if the patient had a 51% chance of survival, and the

negligent misdiagnosis or treatment caused that chance to drop zero, the estate is

awarded full wrongful death damages.

If the patient had a 49% chance of survival, and the negligent misdiagnosis ortreatment caused that chance to drop to zero, the estate is awarded nothing.

Loss of Chance Theory

Is consistent with our law of causation, which requires that plaintiffs establish

causation by a preponderance of the evidence. In order to prove loss of chance, a

plaintiff must prove by a preponderance of the evidence that the physiciansnegligence casued the plaintiffs likelihood of achieving a more favorableoutcome to be diminished.

Reasons for loss of chance theory.

1. Through appropriate expert evidence, a (P) may be able to sustain her burden

of showing that, as a result of (D)s negligence, a decedent suffered a diminishedlikelihood of achieving a more favorable medical outcome.

2. The physician will take every reasonable measure to obtain an optimal

outcome for the patient.


24/48

3. it is not uncommon for patients to have a less than even chance of survival or

of achieving a btter outcome when they present themselves for diagnosis.

4. failure to recognize loss of chance in medical malpractice actions forces the

party who is the least capable of preventing the harm to bear the consequences of

the more capable partys negligence

Proportional Damages Theory- the percentage probability by which the

defendants tortuous conduct diminished the likelihood of achieving some more

favorable outcome.

Deriving the damages

1) The fact finder must first calculate the total amount of damages allowable for

the death under the wrongful death statute.. or, in the case of medical malpractice

not resulting in death, the full amount of damages allowable for the injury. This

the amount to which the decedent would be entitled if the case were not a loss of

chance case: the full amount of compensation for the decendants death or injury.

2) The fact finder must next calculate the patients chance of survival or cureimmediately preceding (but-for) the medical malpractice.3) The fact finder must then calculate the chance of survival or cure that the

patient had as a result of the medical malpractice.

4) the fact finder must then subtract the amount derived in step 3 from theamount derived in step 2.

5) The fact finder must then multiply the amount determined in step 1 by the

percentage calculated in step 4 to derive the proportional damages award for loss

of chance.

(a)Lord v. LovettP could not prove that D alleged malpractice deprived her of abetter than 50% chance of recovery. Court analyzes the three approaches to this.

The court adopted the majority rule, treating lost opportunity as a separate injury, for

which plaintiff could recover if she proved defendants' negligence caused that injury

to her, and her resulting damages, that is, the extent to which future damages were

increased, by the preponderance of the evidence. Court adopts 3rd approach.

Understanding the approaches to whether there is recovery for loss of a chance

involves three factors: (1) what the court identifies as the compensable harm; (2)

what the P must prove; and (3) what damages are awarded.

(i) The first approach, the traditional tort approach, is followed by a minority ofcourts. According to this approach, a plaintiff must prove that as a result of the

defendant's negligence, the plaintiff was deprived of at least a fifty-one percentchance of a more favorable outcome than she actually received. Under this

approach, a patient whose injury is negligently misdiagnosed, but who would

have had only a fifty percent chance of full recovery from her condition with

proper diagnosis, could not recover damages because she would be unable to

prove that, absent the physician's negligence, her chance of a better recovery was

at least fifty-one percent.

(ii)The second approach, a variation of the traditional approach, relaxes the standardof proof of causation. The causation requirement is relaxed by permitting


25/48

plaintiffs to submit their cases to the jury upon demonstrating that a defendant's

negligence more likely than not "increased the harm" to the plaintiff or

"destroyed a substantial possibility" of achieving a more favorable outcome.

Under this approach, the patient would not be precluded from recovering simply

because her chance of a better recovery was less than fifty-one percent, so long

as she could prove that the defendant's negligence increased her harm to some

degree.(iii)Under the third approach, the lost opportunity for a better outcome is itself, the

injury for which the negligently injured person may recover. As with the second

approach, a plaintiff may prevail even if her chances of a better recovery are

less than fifty-one percent. The plaintiff, however, does not receive damages for

the entire injury, but just for the lost opportunity. In other words, if the plaintiff

can establish the causal link between the defendant's negligence and the lost

opportunity, the plaintiff may recover that portion of damages actually

attributable to the defendant's negligence.

(b)Albert v. Shultz treats the question whether damages awarded for loss of a partialchance of recovery should be related to size of the chance that the Ds negligencedestroyed; also shows calculation. Use a proportional basis determined by a

percentage value of the patients chance for a better outcome prior to the negligentact.

(c) Petriello v. Kalman D performed surgery on P that required corrective surgeryleaving P with an 8 to 16 percent increased risk of future bowel adhesions and

obstruction ; court allows recovery for a predicted consequence of the Ds conduct,even though the predicted likelihood of that occurance is small; a P who has est. a

breach of duty that was a substantial factor in causing a present injury which has

resulted in an increased risk of future harm is entitled to compensation to the extent

that the future harm is likely to occur. This particular court had the all or nothing

rule in the past, but now they are getting rid of that rule. But P was only asking for 8-

16% of future loss. Court thinks that applying the 8-16% chance is better than

applying the all or nothing rule.

5) Limits on Liability: Duty and Proximate Causea) Tort devotes considerable attention to separating the many harms a Ds conduct causes into twocategories: (1) harms that the D should be required to pay for and (2) harms whose costs the

victims should bear themselves. Even if a D has acted tortiously and was the cause-in-fact of a

Ps harm, the D will not be liable if a court rules that the D did not owe a duty to the P or that the

Ds act was not a proximate cause of the Ps harm

i) Cases:(1) Palsgraf v. Long Island Railway Co. Both Cardozo and Andrews found D not liable,

but for different reasons. Cardozo talks about duty. Andrews talks about proximate

cause. Read notes in book on page 227. The similarity between the two analyses is

foreseeability, but Cardozo goes towards Duty and Andrews goes towards proximate

cause. Both are seeking to limit the liability if the D. Who has the power to limit the

liability? Cardozo=Judge; Andrews=Jury(a) Cardozo: The P is an unforeseeable P, b/c she wasnt in the zone of danger.(b) Andrews: Saying negligence existed and there was a duty, but the analysis would be

proximate causation. There is some point at which public policy dictates where the

courts would cut off liability. What Andrews is saying negligence is there but still

need to prove other things.

b) Dutyi) Whether D has a duty to P. If no duty D is not liable. This is an issue of law, in which the

court decides.


26/48

ii) Cases:(1)Hegyes v. Unjian Enterprises Inc. The court held conception or birth of a child

conceived after an automobile accident by a woman who was injured in that accident is

not a reasonably foreseeable result of the operation of a car and therefore there was no

duty to P. The mere likely result in the future is not enough. Under Cardozo the P in this

situation is an unforeseeable plaintiff. Liability needs to be cut off at some point b/c what

if she has future children will the D be liable. Even though D was cause-in-fact to theinjuries, D was not liable b/c the injuries were not foreseeable. The jury has no

opportunity to decide whether the car drivers negligence was a proximate cause of the

babys injuries once the court decides that the babys injuries were not foreseeable.(2)Dykema v. Gus Macker Enterprises Inc. there was no special relationship between the

P and D; there is no indication that P entrusted himself to the control of D and that P lost

the ability to protect himself, which is required under the business-invitee relationship P

is arguing. Therefore D owed no duty to P. There is no duty to protect or aid another

except when there is a special relationship.

(a) A case where there was such a relationship was the movie theatre example.(3) Graff v. Beard The court held that there was no common law duty on a social host

who made alcohol available at a party to a guest who the host knew would drive. This is

the majority view on this issue.(a) Note about Kelly case which host was held liable. The legislature was outraged when

the decision of the court and passed a statute (pg. 235) limiting liability.

(4)Eisel v. Board of Education of Montgomery County the court ruled that schoolcounselors had a duty to use reasonable means to attempt to prevent the suicide becausethey were on notice of the daughter's suicidal intent. Because the counselors and the

board had the potential to successfully intervene, the court held that the daughter's suicide

was not a superseding cause that exculpated the board and the counselors from liability.

A phone call to the father would have satisfied the duty owed in this case. Great public

policy reasons and that there was only a minimal burden on the counselors.

c) Proximate Causei) The P must also satisfy the requirement of proximate cause. Proximate cause doctrines

reflect the idea that the Ds conduct and the Ps harm must have a connection that isreasonably close in order to justify imposing liability on the D. In legal causation,

proximate means that a Ds act satisfies whatever policy criteria a jurisdiction uses to treata harm a person causes as one the person must pay for, instead of as one that the person may

inflict for free. Courts have articulated three main approaches to proximate cause (directness

test, foreseeability test, substantial factor test). In almost all cases, courts treat proximate

cause as a question of fact for the jury, which limits appellate review.

ii) Directness(1) The directness test treats a Ds conduct that is a cause-in-fact of a Ps harm as a

proximate cause if there are no intervening forces between the Ds act and Ps harm.

(2) Cases:(a)In Re Arbitration Between Polemis and FurnessIt doesnt matter that the harm

was foreseeable, all that matters was that the board dropping was would causedamage; states that a negligent D must pay for damage related to negligent conduct

so long as the damage is in fact directly traceable to that conduct. P is arguing thedirect test. D is arguing the foreseeable test. The directness approach may lead to

liability for unexpected consequences, as in this case.

(b)Laureano v. Louzoun case in which landlord failed to provide hot water and Pburned herself by boiling water on stove for bath; court stated that the tenant's

injuries would not have resulted from the failure to provide hot water alone, and

cannot be classified as injuries normally to have been expected to ensue from the


27/48

landlord's conduct. The banging of the pots was a superseding intervening c

final torts outlines 2011

Documents