goals of defined rules of torts: impartial justice avoid

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Goals of defined rules of torts:� Impartial justice� Avoid influence of bias or prejudice as much as possible� Ability to predict how law/courts will interpret my actions

All Structure <��> No Structure

People in ChargeWhim of Jury Of The StructureIndividualism ClassicismSpontaneous HarmonyRomanticism Rules

Strict Liability v. Negligence

Strict liability: cause injury � liable (pay if infringement on entitlement)Negligence: unreasonable action causing injury � liable

System has chosen negligence over strict liability overall, but sometimes this issuearises again on smaller issues. Arguments for negligence system over strict liability:� Incentives (D incentives: the same, but P: no incentive to be careful if strict liability)� Fairness (Hard to determine in many cases as benefits aren’t one sided and each

side imposes risks on the other. See below.)� Administrative (Difficult to put entitlement system in place for some types of cases:

i.e. car accidents, no possibility to bargain, why make one person/industry, etc. payall social costs when everyone is sharing the benefits – i.e. railroads, schools?)

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Elements of Battery

1) Intent2) Cause3) Harmful or offensive bodily contact� Note that putting another object into motion which touches the other party also

satisfies this causation test.

Intent

Intent is satisfied if:� The actor intends the harmful contact; it is not necessary that he intend the resulting

injury. (Subjective test!)� See Ghassemieh v. Schafer, intending that the teacher hit the ground satisfied

intent. It was not necessary that D intended the actual injury to the teacher.� Acts for the purpose of causing the harm, or acts with the knowledge that such a

contact is substantially certain to result in harm.� See Garratt v. Dailey, if D moved chair being substantially certain that P would sit

there, then there is battery, even though he did not act with the intention ofcausing harm

� Note that “should have known” is not enough. Careless state of mind =negligence; bad state of mind = intentional tort.

Intent does not include:� Instances where the contact is intended, but not some unforeseeable harmful result

(i.e. intend to send you home, but don’t intend for you to get in a wreck).� Instances where a contact is intended that would not normally be harmful or

offensive, but it turns out to be (i.e. touching an injured shoulder)

Note that intent can transfer from another intentional tort. We still want to hold the actoraccountable for his bad state of mind.

Ghassemieh v. Schafer D injured P when she pulled a chair out from under P. Juryfinding of no negligence. Appeal: definition of battery should not have been included injury instructions. Held: Negligence and battery can co-exist in the same action; juryinstructions were appropriate. (Note: P argued that battery occurs only if D intended tohurt P, not if she merely intended for P to hit the ground. The finding of no negligenceimplies that there was a battery instead. Therefore, the requisite intent is satisfied if Dintends for P to hit the ground, rather than intending the actual harm.)

Garratt v. Dailey D (a 5 1/2 yr old boy) removed a chair out from under P as P wasbeginning to sit down. P suffered a broken hip. Judge dismissed the battery actionbased on D’s testimony that he did not intend to injure P or make her fall and was tryingto push the chair back under P. Appellate court remanded the case for clarification onintent: did D know with a substantial certainty that P would attempt to sit down wherethe chair had been? (Note that D’s age is irrelevant in that he can commit a battery justas an adult can. It may become relevant in determining intent.)

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Harmful or Offensive Bodily Contact

Standard: Would a reasonable person find the contact harmful or offensive? (Apply anobjective community standard, not a subjective standard of P or D.)

� Note exception: subjective standards are used if the facts suggest a sharedunderstanding that the contact will be harmful or offensive. If you know whatthe idiosyncrasies of another are, then you do not need to be protected fromthem.

Arguments for holding a subjective view of contact� Only punish bad mental state of D� Protect P’s autonomy

Downfalls of the subjective view of contact� Some issues make a subjective view particularly difficult. I.e. date rape.� Each side is subject to whatever is going on in the other’s head.

Arguments for an objective view of contact� Whose eyes should we look through if subjective? P or D? Community standard

represents a compromise� Applies a public standard that everyone has access to; protect both parties from the

idiosyncrasies of the other

Downfalls of the objective view of contact� Never captures individuality of what is going on between two actors� Which community?� Give up autonomy to community sometimes

Fisher v. Carrousel Motor Hotel, Inc. Suit resulting from an incident in which anemployee of D’s club approached P, a black man, and snatched a plate from his hand inan offensive manner, telling him that he could not be served at the club. Court holdsthat actual contact is not necessary for battery if there is contact with an object closelyassociated with the body. Intentional grabbing of the plate along with offensive yellingconstitutes harmful or offensive bodily contact for the purposes of battery.

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Elements of Assault

1) Intent2) Cause3) Reasonable Apprehension of Imminent Harmful or Offensive Bodily Contact4) Apparent Ability to Inflict Injury

Intent

Actor intends or knows with a substantial certainty that he will place another inapprehension of a harmful of offensive bodily contact.� Note: reasoning is similar to that of battery

Apprehension of Harmful or Offensive Bodily Contact

Apprehension of harmful or offensive bodily contact is satisfied where:� A reasonable person would have been placed in apprehension of harmful or

offensive bodily contact and P was apprehensive.� Objective community standard used unless parties have a shared understanding

that an act will cause apprehension.� A party’s ability to flee or defend himself does not preclude an assault.� Lack of apprehension because of intent to comply with the condition on a threat

does not mean no assault.� Consider reasonableness of the apprehension AND if a reasonable person would

have found the contact harmful/offensive (objective standard).� Reasonableness of apprehension is not as big an issue where D sets out to

scare P.� There is no significant delay between the threat of injury and D’s ability to inflict

injury; a significant delay provides a means of escape.� A threat today to injure tomorrow does not satisfy.

Vetter v. Morgan P’s van is run off the road by D and his friends, who were apparentlyintoxicated. They threatened to pull P out of her van. P was frightened and believedthat they might do it. D claims that he was amusing his friends and did not intend toscare her. Appellate court reversed the judgment of the trial court. Held: D had theability to harm P. P’s ability to flee does not preclude assault. Apprehended injury doesnot have to be instantaneous; it is enough that there is no significant delay.

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Elements of Intentional Infliction of Emotional Distress

1) Outrageous conduct2) Intent3) Cause4) Severe emotional distress

Arguments against allowing recovery for intentional infliction of emotional distress andreasons why they were rejected in Eckenrode� Promote frivolous or trivial claims (Trust the court/jury to weed out these claims)� No real injury (Advances in psychosomatic medicine show real injuries)� Mental consequences vary greatly (Adopt an object standard)� Mental disturbance can’t be measured monetarily (Pain and suffering/mental

suffering are elements for which damages are awarded in personal injury cases.)

Outrageous Conduct

Would a reasonable person consider this conduct to be “outrageous?” Factorsconsidered (not required) include: relationship of parties, fear vs. other type of emotionaldistress, extortion, repetition, premeditated v. spontaneous.

“Outrageous” element inherently asks jury to make a value judgment, rather than ajudgment of fact (as in other cases). Creates objections to this tort:� Allows juries to make decisions on whether my behavior is outrageous – value

based judgments. Who gets to decide how we are to act?� Allows individualized judgment rather than making an all-encompassing rule

Eckenrode v. Life of America Insurance Co. P and her husband purchased a lifeinsurance policy from D. When P’s husband died, P complied with the conditions of thepolicy. D knew of P’s financial situation, and yet refused to pay and tried to coerce Pinto a smaller settlement. Held: D’s coercion, knowing of P’s financial situation,constitutes “outrageous conduct.” D clearly knew of the probability of causing Pemotional distress and used its more powerful economic standing to bully P.

Intent

Intent for this tort is more relaxed. Intent is satisfied if the actor desires or knows thatthe emotional distress will come about OR if he acts in reckless disregard of the highprobability of emotional distress.

Chuy v. Eagles Football Club P was injured playing football for D. Doctors discoveredthat P had stress polycythemia and advised P to no longer play football. D’s teamphysician allegedly advised the media that P had Polycythemia Vera (which is fatal);this story was printed nationally. Upon reading it, P broke down emotionally, eventhough his physician reassured him. He filed suit against D for intentional infliction ofemotional distress. The Court held that there was enough evidence that reasonableminds could differ and that this case should go to the jury.

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Elements of Trespass to Land

1) Intent2) Cause3) Unauthorized entry

Intent

Requisite intent: just have to intend entry (want or know); knowledge of ownership is notan issue in determining intent.

Unauthorized Entry

� Traditional Rule: Tangible entry (Ampitheaters) OR� Unusual Rule: Tangible damage (Martin)� Consider: What action constituted the entry?

Note contrast between trespass and nuisance:� Trespass: Tangible entry/damage� Nuisance: Unreasonable action interfering with quiet, use and enjoyment of property

by P. Jury is more empowered in this action; it is more of a value judgment thantrespass

Ampitheaters, Inc. v. Portland Meadows P is a drive-in movie theater; D is the owner ofa racetrack with lights for night racing. The lights are interfering with the movie screens.P sues D for trespass to land and nuisance. Court holds that casting light ontoanother’s property does not constitute unauthorized entry onto property.

Martin v. Reynolds Metal Company P alleges that D’s aluminum reduction plant hascast fluoride compounds onto his land and rendered the land unfit for raising livestock.Held: minute particles can be as dangerous as larger items, thus unauthorized entry ofthose smaller items constitutes a trespass also. Refines Ampitheaters: either a tangibleentry or tangible damage must be shown (as it was not by the movie theater).

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Introduction

� Consent� Self-defense� Defense of others� Defense of my property� Necessity� Will only discuss consent and necessity in this class

Consent

Would a reasonable person have thought that this type of contact was consented to?� Consent obtained by force or fraud does not constitute a defense (Opinions mixed

on whether P’s or D’s knowledge is more important. The trend seems to be:Knowingly lies � Knowingly conceals � Innocently says � Innocently ConcealsDefinitely fraud � Probably fraud � Probably not fraud � Not fraud)

� According to the Restatement, D has to know for it to be fraud, but dicta in Hoganimplies that consent of P is ineffective if P was mistaken about nature of contact(regardless of D’s knowledge). Most courts hold that D must have some culpabilityby knowingly lying or concealing.

� Fraud must be about nature of contact, not about a side matter (See Neal). But notethat the Supreme Court of Idaho eventually overruled the appellate court on this.Held that the nature of the contact was changed.

Consent to medical procedures. If the following factors are present, the patient’sconsent is held to be implied:� Silence on a particular issue (procedure comes up during original procedure)� Consent to original medical procedure� Good medical practice to performAlso consider:� Would a reasonable person have consented to this (reasonable) medical procedure?

(Applies to ER visits, etc.)

Reasons to allow implied consent in medical procedures:� Better world for patients: save cost, risk, inconvenience of 2nd procedure� Patient would most likely have consented if they could have been asked� Note: we are sacrificing autonomy to some degree to make this a “better world.” In

considering some borderline cases, consider whether autonomy or “better world”analysis is more important.

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Consent (cont’d)

O”Brien v. Cunard S.S. Co. D provided immigrants aboard its liner with vaccinations sothey could get into America. P was in a line of about 200 women; she saw other womenreceive vaccinations and a card to get into America. When it was P’s turn, P stated thatshe had been vaccinated before, but the doctor told her she would need to do it again.P was vaccinated and received her card. She used the card to get into the country, butlater sued D for assault. Held: P understood what the doctor was doing. Her actionsreasonably led the doctor to believe that P consented.

Overall v. Kadella P and D both play for amateur hockey teams. A fight broke out aftera game between the two teams. Held: voluntarily participating in a hockey game doesnot constitute consent to participate in a fight after the game. Participation in a gameonly gives consent to those bodily contacts allowed by the rules of the game.

Hogan v. Tavzel P and D are married, but encountered marital difficulties. During anattempted reconciliation, D infected P with genital warts. He knew of the condition butdid not warn her or take any precaution against infecting her. The parties were laterdivorced and P sued D for battery. Held: consent to sexual intercourse is invalidatedby the other party’s fraudulent representations to the first party that there is no risk ofdisease. Fraudulently induced consent = no consent.

Neal v. Neal P and D were married for 9 years. P was carrying on an affair withanother party while still engaging in sexual relations with his wife. D alleged batteryduring the divorce. Held: if a person’s consent to sexual intercourse is based upon asubstantial mistake, this consent is deemed ineffective. The mistake must extend to theessential nature of the act itself, not another matter merely serving as an inducement.In this case, P’s deception did not relate directly to the act of sexual relations itself;therefore, D’s consent is valid.

Kennedy v. Parrott P consented to surgery by D for an appendectomy. While insurgery, D discovered several large cysts on P’s ovaries. D punctured the cysts as wasacceptable surgical procedure. P developed phlebitis, allegedly caused by D’s cutting ofa blood vessel while puncturing a cyst. P filed suit for negligence and battery. Held:Implicit in the consent to surgery is a consent to the surgeon to use his good judgmentin repairing any abnormalities in the area of the incision.

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Necessity

� Save property or life� Prevent injury� Isn’t a defense to battery, just to trespass to land or chattel

Reasons for allowing trespass due to necessity:� Best for the social welfare if we give a small privilege based on necessity, rather

than some broad “reasonableness of use” rule� Better for the social welfare than with no exception at all. We want the rule to

maximize goods and services, the social good� Encourage safety without undermining property rights� Influence good behavior of people; deter bad behavior.� Efficiency

See Vincent v. Lake Erie and City of Rapid City v. Boland. We suspend some propertyrights based on necessity, but not all property rights. We still expect compensation laterin some cases. Who has the responsibility for damages caused during trespass bynecessity? Consider:� Influence behavior; encourage efficient behavior and deter bad behavior� Fair distribution of costs� Administrative concerns (subset of influence behavior)

Who benefits? Pay? ConsiderationsPrivate necessity Yes � FairnessTaking Yes � Deter unnecessary, political takings

� Ensure that all costs adequately consideredPublic necessity No � Scope of benefits are greater; distribution

argument differs.

Ploof v. Putnam P moored his boat to D’s dock to avoid injury during a violent storm. Dunmoored the boat. The boat overturned and P and his family were injured. Held: necessityjustifies entries upon land that would otherwise be a trespass; D was not justified in unmooringthe boat. Doctrine even stronger when needed to save a life.

Vincent v. Lake Erie Transport Co. D’s boat was moored to P’s dock to unload cargo when astorm arose. D held himself to the dock, saving his boat, but causing damage to the dock.Held: D is not liable for trespass due to necessity, but all rules of property rights are notsuspended, only those that keep D from trespassing. D must make compensation for damageto the dock. (Note: ruling would be different if D crashed into dock during a storm – beyond hiscontrol.)

City of Rapid City v. Boland City flooded, causing mass destruction. Buildings beyond repairwere marked for destruction. Boland alleged trespass to land when his building wasdemolished; city asserted sovereign immunity. Boland countered that it was a taking of land.Held: remanded for finding on necessity. If destroyed due to public necessity (protect publichealth), there is no compensation. If action taken to avert a public nuisance, compensationmust be made.

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Cause of Action for Negligence

1) Duty (to act reasonably - in certain situations)2) Breach of duty (did D act reasonably?)3) Cause in fact4) Proximate cause (limits on indirect effects)5) Damages� Note: Duty = broad duty (drive carefully); Breach = specific responsibility (brake)

Duty

The “duty” issue serves as a screen to filter certain types of cases out of the system.Does D have a duty to act reasonably towards P? Typically, yes, but there areexceptions:� Omissions (no duty to act)� Pure economic loss� Emotional distress� Owners and occupiers of land

Duty to Act

No duty to act, BUT once one acts, there is a duty to do so reasonably. Exceptions:� Special pre-existing relationships AND serious danger� Owner/invitee, Employer/employee, Parent/child, Common carrier/passenger,

Innkeeper/guest (Rstmt §314A, p. 235)� “Buddy system” (go on activity together)� Mere friendship typically isn’t enough� Other factors: anyone else around, unique power to save? Allowing these

factors too much play creates a slippery slope problem.� Must act if responsible for creating danger (most courts accept, but some restrict

if D’s contribution was indirect or attenuated – Dubus v. Dresser Industries orBuchanan v. Rose) Rstmt §321(1), p. 238 “created an unreasonable risk ofcausing physical harm to another”� Realize or should realize that one has created an unreasonable risk of harm;

have a duty of reasonable care to prevent risk from taking effect.� Note: negligence in creating peril also puts us in normal negligence analysis� Some courts � if “ability to control” a dangerous person there may be a duty.

Applied to mental patients: threat communicated to a “reasonably identifiable”person & patient has intent, ability to carry out threat. (note: tension of patientconfidentiality, general rule of no duty to act)

� Once you volunteer to act, take on a duty to act “Good Samaritan Rule”� Deter others from acting. Breaking off rescue leaves P worse off� Duty to act reasonably in rescue (B<pL)� Promise to act/rescue without performance will not always be sufficient to give a

duty to D, unless P reasonably relies upon the promise.

Note: Plaintiffs may try to frame negligence as commission rather than omission toavoid duty problem.

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Duty (cont’d)

Duty to Act (cont’d)

Reasons not to hold people responsible for omissions in general:� Danger to rescuers� BUT hold rescuers to reasonableness standard. Only rescue when reasonable

to do so.� “Rugged Individualism” – “Am I my brother’s keeper?”� BUT what about “do unto others. . . “

� Moral code • Legal Code� BUT we do legislate some morality

� Laws can’t do everything� Lack of notice (of danger to others)� BUT can apply reasonableness standard to determine if notice sufficient� Note that we are always omitting against someone somewhere

� Who is the D if many are watching?

Note: In general, would be difficult to contain liability at all if omission included in scopeof duty

Lacey v. US Coast guard does not have a duty to rescue in the sense of an award ofcivil damages. Coast guard’s rescue attempt had not yet reached a stage where otherwould-be rescuers would be induced to cease efforts. There is no tort liability.

Schenk v. Mercury Marine Division D loaned his waders to P as a gratuitous service,he did not therefore establish a special relationship with P or assume an obligation toact.

Madley v. Evening News Association D did not have a duty to warn and protect its newscarrier outside of D’s premises. There is no special relationship giving rise to a duty toact.

Swartz v. H.M. Eberly Herr & Co. If D assigned its newspaper boy to work a dangerousroute, it could be held liable. As an infant, it owed him a duty of care not to require himto perform work which could be dangerous by virtue of his age, experience, etc.

Galanti v. US P was killed while looking at property with a government witness knownto be in danger. The FBI knew that P would be with the witness. Held: D did not createthe dangerous situation, he merely knew about it. He had incurred a duty to protect thewitness (who ignored offers of protection), but he never incurred a duty with respect toP. Mere foreseeability of danger does not create a duty to act.

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Duty (cont’d)

Emotional Distress Cases

In general, Ps can not recover for emotional distress unless it is accompanied by aphysical impact or injury. It is not required that the physical injury cause the emotionaldistress (Potere). Physical impact must be by the “agent” of the negligence.� Duty exists where: Negligence � Physical injury � Emotional distress� But there is no duty where: Negligence � Emotional distress � Physical injury,

except under certain exceptions (below). Note that there must be physicalmanifestations of the emotional distress.

Consider the slippery slope problem the rules seek to avoid:

Recovery No Recoveryalways allowed

Bystander Zone ImpactRecovery of Rule(Sinn) Danger (Bosley)

(Neiderman)

The Zone of Danger test has replaced the Impact Rule, but Bystander Recovery has notreplaced Zone of Danger. Some plaintiffs will be one or the other, but not both.

Limitations on Zone of Danger recovery:� P is in personal danger of physical impact� P actually did fear such impact

Limitations on Bystander Recovery (majority rule):� Plaintiff must have been nearby� Plaintiff must have been related to the victim� Plaintiff must have contemporaneously viewed� Plaintiff can only recover if the victim could have recovered� Note: initially this was giving voice to the real test (reasonableness and

foreseeability), but after Armstrong, this became a rule, rather than a standard.

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Duty (cont’d)

Emotional Distress Cases (cont’d)

Physical Manifestations of Emotional Distress� Injuries tend to be pretty subjective, hard to prove� Courts tend to be lenient in interpreting – may be satisfied by depression,

nightmares or insomnia� Some states have done away with the requirement for physical manifestations of the

emotional distress. (Consider Texas: foreseeability succeeds where used toovercome physical manifestation requirement, but not where it is being used in anattempt to overcome “zone of danger” or other such requirement.)

Bosley v. Andrews P seeking to recover for fright when charged by a bull. The bull didnot injure her or get closer than 25 feet. Held: There can be no recovery for injuriesresulting from emotional distress unless accompanied by physical injury or impact.

Niederman v. Brodsky P’s son was hit by a car while the two were walking down asidewalk. P was not hit or injured, but suffered emotional trauma and chest pain. Held:the requirement of physical impact is abandoned as a prerequisite to recovery where Pwas in danger of physical impact and where P feared the impact.

Sinn v. Burd P watched her daughter get hit and killed by a swerving car; she was neverin danger of being hit herself. Held: Bystander recovery can be allowed where P wasnear the scene of the accident, suffered emotional trauma as a result of directlywitnessing the event, and was closely related to the victim.

Armstrong v. Paoli Memorial Hospital P was called to the hospital when a man with herhusband’s name was injured. She did not discover the mistake for an hour and sufferedemotional distress after the incident. Held: The law is not a guarantor of an emotionallypeaceful life. P must demonstrate that she was a bystander meeting the criteria of Sinnor she may not recover.

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Duty (cont’d)

Pure Economic Loss

Economic losses are recoverable, but only where there is physical damage or injury .This limitation helps us to keep tort law from invading the world of Ks (K law is easier tocontrol, only operates where there is a K. Tort law is always “on”).� May recover economic losses related to physical damage� Can’t recover for economic losses unrelated to the physical damage, even if they

arise out of the same incident� Can’t recover if property doesn’t belong to P (i.e. leased). Must have a proprietary

interest .� Can’t recover if a product damages itself, but without causing injury or damage to

any property besides itself (K law – sale of goods).� An exception may be found where manufacturer agrees to be held liable in Tort

or where manufacturer specifically agrees that product was designed to meetconsumer’s needs.

Why are economic losses not recoverable?� Avoid slippery slope problem (into K law) - bright line rule� In most cases, P has a contractual remedy or could have obtained one� Difficulty in obtaining adequate 3rd party insurance if these losses are allowed – 1st

party insurance is more efficient. Injured parties typically better able to estimatepotential loss.

Note that most jurisdictions follow the traditional rule, but some will allow recovery inspecified types of cases , such as fraud, interference with K, breach of fiduciaryrelationship or where there is “particularly foreseeable damage ” – i.e. People’sExpress (chlorine leak caused airport shutdown) or Union Oil (oil leak affecting touristsites on beach – those on beach side of road allowed recovery).

State of La ex rel Guste v. M/V Testbank Ship collision in the Gulf of Mexico causedpollution of the waters and closing of a channel. Held: physical damage is aprerequisite for recovery – there is no rule to substitute for those who would do awaywith the requirement. Those Ps with pure economic loss do not have a claim.

Casa Clara Condominium v. Charley Toppino D supplied defective concrete for P’sconstruction project. The concrete caused the reinforcing steel to rust, causing muchdeterioration and damage. Held: A seller can not be held liable in tort for theperformance of his product unless he specifically agrees to such or unless the productdamaged “other” property.

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Duty (cont’d)

Owners and Occupiers of Land

In possession? Out?Off land? On land? No duty

Condition Activity Activity ConditionNatural Artificial Undisc.

Tresp.Other Tresp. Licen-

seeInvitee

CL andMajority

Rule:No dutyexcepturbantrees –reas.care.

MinorityRule –duty ofreas.care

Duty:reas.

care topreventinjury

off landif cond.abuts

bound-ary

Duty to usereasonable

care No duty Duty touse

reas.care

Duty to warndiscovered

trespassers andall licensees re:

known latentdefects.

“Should haveknown” aboutpresence oflicensee issufficient)

Licensee = onlyprivilege derives

from owner’sconsent – i.e.social guest,

“fireman’s rule”

Minority rule –eliminate

distinctionamong these

classifications

Duty to warnor otherwisemake safe iflatent defectsowner shouldhave knownabout – in

practice, “bereasonable.”

“Should haveknown”

invitee thereis sufficient)

Invitee = $benefit toowner or

representat’nthat reas.

care used tomake safe forpublic – i.e.business

guest (courtsoften stretchdefinition.)

Consider incentives for “no duty” rule vs. incentives if landowner does have a duty.What should trump – duty of reasonable care or property entitlement?� Market transactions v. legal duty (either gives incentives, although the source of the

incentives may vary)� Coase theorem: no effect on efficiency/allocation, but there may be a difference in

distribution (no duty – landowner wealthier; duty – P wealthier) and administrativecosts

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Duty (cont’d)

Owners and Occupiers of Land (cont’d)

The Attractive Nuisance Doctrine – P (child) “forgiven” of his status as a trespasser/licensee. P is treated as an invitee to whom a duty of reasonable care is owed.

Rstmt §339 – Requirements of Attractive Nuisance Doctrine. Courts are split onwhether judge or jury should decide these predicate factual issues.� D knew or had reason to know of likelihood of children in the area . Note:

“knew” is subjective; “had reason to know” really means that we don’t believe yourdenial. Does not mean “should have known.”

� D had reason to know about condition (subjective). Should have known it wasdangerous (objective).

� Type of risk of which P is unaware (Often treated objectively – what would a childof 13 years realize? But note that the Rstmt treats as subjective)

� Serious risk that D can get rid of easily (i.e. B<pL)� D fails to exercise reasonable care

Exception to “No Duty Rule” for Those Out of Possession: Leased land.Minority rule calls for a duty by landlord. Majority rule still holds that there is no duty.� Hidden danger that LL is aware of, but T is not� Premises leased for public use� Premises are under LL control, such as common stairways� Premises negligently repaired by LL or he promised to repair and didn’t

Sprecher v. Adamson Companies D’s land contains an active landslide which damagedP’s house, situated at the toe of the landslide. Held: The distinction which existedbetween artificial and natural conditions on land at common law should be eliminated.The landowner has a duty to exercise reasonable care to prevent harm.

Younce v. Ferguson P at party on D’s land when she was hit by another (drunk) guestdriving a car. Held: Social guests are licensees and are expected to take premises asthey find them. D did not have a duty to warn P of a known dangerous condition.

Poulin v. Colby College P was helping a friend to get to work on D’s property when heslipped and fell on ice. Held: P was an invitee at the time of the accident as he washelping one of D’s employees to get to work. Despite this, court holds that distinctionbetween licensee/invitee is eliminated. D owed P a duty of reasonable care.

Thunder Hawk v. Union Pacific RR P was injured while playing on a train in a trainyard. Held: A possessor of land is subject to liability for physical harm to childrencaused by an artificial condition on its land if the requirements of Rstmt §339 are met.

Sargent v. Ross P’s 4 year old daughter fell to her death from an outdoor stairway at abuilding owned by D. Held: LL is liable for injuries resulting from defective anddangerous conditions if they can be attributed to a hidden danger on premises leasedfor public use under LL’s control or where premises negligently repaired by LL.

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Breach of Duty

Note: consider different means by which party can be said to have breached in anygiven situation.

Substandard Care

Standard of care: what would a reasonable person do? Factors:� Risk is foreseeable� Precautions are not unreasonable (cost/benefit analysis)

Burden< probability of loss (Burden includes subjective as well as monetary costs)� We’re basically saying “it’s worth it” if burden is high and risk is low.� Reasonableness does not always equal custom (T.J. Hooper)

Note: if parties responsible, even where reasonable care was found, then this would bea theory of strict liability. Incentives to D’s: they would need to be overly cautious.Incentives for P’s: they would have no incentive to be careful. This is not efficientbehavior which we want to promote. Negligence theory promotes proper behavior forP’s; gives both sides incentives to be careful.

Grace & Co. v. City of Los Angeles P was storing coffee in D’s shed on LA harbor. Awaterline burst, flooding the shed and ruining the coffee. D’s policy: maintain, repair andreplace waterlines when a leak occurs, not before. Held: D was not negligent in failingto implement a preventative maintenance program. Burden of program wasprohibitively high. D only needs to take reasonable precautions, not all precautions.

T.J. Hooper Two barges were being towed by two tugs. The barges were lost off thecoast in a storm. The tugs did not have radios which would have enabled them toreceive weather reports. Held: although equipping tugs with radios was not a generalcustom, doing so would be inexpensive and would be a source of great protection.Injury was a result of the tugs being improperly equipped.

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Breach of Duty (cont’d)

Reasonable Person

Reasonable person = person of ordinary prudence. Are there exceptions that wouldcause us to hold to a subjective, rather than an objective standard?

Take intoAccount?

Comments? Case

Clumsiness No Evidentiary, efficiency,reliance and fairnessreasons

Menlove

Low mental ability No Evidentiary, efficiency,reliance and fairnessreasons

Insanity No/Yes Most courts don’t takeinto account in civilcases; if D has ability toforesee breaks withreality, may contribute tofinding of negligence.

BruenigJolley

Superior Skill/knowledge Yes Held to higher level ofcare than the ordinaryperson

Elliott

Physical characteristics (i.e. blind) Yes Blind person won’t be assafe, but puts moreeffort into being as safeas he can. B<pLsatisfied.

Roberts

Child Yes Age/mental dev./experience/intelligenceconsidered if childaccused as D or forcontributory negl. If theactivity is an “adultactivity”, precedent ismore unclear.

Charbonneau

Reasons for not accepting subjective standards in some cases (see above)� Evidentiary: Do we believe the claim? Trial becomes about D, not the accident.

Court reluctant to go into debates about who D is, rather than factual issues.� Efficiency: Encourage D to improve. Incentive to change.� Reliance: Protects P against D’s idiosyncrasies. Everyone lives by same standard� Fairness: Unfair to only require some people to live up to a standard. Some people

are systematically imposing more risks on others; to hold them to a lower standard isto subsidize their behavior. (Note: contentious, because we do subsidize somepeople. What causes us to make this distinction? Effort? Ability?)

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Reasonable Person (cont’d)

Reasons for requiring subjective standards in other cases (see above)� Evidentiary: In some cases, it is easy to determine whether D’s claim is true.

Degrees? Experience? Resume? Doctors? Age, etc. easily provable.� Reliance: Can usually tell when others are handicapped, young or know when

people are experienced. Expect them to behave accordingly.� Fairness: Arguments for fairness fall apart for the “superior skill” subset. Why is this

not a tax, if the other is a subsidy? For others (physical, age), it is admittedly asubsidy, but one that our society is comfortable with. It is harder for them to meeteven the lower standard that we hold them to.

Vaughn v. Menlove P owned two cottages near D’s land. D had a stack of hay on hisown land, but near P’s land, despite repeated requests and warnings. The hayfermented, ignited and fire spread to P’s cottages. Held: Jury is to consider whether Dexercised such reasonable caution as a prudent man would have done, not whether heacted to the best of his judgment. (Objective, not subjective.)

Public Service Co. of New Hampshire v. Elliott P is a student in electrical construction;he went on an inspection trip with his class to local public service company. P pointedto a glass jar when asking a question about it; current jumped to his finger and injuredhim seriously. Held: P’s conduct needs to be compared to that of a “reasonable man”in like circumstances, including his greater knowledge of the properties of electricity.

Roberts v. State of Louisiana P sustained injuries in lobby of post office when blindconcession stand employee bumped into him and knocked him down. Employee waswalking without his cane when he ran into P. Held: The standard of negligence is:what would the conduct of a reasonable person living with this handicap have been?Expert testimony indicates that employee’s actions were reasonable given his familiaritywith the surroundings, his mobility training and good skills.

Charbonneau v.Macrury P’s child, age 3, was killed when struck by an automobiledriven by D (age 17). Held: Standard of care for minors: conduct expected of areasonable man in like circumstances; age, experience and stage of development mustbe considered as affecting circumstances.

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Violation of Statute

Most courts hold that violation of statute is automatically negligence per se unless:� Something else is safer. Violate statute but not the purpose of the statute� Consider Tedla and Martin –In Tedla, P’s actions were safer than the statute; in

Martin, P’s actions were not as safe as the statute.� Impossible to comply (issue for jury: was a reasonable effort made to comply?

Consider Krebs and Fruend, p. 115)� Child ; statute not intended to displace the more forgiving standard of care normally

applied to children. Consider Morby v. Rogers, p. 110.� Note: if not negligence per se, revert back to our normal B<pL analysis.

Before deciding negligence per se:� Is P in the class of people statute was designed to protect?� Is the harm that which the statute was trying to prevent?� Note: just because doesn’t satisfy criteria for negligence per se, does not mean it is

not negligence. It will still go to the jury under a regular negligence analysis.

Reasons not to hold violation of statute as negligence per se, or to make exceptions:� We believe in letting juries decide: the “reasonable” person standard� We already have exceptions to the “rules”; different standards for some (i.e. kids).

Reasons to hold violation of statute as negligence per se� Legislature decides what is reasonable; we decide by voting. Respect legislature.� Certainty; won’t vary by person, age.

Martin v. Herzog P and husband driving in a horse and buggy without lights lit; D wasdriving in the opposite direction in a car. The two collided, killing P’s husband. Held:omission of lights required by statute is negligence per se. Lights are prescribed by lawfor the protection of others; it is a duty of care owed to others on the road.

Tedla v. Ellman P and brother struck by car while they were walking on the wrong sideof the road (heavy traffic on the other side). Held: the statute required them to walk onthe left, but prudence required them to walk on the right. Statute does not wipe outexceptions making different conduct prudent under unusual circumstances.

Gorris v. Scott D was carrying P’s sheep via ship. The sheep were swept overboard.D had failed to comply with an order requiring pens and footholds for animals; statuteprotects against overcrowding, the spread of disease. Held: Failure to comply with astatute intended to protect against a certain type of injury does not provide a basis forrecovery when the injury suffered is different than the one from which the law protects.

Potts v. Fidelity Fruit and Product Co. P bitten by a spider when unloading bananas forhis employer, allegedly due to a failure to comply with law. Held: In determiningnegligence per se, determine purpose of statute, whether the injured person is onewhom the statute protects and if the harm is one the statute intends to guard against.

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Circumstantial Evidence/ Res Ipsa Loquitor

In cases where we don’t know what happened, the jury has to find (1) what happened;and (2) is it negligent? Indirect evidence, general statistics are not circumstantialevidence sufficient to obtain a determination that something happened “more likely thannot.” What do we need?� Reasonable inference (>50%) (more likely than not, negl. In one of these ways?

Yates)� (Enough of a) Story

STORY � HAPPENED � BREACHi.e. Fall Sloppy

Stop Maintenance

Requirements of Res Ipsa Loquitor match the rough equation above:� Ordinarily doesn’t occur in the absence of negligence (Story – someone was most

likely negligent)� Under exclusive control of D (Happened – probably the D)� No voluntary action of P (Happened – probably not the P)� Some courts take res ipsa loquitor as doctrine: burden of proof shifted to D to show

no negligence. Other courts hold that it is permissive inference of negligence.

� First, consider breach issue – were actions reasonable?� Next, consider ability to prove through circumstantial evidence or res ipsa loquitor.

Yates v. Chappell Car accident in which P killed and D badly injured. On night inquestion, P and D left home of Ms. Garris; D was driving. Later, the car was foundcrashed against a bridge. D was under the steering wheel, unconscious. P was on theright side of the car. The highway was dry; there were no skid marks. Held: thecircumstantial evidence is sufficient, either alone or in with direct evidence, to establishactionable negligence on the part of D. Inference of negligence can not be establishedby conjecture, but what happened immediately prior to the accident can be establishedby circumstantial evidence.

Colmenares Vivas v. Sun Alliance Insurance Co. P and wife riding escalator at airport.Handrail stopped moving while steps continued to move. P fell, injuring himself. Held:Three requirements for res ipsa loquitor; if all are met, the jury may infer negligence inthe absence of direct evidence. (1) Accident normally doesn’t occur in absence ofnegligence; (2) Exclusive control of D; and (3) Not due to voluntary action of P. All threemet here; second requirement is met because D has a non-delegable duty. (Note: wedon’t necessarily agree with (1) – sometimes things just break.)

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Cause-in-fact

Goals of system:� Compensate injured people� Deter/punish people that breach� Why add requirement for causation? (Hard to analyze; seems intuitive)� Takes choice away from P to randomly choose a D� Easier for evidence.� Avoid arbitrariness; fairness – individual to individual liability� Moral sense of causation� Keeps us from singling out certain types of people

The “But For” Test

Question is not “did D cause injury”, but “did a negligent act of D cause the injury?”� “But for” Test

Injury would not have occurred but for D’s actions. If D had acted differently,the accident would not have occurred. (“A” cause, not “the” cause.)

In determining “but for” causation, consider:What is the negligent wrong? The way we describe the wrong may change the conceptof causation.� i.e. Kernan, p. 135 (Light on boat at 3 feet instead of 8 feet.) The negligent wrong

was in not having a light at 8 feet, NOT in having a light at 3 feet. The light at 3 feetcaused the accident; absence of a light at 8 feet did not cause the accident.

East Texas Theaters, Inc. v. Rutledge P was injured when the patron of the theaterthrew a bottle from a balcony, hitting P in the head. P alleges that D was negligent fornot removing “rowdy” persons from the theater earlier. Held: the record fails to showthat the bottle would not have been thrown “but for” the failure of D to remove the rowdypatrons. There is no evidence that the bottle thrower was one of those that would havebeen removed. What would have happened is purely speculative.

Marek v. Southern Enterprises, Inc. P was injured when patrons of a theater beganthrowing firecrackers. Throwing of firecrackers had been going on for several minutesbefore one exploded near P’s head. Held: theater owner may not be liable fordangerous situations in the beginning, but if there is time to correct the situation andprevent injury to his patrons, he has a duty to do so.

The Normannia P purchased a ticket on the Normannia to travel from Hamburg to NY.There was an outbreak of cholera in Hamburg; the US was quarantining ships fromHamburg. Before boarding, P asked if there were any steerage passengers on boardand was told that there were not (there were). There was an outbreak of cholera onboard the ship in steerage. Upon arriving in NY, the ship was quarantined for 13 days.Held: P would have been detained for a week anyway, so this must be deducted asindependent of D’s misrepresentations. Damages awarded for reduced period of timeminus the cost of the return ticket which he would have had to buy.

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Cause-in-fact (cont’d)

“Substantial Factor”

“But for” test is not really satisfied where there are two concurrent causes, althougheither actor’s negligence alone would have been sufficient to cause harm. Applicationof the “but for” test would absolve each D, although each is a tortfeasor and a cause.� Causation is said to be satisfied where either is a “substantial factor” in bringing

about the injury.� Sufficient Set of Conditions: The “NESS” test� Necessary element of a sufficient set of circumstances� Jury is told “is it a substantial factor?”� Ness test helps, but is sometimes incomplete; timing of two causes

sometimes comes into play. What actually caused the harm?

Northington v. Marin Claim of negligence by inmate against prison guard. Inmateclaims he was beaten by others in the prison as a result of rumors circulated by theguard that he was a “snitch.” The guard’s defense is that there was another source ofrumors also. There are two concurrent causes; either could have caused the beating,but we don’t know which actually did. Held: D’s action was in itself sufficient to bringabout harm to P. His negligence was a substantial factor in bringing about the harm,making him liable to P.

Loss of Opportunity

Loss of Opportunity doctrine enables plaintiffs to meet causation in medical malpracticecases:� “But for” causation can not be established, but “but for” causation can be shown

where loss of opportunity is recognized as the injury resulting from the breach.� Lost opportunity doctrine rejected by some legislatures.� Many courts won’t extend to cases where there is no loss of life.

Other ways that plaintiffs change definition of the injury to meet burden of causation:� Need for medical monitoring (most courts won’t accept)� Fear of contracting AIDS, cancer, etc. (usually not accepted)� Increased risk of contracting disease

Falcon v. Memorial Hospital P’s relative died as result of amniotic fluid embolism. Herdoctors did not have an IV connected to her; the survival rate is 37.5% if an IV isconnected before the onset of embolism. Held: 37.5% is a substantial loss ofopportunity to avoid harm. P must show that D’s conduct more probably than notcaused P’s injury, but loss of opportunity is recognized as a distinct injury.

Weymers v. Khera Ps’ experts testify that P would have had a 30-40% chance ofretaining kidney functioning if given proper care and diagnosed earlier. Held: Loss ofopportunity doctrine does not allow P to recover where opportunity is to avoid harm lessthan death.

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Collective Liability

Types of collective liability actions:� Alternative liability

� Rstmt §433(b)(3); p. 137) One of two actors caused the injury, we just don’tknow which. Burden of proof shifts to the Defendant. (Summers v. Tice, p.139)

� In reality, Summers is cited a lot, but rarely followed.� When D’s negligence has caused the confusion about causation (Summers),

then it seems appropriate to shift the burden of proof to D. His negligence hasdeprived P of the information he needs to prove causation.

� Concerted Action� Players conspired to commit tortious acts� Rarely used; hard to prove

� Enterprise Liability� Jointly controlled risk; individually conform to dangerous industry standards� Not used very often

� Market Share� Each pays percentage of damages according to share in market (courts vary in

application and in whether to allow market share at all)� Determine when, where, what playters part of relevant market back then� Public policy interests: fairness to victims, appropriate level of product safety

BUT compromises fairness to Ds, diverts resources which could be used forresearch to litigation.

� Shift burden to D to show he isn’t liable (need to be selective in applying so asnot to do away with causation test altogether. In some cases, we don’t think weare harming D in the aggregate. It works out in the end. i.e. mass torts)

Hamilton v. Accu-Tek Ps represent people shot and killed by illegally obtainedhandguns; Ds are the manufacturers of guns. Ps claim negligent marketing. Held:Summary judgment for claims of collective liability denied. Questions of material fact onP’s negligence theory exist. If D’s actions fostered growth of underground gun marketor if particular D causing injury is unknown, may apply market share or alternativetheory of liability.

Kurczi v. Eli Lilly and Co. DES exposure case. Legislative silence following previouscourt rulings on market share liability is a clear, implicit pronouncement that marketshare liability should not be allowed.

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Measuring the Plaintiff’s Injury

P has a pre-existing injury at time of tort. Injuries are difficult to separate.� Tortfeasor should only be charged with value of interest he has destroyed. Previous

injury taken into account.� Court leaves burden of proof on P to show causation (D aggravated injury), but

relaxes the burden: “do the best you can”� Jury apportions as best it can, but once causation satisfied, doubts are typically

resolved against the tortfeasor.� Burden is not shifted to the D. This is different from Summers v. Tice in which there

are two tortfeasors. Here, there is one tortfeasor and one innocent cause.

Subsequent event that displaces or modifies the effects of D’s conduct.� If trial occurred prior to subsequent event, damages would have been discounted for

possible early death, etc.� Neither party can adjust settlement when these future events occur after the trial.

Damages are a “best guess” that both live with.� If future event occurs before trial, there is no need to guess. D is only liable for

actual damages.� Consider Baker v. Willoughby. Full recovery allowed for leg (accident, then

shooting). Difference is that there were two tortfeasors, not just one.

Note: when science/natural causes, tend to go with “but for” causation. When twotortfeasors, tend to go with “NESS” test.

LaMoreaux v. Totem Ocean Trailer Express, Inc. Suit resulting from injuries sustainedin a car wreck. P had a pre-existing injury; it is impossible to separate the old and newinjuries. Held: D does not have the burden of proof and will not be held liable for theentire injury absent a showing of compelling injustice to P. Jury must do the best theycan.

Jobling v. Associated Dairies Ltd. P suffered a work related injury in 1973 whichreduced his earning capacity. In 1976, before trial, another unrelated event totallydisabled him. Held: The object is to place P in as good a position as he would havebeen in, not to place him in a better position. D is only liable for losses prior to 1976.

Dillon v. Twin State Gas and Electric Ps son was playing on a bridge on which D hadhung wires. Wires were insulated against weather, but not against contact. The boylost his balance on the bridge, grabbed the wire, was electrocuted and fell from thebridge. D deprived him of only a few minutes of life or of a life in which he was severelydisabled. Damages should take into consideration his crippled condition if he hadsurvived the fall.

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Joint and Several Liability

Injury and/or the tort is indivisible. Both tortfeasors are “but for” causes.Rstmt. 433B(2)� Either D is responsible for the entire amount of the harm, but D will have a right of

collectability against other Ds (protect P against uncollectability, shift risk to D.)� If P is suing both, he can’t get the full amount from each. The D’s share the burden

of P’s recovery� Burden of proof for apportioning shifts to Ds (2 guilty parties). Treated like joint and

several liability unless D’s can sort out which injuries belong to whom.� Sometimes joint and several, not because it is really, but because D’s can’t separate

injuries and jury is unable to make even a rough apportionment. (Landers, p. 181)

Baylor University v. Bradshaw P was injured in a collision between Baylor’s bus and atrain (P was a passenger on the bus). Held: The collision and resulting injuriesconstituted a single, indivisible tort. The negligence of each D was a contributingproximate cause. It is a joint tort.

Maddux v. Donaldson P was injured in a collision when he hit a skidding car in front ofhim and was then hit by a car from behind. Although these are technically twoindependent, tortious acts, the confusion in damages results from the wrongs of thetortfeasors. If the jury is able to separate the damages, then liability may beapportioned. Otherwise, the injury will be treated as indivisible and the tortfeasors willbe held jointly and severally liable.

Note: debates on this issue with the rise of comparative negligence (see below).

Comparative negligence rules allow the jury to allocate liability among defendants injoint and several liability cases. Ds make a percentage, rather than a per capita,contribution to P’s recovery. Creation of issues making this difficult!!� What about requirement that D1 pay entire award if D2 is insolvent? New system

makes this seem more unfair than before.� Comparative negligence system has also undermined assumption that it is better for

a guilty tortfeasor, rather than an innocent P, to pay. P may not be innocent.� What about cases where D1 has 1% liability (but deep pockets) and D2 has 99%

liability (and is insolvent). If P only sues one D (the one with deep pockets),jurisdictions vary on whether to ask jury to apportion liability anyway.

� What if D1 settles before the verdict and the other doesn’t? Full J&S liabilityrequires D2 to pay the difference (if there is one). Some jurisdictions give apercentage reduction or a dollar for dollar credit to D left in lawsuit.

� About 10 jurisdictions have done away with J&S liability by statute. 10 have kept thetraditional rule. 30 have modified J&S by statute (i.e. only pay where D abovecertain percentage of liability, redistribute insolvent D’s liability among other D’s andP according to their share, or allow J&S for medical bills, but not pain and suffering.)

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Proximate Cause

Debate over what is “proximate cause” and what is “duty.” Makes a difference indetermining whether it is a question for the judge (duty) or the jury (proximate cause).

Strict Liability vs. Foreseeable Liability – “Directness” test vs. “Foreseeability” test

Negligence Injury

Foreseeable Direct

Foreseeability test prevails by and large, but there are some types of products wheredirectness test is used (i.e. defective products).� Is it reasonably foreseeable? Use an objective standard, but note that some

provisions for handicaps etc. still apply� How specific does the foreseeability have to be? (Type of injury or specific

injury?) “Mechanism Rule” = Type of harm is enough.� How many injuries is D responsible for? “Extent Rule” i.e. “eggshell skull.” D

takes the plaintiff as he finds him. Resolve problem in favor of the innocent party.� What about an Intervening Human Cause?� Jury determines if foreseeable. If IHC is criminal or intentional, may consider.� Some courts hold that IHC is real tortfeasor.� Medical malpractice and resucers are foreseeable IHC: “danger invites rescue”

Pros/Cons of Directness Test� Cons: too much liability – not a strict liability system; proves too much� Pros: “Out in open”; compensates P; if not happy with negligence system in general,

we can alleviate by allowing strict liability in small waysPros/Cons of Foreseeability Test� Cons: doesn’t always seem fair to P; use objective or subjective standard?� Pros: foreseeability used in breach analysis already, analysis resonates with fault-

based system, encourages prevention

Wagon Mound I (Victory of foreseeability test) D’s negligence caused furnace oil toescape under P’s wharf. Ps resumed welding. The oil ignited; fire destroyed the wharf.Held: D should only be liable for foreseeable consequences of his negligence.

The Glendola The Tilford & the Glendola collided. The Tilford couldn’t be pulled in bytug due to damage; it drifted upstream, causing more damage. Held: This does notrequire a determination on directness v. foreseeability test. D is liable under either.

Palsgraf v. Long Island RR Co. RR helps passenger catch (moving) train. Packagecontaining fireworks is dropped; explosion injures P, who was standing at the other endof the platform. Held: The guard may have had a duty to passenger, but not to P.

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Vicarious Liability

Under what circumstances and in what relationships will D be held liable for the tort orbreach of another?� Relationships:� Employer/employee (Note: does not include independent contractors.)� Partners� Principal/agent� Joint enterprise/concert of action

� Conduct must be within the scope of the relationship. Small departures generally donot take you out of scope (i.e. cigarette break).

Damages

Requirement for prima facie case of negligence (not so with intentional torts). Whatkinds of damages are recoverable?� Past/future medical bills� Past/future lost wages� Past/future loss of property (or to repair)� Past/future pain and suffering (emotional loss from disfigurement, etc.)� Loss of consortium

How are these damages measured?� Lump sum awards (judgments) v. scheduled awards (settlements only)� Taxes on wages? Most courts award after tax wages. (Actual amount P would

have received, although before tax wages are the real social damage.) Note thattort damages are not taxable.

� Take inflation into account. Likely promotions, etc. may also be considered.� Discount to present cash value. (Only for the “future” damages component)� Prejudgment Interest. For “past” damages – most courts will grant. All courts

grant postjudgment interest (i.e. while waiting for appeal).� Collateral Source Rule. Someone other than the tortfeasor is reducing the financial

burden on P. Most courts hold that D should pay as if there were no collateralsource. P should benefit from the windfall, not D.

� Punitive Damages. Awarded for intentional torts or where recklessness or grossnegligence. Controversy surrounds limits, caps, etc.

� Death. At common law, there was no cause of action for death, and death (of eitherparty) cut off any existing cause of action. Today, a cause of action for death existson behalf of the dependents – a wrongful death claim. Claims existing at D’s deathsurvive and may be brought by his estate – survival actions.

Wrongful Death Actions� Cause of action for survivors. Recover for loss of support, etc. Most have now

expanded beyond economic loss and include claims for grief, emotional loss.� Can only recover if death was wrongful – i.e. if decedent had been alive, would he

have been able to recover?

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Reconceptualizing the Duty and Breach Issues

Over the last 10 years or so, there are a number of cases that can not be explained byour standard negligence model (i.e. Duty/Breach/Prox. Cause). There seem to be twomajor changes in the system being pushed forward by these cases.� The line between duty and breach is being eliminated� Background on the duty rules is being switched. Instead of assuming “duty” with “no

duty” exceptions, the cases seem to assume a “no duty” background with exceptionswhere “duty” will be found.

What is the cause of this change?� Our current system empowers juries. Judges can not overturn juries on factual

issues. They get more power to overturn by melding the breach and duty issues.� Perhaps tort reform issues having an impact. Want to control jury awards that are

being handed out.

Note additional cases:� Greater Transp. Of Houston v. Phillips Taxicab company has no duty to keep

taxicab drivers from carrying guns and shooting people in car accidents.� Safeway – Court holds that it will “impose new duties” when policy considerations

support. (Customer slips on grape on floor.)� El Chico – Court again asks, “Should we create a new duty?”� In each, the court considers or creates a “new duty.” They hold that whether

there is a duty is a judgment of policy that takes into account the foreseeability andgravity of the harm and the social value of the activity imposing the harm – B<pL(sounds like breach analysis!). The breach and duty issues are collapsed the“duty” assumption is flipped. Each could have been analyzed under thetraditional model without talking about a new duty.

Stagl v. Delta Airlines D, as an owner/occupier of land, owed P a duty to takereasonable steps to maintain the safety of its baggage retrieval area. Reasonablenessof D’s conduct is a jury issue. The trial court wrongly granted summary judgment inholding that D had no duty to control the crowd.

Kentucky Fried Chicken v. Superior Court P was held at gunpoint during a robbery ofD’s store. Held: This court will not create a duty for owners of stores to comply withrobber’s threats. Doing so may encourage robbers to commit crimes, knowing thatshopowners would be under a legal duty to comply.

McCarthy v. Olin D is the manufacturer of the “Black Talon” bullet. P’s relatives werekilled with the bullet in a subway shooting. Held: There is no products liability actionhere. The bullet did exactly what it had been created to do. There is no reason tosearch for an alternative safer design for a bullet. This court will not impose a duty onmanufacturers to control the distribution of potentially dangerous products.

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Contributory Negligence

To show contributory negligence, D has to show the same things about P’s conduct thatP had to show about him: Duty, Breach, Cause-in-fact, Proximate cause� Note: treated as mirror image, but in reality, courts may make distinctions – i.e.

mental ability may be taken into account for reasonableness analysis.

Old system barred any recovery by P if negligence was shown on his part. In the late60’s or early 70’s, the system began to change from a contributory negligence system toa comparative negligence system. Negligence on P’s part could be found to reduce,rather than bar, his recovery. All but 5 states have adopted this new system.

Comparative Negligence

Jury is asked to assign a percentage of liability to each party. The comparison is NOTfor causation, but for liability. The award to P is reduced by the amount of hisnegligence. Consider hypo:

Jury assigns:P 10% (wasn’t looking) P’s damages $100,000 – he gets $90,000D 90% (drunk driver)

Three comparative systems:� Pure comparative responsibility system (P gets comparative reduction up to 99% )� Modified 50% comparative responsibility system (P recovers if his liability is less

than all D’s – i.e. no recovery at 50% .)� Modified (51%) comparative responsibility system (P recovers if his liability is not

greater than all D’s – i.e. recovery at 50%, but none at 51% .)

What if both parties have damages?� If full insurance coverage, there is no set off. Each party’s insurance company pays

full damages owed by that party. Otherwise, one insurance company would not endup paying its share.

� If partial or no insurance coverage, then the awards are set off to protect the partiesagainst the insolvency of the other.

Ameliorative Doctrines

To offset the harsh effects of the contributory negligence rule, courts had developedseveral ameliorative doctrines operating as exceptions to contributory negligence rule:� Last clear chance rule: P negligently put self in peril, then D is negligent, then injury.

D had last chance to avoid situation, so forgive P’s negligence.� P’s negligence counts against a negligent D, but can be forgiven against a D who

has been willfully, wantonly or grossly negligent. Darenberger.� Emergency doctrine: can forgive P’s negligence if it occurred in a stressful context.� These doctrines are usually not enforced anymore. There is no need to ameliorate

these effects now that the comparative negligence rule has alleviated the harshnessof the contributory negligence rule.

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Contributory Negligence (cont’d)

P’s Negligence As An Aggravating Circumstance

What if P’s negligence didn’t cause the accident, but it simply aggravated an injury?� Avoidable consequences (i.e. not wearing a seatbelt – some states have statutes

which do not allow this to be entered into evidence)� Failure to mitigate damages (i.e. going back to work too soon)

Under new system, P still recovers for full amount of original injury, but aggravatedinjury is reduced by the amount of P’s fault. Note: in old system, failure to mitigatedamages would also have barred any recovery by P.� Unfortunately, in real life, it is difficult to separate who caused what.

Assumption of Risk

Two types:� Express (contractual) assumption of risk: enforceable if clear and unambiguous.� Implied assumption of risk: P knew of risk and voluntarily undertook it. At common

law, constituted a bar to recovery. After adoption of comparative negligence, thischanged.� If P’s conduct is unreasonable, A.R. is going to reduce recovery under

comparative negligence analysis, rather than barring it altogether.� Where P’s conduct is reasonable, conduct may not be counted against P at all.� Many courts have just done away with A.R. altogether. Why have it? It falls

under comparative negligence analysis anyway – the same factors get taken intoaccount when a jury apportions liability.

Exceptions to the Rule:There are still cases where we feel like P voluntarily entered into participation ofsomething that could be dangerous – particularly sporting events.� Some courts have replaced old A.R. analysis with a new one where recovery is

barred. The cases falling under this rule are narrowly defined.� Some courts call it “no duty” instead. Participants in sporting events do not owe a

duty of reasonable care to each other. Their duty is to not act willfully, wantonly orwith gross negligence towards each other.

goals of defined rules of torts: impartial justice avoid

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