negligence notes

8/10/2019 Negligence Notes

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NegligenceLooks at the Ds conduct and says did they intent to do something? If not, should they be held liable?

Should liability attach? Were they acting as a reasonable person would? Pinning liability on P and saying

D may also be partially responsible. Would cut Ds award by how contributory they are.

I. Introduction

In order to prevail for negligence:

a) Negligence is the omission to do something which a reasonable person would do

OR

b) Negligence is doing something which a prudent and reasonable person would not do

Rule:Liability for negligence requires that the D has a dutyto prevent a foreseeable harm to someone

like the P; the D breached that dutyby failing to exercise the care that a reasonable person would have

exercised; and the Ds breach of that duty was the actual and the proximate cause of the Ps harm.

Elements:

1) Duty

2) Standard of care

3) Breach of duty

4) Causation

a. Cause-in-fact (actual)

b. Legal (or proximate cause)

5) Injury or harm (i.e. Damages)

6)

(Min) Freedom from contributory negligence

Dutywhat would the reasonable person do

1) Duty: A legal duty requiring the D to conduct himself according to certain standards

2) Standard of Care: The most common standard of care requires that the D act as a reasonably prudent

person would in the same or similar circumstances

3) Breach of Duty: The D fails to meet the standard of care

4) Causation:

a) Cause-in-Fact (Actual): The Ps injury is caused but the Ds conduct. But for the Ds conduct,

the P would both have suffered the injuryb) Legal (or Proximate): the Ds conduct must be shown tobe the proximate or reasonably

significant cause of the Ps injury

5) The P suffered a cognizable injury

Contributory Negligence


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Conduct on the part of the P which falls below the standard of conduct to which he/she should

conform for his own protection, and which is a legally contributing cause cooperating w/the

neg. of the D in bringing about harm to the P.

a) (Maj)Cont. neg. is an affirmative defense that the D must raise and prove

b) (Min)P is reqs to prove that she is not contr. Neg

Comparative Neg (some jurisdictions)just for notes

If below 50% contributorycan recover

If above 50% contributorycannot recover

Risk is not judged by results

The P cannot simply show that the Ds conduct resulted in a terrible injury, but must show that the Ds

conduct, viewed as of the time it occurred, w/o the benefit of hindsight, imposed an unreasonable risk

of harm

*Have to put injuries aside and focus on behavior

II. Duty of Reasonable Care

A. The Objective Standard

Vaughn v. Menlove

Issue:Whether there exists a C/A for neg. if a person acts in conformity w/his own best judgment,

although this judgment causes him to behave in a less reasonable manner than a person who possesses

ordinary prudence?

The Reasonable Person:

Objective Standard:Would a reasonable person of ordinary prudence, in the position of the D,have conducted himself as the D did?

The hypothetical reasonable person does bear some of the characteristics of the actual D.

Mental Attributes:

The ordinary reasonable person is NOT deemed to have the particular mental characteristics of

the D.

In other words, the D is not absolved of neg. b/c he is more stupid, hot-tempered, careless or of

poorer judgment than the ordinary reasonable person.

Imbecility:

(Maj) A mental state so low, however, that is must be considered imbecilic or moronic, and

which prevents the actor from even understanding that danger exists, will relieve the actor of

neg.

(RST & Min) The restatement does not adopt the maj rule that mental deficiency may neither

relieve a person of negligence nor relieve a P of contributory neg.


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Holding:The D is not entitled to a jury instruction that he is not negligent if he acted in good faith and

according to his best judgment, and that he should not be penalized for not being of the highest

intelligence. Instead, an objective standard, the prudence of an ordinary person, must be applied.

Rule:The standard of care is founded upon the judgment of the person of ordinary prudence, not the

subjective judgment of the D, even if the judgment was based on an honest attempt to act reasonably

B. Actual & Constructive Knowledge

Parrot v Wells, Fargo & Co.,

Issue: Whether upon this state of facts the P is entitled to recover for the injuries caused by the

explosion to his buildings, outside of that portion occupied by the D under their lease.

Negligence Defined

a) Negligence is the omissionto do something which a reasonable person would do

-OR-

b) Negligence is doing somethingwhich a prudent and reasonable person would not do.

Holding: The measure of care against accident, which one must take to avoid responsibility, is that

which a person of ordinary prudence and caution would use if his won interests were to be affected, and

the whole risk were his ownno case or principle can be found or maintained subjecting an individual

to liab. For an act done w/o fault.

***a reasonable person would have opened the box***

Problems:

A. P could no longer be said to be ignorant of the possible danger. Armed w/such knowledge, thereasonable shipper would have taken some reasonable precautions (perhaps either refusing to ship the

crate or at least marking it as dangerous and explosive so that nobody would take a hammer to it).

D. Employees awareness of the possibility of the crates potential danger would suggest the need for

some precaution. The failure to act differently would suggest negligence.

III. The Reasonable Person Under the Circumstances

A. Extraordinary Knowledge and Skill

Cervelli v. Graves p.162

Issue: Whether the trial court erred in giving a jury instruction that the jury was not to consider a

persons skills in determining whether that person is negligent.

RST 289

The actor is reqd to recognize that his conduct involves a risk of causing an invasion of anothers

interest if a reasonable man would do so while exercising:


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(a)such attention, perception of the circumstances, memory, knowledge of other

pertinent matters, intelligence, and judgment as a reasonable man would have; and

(b)such superior attention, perception, memory, knowledge, intelligence, and judgment

as the actor himself has.

Holding:The objectionable lang. of the instruction is surplus lang. which rather than clarifying the

fictional concept of the reas. person, actually unduly limited it We hold that the trial court committed

reversible error in using it to instruct the jury.

B. Physical Disability

Poyner v. Loftus p. 165

Issue:Whether SJ was appropriate b/c the P contends that there was genuine issue of material

fact as to whether as a blind person the P exercised reasonable care

Contributory NegligenceDefense

To est. a defense of C/N, the D must show by a preponderance of the evidence that the

P failed to exercise reasonable care.

CAVEAT: In exceptional cases only will the Ps actions be clear and unambiguous so that

C/N will be found as a matter of law

Rule:A blind or otherwise handicapped person, in using public ways, must exercise for his own

safety due care, or care commensurate with the known or reasonably foreseeable dangers. Due

care is such care as an ordinary prudent person with the same disability would exercise under

the same of similar circumstances.

Holding:We agree with the courts both in Smith v Snellerand in Coker. Like the P in Smith, but

unlike the P in Coker, the P was alone, and he used neither a cane nor a seeing eye dog. He also

looked away at the critical moment. Under these circumstances, the P was contributory

negligent as a matter of law.

C. Mental Disability

Creasy v Rusk

Issue:

1. Whether the general duty of care imposed upon adults with mental dis is the same at that for

adults w/o mental dis

2. Whether the circumstances of the Ds case are such that the gen duty of care imposed upon

adults w/mental dis should be imposed this D


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RSST 238B

Unless the actor is a child, his insanity or other mental deficiency does not relieve the actor

from liability for conduct which does not conform to the standard of a reasonable man under

like circumstance.

Prior Indiana Law as quoted by the Court of Appeals

A persons mental capacity, whether that person is a child or an adult, must be

factored [into] the determination of whether a legal duty exists.

Determination of whether a duty is owed

1. Relationship between parties

2. Reasonable foreseeability of harm

3. Public policy concerns

Holding:We hold that adults with metal disabilities have the same general duty of care toward

others as those without. But we conclude that the relationship between the parties and public

policy considerations here are such that the D had no such duty to the P.

Problems p. 174

A. The reasonable person would not be mentally impaired and thus would likely have not

swerved into another lane causing the accident.

B. Because the victim is a random stranger rather that the patients caregiver, the patient

would likely still have a duty of reasonable care and the fact of mental impairment would offer

no excuse for the seemingly negligent act of throwing rocks into the street.

D. Children

Robinson v Lindsay p. 175

Issue:Whether a minor operating a snowmobile is to be held to an adult standard of care.

Standard of Care: Reasonably prudent person in the same or similar circumstance

WPI 10.05 In considering the claimed neg. of a child, you are instructed that it is the duty of a child

to exercise the same care that a reasonably careful child of the same age, intelligence,

maturity, training, and experience would exercise under the same or similar

circumstances.


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Child Standard Rule

The standard to be applied to minors is to act as a reasonable child of like: (1) age, (b)

intelligence, (c) maturity, (d) training and experience.

EXCEPTION: The adult standard of care is applied when the D child is operating a

powerful motorized vehicle, engaging in traditional adult activities, or participating in aninherently dangerous activity.

Holding: No, where a child engages in an inherently dangerous activity, the child will be held to

an adult standard of care, even though the general rule is that a child is held to a standard of

the reasonable child of like age, intelligence, and experience.

Problems A & B p. 178

A. Bowlingchild standard

Bowling is normally done by children and not typically associated with catastrophic injuries ifdone improperly. A child standard should be used.

B. Driving

The child who simply handed the keys to another child has not done something unusually

dangerous or inappropriate for a child. A child standard should apply to that child. However,

the other child drove and should be held to an adult

Hypo

Jill on ATV hits a bump and knocks someone off who breaks their armliable

What standard? Adult

Jack loads shotgun and shoots David in the footliable

What standard? Could go either waydepends on jurisdiction

E. Extraordinarily Dangerous Activities

Stewart v Motts p.179

Issue: Whether there exists a higher standard of extraordinarily care for the use of

dangerous instrumentalities over and above the standard of reasonable care such that the

trial court erred for failing to give an instruction to the jury that the D should have used a highdegree of care in handling gasoline.

Holding:We find that the charge when read as a whole adequately instructed the jury as to the

proper standard of care. There is but one standard of care and that is the reasonable care or

ordinary care.

Problems B & C p.182


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B: Using the proportionality principle underlying reasonable care, one could argue here that the

D clown could have easily perceived possible danger from doing tricks on a motorized vehicle in

close proximity to spectators. One would expect some precautions to be taken and the failure

to do so might be considered negligence.

C:Failed to do what a reasonable person would do.In this instance, the close proximity to certain death w/o guardrails would argue for a greater

amount of caution, utilizing the duty of reasonable care. This problem also makes one wonder

why Colorado highway officials allow so many high altitude roadways to go w/o simple, cost-

effective guardrails.

F. Sudden Emergency

Myhaver v Knutson p.183

Issue:Whether the sudden emergency doctrine should be abandoned entirely and as applied inthe present case.

Sudden Emergency Doctrine:

An emergency is defined as a sudden and unexpected encounter with a danger which is

either real or reasonably seems to be real.

Limitations:

1. Emergency must arise suddenly and unexpectedly; and

2. The actor did not create the emergency

PennsylvaniaMcKee v Evans

The court concluded that the [sudden emergency] instruction was not favored and

should be given only in those cases in which evidence showed that:

1) party seeking instruction had no prior negligent;

2) emergency was sudden and unexpected; and

3) reaction was spontaneous.

Holding:We conclude that the trial judge did not abuse his discretion in giving the instruction.

This is a case in which there was no evid. of antecedent neg by the D.no question that therewas an emergency.reaction was spontaneous

*Sudden emergency doctrine is not available in all jurisdictions, some allow it some, and some

only allow it certain circumstanceNOT A UNIVERSAL DOCTRINE

*DOES NOT alter or diminish the standard of care! Still must act within what a reasonably

prudent person would do.


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Driving with Ms. Daisy

While Daisy is driving with Sally, Sally screams because she found her phone in the glovebox,

Ms. Daisys attention, momentarily drawn to her daughter and away from the road, slams into

the car ahead of her which is stopped at the light. Ms. Daisy has an accident. Is Ms. Daisy

negligent? Would not be sudden emergency doctrine b/c not strong enough to constitute an

emergency.

IV. Proving Breach of Duty

A. The Learned Hand Formula

If the burden of preventing the injury (B) is lower than the product of the probability (P) of its

occurring and the amount of harm (L) that it will cause, then there is a breach of the duty of

care and liability for negligence exists.

B


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RP child of like age, intelligence and experience

EXPCEPTION: unless the child is engaged in an inherently dangerous activity

Mental Illness

An indiv who suffers from a preexisting or permanent illness will not escape neg. liability

Exception: IF the mental illness is sudden thus depriving the indiv of control, then theindiv will escape liability

McCarty v Pheasant Run, Inc. p. 187

Issue: Whether the lower court erred in failing to grant the Ps motion for a j.n.o.v. on the

grounds that any reasonable person would determine that the Ds actions were negligent.

Duty:what an innkeeper is reqd to do to keep guests safe.

*How much would it have cost for each room to have a better lock?

*This is the burden of the Plaintiff to prove

Holding:Having failed to make much effort to show that the mishap could have beenprevented by precautions of a reasonable cost and efficacy, the P is in a weak position to

complain about the jury verdict. No effort was made to inform the jury what it would have cost

to equip every room.with a new lock, and whether the lock would have been jimmy-proof.

Problem p. 192

A.

Burden of precautionthe attorney would want to know where the D was driving and

whether there was any great need to be there at a part time

Forseable risk of harmthe attrny would want to ask about all of the visible info avail tothe D drive

o How much visibility was there aroundt he curve

o Were there any trees that interfered with being able to see

o Was it a populated area

o Did he know ther were homes

o What time of day was it

o Was the driver familiar with the road

o Did this area have a history of many similar accidents

o

Had this driver ever seen or been involved in such an accident as this one?

B. Negligence Per SeViolation of Statutes

1. Origins & Rationale

Definition: Negligence per se requires proof of a statutory violation


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Negliegence per se Doctrine

Neg is established as a matter of law so that breach of duty is not a jury question, arising

from a violation of a criminal statute.

*Failed to follow the lawduty of care automatically breached

Martin v Herzog p. 193

ISSUE: Whether the unexcused omission of a statutory duty constitutes negligence per se?

Statute: Highway Law, 329a.

Lights are intended for the guidance and protection of other travelers on the highway

HOLDING: Yes, the unexcused omission of the statutory signals is more than just evid of neg; it

is neg in itself

However, a causal connection b/t the neg and the harm must also be shown

Neg. per se is merely a shortcut for establishing duty and breachstill have to show cause

Rule:

(Maj)If a person neglects to perform the specific duty est. by statute or municipal

ordinance for the protection of benefit of others, then that personis liable for the

resulting injuries to those persons whom the statute was designed to protect.

(Min)Statutory violation is never more than evidence of negligence, which the jusy mayfind is outweighed by the other evidence of due care

Neg. Per se Doctrine

General Rule: When a safety statute has a sufficiently close appln to the facts of the case, an

unexcused statutory violation is deemed to be neg per se, and the D will not be permitted to

show that the legislature set an unduly high std of care.

Balancing test: greater risk of harm to following the statute or disregarding it?

Test of Statutes Applicability

To determine whether a statute can be used to est the std of care in a neg C/A, the judge must

determine that:

1) the statue sought to protect against the Ps particulary injury; and

2) the P is a member of the class that the statute intended to protect


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Public Protection Exception

1) Where the statute is intended to protect only the interests of the state or the public

at large, and not to protect particular individuals against harm, the vilation will not be

NPS.

2) A statute may be held to have been intended to protect both the public at large aswell as a particular class of individuals. The violation may be NPS.

Ordinances and Regulations

Where a case involves a violation of a local ordinance or administrative regulation, cts.

That typically follow the majority rule w/r/t legislative statutes will apply the minority

holding that such violations are merely evid of negligence

2. Type of Harm and Membership in a Protected Class

Elements:To apply the doctrine of negligence per se, the P has the burden of proving that:

(1) D violated a statute that prohibited certain particular conduct

(2) That the statute was intended to protect against the harm for which recovery is sought; and

(3) That the victim harmed by the violation was part of the classof persons for whom the

statute was intended to provide protection

*Does it apply to the purpose of the statue?

*Harm needs to relate to the statute

*Needs to protect a particular class of person

Wawansea Mutal Insurance v Matlock p. 197

Issue: Whether the lower court erred in finding the D liable for the harm and thus responsible

to the P under a theory of negligence per se

Whether there is a basis to the D liable for the damage caused by the actions of the other

tortfeasor

Tortfeasors

Concurrent:two or more tortfeasors who simultaneous actions cause injury to a third

party (tortfeasors are jointly and severally liable)

Joint:two or more tortfeasors who contributed to the Ps injury and who may be joined

as Ds in the same lawsuit

Successive: two or more tortfeasors whose neg occurs at different times and causes

different injuries to the same 3rd

party


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Rule:

In general, one injured by the neg of another is entitled to recover the damages proximately

caused by the tortfeasors act and the P has the burden of proof to establish that the Ds neg

was the proximate cause of the damages.

Contribution:

One tortfeasor right to collect from joint tortfeasors when and to the extent thatthe

tortfeasor has paid more than his or her proportionate share to the injured party, the shared

being determined as percentages of causal fault (also known as the right of contribution)

Indemnity

A duty to make good any loss, damage, or liability incurred by another

The right of an injured party to claim reimbursement for its loss, damage, or liability

from a person who has such a duty.

Equitable Indemnity

A doctrine allowing a D in a tort action to allocate blame to a co-D or cross-D, and

thereby proportionally reduce legal responsibility, even in the absence of contractual

indemnity

Negligence per se

The doctrine of NPS does not apply even though a statute has been violated if the P was not in

the class of persons designed to be protected or the type of harm which occurred was not the

one the statute was designed to prevent

3. Excuse

Sikora v. Wenzel p. 201

Issue:

Whether the D is liable for injuries and harm resulting from the collapse of a deck

although the D had no notice of the existence of a defect

Whether the lack of actual or constructive notice of a defect excuses the violation of the

building code

Deck was not in compliance with safety codes, but landlord did not have any knowledge or

defect. Deck collapsed. Should the D be let off the hook?

Holding:We conclude that the statute requires landlords to conform to particular standards of

care, the violation of which constitutes neg per seNo factual circumstances existed that would


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have prompted or reqd the D to investigate the process between the City and developeror

that the D knew or should have known of the condition giving rise to the violationviolation is

excused.

Notes:Need to determine what he knew and how he knew it: Did he try to fix it? Did he receive a

report? Was defect visible? Constructive knowledgewith respect to your propertyhave to

make a reasonable inspection of your property

4.Industry Custom

Issue:Whether the failure to carry radio receivers by which the defendants could have received

timely warnings of the weather change

Courts must in the end say what is reqd; there are precautions so imperativethat even

their universal disregard will not excuse their omission. But here there was no custom at

all Some had them, some did not; the most that can be urged is that had not yet

become general

o This case is not just about radios, it is also about what should be donethe

seamen had their own personal radios, so the industry custom is wrong

Holding:We hold the tugs [liable] b/c had they been properly equipped, they would have got

the Arlington reports. The injury was a direct consequence of this unseaworthiness.

Custom & Usage

(Maj) The cts. Allow evid. as to custom or usage for the purpose of showing the

presence or absence of reasonable care, but they do not treat this evid as conclusive

CAVEAT: Even though custom or usage is not conclusive on the issue of neg, if there is

no rebuttal evid., the fact that the D did or did not follow the custom or usage may be

sufficient to prevail

Look to RSST 295(a)

Rule:

When proof of an accepted practice is accompanied by evid that the D conformed to it,

this may establish due care

When proof of a customary practice is coupled w/ a showing that it was ignored and

that this departure was a proximate cause of the accident, it may serve to establish liab.


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If the court says we are not going to give custom the standard of caredoes not mean you

wont be held personally responsible

Traditional Standard of CareRPPSSNPS/custom just show ordinary standard of careif

they are not availablethe RPPSS still appliescourt may not apply NPS/Custom for some

reason (NPS and/or custom are just a shortcut to show RPPSS standard)

5. Personal Custom

Wal-Mart v Wright

Issue:

Whether the second paragraph of the tendered jury instruction permitted the jury to

evaluate the Ds conduct based upon the subjective standard established by the D or on

a objective standard of ordinary care

Recommended Jury Instruction

You may consider the violation of any rules, policies, practices and procedures

contained in these manuals and safety handbook along with all of the other evidence

and the Courts instructions in deciding whether Wal-Mart was negligent

Holding:

The second para of the instruction told the jurors that b/c the D has established certain rules

and policies, those rules and policies are evid of the degree of care recognized by the D as

ordinary careThe D is correct that its rules and policies may exceed its view of what is

required by ordinary care in a given situation.

Hypo:

Peter jaywalks and crosses the street and David hits him. Is David negligent?

o Context changes expectationsnighttime, daytime

o Yes

Jaywalking is a statutory violation in Mo laws and anyone in violation of the statute is

contributory negligent. Can Peter state that it is custom to jaywalk and thus evade being

contributory negligent?

o No,

o Can you use custom to challenge statutory care? No

o Custom will not excuse the violation of a statute, but it may affect what the

reasonable person will do. Drivers on a street where pedestrians jaywalk may

need to take the presence of jaywalking pedestrians into account as they drive.

The pedestrian on the other hand, could not use custom to excuse their violation


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of the statute if, for example, violation of the statute constituted contributory

neg per se in that jurisdiction

C. Res Ipsa Loquitorthe thing speaks for itself; things dont happen just to

happenhow to hold D liable when no direct evidence of that breach?

1. Direct Evidence: Evid based on personal knowledge or observation and

that, if true, proves a fact w/o inference or presumption (also termed pose

vid)

2.

Circumstantial Evidence: Evid based on inference and not on personal

knowledge or observation (also termed indirect evid; oblique evid)

3.

Res Ipsa Loquitur (RIL or res ipsa): The doctrine provides that, in some

circumstances, the mere fact of an accidents occurrence raises an

inference of neg. so as to establish a prima facie case.

Rule:

The fact of an injurys occurrence, taken w/the surrounding circumstances

may permit an inference of neg. or raise a presumption of neg., or make

out a Ps prima facie case, and presents a question of fact for the D to mee

w/an explanation

Byrne v. Boadle

Issue:Whether a presumption of neg. can arise solely from the fact that an accident occurred?

Holding: Yes, according to the doctrine of res ipsa loquitour,

Required for Res Ipsa:

(1)

The nature of a particular accident suggests that it was probably due to negligence(2)

The D had exclusive control over whatever caused the accident (such that it was the Ds

negligence)

(3)The P lacks direct evidence of the event relative to the information available to the D

1. no direct evidence of the Ds conduct (if we know how the D behaved we DO NOT use res

ipsa)


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2. SELDOMLY OCCURRING:

a.

P has to demonstrate the event does not normally occur except through the act

of neg. itself, all the P has to do is show that most of the time neg. occursnot

all the time

b.

P does not have to show there are no other possibilities that could have causedthe accident, just have to show a 50% probability

3. DEFENDANTS CONTROL

Older cases show it must have been in exclusive controlmodern cases require only that that

the P show that MORE LIKELY THAN NOT the D was in control and not someone else.

Must produce evidence negating other probablitites and show it is more likely than not

that the D was responsible

D can negate res ipsa breach if they can offer up someone else was in controlthey will

escape liability

Res Ipsa Requirements:(from slides)

1. No direct evidence of Ds conduct

2. Ordinarily event does not occur w/o neg

3. Instrumentality in Ds control

RTT 17:

The factfinder may infer that the D has been neg when the accident causing the Ps harm is a

type of accident that ordinarily happens as a result of the neg of a class of actors which the D is

a the relevant member

Krebs v Corrigan p.214

Issue:Whether a C/A for neg. can be sustained in the absence of proof

Necessary Conditions for Res Ipsa

Three conditions exist:

1. The cause of the accident is known

2. The accident producing instrumentality is under the exclusive control of the D

3.

The instrumentality is unlikely to do harm w/o neg on the part of the person in control

Holding:We find that the Ps evid, considered in the light most favorable to himwas suff. To

raise an inference of neg. so as to survive the Ds motion and to put them to their proof.


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Res Ipsa Loquitor

Does not apply if the cause of the harm is known. The appln of the principle nearly

always presupposed that some part of the causal process is known, but what is lacking is

evid of its connection w/the Ds act or omission.

Rulegiving Effect to Res Ipsa

The fact of an injurys occurrence, taken w/ the surrounding circumstances:

1. may permit an inference or

2. raise a presumption of neg., or

3. make out a Ps prima facie case,

and present a question of fact for the D to meet w/an explanation

Effect of RIL (varies by juris)

Inference: warrants an inference of neg. but does not demand one;

Rebuttable Presumption: raises a presumption of neg. that the D must rebut or lose; or

Rebuttable Presumption and Burden Shift: raises a presumption of neg. and shifts the

burden of proof to the D to prove his neg. did not cause the injury

Cause

When the fact of control is used to justify the inference that the Ds neg. was responsible, it

must be shown that the thing in his control in fact caused the harm

Problem p.218

While the barge & tug were clearly in the exclusive control of the D tug boat owner in the TJ

Hooper case, it seems like a reach to say that ships dont sink in bad storms w/o neg

No question about Ds actual conduct and P had a specific theory as to what D should have

done differently. Had direct evidence.

V. Recklessness

Mobil v. Ellender

Issue:Whether the Ds conduct constitutes gross neg(i.e. an extreme degree risk of which the

D was aware) and is therefore reckless in order to satisfy the Ps request for punitive damages

Punitive award: compensates & punishes

Gross Negligence:


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1. Viewed objectively from the actors standpoint, the act oromission must involve an

extreme degree of risk, considering the probability and magnitude of the potential harm

to others; and,

2. The actor must have actual, subjective awareness of the risk involved but nevertheless

proceeds in conscious indifference to the rights, safety or welfare of others.Basically says: you knew (had knowledge) and said screw it and did it anyway

Holding:

The Ds conduct, viewed objectively, shows that the Ds failure to warn or to protect

contract workers presented an extreme degree of risk to contract workers like the P.

The D not only had actual awareness of the extreme risk of benzene but also proceeded

with conscious indifference to the rts., safety or welfare of the P and other contract

workers.

How long did they know, what did they know, did they warn others

What they knew, when they knew it, how much they knew

Gross negligencetheir conduct is so beyond the pale that punitive damages need to be attached

Problems:

Intoxicatedwhat standard?

Reasonable sober person


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Negligence: Causation

2 part test: But/For & Proximate Cause

Sine Qua Non or But For without wich not, an indispensable condition or thing; something

on which something else necessarily depends.

Cause In Fact

Rule: cause in fact requires the P to prove that the Ds conduct caused legally

recognized damages

In other words, the P must prove not merely suffering harm sometime after the Ds

negligent conduct but that the harm was caused in fact by the Ds conduct.

P bears the burden of proof and persuasion and must thereby prove that the Ds

conduct was more probably than not the cause of the harm that the P suffered.

o

Find that which points in this directionmay not be the only cause but is themost probable cause (my note)

Four Types of Cause in Fact

1. Scientific Connection: P must produce evid that is scientifically possible for the

injury to occur and that it existed in the Ps case

2.

Who is the cause?Multiple Ds: P is definetly injured but is unable to produce evid

that will determine which D among the many is responsible for the injury

3. Would safe behavior have advoided the injury? Whether the safe beh exhibited by

the D would still have produced the injury

4.

What harm caused? What harm was caused by the Ds negligent conduct

Cay v Louisiana

Issue:Whether P proved that DODs construction of the bridge railing at a height lower than

the minimum standard for pedestrian traffic was a cause-in-fact of Ds fall from the bridge

Appellate Court Dicta:

It is true that the accident might have occurred had the railing been higher. However, it

is also true that the accident might not have happened had the railing been higher. Had

the railing been higher, the decedent might have been able to avoid the accident.

Why the Supreme Court issued Certiorari:


20/83

This lowered the plaintiffs burden of proof undermines the Ps burden of proof to

show by the preponderance of the evidence - the P has to turn it around and show that

that the Ds failure to establish the safety rail was insufficient.

The Cause-in-fact is the initial inquiry in a duty-risk analysis. We dont really know here,

the Court does engage in hypotheticals and rules out the other possibilities: suicide,third party, etc.

o Bottom linewas the fence likely to have caused the harm

o Could it have been neg. per se b/c the city did not build it to regulation code

Rebuttals:

He was not in the class of persons meant to be protected

This was not a pedestrian bridgebut the other bridge was

closed & they did owe a duty

Holding:A cause-in-fact determination is one of fact on which appellate courts must accord

great deference to the trial court. We cannot say that the trial court erred manifestly indetermining that a railing built to AASHTO minimum specifications would have prevented Cays

fall.

Dont just look for one causethere may be many

But-For Test

Whether the injury would not have occurred but-for the Ds substandard CONDUCT

The cause-in-fact analysis is usually a jury question UNLESSreasonable minds could not

differ.

VI. Alternatives to But-For Causation

Idea: if you cant identify a particular cause how do you find someone to hold responsible? P

has to prove independently against both that either one by preponderance of the evidence

could have caused the event. Burden shifts to D to prove they did not do it.

Kingston v. NE RR

Issue: Whether the railroad co, which is found to have been responsible for the origin of the NE

fire, escapes liab b/c the origin of the NW fire is not identified, although there is no reason tobelieve that it had any other human origin

Holding:we are not disposed to apply the doctrine of Cook caseto the instant situation. There

being no [proof that the NW fire was due to an irresponsible origin], the D is responsible for the

entire amount of that loss. The fact that the NE fire was set by the RR companyis suff. to

affirm judgment.


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Policy:Do not want to place undue burden on the P, if P can prove D was neg, then it is on D to

find the other party if they want to recover further.

But For Test

(Positive) The Ds conduct is a cause in fact of the Ps harm if, i.e., but-for the Ds

conduct the harm would not have occurred.

(Negative) If the P would have suffered the same harm had the D not acted negligently,

the Ds conduct is not a cause in fact of the harm.

Look for: if there are multiple tortfeasorsat there is appoint of time in betweendoes the

second persons harm take away from the first persons harm because it is so egregious, or the

1

st

person is too far removedinterceding & superseding causes

Rule:

Liability for negligence depends on a showing that the injury suffered by the P was caused by

the alleged wrongful act (or omission to act) by the D. Merely showing a connection b/t the

negligence and the injury is not sufficient to establish liability.

Problem p. 235:

#4.

Application of the Substantial Factor test.

If one accepts the proposition that there is no safe level of asbestos dust, then the

victims exposure to asbestos at any of his employers could have each, independently

been a cause for his illness. Therefore, there would be no true but-for cause of his

illness among the potential tortfeasors.

If the expert testimony established a min level of exposure b/f the illness could be

caused by the asbestos, then further investigation into the carious levels of asbestos

exposure at each shipyard would be needed to analyze the causation issues further.

Substantial Factor test

When separate acts of negligence combine to produce directly a single injury, each

tortfeasor is responsible for the entire result, even though his act alone might not have

caused it.

o Cant double-dipall responsible for the damages or go after one independently

for their proportion. If you go after one and it is held responsible for all, you

cant go after any other.


22/83

Problem:

Druggist forgot to label medication not to be taken with alcohol, Paul took medication & drank

then had an accident on the way home. However, Paul did not read the bottle anyway.

Who to hold on the hook: Doctor and Druggistwho is more liabledoes the druggist failing toput the label on break the cause chain for the doctor failing to warn about the alcohol

Does Paul drinking create contributory negligence?

All will be on the hook

VII. Problems in Determining which Party Caused the Harm

Summers v. Tice

Issue:Whether two Ds will be held jointly liable if there is no evidence proving which D caused

the harm, when both are negligent but only one of them could have caused the Ps injury?

Holding: yes, the judgment against both Ds may stand. Although the Ds were not acting in

concert and there is insufficient evid to determine which D was guilty of the neg that caused

the injuries, they are jointly liable b/c otherwise the P would be unable to recover.

(shows they do not have to be acting in concert, just that it could have been either one who

caused the harm)

Alternative liability shows a policy concern in that it compels D to show they are not the one

who caused the harmBURDEN SHIFTS to D

Starts with Ps burden to prove: duty, breach, cause, harm alternative liab allows

Shifts the burden to D to show that they are not liable

Problem p. 248

Boyscout case with paperclip shooting

Alt liab is a causation doctrine, it can be applied as a band aid to any tort C/A. the

court found no liab due to consent, but if there had been no consent, it would seem P

would have a good battery claim for being shot in the eye with a paperclip

The P was only hit by one paperclip despite both other boys having shot at the P.

assuming there was no other evid available as to which one hit the P, it would make

sense to apply the doctrine of alt liab if P sued them both.

Imposition of liab

Apportionment:


23/83

Causal: one D caused a particular loss or an identifiable share of the loss and should be held to

no more than that liab

Comparative fault: each D is held liab for a percentage of the Ps damages in proportion to that

Ds percentage share of the fault

Rule

Distinct Injuries: When 2 or more tortfeasors cause separate harms to the P, each tortfeasor is

normally held liable for the harm he caused, no more

Divisible Injuries: apportionment of responsibility when the p suffers a single injury rather than

distinct harms but the single injury is capable of being apportioned in some rational way.

Single Indivisible Injury: When the P presents evidence that she suffered a single or indivisible

injury at the hands of 2 or more tortfeasors, the burden is shifted to the tortfeasors to show

that the P suffered separable injuries and that they can be apportioned or attributed separately

to the different tortfeasors.

Joint and Several Liab

P may:

a) Sue each tortfeasor separately; or,

b)

Sue both tortfeasor in a single action; or,

c) Obtain a judgment against one tortfeasor alone and enforce it against that one; or

d) Obtain a judgment against both tortfeasor and enforce it against both; BUT

e) P may not actually collect more than one full compensation

Narrowing the Universe

For a P to prevail in an action that has two or more tortfeasors. The p has to narrow the

universe of potential tortfeasors by demonstrating that the injury was more likely than not a

result of the actions of the two (or more) chosen Ds.

Burke v Schaffner

Issue:Whether the trial court erred when it f ailed to grant the Ps motion for a directed verdict

thus giving effect to the application of the doctrine alternative liability

RTT 27

If multiple acts occur, each of which under 26 alone would have been a factual cause of

the physical harm at the same time in the absence of the other act9s), each act is

regarded as a factual cause of the harm.

RTT 28


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a) Subject to Subsection (b), the P has the burden to prove that the Ds tortious conduct

was a factual cause of the Ps harm.

b) When the P sues all of the multiple actors and proves that each engaged in tortious

conduct that exposed the P to a risk of harm and that the tortious conduct of one or

more of them caused the ps harm but the P cannot reasonably be expected toprovewhich actor or actors caused the harm, the burden of proof, including both production

and persuasion, on factual causation is shifted to the Ds.

If you are going to apply a doctrineyou have to understand the theory behind it

Attorney expected the burden to shift to the D, but it never did

Key to alternative liabilitythe P does not have the information to prove what happened.

Have to at least make the inference that they are both tortfeasors

Doctrine of Alternative Liability

Under the theory of alternative liability, the P must prove that:

1)

2 or more Ds committed the tortious acts; and

2) P was injured as a proximate result of the wrongdoing of one of the Ds

3) burden then shifts to the Ds to prove that they were not the cause of the Ps injuries

Requirements:

1. More than one actor has had to act negligently

2. multiple negligent persons must be named as Ds in the case

Holding

As the D in the instant case was the only D before the court, there was no other named D to

whom the burden could or should have been shifted. The trial court properly ruled that

alternative liability was inappropriate under these circumstances

Sindell v Abbott Labratories

Scope of potential DES Litigants:As a result, an estimated 5-10 million pregnant women and

their offspring were exposed to DES

Class Action

A lawsuit in which the court authorizes a single person or a small group of people to

represent the interests of a larger group

Federal procedure has several prerequisites for maintaining a class action: (1) the class

must be so large that individual suits would be impractical, (2) there must be legal or


25/83

factual questions common to the class, (3) the claims or defenses of the representative

of the class, (4)

Issue: Whether each manufacturer that produces and distributes a dangerously defective

product should be responsible for their part of the damages due to an injured P in proportion totheir share of the total market for the product?

Holding:

Yes, each Ds liable for damages would be approximately equivalent to the injury caused

by the DES it manufactured

This case modified the rule set forth in Summers v Tice, b/c unlike that case, all of

possibly responsible parties were not b/f the ct. in other words, the responsible

manufacturer could escape liable In this case.

Apportionment of Damages

Each D will be held liable for a proportion of the judgment based upon its share of that

market UNLESS the D demonstrates that it could not have made the product which

caused the Ps injuries

RST 433B(3)

Where the conduct of two or more actors is tortious, and it is proved that harm has been

caused to the P by only one of them, but there is uncertainty as to which one has caused it, the

burden is upon each such actor to prove that he has not caused the harm.

Michigan Rule:

Class of Ds:if P can join all possible Ds, the burden of proof shifts to the D to prove that it did

not manufacture drug

Exculption:Allowed of a D can prove that it did not manufacture the drug taken by the P.

Liab.:Remaining Ds are jointly and severally liable on a per captia basis not a market share

California Rule

Class of Ds:P is reqd to bring Ds representing a substantial share of the market to court

Exculpation:allowed for a D if it can prove that it did not manuf the drug taken by the P

Liab:remaining Ds are severally liable for only that portion of the Ps damages that corresponds

to the percentage of its market share.

New York Rule

Class of Ds: No specified number of Ds are needed to use the market share theory of recovery


26/83

Exculpation: Not allowed

4. Increased Risk of Future Harm

Temple-Inland v CarterIssue:

Whether a person who has been exposed to asbestos but does not have an asbestos-

related disease may recover damages for fear of the possibility of developing such a

disease in the future.

Whether the Ps can recover for their fear that they will someday develop such a disease

from their work at Temple-inlands lab

Holding:

The court cannot sanction recovery or hold a party liable for a harm that is unrealized orhas not manifested at the time of the filing.

The idea is: if you are doing something that is reckless you may be liable of negligence goes to

duty of care

Problem p. 255

In this instance, the medical malpractice will not probably cause any harm whatsoever.

b/c the P only has up to 16% chance of the obstruction, this means that it is unlikely to

occur and her claim would fail due to a lack of causation under the preponderance ofthe evidence standard of proof. In a minority jurisdiction, this P might obtain up to 16%

of future harm.

5. Loss of Chance

Lord v Lovett p. 255

Issue:Whether the lower court erred when it dismissed the Ps loss of opportunity action

against the Ds

Holding: We hold that a P may recover for a loss of opportunity injury in medical malpractice

cases when the Ds alleged malpractice aggravates the Ps preexisting injury such that it

deprives the P of a substantially better outcome

Fundamental difference between this case and previous one: she already has a harmnot that

it could possibly happen. Their negligence created the harm


27/83

Lost-opportunity Doctrine Questions

(1)

Whether it is limited to only those whose lost opp is 50% or less, or also extends to

those w a greater than 50% but less than 100% chance, awarding the latter less than a

full recovery;

(2)

whether persons with a lost opportunity to avoid harm who have not yet siffered anyharm can recover before the harm occurs

(3)whether persons deprived of an opportunity of avoiding harm who nevertheless do not

suffer the harm may recover for the lost opportunity; and

(4)whether to impose a threshold percentage of lost opportunity before P may recover any

damages.

Reasonable Foreseeability

III. Proximate or Legal Cause

Proximate Cause:

A cause that is legally sufficient to result in liability; an act or omission that is considered in law

to result in a consequence, so that liability can be imposed on the actor.

Principle of Liability

Every person is liable for the consequences of his own acts. He is thus liable in damages for the

proximate results of his own acts, BUT NOTfor remote damages.

Palsgraf v Long Island RR Co p.261

Issue: Whether a duty exists between the LIRR and Mrs. Palsgraf by which the LIRR would be

held liable had it breached that duty by its negligence

Cardozo: cast this problem as one of duty & Foreseeability

Zone of Dangerif it is too far removed from foreseeability

Andrews:Direct Causation & Foreseeability

Sequence of events

If you commit this actyou have a sequence of events that you should be held liable for

Holding:

Judge Cardozo: The issue is that the D was neither negligent nor did the D owe Mrs. Palsgraf a

duty.


28/83

Judge Andrews (Dissent): The issue was one of proximate cause and that D is liable to all

persons whose harm is from an unbroken, natural sequence of events started by the Ds act,

w/o the intervention of external forces.

Foreseeability Test: A negligent D is liable for all of the general kinds of harms he foreseeable risked by his

negligent conduct and to the class of persons the D put at risk by that conduct.

Conversely, the D is not the proximate cause of, and not liable for unforeseeable

consequences.

Language of Foreseeability

The D must have been reasonably able to foresee the kind of harmthat was actually

suffered by the P

The D is not liable merely b/c he could foresee harm; the harm must be the kind that heshould have avoided acting more carefully.

Problems p270

A. Leaping Lord:

Cardozolikely hold that he had a duty toward the P

Andrews: would have agreed that he had such a duty and likely found it even easier to find

proximate cause on the Ps claim against him than he did on her claim against the railway. The

consequences of his behavior (if considered a breach of duty) were less surprising

B. Contract failure due to knee injury

Cardozoduty only to the leaping passenger. If he was injured there would be no doubt about

the Ds duty owed to him. Even Cardozo mentioned at the end of the opinion, that there might

be a need to find proximate cause if an injury was too remote.

Andrewswould just go directly to the issue of the proximate cause and not waste his time

with proximate cause

Direct Cause

In re Plemis

Issue:

Whether the manner and extent of the harm of the explosion and destruction of the

ship was foreseeable to a reasonable person thus holding the D negligent

Whether an act is negligent it is relevant to determine whether any reasonable person

would foresee that the act would cause damage


29/83

Bankes: Given the breach of duty which constitutes neg. andthe damages, the anticipations of

the person whose neg act produced the damage appear to me to be irrelevant

Scrutton: Once the act is neg, the gact that the exact operation was not foreseen is immaterial.

Holding: The neg conduct (dropping the plank) was the proximate cause of the injury (fire) eventhough the Ds could not have anticipated (foreseen) the exact operation of the harm

Are there any intervening circumstancesif notdefendant is liable

Direct Cause Test:(Looks just like but for causality)

Ds Negligent Conduct Intervening Act ps Injury

Normal or foreseeable

Laureano v Louzoun

Issue:Whether the lower court erred when it granted the Ds motion for SJ on the grounds that

the failure to provide heat and hot water was not the cause of Ps scalding following the

banging together of two pots

Holding: The Ds conduct gave rise to the Ps attempt to provide a substitute supply of heat.

[Yet] the intervening act of banging one pot against the other brought about the Ps injuries

Problem:

Under the direct cause test, there is a proximate cause prob when the ships owner

dues. The conduct of the servants moving the planks was an addl but-for cause in the

chain of causation, involving independent actions (not pre-ordained by the other partys

negligence) that intervened between the hypothetical Ds conduct and the Ps harm

The direct cause test makes it more difficult to sue multiple independent tortfeasorswhose neg combined to cause the harm

But Forif they dont do X the P would not have been harmed


30/83

Direct CauseBecause of Ds act there is a negligence. If there is an injury without an

intervening act.

Problems with Interpretations

Court sometimes uses but-for and proximate cause as the same thingProximate causationwhat is in close vicinitytries to

What we need to keep in mind: we have to prove two things

1. That D was the (legal) but-for cause (actual cause)

2. Proximate cause: direct cause test, foreseeability test, substantial factor test

Must Prove:

1. Duty

2. Breach

3. Causation:

a. Actual Causeb. Proximate Cause

Different tests for both a & b

4. Damages

Foreseeability test:

The D must have been reasonably able to foresee the knid of harm that was actually suffered by

the P

The D is not lieable merely b/c he could foresee harm; the harm must be the kind that the

Tieder v Little

Issue:Whether the trial court erred when it concluded as a matter of law that the Ds alleged

negligence was not the proximate cause of the death of the Ps decedent

Holding:The complaint sufficiently alleges the proximate cause elemet as to D little and the

record raises genuine issues of material fact w/r/t proximate cause for D, U of Miami

Duty (Architect): Duty to design correctly

Duty (School): that it was maintained properly & erected properly

Duty (drivers): To keep others safe

Standard of Care: Reasonable people under the circumstances

Proximate Cause of the Harm:


31/83

Architect: chain of events was not foreseeable, but collapsing wall was

Standard of Care: Reasonable person who is an architectnot special skill

Were the architect & the school responsible for the proximate cause of harm?

Florida Law

General Rule:To constitute proximate cause there must be such a natural, direct and

continuous sequence between the negligent act *or omission+ and the Ps injury that it can be

reasonably said to be that but-for the negligent act *or omission]] the injury would not have

occurred.

Exception: Where 2 causes concur to bring about an event in fact, either one of which would

have been sufficient to cause the identical resultA Ds conduct in an action for personal

injuries is considered a cause-in-fact of the event if it was a material and substantial factor in

bringing it about

If you bring in direct causal testcant bring in multiple tortfeasors each tortfeasor together

was responsible for the harm

Court saysunless it is so clear it is the jurys decision

Wrongful Death v Survival

Wrongful-Death: A lawsuit brought on behalf of a decedents survivors for their damages

resulting from a tortious injury that caused the decedents death.

Survival:A lawsuit brought on behalf of a decedents estate for injuries or damages incurred by

the decedent immediately before dying

Most states allow either or both actions to be brought.

A few jurisdictions require an election between the two

A few have merged the causes of action into one

All have some provision to prevent double recovery so that, for example, both the

estate and the widow would not recover all of the lifetime earning of the decedent

Proximate is designed to protect the Ds from tort liabl for results which, although caused-in-fact

by the Ds negligent act or omission, seem to the judicial mind highly unusual, extraordinary, or

bizarreor beyond the scope of any fair assessment of the danger created by the Ds neg.

Unforeseeable Consequences:

Eggshell P Rule: doctrine that the D is liable in tort for the aggravation of a Ps existing injury or

condition, regardless of whether the magnitude of the injury was foreseeable.


32/83

Crankshaw v Piedmont Driving Club

Issue: Whether or not the negligent serving of unwholesome food to Miss Harris was the

proximate cause of Ps injury

Walk Through it:

Proximate cause of harm :

But for test - but for serving bad shrimp she would not have thrown up (would there be a but-

for test)

Foreseeableno

Holding:Damages must flow from the legal and natural result of the act doneThe ques. Of

proximate cause is a jury ques. UNLESS the facts are palpably clear and indisputable then the

court can rule as a matter of law a jury could not reasonably conclude that the Ps injury was

proximately caused by the Ds neg. inserving unwholesome food.

Problems p.280:

A. There would be a lack of proximate causation here b/c the rule was in place for drowning,

not for contracting illness. Because he is not suing for drowning, there is a lack of proximate

cause. Cant use the policy to prove negligence. Have to bring up that they didnt treat the pool

properly.

C. Jump starting the car constitutes independent, intervening actions between the poor design

of the dormitory and the coed being crushed

D. the boys jump-starting the car would not have a proximate cause defense under the directcause test. Everything that happened after their negligence in failing to control the car just

involved application of the laws of physics rather than any independent intervening actions.

D. Substantial Factor Test

Brisboy v Fiberboard paper Products Corp

Issue: Whether the trial court erred when it denied the Ds motion for a directed verdict on the

grounds that the Ds negligent conduct was a substantial factor in bringing the disease which

led to the decedents death.

Competing battle of expertsPs say it was asbestos and the Ds say it was cancer

Holding:Evid was sufficient to permit reasonable minds to conclude that the P died, at least in

part, due to the development of asbestosis in his lungs as a result of his inhalationof asbestos

fibers during his work career.We find that there was suff. Evid in Ps favor to withstand a

motion for a directed verdict


33/83

More likely than notthat is all they are saying

American Truck Leasing v Thorne Equipment Co.

Issue: Whether

Holding: Because the negligent accumulation of combustible trash was too far removed from

the damages to the Ps property and because those damages to the Ps property and becaue

those damages were caused by the intervening act of the demolition contractor, it cannot be

said legally or factually that the alleged neg. of the D was a substantial factor in causing harm to

the P.

RST 433 p. 286 (write it down)

The following considerations are in themselves or in combination with one another

important in determining whether the actors conduct is a substantial factor in bringing

about harm to another:

a)

A number of other factors which contribute in producing the harm and extent of the

effect which they have in producing it;

b) Whether the actors conduct has created a force or series of forces which are in

continuous and active operation up to the time of the harm, or has created a

situation harmless unless acted upon by other forces for which the actor is not

responsible;

c) Lapse of time

Why Gross was put out of the case: (b) continuous and active & (c) lapseher fire was put out

p. 287 Comingling of testThere are courts that use more than one test at the same time

problems p. 287 (no.4)

Direct Cause test: the elevator shaft was the intervening act

Foreseeability test:

The substatntial factor test was not met under the facts in Thorne. It would seem that a similar

result would exist under the direct cause test. It appears only the independt actions of the

demolition crew were the direct cause of the Ps property

Intervening & Superceeding

Rule


34/83

Liab attaches to the Ds conduct if the intervening act is a normal or foreseeable consequence

of the situation created by the Ds conduct

Liab does not attach if the intervening act is extraordinary under the circumstances, not

foreseeable in the normal course of events, or independent of or far removed from the Ds

conduct.

Test

If the D should have foreseen the possibility that the intervening cause might occur or if

the kind of harm suffered by the P was foreseeable (even if the intervening cause was

unforeseeable) the Ds conduct will be the proximate cause of the Ps injury.

But if neither the intervening cause nor the harm was foreseeable, the intervening cause

will be a superseding cause and relieve the D of liab.

Causation

Actual (Cause in Fact) Proximate

B/F S/F D/C 4See S/F

Must look to the facts and walk through the tree!!!!

Price v. Blaine Kern Artista, Inc.

Issue: Whether the unknown assailants push that caused the P to fall to the ground was an

intervening and superseding cause of the Ps injuries

SJno genuine issue of material fact (no reason to go to the jury b/c there is nothing to

protest)

RST 302Risk of Intentional or Criminal Conduct

An act or an omission may be negligent of the actor realizes or should realize that it

involves an unreasonable risk of harm to another through the conduct of the other or a

3rd

person which is intended to cause harm, even though such conduct is criminal.

RST 449Tortious or criminal acts

If the likelihood that ta third person may act in a particular manner is the hazard or one of the

hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally

tortious, or criminal does not prevent the actor from being liable for the harm caused thereby


35/83

RST 448

CAVEAT TO RST 449: The act or a third person in committing an intentional tort or crime

is a superseding cause of harm to another resulting in therefrom, although the actors

negligent conduct created a situation which afforded an opportunity to the third personto commit such a tort or crime, UNLESS the actor at the time of his negligent conduct

realized or should have realized the likelihood that such a situation might be created,

and that a third person might avail himself of the opportunity to commit such a tort or

crime

Holding: While it is true that criminal or tortious 3rd

party conduct typically severs the chain of

proximate causation between a P and a D, the chain remains unbroken when the 3rd

partys

intervening intentional act is reasonably foreseeable.

McCane-Sondock Protection Systems v Emmittee

Issue:Whether the jury verdict in favor of the P is against the weight of the evidence that the

Ds failure to properly install a burglar alarm was the proximate cause of the Ps loss

Holding:We hold that these facts constitute some evidence that the Ps loss was the proximate

result of the Ds failure to properly install the alarm equipment

Special Duty Rules

I. Introduction

Create a set of rules for when a D has a duty to a P that goes above and beyond

Comes from the foundation that people generally do not hold a duty to act

II. The Duty to Act

Duty to Act

Rule: No general duty to act. In other words, a D will not be held liable, generally, for

failing to act.

EXCEPTION:Unless there is some special relationship b/t the D and the P, the D is not

liable for failing to render assistance to the P.

Exceptions Requiring an Affirmative Duty

Common carriers and innkeepers:duty on certain professions to furnish assistance to

patrons

Business relationships:duty of care to anyone who maintains business premises


36/83

D is involved in the injury: D will have a duty of warning and assistance if the danger or

injury is due to the Ds own conduct or to an instrument under the Ds control

Joint venture:When 2 persons are engaged in a common pursuit (joint ventures) some

courts have imposed a duty of warning and assistance on each person for the welfare of

the other. Assumption of duty: if a D voluntarily begins to render assistance (even of the D was

under no legal obligation to do so), the D must proceed w/reasonable care

Duty to control others: D has undertaken to control third parties who subsequently

injure the P. The duty may arise from a special relationship b/t the D and the P or b/t the

D and the third party.

Rememberyou may have an affirmative duty to act but if acting is unreasonableno duty

attacheshave to be able to save yourself firstif cant it is unreasonable

Yania v. Bigan

Issue:Whether the trial court erred when it dismissed the Ps complaint finding that the D was

not negligent for:

1) Urging, enticing, taunting, and inveigling Yania to jump into the water;

2) Failing to warn the P of a dangerous condition on the land; and

3) Failing to rescue the P after he jumped into the water

Holding: The complaint does not aver any facts which impose upon the D the legal

responsibility for placing the P in the dangerous position in the water and, absent such legalresponsibility, the law imposes on the D no duty to rescue.

Notes: #2 raises the issue of a property owner and has a dangerous conditionif it is glaringly

aware is there still a duty to warn? No.

Is this a joint venture?

United States v. Lawter

Issue: Whether the D had a duty imposed following the commencement of the rescue that was

breached resulting in the death of the Ps wife

Holding:Once the D affirmatively took over the rescue mission, excluding others therefrom,

and thus not only placed the deceased in a worse position than when it took charge, but

negligently brought about her deathThe law imposes an obligation upon everyone who

attempts to do anything, even gratuitously, for another not to injure him by negligent

performance of that which he has undertaken.


37/83

Note:If you start a rescue you trigger your duty.

Emergency Doctrine: what do you do in a sudden emergency?

Lundy v Adamar of New Jersey, Inc.Issue: Whether the D owed a duty to provide medical care to the P, and if so, what was the

duty owed

Trop Worlds duty is at most to provide basic first aid to the patron when the need

becomes apparent and to take reasonable steps to procure appropriate medical care.

NJ Good Samaritan Actwho in good faith renders emergency care at the scene of an

accident or emergency to the victim, or while transporting the victim thereof to a

hospital or other facility, shall not be liable for any civil damages as a result of any acts

or omissions by such person in rendering the emergency care.

Rule: Generally, a bystander has no duty to provide affirmative aid to an injured person, even if

the bystander has the ability to help

Exception: The existence of a relationship between the victim and one in a position to render

aid maycreate a duty to render assistance.

RST 314 ASpecial Relations Giving Rise to Duty to Aid or ProtectLOOK UP

RST 324Duty of One who takes charge of another who is helplessLOOK UP

One who, being under no duty to do so, takes charge of another who is helpless

adequately to aid or protect himself is subject to liability to the other for any bodily

harm caused to him by

a) The failure of the actor to exercise reasonable care

Holding: Nurse Slusher had not preexisting duty to the P apart from her role as an employee of

TropWorldthat preexisting dutywas limited to summoning aid and, in the interim, taking

reasonable first aid measures.

Good Samaritan Lawshould we make a law for people to help others if it is reasonable?

Dorm safety hypoTanya was raped and murdered in her dorm by Ellis, how the individual got

in is unknown. Doe the school have a duty to protect Tanya?

What we need to know

o What precautions were taken to keep people our

o How were they implemented


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o What is the status of the individual who committed the crime?

o How did the individual enter the building?

o What was the relationship between the two people

What if someone propped the door open, is the univ responsibility?

o

Comes back to learned hand formula what could they have done besides justposting a sign?

o What is the current custom at schools?

Righteous university hypo: Mary has fallen in with the wrong crowd & Mary starts escorting to

pay for drugsthe university upholds itself to a higher standard. Can the parents sue the Univ

for Mary going down the wrong path?

Even though they have a higher standard of care, you cant hold them to it

4. Duty ends at Expiration of Special Relationship

Boyette v TWA

Issue: Whether the trial court erred in granting the Ds motion for SJ on thenegligence C/A in

the Ps wrongful death action

Holding:the Ds duty as imposed b/c of its status as a common carrier ended when the Ps son

was safely transported to the destination. New duty attached when the agent of the D

proceeded to chase the decedent who stole a golf cart in the airport.

B. Rescuers

1. The Rescue Doctrine

McCoy v American Suzuki Motor Corp

Issue:

(1) Whether the rescue doctrine may be involved in a product liability action

(2) Whether a P asserting a claim as a rescuer under the rescue doctrine must still prove his

injuries were proximately caused by Ds allegedly tortious conduct

(3) Whether the alleged fault of this D was the proximate cause of this Ps injuries

Was this the trooper fault? Could be held negligent for leavingdriver would have had to

move over if troopers lights were onif did notneg per se

Rescue Doctrine:


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Allows an injured rescuer to sue the party which caused the danger requiring the rescue

in the first place.

Rescuer Status Elements:

For rescuer status, one must demonstrate:

1)

the D was negligent to the person rescued and such negligence caused the peril or theappearance of peril to the person rescued;

2) the peril or appearance of peril was imminent

3) a reasonably prudent person would have concluded such peril or appearance of peril

existed; and

4) the rescuer acted w/reasonable care in effectuating the rescue.

What if it was the first accident or the 100th

shows knowledge that product would

foreseeable cause harm

Holding:

Yes the rescue doctrine may be invoked in P/L cases, requiring the rescuer-P to prove

that the Ds conduct was the proximate cause of his injuries

The rescue doctrine imposes a duty on the tortfeasor towards the rescuer on the basis

that is foreseeable that a person will come to the rescue of a person placed in danger by

the tortfeasorsconduct.

The doctrine also negates the presumption that the rescuer assumed the risk of injury

by undertaking the rescue as long as he did not act rashly or recklessly.

Is the connection too remote? Is this too remote of a harm?

Questions:

1. Is there a duty? Is there a legally established relationship?

2. Causalactual & proximate

Actualfactual causewithout this fact being present, the D would not be held liablethere is

not but-for cause without this action

Proximate legal cause are we going to hold them responsible legally? Takes into account

public policy demandsscope of liabilitywas it foreseeable, intervening act

Proximitythat which is related closer in time, are they closely related in time to the accident;

foreseeabilitythat which is related in time and space

Moody v Delta Western


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Issue: Whether the lower court erred when it adopted the Firefighters Rule for Alaska and

granted SJ to the D

Firefighters Rule:Firefighters and police officers who are injured may not recover based on the

negligent conduct that required their presence.

EXCEPTION:The doctrine bars only recovery for the negligence that creates the need for thepublic safety officers service . . . The rule does not apply to negligent conduct occurring after

the police officer or firefighter arrives at the scene or to misconduct other than that which

necessitates the officers presence.

Public Policy do not want to deter people for calling for help; would clog the courts; would

create double taxation

Holding:The firefighters rule does apply in Alaska and the lower court did not err in granting SJ

to the D. The reasoning for this decision is rooted in public policy.

NOTE: It must have happened before because they had policy regarding removing their keys, it

was policy, so they were on notice that this could happen this was foreseeable. Had prior

knowledgeactual and constructive knowledge, on notice

Some courts have saidif it is criminal, may be held liable

Primary Rationales for the Rule:

1. Double taxation for the services which emergency personnel are already paid to perform

2. Chilling effect on calling emergency personnel

No duty placed upon or between the person who caused the negligence and the person who

responds.

Problems, p. 317

A. the firefighter rule is a no-duty rule only conceptually relevant to neg claims; if he sued the

thief for neg. it would be for conduct that arose after the officer had already been summoned

to the scene.

B. With volunteer public safety, there is no risk of double-taxation or overcompensation b/c the

victim is not being paid to encounter any risks of the job. Theyre not getting paid at all. The

question is whether a court should continue to recognize the doctrine relative to a volunteer

based upon the second justificationthe risk of chilling the call for help. There is no answer


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Snellenberger v Rodriguez

Issue: Whether the lower court erred when it granted SJ to D when it concluded as a matter oflaw that there was a lack of proximate cause (not foreseeable) that Ds conduct would result in

the type of harm suffered by the Ps decedent

Holding:we conclude that while the rescue doctrine may apply to the circumstances but the

injury that the Ps decedent suffered was not foreseeable

NOTE: even though you invoke the rescue doctrineyou still have to prove proximate cause

Problem, pg. 319

Even if you invoke the rescue doctrinethe firefighter rule kicks in

Though it was not raised by the D, the Firefighter Rule would seem to deny any duty of

care. The D driver [Rodriquez] was being sued for her neg. that necessitated the

summoning of the police officers to the scene. Even had there been proximate cause,

application of this doctrine should have defeated the claim by negating the fundamental

element of duty.

Emerich v Philadelphia center for human development

Issue:

1) Whether a mental health professional has a duty to warn a 3rd

party of a patients threat to

harm the 3rd

party

2) if there is a duty what is the scope of the duty

3) whether the lower court erred with its judgment on the pleadings

General Rule:

Rule:a person neither owes a duty to control the conduct of another, nor to warn those

endangered by such conduct.

Exception:

Where the D stands in some special relationship to either

(a) the person whose conduct needs to be controlled

OR

(b) in a relationship to the foreseeable victim of that conduct

RST 315General Principle


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There is no duty so to control the conduct of a third person as to prevent him from causing

physical harm to another unless

a) a special relation exists between the actor and the third person which imposes a duty upon

the actor to control the third persons conduct, or

b) a special relation exists between the actor and the other which gives the other a right toprotection.

Holding:

1) We find that a special relationship b/t a mental health professional ad his patient may, in

certain circumstances, give rise to an affirmative duty to arn for the benefit of the intended

victim.

2) We find that in PA . . . the professional bears a duty to exercise reasonable care to protect by

warning the 3rd

party against such danger

3) We find that the Ds warning was reasonable as a matter of law. The warning was discreet

and in accord with preserving the privacy of the Ds patient to the maximumextent possible

consistent with preventing the threatened harm to the P-decedent.

Look at this like a transitive math problemA has a duty to B, and also has one to C because of

As duty to B without the duty to B, there would be no duty to C. The law creates a duty.

Bradshaw v Daniel, M.D.

Issue: Whether a physician has a legal duty to warn a non-patient of the risk of exposure to the

source of his patients non-contagious diseaseRocky Mountain Spotted Fever.

What about contagious diseases? Yes, duty to warn those who may foreseeably contract the

disease.

Who must they warn? Immediate family, other medical staff that will come into contact

Who must be warned and how must warning be put into effect? Depends upon the severity of

the harm. Is it an immediate health risk?

Holding:The physician had a legal duty to warn the non-patient of the risk of exposure to the

source of the patients non-contagious disease

Notes & problems, p. 333

(2) The court in Bradshaw seems to limit the duty to warn to immediate family members of the

infected patient, the risk of harm to those who lived in the same apartment complex is surely

just as foreseeable.


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Recognizing an affirmative duty divorced from a special relationship with the sactual source fo

the harm and grounding it instead on mere notions of foreseeability turns the C/L tradition on

its head and creates uncertainty in a host of other scenarios about whether a duty to warn

premised solely on foreseeability should exist.

Otis Engineering Corp v Clark

Issue:

Whether the law imposes any duty upon the D under the evidence presented to the Ps

who were killed by an intoxicated employee

Whether the trial court erred when it granted the Ds motion for summary judgment.

Awareness: Testimonial Evidence

Co-workers (direct evidence)

o

Pyleo Sartain

o Roy

Physician (expert evidence)

o Petty

Other (scientific evidence)

o Bac

Marshalling of evidence to prove your casedirect evidence, expert evidence, scientific

evidence

Analysis: what could they have doneLearned Handyou see the court engage in this analysis

Corbin: actual or constructive knowledge of dangerous condition

Leppke: employers affirmative action enough to raise duty

Brockett:supplying alcohol does not trigger duty . . . affirmative act of placing person in car and

directing him to drive home does

Standard of Duty/Care

When, because of an employees incapacity, an employer exercises control over the employee,

the employer has a duty to take such action as a reasonably prudent employer under the same

or similar circumstances would take to prevent the employee from causing an unreasonable

risk of harm to others. This is notan absolute duty.

Holding:the trier of fact . . . should be left free to decide whether the D acted as a reasonable

and prudent employer considering the circumstances:


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1) Nurses aid station

2)

Phone call to spouse of intoxicated worker

3) Another employee driving intoxicated worker home

4) Dismissing intoxicated worker earlier

5)

Foreseeability of harm

A. Negligent Infliction of Emotional Distress

1. From Impact Rule to Zone of Danger

Robb v The Pennsylvania Railroad Co

Issue: Whether the P, who was within the immediate zone of danger, can recover for the

physical consequences of fright caused by the Ds neg., when there was no contemporaneous

bodily impact

Holding: We decline to adopt the impact rule . . . We hold . . . that where negligence

proximately caused the fright, in one w/in the from that negligence, which in turn produced

physical consequences such as would be the elements of damage if a bodily injury had been

suffered, the injured party is entitled to recover

Categories of Recovery for NIED

Direct Victim Recovery

o Zone of Danger (maj)

o Foreseeability (min)

o Impact Rule (min)

Bystander Recovery

o Zone of Danger (maj)

o Foreseeability (Dillon Rule) (min)

Zone of Dangerno different than Cordozoif you are in the zone of danger you can recover

does not answer:

1. how far the zone extends

2. scope of liabilityjust the zone

-The closer you are, the more inside the zone you are

Direct Victim Recovery

Zone of Danger(Risk of Impact Rule)recovery allowed for mental distress if the P was at risk

of physical impact and suffered physical manifestation of the distress

EXCEPTIONS: mishandling of corpses or erroneous notification of close family members death


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Foreseeability Testrecovery allowed for all foreseeable Ps who suffer mental distress

Bystander Recovery

Zone of Dangero (Some) Recovery based on witnessing negligently inflicted harm or fear for own

safety

o (Some) Only based upon Ps fear for own safety

Foreseeability Test:

o Recovery permitted if P was near accident

o Sensory and contemporaneous observance

o Closely related to direct victim

Dillon v Legg,

Issue:Whether the trial court erred when it granted the Ds motion on the pleadings to deny

the P, mother, recovery because she was not within the zone danger

Holding:We see no good reason why the general rules of tort law . . . Long applied to all other

types of injury, should not govern the case now before us . . .

Natural Justice

Justice as defined in a moral, as opposed to a legal, sense.

Since the chief element in determining whether D owes a duty or an obligation to P is the

foreseeability of the risk, that factor will be of prime concern in every case. Because it is

inherently intertwined with foreseeability such duty or obligation must necessarily be

adjudicated only upon a case-by-case basis. We cannot now predetermine Ds obligation in

every situation by a fixed category.

Factors to be consi

negligence notes

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