1

Battery A person is liable for a “battery” where he/she acts intending to cause a

harmful/offensive contact with another or imminent apprehension of such and harmful contact occurs directly or indirectly For purposes of committing a battery, the actor need not intend the extent of the

harm that occurred, only the contact Hypothetical: I act intending to scare you but hit you = battery

elements of battery Act – external manifestation of will…not reflexive, under trance, during sleep,

seizure, ect Intent – (1)denotes that the actor desires to cause consequences from his act, (2)or

that he believes that there is substantial certainty of contact occurring Objective test for intent – evaluate D’s conduct in terms of a “reasonable sense

of dignity” Subjective test for battery – fact finder must conclude that: D desired to contact

P or was substantially certain contact would occur as a result of their action Waters v. Blackshear (firecracker case)

D(minor) lit a firecracker and placed it in P’s(minor) shoe. P sustained injury. Rule- resulting harm need not be foreseen, a result is intended is the act is done for

the purpose of accomplishing the result of with knowledge that to a substantial certainty such a result will ensue, and intelligent conduct never = negligent conduct

D not liable for neg because his actions constituted the int. tort of battery Polmatier v. Russ(crazy guy shooting father in law)

D visited father in law, P. D began beating P with a bottle and then killed him with a rifle. Found innocent in criminal case due to insanity

Rule- an insane person may have an intent to invade the interests of another, even though his reasons for forming that intention may be completely irrational (napoleon hypo. Pg 19)

Court held for P because though D was insane his actions constituted an act and as we learned in Waters the injury done need not be intended

Leichtman v. WLW Jacor Communications (smoke in the face case) P was an anti-smoking advocate and went on D’s radio show. Agent of D

continuously blew smoke in P’s face to mock him. Rule- Contact which is offensive to a reasonable sense of personal dignity is

offensive contact. (disagreeable, nauseating, painful, outrageous to taste and sensibility, affronting insultingness)

Court held that D committed battery…”men may assume others will do them no intentional injury”…no matter how trivial battery is acceptable

Particular matter launched indirectly still = contact (Indirect)

2

Andrews v. Peters (tapping the knee case) D walked up behind P at work and tapped her on the back of the knee with his as a

joke…though he tried to catch her she fell and dislocated her knee cap. Rule- the intent with which tort liability is concerned isn’t necessarily a hostile

intent, or a desire to do any harm. Rather it is an intent to bring about a result which will invade the interests of another in a way the law forbids.

Court affirms judgment for P because evidence shows D had requisite intent to contact D.

Assault the apprehension of imminent harmful contact

Actor subject to liability for assault if (a) he acts intending to cause harmful or offensive contact with a person or a third person, or imminent apprehension of such contact and, (b) the other is thereby put in such imminent apprehension Perception of apprehension in P is key!

Cullison v. Medley (perv. talking to 16 year old case) P encountered minor daughter of D in parkinglot and invited her to his house. Was later

confronted by multiple members of family shouting insults and carrying (but not drawing) weapons. D threatened to “jump astraddle” on P. P saw D two times later and gave him menacing glances while carrying a weapon.

Rule- Assault protects the right to be free from apprehension of a battery…it constitutes “a touching of the mind, if not the body”…”an invasion of P’s mental peace”

Court overturned in favor of P…said a jury could reasonably conclude that D’s conduct intended to frighten & intimidate P.

Brower v. Ackerley (phone threats case) P conducted private investigation into questionable advertising practices by D…began

receiving anonymous phone calls harassing him for about a year with two specific threats found to have come from D’s phone.

Rule – to constitute civil assault, the threat must be of imminent harm “Imminent Contact – Contact that will occur without significant delay. Injury

threatened for the “near future” isn’t actionable under the legal theory of assault

Hypo – A threatens to shoot B and leaves the room to get his revolver…A not liable to B

Because threats weren’t accompanied by circumstances indicating the caller was in position to inflict actual physical violence court found for D

Notes – Objective Test for Apprehension – jury must find that D’s conduct would normally arouse apprehension in the mind of a reasonable person.

Transfer of Intent Among People and Between Torts

3

Transfer of intent between torts- allows a plaintiff who suffers a harmful or offensive contact to recover for a battery even if D intended only an assault and vice versa

Hall v. McBryde (boys in the hood case) D was in his parents house when youths drove by in a threatening manner. D took

out gun intending to protect his house and shootout ensued. P was an innocent bystander hit in the process

Rule – If an act is done with the intent of affecting a third person, but causes a harmful bodily contact with another, the actor is liable to such other as through he intended to so affect him.

Holding/Rationale- D’s intent to put others in harm satisfied intent requirement for battery against P

Defenses to Assault and Battery Consent –law only allows people to give up their rights when the people know what

they are doing and are acting willingly McQuiggan v. Boyscouts of America

P was at boyscout meeting and noticed other boys including D playing a paper clip shooting game. P joined freely under no pressure to participate and got hit in the eye after he “stopped actively playing” without notifying the others.

Rule- When a P “manifests a willingness that the D engage in conduct and the D acts in response to such a manifestation, his consent negates the wrongful element of the act and prevents the existence of a tort

Holding- Court held for D because P was a willing participant in the game and never gave notice of withdrawal

Hogan v. Tavzel P and D were married and separated. While reconciling D infected P with genital

warts…made no effort to warn or take precaution against infecting her Rule – A cause of action in battery will lie, and consent will be ineffective if the

consenting person was mistaken about the nature and quality of invasion intended P’s consent without knowledge of D’s condition doesn’t constitute as consent

capable of defense for battery Notes – Exceptions to Consent

Fraudulently Obtained Consent – D conceals facts that would affect P’s decision about consent

Mistaken Consent – P mistaken about nature or quality of invasion intended Richard v. Mangion (pg 54

P and D got into multiple confrontations initiated by D. They exchanged words and P challenged D to a fight once. On the day in question both boys went to the “rope swing” and according to the testimony understood there was a fight. D threw the

4

first blows, knocking down P. P then got up and attempted to punch D who avoided it and landed the blow causing injury.

Rule – When two parties implicitly or explicitly agree to fight the consent of one isn’t vitiated merely because the other strikes the first blow

Holding/Rationale – Court found for D because there was no unnecessary force used and both parties expected to take part in the fight

Notes – Exception to consent – Unnecessary force, “not consistent with the understood rules of the game

Defense of Self and Others – Proportionality Principle – actor may use force proportional to (1) The interest the actor is protecting; and (2) The injury or harm threatened by the other

Slayton v. Mcdonald D got into an argument on the bus with a larger highschool student, P. P said he

would come to his house and did later that afternoon. D saw him and repeatedly told him to leave. When he didn’t D retreated to his house, called authorities, and got a shotgun. P came inside his house despite this and approached him chiding that he wouldn’t shoot. Upon his continued advance, D shot P in the knee.

Rule – Resort to dangerous weapons to repel an attack may be justifiable in certain cases when the fear of danger of the person attacked is genuine and founded on facts to produce similar emotions in a reasonable man

Holding/Rationale – Court dismissed charged because of P’s belligerent advanced, his larger, threatening stature, and D’s inability to retreat. “castle doctrine”- right of homeowner to use deadly force to protect his

“castle” Woodard v. Turnipseed

P was employee on D’s farm whom D fired. According to D P said “I’ll get you for this.” Roughly 10 minutes later D saw P on his property and asked him to leave 3 times and P said he wasn’t going anywhere. D then struck him three times with a broom and he left.

Rule – 2nd Restatement 77 – An actor is privileged to use reasonable force, not intended or likely to cause death or serious bodily harm, to prevent or terminate another’s intrusion upon the actor’s land or chattels if,

The intrusion isn’t privileged or the other intentionally or negligently causes the actor to believe that it isn’t privileged and

The actor reasonably believes that the intrusion can be prevented or terminated only if force is used and

Actor has first requested the other to desist and the other has disregarded the request, or the actor reasonably believes that a request will be useless or substantial harm will be done before it can be made

Holding/Rationale – Court ruled that trial court erred in not granting JNOV for P. P was physically smaller, had no weapon, and made no threatening motions. D also used an unreasonable level of force. Factors determining reasonableness of party attacked

5

(1) character and reputation of the attacker (2) belligerence of the attacker (3) differences in size and strength of the parties (4) whether there was an overt act by the attacker (5) whether serious bodily harm was threatened (6) whether a peaceful retreat was possible

Hypotheticals D throwing balls outside, hits john. Is battery committed?

No battery since there is no intent D throws hamburger 10 feet and it splatters on John.

Battery committed, substantial certainty splatter would hit john D walking behind person and steps on flip flop intending joke. Person trips

Battery committed, need not intend Playing pick-up football and get kicked in the shin

Battery, but consent in the form of knowing the rules of the game and willingly participating negates

Intentional Infliction of Emotional Distress

(pg 73-82) – protects a person’s right to be free from serious emotional distress – P only permitted to recover when D’s conduct is “outrageous” and the resulting mental distress is “severe”

Mere insults, indignities, threats, annoyances, and other trivialities – permissible Exceptions – abuse from position of authority, or actor knows P is susceptible to

emotional distress Intent for Emo Distress established by – (1) Proof D intended to cause or recklessly caused

emo distress Zalnis v. Thoroughbren Datsun Car Co.

P Ked to buy a car from D. President of company found out there was a $1000 loss from the sale and salesman called P stating there was a recall. When P went to the dealership she was called a “French whore” and had her arm twisted in a threatening manner. D’s testified they knew she was crazy because she watched her husband kill himself

Rule- The outrageous character of the conduct may arise from the actor’s knowledge that the other is peculiarly susceptible to emo distress by reason of some physical or mental condition or peculiarity

Holding/Rationale- SJ for D overturned because reasonable persons could differ on outrageous conduct. D’s knew of P’s susceptibility to distress and acted from a position of authority bullying her.

6

Strauss v. Cilek D had an affair with P’s wife lasting over a year. P and D were good friends from elm

school. P didn’t learn of the affair until it was over and the couple was getting divorced. Rule- To be outrageous the conduct must be so extreme in degree as to go beyond all

possible bounds of decency to be regarded as atrocious and utterly intolerable in a civilized community

Holding/Rationale – D’s relationship with wife, who participated willingly, doesn’t constitute extreme conduct (court cites Kunau where dentist having affair with wife wasn’t extreme)

Miller v. Willbanks P’s newly delivered baby had an elevated temp and D jumped to the conclusion that she

was using drugs during pregnancy w/o testing her. D spread rumor around hospital and after negative results came back for drug use he sent a social worker to P’s house

Rule- the insurance against frivolous claims is found in the P’s burden to probe that the offending conduct was outrageous

Holding/Rationale- Not necessary to have expert proof of serious mental injury to prove emotional distress

Green v. Chicago Tribune Co, P’s son photographed while being treated for gunshot wounds and after death without

P’s consent. Photos and P’s last words to son then published in article. Rule- Transfer of intent for emo distress

Where outrageous conduct is directed at a 3rd person, the actor is subject to liability if he intentionally or recklessly causes severe emo distress To a member of such person’s family who is present at the time, whether or

not distress results in bodily harm, or To any other person who is present at the time if distress results in bodily

harm Holding/Rationale- Article didn’t specifically mention P and P wasn’t present in room

when photos were taken, held for D Notes – Guarentee of Genuinness- reason family member must be present & non-family

member must

Negligence: Duty of Reasonable Care The “Reasonable Person” Standard

Vaughan v. Menlove D built haystack near P’s land which caught fire and burned down P’s cottages Rule- it is required to regard caution such as a “man of ordinary prudence” would

observe Holding/Rationale – New Rule presented, attempting to judge whether a D acted

honestly and to the best of his own judgment would vary too much case to case

7

Note- Standard of Care- what would a reasonably prudent person under the circumstances do?

Parrot v. Wells Fargo (The Nitro-Glycerine Case) D was shipping crate of Nitro for a client which was leaking. Went to inspect it as they

did in the normal course of business by opening the crate with a hammer and chisel. Large explosion damaging P’s property

Rule- Negligence- the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man wouldn’t do

Holding/Rationale- D acted as they normally would during the course of business and were innocently ignorant of the contents in the case. No one is responsible for unavoidable accident

Note – reasonable prudence depends greatly on knowledge of the actor and what they do or do not possess

Reasonable Conduct – balance of cost & benefits McCarthy v. Pheasant Run

P stayed at D’s hotel and during her stay a man broke in through a sliding glass door which opened to a public walkway and assaulted her

Rule- Learned Hand Formula- determines whether the burden of precaution is less than the magnitude of the accident, if it occurs, multiplied by the probability of occurrence

Holding/Rationale – P failed to show that reasonable and efficient steps could’ve been taken by D to prevent the assault

Notes – Factors in considering Magnitude of Risk & Utility of Conduct- In determining what the law regards as the utility of the actor’s conduct for the purpose of determining whether the actor is neg. the following factors are important

The social value which the law attaches to the interest which is to be advanced or protected by the conduct;

The extent of the chance that this interest will be advanced or protected by the particular course of conduct

The extent of the chance that such interest can be advanced or protected by another and less dangerous course of conduct

Application of the Reasonable Person Standard Especially Dangerous Instrumentalities

Stewart v. Motts P stopped at D’s auto repair shop to aid in a repair. Car backfire ignited gasoline

resulting in explosion which injured P. P argued D should’ve shown extraordinary care Rule – The care required is always reasonable care. The standard never varied, but the

ware which is reasonable to require of the D varies with the danger, the greater the degree of danger the greater the care. Reasonable Care Under the Circumstances

Holding/Rationale – There is only one standard of care, “that of a reasonable man,” which allows for heightened care in dangerous situations…well established by case law to require heightened care under extraordinary circumstances.

8

Notes – “extraordinary care is invariably added by a reasonable prudent person in dangerous circumstances”

Myhaver v. Knutson (Emergencies) D driving, third party pulls out into his land and D swerves to miss, resulting in a head on

collision with P Rule- Sudden Emergency Instruction – in absence of antecedent neg. a person

confronted with a sudden emergency that deprives him of time to contemplate best reaction can’t be held to the same standard of care and accuracy of choice as someone with time to deliberate Emergency – sudden and unexpected encounter with a danger which is either real

or reasonably seems to be real Holding/Rationale – instruction given in cases when

Party seeking instruction had not been neg. prior to emergency Emergency had come about suddenly and without warning, and Reaction to the emergency was spontaneous w/o time for reflection

Cervelli v. Graves (superior qualities of an actor) P lost control and began to slide on an icy road and began to slide. D, a professional

truck driver, was approaching behind him at 35-40mph and also lost control, injuring P Rule- The actor is required to recognize that his conduct involves a risk of causing

invasion of another’s interest is a reasonable man would do the same while exercising Such attention, perception of the circumstances, memory, knowledge, and

judgment as a reasonable man would have AND Such superior attributes and judgment as the actor himself has.

Holding/Rationale – Negligence is failure to do what a reasonable man would under the circumstances…if the circumstances include expert knowledge they must be taken into account

Notes – policy to hold people at least to the “floor” of care (reasonable under the circumstances) bar raised for people with specialized understanding

Robinson v. Lindsay (Minors) P and D, minors, were riding a snowmobile. D was driving and crashed causing P to lose

full use of her thumb. Rule – Child is expected to exercise the same care that a reasonably careful child of the

same age, intelligence, maturity, training, and experience would exercise under similar conditions EXCEPTION- When the activity a child engages in is inherently dangerous, the child

should be held to an adult standard of care. Holding/Rationale- D was operating motor vehicle and should be held to adult S of C.

Injustice if child causes injury engaging in dangerous activities and defends himself with a lower S of C. The rule discourages youth from engaging in dangerous activities.

Hypothetical – Child driving on private property, hits trespasser Held to adult standard of care…one must collect from minor’s pool of assets unless

statutory right to recover from parents is present.

9

Poyner v. Loftus (Physical Disabilities) P can only see 6-8 feet in front of himself due to disability. Was walking on elevated

walkway with no cane or dog and turned his head while continuing to walk forward before he fell

Rule- For a person with a disability – Due care “is such care as an ordinary prudent person with the same disability would exercise under the same or similar circumstances”

Holding/Rationale – Blind or partially blind person must conduct himself safely by using proper devices to compensate for his condition…here the P used no assistance.

Notes – Person with mental disabilities judged under normal reasonably prudent person standard. Hypo – D walking down the street and attacks someone in a schizophrenic state

Judged by reasonably prudent person under the circumstances Recklessness – Higher form of negligence *STILL UNINTENDED*

Sandler v. Commonwealth P injured himself biking on a path managed by D. D was aware drain cover was

frequently removed from pipe, lights frequently didn’t work and didn’t store extra covers or fix pipe. Expert testimony aid tunnel upkeep was deficient.

Rule – Reckless failure to act – intentional or unreasonable disregard of risk that presents a high degree of probability that substantial harm will result to another. The risk of death or GRAVE bodily injury must be known or reasonably apparent and the harm must be a probable consequence of D’s election to run the risk or their failure to reasonably recognize it

Holding/Rationale – Degree of risk didn’t meet standards established for recklessness. Level of dangerous presented not high enough (examples pg 132)

Reckless Conduct – A person acts with recklessness in engaging in conduct if: The person knows of the risk of harm created by the conduct or knows facts that

make that risk obvious to anyone in the person’s situation, and The precaution that would eliminate or reduce that risk involves burdens that are so

slight relative to the magnitude of the risk as to render the person’s failure to adopt the precaution a demonstration of the person’s indifference to the risk

Difference between Recklessness & Intentional Torts Recklessness about intentionally disregarding a risk….Risk V. Known result

Proving Breach Violation of a Statute – Negligence Per Se

Martin v. Herzog (pg 138) P was driving a buggy at night without lights which are required by statute. D came

around the corner in an automobile striking the buggy and killing D’s husband Rule – To omit, willfully or heedlessly, the safeguards prescribed by law for the benefit

of another that he may be preserved in life or limb, is to fall short of the standard of diligence to which those who live in organized society are under a duty to perform

10

(Breach of statute intended to protect against type of injury which victim suffered = neg per se breach of duty)

Holding/Rationale – The fact that there was a causal connection between the negligence and the injury is essential in proving P’s contributory neg due to statutory omission.

Notes – neg per se proves “n”egligence…conclusive evidence of breach…the statute itself imposes a duty

Thomas v. Mcdonald P was injured in collision with D’s stalled truck when it was getting dark. D failed to

provide warning with proper devices as required by statute Rule – Test for Neg Per Se –

P must show they were member of class statute was designed to protect The harm suffered was the type which the statute was designed to protect The statute was violated

Holding/Rationale – Court establishes that D’s actions were contrary to statute which is meant to protect other drivers (such as P) from the type of harm which occurred (injury due to accident

Notes – view hypotheticals pg 144 Wawanesa Insurance Co v. Matlock

D and Erdley were smoking cigs purchased by the older teen. They climbed on a stack of telephone poles owned by Woodman Pole Company with two younger boys and Erdley dropped his cig, burning down the pile

Rule – To obtain the benefit of the neg per se doctrine, in addition to showing that the D violated a statute, the P must prove that the harm that occurred was the type of harm the statute was designed to protect against

Holding/Rationale – Nothing in the statute suggests it is meant to protect against fires…found in the general morals section of code and is aimed at protecting health of minors.

Notes – Licensing Statutes – Often courts decline to treat violation of licensing statutes as relevant to determining fault – example – no causal relationship between no license and bad driving

The TJ Hooper (Industry Custom) Tug boat carrying barges got caught in a storm and sank. Operators would’ve sought

shelter if they had heard the broadcasts but radio equipment wasn’t in working order. Barge owners sued

Rule – “in most cases reasonable prudence is common prudence, but strictly it is never its measure” – “courts must in the end say what is required; there are precautions so imperative that even their universal disregard will not excuse their omission

Holding/Rationale – due to ease of acquiring radios and how important they are court holds against the custom finding that those who did possess the equipment were right for doing so and the others have “lagged behind”

Notes - Industry custom – “some evidence” of breach compared to statutory evidence which is conclusive evidence of a breach Proof of compliance with custom is relevant (some evidence)

11

Elledge v. Richland/Lexington School District P’s daughter fell and injured herself on modified monkey bars. Modification was

requested by D and done by non-engineer rep. of the company Rule – A safety code isn’t introduced as substantive law, but offered in connection with

expert testimony which identifies it as illustrative evidence of safety practices or rules generally prevailing in the industry it provides support for the opinion of the expert concerning the proper standard of care

Holding/Rationale - “evidence of industry standards, customs, and practices is “often highly probative when defining a standard of care”

Wal-Mart Stores v. Wright P sued D due to fall at their premesis. Jury held D to standard of care recognized in their

store manual. D appeals saying you can set higher standards for yourself…ordinary care still applies

Rule – Failure to follow a party’s precautionary steps or procedures isn’t necessarily failure to exercise ordinary care.

Holding/Rationale – If a D believes they’re acting reasonably no defense is provided if they fall below the standard of reasonable care…Similarly a D’s belief they should perform higher than standard of reasonable care doesn’t matter…ordinary, reasonable care still applies

Notes - Industry custom doesn’t supplant ordinary standard of care Res Ipsa Loquitur – “the thing speaks for itself.” Allows P to prove negligence with circumstantial

evidence. Jury may conclude D neg. without P introducing detailed or direct evidence of P’s shortcomings. Four Elements – (1) the type of injury was usually associated with negligence (2) the D had

exclusive control of whatever caused the injury (3) P had made no causal contribution to the harm; and (4) D’s access to information about the event was superior to P’s Byrne v. Boadle (pg. 162)

P was walking down street when suddenly a barrel fell from 2nd story window of D’s shop striking him. P sued D for neg.

Rule – P must persuade jury that more than likely event occurred due to neg. P not bound to show it couldn’t fall w/o neg. Presumption of neg. can arise from an accident

Holding/Rationale – It was D’s responsibility to control contents of his warehouse, It becomes D’s responsibility to prove no negligence.

Notes - Res Ipsa Loquitur – way to give a presumption of evidence to the P in the absence of that evidence/a way of presuming something in the absence of evidence – shifts burden to D

Shull v. B.F. Goodrich P delivered tires to D and injured himself due to a malfunctioning dock plate at D’s

plant. Testimony showed plates were only serviced after trouble arose and D had experienced similar malfunctions before

Rule – For Res Ipsa Loquitur P must show (1) accident doesn’t happen under proper care (2) D was in exclusive control of the instrumentality causing injury

12

Exclusive Control – its not necessary that D be in control of the instrument at the moment of injury so long as the D was the last person in control of the instrumentality under circumstances permitting an inference of neg.

Holding/Rationale – P showed D was in exclusive control (plate in D’s plant) and that such an injury doesn’t happen under proper care (proven by engineer testimony)

Legal Cause: Cause in Fact Must show two types of causation

Cause in fact + Proximate causation Causation links harm(damages) to conduct (breach of duty) Cause in fact -> “but-for” causation -> showing that as a matter of historical & physical fact it

is “more likely than not” that D’s conduct was the cause of P’s harm “more likely than not” = a preponderance of the evidence = more than 50% Whether P’s

harm would’ve occurred but for D’s negligence Cay v. Louisiana

P accidently fell off a bridge & died while walking home intoxicated. D had built the bridge with 32 inch high railings and official standards called for 36 inches. D knew pedestrians frequented the bridge

Rule – Cause –in-fact – is usually a “but-for” inquiry which tests whether the injury wouldn’t have occurred but for the D’s substandard conduct

Holding/Rationale – Reasonable to conclude that a higher railing (standard height) would’ve prevented the accidental fall. Ascertained through expert testimony and evidence pointing away from suicide

Lyons v. Midnight Sun Transportation P’s wife pulled out in front of D’s truck and was killed. Jury found that D was neg in the

accident, however, P’s wife’s neg had been found to have cause the accident Rule – Without causation even the most egregious neg. cannot result in liability Holding/Rationale- A reasonable jury could conclude that P’s wife caused the accident.

Didn’t surmount but for causation due to the evidence showing that even in the D exhibited no neg. P’s action of pulling in front of him would’ve caused a collision

Alternatives to but-for test Multiple Sufficient Causes - two or more concurrent tortfeasors combining to produce injury to

another, either act would be sufficient to cause the act to the other, burden then shifts to the Ds for them to negate cause Kingston v. Chicago & Northwestern Railway

A northeast fire set by sparks from D’s train combined with a “northeast” fire of unknown origin to burn down P’s house. Trail court found for P

Rule – Where two causes, each attributable to the neg of a responsible person, concur in producing an injury to another, either of which causes would produce it regardless of the other…each adopts the conduct of his co-actor Because it would be impossible to account for how much dam. each caused the

whole loss is considered as an entity

13

Holding/Rationale – Since northeast fire was caused by D’s neg and was a prox. Cause of P’s damage court finds them liable since the other fire was caused by a human entity

Notes - Plaintiff can’t pass the “but for” test because but for either fire the plaintiff wouldn’t be without injury…in such an instance the other fire would’ve caused the damage If one source of injury can’t be pinned to a tortfeasor (natural causes), most

jurisdictions don’t allow multiple sufficient cause to be used Shinn v. Allen (Concert of Action)

D was passenger in a car which struck and killed P’s husband. D was hanging out with driver and consumed beer with him prior to the accident.

Rule – For harm to a 3rd person from another’s conduct one is liable if… Does tortious act in concert with the other or pursuant to common design with

him Knows the other’s conduct is a breach of duty & gives substantial assistance or

encouragement to the other so to conduct himself; or Gives substantial assistance to the other in accomplishing tortious result and his

own conduct, separately considered, constitutes a breach of duty Holding/Rationale – In examining the 5 Factor test for substantial assistance court found

that D wasn’t in concert of action with driver 5 Factor test for concert of action

Nature of the Wrongful Act- Purpose of theory is to deter antisocial or dangerous behavior

The kind and amount of assistance- non-acting person must give substantial assistance or encouragement to the tortfeasor

Relation of the parties-is there a special relationship such as employer-employee?

Presence or Absence of the D D’s State of Mind- “the mere presence of the particular D at the commission of

the wrong, or his failure to object to it, is not enough to charge him with responsibility” (Olsen)

Notes - Hypothetical – factual scenarios which would show rule subsection A Drag racing – one driver crashes High level of encouragement…”cheering on” brings it to the level of subsection

B Summers v. Tice (Alternative Liability)

P and two D’s were hunting and D’s shot in direction of P at the same time, injuring him. Rule- When two or more persons by their acts are possibly the sole cause of a harm, or

when 2 or more acts of the same person are possibly the sole cause, and if P has introduced evidence that one of the 2 is responsible Both are responsible and burden shifts to D’s to prove it was the other

Holding – innocently wronged should have right to redress and wrongdoers can work out any apportionment amongst themselves.

14

For Alternative Liability P has to show Both concurrent tortfeasors Neg. of one has injured P but P can’t determine which one

Burke v. Schaffner Truck accelerated rapidly, pinning P between it and a parked car. P and driver of the

truck believe D negligently stepped on the pedal while getting into the car. Rule – Under Alternative Liability P must prove

That 2 or more Ds committed concurrent tortious acts and created similar risk That P’s injury was result of one D’s wrongdoing (negligence) P factually can’t show which one

Holding/Rationale – Ruling for D affirmed because P didn’t bring anyone else into the suit or try to prove two parties were negligent…court believes AL should be narrowly interpreted

Hymowitz v. Eli Lilly & Company (Market Share Liability) P was injured by DES drug taken during pregnancy. Tests indicate that this drug is linked

to cancers that take a long time to surface. There were a vast number of manufacturers and taking action against one had proven difficult.

Rule – Market Share Theory – modified alternative liability must bring a “substantial share” of wrongdoers before court and each D that can’t prove they didn’t injure P are liable according to their market share

Holding/Rationale – P’s need an avenue to be remedied for injury from DES. Spreading liability by market share is the fairest way as those with the largest market share likely caused the most injury

Limits on Liability – Duty and Proximate Cause Palsgraf v. Long Island Rail Road

P was waiting for a train at the station when two men ran to catch a train leaving. One jumped on and seemed as if he was going to fall so an employee of D pushed him aboard. He dropped a package of fireworks which exploded sending debris flying across the station injuring P

Rule – before neg. can be predicated to a given act, back of the act must be sought and found a duty to the individual complainant. Pg 225 – “The risk reasonably to be perceived defines the duty to be obeyed, and

risk imports relation; it is risk to another or to others within the range of apprehension”

Holding/Rationale – There is no way, due to the nature of the guard’s act and the benign appearance of the package that one could reasonably forsee a risk to P. The ability of one to reasonably forsee such a risk is necessary for duty to exist

Dissent – Cardozo sees duty differently from Andrews – Andrews sees legal duty to all the world collectively while Cardozo sees legal duty only to those within the realm of foreseeability

Hegyes v. Unjian Enterprises INC

15

P’s mother injured in car accident with D. As a result of shunt used to treat that injury, P was born 51 weeks premature and suffered defects

Rule – In order to be compensated by law, P’s injuries must be reasonably forseen by one using ordinary care Creation of legal duty requires more than a mere possibility

Holding/Rationale – a motorist can’t be expected to forsee injuries to a child conceived by an injured party years later…cases where such a duty is found to exist apply the standard of Special Relationship – duty to birth of handicapped child found to exist due to D’s

professionally negligent conduct (doctors related to child’s birth) Hypo – if mother was pregnant in the car – In eggshell P theory you “take the plaintiff as

they come,” law would find there was duty between motorist & fetus in that situation Dykema v. Gus Macker Enterprises

P attended basketball tourney thrown by D as a free spectator. A thunderstorm came and he was hit by a tree limb and paralyzed. P sued arguing special relationship

Rule- In a special relationship, one person entrusts himself to the control & protection of another, with a consequent loss of control to protect himself (see types and tests pg 233)

Holding/Rationale – No special relationship between P and D…no invitee – invitor, admission fee, no business relationship…no indication P entrusted D with his protection “there is no general duty to protect another”

Notes - In order to determine “special relationship one must – balance the societal risks involved, the severity of the risk, the burden upon the D, the likelihood of occurrence, and the relationship between party.

Graff v. Beard D through a party that Moos attended, left drunk, and injured P in an accident. P sued

moos and D. Rule – the imbiber(wrongdoer) has the/maintains the ultimate power to control his own

behavior Holding/Rationale – Court concludes drinker is the person primarily responsible for his

own behavior…its impractical for the host to know how much alcohol each guest consumes and one can’t assume guests will comply with a host’s attempts to stop them from driving

Notes - questions of duty have turned on whether one party has superior knowledge of the risk, and whether a right to control the actor whose conduct precipitated the harm exists.

Eisel v. Board of Education of Montgomery County Multiple students informed D that P’s daughter intended to commit suicide. Councilors

didn’t notify parents and daughter committed suicide. Rule – A tort duty is “an expression of the sum total of those considerations of policy

which lead the law to say that P is entitled to protection”

16

Holding/Rationale – Court holds that high school councilors have duty to use reasonable means to prevent a child’s suicide when they have notice due to the growth of the tragic social problem

Proximate Cause - asking whether D’s conduct is one for which the law should create legal liability…is a policy

question while Cause-in-fact finds physical link between conduct and injuryFour main approaches – Pg 2431. Directness test2. Substantial Factor Test3. Foreseeability Test4. Restatement 3rd

In Re Arbitration – Polemis $ Furness Agents of D were unloading P’s ship. Threw boxes of cargo and a rope from one of the

boxes knocked down a board which started a fire from leaked petrol. Rule- If the act would or might probably cause damage, the fact that the damage

caused isn’t the type one would expect is immaterial, so long as the damage is directly traceable to the neg. act

Holding/Rationale – D was neg. in knocking down plank by throwing cargo as this action could easily cause damage to the workmen, cargo, or the ship. Just because an unexpected result was produced doesn’t mean D is free of neg.

Notes - Court applied a directness test – “cause in fact is prox cause when there are no intervening acts…D’s act directly caused the harm” – foreseeability isn’t a component

Laureano v. Louzoun (An Intervening Act) P was tenant in D’s building and was boiling two pots of water because D had failed to

provide heat and hot water. P banged the pots together by mistake and spilled boiling water on herself…claims lack of heat caused it

Rule – The D’s act must be the direct cause of P’s injuries. Proximate cause is negated by an intervening act.

Holding/Rationale – While D’s conduct may have directly caused P to boil the water the act of banging the pots together constituted an intervening act which caused P’s injuries.

Notes - Scrutton in Polemis explains further – so long as the damage is in fact directly traceable to the negligent act, and not due to the operation of independent causes having no connection with the neg act, except that they couldn’t avoid its results

American Truck Leasing v. Thorne Equipment Co (Substantial Factor) Gross owned a vacant building and allowed trash to pile up around it which started a

fire, burning down a narrow street. An elevator shaft was damaged and D was contracted to take it down. In taking it down P’s property was damaged.

Rule – Considerations for substantial factor-

17

A. the number of other factors which contribute in producing the harm and the extent of the effect which they have in producing it

B. Whether the actor’s conduct has created a force or series of forces which are in continuous 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 P’s property dam. not caused by fire, rather, it was caused by demolition of elevator

after fire was out. Demolition = independent agency Chelcher v. Spider Staging Corp.

P worked on a scaffold made by D and injured his back due to a mis-rigging by his employer

Rule – D’s conduct is a legal cause if it is a substantial factor in bringing about the harm…”hinges on principles of responsibility, no litmus test”…must be the predominant cause

Holding/Rationale- Other factors such as the mis-rigging by the employer, his continued work despite no safety inspector, ect…were substantial factors in causing his injury which diluted D’s contribution preventing it from being substantial factor.

Tieder v. Little (Foreseeability) P was hit by a car and pinned to a wall. Another wall which was negligently constructed

fell on her and killed her. Rule – Neg. is proximate cause if: the general type of accident was a reasonably

foreseeable consequence/ was in the scope of danger caused by D’s conduct (not necessary to foresee events leading up to the fall

Holding/Rationale – Collapse of a brick wall resulting in the death of someone nearby is a reasonably foreseeable consequence of D’s negligent construction

Notes - When the wall is built negligently, any type of accident which may cause it to fall is foreseeable Hypo: I walk out on my deck, which was neg. designed, collapses when I walk out on

it. People were organized under there…foreseeable because neg. design make it foreseeable that it would collapse and cause the type of harm described.

Foreseeability in duty V. prox cause – duty to people within sphere of risk created by neg…prox cause if type of injury happens

Schafer v. Hoffman (Thin Skull Plaintiff) D struck P with his car while under the influence of alcohol/drugs. P had numerous

injuries, however, also had many preexisting conditions which made the injuries worse Rule – Neg. Actor must bear the risk that his liability will be increased by reason of the

actual physical condition of the other toward whom his act was neg. Holding/Rationale – trial court was correct in using eggshell instruction which may be

used when D seeks to lower damages or liability due to injuries being less severe had P been an “average person”

18

Notes - Thin Skull/Egg Shell P v. Shabby Millionaire – I take the P as I find them no matter what physical impairment they might have v. take the P nomatter what economic condition you find them in.

Thompson v. Kaczinski (Restatement 3rd Approach) D took apart a trampoline and left it in the yard for several weeks. One morning it was

windy and part of it blew it into the road. P crashed swerving to miss it. Rule – An actor’s liability is limited to those physical harms that result from the risks that

made the actor’s conduct tortious…whether harm is among those reasonably foreseeable harms that made the actor’s conduct tortious

Holding/Rationale – Reasonable factfinder could find harm to P could’ve resulted from risks that made D’s conduct a tort. Equipment was near road and could reasonably be blown there by wind to endanger drivers.

Notes - Duty (in restatement 3rd) – An actor ordinarily has a duty to exercise reasonable care when the actor’s conduct creates a risk of physical harm (movement towards Andrews’ approach in Palsgraf dissent) In determining duty

Is there a special relationship? Public Policy

Breach – In restatement 3rd approach, foreseeability is moved to the breach…decided by jury if breach was foreseeable…When analyzing breach a lawyer must carefully identify the likelihood and severity of the potential risks and consider how difficult it would be to avoid those risks.

Restatement 3rd/ Risk Standard Approach Notes Court must consider all the range of harms risked by D’s conduct that the jury could find as

the basis for determining the D’s conduct tortious – then the court can compare the P’s harm with the range of harms risked by D to determine if it falls within them Both Risk standard and foreseeability test exclude liability for harms that were

sufficiently unforeseeable at the time of the actor’s tortious conduct Though very similar, drafters of Restatement 3rd favored risk standard because it is

clearer for the jury. Behrendt v. Gulf

P worked for oil changing business when modified tank exploded injuring him. D allowed workers to do side projects, however, forbade the making of pressurized tanks. Tank from D made its way to P and was modified there.

Rule – D hasn’t breached a duty of reasonable care when reasonable minds can’t differ on the question…lack of foreseeable risk – no reasonable person could find D has breached a duty of reasonable care

Holding/Rationale – D had a duty of reasonable care to ensure side jobs didn’t create unreasonable risk of injury. Lack of foreseeability meant they didn’t breach duty. D took steps such as forbidding employees from making pressurized tanks and cutting holes in the tanks.

Price v. Blaine Kern Artista Intervening and Superseding Forces

19

P, a performer in Las Vegas fell and injured his neck wearing a large George Bush mask made by D. A man angry about Bush’s abortion policy pushed him.

Rules – While it is true that criminal or tortious third party conduct typically severs the chain of proximate causation – the chain remains unbroken when the third party’s intervening intentional act is reasonably foreseeable

. Holding/Rationale- Due to circumstances reasonable jury could conclude D should have

foreseen possibility of violent reaction by politically motivated patron toward P. Notes - Operative Question – whether intervening act is reasonably foreseeable?

*If intervening act is reasonably foreseeable it is not a superseding force* Superseding Force – Third-party conduct/act that prevents the D from being liable

McClenahan v. Cooley D left his car parked w/ keys in the ignition. Car was stolen and high speed chase ensued

killing wife and son of P Rule – An intervening act isn’t superseding if

1. It is a normal response to the neg act that is reasonably foreseeable and a substantial factor in bringing about the harm

2. It could reasonably have been anticipated; or 3. The intervening conduct could’ve been anticipated

Holding/Rationale – Jury may conclude reasonable person wouldn’t have left keys in car with public access. Determinations of this regard must depend on the entire circumstantial spectrum.

Defenses

Plaintiff’s Contributory Fault Contributory Negligence – Traditional common law treatment

Contributory Fault - if P is at fault at all – completely bars recovery – common law application Exceptions – if defendant exhibits recklessness (willful and wanton conduct Last Clear Chance Doctrine –P may recover full damages upon showing that D had the last

clear chance to avoid injury to P and didn’t take it Wright v. Norfolk & Western Railway

P injured when D’s train struck his truck. Crossing not reasonably safe but P was listening to music and didn’t have window open to hear

Rule- D has the burden to prove by greater weight of the evidence that P was neg and that neg was a prox. Cause of injuries – “architect of his own misfortune”

Comparative Fault Pure Comparative Negligence Jurisdiction – If P is neg, damages reduced by whatever % jury

assigns to P’s neg 50% Jurisdiction – P recovers if P’s neg is less than or = to D’s neg – recovery reduced by %

of P’s negligence

20

49% Jurisdiction – P recovers if P’s neg is less than D’s neg McIntyre v. Balentine

P was injured in accident when D struck him. P was drunk and speeding Law: Modified Comparative Fault – P recovers only if his neg doesn’t exceed that of D’s neg.

Dam reduced in proportion to P’s neg Dobson v. Louisiana Power & Light Co- 302

P brings on behalf of Dobson killed by D’s power line. P used metal enforced safety rope when cutting trees

Law: an actor with inferior capacity to avoid harm must expend more effort to avoid danger than a person with superior abililty Person about to cause injury must expend more effort to avoid danger than one who is

least aware Court applied Learned Hand Approach – can be used to determine how neg a person was

Reckless conduct Neg P protected from his contributory neg when recovering from a reckless D

Coleman v. Hines – 308 P killed in car accident when D was intoxicated. P acted recklessly indicating she would

consume alcohol with D and he would drive – turned down offer of co-worker for ride Law: Contributory neg no defense to willful & wanton injury – bars recovery for plaintiff but

not in the case of recklessness However – when P also exhibits reckless conduct recovery is barred! Exception Last Clear Chance Doctrine!

Downing v. United Auto Racing P injured at D’s racetrack due to recklessness, P was contributory neg Law: equitable principles of comparative fault outweigh social opposition to recklessness –

fact finder may prorate damages between P and D Assumption of Risk Express – involves agreement on the part of P to accept risks created by D’s activity

Questions: (1)does public policy permit releases in connection with the activity (2) Does the particular release merit enforcement?

Wagenblast v. Odessa School District D had students sign a release to play sports Law: see pg 319 for 6 public policy considerations/questions***

Turnbough v. Ladner (scuba case) P took scuba class, signed waiver, got diving sickness due to D’s neg Law: intention of the parties must be clear and unmistakable in order to uphold the

agreement… Not enforced unless the limitation is fairly and honestly negotiated and understood by both parties

Implied Assumption of Risk - Secondary – When P enters voluntarily into a relation or situation involving obvious danger, he

may be taken to assume the risk and relieve D of responsibility

21

Must show P (1) knew of the risk (2) appreciated the nature and extent of the risk (3) voluntarily exposed herself to the risk

Schroyer v. McNeal P got to D’s hotel and parked in an obviously icy area to be closer to her room Law: Subjective test – requires P had subjective actual knowledge of the risk, had subjective

actual appreciation of its nature and extent, and voluntarily accepted it Davenport v. Cotton Hope Plantation

Defective floodlight in D’s stairway. P notified them to fix it but continues using the stairway regardless

Law: Secondary implied assumption of risk arises when P knowingly encounters a risk created by D’s neg May involve reasonable or unreasonable conduct on the part of P***

Mitigation & Avoidable Consequences Miller v. Eichhorn

P and D got into an accident, P didn’t follow certain orders of the doctor Law: “in determining the %s of fault, the trier of fact shall consider both the nature of the

conduct of each party , and the extent of the causal relation between the conduct and the damages claimed Fault also includes unreasonable failure to avoid/mitigate damages

Klanseck v. Anderson Sales & Service In Klanseck the amount of damages that come from your failure to mitigate aren’t

recoverable – comes during the damages phase Law v. Superior Court

P pulled in front of D, not wearing seatbelt, got injured Law: Doctrine of Unavoidable consequences – Theory that denies recovery for those

injuries P could reasonably have avoided – Fault includes unreasonable failure to avoid an injury

Vicarious Liability Respondeat Superior - employer may be vicariously liabily for a (1)tortious act of an employee,(2)

committed within the scope of his employment SOHO/FOHO Scope of his employment Frolic of his own?

o Trahan-Laroche v. Lockheed Sanders D employed maintenance worker who used his own trailer. Employees trailer came

loose and hit P’s car

22

Law: Doctrine of Respondeat Superior – an employer may be held responsible for tortious actions of him employee committed incidental to or during the scope of his employment

Employer may be held directly liable for dam. resulting from neg. supervision of his employees

o O’Connor v. McDonalds Evans was doing work for D and left to spend time at fellow employee’s house. Hit

motorcycle with his car later Law: Exception to Respondeat Superior – Coming and Going Rule

Exception to Coming and Going – “special errand” – driving of employee on “special errand” exempt, “usual duties or specific employer request”…liability found for detour not for complete departure from errand

5 factor test for Complete Departure pg 404o Intent of employeeo Nature, time, Place of employees conducto Employer’s reasonable expectationso Employee’s freedom in performing dutieso Amount of Time Consumed in personal activity

o Levitt v. Peluso (Vehicle Owners) P injured when egg thrown out of D’s car by passenger (D not driving) Law: Key Question – whether neg. arose from the use of the automobile – causal

relation or connection must exist between the injury and the use of the car Gholson test pg 414, “inherent nature of the automobile”

Owners and Occupiers of Land Trespassers - Define The Entrant “Mere Trespasser” – one who wrongfully comes upon the land of another but without any

motive, design, or intent to engage in further wrongful conduct v. Criminal trespasser

Ryals v. US Steel Corp(Adult) D’s land trespassed on with purpose of committing crime. P injured in

attempting to take copper wire Law: Mere Trespasser – landowner owes the duty to not intentionally or

wantonly injure Criminal Trespasser – Landowner duty to not intentionally injure Definition of Wanton pg 467

Merril v. Central Main Power Co P, then 9, fishing on D’s property and gets electrocuted, did not succeed

in suit because evidence indicated child was aware/ understood the risk

23

Law: Attractive Nuisance - Possessor of land is subject to liability for physical harm to Children trespassing caused by an artificial condition if

o Place where the condition exists is one which possessor knows or has reason to know that children are likely to trespass, and

o The condition of one the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and

o The children because of their youth don’t discover the condition or realize the risk involved in intermeddling with it

o The utility to the possessor of maintaining the condition & the burden of eliminating it are slight compared to the risk (L Hand)

North Hardin Development v. Corkran P injured by horse when she climbed through barb wire fence into pen. Law: Ordinary domesticated animate don’t constitute unreasonable risk

of death or serious bodily injury to children as required by AN, (water generally rejected as well)

Licensees and Invitees Knorpp v. Hale pg 475

P dating D’s daughter, frequently visited, died when tree he offered to cut down fell on him

Law: A landowner owes an invitee a duty to exercise ordinary care to protect him from risks which the owner is actually aware and those of which the owner should be aware of after reasonable inspection

Owes licensee a duty to not injure him by willful, wanton, or grossly negligent conduct. Owner must use ordinary care to warn lisencee of, or make reasonably safe, a dangerous condition which the owner is aware of and the licensee isn’t

Here P was aware of the dangers and D wasn’t aware of additional dangers – social host = licensee

Examples: Invitee or Licensee Members of churches in attendance- perhaps invitee due to being members of

the public, many jurisdictions make them licensees due to being part of a faith and its roots in our society…like going to a home “house of worship”

Its my house but I’m approached by an organization to tour it to others for charity – perhaps invitee because a transaction occurs (like a business dealing) and benefit to land owner (they likely support the charity)

I put my house on the market and perspective purchaser comes in – is it someone that is there for a business dealing or do you know the person making it more like a social guest – most jurisdictions make them invitees – part and parcel of a business dealing

24

Premises Liability – A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he

Knows or by the exercise of reasonable care would discover the condition and should realize that it involves an unreasonable risk to invitees, and

Should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and

Fails to exercise reasonable care to protect them against dangero ***Knowledge of condition imputed to a possessor of land who

has created the condition that causes P’s injuryo ***Duty of res care extends to inspection of the premesis to

discover dangerous conditions & latent defectso Place of entertainment higher duty than private property

generally Richardson v. The Commodore

P was shooting pool at d’s bar. Part of plaster roof fell – D knew age of the roof and didn’t inspect it

Law: Premesis Liability - not a social guest, patron there for business dealing specifically – classic invitee, easy inspection

Slip and Fall Cases Nisivoccia v. Glass gardens Inc (Mode of Operation Approach)

P slipped and injured herself on grape near checkout line, the mode of operation used by the store made it very foreseeable that such goods could fall in the area

Mode of Operation – in circumstances where a dangerous condition is, as a matter of probability, likely to occur as a result of the nature of the business, the property’s condition, or a demonstrable pattern of conduct or incidence…

o P accorded inference of neg and burden shifts to Do D may avoid liability if he shows he did “all that a reasonably

prudent man would do in light of the risk” Constructive Notice – would require grape which P slipped on to have

been present on the floor for a significant period of time prior to the accident

Landlord – Tenant Boarders v. Roseberry (Common Law Approach)

D was landlord of R. R invited D over and he fell due to removed gutter – lessee had knowledge of the failure to make a repair

Law: Generally when land leased to tenant, law of property regards the lease as equiv. to sale of premises for the term

o Exceptions – pg 497

25

Nelson v. Freeland (rejection of 3 category system – modern approach) P went to d’s house at D’s request to pick him up. Fell on a stick on the

porch and injured himself Law: Court imposes duty of deasonable care upon landowners for the

protection of lawful visitors – trespasser status remains viable Newton v. Magill (Changes in Doctrine

P, tenant, slipped on walkway, sued D landlord Landlords have duty to use reasonable care to discover & remedy

conditions which present an unreasonable risko Hidden or Apparent and Tenant or Common Area – accounted

for in neg analysiso In an area controlled by a tenant landlord shouldn’t be liable for

neg. unless he knew or res should have known the defect and had reasonable opportunity to repair it

o

Special Duty Rules Duty to Rescue or Protect – Generally tort law doesn’t require one person to rescue another

from harm, despite the foreseeability of harm to that persono Exceptions –

Good Samaritan Statutes Special Relationships Pre-Existing Duties

o Lundy v. Adamar of NJ P, patron of D’s casino, had heart attack. Several people including an in house

nurse helped but he died…she wasn’t qualified to use intubator and didn’t Law: A common carrier(special relationship) is under a duty to its passengers to

take reasonable action To protect them against unreasonable risk of physical harm, and To give them first aid after it knows or has reason to know they are ill or

injured, and to give them care until they can be cared for by others Possessor of land who holds it open to the public is under a similar duty

to members of the public who enter in response to his invitation Duty recognized doesn’t extend to providing all medical care that the

carrier/innkeeper/landowner could reasonably foresee might be needed by a patron

o Obligations to Rescuers – “Danger Invites Rescue”o McCoy v. American Suzuki Motor

26

P went to the aid of driver in one of D’s cars which had a tendency to roll. Was hit by a car and injured after rescue

Law: Rescue Doctrine – allows injured rescuer to recover from party which caused the danger in the first place

Exception – if rescuer acts rashly or recklessly Rescuer must demonstrate – (1) D was neg to the person rescued and

such neg caused the peril or appearance of peril to the person rescued (2) the peril or appearance was imminent (3) reasonably prudent person would’ve concluded peril existed and (4) rescuer acted with reasonable care in rescue

Moody v. Delta Western Firefighter’s Rule – negligent party has no duty to public safety officer -

officer employed by the public to respond to such circumstances and receives compensation and benefits for the risks inherent in them

o Protecting Third Parties from Criminal Attacks or Diseaseo Emerich v. Philadelphia Center for Human Development

Special relationship between mental health professional and patient may, in certain circumstances, give an affirmative duty to warn for the benefit of an intended victim

When they determine or should’ve determined that the patient presents a serious danger to another they bear a duty of reasonable care to protect by warning the intended victim against such danger

Primary Assumption of Risk – protects D from liability in some circumstances where risks either can’t be eliminated or would be too costly to eliminate and where those risks are typically obvious to the people who encounter them

o Clover v. Snowbird Ski Resort Agent of D skiing, went off dangerous jump and struck P. D knew jump

presented danger Law: Primary Assumption of Risk is “an alternative expression for the

proposition that D was not neg, that there was no duty owed or breach of existing duty:

Inherent risks of an activity are those dangers that one would wish to confront as essential characteristics of that activity

Court may find harm was unforeseeable because P could choose to avoid it by not participating, no duty because of public policy protecting athletic facilities, no duty based on inherent risks

o Jones v. 3 River’s Management P was walking on an exposed interior walkway overlooking the field. Ball hit in

batting practice struck her Law: No-Duty rules apply where risks are “common, frequent, and expected”

27

Do not affect duty of (theatres, parks, stadiums) to protect patrons from foreseeably dangerous conditions not inherent in the amusement

Damages Compensatory Damages

o Special – readily quantifiable/ economic – medical, funeral, lost wages – victim entitled to these past and future once the tort is proven – past includes from time of the tort to time of the trial – future must be proven beyond preponderance of the evidence

o General – non economic – pain & suffering, loss of consortium, injury to reputation Survival Statutes – allow P’s estate to sue on his or her behalf Wrongful Death Statutes – allow people who have suffered losses as a result of another’s

tortuously caused death to recovero Gunn v. Robertson

P appeals damage award after accident Law: Tortfeasor required to pay for medical treatment of his victim, even over

treatment or unnecessary treatment unless bad faith – Thin Skull Plaintiff In order to recover future medical benefits, P must prove expenses will

be necessary & inevitable, must be supported w/ expert medical testimony

To obtain for actual wage loss, P must prove length of time missed from work due to tort & prove lost earnings w/ reasonable certainty – must prove residual disability causally related to accident exists, no recovery for purely conjectural or uncertain loss

o On appeal court reviews evidence in light most favorable to judgment to determine whether trier of fact was clearly wrong

o Jordan v. Baptist Three Rivers Hospital Incidental Damages to Next of Kin Include – expectancy of life, the age,

condition of health & strength, capacity for labor and earning money through art, trade, profession, ect

Consortium Losses Encompass: intangible benefits such as: attention, guidance, care, protection, companionship, coorperation, affection/love, and sex

Applies to children & spouses General Damages Include subjective, non-monetary loses

o Pain & suffering, inconvenience, mental anguish, emotional distress, loss of consortium, injury to reputation, destruction of parent-child relationship

o Rael v. F&S Objective Pain & Suffering v. Subjective

Objective – plainly apparent from nature of injury that P&S would occur

28

Subjective – others cannot reasonably know for sure Two ways of awarding dam

Expert testimony Only standard or guide which trier of fact may use is his own common

senseo Giant Food v. Satterfield

Per Diem & Golden Rule Arguments Some jurisdictions allow per diem, Golden rule generally not allowed

Hedonic Damages – loss of enjoyment of life’s pleasureso Loth v. Truck-a-way corp

Loss of enjoyment of life not “a subject that is sufficiently beyond common experience that an expert is needed to assist trier of fact

Most jurisdictions consider hedonic damages part of pain and suffering Other Jurisdiction Views – they are not recoverable, recoverable as an

element of permanent injury, recoverable as separate element of damages

Special Damages Include: medical expenses, loss of earnings, burial costs, loss of use of property, cost of repair,

loss of employment/business opportunitieso Moody v. Blanchard Place Apartments (Classic Battle of Experts)

Law: Court didn’t disturb jury’s award because neither expert’s calculation can be said to be wrong – jury awarded in the middle

Loss of future income more speculative, factors considered include P’s physical condition before and after the accident, past work record, amount P would’ve earned absent of injury

Punitive Damages To Recover – Plaintiff must prove the elements of an intentional tort or recklessness of the sort

that includes a conscious disregard of the high risk of serious harm to otherso Two Questions

Is the punitive damage award excessive given the facts of that case Is the award excessive given punitive dam. previously awarded in other similar

cases?o Two Standards for Punitives: Peete & Shugaro Peete v. Blackwell

Law: “previous cases have typically held that assault and battery will support an award of punitive damages “whenever there is averment and proof tending to show that the act charged was wrongful and attended with an insult or other circumstances of aggravation

o Shugar v. Guill

29

To justify awarding punitive damages in NC there must be a showing of actual or express malice – showing of a sense of personal ill will toward the P which activated or incited D to commit the alleged assault and battery

Cases awarding punitive dam. had – unprovoked, humiliating assault, assaults on children, assaults on weaker persons, or assaults where a deadly weapon was callously used

o State Farm Automobile Insurance v. Campbell (like a good neighbor?) Three Guideposts for Excessive Punitives!

Degree of reprehensibility of the D’s misconduct The disparity between the actual or potential harm suffered by the P

and the punitive damages award (ratio of compensatory to punitives) Difference between punitive dam awarded and civil penalties

authorized or imposed in comparable cases Apportionment Among Tortfeasors Joint & Several Liability – P has the ability to collect judgment from any/all of the joint &

severally liable partieso Doctrine of Contribution – Defendant who has paid more than their fair share can seek

to recover any excess/overpayment from other defendantso Not allowed to - permit argument of council regarding effect of j&s liability to jury (Lacy

v. CSX)o Ways of allocating money between defendants (Sitzes v. Anchor Motor Freight)

50-50/ equal shares Pro tonto – minority of jurisdictions Allocate it according to degrees of fault attributable between tort feasors –

majority Several Liability

o Piner v. Superior CT Didn’t know if first or second accident caused his damages Indivisible Harms –a harm caused by multiple tortfeasors that can’t be

attributed to a particular tortfeasor – Connected to alternative liability & multiple sufficient causes

Jurisdiction will either allocate liability according to degrees of fault Or joint & several principles

o Movement has been towards degrees of faulto Roderick v. Lake

Law: Where defendants are independent but concurrent tortfeasors, and thus each liable for the dam caused by him alone, and innocent party can’t prove, burden shifts to the defendants to apportion fault

Strict Liability

30

Traditional SL o Animals – under common law animals divided into two catagories

Wild Animals – strict liability Domestic Animals – strict liability where the owner knows or should know of a

dangerous propensity, if no knowledge, plaintiff can only recover for negligence or intentional (Scienter Action)(Clark v. Brings)

Not necessary that animal has bit/scratched before – just necessary that animal exhibits “a savage nature”

Very fact dependent o Byram v. Main

SL doesn’t apply when animal is on public land, SL for animals that trespass Animal thought of as an extension of the owner, if on public land not

trespassing Adopts Restatement 2nd of Torts approach – pg 649

Selected Dangerous Activitieso Clark-Aiken v. Cromwell Wright

SL applies when someone brings something unusual or unnatural onto their land In order for it to apply it must be ultrahazardous/ unnatural

Factors pg 653o Klein v. Pyrodyne Corp

6 Factors pg. 657 Products Liability

o Manufacturing Defects Initial Rule - If a manufacturer was neg in producing a product there was only

liability if the victim purchased the item directly from the manufacturer Escola v. Coco Cola

Majority upheld negligence action against coca cola. Traynor’s

concurrence – says strict liability cause of action should be provided in these situations – public policy – market of defective products should be deterred, manufacturers can spread cost of liability the best, manufacturer should bear the cost of defective products

Manufacturers always in a better position than consumers to prevent the harms, control the risks, and distribute the losses over society, so they should be held liable without regards to fault

See Restatement 2nd of Torts pg 677 for Basic Ruleo Catagories of Products Defects

Manufacturing Defect Deviates from manufacturing of intended design, or Differs from apparently identical products made my the same

manufacturer

31

Design Defects (Myrlak v. Port Authority) Sometimes we have to make an inference that there has been a defect

in the design First you can infer that the defect caused P’s harm 2nd, that the defect existed as soon as product entered the stream of

commerce See Restatement Rule pg 684 (The Indeterminate Product Defect Test)

MortonRisk Utility Test- a product is defective if the risk of danger inherent in the design outweighs the benefit of the product