Intentional Interference with Person or Property

I. Intent: to be held liable for an intentional tort, a person must act: a. For the purpose of causing the result OR b. With knowledge that the result was substantially certain to occur c. Transferred Intent 1. If D acts intending to cause battery, assault, false imprisonment, trespass to land, or trespass to chattels, he will be held liable even if the particular harm or plaintiff is unexpected 2. D is also liable if he attempts one tort but commits another d. Unforeseen Consequences 1. Once it is established that the D intended to commit a harmful or offensive touching (or intends any tort) and such contact occurs, the D is liable for any consequences which ensue, even if he did not intend them and could not reasonably have foreseen them e. Harm 1. D does not have to have a hostile intent or the desire to harm, just the intent to do the act the results in the harm f. Insanity 1. Insane people have been held capable of committing intentional torts 2. An insane person may be found incapable of forming the necessary intent as well, especially with a tort that requires an unusual degree of intelligence or rationality, such as deceit II. Battery: the intentional infliction of a harmful or offensive bodily contact a. Elements 1. Intent 2. Harmful or offensive contact, directly or indirectly, as a result of the intended action 3. Reasonableness: as much as a reasonable person would believe the contact is harmful or offensive b. Direct Contact 1. Battery may be committed not only with the persons body, but also with his clothing, an object e is holding, or any other personal effects that is closely identified with his body 2. It is not necessary that the D touch the P with his own body; ordering a dog to attack the P can suffice c. Awareness: it is not necessary that P have actual awareness at the time of contact III. Assault: the intentional causing of an apprehension of harmful or offensive contact a. Elements 1. Intentional, unlawful attempt at contact OR 2. Intent to create apprehension of unlawful contact 3. Imminent apprehension of harmful/offensive contact by plaintiff (a) The threat of contact must be imminent; future threats of harm are not assault (b) It must appear to the P that D has the present ability to commit the threatened act (c) Apprehension is not the same as fear 1

Words Alone 1. The effects of words almost never constitute an assault 2. They must be accompanied by an overt action 3. An exception to this would be if the D is known to have harmed others D, a notorious gangster, calls P and says that he will shoot him on the spot. P comes around the corner and encounters D who then says, your time has come. D has committed an assault. c. Conditional Threats 1. If D threatens P with immediate bodily harm unless he hands over his wallet, D has committed assault. 2. The exception is if D has a legal right to compel P to perform the act in question. In this case, D has no legal right to compel P to give him his wallet. d. Third Persons: P must have apprehension that he himself will be subject to harmful/offensive contact e. Awareness: P must be aware, cannot be unconscious IV. False Imprisonment: Intentional infliction of confinement without legal justification a. Elements 1. Intent 2. Confinement (a) Physical force (b) Threats of immediate physical force (unwilling consent) (c) Other Duress (threats to property, force to a 3rd person) (d) Submission to asserted legal authority (illegal arrest is false imprisonment) (e) Duty to aid in escape or release D induces P to sail with him from Syria to America, promising to let P off as soon as they arrive. The boat arrives at the U.S. port, but D refuses to give P a rowboat to get to land. b. Escape Must Be Unreasonable 1. Physically dangerous to P, harmful to his clothing, offensive to his reasonable sense of decency 2. Escape is unapparent and P does not know its existence c. Awareness: must be aware of confinement or suffer harm A newborn locked in a bank vault for two days and suffers from hunger. He was falsely imprisoned despite his lack of awareness 2. Remembrance not required (a) Awareness at the time of confinement is required, not necessarily the ability to remember the confinement V. Infliction of Emotional Distress: the intentional or reckless infliction, by extreme and outrageous conduct, of severe emotional or mental distress, even in absence of physical harms a. Elements 1. Intent (a) P intended to cause emotional distress OR (b) Knew with substantial certainty that emotional distress would occur OR 2

b.

Acted recklessly, in deliberate disregard of a high probability that the distress would occur 2. Extreme and Outrageous Conduct (a) The conduct must be so outrageous in character and so extreme in degree that is goes beyond all bounds of decency; regarded as atrocious and utterly intolerable in a civilized community (b) When determining whether the defendants conduct is sufficiently outrageous, the court will take into account the particular characteristics of the plaintiff, as well as the relationship between him and the defendant i. P is very young, retarded, or senile ii. Harassing bill collectors iii. Ds knowledge of plaintiffs sensitivity b. Actual Severe Distress 1. Medical effects: at minimum, plaintiff must always show he that his stress was so severe that he sought medical aid c. Reasonable Standard 1. The defendants conduct must be such that a reasonable person would suffer such distress, thus if it turns out that the plaintiff is unusually sensitive, no recovery can be made 2. The exception is if the defendant knew the plaintiff was unusually sensitive and tried to exploit that (such with insulting language would is almost never enough to give rise to an action for intentional infliction of emotional distress by themselves) VI. Trespass to Land: unauthorized entry into the close of another a. Elements 1. D enters the Ps land 2. D causes another person or object to enter Ps land 3. D remains on Ps land without the right to be there even if he entered rightfully (refusal to leave) 4. D fails to remove and object from Ps land which she is under a duty to remove (continuing trespass) b. Mistake 1. If D had the intent to make physical contact with Ps land he will have the requisite intent for trespass even is his decision to make contact was the result of a mistake. (D thinks it his own land) 2. Reasonableness of mistake is irrelevant, unless his mistake was a result of actions by the P c. Damages: P entitled to nominal damages when no actual harm has occurred VII. Trespass to Chattels: any intentional interference with a persons use or possession of a chattel a. Elements 1. Intentional intermeddling 2. Actual Harm (as opposed to the rule for trespass to land which still allows nominal damages despite harm) (a) Dispossession: deprived P of use of property for a substantial period of time (b) Harm to the property (c) Harm to the possessor or someone/something that the possessor has a legally invested interest 3

(c)

Return of Chattel 1. If the possessor is still in possession of the chattel at the time suit is brought, she has the right to submit the goods to the plaintiff in exchange for reducing damages 2. This is unlike conversion because the title is not deemed to have transferred from the P to the D c. Protection of Possessory Interest 1. Any person in possession of the chattel may sue for trespass, even if he is not the rightful owner 2. The D must have a colorable claim, one that is not completely absurd; a thief could not sue 3. The person who owns the good but is not in possession of them at the time of trespass may also sue 4. A legal remedy must be used; there is no privilege of force VIII. Conversion: an intentional exercise of dominion or control over a chattel which seriously interferes Ps right to control it so that it is fair to require the D to pay the propertys full value; forced sale a. Serious Enough to Warrant an Action for Conversion? 1. The duration and extent of the actors exercise of control 2. The actor's intent to assert a right inconsistent with the other's right of control 3. The actor's good faith although it is not a protection 4. The extent/duration of the resulting interference with the other's right of control 5. The harm done to the chattel 6. The inconvenience and expense caused to the other b. Ways an Actor may Convert Chattel 1. Acquiring possession of it (a) Thief/Fraud = converter (b) Bailee/Agent = not a converter i. As long as the he does not know someone else is entitled to them when he accepts the goods (c) Bona fide purchaser = converter i. Most courts hold that they are still a converter even if there was no way they could have known that the goods were stolen ii. A bona fide purchaser who obtains the chattel from someone who deals in goods of that kind 2. Damaging or altering it 3. Using it 4. Transferring it (a bailee wrongfully selling chattels) 5. Mis-delivering it 6. Withholding it (a) There is generally no liability unless the P has demanded return of the goods and has been refused (b) The D can explicitly state it, falsely promise to return the goods, or stall c. Return of Chattel 1. If a converter offers to return the converted goods and the owner accepts, the return does not bar the action for conversion. 4

b.

2.

d.

However, the return must be taken into account when awarding damages as long as the chattel is in the same condition as it was when taken and the P has not suffered any special damage through being deprived 3. The P can refuse to accept the chattel back and demand full value for them instead; in the case of good faith purchasers, the court may require the plaintiff to take the goods and credit the D Damages 1. The measure of damages is the market value of the property converted at the time of the conversion 2. Damages cannot be recovered for sentimental value alone (a) However the P may be able to recover for emotional harm (b) Punitive damages may be awarded if the conversion was malicious

Defenses to Intentional Torts

I. Generally a. A mistake of the reasonable amount of force to use is always ok. A mistake as to whether the privilege exists is only ok in: 1. Self Defense 2. Defense of Property: provided there is a non-privileged intrusion 3. Defense to Others: split 4. Public and Private Necessity 5. Merchants Privilege II. Consent: if the P has consented to an intentional interference with his person/property, the D will not be held liable a. Implied Consent 1. Can be deduced from the Ps conduct or lack of conduct, from custom, or from the circumstances 2. Objective Manifestation (a) The test is whether a reasonable man in the position of the D would believe the P had consented P stands in line with other passengers waiting to be vaccinated. P tells the doctor that she has already been vaccinated, but the doctor finds no record of it. P says nothing and holds up her arm. P sues D, employer of the doctor, for battery. Held for D, it reasonably appeared to the doctor that P consented to vaccination, regardless of her state of mind. b. Lack of Capacity to Consent 1. A patients consent will be implied as a matter of law if ALL of the following factors exist: (a) Incapacitated (b) Emergency (c) Lack of consent not indicated: theres no indication that he would not consent if able to (d) Reasonable person would consent c. Exceeding Scope of Consent 1. If P does give consent to an invasion of his interests, the D will not be privileged if he goes substantially beyond the scope of that consent (a) Consent is to the act, not the consequences (b) Surgery i. The Ps consent to one kind of surgery for one particular purpose will not count as consent to another substantially different surgical procedure ii. Medical desirability is irrelevant, however emergency may justify extending the surgery beyond what was consented to d. Professional Athletes Consent 1. A player that intentionally attacks or injures his opponent may be liable in tort although there is some assumption of risk 6

Consent Due to Mistake 1. Mistake Known or Induced by D (a) If the D knew of the Ps mistake or induced that mistake (like by lying) the consent is invalid (b) The mistake must relate to an essential aspect of the transaction f. Duress 1. Consent under duress depends on the immediacy and seriousness of the duress (a) Immediate threats vs. future threats (b) Threats of direct duress against 3rd person/property vs. indirect threats of economic duress III. Self-Defense: a person may use reasonable force to prevent any threatened imminent harmful contact or confinement a. What May be Defended Against? 1. Harmful or offensive bodily contact 2. Confinement/imprisonment 3. This applies to actions that are intentional and negligent b. Apparent Necessity 1. Self-defense may be used when there is a real threat of harm or when D reasonably believes there is harm 2. Mistaken belief that a threat exists must be reasonable; thus D cannot be abnormally timid or paranoid 3. In transferred intent cases, the defense transfers as well c. Degree of Force 1. Can only use as much force as reasonably necessary to protect against imminent harm 2. No force can be use for: (a) Retaliation (b) Once the adversary is disarmed (c) In response to words alone when not accompanied by physical threat reasonably warranting apprehension of imminent harm (d) In response to future harm 3. Deadly Force: D cannot use deadly force unless he himself is in danger of death or serious bodily harm and a lesser degree of force will not suffice 4. Injury to a third party is privileged assuming the D was did not act negligently d. Mistake of Privilege 1. It's ok as long as it was reasonable mistake. Hard to mistake someone attacking you in real life, more of a mistake of the amount of force. e. Retreat 1. Majority Rule: no retreat necessary 2. Minority Rule: must retreat prior to using force threatening death or grievous bodily harm IV. Defense to Others: as with self-defense, the concern is whether the defendant used reasonable force a. Mistake of Privilege 1. Majority of courts hold that the intervener steps into the shoes of the person he is aiding and only has privilege to use force when the person he is defending has the privilege 7

e.

Minority view holds that the intervener may use reasonable force even if he is mistaken in believing the person he is aiding had the privilege of self-defense V. Defense of Property: essentially on the same basis as the right to defend oneself a. Elements 1. Must only use as much force as appears necessary to protect property 2. Owner must first make a verbal demand that the intruder stop before using force, unless it reasonably appears that harm will occur immediately or that request to stop will be useless b. Mistake 1. If the property owner mistakenly believes force is necessary to protect his property, his force will be privileged provided that there is a real non-privileged intrusion. 2. If the property owner mistakenly believes force is necessary to protect his property and it turns our that the intruders presence was privileged for some reason (like necessity) the property owners use of force will not be privileged c. Deadly Force 1. May be used to prevent certain felonies, namely those involving death, serious bodily harm, or the breaking/entering of a dwelling place 2. Burglary (a) A homeowner may use deadly force if he reasonably believes no lesser force will keep the burglar out (b) Limited to dwelling places (c) Not applicable to trespassers 3. If a property owner may not use deadly force in a given situation, they also may eject the intruder if it is likely to cause him serious injury D held liable to P for unmooring Ps boat during a storm, resulting in harm to P d. Mechanical Devices 1. Owner privileged to use them only when he would be privileged to use similar force in person D would be liable to P if his electric fence seriously injured a casual trespasser with no intent to enter the home 2. A device not risking serious harm can be used if: (a) Use is customary (b) There is a warning posted 3. Mistake (a) Even if the owners intent was to protect against dangerous felonies, his right to use a device will be measured against whether he had the right to use it against that particular intruder VI. Recovery of Property: property owner may sometimes have the right to regain possession of chattels or land taken a. Elements 1. More limited because in the case of defense of property, the owner is merely seeking to maintain the status quo, whereas in the case of recovery, the owner is the aggressor 2. Force also cannot be used until a demand has been made for the return of the property. A demand is not required when it reasonable 8

2.

appears that a demand would be useless of dangerous. Deadly for can never be used. Storekeeper sells consumer a TV with provisions that the storekeeper may repossess the TV if the consumer does not make monthly payments. Consumer misses several payments and the storekeeper breaks into the consumers home to recover the TV. He has no right to do so since the breaking in constitutes force 3. Fresh Pursuit (a) Limited to prompt discovery of the dispossession and prompt/persistent effort to recover the chattel (b) After any undue lapse of time, the owner must use legal provisions to recover property b. Mistake 1. If the owner mistakenly believes that a person has possession of his good, he must bear the consequences of his mistake even if the mistake was reasonable. The privilege only exists for a wrongful taking, not when the owner willingly parts with possession and an event occurs that gives the owner right to repossession c. Claim of Right 1. When the tortfeasor has an honest, but not necessarily reasonable belief that he is entitled to the property, the true owner must use a legal remedy to get the property back unless: (a) Force or fraud is used (b) The tortfeasor is about to remove it from true owners property d. Possession By Fraud 1. If the wrongdoer obtains possession by fraud, the true owner may use reasonable force to recover the item if she still has fresh pursuit e. Shoplifting 1. A merchant has the privilege to temporarily detain for investigation a person who is reasonably suspected of stealing property (a) Reasonable force is permitted (b) Mistake is ok as long as the mistake was reasonable 2. Rules (a) On/around premises (b) No coercion for payment (c) No arrest (d) No confession VII. Necessity: emergencies that justify D in harming Ps property; requires the balancing of interests a. Public Necessity 1. D is privileged to harm property interest of P when it is necessary to do so to prevent a disaster to the community as a whole or a substantial number of persons 2. The privileged acts can be performed by public officials or private individual 3. Mistake of the Privilege (a) The privilege exists as long as the necessity is reasonably apparent, even if it did not exist in fact 4. Compensation 9

If D successfully claims the privilege of public necessity, he will never be required to reimburse the D himself (b) The community as a whole will not be required to compensate the P either b. Private Necessity 1. D is privileged to prevent injury to himself or his property, or that of a third person, by injuring the property of P if there is no other lessdamaging way to prevent the harm 2. Whereas public necessity only applies when the danger to the community is severe, private necessity can apply in less drastic situations; the harm to Ps property interest is weighed against the severity/likelihood of danger the D is trying to avoid 3. Compensation (a) It is a complete defense to a tort claim where the P has suffered no substantial harm and no compensation is required (b) But if D causes actual damage to the P, there is only a limited privilege and the D must pay for the damage 4. Owner May Not Resist (a) When the privilege exists, the owner whose property is being harmed has no right to use force to prevent the exercise of the privilege and is liable for any damage he caused while using such force D moors his boat to Ps dock during a violent storm out of private necessity. P unmoors Ds boat and the boat sinks. P is liable for the damage VIII. Authority of Law: acts done under the authority of law are generally privileged if proper procedure is used a. Common Law Rules 1. Arrest with Warrant (a) Privileged if it is a valid warrant (b) Officer liable if me arrests the wrong person, even with a valid warrant 2. Arrest without Warrant b. Force 1. One may not use more force than is reasonably necessary 2. Deadly Force (a) Can be used to prevent a felony that threatens a human life or safety (b) Can be used in apprehension of suspect after crime if the suspect poses a significant threat of death or serious physical injury to the officer or others Officer Private Citizen Can arrest without warrant to prevent a felony or a breach of peace (public offense done by violence of likely to cause an immediate disturbance or public order) that is being committed or reasonably appears about to be committed in his presence Can arrest to prevent a felony or a Can arrest if he knows a felony has breach of peace (public offense done by been committed and he reasonably violence of likely to cause an immediate believes he has the right person, disturbance or public order) that is being however, he must take full risk if none committed or reasonably appears about has been committed 10

(a)

to be committed in his presence For a past breach of the peace that is not a felony, an arrest is allowed only if the offense was committed in his presence and he is in fresh pursuit Permitted to arrest for misdemeanors in Not permitted to arrest for some jurisdictions when the offense is misdemeanors committed in his presence IX. Discipline: a person in control of others has the privilege of exercising some reasonable force and restraint upon them to maintain discipline. The privilege extends to those who are temporarily responsible to them (family members, babysitters, school officials, adult care providers) though the amount of acceptable force is usually less a. Factors to Determine Whether Conduct is Privilege to Discipline 1. Age, sex, and condition of child 2. Nature of offense and apparent motive 3. Influences of childs conduct as example on other kids in the same family 4. Whether force/confinement was reasonably necessary or if its disproportionate to the offense 5. Whether the force was degrading or likely to cause serious permanent harm b. Teachers Privilege to Discipline 1. May be exercised even when the parent objects as it is necessary to maintain order in a classroom 2. Same factors as above in addition to whether the teacher acted out of anger or dislike for the student X. Justification: a catch-all defense used where there are good reasons for exculpating D for what would otherwise be an intentional tort

11

Negligence
I. Elements of Cause of Action a. Duty 1. Andrews Majority (a) Foreseeable duty to society/all people. Every P is foreseeable. Uses proximate cause to restrict liability. 2. Cardozo Minority (a) Foreseeable duty to this P, who must have been in the zone of danger. Uses duty to restrict liability b. Breach of Duty: 1. The actor breaches the duty if he fails to take feasible precautions to prevent the harm c. Causation 1. Cause in Fact 2. Proximate Cause d. Damage II. Negligence is Based on Foreseeable Risk, Not Hindsight a. P must show that Ds conduct at the time of the incident imposed an unreasonable risk of harm 1. Inherently Dangerous Objects (a) Leaving around such objects without special handling constitutes negligence (leaving a gun out without unloading it) (b) If a less dangerous object is left out and ends up causing harm, it is not negligence because the risk is to be evaluated as it reasonable appeared before the accident D1 leaves a golf club out in the backyard of his house. D1s eleven year-old son strikes P in the head. P sues both D1 and D2 for negligence. Held for D because a golf club is not obviously and intrinsically dangerous 2. Warnings (a) If Ds conduct creates danger and he fails to warn others who he knows to be unaware of it, he can be held liable for negligence i. Failure to warn ii. Knew/Had reason to know of danger iii. Knew those encounter it were unaware iv. Warning could have been effective in reducing the possibility of harm III. Unreasonable Risk of Harm? a. BPL Test 1. Used to determine whether the risk of harm was unreasonable 2. Liability Exists if B < L P (a) B equals the burden of precautions for the D (b) L equals the gravity of the potential injury, but it is based on the average loss. If D negligently sank Ps uncharacteristically expensive ship, he would still only be liable for the average loss of a ship. 12

(c) P equals the probability that harm will occur from Ds conduct b. Utility of Conduct Test (a) A harm is unreasonable if the magnitude of the risk outweighs the utility of the actor conduct (b) Magnitude of Risk i. Social valued of the imperiled interest ii. Probability of the harm iii. Extent of the harm (c) Utility of Conduct i. Social value of the protected interest ii. Whether the conduct protects the interest iii. Whether there is a safer way to protect the interest IV. A Reasonably Prudent Person: would a reasonable person of ordinary prudence act as D did in the same circumstances? a. Physical and Mental Characteristics of D 1. Physical disability (a) The standard for negligence is what a reasonable person with that same physical disability would have done i. A blind D must take precautions, be they more or less, that the reasonably prudent person would take if he were blind. 2. Mental Attributes (a) D is not absolved of negligence because he is more stupid, careless, volatile than a reasonably prudent person (b) Acting in good faith and according to his best judgment is not an excuse 3. Insanity (a) Mental deficiency does not relieve a person of negligence (b) Sudden insanity i. A defense if D has no forewarning ii. The mental defect must effect Ds ability to understand/appreciate the duty which rests upon him iii. The policy basis for making the insane liable for their torts is induce those interested in the estate of the insane person to control them and to prevent false claims of insanity b. Children 1. Uses the standard of care of a reasonably prudent person of the same age, intelligence, and experience 2. Adult Activity (a) When a child engages in an inherently dangerous activity that is normally pursued by adults, he is held to the standard of care that a reasonable adult doing that activity would exercise (b) The policy reason behind this is to allow children to be children to deter them from dangerous activity c. Knowledge 1. Most knowledge is attributed because a reasonable person would gain the knowledge prior to engaging in a dangerous activity d. Custom 1. A custom is a well-defined and regular way of doing a specific thing among a group, such as a trade or profession 13

(a) Violation of a custom implies negligence (b) Adherence to a custom implies due care 2. Custom is relevant evidence; evidence of the various tendencies of others is not 3. A jury must be instructed of custom if they don't know how a reasonably prudent ___ would act e. Emergency 1. Not held to the standard of care of someone who has ample time to decide what action to take as long as Ds conduct/negligence did not cause the emergency 2. Even if the emergency was not caused by D, a liability for negligence is still possible D sees an accident ahead of him and swerves into oncoming traffic rather than onto a shoulder. D might still be liable f. Anticipating the Conduct of Others 1. Negligence of Others (a) Usually only valid when the likelihood of injury is great or the magnitude of the injury is substantial i. D is required to take extra care to prevent unreasonable risk of harm to others if he has reason to know the car ahead of him is being driven by a drunk driver D drives down a street crowded with playing children. D cannot assume the children will stay out of the cars path. D must take extra care since children are known to be incapable of exercising the degree of care of the average adult 2. Criminal and Intentionally Tortious Acts (a) D is entitled to assume that third persons will not commit crimes or intentional torts unless he has some reason to believe otherwise (b) D can have a special relationship with P or a third person that burdens him with anticipating and preventing criminal/tortious acts by that third person g. Misrepresentation 1. Ds speech or other communication may be negligent if it leads to physical injury or property damage V. The Professional: failure to exercise the degree of ordinary care and caution that a reasonably prudent professional in good standing would have used in similar circumstances a. Standard of Care 1. Objective, thus Ds own training and experience are irrelevant, there is a minimum standard that is applicable to all 2. Specialist held to a higher standard VI. Malpractice: if D has a higher degree of knowledge, skill, or experience than a reasonable person he must use that higher level a. Elements 1. Presumed to Possess a Certain Degree of Skill/Learning (a) Which is possessed by the average member of medical profession in good standing within the community in which D practices 14

No longer strict adherence to the locality rule, now just similar communities (b) Specialist within a profession is held to a higher standard of care than a general practitioner 2. Must have Neglected Standard (a) Cannot be held liable unless he has done something in treatment that the recognized standard of medical practice in the community forbids or neglected to something it requires (b) Must be based on expert testimony unless negligence is grossly obvious 3. Negligence is not Presumed Based on the Success of Treatment b. Informed Consent 1. Patient suing under informed consent must prove: (a) Failure to Inform of Risk i. Professional Standard: risks required to be disclosed by the prevailing medical practice in the community; slight majority rule ii. Material Risk: physician failed to inform P of a risk likely to affect Ps decision, a material risk; minority rule (b) Causation i. If informed of risk, a reasonable patient would not have consented to treatment; majority rule ii. If P had been informed of the risks, he would not have consented to the treatment; minority rule (c) The risk not made known to P occurred and injured him 2. Defenses (a) Risks are or should be known by everyone (b) Disclosure is detrimental to patients total care (c) Emergency existed and the patient was not in the condition to decide for himself c. Battery as an Alternative 1. If medical/surgical treatment is completely unauthorized and performed without any consent at all, patient has an action battery 2. If the doctor obtained the patients consent without informing him of all the material risks (duty to inform) patient has an action for negligence VII. Aggravated Negligence a. Recklessness: based on the state of mind of the defendant; willful, wanton, & reckless conduct 1. D acts recklessly if: (a) He knows of the risk of harm created by his conduct or knows facts that make the risk obvious a reasonable man (b) The precaution that would eliminate/reduce the risk involves trivial burdens relative to the magnitude of the risk; failure to adopt the precaution is a demonstrations of Ds indifference VIII. Violation of Statute: when a statute fixes the measure of legal duty so that the violation of the statute constitutes evidence as a matter of law a. Negligence Per Se 1. When statute has a sufficiently close application to the case at bar, an unexcused violation of that statute constitutes negligence 2. D is negligent if: 15

i.

He violates a statute designed to protect the type of accident his conduct causes (b) The victim is within the class of persons the statute is designed to protect (c) There is a causal link between the violating action and the resulting injury b. Excuse of Violation 1. The violation is reasonable because of Ds incapacity 2. D neither knows nor should know of the occasion for compliance 3. D is unable after reasonable diligence or care to comply 4. D is confronted by an emergency not due to his own misconduct 5. Compliance would involve greater risk of harm to D or others Proof of Negligence c. Direct Evidence: asserts the truth/existence of the fact to be proven d. Circumstantial/Indirect Evidence: introduce evidence of fact B to show fact A 1. Evidence from which a fact finder can infer an increased or decreased likelihood that the fact to be proven is true/existed 2. A preponderance of evidence (enough that a jury could reasonably believe the fact is more likely true than not true) is required. 3. When there is no direct evidence of the Ds negligence, the P may produce circumstantial evidence which would permit an inference of the Ds negligence. (a) Banana Peel cases: The condition of the banana could allow a jury to determine how long it had been on the floor, and thereby whether the D breached its duty by not picking it up. (b) P may show that the D had notice of the dangerous condition, or that the D had constructive notice by proving that the premises had not been inspected. 4. Circumstantial evidence may permit an inference of negligence, but will not compel such an inferencethe other factors must still be considered e. Res Ipsa Loquitur: allows you to establish that there was probably negligence because the accident is not something that usually occurs without negligence by some party 1. A finding of RiL only means that a jury can find negligence, not that they are required to. A jury can still draw its own inference from the facts, agreeing or disagreeing that D was negligent 2. Requirements (a) No direct evidence of how D behaved (b) The instrumentality that caused the accident was under the exclusive control of D (c) The accident was not caused by any contributory negligence (d) The accident wouldnt have happened in the ordinary course of events had D used ordinary care 3. Multiple Defendants (a) Usually if there are multiple Ds and the P only knows that one of them may have caused the injury, res ipsa will not apply. (b) Exception: Ybarra v. Spangard i. Ds were part of an integrated system and each D had at least a share of the control/responsibility for the 16

(a)

ii.

outcome of the procedure (mutual and interdependent responsibility). P trusted Ds and put himself under their care (trust and reposecould also be treated like a fiduciary obligation).

17

Causation in Fact
I. Causation Generally a. Assuming that there is duty and breach, the court next looks to causation. There are two elements: 1. Factual Cause 2. Proximate/Legal Cause b. Factual cause involves an empirical/scientific inquiry to determine cause and effect. II. But For Test: P must prove that it is probable (more likely than not) that the injury was caused by (would not have occurred without) the defendants act a. Ds conduct is the substantial factor in bringing about the Ps harm; if D had not conducted himself in such a way, Ps injuries would not have occurred. 1. What is a Substantial Factor? (a) An action that was a factor in bringing about the injury, without which the injury would not have occurred III. Increased Risk, Followed by Actual Damage a. Loss of Chance Theory: P does not have to show that the patient would have had a 51% or greater chance of survival, just that Ds actions increased the risk to the patient (such as reduction in his chance of survival) and the increased risk was a substantial factor in bringing about the resultant harm IV. Concurrent Causes a. Substantial Factor Test: determines whether or not D materially contributed to Ps injury 1. Used as a supplement to the But For test when multiple, redundant causes would preclude liability under But For analysis A starts a fire on the left side of Xs house and B starts a fire on the right side Xs house. The fires merge and concurrently destroy Xs house. Neither fire A or fire B is the but for cause of the destruction since Xs house would have been destroyed regardless of one fires absence. The substantial factor test is an alternative proof of causation that allows X to recover damages b. Where separate acts of negligence combine to produce directly a single, indivisible injury, each tortfeasor is responsible for the entire result, even though his act alone might not have caused it. They are jointly and severally liable. V. Determining Which Party Caused the Harm a. Alternative Theory Liability 1. The burden to prove causation is on P except where P can show that each of two persons was negligent, but that only one could have caused the injury. In such a case, D1 and D2 must bear the burden of proving he has not caused the harm P, D1, and D2 go hunting together. D1 and D2, at the same time, negligently fire at a quail, but hit P. It is not known which bullet hit P. Held that the burden is on Ds otherwise P might be left remediless. 18

b.

Market Share Liability 1. If P can only identify the type of drug, not the brand name, she can still be able to recover against negligent drug companies if they were unable to prove they did not cause the harm. The damages are apportioned under several liability according to the each Ds market share. 2. D can escape liability if he can show it couldnt have supplied drug that harmed P 3. Elements (a) All Ds must be negligent (b) Must be a generic product (otherwise market share is not a proxy for harm caused) (c) P must join enough Ds to represent a substantial share of the market

19

Proximate/Legal Cause
I. Generally a. Cause in Fact vs. Proximate Cause 1. Factual cause refers to the cause and effect relationship between Ds conduct and Ps injury 2. Proximate cause is a determination of whether legal liability should be imposed where cause in fact has been established. Is it ethically right, fair and just to impose liability? b. Two Tests of Proximate Cause 1. Andrews Test Minority 2. Wagon Mound Test Majority II. Hindsight View Minority a. Andrews Test 1. In hindsight, the chain of events must not appear extraordinary 2. Knowing what we know now, was the chain of events extraordinary in hindsight? D drops a plank into the hold of a ship carrying oil. A spark ignited while the plank fell, resulting in an explosion. Andrews test would use hindsight and hold that knowing that a fire would occur, a burned ship is not extraordinary in hindsight. III. Foreseeability View Majority a. D is only liable for the harm that was reasonably foreseeable; liability should be assessed with respect to damages, not just negligent conduct b. But D is still liable if foreseeable risk (type of harm) comes about in a unforeseeable way (Wagon Mound, Doughty, Hughes) c. Wagon Mound Test 1. What would a reasonable person standing in the Ds shoes have been able to foresee? (a) D drops a plank into the hold of a ship carrying oil. A spark ignited while the plank fell, resulting in an explosion. Wagon Mound test would say the fire was unforeseeable so there is no liability IV. Egg-Skull Rule a. D must take P as he finds him b. Once P suffers any foreseeable harm/impact, D is liable for any additional unforeseen consequences (provided they are not caused by a superseding intervening cause) D negligently hits Ps car. The accident aggravates a pre-existing paranoid schizophrenic condition that permanently disables P. Before the accident, P was able to live a normal life despite the condition. Held that D is liable. V. Remoteness of Harm a. D is liable for damages for the proximate harm of his own acts, but not for remote damages 20

Ds engine causes his woodshed to catch fire. The fire moves to Ps nearby house and destroys it. The fire spreads and ultimately destroys a number of houses. Held that D is only liable for Ps house not the others.

VI. Intervening Causes a. General 1. D is still liable despite an intervening cause if (a) The intervening cause is foreseeable and is a result of Ds negligent conduct (b) An intervening negligent act of another brings about the same injury as was threatened by the defendant's negligent act, then the intervening negligent act will not be considered superseding and the defendant is liable (a concurrent cause) b. Superseding Intervening Causes 1. A cause intervening between the defendants negligence and the plaintiffs injury in such a way that it supersedes the effect of the defendants negligence and is regarded as the sole proximate cause of the harm. 2. An intervening act may be a superseding cause if: (a) It is extraordinary under the circumstances (b) Not foreseeable in the normal course of events (c) Independent of or far removed from the defendants conduct c. Criminal Acts of Others 1. Watson Approach (a) If the crime is not foreseeable, then it is a superseding cause and liability is severed (b) Rationale: under ordinary circumstance, it is not reasonable to expect that someone will act criminally A gasoline car on a train owned by D derails and gas runs into the street. Third party X strikes a match, lighting the gas vapor and causing an explosion. Bystanding P is injured. D claims that X intentionally/maliciously started the fire. Held for D if the court finds that X intentionally started the fire. D is not expected to anticipate the criminal acts of others (c) Exceptions Criminal Activity is Not Superseding If: i. D, by contract or otherwise, is under a duty to protect P against criminal misconduct, and fails to do so (bodyguard, security at White House event) ii. Ds affirmative act destroys a protection that the P had placed around his person/property to guard against the crime. (D fails to activate security alarm and someone breaks in police are not summoned b/c alarm did not go off) iii. D brings into association with P a person whom he knows or should know to be particularly likely to commit criminal acts iv. D takes into custody a person of dangerous criminal tendencies and fails to restrain him 2. Gibson Approach 21

d.

e.

If the original negligence continues to time of injury and contributes substantially to it in conjunction with an intervening act, each may be a proximate concurring cause for which full liability may be imposed. A gasoline car on a train owned by D derails and gas runs into the street. Third party X strikes a match, lighting the gas vapor and causing an explosion. Bystanding P is injured. D claims that X intentionally/maliciously started the fire. A jury would determine whether Xs criminal act is a superseding or a concurrent cause. P could be liable even if the court finds that X intentionally started the fire. The Rescue Doctrine 1. Informs D that it is foreseeable that a rescuer (P) will come to the aid of a person imperiled by Ds actions; therefore D owes the rescuer a duty similar to the one he owes the person he imperils 2. Negates the presumption that the rescuer assumed the risk of injury when he knowingly undertook the dangerous rescue, as long as he doesnt act recklessly 3. Requirements for Rescuer Status (a) The defendant was negligent to the person rescued and such negligence caused the peril or appearance of peril to the person rescued (b) The peril or appearance of peril was imminent (c) A reasonably prudent person would have concluded such peril or appearance of peril existed (d) The rescuer acted with reasonable care in effectuating the rescue. Other Special Conditions 1. D is liable if: (a) P is harmed while trying to escape from danger caused by D (b) Ps injury is aggravated while being treated for harm caused by D (c) P has a second injury and it is caused by his weakened condition from the first injury

(a)

22

Apportioning the Damages

I. Generally a. Used to determine damages of any negligence case where there is more than one proximate cause b. Theories of Apportioning Harm 1. Traditional View (a) P has the burden of apportioning the harm; if P cannot apportion harm, she cannot recover (b) Earlier courts were less inclined to find that harm was indivisible, that Ds were joint and severally liable 2. Modern View (a) If as practical matter it is impossible to apportion the injuries, then it is deemed indivisible and Ds are jointly/severally liable unless they can prove which part of Ps injury attributable to each of them 3. Indivisible Harm = Joint & Several Liability (a) If more than one person is a proximate cause of Ps harm and the harm is indivisible, each tortfeasor is liable individually and jointly with the other tortfeasors (b) P can recover from any one defendant, some defendants, or all defendants. (c) If P recovers from one defendant and receives full damages, that defendant must then pursue the other obligors for a contribution to their share of the liability. 4. Divisible Harm = Several Liability (a) If more than one person is a proximate cause of Ps harm and the harm is divisible, then each D is liable only for the harm that they individually caused II. Types of Liability a. Several Liability 1. Where the parties are liable for only their respective obligations 2. P must go after each D separately and is less likely to recover because each D can shift fault to the un-joined D. 3. There can be no phantom fault (allocating fault to a nonparty). So, the fault of the parties in the lawsuit must equal 100%. P has the incentive to join as many Ds as possible to spread around fault an increase the amount of damages. b. Joint & Several Liability 1. Imposed in Three Situations (a) When Ds act in concert to commit a tortious act against P (b) When Ds fail to perform a common duty to P. Includes cases involving liability based on the relationship between the parties (the liability of an employer for the acts of an employee) (c) When Ds who acted independently cause indivisible harm 2. Contribution (a) If a D has paid more than his share, he may obtain reimbursement from other Ds 23

Comparative Contribution: the old pro rata rule is that Ds would split liability equally; modern rule is to divide it up based on individual fault III. Concurrent Tortfeasors a. D1 and D2, driving separate cars, negligently collide. One car bounces onto the sidewalk hitting and injuring P. Ps harm is indivisible and therefore unable to be apportioned IV. Successive Tortfeasors a. Unrelated Accidents 1. D1 is not liable for Ps subsequent injury if that second injury is the result of a distinct intervening cause, regardless of whether or not damages can be apportioned 2. D2 is liable for Ps total injury when damages can not be apportioned b. Related Accidents 1. If the second injury is not the result of a distinct intervening cause, but the result of a related accident, then D1 is liable for Ps total injury i. Driver 1 hits P and injures his leg. Then, while P is lying in the street awaiting medical attention, Driver 2 runs over Ps arm. Lastly, Dr. negligently aggravates Ps leg injury while treating him. Dr. is liable for the aggravation to the leg D2 is liable for the arm injury only D1 has but for cause and proximate cause because of the special condition. D1 is liable for all of the injuries. V. Loss of Chance Theory a. Loss of Chance: if a doctor's negligence significantly reduced a patient's chance of surviving, then the doctor should be liable for the loss of chance of survival. b. Two Approaches for Determining Damages 1. All or Nothing -(a) If the patients chance of survival was less than 50% to begin with, then P cannot prove by a preponderance of evidence (more likely than not) that Ds conduct was the proximate cause of the patients death. (b) Therefore, there is no cause of action, P cannot recover 2. Probabilistic Causation (a) P does not have to show that the patient probably would have had 51% chance of survival or greater but for the Ds actions, just that Ds actions have increased the risk or harm to another (b) Herkskovits applies damages in an abnormal way. Majority rule of for cases like this would give P 100% of damages one it was found that D was guilty of loss of chance. However, this court only gave P damages comparable to the percentage of chance D reduced. This is a minority rule of a minority view and is only applied in a very small number of cases VI. Value of the Loss a. When determining damages, the court may take into consideration the value of the life/property harmed

(b)

24

b.

The goal of the tort system is put P back into the position he was in before the harm. Past events and potential future events are considered when determining the value of the loss. i. If D is unlucky enough to kill a surgeon, he will have to pay more in lost earning capacity. If he is lucky enough to kill a fast food worker, he pays less.

25

Duty of Care
I. Generally a. A person is under a duty to exercise reasonable care to not expose other to unreasonable risks of harm b. However, there are also several classes of cases where the court has held D owes the P less than the degree of care that a reasonable person would use. Sometimes D owes P no duty at all. II. Duty to Rescue a. There is no liability to rescue people. This is a bright-line rule. But there are certain situations that create the duty to rescue. b. Special Relationships 1. Carrier & Passenger 2. Innkeeper& Guest 3. Custodian & Ward 4. Invitor & Business Invitee 5. Employer & Employee 6. Harm causing instrumentality is under Ds control 7. Injury caused by D 8. Dangerous situation created by D c. Voluntary Undertaking 1. If D undertakes a rescue and fails to use reasonable care, leaving the victim worse off, he is liable. 2. If the victim is worse off if: (a) D increases the level of danger (b) D deprives the victim of a chance of other aid (c) D induces the victim to forego aid in reliance i. Detrimental Reliance: D attempts to rescue, but does a poor job; bystanders, who may have done a better job, do not step in since D already has d. Foreseeable Harm to a Third Party 1. When D can avoid a foreseeable harm by controlling the conduct of another person, or to warning of such conduct, the D is only liable if there is a special relationship to the dangerous person or to the potential victim 2. D only has to a duty to warn, not to confine 3. If the victim is unidentified, the duty is not likely to be imposed X is the mental patient of D. X tells D he intends to kill P. D fails to warn P and X kills P. D is liable III. Pure Economic Loss a. There is no recovery for pure economic loss. Economic loss can only be tacked on if P has also suffered personal or property damage from D. This is a pragmatic rule; without it, liability would be virtually open-ended IV. Mental Distress a. When Ds negligence creates a definite and objective physical injury as a result of emotional distress, the plaintiff may recover damages without any actual physical contact b. Zone of Danger Rule Minority 26

1.

c.

d.

P has to be in the zone of danger to recover for emotional distress at anothers injury. 2. No duty is owed to P if she is not endangered by Ds conduct Dillon Rule Split 1. Abolished the zone of danger rule 2. Instead, Ds duty to an emotionally distressed P is based on the foreseeability of the harm 3. Must be decided on a case-by-case basis 4. Uses the same criteria as Thing, but they are subjective factors, not required elements Thing Rule Split 1. Established specific elements to be met for Ps not within the zone of danger 2. Elements (a) P must be closely related to the victim (spouse/immediate family) (b) P must have been present at the scene when the injury occurs and have been aware that injury was happening (c) P must have suffered severe emotional distress beyond which would be expected of a disinterested witness

27

Owners & Occupiers of Land

I. Trespassers a. Generally 1. Landowner has no duty to a trespasser to make his land safe, to warn of dangers on it, or to avoid carrying out any dangerous activities on it. 2. No duty to anticipate trespassers or to inspect property for dangerous conditions. b. Exceptions Artificial Conditions 1. Constant Trespass on a Limited Area (a) If a landowner knows that a limited portion of his land is frequently used by various trespassers (such as a path), he must make the premises safe or at least warn of the dangers if they would otherwise be undiscovered. 2. Discovered Trespassers (a) Once a landowner has knowledge that a particular person is trespassing on his property, he is under a duty to exercise reasonable care for the trespassers safety (b) The duty is created not only when the landowner actually learns of the trespassers presence, but also when he is confronted with evidence that should lead him to the conclusion that a trespasser is present and in danger 3. Warnings (a) Landowner has no duty correct dangerous conditions, but he must warn known trespassers of them (b) But the warning is only necessary if the trespasser will not discover the dangerous condition on his own II. Licensees a. Generally 1. A licensee is a person who has the owners consent to be on the property, but who does not have a business purpose 2. Must anticipate foreseeable licensees 3. Social Guests: most common class of licensees; even though they are invited by the owner, they are not invitees b. Duties Artificial & Natural Conditions 1. Duty to warn a licensee of known, dangerous conditions that are not likely to be discovered; however he is not required to correct it. 2. The owner is not required to take affirmative action to make the premises safe, so there if no duty to inspect for unknown dangers. 3. Duty of affirmative reasonable care with dangerous activities III. Invitees a. Generally 1. Business invitee: an invitee is a person invited to enter or remain on the land for a purpose directly or indirectly dealing with business with the landowner. A business invitee is not required to have engaged in business at the time of injury or on the visit in question, just that she has general business relationship with the landowner. 28

2.

3. b. Duties 1. Duty of reasonable inspection for find hidden dangers; the only class to which the landowner owes this duty 2. Duty to warn of hidden and obvious danger c. Scope of Invitation 1. An invitations scope is defined by place and time. Once P exceeds the scope of an invitation, she is no longer an invitee 2. When an invitee moves outside the area where business is conducted, his status changes. If the owner invites him to that area, he is a licensee. If she goes to that area without consent, he is a trespasser. IV. Children: Trespassers & Licensees a. Attractive Nuisance Doctrine 1. Landowner is liable for harm from artificial conditions if: (a) The landowner know/has reason to know children trespass AND (b) The landowner knows the condition involves an unreasonable risk of death/bodily harm AND (c) The children, because of their youth, do not discover the condition or realize the risk AND (d) The utility of the condition and burden of repairing the condition are slight when compared to the risk AND (e) The landowner fails to exercise reasonable care to eliminate the danger V. Rejection of Classifications Rowland v. Christian a. Court found that the classifications do not reflect some major factors that should be used to determine when immunity is granted. b. The court uses the ordinary principles of negligence instead 1. When landowner is aware of a dangerous condition and that person on the premises is about to come in contact with it, the court can reasonably conclude that failure to warn/repair constitutes negligence c. If the owner is not liable, it gives a trespasser less incentive to trespass d. Has yet to sweep the country

Public invitee: this also includes people come onto land that is held open to them for the purpose for which it is held open There is a mutual benefit between an invitee and a landowner

29

Defenses to Negligence
I. Contributory Negligence: provides that a plaintiff whos negligent conduct is proximate cause of his injuries is totally barred from recovery a. Uses Same Neg. Test for Plaintiff to Determine Unreasonable Risk 1. Utility of Conduct Test (a) Magnitude of Risk i. Social valued of the imperiled interest ii. Probability of the harm iii. Extent of the harm (b) Utility of Conduct i. Social value of the protected interest ii. Whether the conduct protects the interest iii. Whether there is a safer way to protect the interest b. Applicability in Particular Circumstances i. Intentional Conduct: not applicable ii. Reckless Conduct: not applicable iii. Negligence Per Se: applicable c. Last Clear Chance 1. If just before the accident D has an opportunity to prevent the harm, but P does not, Ps contributory negligence is wiped out. This leaves D liable if he does not take advantage of that last chance to prevent harm. 2. Discovered Peril Majority (a) Ps Contributory Neg. is not a Defense If: i. D and P are on a collision course ii. P is unable to escape harm iii. D discovers Ps position of peril iv. D has the means to avoid harm v. D fails to use reasonable care to avoid harm 3. Undiscovered Peril (a) Duty to Keep a Lookout If: i. P is in peril and unable to escape harm ii. D should have seen P and if he had seen P, the harm would have been avoided d. Several and Joint/Several liability do not apply in contributory negligence jurisdictions II. Comparative Negligence: rejects the all or nothing approach of contributory negligence and divides liability between P and D in proportion to their relative degrees of fault a. Uses Same Neg. Test to Determine Unreasonable Risk 1. So on the magnitude of risk side, the party who has a small probability of harm is comparatively less negligent the party who has greater probability of harm. On the utility of conduct side, the party who has a great utility of conduct is less negligent than the party who has very little utility of conduct. b. Pure Comparative Negligence 30

P is allowed to recover even if his fault is greater than Ds. So D was 10% at fault and P was 90% at fault, P can recover 10% of damages c. Modified Comparative Negligence 1. Does Not Exceed Jurisdictions (a) P's recovery is reduced by the percentage of fault attributable to the plaintiff as long as P's fault is "does not exceed" D's. P can still recover if fault is split 50/50. 2. Less Than Jurisdictions (a) P's recovery is reduced by the percentage of fault attributable to the plaintiff as long as P's fault is "less than" the fault of the defendant. 3. Uniform Comparative Fault Act Approach (a) Risk of Insolvency III. Assumption of Risk: when P has voluntarily consented to take her chances that harm will occur; that assumption completely bars P from recovery a. Implied Assumption of Risk 1. Treated as comparative negligence and will now reduce Ps damages instead of completely barring recovery 2. Applicable only when P voluntarily encounters a known risk. However, Ps choice to assume risk cannot be considered voluntary when no reasonable alternative exists b. Express Assumption of Risk Exculpatory Clauses 1. Clause unenforceable against public policy if: (a) The party protected by the clause is intentionally, recklessly, or negligently brings about the harm (b) The bargaining power of the protected party is grossly greater (exists only when the good/service being offered is essential such as public utilities) (c) There is some overriding public interest which demands the court refuse the clause 1.

31

Strict Liability
I. Generally a. Founded on a policy of the law that imposes upon anyone who (for his own purposes) creates an abnormal risk of harm to his neighbors, the responsibility of relieving against that harm when it does in fact occur. b. When liability is applicable despite that the activity was carried on with all reasonable care and that the utility of the risk was great. Liability without fault or negligence. c. Whether an activity is subject to strict liability is a decision for the court, not the jury. Similar to negligence per se, but courts don't want to call it negligent because the value to the community is so great. The activity is required to pay its own way without the stigma. II. Animals a. Livestock 1. Fencing In: statutes requiring owners to fence their animals in or otherwise restrain them; owner who does not do so, or does not maintain an adequate fence, is strictly liable for damage done by escaped livestock. Mostly used out west where ranching is prevalent. 2. Fencing Out: statutes requiring owners to fence in their livestock in order to keep out trespassing animals. The owner of the trespassing animal is only strictly liable if it breaks down the fence and gets in. Mostly used in the east where farming is prevalent. 3. Scope: liability is limited to harm which might reasonably be expected to result from the intrusion. (a) Liability covers harm to land, the possessor of the land, or a member of the household, their chattels. (b) Limits on Liability there is no liability for harm: i. Not reasonably expected from the intrusion ii. Due to unexpected operation of a force of nature, action or another animals b. Wild Animals: classification based on the custom of the community 1. A possessor of a wild animal is subject to strict liability for harm done by the animal to another, his person, land or chattels, notwithstanding any reasonable care by the possessor to prevent the animal from doing harm. 2. Liability is limited to harm that results from a dangerous propensity that is characteristic of wild animals of that particular class, of which the owner knows or has reason to know. Being pushed over by a lion is not a risk that makes the animal wild and dangerous; no recovery for this under strict liability c. Domesticated Animals 1. Generally held to a negligence standard 2. Scienter (a) However, the possessor is strictly liable if he knows or has reason to know that the animal has a dangerous propensity abnormal to its class. 32

It is not necessary for the animal to have attacked someone before for the owner to have reason to know of its vicious propensity. (c) If plaintiff cannot prove owner knew or should have known, then they must prove negligence in order to recover. 3. Dangerous Breeds Plaintiff is not allowed to assert that the owner had reason to know that his dog was dangerous simply because it belongs to a particular breed. III. Abnormally Dangerous Activities a. Factors 1. Is the probability of harm great? 2. Is the harm that would ensue if the risk materializes great? 3. Can such accidents not be prevented by the exercise of due care? 4. Is the activity not a matter of common usage? 5. Was the activity inappropriate to the location where it took place? 6. Is the value of the activity to the community high? IV. Scope of Risk: there must be proximate cause a. Strict liability is only imposed for harm that results naturally from the abnormally dangerous activity. 1. D is liable for extraordinary risk associated with the abnormally dangerous activity. 2. Ask: (a) "What are the extraordinary risks associated with this conduct? (b) Is this the type of harm that SL for this case is meant to protect against? 3. Not dependent on foreseeability, similar to negligence per se b. Acts of God: strict liability does not apply where the harm is caused by acts of God unforeseen by the defendant. c. Sensitivity: D is not liable for his abnormally dangerous activities where if the harm would not have occurred had P not been abnormally sensitive. d. Statutory Sanctions: for Ds conduct usually preclude the application of strict liability. e. Intervening Causes: D is not liable for unforeseen intervening causes V. When to Apply Strict Liability a. Desirability of Strict Liability 1. Is negligence law inadequate to prevent a sufficient number of accidents? 2. Can we improve things by imposing strict liability? By: (a) Shifting the activity to another locale? (b) Reducing the scale of the activity? 3. Are the costs of accidents prevented by strict liability worth the additional litigation costs generated by strict liability? (a) Since SL is more expensive, is the increased cost of litigation worth the amount of damages prevented by incentivizing the company to change/relocate its transportation practices? b. Economic Efficiency Rationale VI. Defenses a. Unreasonable Assumption of Risk 1. Ordinary contributory negligence is not a defense to an action for strict liability. Because negligence is unnecessary to find liability, something 33

(b)

b.

c.

more than slight negligence or want of due care on the part of the injured party is required to bar recovery. 2. Instead, D must establish that the injury was caused by P: (a) Unnecessarily AND (b) Voluntarily placing himself in the way of harm, knowing the probable consequences of his act, rather than by the strictly liable conduct. Reasonable Assumption of the Risk for Personal Benefit 1. If P suffers harm as a result of contact/proximity to Ds animal or abnormally dangerous activity for her own benefit, strict liability is not applicable. Comparative Negligence 1. The modern trend is to apply comparative negligence, however, it wont bar compensation, it will just reduce Ps recovery 2. Comparative fault applies, so P's recovery in a strict product's liability action may be reduced according to the extent to which his injury resulted from his own lack of reasonable care 3. D may show that its negligence caused the harm only to the extent that Ps own conduct did not.

34

Products Liability

I. Generally a. A product is defective when, at the time of sale or distribution, it contains a manufacturing defect, is defective in design, or is defective because of inadequate instructions or warnings. b. Basic Elements 1. D is in the business of selling or otherwise distributing the product 2. The product is defective at the time of sale or distribution 3. The defective product proximately caused physical harm to a foreseeable user, consumer, or bystander II. Types of Product Defect a. Manufacturing: when the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product. 1. Inevitably occurs in products of a given design as a result of the fallibility of the manufacturing process; the end result doesn't match the original design 2. True strict liability exists only in manufacturing defects. b. Design: when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative designand the omission of the alternative design renders the product not reasonably safe. 1. Liability of a defectively designed product shall be based on pure negligence analysis (a) This is because a design defect situation demands an examination of conscious decisions made by the manufacturer. So it's a question of negligence. 2. Involves an analysis of possible alternative designs and a cost-benefit analysis. 3. Widely distributed products can only be subject to liability for defective design if P can prove that a reasonable alternative design is available. c. Failure to Warn: Inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced by the provision of reasonable instructions or warningsand the omission of the instructions or warnings render the product not reasonably safe. 1. Knowability: required element of strict liability for failure to warn. (a) Strict liability seeks to focus on the condition of the product rather than the conduct of the manufacturer (b) Infuses negligence concepts into SL cases, however, strict liability would become absolute liability if manufacturers were required to warn risks that were unknowable at the time of distribution 2. Adequacy of Warning: Usually left to the jury who rely on expert testimony. (a) Risk Reduction Warnings i. Safe-Use Instructions 35

Informed choice warnings that enhance safety; this is for products that can't really be used safely When used on a regular basis, aspirin can cause ulcers. By having a warning it will allow the consumers to make informed decisions and resulting to less aspirin related injuries because some consumers are choosing alternatives. (b) Elements of an Reasonable Warning i. Reasonably catch the attention of users ii. Fairly apprize of nature and extent of danger iii. Instructions how to avoid danger 3. To recover, P must prove that D did not warn of a knowable risk. Risks must be reasonably foreseeable at the time of sale or could not have been discovered by way of reasonable testing prior to the marketing of the product. (a) Exceptions i. There is no duty to warn of obvious dangers and generally known risks such as alcohol and cigarettes. When reasonable minds differ as to where a risk is obvious, a jury decides. ii. There is only a duty to warn for allergic reactions/hypersensitivity if the ingredient is one that a substantial number of people are allergic to. 4. Learned Intermediary Rule: physicians are the "learned intermediary" between the pharmaceutical company and the patient. The physician is best understands a patient's needs and the risks/benefits of a course of treatment; therefore, the physician should decide which warnings to pass on to the patient. (a) Applies to prescription medical devices as well as prescription drugs (b) Many jurisdictions do not apply it in cases where the manufacturer is aware that there will be no learned intermediary, such as mass school immunizations III. Foreseeability vs. Hindsight a. We use foreseeability to determine negligence and we use hindsight to determine SL. However, most cases of SL use foresight. The main difference between negligence and SL is that in SL you are applying the risk utility analysis at the time of trial instead of the at the time distribution b. Cases Applying Foresight 1. Misuse 2. Alternative design 3. Failure to warn 4. Rx drug/med. devices. c. Generic Risk 1. Something used in a foreseeable way that still has a risk 2. Uses hindsight, which is very similar to pure SL d. Manufacturer Defect 1. No hindsight or foresight used 2. Pure strict liability IV. Defenses a. Comparative Negligence 36

ii.

1.

b.

The purpose/goal of strict products liability is to eliminate problems of proof of negligence. However, D may show that its negligence caused the harm only to the extent that Ps own conduct did not. 2. P's recovery in a strict product's liability action may be reduced according to the extent to which his injury resulted from his own lack of reasonable care Misuse 1. Manufactures are not liable when harm is the result of abnormal handling 2. However, if the misuse was reasonably foreseeable, it does not bar to an action based on strict liability for a manufacturing defect. 3. Misuse is sometimes found to be just comparative negligence, but most of the time it's one of the three other choices (no defect, no cause in fact, no proximate cause)

37