TORTS OUTLINE HERIOT I. Battery: a. Acts intending to cause a harmful or offensive contact with b.

the person of the other or 3rd person or an imminent apprehension of such a contact and Harmful offensive contact with the person of the other directly or indirectly results i. Intent: intent to harm NOT necessary, substantial certainty (effect will occur), act must be intentional but consequences need not be. ii. Offensive act: reasonableness std. iii. Doctrine of transferred intent: mean harm to third person but accidently harm another person accident is still battery. Intent i. Vosburg v. Putney: boy kicks another boys knee 1. Eggshell caseknee 2. Doesnt not have to be foreseeable harm 3. Intends contact that he should have or would have known to be offensive Contact i. Only need to intend to contact P (foot to knee) ii. Contact not necessary as long as create imminent apprehension of contact. iii. D still liable even if harm not intended or foreseeable. Damages i. Nominal damages (token sums): 1. intended harms (token sums) even if P cant show suffered harm. 2. No awards for negligence. a. Mental Disturbance Fisher v. Carrouselhumiliation ii. Punitive Damages (punishment): 1. Intentional tort (not all) 2. ONLY IF outrageous/malicious. Defenses to Intentional Torts i. Consent 1. Only intentional tort cases (not negligence) a. Lack of consent (except trespass) Ps prima facie 2. Implied

a. Objective manifestation: if D thinks

P consented it will hold even if P didnt. (reasonable person test)Obrien v. Cunard S.S-2 vaccinations held for D. b. Subjective manifestations: if P(consent not explicit-favor D) c. Custom custom to fish small pongno trespass if no sign says otherwise. d. Inaction-D says I will kiss you and p does nothing (OK) 3. Lack of capacity to consent= no object. manif. (child-parents, intox., unconscious) a. Exceptions: Emergencies, unconscious, consent not indicated, reasonable person would consent) 4. Beyond scope of consent a. Surgery: one surgery not any surgery- exception: emergency i. appendicitis and treated for ovarian cysts) b. Informed ConsentBang v. Charles T. Miller- Went in for stream and had cords cut no immediate emergency to not inform c. Athlete consent i. Within scope-not beyondHackbert-intentional harm (if negligent/reckless no recovery for P- understands customs/rules of game.)

c.

d.

e.

f.

TORTS OUTLINE HERIOT

5. Assumption of risk a. P held to assume risk of rule violations- no recovery for P 6. Consent due to mistake (P agrees to have with sex with D if no herpes, D doesnt know he has it- consent good) a. Mistake known by D (lies)- no consent b. Collateral matter: mistake induced by D makes consent bad only if mistake is related to the contact. c. Medical d. Misrepresentation: D doesnt inform/misrepresents P of risks no consent e. Nondisclosure: fail to mention = negligence D must show this is acceptable practice 7. Consent to criminal acts e.g fighting a. Usually consent ineffective (recovery allowed) b. Class protection: i. E.g illegal fighting protects contestants P injured right to recoveryHudson v. Craft ii. Statutory rape- no consent ii. Defenses of Law/Privilege (burden on D)- no privilege of mistake (but taken in acct) 1. Self Defense (burden on D) a. Only against harmful/offensive bodily contact, confinement, imprisonment b. When reasonable belief of threatreasonable personCouvoisier v. Raymond (shooting at policeman not knowing)

c. Protection (NO retaliation, helpless

adversary, verbal provocation,) d. Imminent harm (reasonable not to avoid) e. Degree of force: only that necessary to prevent harmliability for excess f. Deadly force- no deadly force unless in danger of death/serious harm (if can use lesser force must use) g. Retreat- usually Duty to retreat first before deadly force unless in dwelling. i. Cant shoot intruder unless other way to stopping ii. Prevention- deadly force can be used to prevent MOST feloniesbreaking/entering h. Injury to 3rd person ok if entitled to self defense g. Defense of others (3rd parties) i. Must use reasonable force only that is necessary ii. Mistake of aggressor- usually no defense-NONE for negligent mistake (must prove it was reasonable to believe) h. Defense of property i. Reasonable force ii. Must made verbal demand before force (unless violent or harm likely)- aloow time to obey request iii. Mistakes reasonable in certain situations 1. Mistake to danger (using force) = defense 2. Mistake of intruders privilege- no defense even if reasonable (D thought P trying to steal boat and blocks P, causing injury to him- D liable) iv. Use of deadly force no right unless:

TORTS OUTLINE HERIOT

1. threatened with death or bodily harm 2. preventing felony- breaking and entering 3. burglary (only on own dwelling) a. not applicable to trespassers b. cannot kick out intruder if likely to cause serious harm Ploof v. Putnam (D unmoor Ps boat during storm) v. use of mechanical devises- can use only to extent that devises likely to cause serious arm- depends on intruder- if used on someone not intending to harm = liability; if yes harm = no liability Katko v. Briney (Defended house with shotgun injuring P- no deadly force unless felony of violence-endangering human life) human life > property Recapture of Chattel (property)i. more ltd for recapture than existing property ii. If mistake even reasonable- no privilege except in shoplifting iii. can use reasonable force if not much time passed but NO DEADLY FORCE, if willingly part with property and has right to repossess- cannot use force iv. usu. no recapture for good willingly parted with. v. Storekeepers can temporarily detain ppl with reasonable suspicion of stolen goods-short pd. Time, no coercion, no arrest, no confession ltd to vicinity of store. vi. May use reasonable force to recover goods on wrongdoers land if 1. taken with force 2. reasonable time and manner 3. if prop ends up on person land and theyre not at fault can enter land but liable for any damage. 4. Chattel onwers fault- cannot enter land must bring court action Necessity i. Public necessity: prevent harm to public as a wholedisasters (going into home to put out fire) ii. Private: prevent harm to third person or self

1. Harm to Ps property weighed against Ds

danger trying to avoid Putnam v. Ploof 2. Must pay damages to property Vincent v. Lake Erie (tying boat to dock during storm and boat hits/damages dock)-ok to tie dock but must pay damages. II. Actual Causation a. Rule: Liability ONLY for factual causeBut forALWAYS factual cause broad standard- can be anything b. Multiple negligence: When different acts combine for 1 injury each tortfeasor responsible Hill v. Edmonds c. Concurrent causes- 2 sufficient, indepe. concurrent causes combineKingston v. Chicago (2 fires, 1 unknown combine, D entirely responsible even if 1 alone wouldnt cause fire) i. Must be SUBSTANTIAL factor to be a causemultiple causes factual cause ii. 3rd restatement- multiple acts- each must be sufficient and concurrent = harm, if one not sufficient on own NO LIABILITY 1. two harms-separate- FIRST liable. (Kingston Hypothetical: two fires separated by weeks) d. Proof i. Ps burden probable cause (doesnt have to be absolute)-e.g going down dark stairs probable and sufficient (even if may have fallen without lights) ii. Hoyt v. Jeffries- P showed sufficient evidence for probable cause (chimney fire) e. Juries allowed to make inferences as long as it is reasonableMedical malpractice- P shows that exposure to drug caused harm but doesnt show overdose vs exposure caused harm- held for P-substantial factor f. Scientific evidence Approaches i. Only what is Generally accepted ii. Relevant even if rejected by majority iii. Fed courtsmiddle approach

i.

j.

TORTS OUTLINE HERIOT 1. Must use sci method (can be tested); accepts a. Joint-and several liability (Traditional rule) new, unpublished but DOESNT ACCEPT i. If more than 1 proximate cause and harm is
if not published but rejected. g. Increased risk & actual damage i. E.g medical misdiagnosis (39% survival vs. 29%)held for O-can only recover for direct items of damage ii. Dillion v. Twin state gas a electric (barbed wire fall) D liable for wire exposure. liability left up to jury to decide h. Increased risk not yet followed by actual damage (asbestos) i. Traditional view: P must show MORE THAN PROBABLE for harm otherwise NO recovery ii. Emerging view recovery: allow recovery if P shows REAL but less than 50% chance of harm in future (discount for chance that harm will occur less or greater than 50%) i. Double fault and alternative liability i. If two Ds, burden shifts to D to show other caused harm Summers v. Tice (hunting shoot eye) j. Market share theory: i. D is liable for their share of harm ii. When many D and exact fault is unknown- D must prove fault on their own- if cannot they are liable for their share Sindell v. Abbot (drug manufacturers) 1. Later courts found that companies cannot escape culpability if sold drug but not to partic. P Hymowitz v. Eli Lily iii. Use national market share vs. local market share k. Joint-and-several i. Any one of many Ds is held responsible for all damage l. Enterprise liability i. Corporations cooperate with one another-not unreasonable to hold them all liablemore likely to use joint and several liability. Joint Tortfeasors

ii.
iii.

iv. v.

vi.

vii.

viii.

ix. x. xi. xii.

III.

indivisible (cant tell whose fault)- each liable for entire harm P can recover from either 1 or both up to Ps discretion even if more ones fault than another If one D is BK, recovery falls on other D. 1. Applies to concurrent (indpendt acts concur) and joint (acted together in concert) Trend to cut back on joint and several Does not apply to divisible (distinguishable injurycan tell whose fault/share of responsibility) Applies to those who act in concert car 1 and car 2 drag race, car 1 hits P and car 2 not involved BOTH held liable 1. Concert of Action: doesnt have to cause accident-agreed to negligent action 2. Burden on Ds to prove to show proper allocation of harm if they cannot = joint and several liability Applies to successive incidents (one over period of time, another cause pollution for ten years and another factory creates pollution another ten years) burden on Ds if not J&S Overalapping Liability e.g D1 hurts Ps leg, D2 Dr. operates leg and negligently treats leg = amputation) D2 only responsible for worsening , D1 is proximate cause of ENTIRE harm Each liable under J&S death, fires (Kingston v. Chicago) UNLESS can show apportionment. ONLY ONE RECOVERYcannot go to D1 after recovered entirely from D2 Release: P can give release (absolve from all liability) traditionally releases ALL ds Covenant not to sue: doesnt release all only one make deal with 1. Most states relieve all dfts if release is silent

TORTS OUTLINE HERIOT

on the question b. Contribution i. IF J&S D (if paid more than own share) can get partial reimbursement from other Ds 1. Reinstatement allows contribution UNLESS other had settlement or release ii. Most states adopted comparative negligence contribution proportional to fault 1. Damages: 100,000; D1: 30% 30,000; D2: 60% 60,000; P: 10% 2. S&J P seeks 90,000 from D1 D2 can recover 60,000 from D2 (his share) iii. Limitations 1. No contribution from co-tortfeaseors 2. If contribution dft has defense no contribution and must have liability in first place 3. Doesnt work in workers comp situations $20,000 credit c. Indemnity: shifts liability entirely vs. contrib. (sharing) i. Usually when there is a big difference in responsibility ii. Vicarious liability/Respondeat Superior: e.g employer held respon. for employee actions (doesnt apply to contractors)can shift ENTIRE AMNT from employee (indemnity) iii. Can get indemnity from anyone higher up chain (retailer from manufacturer, Pilot vs. seller) iv. If 2 Ds, 1 negligent and 1 intentional Neg D1(negligent) can indemnify by D2(intentional) d. Hybrid systems e.g D1 loans car to D2 knowing he is violent, D2 runs over gf) i. Hybrid Joint and several with reallocation: if one is judgment proof court reallocates damages to other parties in proportion to their comparative fault 1. Damages: 100,000 2. D1: 40% (insolvent); 3. D2: 25%; D3: 25%; P:10% a. D2,D3= 50/60 of 100,000 (83,333) P,D1,D2 share burden ii. Hybrid based on threshold %: if ones fault is over a threshold = joint and several liability; less than threshold severally liable 1. Threshold 25%; damages: 100,000; P:10% (under threshold) 10,000; D1: 20% (under threshold) 20,000; D2: 30% (over threshold) 30,000+40,000(D3s contrib) = 70,000 ; D3: 40% insolvent iii. Based on type of damages: Economic harm = jointand-several; non-economic = several damage 1. Damages 100,000 eco: 40,000; emo: 60,000; D1: 30% 40,000 (eco/J&S) & 18,000 (Emo/several- 35% of 60,000); D2 70% insolvent e. Pure Several Liability: regardless nature of case, liability

iv. Settlements 1. Unless there is statues against- those WITH settlements can get get contribution from other Ds but bears burden to prove their liability and reasonable settlement 2. Traditionally those who settled CAN be sued for contribution = less incentive to settle a. Move to not allow contribution against settled D- Ps recovery thus reduced (either Dollar amnt or comparative share) b. Ex. D1: 45% settles 20,000; D2: 35%; P: 20% i. Comparative D2 gets $45,000 credit (portion) ii. Pro Tanto D2 gets

TORTS OUTLINE HERIOT

IV. only for share of responsibility Vicarious liability a. Employee/Employer/Respondeat Superior i. Applies all torts ii. Employee: subject to control of employer (supervision, dominion and control) vs. independent contractor (own boss)nature of work not written contract iii. Liability if act within scope of employment intent to further employers business purpose 1. Usually travelling to and from work not applicable 2. frolics and detours must be reasonably foreseeable (e.g sailor damage) for liability a. applies to smoking/toilet and acts explicitly forbidden still liable BUT can be used as evidence that employee acting beyond scope. b. doesnt apply to personal motives (vendettas) unless there is duty of care (passengers in public transit) 3. employer is ALSO liable for own negligence in addition to vicarious liability d. Bailment and Consent Statutes i. Automobile consent statutes 1. Car owner liable for negligence of those who use their car even with permissionUNLESS beyond scope ofconsent ii. Family purpose doctrine: car owner liable for allowing family member to use carfurther family purpose. iii. Automobile liability insurance policy: covers owner and household members and those with consent to use car. Negligence: Duty of Care and Proof of Breach a. Components i. Duty: 1. avoid unreasonable care. ii. Breach of duty 1. would reasonable person exercise care? iii. Cause in fact 1. Breach of duty cause iv. Proximate cause 1. Link between negligence and harm v. Actual damage 1. REAL damage must occur b. Unreasonable risk: Was D-UNREASONABLE risk of harm? i. Judged at time occurred- no hindsight (cause 25 yrs after act must show PROXIMATE cause) ii. Inherently dangerous object = negligence (leaving gun out vs. leaving club-used as weapon-not inherently dangerous)1. Leaving club out would be negligence if knew leaving it around someone extremely dangerous. iii. Balancing Test: risk so unreasonable- would reasonable person recognized risk and avoid it? Jury decides on own cost-benefit analysis 1. B < L x P

V.

b. Independent Contractors i. Generally not vicariously liable 1. Exceptions: ultrahazardous materials used, peculiar risk of physical harm, work public roads (road, sidewalk, park), person hiring is landowner c. Joint Enterprise i. Short, specific, partnership negligence of one enterpriser imputed on other- auto accident = liability furthering business (common business) 1. Doesnt apply social trips 2. Passengers cannot sue drivers for negligence

TORTS OUTLINE HERIOT

a. B: Burden; L: gravity of harm; P: probability of harm b. US v. Carrol towing Ps boat broke from moorings when D shifted. D argue no one on board Ps boat to oversee risk mooring undone and danger of harm high enough to have watchman (even though burden is high too). 2. More serious the harm, less probability has to be e.g dealing with fire (serious/inherently dangerous) 3. Burden depends on cost to him AND social utility of act 4. Risk is unreasonable and act negligent IF risk > utility of act 5. Warnings- if none given can be negligent known risk, know warning may reduce risk a. Does NOT immunize D eg. Warn before throwing TV out window still negligence 6. Focus on level of care not social utility of engaging in act (e.g doctor driving and hitting someone vs. teen joy riding Carefully but hits someone is NOT liable) iv. Strict liability: ultrahazardous acts responsible for ALL injuries proximately causes.

a. Heart attack/epilepsy if sudden to

person who thinks in good health NO liability vs. person who is prone to seizures = liability. b. Blindness- must be more careful than reasonable person- this taken in acct Rejects strict liability (takes into acct. physical characteristics) DOES NOT apply to mental characteristics (insanity, stupid- still liable) too difficult to employ would be diff for each person a. Children mental state and age taken in consideration Intoxication NOT defense Restatement: Children <18 subjective standard (<5 immune) a. NOT subjective standard if children partaking in DANGEROUS adult activities but IS traditionally subjective for those dangerous activities engaged by children (hunting) Things a reasonable person should know: a. Ordinary experience, customs (even if stranger to community), duty to investigate (condition of tires), memory, distractions NOT reasonable defense b. Types of customs i. Protect self and property ii. Protect persons/property of contract (customers, employees, loved ones) iii. Strangers- general duty but no incentive Custom evidence allowed but is NOT conclusive TJ hooper (radios on boat

2.

3.

4.

5.

6.

c. Reasonable person i. Objective Standard: would reasonable, ordinary person have acted as D if in their shoes? (balancing test too abstract- use this to instruct juries) 1. Physical disabilities- would reasonable person with those attributes act similarly?

7. 7

TORTS OUTLINE HERIOT

could have saved cargo in storm- crt ruled custom not conclusive up to jury-against D) a. If other side no argument against evidence usually can win b. Under custom- Community is decision maker 8. Advances in technology create new negligences- once not now are (guardrails) ii. In emergencies not held to same standards UNLESS D caused the emergency D must also STILL act reasonably for someone in emergency (swerving into shoulder instead of traffic) still MUST act reasonably under circumstances 1. different standard for those trained (School bus driver) iii. MUST anticipate acts of third parties drunk drivers, children)- parents have direct liability duty to supervise children 1. Special Relationships : burden on D to prevent acts of third persons Tarasoff v. UC (psychologists and patient relationship) 2. Public Premises Liability: public premises have duty to protect public from crimes foreseeability of 3rdpersons 3. 3rd person crime foreseeability Test: a. Totality: takes all factors in consideration prior smaller incidens, level crime surrounding area)too much burden on business owners b. Balancing Test: Forseeable harm vs. burden of implementing duty (surveillance guards) i. Foreseeability of harm must be HIGH for high burden iv. Misrepresentation 1. Negligent statements physical harmtreated as any other negligence

2. Person given false info can sue as well as

those relying on the info doesnt apply to bystanders overhearing d. Malpractice i. Rule: those specialized must act with skill commonly possessed by members of profession in good standing ii. Only liable if act without requisite skill/competence iii. Minimum standards shown through Expert Testimony 1. Difficult- experts dont want to testify against eachother AND must show D didnt act by accepted conduct 2. Standard: minimally qualified member in good standard NOT average member iv. If negligence so bad that lay person can tell- expert testimony not needed v. Experts judged before on standard of communitymoving toward national standard 1. Objective NOT subjective standard- Did D match standard of care common in that profession? vi. Informed consent (disclose treatment risks) itself negligence. 1. P must show if informed would have declined treatment (courts differ reasonable person vs. patient would decide) 2. Exceptions- emergency or patient high strung- disclosure not necessary vii. Novice held to same standard even if inexperiencedP assumes risk of inexperience e. Automobile Guest Statutes: drivers not liable to nonpaying passengers UNLESS grossly negligent/willfully negligen/reckless (greater form of negligence) i. Brown v. Merlo- CA statute unconconstitionaldenies recovery for few collusive suits only 9

TORTS OUTLINE HERIOT

states have statute

ii. Driving while intox = gross negligence-no guest

statute. f. Two forms of risk i. Trespass- Direct harms/Stric Liability 1. Once mvmnt start act before comes to rest a. Treetreetreekill someone (no rest) ii. Tresspass on the case/Action on the case-indirect harms/Negligibility rule 1. Hit treerestinjury (INDIRECT) iii. Brown v Kendell P reasonable P no reasonable care care D reasonable D wins D wins care D no P wins D winds reasonable care iv. g. Negligence Per Se (violation of statute)legis is decision maker i. Unexcused D cannot show standard too high ii. Martin v. Herzog(Cordozo) Statute says cant drive after dark w/o lights P drove without lights and ran into D- no recovery for P-negligence per se = contrib. negligence. iii. 3rd restatement: 1. D violate statute 2. Designed to protect against type of accident a. Gorris v. Scott (statute requires pens to protect spread of disease not animals going overboard) 3. Victim w/in class statute intended to protect a. e.g statute protects employees only-

iv. v.

vi.

vii.

viii.

harm to visitors and employees negligence only to employees not visitors General interest of state NOT particular person no negligence per se against specific person Blue law prohib. stores open Sunday, if store open not conclusive negligence if someone shops and hurts self NOT negligence per se- statute protects public day of rest not harming by going to store on Sunday 1. some statutes protect public AND specific ppl (bar brawl- fighters and public) Causal link- show violation injury 1. e,g: P sues D injury resulting from not showing warning on Drug bottle. D need show P didnt look at label to show no causal link Excuses (voids NPSevidence negligence) 1. Childhood, physical disability/physical incapacitation (heart attack driving) 2. Ignorance of facts (cant work w/n 10ft power line- didnt know or could know w/in 10 ft) 3. Reasonable attempt to comply 4. Statute presented in confusing way 5. Complying with law = greater risk of harm a. Tedla v. Ellman more dangerous to walk toward traffic (more traffic) walked on other side excused b. Standard of care defined vs. no definite standard of care 6. Obsolete/old legislation Contributory negligence per se 1. DOESNT apply to absolute duty (child labor laws) 2. Must meet all factors of NPS FIRST before contributory if doesnt can be used as

TORTS OUTLINE HERIOT

evidence for negligence. 5. (explanation of events more accessible to D)

ix. Complying with statute doesnt mean no negligence

esp if situation is more hazardous h. Res Ipsa Loquitur (Thing speaks for itself) i. Byrne v. Boadle- drop flour from roof = evidence of negligence ii. Requirements: 1. No direct evidence of Ds conduct 2. Event ordinarily doesnt occur through negligence a. Show most of time- negligence is cause of these events (airplane crashes) b. Need not negate other causes c. > 50% chance negligence 3. In Ds ctrl a. exclusive ctrl (no longer required)could be under someone elses ctrl (e.g buy used car bad brakesmanufacturer fault not yours) b. MUST negate other possibilies to show Ds neg. c. Multiple dfts: i. Special relationship usually apply doctrineYbarra v. Spangard: appendectomyback pain-multiple Drs cant show who fault ii. Strangers- ordinary duty of care- if cant show who is responsible usually no doctrine. 4. Rule out Ps contribution a. Contributory neg. usually no doctrine NOT always walking near construction immaterial when hit by falling beam- doctrine applied

iii. P MUST show breach of duty still used as

instruction to jury doesnt mean they required to find D negligent x iv. 3rd restatement: type of accident ordinary of negligence of class of actors D is relevant member 1. no: evidence Ds behavior, Ds ctrl, P contribution v. D entitled to rebuttal 1. evidence of care shoots down directed verdict 2. Can also disprove elements of doctrine 3. If cannot bring evidence of NONNEGLIGENCE P usually wins with directed verdict vi. Typical cases 1. Airplane, car crashes usually doesnt apply multiple cars VI. Duty: a. Generally: care a reasonable person would exercise. i. Palsgraf duty to someone outside scope of risk imposed by Ds negligence ii. Issue- whether D owes P duty to avoid this kind of harm (emotional distress without physical symp?usually no) 1. Different for owners and occupiers of landb. Failure to Act (Omission) i. General Rule: No liability for failure to act UNLESS special relationship creating obligation 1. Common Carriers and Innkeeperspublic transit/bus drivers 2. Business or other possessor of land (bus. Owners and visitors) 3. Employer with employees in imminent danger, injured and helpless 4. School/students 5. Landlord/tenants

10

TORTS OUTLINE HERIOT

6. Custodian-those in custody (jailor/prisoner)

ii. If D creates dangerduty to warn- even if innocent 1. Duty to exercise reasonable care to
prevent/minimize harm (hit and runs) a. E.g holding babies and first time having seizure NOT negligent for seizure but if out of seizure and see baby on floor duty to care for child Co-Venturescommon pursuit 1. E.g jogging, camping etcduty to eachother Assumption of duty: 1. If voluntarily assist (even w/o obligation) must reasonably care to keep P safe.- canot leave discontinue care if would make position worse. 2. By undertaking giving aid preventing others 3. Must act reasonably with careliable for maing injury worse. Custom 1. Erie Co. vs. Stewart- custom of having watchman warn crossing of RR- held liable when he was missing P relied on warning Promise to assist 1. Verbal promise of care NOT enough no contract BUT trend toward allowing promise w/o action enough Duty to control 3rd persons 1. Special relationship (hospital patient, schoopupil, parent-child, business-patron) 2. Special relationship with 3rd partymedical professional Tarasoff v. Regents of UC; ownder of carpederians and other drivers a. If dont know of danger not liable 3. Good Samaritan act- makes those who volunteer help in emergency free from liability

iii.
iv.

v.

VII.

vi.

vii.

c. Prisoner Innkeeper relationship d. Why impose this common law duty early on? i. 1- Prisoner is cut off from usual means of defense 1. example of this- flying on airline (no usual means of defense) ii. 2- without consent 1. there is consent to fly on plane iii. 3- defendant (jail) is in better position to control risk iv. 4- dfndt put itself in that position v. 5- third parties are not in position to help 1. people on board flight are able to help but those that arent on board are not in position to help vi. 6- third parties will assume dfndt is taking responsibility 1. airline has duty of reasonable care e. examples of this common law duty i. restaurateur Land owner occupiers a. Trespasser (no consent/invitation) i. Duty keep from willful, wanton, intentional harm ii. Invitees can become trespassers (keep out) iii. Exceptions to duty 1. Frequented trespass-use reasonable care/warn dangers (RR crossings) 2. Once know of trespass must use reasonable care iv. Liability against Child Trespassers-restatement 1. Know child likely to trespass 2. Know cause unreasonable risk of injury and action 3. Child (youth) cuz of age didnt discover/realize harm 4. Weigh benefit vs. riskbenefit must be slight 5. D failed reasonable care

11

TORTS OUTLINE HERIOT

b. Licensee (social guest/no business purpose) i. Duty keep from willful, wanton, intentional harm ii. Duty to use reasonable care to warn known hidden dangers iii. Duty keep from affirmative acts of negligence 1. E.g Rowland v. Christian: social guest hurt hand on broken faucet-D knew, failed warning/repair = negligence. Usually no reasonable care to licensees- here there is c. Invitee (business purpose) i. Duty keep from willful, wanton, intentional harm ii. Duty to use reasonable care to warn known hidden dangers 1. If warn doesnt negate liability or obligation of higher level of security iii. Duty keep from affirmative acts of negligence iv. Duty to use reasonable care keep property reasonably safe (so invitees wont be exposed to danger) 1. Duty to inspect for hidden dangers v. Requires general business relationship Proximate Cause (2 views) a. Direct Causation (trespass) i. Liability only on direct result (no matter how unforeseeable ii. Polemis (plank fallsparkfire ship 1. Later overruled by Wagonmound iii. Ryan v. Central R.R D(RR) engine fire to wood shed and Ps house no liability too remote argues Polemis = limitless liability b. Forseeable/scope of risk i. Liability to foreseeable injury, persons and intervening causes ii. Wagonmound 1. Ship oilwaterfire act came to rest-no direct result (even if foreseeable oil burns) 2. Trespass on the case with usual negligence 3. Cordozo: foreseeability of injury necessary for breach of duty 4. Polemis doesnt apply POLEMIS WAGONMOUND - SOME HARM - Harm need not be MUST BE foreseen IF direct FOESEEABLE result negligent act - Actual harm must be - Like trespass writ foreseeable with added - (if its NOT direct negligence (doesnt result of Ds require ultimate negligent act harm is foreseeable Some harm must be foreseeable - Actual harm need not be foreseeable iii. Palsgraf v. Long Island RR(trying to get on RRdrops package of fireworksscaleshit P) no liability 1. Victim MUST be in foreseeable class of victims 2. Some harm must be foreseeable to that class a. Pltf not foreseeable no duty of care to her (foreseeable victimsstranger, employee) b. Andrews dissent- how far is foreseeable? not proximate cause legal judgment-politics (more on view of direct causationnatural and continuous sequence) c. 3rd restatement (Cordozos View) i. liability limited to those physical harms that result from risks that made actors conduct tortious ii. BUT no separate rule for unforeseeable pltfs iii. Bars liability that outside type of harm risk of which made conduct negligent d. Exceptions to Foreseeable-consequence approach -

VIII.

12

TORTS OUTLINE HERIOT i. Liable fore any additional unforeseeable

consequences-eggshell skull ii. P is rescuer iii. Liable even if highly unlikely but foreseeable. 1. Wagonmound 2D liable because small risk of fire from oil- some foreseeability iv. Liability for same general harm but not same manner v. P member of class of general foreseeability Negligent Act Anticipated Harm Actual Harm Failure to pen Spread of disease (did Animals went animals not happen) = no overboard during liability/ no proximate storm cause Placing plank over Plank hit ship cargo or Fire hold person (not bypassed- (unacnticpated) did hit something and caused fire) = liability/proximate cause Speeding Lose control of car or Wrong place reaction time wrong time, tree insufficient to control falls not cuz of car (bypassed- vehicle loss of control lost ctrl) = no liability/proximate cause e. Intervening Causes i. Supersede proximate cause of D if foreseeable or kind of harm foreseeable. 1. weakening of foreseeable to normal consequence (escape from harm rescue, aggravation) a. Wagner v Intl R.R- NOT superseding because rescue is foreseeable-danger invites rescue x hurt on Ds RR P hurts self in rescue i. UNLESS grossly negligent = superseding cause b. D responsible for all injury that ensues even negligent medical treatment (amputate leg)- doesnt apply to suicide ii. Foreseeable acts of 3rd parties = liability iii. Unforeseeable intervention but foreseeable resultsame type of harm- not superseding iv. If intervening act is a crime usually superseding cause v. Did Ds Conduct increase risk of intervening cause? 1. Yes yes liability, no superseding 2. No no liability, yes superseding Special instances of nonliability for foreseeable Consequences a. Mental and emotional upset i. Traditional impact rule 1. Negligent actphysical harmemotional harm (incl pain) RECOVERY 2. Negligent actemotional harm NO RECOVERY ii. Traditional impact rule 1. Negligent act physical harm economic harm RECOVERY 2. Negligent Act economic harm NO RECOVERY iii. Problems with impact rule 1. Negligent act physical harm emotional harm RECOVERY 2. Negligent act emotional harm relating to likelihood of physical harm (almost injured) NO RECOVERY 3. Negligent Act emotional harm related to likelihood of physical harm and actual harm to someone else substantial emotional harm HORROR iv. Mental Suffering w/o physical symptoms

Gorris

Polemis

IX.

Berry

13

TORTS OUTLINE HERIOT 1. Usually no recoveryabandoned by some

states 2. At-risk P- exposure to toxin (aids) more than probability contract illness for recovery 3. If some physical harm = recovery v. Physical Injury w/o impact 1. Emo. Distress physical consequencesrecovery generally modern times (e.g almost hit by wagon = frightmiscarriage) vi. Zone of danger requirement (allows recovery for fear of self and others) abandoned- Dillion v. Legg (P not in zone of danger allowed recovery) 1. Limited with Thing v. La Chusa NIED a. P closely related b. Present and aware of accident c. Suffer emotional distress i. Burgess (mother told son suffered brain damage at delivery)-Direct victim NOT bystander Thing doesnt apply b. Loss of Consortium i. Legal action for when spouse injured/died- loss of companionship and service ii. Doesnt apply to parent-child relationship 1. Wrong Death Act- works same as consortium for children c. Economic Harm i. Traditional rule- no recovery for pure eco loss w/o physical harm. Barber Lines v. Donau Maru (spilled fuel in harbor-rerout shipment = loss) ii. Modern reasonable measures to avoid eco damange to identifiable class (different than foreseeable)- foreseeable in particular (in circumstance where could be touched) Defenses to Negligence a. Contributory Negligence i. If pltf was negligent in any way-NO recovery ii. NOT a defense to INTENTIONAL torts- only intentional 1. More subjective analysis than dfts negligence- more likely to take facts in Ps favor 2. Qualitative differences in behaviorrecklessness met with recklessness 3. Last clear chance a. Defense to defense- you (D) had last opportunity to dodge the harm i. P helpless or, ii. Inattentive iii. Butterfield v forester running into pole going fast on road-no recovery iv. Most states abandoned for comparative negligence v. Excepions- statutes meant to protect class of people (e.g child labor) b. Comparative Negligence i. Compare negligence of P against D ii. Allocating damages between P and D 1. But if both 100% negligent and one is drunk-Drunk is judged more harshly iii. Pure comparative fault 1. P can recover no matter how GREAT fault (e.g over 50%) iv. 50% 1. P only recover if </= to Ds v. How to apportion? 1. Causal apportionment-reduced by injuries suffered caused by D BUT not P (eg. Leg but not brain damage) a. Comparative fault w/o causal apportionment- reduce ps % from total damages regardless of who caused which injury i. Total damages: 100,000;

X.

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P:30%; D:70%; Brain (P:20,000; leg (D): 80,000. P recovers 70,000 (100,00030%) b. Comparative fault with causal apportionment i. Held liable for both injuries but P not liable for those totally caused by D ii. P recovers full 20,000 for leg and 80,000-70%56,000 for brain damage c. Assumption of risk i. Volenti non fit injuria 1. P aware of 1) the specific risk, 2) magnitude of risk, 3) P freely and voluntarily encountered risk a. Should actually know of risk NOT similar one b. Voluntarily assume risk- not cuz there is not other choice/alternative (if there is a safer alternative and didnt take might find assume risk ii. Under contributory negligence-completely bars recovery to P, under comparative-reduces recovery 1. If D reasonably believes P voluntarily assumed risk-bars recovery to P (sitting where likely hit by foul balls) a. Primary: D no duty to P bars recovery b. Secondary: D has duty to P ordinary comparative negligence. i. Knight v. Jewett (touch football amputate finger) in sports no duty to P UNLESS intentional harm or outside range of ordinary activity. 2. If P reasonable assumed risk no reduction in recovery (going in fire to save baby) d. Immunities (all breaking down) i. Spousal: traditionally could not sue spouse- one entity- also didnt want collusion ii. Parent child: did want courts telling families how to run iii. Charitable: couldnt use donation money for tort purposes iv. Municipal: didnt want taxes used for tort purposes v. Sovereign (King can do no wrong) 1. Federal Tort Claims Act (FTCA) a. Must be brought in federal courtmust make administrative claim first (e.g post office) and give them chance to settle case before goes to court b. Can only sue for operational (enactment of program) NOT discretionary (based on public policy/testing) Trespass to land and nuisance a. Trespass to land i. Intent like battery- no intent to harm but foot to knee is sufficnet ii. Still liable if by mistake or even reasonable mistake. (e.g think its your land) iii. Only nominal damages for intentional trespass where there was no harm. iv. D is liable for all consequences of trespass no matter how unpredictable v. Indirect invasions 1. If tangible object enters land even though D didnt, still trespass, 2. If D did not intend object to enterstill invasion 3. Trespass on the case: indirect entry

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a. P must show intent, negligence or abnormal dangerous activity b. Actual harm must occur. c. No strict liability here or nominal damages b. Public nuisance: interference of right to general public i. MUST exhibit substantial harm ii. Must injure public at large 1. Private citizen can recover if suffer different kind of harm NOT just more harm than general public iii. Restatement: 1. Pub nuisance is unreasonable interference with right common oto general public 2. Unreasonableness factors a. Conduct involves significant interference with public health, public safety, public peace, public comfort ad convenience b. Conduct is allowed by statute , ordinance or admin regulation? c. Continuing nature of produced permanent or long last effect. 3. Who can sue: a. Individual action harm of kind different from members of public b. Public official, agency or represent state or political subdividsion c. Standing to sue as a representative of general public c. Private nuisance i. Vs. trespass (interference with possession of prop) nuisance is interference with use and enjoyment (not physical like trespass, includes smells, noise, dust) ii. Who can sue- those who have interest in land (tenant, members of family) iii. P must prove:

1. Interference was substantial

2. Ds conducta. Negligent (balancing test utility vs. harm), i b. Intentional (know with certainty interference will occur)- MOST are intentional -even if with due care if knew still intentional Jost v. Dairyland c. or abnormally dangerous = strict liability iv. Measuring unreasonableness in addition to conduct MUST be unreasonable 1. Restatement Overview a. Ps Harm > utility to D b. Harm substantial and is unfair to not be compensated- financial burden of compensating does not render infeasible the continuation of the conduct)-no matter how socially valuable if harm substantial D MUST pay-Jost v. Dairyland 2. Restatement: General Rule a. Subject to liability if invasion of anothers interest in the private use and enjoyment of land and the invasion is either i. Intentional and unreasonable or; ii. Unintentional and otherwise actionable under rules controlling liability for negligen or reckless conduct, or for abnormally dangerous conditions or activities 3. Unreasonableness of intentional invasion a. Gravity of harm outweighs utility of

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actors conduct i. Extent of harm ii. Character of harm iii. Social value to use/enjoyment iv. Suitability of use/enjoyment v. Burden on person harmed or avoiding harm b. Harm caused by conduct is seirous and financial burden of compensating for this and similar harm to others would not make the continuation of the conduct not feasible i. Social value of conduct ii. Suitability of conduct to locality iii. Impractibility of preventing/avoiding invasion v. Remedies 1. Compensating damages 2. Injunction (order to stop)- must show harm > utility Boomerv. Atlantic Cement Co. $ to close plant/loss of jobs cancel injunction- as ong as D pays P for damages. 3. Self-help abatment- can go onto Ds land to take or stop nuisance with force BUT should give complaint vi. Defenses 1. Contributory negligence 2. Assumption of risk Coming to the nuisance P bought land with prior knowledge of nuisance Spur v. Webb creating city near farm- usually no damages/injunction BUT involves 3rd prty (Residents). Under coming to nuiscance P compensates/ indemnifies D for moving XII. costs. Strict liability a. Wild/dangerous animals i. Domesticated- only if dangerous propensities ii. If usually calm and bites- no liability iii. Injury must be due to dangerous characteristic of animal- cant sue for bumping into a blind bear b. Ultrahazardous activities i. Rylands v Fletcher 1. D builds reservoir on their property non negligently and it breaks- water floods Ps property 2. Lower crt- keep something mischievious on property should be liable for its consequences 3. Higher court- held- liability for non0natural use of land if it had been natural (collected) would be liable a. What is natural? unusual/uncommon use gave rise to ultrahazardous extremely dangerous activities-Siegler v. Kuhlman (in transport spilled gas on highway) rd restatement ii. 3 1. foreseeable and highly significant risk of physical harm even if reasonably careful by ALL actors a. e.g gas companies not strictly liable because use of reasonable care by all parties avoids foreseeable and risk of harm b. PSI energy (asbestos) 2. not of common usage iii. Cannot be used with res ipsa loquiter iv. Must still show actual cause and proximate cause c. Limitations to strict liability i. Only applies to kind of risk that made activity

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abnormally dangerous ii. No recovery for sensitive P (frightened cat Foster v. Preston Mill) iii. No contributory negligence UNLESS P voluntarily and unreasonably subjects to danger 1. Assumption of risk- applies whether P volunteered reasonably or unreasonably iv. Comparative negligence still applies- reduces Ps recovery XIII. Damages a. No liability for accident even if negligent b. Any cause of action result in death- common laws will not hear cases againt and byy dead people c. Seffert v. La Transit i. Courts of this error big on broadening liability ii. Traynor wants to keep damages down iii. Collateral source rule: insurance takes care of damages- this evidence never brought into court- D cannot complain that you use 3rd party to pay 1. Necessary because the source has right of subrogation (substitution of one for another) 2. Pltf paid for collateral source and double recovery appropriate 3. Designed for deterrenceProducts liability a. Timeline i. Winterbottom phase: privity of contract rqd 1. Privity-directly contracted with D-no privity no suit ii. MacPherson Phase (negligence): Privity not ordinarily required 1. Cordozo reject privity for imminent danger/inherently dangerous- can sue without privity anyone who negligently manufactures a product that proximately causes injury is liable a. Retailers liable if knows/should know of danger & does not warn; usu. no duty to inspect; sells to minor incapable of using safely (weapon) iii. Escola/Gleenman/Sectioni 402A: Strict Liability iv. Rise of distinction between manufacturing and design defect warning a) wilderness Pd b)3rd restatement b. Warranty i. Express: express represent certain qualities if no qualities can sue for breach of warranty Baxter v. Ford Mortor Comp (advertise shatter proof glassshattered-liable) 1. Applies to public, bystanders/passers by 2. Acts like strict liability ii. Implied: fact that goods are merchantable/for sale implies warranty- fit for ordinary purposes-implies it will do job that you intend 1. Requirments: a. Seller is businessperson b. Usually sells these goods 2. Applies to final purpose and those reasonably expected to use it iii. Defenses to warranty 1. Disclaimers (must be noticeable) 2. Limit remedies (repairs, replacements) 3. Notice of breach- buyer must notify seller any breach of warranty iv. Strict Liability 1. Greenman v. Yuba- Traynor says failure to notify of breach doesnt bar recovery for Pwarrantyies doesnt protect consumers

XIV.

2. 402 A a. (1) one who sells product in defective condition unreasonably dangerous to uer/consumer or

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property is subject to liability for physical harm caused to user/consumer or property if: i. seller engaged in business of selling each product ii. expected to and does reach user/consumer without substantial change in condition in which it is sold b. applies even if i. seller exercised all possible care in prp and sale of product (not negligent) ii. not bought product from or entered into contractual relation with seller rd restatement 3. 3 a. in business of selling/distributing products whee it may be defective subject to liability of inadequate intructions or warnings i. manu defect: departs from intended design ii. defective design-forseeable risk of harm could be reduced by RAD omission of RAD make product not reasonably safe iii. inadequate instruct or warnings- forseeable risk of harm could be reduced/avoided by instruct/warnings 4. unavoidably unsafe products a. prescription drugs b. cigs c. handguns i. 2nd restatement no liability if reasonably warned

ii. 3rd utility > risks not

defective; utility< risks defective 5. No duty for unknowable dangers (at time) e.g asbestos no failure to warn Anderson v. Owens fiberglass 6. Obviousness is not dispositive-factor if P can show RAD that reduces/prevents injuy can win 7. P must show in strict liability a. Made sold by D b. Defective i. Res ipsa loqituer- would not ordinarily occur if not for defect Escola c. Caused Injury i. Proximate cause - Union Pump v. Allbritton d. Existed when left Ds hands i. w/o proof of specific defect can use res ipsa1. ordinarily occurs as product deft 2. no evidence pointing to other causes 3. need not establish manu/design defect 8. Family members of buyers and bystanders can sue w/o privity under strict liability v. Design Defects 1. Design risks vs. Utility a. Used under 3rd restatement trend away from strict liability toward negligence 2. Reasonable consumer expectation for safety used for reasonable intended purposes

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TORTS OUTLINE HERIOT 3. P must show RAD-other design safer

general evidence a. Cost and utility heavy measuresdouble price or affects utility b. Usually no liability if no other safer product existed at time- BUT not dispositive- could be liable if P shows another design could have been adopted. 4. Types of claims a. Structural b. Absence of safety features c. Suitability for unusual purposes i. No duty for unsforeseable misuse but should usually safeguard against foreseeable misuse d. Car manufacturers have duty to make car reasonably safe in accident e. Custom (TJ hooper) NOT dispositive even if all products of its kind are unsafe it altogether can be negligent 5. Duty to Warn a. Warnings are not shields for liability- if make defective product but warn still liable b. If properly desgn and manufacture PLUS non obvious risk and NO warning = liability c. Risk-utility i. If forseeable risk of harm could be reduced by instructions/ warnings = liability d. No duty to warn against unknowable risks (asbestos) e. If greater harm = greater need to warn even if small amnt ppl Must warn against foreseeable misuse- warning less costly g. Post sale duty to warn if learn of defects recall 6. Defenses a. Contributory negligence NOT defense b. Assumption of risk- voluntarily take risk c. 3rd restatement i. comparative negligence assumption of risk-failure to discover risk, high risk useignore safety precaution reduction not elimination of recovery d. misuse of product i. reduce recovery, may not be defective or/and may not be proximate cause ii. may sometimes be superseding cause iii. if FORESEEABLE misuse NOT SUPERSEDING iv. if NOT forseeableSUPERSEDIN G c. Manufacturing defects i. Welge v. Planters (peanut jar shattering) ii. Manufacturers fault or retailers? Workers Compensation a. Employer is liable even without fault of employee b. No recovery for pain and suffering c. Exclusive Remedy Clause: No choice must use WC if arises out (related to work) of or in course of employment (while working time) f.

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TORTS OUTLINE HERIOT i. Usually travelling to and from work not covered. h. Abandoned attempt point gun and change mind- still
ii. Workers own fault not ground for denial of coverage-UNLESS 1. Intoxicatioin 2. Illegality 3. Disregard of safety rules iii. If relationship with coworkers outside work and there is accident NOT covered but if practical joke while at work IS covered. d. Exclusive remedy DOES NOT apply to INTENTIONAL wrongs of employer- P must show that employer intentionally injured him i. Safety regulations some crts classify intentional tort if disregard safety regulations even if did not intentionally harm ii. Substantial certainty of injury NOT enough for SOME courts. iii. P can sue 3rd parties involved in injury if not employer Intentional Torts a. Assault: apprehension of imminent (not future) harmful or offensive contact (think they will be harmed) i. . DeS. V. W De. SD swings hatchet at P misses= assault ii. intent intend apprehension OR contact (attempted battery) b. Pranks can count as assault dont intend to hit but P think you are c. Transferred intent D throws at X, P nearby and in fear = assault d. Words usually NOT enough for assault but taken into acct i. Tuberville v. Savage- if it were not this time I would not take this language from you e. Bluff P MUST be in imminent apprehension for assault f. Apprehension DOES NOT mean FEAR scrawny guy attempts to hit big guy is STILL assault g. If sleeping no assault- can be battery without assault XVII. assault False Imprisonment a. Intentional confinement P must show that D knew with substantial certainty that confinement would result b. Transferred intent - entrapping X when trying to keep D from leaving store c. Confinement- within certain limits- no enough to obstruct or block where they want to go- must of definite phusical boundaries. Bird v. Jones d. Storeowners can detain suspectied shopleifters as long as it is brief and privileged. e. Threat to property- taking customers bag if thought they are shoplifting- must be imminent- future harm (stay here until you are cleared) not enough f. P must be aware of confinement g. D has duty to release e.g promise to let someone free on boat but does not allow row boat = confinement Whittaker v. Sanford. Intentional Infliction of Mental Distress (IIED) a. Intentional or reckless infliction by extreme and outrageous conduct b. 3 mental states i. desire to cause emotional distress ii. knows with substantial certainty P will suffer iii. Recklessy disregards high probability of emotional distress 1. Knows of risks or facts that make risk obvious and burden to reduce risk are slight c. Generally no transferred intent d. For P to recover Ds conduct must be extreme and outrageous i. Wilkinson v. Downton-D tells P husband is hospitalized as joke- P suffers nervous shock e. Must be SEVERE mental distress to recover i. Must show sought medical aid Defamation a. Basic action

XVI.

XVIII.

XIX.

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i. Statement (fact not opinioin he is vs. I believe he is ii. Publication of statement write it down not enough need others to read it iii. Must be defamatory- harms individuals reputation deter people associating to dealing with him iv. Concerns P (not anyone else) v. Falsity- Strict liability for state of mind b. c. Two kinds defamation i. Libel: written (newspapers, mags) vs. broadcase (internet, radio) 1. Libel per se- know just from statement that it is defamatory and need no other info 2. Libel for quad- cant know defamatory by looking at statement just know facts (married man with blonde woman in hotel, wife brunette) ii. Slander: oral 1. Slander per se: more like libel (4 kinds) a. Person has disease b. Criminal conduct sexual misconduct c. Slander of trade or profession (u are incompetent lawyer) 2. Ordinary slander a. Must show special damage of pecuniary nature (financial) iii. Qualified privilege 1. Public figures- newspaper or publishers can print statements even if they have doubts about their truth- P must show that D printed with Malice- ill intention Invasion of Pivacy a. Intrusion to seclusion (peeping tom) i. Intentionally intrudes upon seclusion and is HIGHLY OFFENSIVE to reasonable person (different std for celebrities) b. Public disclosure of private facts i. Must be truly private- not public record

ii. Must not be of legit public concern (Lamon story

public not interested) c. False Light i. Information that is disclosed has to be false doesnt have to be defamatory (affect reputation) 1. E.g painting someone as hero when they are not ii. More like defamation d. Misappropriation of name or picture i. Using hot model on bag of flour without permission ii. Vanna White pic without permission/contract Misrepresentation a. Intentional misrepresentation i. Elements 1. Misrepresentation 2. Culpability a. Knew/believed not telling truth b. No confidence in accuracy of statement c. No grounds for statement d. Negligence NOT enough 3. Inted to have P rely on misrep 4. Reliance by P 5. Damage to P ii. Failure to disclose not misrepresentation exceptions 1. Ficuciary relationship (lawyer/client) 2. Partial statements that are misleading 3. Newly acquired knowledge that makes previous misleading 4. Basic info iii. Liable to foreseeable 3rd parties (e.g sell car wholeseller with misrep and he sells to P, liable to P) iv. Hyberbole not actionable (this is best car on market) v. Cannot make affirmative misreprestntaion (if want to drill oil and buy land cant say I want land for soybeans BUT can say soybeans among other

XXI.

XX.

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things) b. Negligent Misrepresentaion i. Usually no action UNLESS personal injury or direct property damage or even intangible eco harm ii. Liable to limited group 1. Intends to reach with info 2. Knows recipient intends to reach 3. UltramaresD prepares audit books for X who will show to banks to borrow money. P lends money to X which goes BK- court holds no duty to P. restatement if know that X is likely to give to group of people (not specifically who) will be liable to limited number of people iii. Limited to pecuniary harm no emotional harm c. Strict Liability i. Generally no stict liability unless 1. Sale, rental exhcnge d. Contributory negligence NOT DEFENSE to battery or fraud e. Corva V. USAA ask

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