Notes For First Termers: Torts I Outlines and Exam Tips

NEGLIGENCE
(Professor Henke Model Answer)


DUTY
Complex Analysis:

1. Foreseeability
(a) Severity
(b) Relationship between parties
(c) Public policy
(d) Fairness

BREACH

Learned Hand BPL formula. The burden on the defendant to take precautionary measures is balanced against the possibility/probability of harm and the gravity of that harm.

CAUSE IN FACT

1. “But For” standard. Also apply:
2. Substantial Factor test. The substantial factor test recognizes that:
(a) Concurrent independent causes combine to cause an ultimate harm.
3. Proximate or Legal Cause. Harm must be within the scope of the reasonable foreseeable risks created by an actor’s negligence.
4. Intervening Cause
5. Superseding Cause


TORTS I PRE OUTLINE

Intentional tort: either you did it on purpose or you did it with the substantial certainty that a certain result would occur (by accident). E.I, I swing bat intending to stop right before I hit you, but I stop right there, I opps hit you, this is an intentional tort.

Negligence:

Duty
Breach
Causation
Damages.

Phillips: Hard test, Likes a lot, he is all over. Related topics.

Get into the exam: have a list of intentional tort. I B FATT C (I be Fat see) (this are all my intention torts.)

I – intentional infliction of emotional distress
B- Battery
F- False Imprisonment
A- Assault
T- Trespass of land
T- Trespass of chattels
C- Conversion.

ALL OF THIS HAVE ONE VERY IMPORTANT ELEMENT IN COMMON AND SHOULD BE TESTED FIRST: INTENT

Intent:

Intent could be subjective (what this person was thinking, ei, this guy is annoying me, I feel like smacking him on the head, this is an ex of subjective intent).
Or it could also objective (someone on defendant position would know with substantial certainty that a certain result could occur. E.I If I swim a bat intending to stop right before I hit you, but I do not, opps. Someone on this position would know with substantial certainty that this could happen. Even if this was a good faith mistake (not a defense). (insanity does not negate intent for torts)
Transfer Intent: Doctrine allows us to find transfer intent in one of two ways, either defendant intent to commit one tort in one person but it turn into a different tort, or defendants intent to commit one intentional tort on A, but instead commits a tort against B, we could then use the intent of tort A for tort B.

Public policy: reason behind why we have certain laws: for insanity, because if we fail otherwise, 1. everyone would be claiming insanity and 2. Their caretakers would not do good as a job as they would not be worry about liability.

NUMBER ONE TESTED THING ON THE EXAM IS TRANSFER OF INTENT.

Transfer intent: just like transferring schools, you take it from one place and move to another to find a tort There are two ways of have transfer intent.

if you intent to harm one person, but instead you hit another person. We can use the intent you used to harm one person and find intent for the second person. E.I. If I throw a marker at you and you duck, what happens is that I hit the person behind. I intended to hit you and instead I hit her. I did not intent to hit her, does not matter. This is transfer intent. And therefore this would be an intentional tort.
Intent to commit one tort but you coming one. The bat example again, if I am swing a bat and I am going to stop right before I hit you. This would be a tort, this would be assault (no contact), I meant to scare you. Say I hit you. I did not mean to hit you but I intent to scare (assault), we can use the intent from the assault to find the battery (this is transfer intent)

EXCEPTION TO THE RULE OF TRANSFER INTENT: TORT OF INFLICTION OF EMOTIONAL DISTRESS.


HYPO: If I told you that my foot made contact with her foot and I tripped her, is that a battery, not if I do not say it was not intentional. If it was by accident so this is negligence (a different analysis). In order to have an intention tort there has to be intent.


INTENTIONAL TORTS

There are elements and sub elements.

BATTERY:

Intentional
Touching of another (check for direct or indirect)
That is harmful or offensive: Harmful (it means that it hurts) if it does not hurt it could be offensive. E.I: I want to hug you and I want to kiss you, that hug or that kiss would not hurt but it could offend you. Note: this is done to protect the plaintiff bodily integrity and their dignity. Does not have to hurt. EI, pulling the chair from behind, if they do fall down but do not get hurt, it still can be offensive. A Hug, a Kiss, a pad on the back.

Battery can be direct or indirect.

Direct: You do not have to directly touch the person. (plate case) did not touch him still offensive and still battery, it is offensive. Proff handing papers, I am last person to hand paper and he snatched out of my hand. This is still offensive. (kick bike and I fall)

Indirect: Throwing something at you. Throw a stone at you.

MUST BE INTENTION. I cannot involuntary.

HYPO: some suffer from turrets, have a drink, and then they have tuicht, and the soda spills all over the place, and in some face. Is this a tort (no, it was INVOLUNTARY, no tort) INSANITY WILL NOT NEGATE A TORT BUT INVOLUNTARINESS WILL.

If you do not have control of bodily function, movements, and everything else, no torts.

ASSAULT: it is intendment to protect the plaintiff metal interest (so you cannot go threatening people all they long), must be intentional, plaintiff must have actual apprehension (NOT FEAR),

Apprehension: P has to be aware what is about to happen, has to be uneasy. (This guy is a freak or so) ei (sitting by a 5 foot, 80 pound person, and they say if you do that again, I will punch on the stomach, I am not scare, but I am uneasy) this feeling is apprehension.

There also must be an apparent present ability to effectuate the contact: Cannot be an empty treat, they have to have the ability to do it. (guy in wheel chair that I know that he is paralysis for 25 years and he says to me that he going to get out of the wheel chair and kick my ass!, it cannot happened, it is not likely, there was apprehension, and if there was, there should not have been.

Contact must be imminent. It has to happen right of way. Be careful, this gets tested a lot. The word if is deceiving ei ( if you do this, I will kick you ass. This is not assault as it was not imminent.)

Intentional:
Placing of another:
In apprehension:
Of a harmful or offensive contact:

Transfer intent applies.

FALSE IMPRISONMENT

Intentional:
Confinement of another:
Against their will:
Without privilege or consent:

Plaintiff can be detained by force, by threat, or by physical barrier. (I stand right in front of her on the door, and I said, If you try to come thought this door I will kick your ass), this is not an assault: It has the if exception….. but this is false imprisonment.

Plaintiff must be aware unless actual physical harm. Cannot false imprisonment someone that is sleeping?, no. or dunk, usually not. Plaintiff must be aware.

If the Plaintiff had a reasonable escape: They might have trouble proving this tort. If there is reasonable of escaping, then it is not false imprisonment.

Transfer intent applies:

Examples: Locking people on the closet, locking them in the car. HYPO: someone is coming to my house and she brings her kid, and I hold her kid and I do not give her kid up, This is a Double case of false imprisonment, 1. I am holding her kid and I am holding her. I hold someone purse, Say I am driving with someone and she tells me that she needs to get out, I said fine, get out, she says I need my purse and I said that she cannot have it since its on the side of my car, what is she going to say?, she cannot leave and this would be false imprisonment. In order to be false imprisonment, one cannot only hold the person but can also hold objects to prevent a person for leaving. MUST BE INTENTIONAL.

· Issues: Physical or metal issues: people do not like to be in small places, claustrophobia.

HYPO: Watch out about the telephone, modem, or means of communication… Very difficult to prove.


INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

It his to be pretty extreme in order to be Intentional Infliction of Emotional Distress. He can said, I am ugly. NO TRANSFER INTENT. To find.

· Defendant conduct has to be extreme and outrages: Really fucked up.
· Defendant Intended or new with substantial certainty that his act would cause severe emotion distress.

Sexual Harassment, racial or religious slurs, misuse of authority, repetition conduct (keep picking on the same kid) . Many states require physical sings of distress.

TRESPASS TO LAND

· Defendant intends or knows with substantial certainty
· That his act will result in a person or thing
· Entering plaintiff’s land: Entry might be in the land, above the land, or below the land.
· Without consent.

In English: intentional entering or causing someone or something entering the land of another without the other person’s consent.

A person might not be held liable for accidental entry unless there is negligence or actual harm done. The land owner: Renters have this right.

Damages:

· Nominal: if we sue for trespass and then court finds that there were not damages, they might still awards us like a dollar, or cents, this shows that we were correct on theory.
· Compensatory: if you cause damages, and you break something, I have to pay for it.
· Punitive: (number one reason to sue), with intentional torts you could do this. You do this to stop them from doing it again and to teach them a lesson.

Do not have to have a fence, or a no trespass sign. You have can privilege people to come in your land.
HYPO: Halloween: there is implied consent, if there lights are on, if they are on it means that they have candy.
Hypo: We are walking in front of grumpy land on the side walk, we know this annoys him. Is this trespass? No, public sidewalk. What if I do it intentionally, could probably argues intentional infliction of emotional distress, but it would be hard to prove. Say that I push you, and you fall down into his land, then get up and run away? Trespass? Yes, on me, the person that pushed…. Remember definition: That his act will result in a person or thing entering, the act is causing a person entering someone’s land. The trespass is on me and not on him because he did not have the intent.

Conversion and trespass to chattel are like Siamese twins, they are always discussed together.

TRESPASS TO CHATTEL

One who without consent or privilege
Intermeddles (interrupt your use a little with a chattel) (personal property)
Of another
Leads to damage or
The possessor being disposes for substantial period of time
Or even bodily harm to the possessor.

Damages need to be proven (per him)
I eat someone else Doritos. Different from Conversion: Trespass to Chattel is more temporary than Conversion. Do you want the Doritos back, not so this would be conversion.
Hypo, If you are listening to my headphones, and I take them off and put them on me, this would be trespass of chattel. I would be liable for damages.

If I take you property and I act like is mine, and interrupt with your enjoyment of it. That is trespass to chattel.
Something more permanent would be Conversion.

Trespass to Chattel v. Conversion. Trespass to chattel is more temporary, conversion is basically the same but it is longer or more permanent.

CONVERSION:

Intentional exercising
dominion or control
over chattel
in defiance of the owner rights
This is substantial interference with the goods of another.


If you destroy the property:
Damages:
I have to pay for your property to get fix, (if I damage it)
Loss of use, (rental value)
If destroy completely, then you pay fair market value.
Human body parts once taken out become very important for research (public policy argument)


Conversion and trespass to chattel are like Siamese twins, they are always discussed together.

DEFENSES AND PRIVILEGES TO INTENTIONAL TORTS.


SELF DEFENSE: if you are being attack you have the right to defend yourself. How far can you go for self defense. General rule: one may use:

Reasonable
Force, threat of force, or imprisonment
If there is a reasonable apparent need for self defense
And the force, threat of force, or imprisonment is reasonable
And responsive to the apparent threat.

So if it looks to you that you need to defend yourself, but you can only defense yourself in response of the threat you perceive. It must be proportional to what the threat is. Make a mistake? Must be reasonable to be justified (objective standard). Rule, when the threat is gone so is the privilege e.i some is breaking into you house and they are stealing your favorite stuff, can you kill them, say that he gets the stuff and starts running towards the door, you cannot shoot them? The threat is gone.
IN THE TEST Keep going, if it is too much to be self defense, and then argue battery and assault in the other party.

DEFENSE OF OTHERS: run to go help others, Make sure you call it defense of others. Rule

As long as you believe (subjective view)
That you have the right to defend that third party
You are entitled to the defense of others.

Also, other courts say that you are entitled to use this defense if the person you are defending would have had that defense. If some is trying to hit some and then you intervene, and say he is a cop. He would not have that defense so neither would you. Reasonable force still applies.

DEFENSE OF PROPERTY: as long as you are protecting property only, you cannot cause bodily harm. Personal or real property.
Cannot cause bodily harm
Cannot eject trespasser into dangerous situation (tropical storm)
Deadly force is never allowed unless it is raised to the level of self-defense. (lives are more important than property, public policy)

SELF HELP.

If some takes something from you, what can you do to get it back? Your privilege to use force (self help) you could toggle things.
If you are dispossess of property, either by force or by fraud and there is a fresh immediate pursue. (just took it),
you make reasonable demand for the return of you property and
There is reasonable peaceful force (very little force), then the privilege to use self help. (IF YOU CANNOT GET IT BACK PEACEFULLY, THEN YOU MUST CALL THE COPS)

SHOPKEEPER’S PRIVILEGE

They can detained you if they have a reasonable believe that the person took the goods
Without paying
And it is a reasonable detention (cannot put you in a three by four cell). They are privileged to detain you (they could be wrong and that is ok) they can detained you until the police comes. They cannot use force to hold you, they cannot use too much hurt.
In common law, the shop keeper has the burden of proof.

CONSENT

In sports, you only consent to the rules of the game. Not only professional sports.
Permission to interfere with otherwise legally protected means. (once consent is giving it relieves the defendant of whatever consequences whatever torts might be. CONSENT CAN BE REVOKE (taken away like in contracts). If consent is revoked, then privilege is over. I.E. day rape. Start kissing, then it gets hot and heavy and you want to go a little further, someone says no, you keep going, consent NO. (she revoked). IN A BAR, YOU ARE DRINKING, YOU HOOK UP AND YOU TO YOUR APARTMENT, OH YEAH I LIKE YOU, I LIKE YOU I WANT TO HAVE SEX, THEN THEY FALL ASLEEP. THEN YOU HELP YOURSELF. IF SHE IS DRUNK NO CONSENT, AND IF SHE IS SLEEPING NO CONSENT.
Consent could be viciated, which means it will not be valid if you get it by fraud, dressed, cohesions or statute (statutory rape, age, it does not matter if you did not know).
Lack of capacity, Drug, sleep, or unconscious.
There is implied consent by action.
You can inferred consent from silence and inaction.
You cannot consent to a crime (set up an insurance scam with your friend, they are coming to steal your stuff from your house, and they are going to take everything, (insurance will pay you back). You find out you are not cover by insurance. You go and sue him, he is going to say it was consent, well guess what, you cannot consent to a crime so you can sue for trespass to chattel conversion. There are different views on this.
Medical Consent: Needs to give consent before he does an operation, he should have to tell you all the pros and cons, having or not. What if he forgets to tell you all the stuff, you can sue him for lack of consent. What if he goes beyond the scope of what you consented, you can also sue him.

NECESSITY

There are two types:

Public: if it affects more people. (there was a jet full of 800 passengers right into the building, and it is going to hit the building) we can implode the building very much. (you do not pay for it or damages)
Private: less people more private. It is my little plane. (you are not liable for the tort, but must pay for the damages)

AUTHORITY OF LAW,

I cuff you, but I am a cop.
Cop needs to act within the scope of his authority. Need to show that he is arrested right. If you go above and beyond then looses the privilege.

DISCIPLINE

Spank kid that through cheese on the ground.
Must be reasonable under the circumstances.
Military

NEGLIGENCE
(OPPS) By mistake.

Not every mistake is negligence. Negligence means that you are acting unreasonably. Have a duty to act as a reasonable prudent person. if you do not, then you will be liable if you cause their damages

Definition: failure to use reasonable care for others by creating unnecessary risk.

Elements:

Duty. Duty to conform to certain conduct to protect people from unreasonable risk. Act a certain way. It is your job to do this. Hypo: to do you job, but over all your duty is to act as a reasonable prudent person. If there is not performance of duty, then that is a breach. if you breach a duty then you are negligent, bit still must prove 2 things. Casual relationship and damages. There many ways to have duty. (because every one does it does not mean you are acting reasonably.
i.e.: if you own land, people have a duty to come into their apartment; landlord has a duty to any person on the land or on the apartment. Duty to a child, duty neglect will take child away. Duty is to take reasonable care of the kid, this is a question for the jury.
∆ owes a duty to use reasonable care
∆ owes a duty to not to create unreasonable risk of harm.
To find duty, to whom is that duty owed to. What is the nature of that duty? What is it? I have duties to both of them.
Breach: Failure to conform to the standard of conduct that you duty says. What are those breaches. All of these are necessary. All of them need to be proven.
Causation: there must be some connection between the ∆ conduct and the ∏ injury or damages. Must cause some kind of damages. VERY DIFFICULT, A LOT OF THIS IS PUBLIC POLICY.
HYPO: Student calls for outline, needed copy of the outline. On the way he gets into an accident. Is that my fault. Let’s say I call student and I say that I need a ride home, can you pick me up? And then he gets in an accident. Who’s fault it is? If did not even had to be on the on road…. THIS IS NOT CAUSATION, it must be more connected than that.
Proximate cause:
Cause of fact:
But for test
Substantial factor (test)
Directly traceable
Forcibility
Superseding factors
Intervening factors.
Risk Utility test: Not worth to spend $1 to save $300
Damages: will not be discussed in this class. Malnutrition, damages.

Formulas to find negligence: this formulas are used to see if the person owes duties to another and or if there is been a breach. Looks at the first two elements, risk utility test, or a cost benefit analysis (very similar). It is bounce test between cost or risk vs utility or benefit.

U.S v. Carroll Towing by J. Learned Hand. Probability (P) of harm or incidence time (L) lost or injury if this is greater than the burden (b) of preventing the harm, then negligence. (P) x (L) > (B), then negligence. But (P) x (L) < (B) no negligence. Learned Hand formula. This is a risk utility analysis.
Risk is assess by multiplying the Probability of the harm (P) time the (S) severity of the harm against the Usefulness. Hypo: making a knife.
Person held liable for only foreseeable circumstances.

Restatement Second of Torts (1965) § 291. Unreasonableness: How determined; Magnitude of risk and utility of conduct. Where the (B)> P or injury. Or R > Usefulness = negligence.

§ 292: factors considered in determining utility of actor’s conduct. Usefulness: 1. look at social value which the law attaches to the interest which is to be advanced or protected by the conduct. 2. The extent of the change that this interest will be advanced or protected by the particular course. 3. The extent of the chance that such interest can be adequately advance or protected by another and less dangerous course of conduct.

STANDARD OF CARE (VERY IMPORTANT 2ND)
What we expect from everyone in our society. Reasonably prudent person. Violation of statutes sometimes shows violation of duty. There are different degree of care and different degrees of intent. Remember that substantial certainty is a very high degree of conduct. It is so high that we are going to call it an intentional tort. Sometimes, there are things by accident, that is just negligence. There are however couple of areas on the middle:

There is also strict liability also but this is a torts II issue.

DISABILITIES

People with disabilities are held to a reasonable prudent person standard in the same circumstances.

Roberts v State of Louisiana By Laborde Blind man case Blind man hit other person walking without walking stick in a building. Rule: A person, although blind, must take precautions, be they more or less, which the ordinary reasonable man would take if he were blind.
Children: standard of care are comparable to other children of the same age, maturity and experience. But if there are doing some adult activity, then they re to be held adult standard.

Robinson v Lindsay by Utter Child driving snowmobile, pulling Π another child injuring him. Rule: When a child engages in an inherently dangerous activity, as in the operation of a powerful motorized vehicle, the child should be held to the adult standard of care. Be wary of the subjective standard. Particular attributes.

Insanity: If a person is insane, they are held to the same standard of care as adults. Reasons (Public Policy)
This makes sure that whoever is supposed to be taking care of them do.
Unless, it is a sudden onset of insanity (no reason to know).
Breunig v American Family Ins. Co. by Hallows P. 165 Woman driving hits Π vehicle when she thinks God is driving her vehicle and that her vehicle could fly. Rule: Sudden mental incapacity equivalent in its effect to such physical causes as a sudden heart attack, epileptic seizure, stroke, or fainting should be treated alike and not under a general rule of insanity (INSANITY IS NOT A DEFENSE). She did not know follow down on this categories, she persisted to driving knowing, and she did not have any of this category here to be able to justify this, it did no meet standard of care. Sudden mental incapacity equivalent is a defense. THIS IS A MINORITY OPINION.

Professionals (Doctors, lawyers, medical doctors). Higher standard for their trade.
Malpractice: Bad practice. ∏ has to prove that the doctor screwed up. Needs to show how a reasonable prudent doctor would do it. Do that by expert testimony, or by treatises (how to book). National wide standard: reason is that every one have pretty much same technology. Straight locality, same community. Similar community standard (comparison with similar communities), and National Standard. Specialist get certified national wide.
Consent: can also be an issue of negligence. This happens when the doctor is unreasonable in thinking that he has consent. Then he is negligent. Apply test that if a reasonable doctor would think that there was consent.
Customary with doctors to disclose all important information or material information.
Reasonable patient standard. Would a reasonable patient have had this surgery if he/she knew of all consequences?
Another view, subjective view of the specific patient. Would this patient go under surgery knowing all the risks.
Patient must be informed prior consenting.
Scott v. Bradford by Doolin p. 185 Π goes to doctor ∆ and he is showing that there tumors in her utters. She signed a routine consent to surgery form prior to the hysterectomy. Afterward she was experiencing problems with incontinence [lack of self control], and she visited another doctor. She was found to have a condition which allowed urine to leak from her bladder into her vagina. She underwent three additional surgeries to correct her problem.

The duty to disclose is the first element. Then proof that patient would have chosen no treatment or a different course of treatment had the alternatives and risks been made known, thus establishing a causation. If the patient would have elected to proceed the element of causation is missing, and so to negligence. A causal connection between the patient’s injury and the doctor’s breach of a duty to disclose exists only when the disclosure of material risks would have resulted in a decision against it. The final element is that of an injury. The risk must have actually materialized, AND pl must have been injured as a result of submitting to the treatment.

Exception to the Duty to disclose: There is no need to disclose risks that either ought to be known by everyone or are already known to the patient (common knowledge); or if the disclosure would alarm an emotionally upset patient; or where there is an emergency and the patient is in no condition to determine for himself whether the treatment should be administered.

Doctrine of Inferred Consent: Material risk is what must be looked at. How does a patience know how far? What about the consent form, do not this give enough consent?

o diagnosis
o the general nature of the procedure
o What are the risk involve
o What is the risk of non treatment
o what are your prospects of success
o Alternatives that is available.

o There are elements in malpractice action in the questions of informed consent:
o This is more of a minority position. Most jurisdictions look at an objective standard.

o Defendant physician failed to inform him adequately of a mater of a material risk before securing his consent to the proposed treatment.
o If he had been informed of the risks he would not have consented to the treatment
o The adverse consequences that were not made know did in fact occur and he was injured as a result of submitting to the treatment.


Clergy Malpractice, Rabbi, Marital counsel: Runs out with the wife. Confess his sin and then the guy kills himself. It was bad counseling. Courts said that with the spiritual make up is something that they would not mess with. You held yourself to be a professional.

Teacher: Awarding of a diploma who could not read or write. He just played basketball.

Violating Statutes sometimes shows breach of duty.

Res ipsa loquitor: Sometimes we do not know what happened, but we can inferred that someone was negligent. HYPO: went to the doctor for surgery, and when it was done it was discovered that I had an sponge inside of me, I cannot say for sure what happened or who did it, but it must off been them.

THERE ARE DIFFERENT DEGREES OF INTENT.
Intentional tort, negligence, and there are couple of areas on the middle. It is not always straight forward. But in torts I it is just intentional torts and negligence.

STATUTES
Automobile guest statutes: driving around, but you cannot sue driver for just plain old negligence. He must be at least driving reckless before a law sue. Most of those statutes are pretty much gone. One way of proving duty and breach is by having a statue.

Just because there is a statute does not mean that applies. Rules of law.

Standard of care may be specified by statute. Some times legislative statues tells people how to act. Jury say how you should be acting. If there is a statue passes and it is on point of what to do, and if there is not that conduct then there is a breach if the statute applies to the situation. i.e.:

Osborne v. McMasters by Mitchell: Pl Osborne administrator of the PL estate, sought a negligence claim against Df. Df’s clerk sold, without a label, poison to the Pl, who ingested the poison unknowingly. Rule: Where a statute or ordinance imposes upon any person a specific duty for the protection of others, if he neglects to perform that duty he is liable to those for whose protection or benefit it was imposed for any injury, when caused proximately. (THE TEST) IT REALLY MEANS THIS:

There is a two part test to apply:
Is this person (∏) a member of the class intended to be protected. ∏ sues ∆. If plaintiff is intent to be protected and the harm was the legislature was intended to protect. Then this is negligence.
Was the harm intended to be protected.
Both elements must be present to be able to use the statutes to find negligence. If the statute does not apply, go on a discuss other way to find negligence. If the statute does apply then depending on the jurisdiction:
v Negligence per se.
v Rebuttable Presumption : There are defenses.
v Evidence: can dismiss all together or can admit, can be rebutted.

Stachnieweixz v. Mar-cam Corp by Holman. Statute that prohibits sell or serve alcohol to people that are visible intoxicated. A fight started and sue was brought using statute as standard of care. Court did not adopt the statue because it was too ambiguous (visible intoxicated). They adopted regulation that was much more on point.

Majority of jurisdictions: once a statute that applies is breached, then there is negligence pre se (still needs to prove causation and damages).
Minority of jurisdictions: they presume negligence, but ∆ can still rebut it. Some other just allow this as some evidence of some violation.

Reasons to violate statutes (defenses): if there is incapacity (lack mental capacity to follow the statute), hypo: sign says do not walk, but you cannot see or cannot read, there might still negligence but there are defenses.
o Actor neither knew nor should have known about the statute.
o It is impossible to comply
o Or emergency
o Or complying creates a greater risk than not complying.
o Zeni v. Anderson by Williams. Lady having to walk on the icy road because there was a lot of snow 21 inches on the sidewalk. Lady violated the statue but it was excused due to in those circumstances walking on the street was safer than walking on the sidewalk.

Prove of negligence and circumstantial evidence.

Direct evidence: Someone saw something, or hear something.
Circumstantial evidence: inferences that can show who or what happened. Res Ipsa Loquitor is the figure that allows for this.

Res Ipsa Loquitor: The things speak for itself. Mean this thing usually does not really happens without someone’s negligence. We can inferred negligence if
It is the type of event that would not have occurred without negligence.
All other possible causes must be eliminated, including plaintiffs fault.
Negligence must have been within ∆ exclusive control.
HYPO: I am watching a baseball game, and then I get hit by a baseball game, and there is only bat that has that print on the forehead, and only three people have been using the same bat. Best thing to do is sue the entire team. (it must have been within the teams control, or “the hospital” when malpractice apply).
The way around it is to pick a different ∆.
Remember that exclusive control is not just limited to physical control, but right to be there, who’s right to be there, and control at the time of the accident and control of the negligence. For example: Bryne v. Boadle if a barrel of flower falls out of a window, eliminate all other factors, (my head hurts because of the barrel, it did not hurt before) we then must prove that some one else had exclusive control of the barrel. We have to prove who’s barrel is that, if it is one community barrel, then go after the apartment complex.
Larson v. St Francis Hotel by Bray. Chair flies out of window of the hotel, and then hits some one. Larson sues the hotel. The doctrine of Res Ipsa Loquitor did not apply because the owner of the hotel did not exclusive control of the chair.
Ybarra v. Spangard. Operating room. Many doctors and nurses negligently. Prior to the operation he never had any pain in his arm or shoulder, but when he awoke he felt a sharp pain in his neck near the shoulder. Failed the second part, there was no exclusive possession.

Professor is looking for this does not ordinarily happens of the absent of negligence, and the ∆ was in exclusive control of the instrument involve on the harm.
If Res Ipsa is proven then sometimes this is an inference of negligence and it is a question up to the jury. Or this is presumption of negligence (∆ sill has to defend if not he loses). Classic example is the explosion of the coca-cola bottle: buy one coke from cooley and when opening it shoots on the eye and damages the eye. Can you sue Cooley? Can you use Res Ipsa? No Res Ipsa, there was way to many other possibilities that would have created this. Some states do not allow to use Res Ispsa Loquitor if there is multiple ∆. In the states that do allow Res Ipsa Loquitor for multiple ∆ allows for different ∆ to tell on each other.
Use Res Ipsa Loquitor: when you know what the hell happened, but it can eliminate all other options.
CIRCUMSTANTIAL EVIDENCE.

Risk Utility test:
How probable is the harm
How bad is the harm (severity)
How useful is ∆ conduct
What is the burden for the ∆ to protect against the harm.
Remember that custom is allowed as evidence, but just because of doing things that other people are doing does not this is not negligent.

CAUSATION
Causation is very difficult because there is a lot of public policy involved and a lot of it is done by judges.
Causation gets broken down into two different forms: Hypo: I say I want to borrow your car so I can buy liquor, I get there guy thinks I am 21. I get loaded to die. Some people would argue that you were a caused, and then another view would say no. This would be the dispute between Justice Andrew (held you liable for almost anything that happens) v. Cardozo (should only be responsible for things that are foreseeable).
Cause in fact: before we can show that someone is responsible, we must show that you acted negligently, and at least contributed to the injuries. You are involved on this and you are going to be liable. (Related somehow). (if they are not, then they are of the hook) if they are indeed the cause in fact, then must look at see how much should we held them liable for. Are the two things connected. ∆ breach and ∏ harm. Must show that the person being sue is responsible for something, the cause in fact. Test for this: BUT FOR (if I did not), test. But for ∆ negligence, would ∏ be hurt. THIS MEANS THAT ∆ IS THE CAUSE IN FACT.
But for test: but for some one not shoveling the stairs, the accident would not happened. 1 cause
When there are concurrent causes (some times 2 ∆ causes do not apply). If there are two concurrent causes (at the same time) but for DOES NOT WORK. Then the substantial factor is the test to uses. Note it is concurrent, if there are different causes at different times, then we can use but for. i.e.: Student walking to tutoring, there is an intersection. People hit same person at the same time, a sandwich (this is concurrent). Need to use substantial factor, both where liable, can hold them both.
Substantial factor test: if you were looking somewhere, not paying attention, the substantial factor still is not cleaning the stairs. They are cause in fact. More than 1 cause.
In negligence must be proven by the preponderance of evidence. Some jurisdictions however allow to recover for: LAST CHANCE: I have a dog that is in a dog chance, first prize is 10,000. three spots left, only one spot for money. There is one more competition. Bad handler kills dog before competition. Can I recover for the money I could have win in the competition? The odds where 1/3 (1 in three), some jurisdictions would say no, some others would say only a third. Or something like this, someone has cancer, they are going quimotheraphy, someone hits them in car accident and kills them. We want to sue him for damages. You took away his chance of recovery, must show what are his odds.
Market share liability: Lawsue on cigarettes one person smoke, how much every tobacco company should pay. We can use Market Share liability. National Market Share.

Joint and several liability (alternate liability): When we do not know who the ∆ are, or two ∆ act in concert. In this situation all possible ∆ are held liable and the burden shifts to them to prove who caused the harm and who did not. This only applies to negligence and not intentional torts.

Joint liability: suing different parties for their share of injuries.


Me and Dear hunter go hunting and we use the exact same gun and same ammunition, we both are going to shoot something. We then hit this guy, one of the bullets hit him on the ass, the other shoots him on the eye. In a perfect world we would know. But we do not know, in this situation we have an indivisible injury. They get to sue each ∆ for the ass shot and they eye shot and they would prove which of the shots is theirs. I can sue $1,001,000.00. to one person. They can bring each other to pay.

Proximate Cause: or legal cause. Main issues behind legal or proximate cause is where to draw the line of liability, it is a decision based on factual, legal, and theorical issues where causation in fact looks only at the facts, proximate case look at facts, statues, public policy and the judge resolves this. how liable, how much.. Looks at foreseability, at intervening factors. Could have couple of people. Crash into the car. Where do we draw the line? General rule: person will not be liable for damages that are not foreseeable unless the ∏ is
Eggshell ∏: plaintiff gets hurt more than other ∏ would have, we are still responsible for all his damages, unless there is something else that happened that was no foreseeable. Remember that intervening superseding act would take away from ∏.
Intervening causes: Must look at the very first thing ∆ do wrong (first duty breached) and the end result (the injury or the death) and look at everything on the middle. That is an intervening cause. The question is whether an intervening acts enough to take someone of the hook?
Alcohol: it is an intervening act, but the question is whether or not it will be a superseding act. General rule: Social guest are not responsible for their guest conduct. Giving alcohol to a visible intoxicated person. Same with employers for visible intoxicated employees. If one person gives car keys or gun to a drunk, person might be liable. Alcohol is not always a superseding factor.
Rescues: rescues are foreseeable, or at least reasonable rescues are foreseeable. Because of public policy reasons. As your house is burning due to my negligence and the next door neighbor has 2 kids, and some one goes in there to rescue to save the kids. I would be responsible if it is a reasonable rescue.
Suicide: is it foreseeable. Same general sure. if it is not then it is superseding.
Social host rule
Review of what was covered
Intervening Superseding If the intervening act is so unforeseeable that we can cut someone’s liability (like an act of God usually, intentional acts, crimes).
Race Judicata: Cannot sue same person twice for the same reason (double jeopardy for tort law).

Landmark Cases:

Palsgraf v. Long Island R.R. Co. by Cardozo. Dissenting by Andrews: Facts: rail road station, running to get in the train. Rail road employees are helping this guy get in the train, they are pushing into the train. Mrs. Palsgraf was standing on a platform, she bought a ticket from the rail road, when 2 man ran to catch the train from the platform, first man jumps aboard, second man was carrying a package and was held by the guard onto the train that kept the door open so they these two man could jump aboard. In the process of boarding on this manner, the package the man was carrying fell and exploded. The shock from that explosion tip a set of scales at the other end of the platform and they fell on ∏ Mrs. Palsgraf and she sue the rail road. Cardozo: Let’s look at the foreseability of the injury, and the person that they got hurt in foreseeable way, meaning the guy being pushed, who is going foreseeable to get hurt: the guy that was hurt. The person that got hurt is the lady on the other side, she was not foreseeable. Manner, if you are pushing this guy into the train, the question is what manner is foreseeable for this guy to get hurt, maybe falls, or maybe falls completely and the train goes over him, the scales falling on the lady are not foreseeable. The Cardozo view (majority in this case) says that you are only responsible for your actins if they are foreseeable. Not liable. Andrews: however disagree in the dissent, he uses the direct traceable view (let’s look backwards). Why did this lady got hurt? Because the rail road employees were pushing this guys into the train. If they were not doing that then he would not dropped his package, and would not exploded, the scale would no fall over and this lady would not get hurt so yeah, they are liable. ∆ is not liable when the harm falls out side the scope of the risk.

In a nutshell:
Cardozo: We are responsible for anything that is a result of the proximate cause of negligence that is foreseeable.
Andrews: If negligence caused end result, then you are responsible, foreseeable or not. Direct caused:
Direct caused: does not matter if a particular harm that results was foreseeable as long as some harm was foreseeable and there is a traceable connection between ∆ negligence and the actual harm.


Majority approach on foreseeability and duty: to be negligent you must have all three: General rule that someone else negligence is foreseeable.

Foreseeable harm (how bad)
Foreseeable ∏ (who)
Foreseeable manner (how is he going to get hurt)


Polemis Case facts: on ship building on the ship. Drop cargo there. Some harm is foreseeable if we drop a plant. There is some harm is foreseeable. Once the plank is dropped it hits a power source and the whole ship blows up. This was foreseeable. Andrews: as long as some harm is foreseeable, you will be responsible for all the harm, in this case they would buy the entire thing. Cardozo: Majority (foreseeable) was the harm that occurred within the risk that made the defendant conduct negligent.

Wagon Mount No 1 and No. 2 By Lord Reid. ∆ is not liable when the harm falls out side the scope of the risk.

Difficult part is where to draw the line of proximate cause.

Negligence is foreseeable, intentional torts are not.

NEGLIGENCE, DUTIES, OWNERS, OCCUPATION OF LAND

A person does not owe duty to another person to prevent infliction of emotional distress. Negligent Intentional Emotional Distress:

Impact rule: before ∏ can recover from negligent infliction of emotional distress, there must be an impact, frighten shock, and harm from the fright or the shock. Hypo: Walking down the road and someone runs light and car hits me, I got scare because I saw you not paying attention and I saw you coming towards me before you hit me. Under this jurisdiction I have to recover. There is a physical manifestation of the emotional distress, must prove that to be able to recover for negligent infliction of emotional distress. There must be an impact of some type.
Dangerous Zone rule: different jurisdiction say that the plaintiff does not have to be hit, but there must be a near miss to recover for negligent infliction of emotional distress. HYPO: hits the person I was walking with, you must have been within the zone of danger (near missed) and must have fright or shock and some physical harm from the fright or shock. Physical harm can be vomiting, sleepiness, gray hair… Up to the jury to decide if there emotional distress.
Physique Zone rule: other jurisdiction have this. Thing v. La Chusa by Eagleson. Children hit by a car while watching. A ∏ must have:
Close relationship with the victim: Close relationship is husband—wife, parent—child. Not brother—sister. Not boyfriend—girlfriend. (In wrongful death, liable to his family after killing me, must pay wife and son for the quality of relationship, this is by statute and they define family: not brothers, spouses and children parent relationship).
Close physical proximity: must be there.
And absorb the injury to the victim.

FAILURE TO ACT: no duty to act (to save anyone) unless:
You contribute to their peril. (trip them into the water)
Duty to not make matters worse. If some is drowning, cannot pull them by broken arm, could sill be liable for that. (there a good Samaritan statutes)
There are two ways to assume a duty:
Once you start to help, you have a legal duty to see it finish. (reasonable, burning house, go in to save 2 kids, save one, and come out, does not have to come back in, it would not be reasonable).
Special relationship: Parent – child. Doctor—patient. Government DOES NOT HAVE THE DUTY TO RESCUE. Once they under take the duty, saying the phone they are coming then they are bound. Professionals do not have duty to save (torts ways).
Hit and Run statutes: Some statutes require than in an accident, drivers get out and give aid to others, taking off you are automatically negligent, Negligence per se.
Duty to protect others: general rule is that you do not have a duty to protect third people. But you might have duty to intervene if the risk is known. I want to kill my girlfriend therapist, the therapist did not warn girlfriend. Kill girlfriend. He was liable because he should of known the risk.
Negligent Entrustment: give someone a gun, or lending out your car. Negligence on the person given must be proven. If I know that you are the worst driver and I give you my car to drive.
Duty to unborn child: Common—law said that you had to have unborn in order to have duty to it. States are changing on that matter. Viability is going down.
Wrongful life: Child’s claim that he was born when he was not supposed to. Hypo, lady gets tube’s tide and gets pregnant. Courts do not mess with that.
Wrongful Birth: (Parents cause of action) Mother has another kid after having the tubes tide. This is still allowed in many states.
Privity of contract: Who can we sue for remedies, the person of the contract with.

OWNER OF LAND DUTIES TO PEOPLE

There are duties on owners and occupies of land, it gives you another duty. If you own land, or rented, live there. You have duty to people that come into the land, the duty depends on the person that comes into the land. There are three classes: Owner of land: (reasonable owner standard). Reasonable care under the circumstances. Common law categories:

o Licensees: People whose presence is permitted or tolerated. Person on the land, as a social guest, door to door salesman. if they come to the land for their own purpose rather than me purpose. Take premises as you find it. Basically duty to warn him if the danger is not obvious.
o Invitees: They come to your land for your benefit. Renting for business purposes (very high duty). (Pizza delivery), newspaper boy, mailman. Landowner has no duty to inspect for danger or to warn for obvious dangers. Must inspect for hidden dangers, Warn, Inspect, Make safe, and protect them. WIMP. Highest duty. Firefighter (this is public policy) and worker compensation same with policy.
o Trespassers (general rule: no duty). A landlord has no duty to protect outside the premises. But if a landlord knows that something is defective will be held liable.
o Trespassers: Someone with no privilege or permission who enters land or uses land in unauthorized manner. General rule: owner has little or almost no duty to trespassers unless we know there is a trespasser. HYPO: foot steps everywhere, you know that there is people walking around the land. That is a know trespasser. On the snow. If there is knowledge that there is a trespasser.
§ Known trespassers: Little or no duty. Must warn about danger (same as licensee).
§ Unknown trespassers: No duty
o Rule: Cannot injured trespasser willfully, ordinary care, and must try to avoid injury by active operation. HYPO: in a crush junk yard, you know there are trespassers that sleep on the cars. Know you must check the cars before crushing them. Known trespasser.
o Landlord has a duty if he knows the risk and the likelihood of trespass. If you know, you have a duty to warn them, if you do not… no duty. Yard of be aware of dog. Hypo: my house and front yard.
o When can you sue your landlord: did the landlord use reasonable care under the circumstances (knew or should off know).
o Landlord liable to tenants and their guest: No unless:
§ He contracted to repair something and was not fixed
§ He knew of defect but concealed. (hide it)
§ Property is used for public use
§ He retains control like the common area
§ He repairs but repairs negligently.
o Children: they are treated differently:
o Children trespasser: Must warn them of known dangers.
o Attractive Nuisance: Artificial conditions (man made) that are highly dangerous condition (swimming pool) higher duty to children. In some jurisdiction is strict liability. Something that will attract children and will not realize or appreciate the danger. Duty is higher.
o Modern trend is to abolish these categories and then use reasonable prudent person standard.

DEFENSES TO NEGLIGENCE

o 3 defenses but there are different jurisdiction.

First defense is contributory negligence.

o Contributory negligence: if the ∏ does not exercise due care for himself (if ∏ is negligent also) he gets nothing, and the ∏ negligence is the cause in fact and proximate cause of the accident. HYPO: car accident, you look down to the stereo system when someone else came and hit you. South Dakota. Slight negligence bars recover. (all or nothing). There is the last clear change…. It is an exception:
o Last clear chance: if ∆ had the last clear chance to avoid harm, even if ∏ was partially negligent, and does not act on that last clear chance then ∆ is responsible.
o Comparative negligence:
o Pure Comparative: Every one can recover from every body else. Reduce own injuries by their own injury. 99% go 1%. I can get 1%.
o Modified Comparative: Every one cannot sue every one. Liability does not have to be not as great as the person that you are suing. Also, not greater than. (same level of fault of you). Read the language given. Two from. Not as great as and not greater than.

o Assumption of the Risk: Almost like consent (defense only for intentional tort).
o Express assumption of risk: State orally or in writing, you sign a waiver. Parties may agree that there shall not be obligation to take precaution so no liability for negligence, if when they agree to this it is free and open bargaining. Can be oral or writing but it is a complete bar to recovery if the harm that occurs is part of the agreement. There must be a voluntary choice. Must also know the specific risk. What actually happened is what you actually did. Also discuss public policy.
§ Exception: intentional torts.
§ Common Carriers: restaurants, schools, they can really get of the hook really easy.
o Implied assumption of risk: Actions, we can tell by actions. Sees sign when parking. Conduct which is brought up by ∆ to show that ∏ assumed the risk. General rule: A ∆ will not be held liable if ∆ negligence created the risk but ∏ knew of the specific risk and voluntarily assumed the risk. This means, must appreciate or knew of the risk and assumed it. There must be a voluntary choice. Must also know the specific risk.