Torts Final Deck

Question 1

Teach all parts of: Intent

Answer 1

Intent
Every intentional tort involves a “volitional act” done with “intent”
Volitional = act done under defenfends control
Intent = get tricky

Intent options:

1) substantial certainty:
when a person doesn’t have desire/purpose to bring outcome, but knows that the SUBSTANTIAL CERTAINTY outcome will occur
substantial certainty = same thing as intent

2) transferred intent:
you can transfer from victim to victim, or tort to tort.

Restatement Third § 1
A person acts with the intent to produce a consequence if:
The person acts with the purpose of producing that consequence; or (“purpose intent”)
The person actas knowing that the consequence is substantially certain to result (“Knowledge intent”)

Restatement Third § 102

Intent required for battery = intent to cause a contact with the person of another - the actor need not intend to cause harm or offense to the other

Transferred Intent = if D desires to produce any consequence forbidden by law with respect oto any person (or if he knows any such consequences is virtually certain to occur) the law says he has acted intentionally even if a different consequence occurs or different person is affected

Subsequent liability:
Generally, you can be liable for medical malpractice or subsequent injuries that would not have occurred but fo ryour putting the plaintiff in peril or causing injury
If its something entirely unforeseeable, ou can argue point on causation
General rule however is that liability will reach the originally responsible party
Ex - you injure someone in battery and then when getting treated there’s medical malpractice you’re liable for the malpractice as well

Question 2

Teach all parts of: Battery

Answer 2

Elements of Battery

Battery:
Need intent to:

Harmful or offensive contact
Substitute “unpermitted” for the word “offensive” and that is all you need
A plaintiff’s hypersensitivities are NOT to be taken into account, unless defendant know about them in advance
with plaintiff’s person
Need contact with the plaintiff’s person, but does NOT mean actual body. Anything physically CONNECTED to plaintiff’s person counts. (purse/anything in their hands etc)

Restatement second §13
An actor is subject to liability to another for battery if
He acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and
A harmful contact with person of the other directly or indirectly results

Plaintiff’s body = anything anything plaintiff is holding or touching aka snatching a purse is also battery

Vosburg - kid kicking case
Doughtery v. Stepp

Battery: Offensive Contact

Rest 2d § 19
An actor is subject to another for battery if
He acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and
An offensive contact with the person of the other directly or indirectly results

An act which is not done with the intension sateed in subsection (1,a) does nto make the actor liable to the other for a mere offensive contact with the other’s person although the act involves an unreasonable risk of inflicting it and, therefore, would be negligent or reckless if the risk threatened bodily harm

So it’s like contact that’s not necessarily harming them but there’s contact that’s offensive like throwing your glove at them like in teh olden days or like spitting on someone

Question 3

Teach all parts of: Assault

Answer 3

Assault

Need intent, and an:
Apprehension
Needs to be reasonable

Do not confuse apprehension with fear or intimidation
You don’t need to be scared for it to still be considered assault. You just need to reasonably apprehend the contact.

Ex: hulk wins assault against weakling
of an immediate contact
Needs immediacy-- if punches are going to people 50 ft away, it’s not immediacy. 
Words alone are almost NEVER immediacy,
 needs WORDS + conduct to have immediacy

Rest 2d § 21

An actor is subject to liability to another for assault if
He acts INTENDING to cause a harmful or offensive contact with the person of the other or a third person, or an IMMINENT APPREHENSION of such a contact, adn
The other is thereby put in such imminent apprehension

Imminence - not every threatened battery is an assault - it has to be about to happen right now

Aka Words alone aren’t enough - there has to be some kind of physical conduct or gesture too that add to the imminence

Assault vs Battery

Battery is about integrity of the body
Assault is about peace of mind - narrow tort - protects you from one very specific narrowly defined invasion of mental tranquility

What constitutes apprehension

Rest 2d § 24
In order that the other may be put in the apprehension necessary to make the actor liable for an assault, the other must believe that hte act may result in imminent ocntact unless prevented from so resulting be the other’s self-defenseive action or by his flight or by the intervention fo some outside force

Apprehenson is not so much fear but rather a fancy word for knowledge/awareness

Words: As per Rest 2d, “words do not make the actor liable for assault unless together with other acts or circumstances they put the other in reasonable apprehension of an imminent harmful or offensive contact with his person”

Question 4

Teach all parts of: False Imprisonment

Answer 4

False Imprisonment

Need intent, and:

1) Sufficient act of restraint  Do not need actual force, a threat to use force is sufficient In some cases inaction can be enough to restrain someone… if there was an understanding the defendant was going to act for plaintiff’s benefit but then does not Generally plaintiff needs to be aware of the confinement at the time it happens Length of time confined is irrelevant
2) to a bounded area Bounded area = freedom is restricted Inconvenience is not bounded  reasonable means of escape makes area not bounded

Rest 2d § 35
An actor is subject to liability to another for false imprisonment if
He acts intending to confine the other or a third person within boundaries fixed by the actor, and
His act directly or indirectly results in such a confinement of the other, and
The other is conscious of the confinement or is harmed by it

An act which is not done with the intention sated in subsection (1,a) does nto make the actor liable to the other for a merely transitory or otherwise harmless confinement, although the act involves an unreasonable risk of imposing it and therefore would be negligent or reckless if hte risk threatened bodily harm

Restraint can be ap physical act like locking someone in a room but also:
it can also be like by taking the P’s property like keys/money or something that would make the P remain in the area to get the item back

It can also be a threat - like if you leave something bad will happen (the treat must be plausible/realistic)
If D had pre-existing obligation to help plaintiff move, failing to fulfill that obligation can also be restraint

Because it must be in a “bounded area” - a simple interference with someone’s free movement is not false imprisonment

BUT if there is a way out and the way out is dangerous/humiliating/impractical, it is enough to be considered a bounded area

Confinement
Rest 2d § 36
To maek the actor liable for false imprisonment, the other’s confinement within the boundaries fixed by the actor must be complete

The confinement is complete although there is a reasonable means of escape, unless the othe rknows of it
The actor does nto become liable for false imprisonment by intentionally preventing another from going in a particular direction in which he has a right or privlege to go

Knowledge of Confinement

Rest 2d § 42
Under the rule stated in § 35, there is no liability for intentionally confining another unless the person physically restrained knows of the confinement or is harmed by it

Ex. you were locked in a room when asleep and room was unlocked before you woke up and you never tried to leave the room/didn’t know it was ever locked you can’t complain/recover

Question 5

Teach all parts of: IIED

Answer 5

Intentional Infliction of Emotional Distress

Need intent, and:

Outrageous conduct
Must be extreme
3 Ways something normal can become extreme?
Continuous mean conduct, day after day etc
Type of plaintiff (happens to child/elderly/pregnant women)
Type of defendant (common carriers and innkeepers)
Damages (emotional)
You don’t need to show physical, but you DO need to show severe emotional harm

Unique ways you can also prove intent for IIED:
If Plaintiff can show recklessness on part of Defendent
Transferred intent NOT available for IIED.

Rest 2d § 46
Outrageous conduct causing severe emotional distress
One who by extreme and outrageous conduct intentionally or RECKLESSLY causes severe emotional distress to antoerh is subject to liability for such emotional distress, and if bodily harm to the other results form it, for such bodily harm
Where such conduct is directed at a third person, the actor is subject to liability if he intentionally ore recklessly causes severe emotional distress
To am ember of such person’s immediate family who is present at the time, whether or not such distress results in bodily harm, or
To any other person who is present at the time, if such distress results in bodily harm

“Outrageous”

Liability has been found only where the conduct has been so outrageous in character, adn so extreme in degree, as to go beyond all possible bounds of decency, adn to be regarded as atrocious, and utterly intolerable in a civilized community

Patterns of conduct that tend to be more “outrageous”
Whether D’s conduct was continuous/ongoing
Abuse of authority

Targeting an emotionally vulnerable plaintiff or conduct designed to exploit the plaintiff’s particular sensitivities
Conduct directed at one person that distresses someone else (bearing witness to outrageous ocnduct toward someone else)

Shift from physical injury - at least 37 states adopted restatement directly while others ahve their own rules but no longer require physical injury:

The key elements:
intentional/reckless conduct
Conduct that is extreme & outrageous
Causation of the injury
Injury is the severe emotional distress to another

Third party
Must be present
Plus factor
A family member or like relate

Unlike other intentional torts, a D can be liable for IIED even if they didn’t act intnentionally so long as P can show that D was reckless

Question 6

Teach all parts of: Trespass to land

Answer 6

Trespass

Need intent and:

Act of physician invasion
No requirement that the defendant knows they crossed a property line! ONLY need to be aware your feet walked
Any physical invasion will suffice
You can also throw something onto land and that counts
Intangible lights/sounds do not count those would be a nuisance tort)
Land
“Land” includes air space above and below! As long at a distance that a “landowner could make reasonable use of the space”
Thus high airplane in air is NOT considered

Trespass to land

Rest 2d § 158
One is subject to liaabilty to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of ht eohter, if he intentionally
Enters land in the possession of hte other, or causes a thing or a third person to do so, or
Remains on the land, or
Fails to remove from the land a thing which he is under a duty to remove

So basically trespass can either be you going on the property or throwing/putting some tangible object onto the property (can’t be intangible like loud noise)

Question 7

Teach all parts of: Personal Property Torts

Answer 7

Violating Interests in Personal Property

Trespass to Chattels/Conversion:
Need intent, and:

Act of invasion
To personal property

To distinguish between these two torts:
if you see some damage to property, then it’s trespass
is you see a WHOLE LOT of damage/destruction then it’s conversion
Damages for conversion are not just physical damages but also serious interference of possessory rights
Ex: (holding purse hostage, even if no damage to the purse

Personal property = everything but real estate

Ways of committing Trespass to chattel
Rest 2d § 217
A trespass to a chattel may be committed by intentionally
Dispossessing another of the chattel, or
Using or intermeddlign with a chattel in the possession of another

Liability to person in possession
Rest 2d § 218
One who commits a trespass to a chattel is subject to liability to the possessor of hte chattel, if but only if,
He dispossess the other of hte chattel, or
The chattel is impaired as to its condition, quality, or value, or
The possessor is deprived of the use of hte chattel for a substantial time, or
Bodily harm is caused to the possessor, or harm is caused to some person or thign in which the possesso r has a legally protected interest

Intermeddling = involving a physical contact with the chattel
Courts recognize liability where chattel is impaired as to its condition, quality, or value or if “harm is caused to something in which the possessor has a legally protected interest”

Conversion
It’s the wrongful intentional interference with the possession of someone’s personal property
Rest 2d § 222A
Conversion is an intentional exercise of dominion or control over a chattel whic so seriously interferes with the right fo another to control it that the actor may justly be required to pay the other the full value of the chattel
In determining the serious of the interference and hte justice of requrieing the actor to pay the full value, the following factors are important:
The extent and duration fo the actor’s exercise of dominion or control;
The actor’s intent to assert a right in fact inconsistent with the other’s right of control;
The actor’s good faith;
The extent and duration fo the resulting interference with the other’s right of control;
The harm done ot the chattel;
Teh inconvenience and expense caused to the other

Under common law, innocent purchaser from a converter is also liable for conversion
Trepass to Chattel vs Conversion
TtC is far less severe
Ex - someone takes pen home overnight adn gives it back the next day or pulls a button of your jaket
Conversion is when degree of interferencei s signficiatn
Someone stole car or destroyed laptop

Question 8

Explain: Recklessness

Answer 8

Recklessness

Restat 3d § 2
A person acts recklessly in engaging in conduct if:
The person knows of the risk of harm created by the conduct or knows facts that make the risk obvious to another in the person’s situation, and
The precaution that would eliminate or reduce the risk involves burdens that are so slight relative to the magnitude of the risk as to render the person’s failure to adopt the precaution a demonstration of the person’s indifference to the risk

Question 9

What are all of the defenses to Intentional Torts?

Answer 9

Consent, Self Defense/Defense of Others/Defense of Property, Public + Private Necessity, Discipline Priviledge

Question 10

Explain: Consent (as a defense to intentional tort)

Answer 10

Consent

Consent:
a good defense to ALL intentional torts
In evaluating Consent Defense:
Did plaintiff have the CAPACITY to consent?
Ex: child, mentally impaired? Coerced, fraud or mistake?

Whether consent was express or implied?
Express consent = words gave consent
Implied consent = “reasonable defendant’s test”
can arise by 1) custom/ usage, 2) looking at plaintiff’s own conduct, but FROM defendant’s perspective

If you go BEYOND the bounds you gave consent for though– then not consent

Conventional view: “the absence of consent is a matter essential to the cause of action and is uniformly held that it must be proved by the plaintiff as a necessary part of his case” § 13
Mohr v. Williams

Who can consent:
People with legal “capacity”
Those with a mental infirmity - akak those who are mentally ill or under influence of drugs/alcohol - cannot consent
Chidlren can consent to age-appropriate invasions of their interests

Express consent
Explicit statement giving D permission to act in a way that would otherwise be an intentional tort (like inviting someone in so its not trespass)
This does not bar intentional tort claims if ocnsent obtained through fraud/duress
Duress = force/coersion

Consent implied in fact - when consent isn’t explicitly expressed in words and instead infeerred from conduct
Arises when P engages in activity/goes to a place where certain tortious invasions are customary/routine
Ex. - implicitly consenting to getting tackled when playing football

Informed consent - is this same as implied
O’Brien v. Cunard

Emergency Rule (as exception to consent)
NORMALLY patient has right to accept/reject medical treatment aka unauthorized operation is technically assault/battery even if there’s no damage, even in emergency situations BUT if consent can’t be given, medical treatment is lawfulunder doctrine of implied ocnsent when medical emergency requires immediate action to preserve the health/life of the patient
Generally 3 elements:
The existence of a medical emergency
The need for treatment to protect the patient’s health
Impossibility or impracilatiy o fobtaining consent

Substituted Consent?
Get consent from parent/guardian from minors & incompettetents who lack capacity to make medical deicisons on their behalf
Hudson v. Craft
Hackbart v. Cincinnati Bengals
Ciccarelli

Minority view on consent
Hart v. Geysel - court relied on 2 basic doctirnes that majoirty view implicitly rejected:
Volenti non fit injuria, or if someone willingly and KNOWINGLY places themselves in a position where harm might result, they are not able to bring a claim against the other party aka voluntary assumption of risk
Ex turpi causa non oritur actio, or no action shall arise out of an improper or immoral cause

Question 11

Explain: Self Defense (as a defense to intentional tortst)

Answer 11

Self-Defense

Self defense:

General Rule:
You are justified in using reasonable force to prevent a reasonable belief of IMMINENT threat of force against them
What is “reasonable belief’’?
needs to be both subjectively true (in their mind) and objectively reasonable (other people believed it too) to take advantage of the privilege
What is a “reasonable force’’?
firearms = deadly force issue (cause death)
Use of deadly force is considered reasonable only if they REASONABLY believe they are facing deadly force themselves. Response has to match the threat.

Does someone need to retreat?
Modern TREND, most courts says you DO need to retreat unless you are in your own home

Self-Defense Rest. 2d § 63
An actor is privileged to use reasonable force, not intended or likely to cause death or serious bodily harm, to defend himself against unprivileged harmful or offensive contact or other bodily harm which he reasonably believes that another is about to inflict intentionally upon him

Self-defsen is privileged under the conditions stated in subsection (1), although the actor correctly or reasonably believes that he can avoid the necessity of so defending himself,
By retreating or otherwise giving up a right or privilege, or
By complying with a command with which the actor is under no duty to comply or which the other is not privileged to enforce by the means threatened
^^ privilege of self-defense is lost with the passing of danger and there’s no privilege in retaliation

The 3 elemnts:
Imminence
The threat must be imminent

Proportionality
Proportionally limited to the force necessary under the circumstances

Reasonable belief
A reasonable person must believe that in that moment the threat was imminent

Stand your Ground
No duty to retreat (Ex. George Zimmerman/Trayvon Martin)
23 states have it
Generally apply to the home but can be extended to any place a person has a lawful right to be
Person justified in using/threatening to use deadly force if they reasonably believe that using/threatening to use such force is necessary to prevent imminent eath or great bodily harm to themself or another person OR to prevent imminent commission of forcible felony

Stand your ground vs Castle Doctrine
Stand yoru Ground
No duty to retreat from a threat before resorting to deadly force
Generally applies regardless of location
Castle doctrine
Designed for the protection of a domicile or real property
No duty to retreat and statutorily defines use of force as reasonable
Note some states liek missouri adn ohio have extended such protectiosn to personal vehicles or businesses
Make my day laws (castle doctrine)
Majority of states have castle doctrine or “make my day” laws

Protectiosn can extend to teh curtilage (are asurrounding the house)
Some states have “make my day better” laws or extend protections to cars and businesses

When involving property
You must first request the other to leave OR reasoanably believe that such a request to be useless - only fater requesting/making that reasonable assumption can you resort to force to expel them
Bird v. Holbrook

Mistake
Courvoisier v. Raymond - objective standard of whether a mistake is reasonable under the circumstances - court held that D could plead S-D even if he mistakenly thought that he was under attack

Use of Mechanical Device threatening death or serious bodily harm
Rest. 2d § 85
The actor is so far privileged to use a device intended or likely to cause serious bodily harm or death for the purpose of protecting his land or chattels from intrusion that he is not liable for the serious bodily harm or death thereby caused to an intruder whose intrusion is, in fact, such that the actor, were he present, would be privileged to prevent or terminate it by the intentional infliction of such harm

Question 12

Explain: Public + Private Necessity (as defenses to intentional tortst)

Answer 12

Necessity:
Can only be used as defense on a PROPERTY tort:
(trespass to land, trespass to chattels, or conversion)
Public Necessity:
If what you do benefits everyone pretty much it is PUBLIC necessity
Ex: burning down 3 houses to protect the whole city from fires. He has public necessity defense.

Private Necessity:
defendant reasonably believes the action is necessary just to protect themself or a handful of others.
You DO have privilege to interfere with other property but you have to pay for any damages.

Public Necessity`
Rest. 2d § 196
One is privileged to enter land in the possession of another if it is, or if the actor reasonably believes it to to be, necessary for the purpose of averting an imminent public disaster

^ there can be statutory compensation if the property was comandeered/used for an emergency and there was use/destrition ordered by the government
Idea of this doctrine is to avoid potential good samartisn from hesitating to work towards public goo

Private Necessity
Rest. 2d § 263
One is privileged to commit an act which would otherwise be a trespass to the chattel of another or a conversion of it, if it is or is reasonably believed to be reasonable and necessary to protect the person or property of the actor, the other or a third person from serious harm, unless the actor knows that the person for whose benefit he acts is unwilling that he shall do so
Where the act is for the benefit of the actor or a third person, he is subject to liability for any harm caused by the exercise of the privilege

The person using the property is usually obligated to a for any harm caused by the necessity but if no harm, no liability for like trespass even if you did technically trespass
Ploof v. Putnam - doctrine of necessity applies with special force to the preservation of human life

Question 13

Smaller Defenses to Intentional torts?

Answer 13

Other Defenses

Defense of others:

Rule:
A person is entitled to defend another person in attack in the:
same manner and in
same conditions
as person being attacked can defend themselves

What if they MISTAKENLY BELIEVE the other is under attack?
in most courts they will allow them if they believe the mistake was a REASONABLE objectively mistake in the view of others
(even if not in the view of person actually not harmed)

Defense of property:
Works whether you are a homeowner, shopkeeper, pedestrian etc.

Rule:
A person CAN use reasonable force to protect your real or personal property
However DEADLY force can NEVER be used to protect property alone
Self defense is NOT defense of property, it protects self

Look out for “hot pursuit doctrine”
this rule says you can only use reasonable force if you are in hot pursuit of someone taking property from you
… hot pursuit has to be imminent

Insanity
Generally not a defense under common law
McGuire v. Almy

Discipline privilege
Lets parents engage in reasonable acts of discipline of children
Includes teachers/camp counselors/baby sitters
Dif standard for parents vs caretakers though

Reentry on land and recapture of chattels
Increasingly obsolete but allow person entitled to immediate possession of land/chatetels to commit torts liek battery to retake said land/chattlels

Question 14

Explain the 2 approaches to liability (compare/contrast)

Answer 14

STRICT LIABILITY VS NEGLIGENCE

2 approaches to liability

Strict liability - holds teh defendant pria facie liable for any harm that he causes to plaintiff’s person/property
Negligence liability - allows plaintiff to recover only if, intentional harms aside, the defendant acted with insufficient care

Brown v. Kendall

If hitting P was unintentional, then D not liable unless it was done in want of exercise of due care, adapted to the exigency o fthe case
Rylands v. Fletcher
Owner has obligation to prevent cattle from escaping/doing mischief - owner is keepign cattle in at his peril or will be answerable for natural consequences of their escape

Question 15

Give an overview of: Negligence

Answer 15

NEGLIGENCE:

5 elements to negligence:
Showing that defendant owes a “duty of care” to plaintiff and specifying what that DoC requires under facts of case
Showing that defendant “breached” or failed to live up to duty of care
Breach “factually caused” plaintiff’s harm
Plaintiff’s harm was within defendant “scope of legal responsibility” (aka “proximate cause”)
Showing that plaintiff suffered some damage
^^^ Duty-Breach-Factual Causation-Proximate Causation-Damages

Reasonable person in the circumstance, if you’re a common carrier, reasonable act of omission, calculus risk, factual cause and proximate cause
Is conduct negligent?
Rest 3d § 3
Conduct is negligent if its disadvantages outweigh its advantages, while conduct is n

Question 16

List all Negligence Duties:

Answer 16

1. Reasonably Prudent Person (RPP) Standard of Care,
2. Duty of care of Children,
3. DUty of care of professionals,
4. Duties of possessors of land (premises liability),
5. Bailments/Duties in regards to chattel,
6. Duties based on Criminal Statutes,
7. No-Duty-To-Rescue Rule,
8. Duty to prevent emotional harm,
9. Duty to guard against harm caused by third parties,
10. Duties Owed to Unborn Children, Duty of Care of the Government,
11. Family and Charitable Immunity

Question 17

Explain the Negligence Duty of: Reasonably Prudent Person (RPP) Standard of Care

Answer 17

Reasonably Prudent Person (RPP) Standard of Care

1) to whom we owe a duty of care:
to all people who are foreseeable to be victims of our actions
But generally they must be IN or AROUND area that you act
Pasgraf Case: clasic example of unforseeable victim

How to analyze foreseeability?
General rule:
Freeze the scenario, approach the tort feasor and Ask:
about who may be likely victims in that exact situation?
Who is unforeseeable?
Minority Rule of foreseeability: Directness Rule
(based on judge Andrews’ dissenting opinion in Palsgraf):
Defender owes a duty of care to the WORLD at large. (Regardless of if foreseeable)
Still have to prove the other parts of negligence, breach of duty, causation, and damages. Only difference is you also include unforeseeable victims.

2) How much care we should take (how many precautions must you take):
As much care as a reasonably prudent person under the same or similar circumstances.
“Reasonably prudent person” is a very safe geek
Thus, this OBJECTIVE standard is rigid, NOT kind to the defendant, who will often come up short.
Even mentally ill people are held to same objective reasonable person standard
In superior physical skills/physical differences and disabilities though like surgeon/down syndrome we would ask what a reasonable person with those unique things would do.

Law requires ordinary care = we must all act with same degree of care used by a reasonably prudent person acting under similar circumstances or reasonable care under all the circumstances
An actor ordinarily has a duty to exercise reasoanbel care when the actor’s conduct creates a risk of physical harm
In exceptional cases when an articulated countervailing principle or policy warrantes denying or limiting liability in a particualr class of cases, a court may decide that the defendant has no duty or that hte ordinary duty of reasonable care requires modification

Unreasonableness; How Determined; Magnitude of Risk and Utility of Conduct
Rest 2d § 291
Where an act is one which a reasonable man would recognize as involving a risk of harm to another, the risk is unreasanble and the act is negligent if hte risk is of such magnitude as to outweigh what the law regards as the utility of the act or of the particular manner in which it is done

Circumstances that don’t count for purposes of default standard of care:
Drunkenness (same with drugs)
Reduced mental or intellectual abilities or skills
Tupid people, mentally ill people, develomentally disabled people, ignorant people - all obligated to behave the same way as a sane person of average intelligence
People doing an activity for the first time/lack experience
Ex. first time hunters or skiers

** the RPP duty standard is objective - it applies to everyone the same way, with relatively no allowances for individual differences **
Exceptions to the no allowances:
People of superior skill/knowledge/intelligence - they’re expected to use this
Physical attributes like blindness
Roberts v. Ring
In determining negligence of defendant, take into consideration age of defendant and whether the defendant had any physical infirmities
Here D’s infirmities weighed against him bc he know of them and still chose to operate an automobile ion a crowded street

Bias against mental disabilities
Rest. 2d § 283 B
Unless hte actor is a child, his insanity or other mentla deficiency does not relieve the actor from liability for conduct which does not conform to the standard of a reaonble man under like circumstances
Rather is based on difficulty in:
Distinguishing “mental deficiency” from simple “variations of temperament, intellect, and emotional balance:”
The concern that parties can fake symptoms
Fairness to injured parties
Giving incentive to caretakers
Continued difference w physical disabilities in Rest 3d: the conduct of an actor with a physical disability is negligent only if the conduct does not conform to that of a reaosnably careful person with the same disability

Johnson v. Lambotte - example of ^^ bias
Ruled her mental illness was no excuse for stealing car/causing accidents
As far as a mentally inconpettent person’s liability for negligence is concerned, he is held to the same degree of care and diligence as a person of sound mind

Mental Incapacity
Rest 3d
General rule to “disregard mental and emotional disability in considering whether the person has exercised reasonable care”
Williams v. Hays - court ruled that the general rule is that an insane person is just as responsible for his torts as a sane person and the rule applies to all torts
Breunig v. American Family Insurance Co - “sudden incapacitation” - no distinction drawn between physical and mental incapaciation
It’s an exception to rule barring consideration of mental incapacity under the reasonable person standard, creating bifurcated rule where physical disabilities are considered but mental disabilities are not
Rationales for general rule:
1. Making victims whole
2. Incentivizing guardians
3. Setting bright line rule to reduce adminsitrative costs
4. Avoiding fraudulent or faked claims
Fletcher v. City of Aberdeen - blind guy fell into ditch bc barricade wasn’t put back - court rejected contributory negligence cliaim saying city knew people who were physically infirm as well as people in perfect physical condition used the streets and the law casts upon one no greater burden of care than upon the other
Holmes on the reasonable person
Its not a question of whether the defendant thought his conduct was that of a prudent man, but rather whether th ejury would think it ws
Law considers what would be blameworthy in a man of average intelligence/prudence and determines liability based on that
But if someone is below the average level in intelligence/prudence to an extent they must still be judged at the same level as an average person
Exceptions: distinct defect that all can see that it would make certain precautions impossible aka blind men arent required to see their peril BUT is required to consider his blindness when regultng his actions
Reasonable person
Vaughan v. Menlove - “man of ordinary intelligence”
Jury should have considered whether he had acted bona fide to the best of his jdugment; if he had, he ought not to be responsible for the misfortune of not possessing the highest order of intelligence
ltrFirst use of term “reasonable man” in Blyth v. Birmingham Waterworks co.
Negligence is the omission to do something which a reasonable man, guided upon those ocnsiderations which ordinarily regulat the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do
Yarborough v. Alvarado
In negligence suits, teh question is what would a “reasonable person” do “under teh same or similar circumstances”
W this question, courts have latitute and may make “allowance not only for external facts but sometime sfo certain characteristics of the actor himself” (like disability, youth, advanced age, etc.)
This allowance makes sense as teh tort standard’s recognized purpose is deterrence

Question 18

Explain the Negligence Duty of: Duty of care of Children

Answer 18

Duty of care of Children
ome special duty standards:
CHILDREN
Children are judged against child of same =
AGE, INTELLIGENCE and EXPERIENCE for negligence
Major exception:
is if that child is engaged in an adult activity… then held to adult reasonable person standard.
Below 5 children are incapable of negligence.

Children:
Rest Second § 283A
If the actor is a child, the standard of conduct to which he must conform is that of a reasonable person of liek age, intelligence, and experience under like circumstances
Flexible standard - can differ for each child
Smart kids held to higher standard than dumb kids
Older kids - more demanding standard
novice/inexperienced kids get lower standard of care
Dangerous activity - the special standard does nt apply if child is engaged in “dangerous activity that is characteristicallly undertaken by adults”

Daniels v. Evans - minor operating motor vehicle (wehether automobile or motorcycle) must be judged by same standard of care asan adult

Adult activity - differs by state but driving car/tractor/motorcycle/snowmobiel have ALL been found to be adult activities

Incapacity
Rest 2d § 283A cmt b
A child may be so young as to be manifestly adn utterly incapable of exercising any of those qualities of attention, perception, knowledge, experience, intelligence, adn judgment which are necessary to enable him to perceive a risk and to realize itsunreasonable character

RUle of Sevens
Age 0-7: children are presumed incapable of negligence
Age 7-14: a rebuttable presumption of incapacity
Age 14 and up: minor presumed capable of forming the requisite intent

*** retstatement says kids under 5 are incapable of negligence **

Parental liability
Rest 2d § 316
A parent is under a duty to exercise reasonable care so to control his minor child as to prevent it from intentionally harmign others or from so conducting itself as to create an unreasonable risk of bodily harm to them, if the parent:
Knows or has reason to know that he has the ability to control his child, and
Knows or should know of the necessity and opportunity for exercising such control
most states with parental liability laws limit damage awards
Most state statutes also limit liability to intentional or malicious acts

Question 19

Explain the Negligence Duty of: Duty of care of Professionals

Answer 19

DUty of care of professionals

Professional Malpractice Cases:
A person who is a “learned professional” has to possess and exercise the knowledge and skill compared to other ordinary people in their specialties
(The profession ITSELF sets the reasonable standard for them.)

Ex: Doctrine of Informed Consent:
If doctor doesn’t get any consent before treatment, then could be battery,
If the doctor doesn’t get INFORMED consent.. It could be negligence.

Malpractice suits = negligence claims against professional service providers
Can be for any professional but the majority is for health care providers

Medical Malpractice
Jurors specifically instructed in medical malpractice cases to consider whether the physician met the custom used in his or her profession
Expterts testify on the custom or accepted practices of doctors
Malpractice and locality rules
Physicians held to a standard of care that is consisten with physicians in the same geographic location in which they practice
Some states applied statewide rule while others applied “community standard”/similar locality comparison
3 states do statewide adn 2 states apply “commnity standard”
11 states apply similar locality rule that looks at physicians located in a similar location in any state
32 states follow national standard
5 impose hybrid rule with locality standard for primary care physicians and national standard for specialists

Exception
Education professionals aka teachers owe their students NO duty of care - no matter how bad they teach, they cannot be held liable for nelgigence

Question 20

Explain the Negligence Duty of: Duties of possessors of land (premises liability)

Answer 20

Duties of possessors of land (premises liability)

Owner or occupier of land:
What duty of owner/occupier of land when someone injured ON their property:
2 variables that impact this duty standard:
Variable 1) source of injury –
is injury from some affirmative action on land or from an encounter with a static condition on the land?
Variable 2) how does law classify the injured entrant?
1. Undiscovered trespasser 2. Discovered trespasser 3. Licensee 4. Invitee
Undiscovered trespasser:
you owe that person NO duty for either affirmative action nor static condition. (always loses negligence lawsuit)

Discovered trespasser:
(you know their presence but not permission) what duty?
You own REASONABLE CARE for affirmative action.
For static conditions you only have duty to protect against:
conditions that MANMADE (artificial)
DEATH (highly dangerous)
TRAPS (concealed) that
you as the owner KNOW about.

Licensee:
social guest you invite over. (or police/firefighters- those are licensees under “firefighter rule”!)
Affirmative Actions:
Owe reasonable care for all affirmative actions.
Static conditions:
duty to protect any concealed condition that is known by owner. (all manmade and natural, and even moderately dangerous counts)
Invitee:
Someone who goes onto public property. Often business visitors, but anyone on public land. (not include police or firefighters, those are licensees!)
We owe duty of reasonable care for BOTH affirmative actions and static conditions.
For static conditions can be specified =
if concealed, or knew about the thing, and
duty to reasonable inspection prior to arrival.
Tips: In static conditions you can satisfy it by either fixing it or giving a warning

If you have a child trespasser, the standard of care is unique. Use reasonable prudent standard aka “attractive nuisance doctrine”
Modern trend toward abolishing these 4 categories all together…Still minority rule though.

Trespasser
Rest 2d § 329
A trespasser is a person who enters or remains upon land in the possession of another witwhout a privilege to do so created by the possessor’s consent or otherwise

General rule of liability to trespassers:
Rest 2d § 333
Except as stated in §§ 334-339, a possessor of land is not liable to trespassers for physical harm caused by his failure to exercise reasonable care
To put the land in a condition reasonably safe for their reception, or
To carry on his activities so as not to endanger them

Anticipated Trespassers - activities highly dangerous to constant trespassers on limited area
Rest 2d § 334
A possessor of land who knows, or from facts within his knowledge should know, that trespassers constantly intrude upon a limited area thereof, is subject to liability for bodily harm there caused to them by his failure to carry on an activity involving a risk of death or serious bodlily harm with reasonable care for their safety

Duty to warn
Reasonable care to give adequate warning is sufficient to relieve the possessor from liability UNLESS he has/should become aware that trespasser has not heard or does not intend to obey the warning

Articifial conditions highly dangerous to constant trespassers on limited area
Rest 2d § 335
A possessor of land who knows, or from facts within his knowledge should know that trespassers ocnstnatly intrude upon a limited area of hte land, is subject to liability for bodily harm cause to them by an artificial condition on teh land, if
The condition
Is one which the possessor has created or maintains and
Is, to how knowledge, likely to cause death or seirous bodily harm to such trespassers and
Is of such a nature that he has reason to believe that such trespassers will nto discover it, and
The possessor has failed to exercise reasonable care to warn such trespassers of the condition adn the risk involved

Activities dangerous to known trespassers
Rest 2d § 336
A possessor of land who knows or has reason to know of the presence of another who is trespassing on the land is subject to liability for physical harm thereafter caused to the trespassers by the possessor’s failure to carry on his activities upon teh ladn with reasonable care for the trespasser’s safety

Artificial conditions highly dangerous to known trespassers
Rest 2d § 337
A possessor of land who maintains on the land an artificial condition which involves a risk of death or serious bodily harm to persosn comign in contact with it, is subject to liability for bodily harm caused to trespassers by his failure to exercise reasonable care to warn them of the condition if
The possessor knows or has reason to know of their presence in dangerous proximity to the condition, and
The condition is of such a nature that he has reason to believe that the trespasser will nto discover it or realize the risk involved

Attractive nuisances for artificial conditions - artificial conditions highly dangerous to trespassing children
Rest 2d § 339
A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if
The place where teh condition exists is one upon which the possessor knows or has reason to know that the children are likely to trespass, adn
The condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and
The children becasue of their youth do not discover the condition or realize the risk involved in intermeddlign with it or in coming within the area made dangerous by it, and
The utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and
The possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children

Recreational use statutes
Exist in all 50 states with the intent to encourage wider use of land for hiking/fishing/hunting etc by limiting liability to owners

Licensee
Rest 2d § 330
A licensee is a person who is privileged to enter or remain on land only by virtue of possessor’s consent
Includes social guests

Invitee
Rest 2d § 332
An invitee is either a public invitee or a business visitor
A public invitee is a person who is invited to enter or remain on land as amember of the public for a purpose for which the land is held open to the public
A business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with the business dealings with the possessor of the land

Duties with Licensee vs invitee
Licensee
Duty to warn of all known hazards or dangers
Invitee
Duty to exercise reasonable carae to discover the existence and seriousness of dangerous conditions
Requires reasonable care to protect invitees from such conditions
Includes a duty to warn
^^^ 3rd rest. Has abandoned the distinction of invitee and licensees in favor of a general duty of reasonable care
Some states have redefined them as invitees

Professional rescuers (ex. firefighters)
Treated by common law as licensees - only duty to warn of hidden dangers known to owner or coccupier adn not to engage in conduct to injure “intentionally or by willful.wanton misconduct”
Other public employees were treated as invitees with a duty of reasonable care like postal workers, meter checkers etc

Question 21

Explain the Negligence Duty of: Bailments/Duties in regards to chattel

Answer 21

Bailments/Duties in regards to chattel

Bailments = when owner transfers possession of personal property to nonowner to maintain temporary custody of the property for al limited purpose

Bailee = person (or custodian) entrusted or given temporary possession of good/chattel

Bailor = person giving or leaving good or chattel to natoerh person to hodl temporarily

Gratuitous bailment = sharing of property by bailor or the fee provision of custodial services by the bailee
Bailment for hire = in which bailor and bailee both benefit

Mutually beneficial bailment = bailment for hire benefiting both parties
Duty of bailee is to show ordinary diligence in care of item
Ex. dry cleaner
Mutual benefit → ordinary

Gratuitous bailment
Sole benefit of the bailor
Only slight duty to care - no liability absent gross negligence
Benefit of owner → slight

Baillment ofr sole benefit of bailee
Loan bailments or friendly borrowing
Highest duty of cae - liability for even slight negligence
Sometimes referred to as “extraordinary care” obligation
Benefit of bailee → extraordinary

*** there’s a modern trend toward unified standard of “ordinary care under the circumstances

Question 22

Explain the Negligence Duty of: Duties based on Criminal Statutes

Answer 22

Duties based on Criminal Statutes

When plaintiff wants to use a STATUTE to set the negligent duty standard of care?

Plaintiff wants to sidestep the jury arguing what is reasonable, and instead wants to have them argue about whether they just violated the law (criminal or regulatory statute). 
To borrow a statute plaintiff has to satisfy a 2 part test: 
Class of Person: Was the statute designed to protect the class of persons, which he/she is a part of?
Class of Risk: Was it designed to be protect against the type of risk/harm that occurred in your case? 

*** you can still go forward with case even if you cannot prove statute. You just default to the reasonable person standard.

Negligence Per se,
When Plaintiff is successful in using a statute and proving the statute was violated

Is there a time when you satisfy 2 part test for statute use but it is excused? YES
2 exceptions:
1) If compliance with statute is more dangerous than violating statute, that statute is almost always excused.
2) If statutory compliance is truly impossible, court will almost always excuse it

If exceptions count then you have to argue under normal reasonable person standard.

Statutes & restatement second
Rest 2d § 286
Statutory requirements can be the basis for a reasonable person’s standard of conduct when (a) “a class of persons which includes the one whose interest is invaded” and (b) “the particular interest which is invaded” against (c) “the kind of harm which has resulted” and (d) “the particular hazard from which the harm results

Statutes & restatement Third
An actor is negligent if, without excuse the actor violates a statute that is designed to protect against the type of accident hte actor’s conduct c auses, adn if the accident victim is within the class of persons the statute is designed to protect

Osborne - negligence is breach of legal duty and here the duty is cerated by statutes so violation of statute is ocnclusive evidence of negligence

* to say that conduct is negligence is not to say that it is always contributory negligence*

5 Exceptions;
Party could not comply with a statute because of an incapacity
Ex. you have to do something upon seeing a particular hazard but you are visually impaired adn wouldn’t ahve been able to see it
Eventual defendant did nto know and shold not have known, of the occasion for compliance
Ex. driver who didn’t know a taillight was out while driving
Party is unable, after reasonable diligence, to comply with the statute
Ex. can’t clear property front sidewalk of snow within 24 hours of snow stopping as per the rule bc theres like a 3 day blizzard where snow starts/stops
Cases where sudden emergency prevents statutory compliance
swerve/run a light/make illegal turn to avoid hitting a person
If compliance with the statute would be more dangerous than violation

Question 23

Explain the Negligence Duty of: No-Duty-To-Rescue Rule

Answer 23

No-Duty-To-Rescue Rule

Affirmative Duty to Act Rule “no duty to rescue rule”
General Rule: When you choose to act you have to have precaution and DO NOT HAVE TO act

Exceptions:

1) If defendant is person who put Plaintiff in peril, then does have duty to act

2) When you have a strong relationship between parties then you do have a duty to act.
(Brother, close family relationship, common carrier or inn keepers also have duty to Rescue, Invitee / invitor ALSO has Duty to ACT. )

3) Some situations when you owe affirmative duty of care to STOP THIRD PARTY from injuring someone else.
Only true when they have:
Actual ability
And authority to control the third party.
ex: mom and toddler

No Duty to rescue rule aka Duty to Act for Protection of Others
Rest 2d § 314
The fact that the actor realizes or should realize that action on his part is necessary for another’s aid or protection does not of itself impose upon him a duty to take such action

Rescuer Liability aka Duty of one who takes charge of another who is helpless
Rest 2d § 324
One who, being under no duty to do so, takes charge of another who is helpless adequately to aid or protect himself is subject to liability to the other for any bodily harm caused to him by
The failure of the actor to exercise unreasonable care to secure the safety of the other while within the actor’s charge, or
The actor’s discontinuing his aid or protection, if by so doing he leaves the other in a worse position than when teh actor took charge of him

Cause of the situation exception
If the defendant put the plaintiff in peril in the first place or was the cause of the situation, there is a duty to rescue EVEN if the defnendant’s act that caused the perio was not negligent

Bender’s Feminist critique
Said male-oriented system was based on seapraations rather than connections - it was individualistic, autonomous and self-interest
Wanted recognition in the system that we are all interdependent/connected
There is currently no responsible care/concern for another’s safety/welfare/health
Emergency situation
Rest 3d
If an actor is confronted with an unexpected emergency requiring rapid response, this is a circumstance to be taken into account in determining whether the actor’s resultign conduct is that of the reasonably careful person
Posner’s 3 special relationship exceptions to common law rule - these 3 types have a “special relationship” between rescuer and victim
Where rescuer had either assumed (explicitly or implicitly) a contractual duty to rescue victim or had created in the victim a reasonable expectation that he had assumed such a duty
Victim was in rescuer’s custody adn without access to alternative rescuers
Ex when victim is a prison inmate/patient in mental hospital
Doctrine of last clear chance - requires potential injurer to take measures to avert a peril that it has created, even if non-negligently
A subset of the peril-caused-by-rescuer cases

Good samaritan laws
Almost all states have this in some form - protects absent a showing of willful misconduct or gross negligence
Some states have laws requiring reporting of crimes
This duty to report doesn’t generally cover “victimless crimes” and generally don’t require interventions

Question 24

Explain the Negligence Duty of: Duty to prevent emotional harm

Answer 24

Duty to prevent emotional harm

Negligent infliction of emotional distress: (Do you have legal duty not to injure mental psychy?)
You normally do NOT have a duty to avoid messing with people’s minds/upsetting others.

Exceptions:

1) if you are exposed to physical risk by defendant negilgence, and then have physical manifestations from the distress, then you CAN claim negligent infliction.
HAVE TO have been IN Zone of danger– only a “near miss location” plaintiff and then has physical later manifestations can go forward

2) A bystander to an accident can recover for negligent infliction (even if outside zone of danger) if they have close relationship with person injured

NIED = Negligent infliction fo emotin distress
3 cateogires:
“Near miss - defendant’s negligent act does nto physically harm plaintiff BUT it places plaintiff in a zone of physical danger/as a result plaintiff experiences fear for physical safety
Ex. reckless driver that almost accidentaly hits pedestrian
Plaintiff in order to recover must show that distress produced visible physical symptoms - manifestation of anxeity
Rash, muscle spasm, heart attack
Some cases hav held that depression symptoms can sastisfy this requirement
“Bystander” claim - eventual plaintiff is distressed becaue of anegligent injur inflicted on another person (the direct victim)
Bystander doesn’t experience the fear in “near miss” case - but rather its an emotion of grief/sadness at thought of injuriessuffered by direct victim
“Relationship” cases - plaintiff & defendant are in some sort of pre-existing business relatinshipand its highly foreseeable that negligence on part of defendant-usiness in performing its functions will cause signficatnt distress to plaintiff
Ex. providing a wrong diagnosis

5 tests for NIED
Impact test
Zone of danger
Foessability
Dillon
Thing v La Chula 

^^ which of these is bystander and near miss

NIED Rule expanded by Dillon v. Legg
Rule expanded to allow recovery when plaintiff can show:
Plaintiff’s proximity to the scene of the accident
Extent to which the plaintiff perceived the accident contemporaneously with its occurrence
The closeness of the relationship between the plaintiff and the victim

Rest 3d
Actor who negligently causes serious bodily injury to a third person is subject to liability for seriosu emotional disturbance thereby caused to a person who perceives the event contemporansouly, and … is a close family member of the person suffering the bodily injury

Zone of Danger Test
Plaintiff must:
Witness injyr to a closely related person
Suffer mental anguish manifested as physical injury
Be within the zone of danger where he or she is subject to an unreasonable risk of bodily harm from the defendant’s actions
*** some states do not require anguish to be manifested as physical injury

Foreseeability Test
Dillon rule modified under Thing v. La Chusa to require:
(1) Plaintiff is closely related to the injury victim; (2) is present at the scene of the injury producing event at the itme it occurs an dis aware that it is causing injury to the victim; and (3) as a result suffers serious emotilnal distress - a reaction beyond that which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstnaces
***used by ~30 states
Some states don’t require plaintiff to be present in NIED claims but allow for possibility that they can arrive shortly afterwards
Some states follow gen. Rule but do not require seriousness, severity or physicalmanifestation of emotional distress - beyodn the mental anguish be of a kind normaly suffered by a reasonable person

Pure foreseeability
Only require that serious mental distress to the plaintiff was a reasonably foreseeable consequence of the defendant’s negligent act
*** ~3 states do this

Question 25

Explain the Negligence Duty of: Duty to guard against harm caused by third parties

Answer 25

Duty to guard against harm caused by third parties

Point of negligence cases is economic recovery - BUT if they were harmed by someone with no financial resources, plaintiffs have incentive to find a defendant with a “deep pocked” and sue them alleging that the defendant had an obligation to protect plaintiff from some othe rperson who directly inflicted harm

Generally 2 conditions:
Ris of harm be foreseeable
The eventual defendant have some sort of relationship with either the third person who directl inflicts the harm or with the victim
Examples of such relationships
Parents & children
Employers & employees
Landownders & invities/licensees
Those who have taken custody of dangerous persons
Ex. - Tarasoff - the psychiatarsit sued for not warning the victim that Tarasoff had murderous thoughts

Ex. Dram Shop acts
The below are statutes which are an example of this third party harm - maybe the drunk person that injured plaintiff is broke af BUT plaintiff sues the liquor shop/bartender instead ofr overserving the drunk guy
30 states allow licencsed establishemnents (restaurants/bars/liquor stores) to be held liable for selling/serving alcohol to individuals who cause injuries or death as a result of their intoxication
22 states limit hte liability to selling or serving alcohol to an obviously intoxicated individual or a person under the legal drinkign age
Ex. schools - if school doesn’t properly vet a visitor adn that visitor inures a student adn then goes MIA, student can sue the school
_____________________________

Question 26

Explain the Negligence Duty of: Duties Owed to Unborn Children

Answer 26

Duties Owed to Unborn Children

If negligent defendant harms a pregnant women, there’s a chance that fetus harmed as well - if the child is born alive with injureis from that incident, all courts will allow recovery
If the child is not born alive, there is a division among courts
Majority of states will allow wrongful death suit if the fetus was still viable at point of injury
Other states will nto allow for wrongful death but allow mother to revoer additional damages for emotional distress

Wrongful birth/wrongful life
Wrongful birth = when doctor negligently fails to diagnose fetal abnormalities/notify parents - parents may claim when child is born that they would have terminated pregnancy had they been given accurate info
Wrongful life = same idea but the child asserts teh claim

Question 27

Explain the Negligence Duty of: Duty of Care of the Government

Answer 27

Duty of Care of the Government

Federal Torts Claims Act

1946 statute allowing citizens to sue their government
Limited wiver of sovereign immunity - exempts things such as:
Did not waive immunity for intentional torts - if injured intentionally by a gov’t employee you have battery claim against the employee not the government
Does nto extend to claims based on defamation, malicious prosecution, abuse of process or interference with contract
“discretionary function or duty” - when gov’t offer is allowed to make a choice and that choice is based on considerations of policy, individuals will not have any recourse in court against gov’t if they are harmed by choice

US is liable in same manner/extent as private individual under like circumstances but is not liable for interest prior to judgment or for punitive damages

Question 28

In Negligence establishing Duty, explain: Family and Charitable Immunity

Answer 28

Family and Charitable Immunity

Family
Today spousal immunity has been abolished in almost all jurisdictions
Majority states also abolished parent-child immunity
Exception: some states have said parent not liable for decisions relating to exercise of parental authority over child or decision involving provision of food, clothing, housing, or medical care (i’m assuing to like a certain extent)
Other states say the above is too hard to determine so just hold parents to reasonable parent standard
Charities
Non-profit adn charitable groups liable for negligence in most jurisdictions
Sometimes though liability capped at dollar amount or cannot be held liable for more than amount of any insurance pruchased

Question 29

Explain the Negligence element of: Breach

• List all ways to assess reasonableness
• and compare to Duty

Answer 29

NEGLIGENCE: THE BREACH ELEMENT

Breach of duty:

Normally have to point to SPECIFIC exact conduct that violated the duty standard.

How to we establish conduct is bad enough to be a breach?

1) Custom:
Litigants are trying to relate “reasonableness” to “typicality”
Essentially says everyone else does this so you not doing was not “reasonable”, or nobody else does this custom.
This custom evidence is ALWAYS admissible, but never conclusive. Could go either way

2) Res Ipsa loquitur:
When you can’t show exactly what the defendant did wrong… this is what you do, res ipsa loquitur.
Ex: Used by desperate plaintiffs that do not know what happened. (maybe unconscious etc)

To prove Res Ipsa = Need to use this Alternative test:
Prove BOTH:

1) prove to us that what occurred is not what normally occurs in absence of negligence, (doesn’t occur BUT FOR negligence)
(usually requires expert testimony)

2) show any negligence would have been attributable to defendant
Usually means the defendant somehow had “exclusive control” over something that caused the accident.

This res ipsa loquitur just gets the plaintiff to the jury,—> and then the jury decides from there. Could go either way for negligence after that.

Breach= show how the defendant fell short of the legally required duty of care - 2 aspects
Plalintiff must identify some specific wrongful conduct (either acto ro omission) adn convince the jury that this conduct did in fact take place
Jury then decides what happened
Persuade the jury that the conduct falls below the standard of care
Jury then evaluates what happened in relation to standard of care
__________________________________________________________________________

Relationship between duty & Breach
Evaluation of breach = comparison bet alleged faulty conduct of Defendant and relevant legal standard of care

Negligence per se = violation of statutory standard of care
Jury’s evlatuation isn’t big here bc the duty is very specific under the statute

Reasonable care under all the circumstances or the care of RPP acting under similar circumstances
Lots of factors weighing in - like what else was going on were there distractions or external factors
Since there’s so many factors in teh evaluation adn the standard is generic, jury’s evaluation is a big party of it

3 ways the erasonablyeness of alleged faulty conduct can be assessed:
By custom
By considering costs/benefits
By appealing to jury intuition

Ways to assess reasonableness:

1. Custom
2. Cost + benefits
3. Appeal to Jury Intuition
4. Res Ipsa Loquitur

Question 30

Explain Negligence Breach by: Assessing reasonableness by Custom

Answer 30

Assessing reasonableness by custom

Custom
Rest 2d § 295 A
In determining whether conduct is negligent, the customs of the community or of others under like circumstances are factors to be taken into account, but are not controlling where a reasonable man would not follow them
Rest 3d § 13(a)
An actor’s compliance with the custom is evidence that the actor’s conduct is not negligent but does not preclude a finding of negligence
Rest 3d § 13(b)
An actor’s departure from the custom of the community is evidence of the actor’s negligence but does not require a finding of negligence
It is relevant but not controlling - generally admissible to prove negligence but not dispositive of negligence
Aka conforming or following custom isn’t proof of reasanbleness (or the absence of negligence)

Industry Custom - Titus v. Bradford
‘Reasonably safe’ means safe according to hte usages habits and ordinary risks of the business
In som eindustries, organizations may have created model codes/sets of rules recmmending how tasks be performed - if those materials came from an organization with expertise/credibility, they can be used in evidence to show how a reasoanbel person would act
** following a custom or practice does not excuse conduct that is unreasonable. You should consider whether the custom or practice itself is unreasonable **

Question 31

Explain Negligence Breach by: Assessing reasonableness by considering costs and benefits

Answer 31

Assessing reasonableness by considering costs and benefits

Cheapest Cost Avoider - the party who is in the best position to make the cost-benefit analysis between accident costs and accident avoidance costs and to act on that decision once it is made

“Natural monopoly” with utilities like electricity/water when its cheaper for one market demand to be met by one firm rather than competing firms
Natural monopolies have high fixed costs and low marginal costs

Osborne/liability
Funeamental idea of liability for wrongful acts is that upona balancing of the social interests involved in each case, teh law determines that under the circumstances of hte particular case an actor should or should not become liable for the natural consequences of his conduct
Eckert/risk balanced against human life
The law has so high a regard for human life that it will nto impute negligence to an effort to preserve it, unless made under such circumstances as to constitute rashness in the judgment of prudent persons

HAND FORMULA
	B < P*L
B = burden/cost of prevention
P = probability of harm
L = injury/degree of loss

Question 32

Explain Negligence Breach by: Assessing reasonableness by appealing to jury intuition

Answer 32

Assessing reasonableness by appealing to jury intuition

Assessment of reasonableness often is left to jury’s common sense & experience - they decide if the behavior was excessively risky or reasonable
Plaintiffs in cases like this argue that risk of injury was highly foreseable adn a reasnable person should be more careful than defendant was
Defendant will claim that plaintiff was capable of protecting himself form harm and if the plaintiff could protect himself, it was not unreasonable for dendant to omit additional precautions

Blyth v. Birmingham Water works
Negligence is the omission to do somethign which a reasonable man would do, or doing somethign which a prudent and reasonable man would not do
Ds provided against frosts and not guilty of negligence just bc their precautions weren’t enough for extreme frost - it was colder than what ordinarily occurs so no negligence on part of D

Question 33

Explain Negligence Breach by: Assessing reasonableness with RES IPSA LOQUITUR

Answer 33

RES IPSA LOQUITUR
2) Res Ipsa loquitur:
When you can’t show exactly what the defendant did wrong… this is what you do, res ipsa loquitur.
Ex: Used by desperate plaintiffs that do not know what happened. (maybe unconscious etc)

To prove Res Ipsa = Need to use this Alternative test:
Prove BOTH:

1) prove to us that what occurred is not what normally occurs in absence of negligence, (doesn’t occur BUT FOR negligence)
(usually requires expert testimony)

2) show any negligence would have been attributable to defendant
Usually means the defendant somehow had “exclusive control” over something that caused the accident.

This res ipsa loquitur just gets the plaintiff to the jury,—> and then the jury decides from there. Could go either way for negligence after that.

** plaintiff lacks info about what faulty conduct defendant committed ot accuse accident and defendant does nt have evidence of specific breach of duty” **
Essentially the accident was clearly teh product of some careless behavior but we don’t know what hte exact careless behavior was/who did it

Rest § 328D
It may be inferred that harm suffered by the plaintiff is caused by negligence of the defendant when
The event is of a kind which ordinarily does not occur in the absence of negligence
Other responsible causes, including the conduct o the plaintiff and third persons, are sufficiently eliminated by the evidence
The indicated negligence is within the scope of the defendant’s duty to the plaintiff
2 prong showing to invoke res ipsa
Plaintiff mus tdemonstrate that accident i sone normally assocated with negligence
“Normally” = reference to probability
Plaintiff must show that it was defendant who most probably was the careless party

Medical malpractice & res ipsa
Courts are hostile to use of res ipsa in med malprac bc multiple individuals are involved in surgeries/med procedures - you don’t know exactly who would have been responsible
Other courts bar res ipsa for med malpractice bc there’s a presumption that medical procedures have been done correctly
Others have limited use of res ipsa to bar such inferences in cases like misdiagnosis
But you can sue an entire med team with res ipsa if something went clearly wrong that woudnt normally go wrong
If individual members of said team can prove their lack of involvement, they can be exonerated adn the rest will be held jointly rliable
Conditional res ipsa = applies when jury finds some threshold fact that may make res ipsa relevant
Court saying if you determine this occured in x circumstance or because of y activity, you can apply Res Ipsa if it happened in exclusivity of controla and because of negligence

Question 34

Explain all of Negligence element: Factual Causation

-List all 3 tests also

Answer 34

NEGLIGENCE: FACTUAL CAUSATION

FACTUAL CAUSATION

Rest 3d
Tortious conduct must be a factual cause of physical harm for liability to be imposed

Preponderance of the evidence
Proof by preponderance of the evidence means a greater than 50% likelihood

But For Test
“Conduct is a factual cause of harm when the harm would not have occurred absent (but for) the conduct
The defense to “but for” test is “even if”
like you say “but for” my conduct this would have happened i say “even if” i did/didn’t do that conduct, this would have happened

Substantial Factor
Rest 3d
The “substantial-factor” test permits the factfinder to decide that factual cause existed when there were overdetermined causes - each of two separate causal chains sufficient to bring about the plaintiff’s harm, thereby rendering neither a but-for cause
A substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm - must be more than a remote or trivial factor - it does nto have to be the only cause of the harm
Conduct is NOT a substantial factor in causing harm if the same harm would have occurred without that conduct
^^ CA instruction

Dif. approaches ^^^
Rest 2d groups both “but for” and “substantial fact” under “legal cause”
Rest 3d confines factual causation to factual cause
2 sections then address multiple actor situations

Multiple actors
Rest 3d § 26
Conduct is the factual cause of harm when the harm would not have occurred absent hte conduct
Rest 3d § 2
If multiple acts occur, each of which under § 26 alone would have been a factual cause of hte physical harm at the same time in the absence of the other act(s), each act is regarded as a factual cause of the harm

Market share liability
Different approaches
California (Sindell)
Apportions liability according to local market share
Allows manufacturers to prove they could not hav supplied product
New York (Hymowitz)
Apportioning liability according to national market share
No provident gout of responsibility if company was part of market

Joint & Several Liability
By 2000, only 15 states an DC allowed for joint & Several liability
Originally multiple tortfeasors had to act in concert to face joint liability - joint & Several liability is for independent tortofearos not acting in concert
Under J&S, plaintiffs may recover teh full amount of relief from any one of the jointly and severally liable defendants
Defendant may sue other tortfeasors for “contribution”
Jointly liable = liability shared by 2 or more parties who may or may not be joined in a single suit
Severally liable - defendant’s liability is separate & distinct from other’s liability (a separate action against one defendant without joining the other
Jointly & severally liable = liability may be apportioned either among 2 or more parties, or to only one or a few select members of the group

J&S Defendants - different types of indivisible harm
Joint tortfeasors in (1) a concert of action, (2) a unity of purpose or design, and (3) two or more defendants working separately but with a common purpose with knowledge and consent of the others
Concurrent tortfeasors act independently, but their seprate acts acuse a singe indivisible injury
Successive tortfeasors act independently but produce indivisible harm

JOint venture/enterprise = when 2 or more persons tacitly or expressly undertake an activity toegehtr and share a pecuniary (money related) interest
Strongest claim for joint tortfeasors adn liability

Joint & Several or several liability for independent tortfeasors
Rest 3d § 17
If the independent tortious conduct of two or more persons is a legal cause of an indivisible injury, the law of the applicable jurisdiction determines whether those persons are jointly and severally liable, severally liable, or liable under some hybrid of joint and several adn several liability.

Burden Shifting
§ 28
Subject to subsection (b), the plaintiff has the burden to prove that the defendant’s tortious conduct was a factual cause of the plaintiff’s harm
When the plaintiff sues all of multiple actors and proves that each engaged in tortious conduct that exposed the plaintiff to a risk of harm adn that hte tortious conduct of one or more of them caused the plaintiff’s harm but the plaintiff cannot reasonably be expected to prove which actor or actors cause the harm, the burden of proof, including both production adn persuasion, on factual causation is shifted to teh defendants

Apportionment of harm to causes
Rest 2d § 433A
Damages for harm are to be apportioned among two or more causes where
There are distinct harms, or
There is a reasonable basis for determining the contribution of each cause to a single harm
Damages for any other harm cannot be apportioned among two or more causes

Burden of proof
Rest 2d § 433B
Except as stated in subsections (2) and (3), the burden of proof that the tortious conduct of the defendant has caused the harm to the plaintiff is upon the plaintiff
Where the tortious conduct of two ro more actors has combined to bring about harm to the plaintiff, adn one or more of the actors seeks to limit his liability on the ground that the harm is capable of apportionment among them, the burden of proof as to the apportionment is upon each such actor
Where the conduct of two ro more actors is tortious, and it is proved that harm has bene caused to the plaintiff by only one of them, but there is uncertainty as to which one has caused it, the burden is upon each such actor toprove that he has not caused the harm

Expert testimony
4 criteria to the gatekeeper function courts perform
Whether a theory or technique can be (and has been) tested;
Whether the theory or technique has been subjected to peer review and publication
The known or potential rate of error of a particular technique; adn
Whether the theory has been generally accepted

_________
Actual causation (cause in fact)
Legal Standard is the:
BUT FOR, test. (for one defendant)
But for the conduct, would the Plaintiff have gotten hurt?
Alternative Tests (for many defendants)
Substantial Factor Test (applies when multiple defendants + a co-mingled cause)
Was the conduct of EACH Defendant, a significant factor in bringing about the P’s harm
When 2 D’s or more release forces that come toghether and hurt the same P.
Ex: two people light 2 separate fires which eventually merge and burn down P’s house.
But for test doesn’t work because both D’s would blame each other. So we use diff test sub stantial factor test. Thus either one D could be liable for negligence under this test.
Shifting the Burden of Proof (applies when multiple defensants + an unknown cause)
Shift the burden of proof
Ex: Summers v Tyse, 3 guys hunting quail 2 guys end up shooting the other one. Nobody knows which gun ended up actually hitting him
Not co-mingled bc the shots didn’t merge together, we just don’t knwo which one did actual harm.
Ca supreme court said if NO plaintiff can exonerate themselves, we can hold EITHER D fully responsible.

Question 35

Explain all of the Negligence Element: Proximate Causation

Answer 35

NEGLIGENCE: PROXIMATE CAUSE

Proximate cause = effort to delineate the outer limit of liability
Requires a plaintiff to convince the court that his injury has a sufficiently close connection to the defendant’s breach that liability would be fair under the circumstance
Not always an issue

Foreseeability = now the majority approach among states as a controlling principle

Superseding cause
Rest 2d § 440
A superseding cause is an act of which a third person or other force which by its intervention prevents the actor from being liable for harm to another which his antecedent negligence is a substantial factor in bringing about

Superseding factors (as per Rest 2d § 442)
Its intervention brings about harm different in kind from that which would otehrwise have resulted from teh actor’s negligence
The consequences appear “extraordinary rather than normal in view of the circumstances existing at the time of its operation”
The intervening force is operating force is due to a third person’s act or to his failure to act
The intervening force is due to an act of a third person which is wrongful toward the other and as such subjects the third person to liability to him
The degree of culpability of a wrongful  act of a third person which sets the intervening force in motion

Negligent conduct
Rest 2d
The actor’s negligent conduct is a legal cause of harm to another if
His conduct is a substantial factor in bringing about the harm, adn
There is no rule of law relieving the actor from liability because of the manner in which his negligence has resulted in the harm

Crime or intentional torts
Rest 2d § 448
Teh act of a third person in committing an intentional tort or crime is a superseding cause of harm to another resulting therefore, although the actor’s negligent conduct created a situation which afforded an opportunity to the third person to commit such a tort or crime, unless the actor at teh time of his negligent conduct realized or should hav realized the likelihood that usch a situation might be created, and that a third person might avail himself of the opportunity to commit such a tort or crime.

Foreseeability test (Wagon mound) - man must be considered to be responsible for probably consequences of his act - to demand more is too harsh - actor should not be liable for all consequences however unforeseeable and however grace just because they’re “direct”

Cardozo and duty: law of causation, remote or proximate, is thus foreign to the case before us. Question of liability (i.e. duty & breach) is always anterior to the question fo hte measure of the consequences that go with liability
Duty Analysis - the risk reasonably to be perceived defines the duty to be obeyed

Restatement reflecting Cardozo view
Rest 2d § 281
If the actor’s conduct creates a recognizable risk of harm only to a particular class of person, the fact that it causes harm to a person of a different class, to whom the actor could nto reasonably have anticipated injury, does not render the actor liable to the persons so injured

Different Tests
Direct cause
Liability attaches to “direct” consequences of act
Foreseeability
Liability attaches to the foreseeable consequences that make the act negligent

Rest 2d § 461
The actor is subject to liability for harm to another although a physical condition of the other makes the injury greater than that which the actor as a reasonable man should have foreseen as a probable result of his conduct

Direct Impact test
Plaintiff must sustain a contemporaneous physical impact or injury from defendant’s actions
^^ in 3 states

_____________
Proximate causation
A mechanism to limit the scope of liability in Tort law
Ex: we are only legally responsible for the nearby ripples of a stone thrown into the water.
Legal Rule:
Only liable for those harms WITHIN the risk of your OWN activity
2 different types of fact patterns:

Direct Cause Fact Pattern: (usually P’s win this)
Where nothing happens between defendant’s bad conduct and the plaintiff’s resulting injury - nothign intervenes
Ex: it’s like the first ripple in the stone in the lake example
Only thing you have to do is FOCUS ON RESULT–
If that result is foreseeable (within the scope of the risk) then you have proximate cause and you have liability

Indirect Cause Fact Pattern (case of intervening cause):
Meaning: Defendant acts, then something else comes along and acts– and only after the second action does Plaintiff get hurt
Law asks:
1. Whether the intervening event was foreseeable? y/n
2. Whether ultimate outcome was foreseeable? y/n

If you have a case where both intervention AND outcome are foreseeable:
P will win (everything is foreseeable, within scope of the risk)
If you have case with NEITHER foreseeable intervention not outcome:
P will lose (everything is not forseeable, outside scope of risk)
Other 2 need to use discretion/judgement for.

4 intervening causes where the D will always be liable:
Subsequent medical malpractice
Almost always considered foreseeable, rarely if ever limit scope of original actor’s liability.
If you get taken to hospital bc of a negligent driver, but then doctor does medical malpractice– is the driver liable or doctor? Driver.
Subsequent medical malpractice will almost never limit liability of original actor.
Negligent Rescue
Almost always considered foreseeable
Negligent automobile hits pedestrian, good samaritan tries to help but does more damage– original driver is still considered liable not samaritan.
Reaction Forces
When someone reacts to the D’s negligence, causing some sort of harm to the plaintiff
Ex: you commit negligent act, then other person is scared and knocks someone down and they get hurt. Original person is liable.
Subsequent diseases and accidents
Always considered forseeable
Ex: hit someone with car, doctor does good job on them, but then they break their arm waking up with staircase at home bc dizzy on meds– ORIGINAL PERSON liable.

3 other examples of intervening causes
These will NOT cut off liability if you see facts making it likely that they are foreseeable to the D.
AKA Liability here hinges on D’s ability to anticipate the intervening cause.
Negligence of a third party:
Some situations where it’s possible to anticipate others will be negligennt, and your conduct is blameworthy BECAUSE it exposes other to the risk of 3rd party negligence.
Ex: you block sidewalk that forces others to walk on the road) they end up getting hit by negligent car)
Person who blocked sidewalk ashoudl have foreseen this, they would be responsible for thei rinjuries.
Criminal conduct of a 3rd party:
Inidividual operates parking garage, is negligent bc he left door open to it at night, a criminal came ina nd attacked person gettign their car out. Is owner negligent?
Yes, bc the whole reason they are responsible to lock is for that exact reason, thus they are liable/responsible
Act of God
If foreseeable will not cut off liability
Ex: worker working on building. He leaves materials on the roof even though he knows there is a storm coming with high winds. Is he liable? Or is act of god wind cutting off liability?
Because man heard weather reports all night long, he is liable. He foresaw it.
These 3, where they are UNFORESEEABLE, then you CAN go ahead and cut off liability.
Thus you must ask– if what ultimately happened is within the risk that make it negligent in the first place.

Question 36

Explain NEGLIGENCE: DAMAGES

Answer 36

NEGLIGENCE: DAMAGES
Damages:
A plaintiff DOES NEED TO PROVE damages, it;s part of the negligence claim.
Most P’s supper Propety damages and/or Physical injirt

Physical injury: (3 categories)
1) Past and future medical expenses
2) Past and Future Lost income
3) P’s Pain and suffering
Eggshell skull Plaintiff Principle:
For purposes of damages, you take P as you find P.
You do not have to foresee the FULL extent of the harm to be responsible for it.
– Compensatory vs Punitive
Compensatory are for suffering you had, all direct costs from accident
Punitive damages are only 2% of cases. Theyre misrepresented to media.. But there are certain tortst that go beyond the veil so jury wants additional payment to make it right.

General vs Special:
General damages still need to be proven
Speical: need to see torts slide

2 types of damages
Compensatory
To compensate plaintiff, return him to the position he was at before the defendant’s conduct
Punitive
Meant to punish defendant and act as a deterrent
Rarely awarded in negligence cases

3 types of compensatory damages
Past & future med expenses
Though often the calculation si staragithforward, sometimes there are disputes where injuries are severe adn where plaintiff may require ukown number of future sugeries/rehab/care over many years
Lost wages
Compensation for “pain adn suffering” - often soncisdered “non-economic danages’
__________________________________________________________________________

Eggshell skull rule
defendant takes the plaintiff as he finds the plaintiff -
like if an accident would have left a healthy individual with minor injuries but the plaintiff was already sick/weak adn therefore suffered major injury, defendant still has to pay for the major injury

__________________________________________________________________________
Allocation of damages between multiple defendants

Divisible vs indivisible harm - rest 2d and most states prefer divisible and apportioned damages
Apportionment of Liability when damages can be divided by causation:
Rest 3d § 26
When damages for an injury can be divided by causation, the factfinder first divides them into their indivisible component parts and separately apportions liability for each indivisible ocmponent part under topics 1 through 3
Damages can be divided by causation when the evidence provides a reasonable basis for the factfinder to determine:
That any legally culpable conduct of a party or other relevant person to whom the fact-finder assigns a percentage of responsibility was a legal cause of less than the entire damages for which the plaintiff seeks recovery adn
The amount of damages separately caused by that conduct
Otherwise, the damages are indivisible and thus the injury is indivisible. Liability for an indivisible injury is apportioned under Topics 1 through 4.
Divisible damages in Rest 3d § 26:
Divisible Damages can occur in a variety of circumstances:
When one person caused all of the damages and another person caused only part of the damages
When the parties caused one part of hte damages and nontortious conduct caused another part
When the nontortious conduct occurred before or afte the parties’ tortious conduct
In cases involving serial injuries, regardless of the length of time between the injuries
When teh plaintiff’s own conduct caused part of the damages
Indivisible damages in Rest 3d § 26:
Damages are indivisible and thus injury is indivisible when all legally culpable ocnduct of the plaintiff adn every tortious act of the defendants and other relevant persons caused all the damages

Inedmnification = situations where defendant who has paid the plaintiff cna recover all teh money from a co-defendant - 2 situations where this can happen
where one defendant is vicariously liable and the other lis liable as a direct or active tortfeasor - in this case the vicariously liable party can recover the amount paid ot the plaintiff from teh other defendant
Strict products liability claim where one of hte defendants is a non-anufacturer (typically a retailer)

Question 37

Explain all Defenses to Negligence:

Answer 37

Contributory Negligence, Assumption of the Risk, Comparative Negligence
DEFENSES TO NEGLIGENCE CLAIMS

Negligence Affirmative Defenses:
3 Primary Defenses:
Contributory Negligence
Has been mostly abolished in most states
Def: a P’s failure to use the relevant degree of care for his/her own safety
Careful bc statute may set standard of care, or child standard or reasonable person standard. Need to determine which standard fits first, and the decide if they have used that standard’s relevant duty of care.
Consequence of Traditional Contributory Negligence?
P loses lawsuit and gets NOTHING. It’s a harsh hard doctrine. Thus common law came up with “ameliorating doctrines” to soften the harshness of contributory negligence.
Also allowed people to game the system.
—Last clear chance doctrine: R 479
If P (even in contributory negligence jurisdiction) had last clear chance to avoid the accident, then plaintiff can still be held liable even though D was negilgent and this is contributory negligence jurisdiction.
Helpless plaintiff = D knew or should have known of that peril so could have avoided avident
Inattentive plaintiff - standard is higher.

Assumption of the Risk (some states allow this, some do not they only use comparative)
Express Assumption of the Risk
Like express consent, it’s words where they say they will “take their chances”
Consequence of this: it will completely BAR recovery. Out of luck if risk does happen.
Implied Assumption of the Risk
We find this only if we have evidence of:
P has knowledge of this
Evidence that it was voluntary for P
Consequence? Complete bar to recovery — but changes in jurisdictinos that have moved to COMPARATIVE negligence/comparitive fault
Primary vs secondary assumptions

Sporting assumption
14 states have this new special one.
Aka if you agree to sport syou assume the risks of sports
Important in high school sports.
Comparative Fault/Negligence
Will reduce amount of damages rather than an absolute bar
2 types:
Pure Comparative Negligence:
System when P will always recover something, even if they are the majority negligent actor in the case
Jury decides percentag eof P vs D who is responsible. Simple.
Makes jury instructions super easy too
Partial/modified comparative negligence
System when P’s recovery is proportionally reduced up tto a threshold– athen when threshold is reached the P is barred from recovery. (49/50% depending on state)
Draw line at 50%, ifyou are more than 50% at fault then you are barred from recovery.

Comparative Negligence replaces Contributory Negligence in the state where it exists (one or the other) and it also replaces IMPLIED Assumption of the risk– we simply take that conduct into account in assigning a percentage of fault to the P.

Contributory negligence
Showing that plaintiff’s negligence did not cause injury - the traditional rule barred recovery if a plaintiff was even 1% at fault
Only applied in 5 states today
2 exceptions to this:w
If defendant had acted not just negligently but recklessly, courts would ignore plaintiff’s contributory negligence and let them recover full damages
Last clear chance doctrine

LAST CLEAR CHANCE

Last clear chance
The purpose was designed to induce optimal behavior from potential defendant with the last clear chance to avoid an injury to potential plaintiff
It gives defendant incentive to take care despite defendant’s knowledge of earlier contributory negligence of plaintiff

Last clear chance - helpless plaintiff
Rest 2d § 479
A plaintiff who has negligently subjected himself to a risk of harm from the defendant’s subsequent negligence may recover for harm caused thereby if, immediately preceding the harm,
The plaintiff is unable to avoid it by the exercise of reasonable vigilance and care, and
The defendant is negligent in failing to utilize with reasonable care and competence his then existing opportunity to avoid the harm, when he
Knows of the plaintiff’s situation and realizes or has reason to realize the peril involved init or
Would discover the situation and thus have reason to realize the peril, if he were to exercise the vigilance which it is then his duty to the plaintiff to exercise

Helpless plaintiff
Exception to contributory negligence where:
(1) the plaintiff is physically unable to remove themselves from danger
(2) the defendant knew, or should have known of the peril and
(3) the defendant coudl ahve avoided the accident by using ordinary care

Last clear chance - inattentive plaintiff
Rest 2d § 480
A plaintiff hwo, by the exercise of reasonable vigilance, could discover the danger created by the defendant’s negligence in time to avoid the harm to him, can recover if, but only if, the defendant
Knows of the plaintiff’s situation and
Realizes or has reason to realize that the plaintiff is inattentive and therefore unlikely to discover his peril in time to avoid the harm and
Thereafter is negligent in failing to utilize with reasonable care and competence his then existing opportunity to avoid the harm
Inattentive plaintiff
Exception to contributory negligence where
(1) the plaintiff negligently created a situation of peril
(2) remained physically able to remove himself or herself from teh situation but was unaware of the peril
(3) the defendant actually saw the plaintiff and realized, or should have realized, the peril; and
(4) the defendant could have avoided the accident by using ordinary care

__________________________________________________________________________

Comparative Negligence
Court weighs the fault of the plaintiff against the fault of the defendant - aka comparing their respective degrees of fault and jury will then assign each party a percentage of fault

Pure comparative negligence
Plaintiff receives proportional amount of damages so long as they are less than 100% responsible
Responsibility of plaintiff simply subtracted from any damage award
Ex. - if A received $100 in damages but was ressoonsible for 60% of the accident, A would receive 40% of damages aka $40
12 states do this

partial/modified comparative
Impose requirement that plaintiff must not be more responsible for damages than defendant - states vary on if threshold is 50% or 51%
The damages will still be reduced by their negligent percentage but to GET damages at all the percentage must be below the threshold
50% rule - 21 states
51% rule - 11 states

** on an exam for comparative - must list pure and part comparative esp if the plaintiff is over 51% responsible - saying like depending on state thye’ll get damages BUT if theyre under 50% just mention theres different rules but regardless they’ll get damages

Express Assumption of the risk
Plaintiff expressly agreed not to hold defendant liable for any injuries but is still a defense in comaprative negligence jurisdictions
Rest 2d § 496B
A plaintiff who by contract or otherwise expressly agrees to accept a risk of harm arising from teh defendant’s negligent or reckless conduct cannot recover for such harm, unless the agreement is invalid as contrary to public policy

Implied Assumption
Rest 2d §496C
A plaintiff who fully understands a risk of harm to himself or his things caused by the defendant’s conduct or by the condition fo the defendant’s land or chattels, nevertheless voluntarily chooses to enter or remain, or to permit his thing sto enter or remain within the area of that risk, under circumstances that manifest his willingness to accept it
39 states and DC recognzie implied assumption to some degree

Implied assumption of the risk
Primary assumption
Plaintiff knew of danger and proceeded despite danger
Defendant had no duty to plaintiff in first place (Ex. sporting activities)
Recognition of inherent risks in activity (ex. skiing)
Secondary assumption
Defendant DOES owe duty of care to the plaintiff but he plaintiff knowingly assumed a risk of injury cased by the defendant’s breach of that duty
There is negligence on both parts

Assumption v. Comparative
Comparative lwas led to elimination fo most assumption defenses in favor of proportional fault determinations
However express assumption of risk (generally contractual) remained
Some states abolished defnese
Some eliminated use of AoR in all cases excet those involving express or contractual consent by plaintiff
20 states distinguish bet. Primary adn secondary assumption of risk
Sporting assumption - 14 states have adopted special assumption fo risk rules for sporting activities

Children
Rest 2d
A child may be so young as to manifestly and utterly incapable of exercising any of those qualities of attention, perception, knowledge, experience, intelligence and judgment which are necessary to enable him to perceive a risk and to realize its unreasaonble character.

Rest 3d
A child less than 5 years of age is incapable of negligence

Rule of Sevens
Age 0-7: generally treated as incapable of contributory negligence
Age 7-14: subject to a rebuttable presumption of incapacity
Age 14 and up: presumed to be capable

Question 38

Explain all Strict Liability for Products

Answer 38

STRICT LIABILITY FOR DEFECTIVE PRODUCTS

Calabresi and strict liability
Wanted to reframe the problem of accident law in terms of activities rather than in terms of careless ocnduct as the first step towrad rational system of resource allocation
Best way to establish extent to which society will allow dangerous activities is by market decision based on relative price of each of these activities and of theri substitutes when eachbears costs of accidents it causes
Said it could be achieved through system of nonfault enterprise liability - a system that assesses costs of accidents to activities according to invovlement in accidents
__________________________________________________________________________

PRODUCT LIABILITY
4 elements of modern strict liability claim
Defendant was a merchant/seller
Product was defective
Product has not been altered since leaving defendant’s control
Plaintiff was making a foreseable use of the product

__________________________________________________________________________

Merchant/seller
Seller
Rest 3d
One engaged in the business of selling or otherwise distributing products who sells or distributes a defective product is subject to liability for harm to persons or property caused by the defect
Manufacturer incurs absolute liability when article he places on market, knowing that its to be used without inspection, proves to have defect that causes injury to human beings (coca cola case)
Casual sellers like garage sale people are NOT merchants/sellers
All partiesn in a chain of distribution are considered to be merchants
__________________________________________________________________________

Defects
Defects:
Rest 3d § 2(c)
Is defective because of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission ofhte instructions or warnings renders the product not reasonably safe

3 types of defects
Manufacturing Defects = a product that departs from its intended design (even when all possible care is exercised)
Warning defects = when product lacks reasonable instructions or warnings of foreseeable harm posed by product an the lack of renders the product not reasonably safe
Common law duty to warn necessitates a warning comprehensible to average user adn conveying a fair indication fo nature/extent of danger to mind of areaonsably prudent person
Defendant is not liable under an implied warranty of merchantibily for failure to warn/provide instructions about risks that were NOT reasonably foreseeable at the time of sale or could nto have been discovered by way fo reasonable testing prior to marketing the product
Defendant is subject to standard of knowledge of an expert in the appropriate filed, but remains subject to a continuing duty to warn (at least purchasers) of risks discovered following sale of product at issue
Design defects = defined differently in second adn third restatements
Consumer expectation test Rest 2d § 402(A)
Unreasonably dangerous product = dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics
Rest 3d § 2(B)
A product is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the ocmmercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe
^^^ shift in perspective from § 402(A) to §2(B) - shift away from consumer orientation
Reasonable alternative presents higher burden adn looks at problem from manufacturer’s eyes rather than consumer’s eyes

Circumstantial Evidence
Rest 3d § 3
It may be inferred that the harm sustained yb the plaintiff was aused by a product defect existing at the time of sale or distribution, without proof of a specific defect, when the incident that harmed the plaintiff:
Was of a kind that ordinarily occurs as a result of product defect; and
Was not, in the particular case, solely the result of causes other than product defect existing at the time of sale or distribution

Decline of “open and obvious”
Rest 3d § 2
The fact that a danger is open and obvious is relevant to the issue of defectiveness, but does not necessarily preclude a plaintiff from establishing that a reasonable alternative designshould have been adopted that would have reduced or prevented injury.

LIability can be based on either:
The product failed to perform as safely as an ordinary consumer would expect under normal operating circumstances; or (Rest 2d)
The risks inherent in the product’s design outweigh the benefits of that design (Risk-Utility)

RIsk-utility test!!!
The usefulness adn desirability of the product - the product’s utility to the user adn to the public as a whole
The likelihood that the product will cause injury and the probable seriousness of the injury
The availabliliyt of a substitute produt which woudl meet hte same need and not be as unsafe
The manufacturer’s ability to eliminate the unsafe characteristic without impairing its usefulness or making it too expensive to maintain its utility
The user’s ability to avoid danger by the exercise of care
The user’s anticipated awareness of the dangers inherent in the product adn their avoidability because of general public knowledge of the obvious condition of the product, or of the existence of suitable warnings or instructions
The feasibility of manufacturer of spreading the loss by setting the price of the product or carrying liability insurance

Rule of liability for substantial alterations:
That user or consumer is in the class of persons that the seller should reasoanby foresee as being subject ot he harm caused by the defective condition;
The seller is engaged in the business of selling the product; and
The product is expected to and odes reach the user or consumer without substantial alteration in the condition in which teh product is sold by the person sought to be held liable under this article
Food
Can be basis for liability under negligence, strict liability, warranty adn other grounds including criminal liability
Food = product BUT division among states on food from restaurants/prepared food from stores
Issues of substantial alteration & plaintiffs’ conduct in preparation of foods

Food & Alterations
Food can be a defective product subject to strict liability
Courts struggle with foodborne pathogens
Many can be eliminated through proper preparations so its a plaintiffs’ conduct issue in failing to cook meats/poultry
Not rly an issue with prepared adn packaged ready to eat foods

Natural vs Foreign test for foods
Some states apply foreign-natural test in addition to reasonable consumer expectations test
Foreign natural test = consumer can recover if the contaminating element is a foreign as opposed to natural substance
Bones = natural so no recovery
^^under expectations test, consumer must show that she did not reasonably expect such contaminants so maybe bones would give recovery depending on the food/situation

Drugs

Prescription vs over the counter = OTC drugs subject to same warning conditions of other products and since they’re direct to consumer products, the warnings are more detailed in printed warnings

Learned intermediary
Rest § 6(d)
A prescription drug or medical device is not reasonably safe due to inadequate instructions or warnigns if reasaonable instructions or warnings regarding foreseeable risks of harm are not provided to:
Prescripbing and other health-care providers who are in a position to reduce the risks of harm in accordance with the instructions or warnings; or
The patient when the manufacturer knows or has reason to know that health-care providers will not be in a position to reduce the risks of harm in accordance with instructions or warnings
Court said drug company had duty to warn doctor about risks as a learned intermediary between purchaser and manufacturer
This led to a shift to doctor rather than company as vehicle to warn patient for some drugs
BUT this defense can be lost by “direct to consumer” ads
DTC ads must include detailed statement of produc risks, including precautions, potential side effects and contraindications in brief summary

Unavoidably unsafe products
Rest 2d Comment K
There are some products which, in the present state of human knowledge are quite incapable of being made safe for their intended adn ordinary use. These are especially common int he field of drugs. An outstandign example is the vaccine for Pasteur treatment of rabies. It is also true in particular of many new or experimental drugs as to which, because of lack of time and opportunity for sufficient medical experience, there cna be no assurance of safety or perhaps even of purity of ingredients

Prescription drug
Rest 3d § 6(C)
A prescription drug or medical device is not reasoanbly safe due to defective design if the foreseeable risks of harm posed by the drug or medical device are sufficiently great in relation to its foreseeable therapeutic benefits that reasonable health-care providers, knowing of such foreseeable risks dn therapeutic benefits, would nto prescribe the drug or meidcal device for any class or patients

Question 39

Explain Strict Liability for: Animals

Answer 39

Animals

Strict Liability for harm caused by Animals:
Are you strictly liable if your animal hurts someone?
You will always be liable i fyou are careless in how you supervise your animal– but this is about even if you act WITH all due care.

Rule: You are liable for all property damage if that animal is trespassing on another persons land.
What about personal injury?
For domesticated animals:
There is no strict liability unless you knew of the animals dangerous propensity in advance
For wild animals (even if they are kept as pets):
You are strictly liable from the start (unless the plaintiff does something knowingly/foolishly like sticking hand in their mouth)

Distress damage feasant
Allows landowner to hold trespassing chattel (animals) for payment of damages under distraint damage pheasant or idstress damage pheasant - but there’s not right to would/kill the trespassing animals

Harm done by abnormally dangerous domestic animals
Rest 3d § 509
A possessor of a domestic animal that he knows or has reason to know has dangerous propensities abnormal to its class, is subject ot liability for harm done by the animal to another, although he has exercised the utmost care to prevent it from doing teh harm
This liaiblity is limited to harm that results from teh abnormally dangerous propensityof which the possessor knows or has reason to know

Wild ANimals
Rest 2d § 506
Wild animal is an animal that is not by custom devoted to the service of mankind at the time nad in the place in which it is kept
Possession of land does not scary with it possession of hte indigenous wild animals unless he has brought them under his control - even if he adds indigenous game animals to the land
Wild animals are no one’s property adn therefore no one’s liability

Scienter
Abt 25 states hav eliminated the knowledge/scienter requirement
Generally:
1) injury caused by a dog owned by the defendant;
2) peaceable conduct of the person injured;
3) presence of the injured person in a palce where he has the legal right to be
4) lack of provocation

Wolf-hybrid dogs
Some states treat them as domestic animals but differ on percentages
Some make them illegal
Some require permits (like FL)
Municipal law may still prohibit hybrids

Product or pet?
Rest 3d
A product is tangible personal property distributed commercially for use or consumption. Other items, such as real property adn electricity, are products when the context of their distribution and use is sufficiently analogous to the distribution adn use of tangible personal property that it is appropriate to apply the rules stated in this restatement
^^ exempts services and blood products
Many states follow the above restatement def of “tangible property”
Some excempt pets as property
Dogs have personality adn therefore are not products in some states
“One free bite” rule - aka owner protected from punitive/statutory damages if they had no knowledge of animal’s violent propensity aka they can claim no knowledge the first time the dog bits someone but after is required to be aware of hte viciousnesss

Question 40

Explain Strict Liability for: Abnormally Dangerous or ultrahazardous activities

Answer 40

Abnormally Dangerous or ultrahazardous activities
Strict liability for the conduct of abnormally dangerous activities:
What is that?
Something about activity has high risk (cannot be made safe)
If harm does occur, it’s likely to be sever
Need activity that is uncommon in community where it takes place

Some examples: nuclear energy, toxic chemicals, explosives.
Any precautions taken by Defendant are IRRELEVANT bc this is strict liability for abnormally dangrous activities
!
Proximate cause continues to act as a limitation to liability in strict liability action— it continues to limit liability.
THUS strict liability rule is only going to apply to things that we labeled as abnormally dangerous in the first place.
***If bob is driving plutonium truck and hits a pedestrian– bob is not going to be strictly liable for abnormal activity WHY? Because the hazards of plutonium are radiation– not bad driving.

Rest 2d § 519
One who carries on an abnormally dangerous activity is subect to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm
This strict liability is limited to the kind of harm, the possibiliyt of which makes the activity abnormlaly dangerous
Rest 3d
Teh activity creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors
The activity is no tone of common usage

Aviation
Rest 3d
Aviation does not fit the formal restatement criteria for abnormally dangerous activity

Identifying abnormally dangerous activities
§ 520
In determing whether an activity is abnormally dangerous, the following factors are to be considered:
Existence of a high degree of risk of some harm to the person, land or chattels of others;
Likelihood that the harm that results from it will be great;
Inability to eliminate the risk by the exercise of reasonable care;
Extent to which the activity is not a matter of common usage;
Inappropriateness of the activity to the palace where it is carried on; and
Extent to which its value ot hte ocmmunity is outweighed by its dangerous attributes

Assumption of risk
Rest 2d § 523
Plaintiff’s assumption of the risk of harm from an abnormally dangerous activity bars his recovery for the harm

Question 41

Explain all the Tort of: Defamation

Answer 41

DEFAMATION

Defamation Defined
Rest 2d § 559
A communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him
Defamation is a personal action - cannot be brought on behalf of another person

Libel vs Slander

Rest 2d § 568
Libel consists of the publication of defamatory matter by written or printed words, by its embodiment in physical form or by any other form of communication hat has the potentially harmful qualities characteristic of written or printed words
Libel can also be videotape aka some form of permanent format
Slander consists of the publication of defamatory matter by spoken words, transitory gestures or by any form of communication other than those stated in subsection (1)
Slander per se is part of the per se categories below

Elements of defamation
Rest 2d § 558
To create liability for defamation there must be:
A false and defamatory statement concerning another;
Un privileged publication to a third party;
Fault amounting at least to negligence on the part of the publisher; and
Either actionability of the statement irrespective of special harm or the existence of special harm caused by th epublication

Defamation categories

Per quod

Not harmful on its face but only with reference to extrinsic factors
Statement defamatory per quod under 2 instances:
(1) where defamatory character of statement is not apparent on its face adn resort to extrinsic circumstances is necessary to demonstrate its injurious meaning; and
(2)where the staaement is defamatory on its face but does nto fall within one of the limited categories of statements that are actionable per se
Special damages must be proven

Per see

Defamatory on its face
No need to plead special damages
Traditional per se categories:
(1) statements that accuse plaintiff of a serious crime
(2) statements that injure another in trade/business/occupation
(3) staeemtns that accuse one of having a “loathsome disease”
(4) statements that “impute unchastity to a woman”
What constitutes publication
Rest 2d § 577
Publication of defamatory matter is its communication intentionally or by a negligent act to one other than the person defamed
One who intentionally and unreasonably fails to remove defamatory matter that he knows to be exhibited on land or chattels in his possession or under his control is subject to liability for its continued publication

Intracorporate communication

Qualified privilege
Communications bet co-employees treated as no publicataion since both part of the corp
BUT privilege may be lost if:
Employees not acting in the ordinary course of their work
If employee makes statement with actual malice
Not recognized in all states
Some courts treat this stuff with limited privilege
Protects communications made on a subject matter in which the person communicating has an interest or with reference to which he has a duty, if made another person having a corresponding interest or duty
But here too limited privilege can be defeated by showing malice
However, sometimes, even if its defamatory it may be privileged if employees are working for common purpose or interest aka discussing someone in tenure discussions or something

Work references/evals - employers are generally immune from civil liability for furnishing info in references/evals about professional conduct and reasons for separation (etc) PROVIDING THAT the employer is nto acting in bad faith

Mass publication

Rest 2d § 577A
Any one addition of a book or newspaper, or any one radio or television broadcast, exhibition or a motion picture or similar aggregate communication is a single publication

Republication - libraries/vendors not liable for republication IF they didn’t know/had reason to know material was false/defamatory
Communications Decemcy Act of 1996 - immunizes internet service providers from liability for publishing or distributing material created by others (like for defamatory stuff for example)

Mitior sensus - when words have 2 meanings, lenient nad severe, they will always be construed in the more lenient sense

Libel proof - if someone’s reputation has completely gone to shit, they can’t recover since theres no reputation left to defame

Defaming the dead
Rest 2d §560
The interest of hte descendants or other relative sof a deceased person in his good name is not given legal protection by the common law

Business defamation

Businesses can be defamed like individuals if false statement injrues business character of corp or its prestige/standing in industry
Rest 2d §561
One who publishes defamatoyr namtter concerning a corporation is subject to liability to it
If the coproation is one for profit, and the matter tends to prejudice it in the conduct of its business or to deter others from dealign with it, or
If, although not for profit, it depends upon financial support from the public, and the matter tends to interfere with its activities by prejudicing it in public estimation

Damages for the above
General =
Damages for loss of reputation /shame/mortification/hurt feelings

Special =
All damages plaintiff alleges adn proves that h e has suffered in respect to property/trade/profession/occupation (including such amounts of money as the plaintiff alleges and proves he has expended)

Question 42

Explain all Defenses to Defamation

Answer 42

Defenses to defamation

Absolute privilege = Common law protection of speech regardless of meaning - apples to judicial, legislative or executive proceedings
Rest 2d § 585
A judge or other officer performing a judicial function is absolutely privileged to publish defamatory amtterin the performance of the function if the publication has some relation to the matter before him
Abs privilege for in-court statements and filings BUT statements outside court can still be basis for legal action but theres disagreement on when the privilege still applies:
Some say AP applies to publications of pleadings online adn dissemination fo pleadings to press
Many states extend AP to delivering papers outside of court giving peladings to the media, correspondence related to litigation
In many states statements characterizing filings fall into a gray area
There can be absolute privilege for communication bet spouses as well
*** speech/debate in either house of congress shall nto be questioned in any other palace

Limited privilege in prelitigation - lawyers are given latitude but can lose privilege when intent is to bully/harss/intimidate client’s adversaries or if anticipated litigation is baseless/whollyunmeritorious/unsupposrted in law and fact

Fair comment privilege
Privilege counterbalanced to protect fair commentary on
A matter of legitimate public interest
That is based on true or privileged facts
Includes actual facts relied upon by the critic
Not be made for the soel purpose of causing harm

Fair report privilege
Rest 2d § 611
The publication of defamatory matter concerning another in a report of an official action or proceeding or of a meeting open to the public that deals with a matter of public concern is privileged if the report is accurate and complete or a fiar abridgement of the occurrence reported
Not absolute or triggered by status of speaker like the judicial proceeding privilege
Republication vs fair reporting rules
Republication rule maintains that anyone who repeats or re-publishes a statement is responsible for the defamatory injury that results from teh republication
Consequently a news reporter or broadcaster who simply reports allegations coudl be liable without a fair report privilege

State laws regarding the above
Over a dozen states enacted product disparagement laws
All but alabama require some proof of fault on part of the defendant

Question 43

List the 4 Privacy Torts

Answer 43

PRIVACY

4 privacy torts:
Intrusion
Disclosure
False light
Appropriation

Question 44

Explain the Privacy Tort: Intrusion

Answer 44

1. INTRUSION

INtrusion upon seclusion
Rest 2d § 652B
One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person
^^^ majority/minority view
Majority follow Rest 2d - its broader and protective of individual privacy
Minority view:
Some states deviate from rule but recognize tort of intrusion upon seclusion
Some states limit recovery fo rinvasion of privacy claims by statute - only reocgnze actions for misappropriation of one’s name/picture/portrait for commercialpurposes without consent

Secret camera/recording device
Some states find violation in placement of such a device even without anyone seeing/viewing the plaintiff with the device
Other states say someone must actually see/hear/observe the plaintiff to state claim for intrusion upon seclusion - aka there must be acquisition of information about plaintiff - placement of camera isn’t enough, it must have been used

** a person does nto automatically make public everything he does merely by being in public place **

Drones!
FAA rules may apply
Intrusion upon seclusion claims for private spaces
State laws prohibit drone filming
Some state laws flawed due to overbreadth

Trespass and media - Desnick eye case with the camera in the back was different from the food lion case with the camera

Question 45

Explain the Privacy Tort: Disclosure

Answer 45

2. DISCLOSURE

Public disclosure of private facts
Rest 2d § 652D
One who gives publicity to a matter concerning the private life fo another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that
Would be highly offensive to reasonable person and
Is not of legitimate concern to the public
majority/minority view:
41 states and DC expressly recognize a tort for public disclosure of private facts
4 states suggest that torts can be brought
4 states have expressly rejected
Revenge porn
Defamation doesnt work bc its clearly true as its a video/image
Intrusion upon seclusion doesn’t work bc consent was given to the filming/the other party as it was taken with consent by someone adn shared at first with consent
False light doesnt work bc its true
Most viable claim = public disclosure of private embarrassing facts (it’s kind of an extension of defamation with th elimination fo the define of the truth)

Question 46

Explain the Privacy Tort: False Light

Answer 46

3. FALSE LIGHT

Rest 2d §652E
One who gives publicity to a matter ocncernign another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if
The false light in which the other was placed would be highly offensive to areaonsable person, adn
The actor hadknowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed

Defamation vs False light
Defamation:
Protects a person’s reputation from false adn defamatory statements
Differen standards for public officials/figures vs average citizens
Protects medial in higher standard and bar on punitive damages
False light
Protects privacy interesta against statements that are “highly offensive to a reasonable person”
Requires showing actual malice
SupCt has only applied that standard to case sinvolving matters of public interest
31 states accept false light; 10 reject it; 9 have either no clear test or unique approaches

Question 47

Explain the Privacy Tort: Appropriation

Answer 47

4. APPROPRIATION

Appropriation fo name or likeness
Rest 2d § 652E
One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy

Defamation or appropriation
Rest 2d § 652I
Except for the appropriation of one’s name or likeness, an action for invasion of privacy can be maintained only by a living individual whose privacy is invaded
CA has rights for deceased personalities

Question 48

Explain the tort: Nuisance

Answer 48

NUISANCE

Private Nuisance = nontrespassory interference with another’s interest in the private use and quiet enjoyment of their land
Rest 2d
The interference must be
(i) intentional and unreasonable or (ii) unintentional, but “otherwise actionable under the rules controlling liability for negligent or reckless conduct, or for abnormally dangerous condiitons or activities
Unreasonable defined as
(i) “the gravity of the harm outweighs the utility of the actor’s conduct” or
(ii) the harm caused by the conduct is serious and the financial burden of compensating for this and similar harm to others would not make the continuation of the conduct not feasible

Spite fences
Bars structures that interferes with neighbor’s access to light/air/view for spiteful/malicious reasons
Most states require that spite/malice be teh sole/predominant motivation for its construction
Primary defense for the fence is to show a constructive use of the structure

Aesthetic nuisances/objections - neither substantial nor unreasonable

Coming to the nuisance defense
Based on the maxim “no legal wrong is done to him who consents”
Analogy to assumption of the risk
No longer a per se defense but can find experession as a facotr in nuisance analysis

Public Nuisance
Rest 2d § 821B
A public nuisance is an unreasonable interference with a right common to the general public
Circumstances that may sustain a holding that an interference with a public right is unreasonable include the following:
Whether the conduct involves a significant interference with the public health, the public safety, the public peace, the public comfort or the public ocnvenience, or
Whether the conduct is proscribed by a statute, ordinance or administrative regulation or
Whether the conduct is of a continuing nature or has produced a permanent or long-lasting effect, and, as the actor knows or has reason to know, has a significant effect upon the public right
Modern public nuisance
Covered under both criminal/civil actions
Address rights common to public
Require showing of special injury

Elements of public nuisance
Substantial interference with a public right
A “public right” is any right shared by all members of the public
“Substantial interference” is an interference that is unreasonable
No specific number of citizens need to be affected
Government does nto have to prove special injury
Debate over whether special injury should be different-in-kind or different-in-degree

Fifth Amendment Takings Clause
“Nor shall private property be taken for public use, without just compensation”

Question 49

Explain the 2 types of Economic Torts

Answer 49

Economic Torts

2 Main kinds:
Fraud Claim
Breach of Contract

Fraud Claim
Usually arises in context of a purchase/sale transaction or some business transaction like hiring an employee/joining a gym
Generally, the following 5 elements:
(1) an affirmative misstatement of fact by the defendant
(2) scienter
(3) intent to induce reliance
(4) justifiable reliance 
(5) damage

Breach of contract
To prove this, plaintiff must show:
(1) existence of a valid contract between himself and a thor person
(2) knowledge of that contract by the defendant
(3) acts of persuasion by hte defendant designed to convince the third person not to perform
(4) breach by the third person
(5) a showing that the interference or inducement was improper

Question 50

Discuss ALL Product Liability + Defenses

Answer 50

3. Products Liability:
   Product related injury can be pursued in court under a LOT of differnt theories = negligence, breach of warranty, breach of contract warranty, or strict liability in tort theory for injury by product
   Still be liable if you have “reason to know” of defect (if there is a news story even of a product with defunct then you are comsiderdd as having reason to know)
   You can still be liable above what he federal government says is allowed (they are a floor, not a ceiling)

Strict liability for injury by product: (you can pursue negligence theory too these go hand in hand here)
Need to prove:
Defendant is a MERCHANT of the goods involved (strict liability only applies for merchant of goods)
Have to prove product is defective
A product can be defective in 2 ways
Manufacturing defect (it’s an anomaly product compared to all other ones produced)
IF the very difference is what MAKES the product dangerous
Ex: titanic
Design defect Section 402(a) vs Rest 3rd 2b = ordinary consumer tests
-402a = what are the expectations of a normal consumer aka if this more dangerous than the expectations of anormal consumer
–(super difficult for a jury to use this rule though because hwo is a jury supposed to know the expectations of a normal consumer of specific things, like in barker, how is a jury supposed to know the expectation sof a normal consumer for tractors? They wouldn’t. Too hard for rxotic products.
- rest 3rd 2b =
(but rest 3rd is “unacceptable” to turley because it flipped rule from being from consumers eyes to corporate defensive eyes rule.) .
— can use RISK UTILITY TEST: (if don’t want to use ordinary consumer test)
Whether risks inherent in design outweigh benefits of it.
You think is there a reasonable alternative?

—you need to know both 3nd + 3rd restatemtn and need to apply both because differen tjurisdictions apply each
(3rd restatmet is essentially just a negligence standard… which is why so many attorneys object to it. 3rd testament is not dominant restatement though, according to turley many people still “correctly apply 402a)”
(it’s a defect common to ALL of them in the model line, aka all tractors of that brand have a defect– based on looking through eyes of consumers)
A reasonable alternative -cost effective- way to make it safer existed but they didn’t take advantage of that.
This is where get massive awards
—is eomethign was substantially altered, that CAN cut off liability. But need to be VERY careful that the alteration HAD RTO DO WITH THE DEFECT.
Ex: if you have a car with defunct but the owner adds dice and changes all other things to car, that is NOT substantial alteration bc it would still have had the defect.
Ex: IF though the alteration is related to the cause of the accident, then that CAN be a defense.
—if you hav eproduct case for Design defect, look at 1) 402a, then 2) state that there are some secondarystate jurisdictions that allow for alternative tests of risk utility. And appy that. And then say there is a minority of jurisdictions that apply the third restatemtn 2b. THen apply that.

Warning Defect (rest 3rd 2(c). 
WHEN PRODUCT LACKS REASONABLE INSTRUCTIONS OR WARNINGS OF FORESEEABLE HARM POSED BY PRODUCT AND THE LACK OF RENDERS THE PRODUCT NOT REASONABLE SAFE.) 
Have to be on the product if they are major (open and obvious is not a defense) 
Ex: vasallo v baxter, and macdonald contraception
You cannot warn yourself out of a deisn defect..
It’s just to warn of like small pieces that need to be aware of. That is not a design defect. 

Have to prove the product is in the same condition now as it was when it was with seller. (have to prove defect existed when left sellers hands)
—Bar wants you to say that there was a substantial alteration done.. But if the defect would have happened regardless of all the other things the person may have done to change the product then you CANNOT say substantial alteration!
Design will automatically have this– bit what about manufacturing defect? How do you prove it existed hwen it left the plant or in your car on the way home?
You have to prove the product MOVED IN AN ordinary channel of distribution
This gives rise to presumption that defect existed prior– gives P benefit of doubt.
P has to show she was using product in a foreseeable way
(Some courts think duty to warn is a defect but it’s not a main thing yet) see below**
—There is a natural/unnatural test: especially with food. You notice that bones and other things are natural but if you finda s staple in your candy.. Unnatural. Most people say there is a negligence case for such things but not strict liability. It’s a matter of law whether something is natural or not. **you can also bring an IMPLIED warranty claim for these types of cases.

—402a.k. = there are some things that are unavoidably unsafe bc there is huge beenft. Things liek rabies shot. But we had to accept that there wold bea small # of cases that would harm children. But worth it. You can argue– I think this is COMMON K. (really expensive hearing tot try and win this one though)
–Common k = you argue drug is huge benefit despite some harm. Case: Feldman, brown) If you are in brown jurisdction you will just argue that any prescription drug falls under negligence. No strict liability.
–6c, supposed to correct that there is too uch litigation under 402a… this is why many go to other countries for cancer tratment etc. Turley doesn’t like 6c bc it’s pro buisness and against consumer rights. THe language here is too broad.
Ex: many drugs will target 20 yo’s and then get a greeen light an then doctors are free to prescribe for off label use. Which isn’t how it actually got into the US. So, 6c essentially is saying most drugs can getinto tthe US market esily but twill likely not be used for this.

Affirmative Defenses to a strict product liability claim?
THe law has traditionally distinguished between conduct that is CARELESS and conduct that is KNOWING on the other hand.
Careless conduct:
Traditionally is NOT a defense to say P is just negligent in how handled product
AKA plaintiff negligence is NOT a defense to this claim
Knowing conduct
This has been a defense
Idea that P knew about products hazards but encountered them nonetheless
Aka traditional assumption of the risk– that is a defense
***In courts that use COMPARATIVE NEGLIGENCE– (tradidiotnal negligence) they do also apply those principles to strict liability claims.
In a majority of states today that apply comparative fault– a plaintiffs negligenc might REDUCE the amount of recovery in a strict products liability claim, though not necessarily eliminate it.

Wrinkles in Strict Product Liability Cases:
Adequate warning
Will usually insulate defendant from strict product liability claim
**Many courts look at a failure to warn as a defect IN AND OF IT”SELF as a defect!!!
Foreseeable use is not same as intended use:
The requirement that a product be used ina foreseeable manner is not LIMITED to that though
Ex: chair is for sitting not standing– but courts will say that doesn’t matter if that is what intended it’s still foreseeable even if not intended. Chair still defectively designed if breaks when stood on
If many of your users are using your product in that unique way– you have to design around that “misuse”
There have to be ENOUGH people using it in the specific way. If only a few people then no.
Ex: qtips. All people use it in ears, despite warning. So they need to design around that.
If the use of a product is merely incidental to the performance of a service, then strict liability is not available as a theory
Ex: you get a blood transfusion but it has hepatitis in it– you want to sue under this– but the sale of bloo dhere is separate from the service provided by the hospital. So if you want to sue the doctor or hospital you are limited to negligence as your theory.