TORTS OUTLINE

I.INTRODUCTION

A. WHAT ARE TORTS

1. TORT = WRONGFUL ACT PLUS INTENT OR NEGLIGANCE i.e. FAULT.

2. TORTS ARE DIFFERENT FROM CRIMES.

3. RECOVERY

a. LOSS OF EARNINGS

b. MEDICAL

c. PAIN AND SUFFERING

d. PUNITIVE

B. BASIS OF LIABILITY

1. INTENT

2. NEGLIGENCE

3. STRICT LIABILITY

C. TRIAL PROCEDURE

1. ORDER OF TRIAL

a. COMPLAINT

b. ANSWER

c. SELECT JURY

d. OPENING STATEMENT

e. PLAINTIFF'S CASE

f. DEFENDANT'S CASE

g. CLOSING ARGUMENTS

h. INSTRUCTIONS TO JURY

2. PROCEDURAL DEVICES

a. MOTION TO DISMISS (DEMURRER)--NO LEGAL CLAIM

b. MOTION FOR SUMMARY JUDGEMENT

c. OBJECTION TO EVIDENCE

d. DIRECTED VERDICT

e. PROPOSED INSTRUCTION AND OBJECTIONS

f. MOTION N.O.V.

D. PLAINTIFF MUST PROVE CERTAIN THINGS TO CONSTITUE A PRIMA FACIE CASE. HERE ARE PRIMA FACIE CASES FOR A NUMBER OF TORTS.

1. LIABILITY- TO HAVE LIABILITY THERE MUST BE FAULT. PLEADER MUST ALLEGE CERTAIN FACTS WHICH FACTS GIVE RISE TO A CAUSE OF ACTION. i.e. WRONGFUL ACTION. IN ORDER TO IMPOSE LIABILITY, FAULT MUST BE DISCERNABLE IN READING. NEED PROOF.

2. TORT=WRONGFUL ACT PLUS INTENT OR NEGLIGENCE (FAULT). VANCAMP V. MCFOOS.

II. INTENTIONAL TORTS

A. BATTERY: ELEMENTS- INTENT + PHYSICAL OR OFF. TOUCHING.

1. INTENT: MUST HAVE DESIRE OR SUBSTANTIAL CERTAINTY THAT A HARMFUL OR OFFENSIVE CONTACT WILL OCCUR.

2. INTENT MUST ONLY BE TO MAKE CONTACT, TO OFFEND, OR TO HARM. DOES NOT HAVE TO BE DONE WITH THE INTENT TO INJURE.

3. CAUSATION--NO PHYSICAL HARM IS NECESSARY. COMPENSATION FOR PAIN, SUFFERING, FEAR, ANXIETY, INDIGNITY, AND DISGRACE.

B. OFFENSIVE TOUCH: WOULD REASONABLY OFFEND ONE'S SENSE OF DIGNITY. DEPENDS ON NORMS OF SOCIETY/COMMUNITY.

1. TOUCHING CAN OCCUR TO MORE THAN JUST PHYSICAL BODY. i.e. EXTENSION OF BODY CRUTCHES-CONSTITUTES INVASION OF PERSON.

2. DOES NOT HAVE TO BE WITH INTENT TO INJURE.

a. CHARACTER OF INTENTIONS--ACT MAY BE DONE WITH INTENTION WITH BRINGING ABOUT A HARMFUL OR OFFENSIVE TOUCHING (CONTACT) MUST BE DONE WITH PURPOSE OF CAUSING CONTACT OR WITH KNOWLEDGE OF. *ACTOR IS SUBSTANTIALLY CERTAIN THAT HIS ACTIONS WILL RESULT IN CONTACT OR INJURY.*

3. TRANSFERRED INTENT--ONE WHO INTENDS A BATTERY IS LIABLE FOR BATTERY EVEN IF A THIRD PARTY IS THE VICTIM OF THE ACTION. INTENT CAN BE TRANSFERRED TO A TORTIOUS CONSEQUENCE NOT INTENDED. i.e.

a. SAME PERSON - DIFFERENT TORT.

b. DIFFERENT PERSON - SAME TORT.

c. DIFFERENT PERSON - DIFFERENT TORT.

4. CHILDREN'S LIABILITY--FOR CHILDREN TO BE LIABLE, CHILD MUST HAVE KNOWLEDGE THAT THE ACT WILL RESULT IN A HARMFUL TOUCHING. IF KNOWLEDGE, THEN THE INTENT IS INFERRED.(DAILEY V. GARRET) HOWEVER, MUST RESULT FROM WILLFUL OR MALICIOUS BEHAVIOR. WHEN AN INFANT CANNOT FORM A STATE OF MIND REQUIRED BY A TORT BECAUSE OF HIS AGE OR MENTAL CAPACITY, HE CANNOT BE FOUND LIABALE FOR THE TORT. (WALKER V. KELLEY)

5. INSANITY--INSANE ARE LIABLE FOR TORTS. USUALLY NOT MALICE, BUT INTENT. INSANE MUST BE ABLE TO ENTERTAIN INTENT AND DO SO FOR LIABILITY. LIABLE IN THE SAME CIRCUMSTANCES IN WHICH A NORMAL PERSON WOULD BE.

6. AWARENESS: PLAINTIFF NEED NOT BE AWARE OF TOUCHING (IF D KISSES P WHILE ASLEEP)

7. CAUSATION-DIRECT OR INDIRECT--DIRECTLY OR INDIRECTLY RESULTS IN P's INJURY. INDIRECT LIABILITY: i.e. D THROWS WOOD AT P INTENDING TO INJURE, WOOD MISSES BUT STRIKES A PILE OF ROCKS, AVALANCHE INSUES, KILLS P. D IS LIABLE. D'S ACT MUST DO MORE THAT SIMPLY PUT P IN A PLACE IN WHICH SOME TOTALLY INDEPENDENT AND UNEXPECTED FORCE MAY INJURE HIM.

III. ASSAULT - INTENT + REASONABLE APPREHENSION OF IMMEDIATE HARM OR OFFENSIVE CONTACT. ASSAULT AND BATTERY= HAM & EGGS. DEF. ACTS INTENDING TO CAUSE HARMFUL OR OFFENSIVE CONTACT, OR, AN IMMINENT APPREHENSION OF SUCH CONTACT, AND PLAINTIFF IS PUT IN REASONABLE APPREHENSION OF IMMEDIATE/IMMINENT HARM OR OFFENSIVE CONTACT. -ELEMENTS-

A. VOLITIONAL ACT BY DEFENDANT: (MOVEMENT OF SOME PART OF BODY)

1. WORDS ALONE INSUFFICIENT--CANNOT CREATE IMMINENT APPREHENSION.

a. EXCEPTIONS: PERSON IS BLIND, OR "DON'T TURN OR I'LL SHOOT." NOTE: IMPORTANT TO TAKE INTO ACCOUNT KNOWLEDTE OF P's WEAKNESSES.

B. INTENT = DESIRE OR SUBSTANTIAL CERTAINTY (JOKE=INTENT) TO INFLICT HARMFUL OR OFFENSIVE TOUCHING, OR TO PUT P. IN APPREHENSION OF IMMINENT HARMFUL OR OFFENSIVE TOUCHING. -NO SIGNIFICANT DELAY-

1. TRANSFERRED INTENT AND SUBSTANTIAL CERTAINTY DOCTRINES APPLY.

C. MUST INDUCE REASONABLE APPREHENSION OR FEAR (CAUSATAION). IF NOT, THEN NO ASSAULT.

D. APPREHENSION: AN ANTICIPATION WITH DISCOMFORT.

1. MUST BE AWARE OF THE THREAT AT THE TIME.

2. APPEARANCE OF ABILITY SUFFICIENT. ACTUAL ABILITY NOT NECESSARY TO CAUSE IMMINENT APPREHENSION.

3. SPEECH IS NOT A PHYSICAL ACT. PHYSICAL ACT THAT MENACES AND WORDS THAT ARE USED MAY ADD TO OR DIMINISH THE MEANING OF THE ACT. LOOK AT THE FACTS.

4. FEAR NOT REQUIRED. (MIDGET MAY ASSAULT GIANT.) FEAR = DEFINITE APPREHENSION. WITHOUT FEAR-STILL MAY BE APPREHENSION. APPREHENSION DOES NOT HAVE TO BE A BATTERY.

IV. FALSE IMPRISONMENT: D. ACTS INTENDING TO CONFINE OR TO UNLAWFULLY RESTRAIN PLAINTIFF SO AS TO INTERFERE SUBSTANTIALLY WITH HIS LIBERTY AND SUCH CONFINEMENT OR DETENTION ACTUALLY RESULTS.

A. F.I.= INTENT + CONFINEMENT + KNOWLEDGE OF P. THE D. MUST OVERCOME THE P's WILL TO LEAVE IN A WAY THAT WOULD OVERCOME A REASONABLE PERSON'S WILL TO LEAVE.

1. INTENT: SUBSTANTIAL CERTAINTY AND TRANSFERRED INTENT DOCTRINES APPLY.

2. CONFINEMENT: MUST BE A SPECIFIC AREA WITH NO REASONABLE WAY OUT FOR P. IF REASONABLE MEANS OF ESCAPE, THEN NO CONFINEMENT. P. MUST HAVE KNOWLEDGE OF CONFINEMENT. EXCEPTION TO KNOWLEDGE OF CONFINEMENT: P. SUSTAINS INJURY AS A RESULT OF CONFINEMENT. i.e. BABY IN BANK VAULT.

a. CAUSATION: USE OF FORCE AGAINST P. OR FAMILY MEMBERS (DAVIS DANGLING BABY IN CLASS) OR THREATS OF PHYSICAL HARM TO SELF, FAMILY, OR PROPERTY. REFUSING TO RELEASE WHEN UNDER DUTY TO DO SO.

(1) EXCEPTIONS:

(a) POLICE ARREST

(b) SHOPLIFTING DETENTION

(2) NOTE: TO BE FALSE IMPRISONMENT, P. MUST BE CONFINED TO LIMITED, SPECIFIC PLACE. EXCLUSION FROM A SPECIFIC PLACE IS NOT CONFINEMENT. i.e. CAN CONFINE TO MOOT COURT ROOM, BUT NOT FALSE IMPRISONMENT TO EXCLUDE P. FROM MOOT COURT ROOM. POSSIBLY SOME OTHER TORT. CANNOT CONFINE TO WORLD.

V. INTENTIONAL INFLICTION OF MENTAL DURESS: MUST HAVE INTENT, "OUTRAGEOUS" CONDUCT, AND CAUSE SEVERE MENTAL SUFFERING.

A. INTENT: DESIRE OR SUBSTANTIAL CERTAINTY THAT P. WILL EXPERIENCE MENTAL DURESS.

B. OUTRAGEOUS BEHAVIOR: EXCEEDS ALL BOUNDS OF ACCEPTED BEHAVIOR AS MEASURED BY SOCIETY OR COMMUNITY. THIS STANDARD TO BE USED EXCEPT IN CASES WHERE D. HAS KNOWLEDGE OF P's SPECIAL SENSITIVITIES. (PRIOR MENTAL PROBLEMS). COURTS ALSO CONSIDER ABUSES OF POWER OR AUTHORITY. i.e. EMPLOYER BADGERING EMPLOYEE.

C. CAUSATION: MENTAL SUFFERING SHOULD CAUSE PHYSICAL SYMPTOMS.(WELTS, RASH) MUST BE RESULT OF THE ACTION.

D. TORT OF GROSS INSULT: OCCURS WHEN OWNERS OR OPERATORS OF COMMON CARRIES, INKEEPERS, RESTAURANTS ECT... GROSSLY INSULT PATRONS. PATRONS CAN SUE.

1. DO NOT NEED OUTRAGEOUS CONDUCT

2. DO NOT NEED TO PROVE MENTAL DURESS

3. MUST BE MERELY GROSS INSULT, NOT DEFAMATION.

VI. TORTS TO PROPERTY: 3 TORTS WITH RESPECT TO LAND.

A. TRESPASS TO LAND: INTENTIONAL ENTRY OF SELF OR OBJECT. i.e. A BULLET SHOT THROUGH THE AIR, PASSING OVER OTHER'S PROPERTY, IS TRESPASS. POSSESSION EXTENDS BELOW GROUND AND REASONABLY ABOVE GROUND. INTENTIONALL ENTRY NOT REQUIRED IF ENTRY IS BY ACCIDENT (CAR THROWN) AND THE INDIVIDUAL REFUSES TO LEAVE.

1. INTENT: PURPOSEFUL ENTRY OR SUBSTANTIAL CERTAINTY. OBJECT NEED NOT BE TO TRESPASS. IGNORANCE IS NOT EXCUSE.

2. DAMAGES: LIABLE EVEN WITHOUT HARM + LIABLE FOR ACTUAL DAMAGES TO LAND + DIMINUTION OF VALUE. PARASIDIC DAMAGES ALSO RECOVERABLE. NOTE: WITH INTENTIONAL TRESPASS ALL LIABILITY HAS BEEN IMPOSED FOR HARM DONE, INTENTIONAL OR NOT.

3. TRESPASS AS AN INTERFERENCE TO POSSESSION. THEORETICALLY AN INVASION OF POSSESSION (LEASOR + OWNER)

B. CONVERSION OF CHATTELS--TROVER CONVERSION TO ONE'S OWN USE BY EXERCISING SUBSTANTIAL DOMINION.

1. INTENT: TO EXERCISE SUBSTANTIAL DOMINION. CONCIOUS OF WRONGDOING IS NOT NECESSARY.

2. CONVERSION LIABILITY DEPENDS ON THE ACCOMPLISHMENT OF CONVERSION, TEMPORARY OR NOT: EXERCISES SUBSTANTIAL DOMINION OVER THE CHATTEL. CONSIDER: EXTENT AND DURATION OF CONTROL. D's INTENT TO ASSERT RIGHTS TO CHATTEL. D's GOOD FAITH, HARM DONE, EXPENSE OR INCONVENIENCE.

3. WHAT PROPERTY CAN BE CONVERTED: TANGIBLE PERSONAL PROPERTY AND INTANGIBLE. (STOCKS ECT...) SERIAL CONVERSION i.e. P/D STEALS/ B SELLS BOTH D & B ARE CONVERTERS.

a. BONA FIDE PURCHASERS: LIABLE, BUT IF TITLE PASSES TRANSFERS THEN B IS NOT A CONVERTER. i.e. UNDER U.C.C.- P. BRINGS BIKE TO MERCHANT FOR REPAIR, MERCHANT SELLS IT TO B, B IS NOT LIABLE.

4. DAMAGES:

a. REPLEVIN/RETURN

b. MARKET VALUE AT TIME OF CONVERSION. CHATTELS WITH FLUCTUATION VALUE MAY BE RECOVERABLE AT HIGHEST VALUE DURING CONVERSION.

C. TRESPASS TO CHATTELS: INVOLVES INTERMEDELING, SOMETIMES EVEN DISPOSSESSION, BUT SHORT OF CONVERSION. LIABLE IF:

1. DISPOSSESSION OF CHATTEL

2. DAMAGES (ACTUAL NOT MARKET)

3. LOST USE

VII. FORCIBLE HARMS AS CIVIL RIGHTS VIOLATIONS: PHYSICAL ATTACKS BY A STATE EMPLOYEE, ACTING UNDER A COLOR OF STATE LAW, USING EXCESSIVE FORCE TO THE NEED PRESENTED, AND SUCH FORCE RESULTS IN INJURY, IS A VIOLATION OF USC 1983. THESE CONSTITUTIONAL RIGHTS VIOLATIONS ARE GROUNDS FOR LIABILITY. NOT ALL CIVIL RIGHTS VIOLATIONS ARE TRESPASSORY, BUT  1983 IS AN INVASION OF PERSON. (SHILLINGFORD V. HOLMES--STATE POLICE OFFICER SMACKS CAMERA IN FACE OF OBSERVOR, INJURED, SUES, AND WINS UNDER 1983). TORTS RESULTING FROM ABUSES OF STATE OR LOCAL POWER, LIABILITY DETERMINED UNDER FEDERAL COURTS UNDER CONSTITUTION.

VIII. DEFENSES TO INTENTIONAL TORTS--PRIVILEGES

a. SELF-DEFENSE

b. CONSENT OR APPARENT CONSENT

c. OVERWHELMING NECESSITY

A. SELF-DEFENSE OF PERSONS OR THIRD PARTY: A DEFENDANT IS PRIVILEGED TO USE THAT AMOUNT OF FORCE WHICH WOULD APPEAR NECESSARY TO A REASONABLE PERSON TO DEFEND AGAINST CONFINEMENT OR OFFENSIVE OR HARMFUL BODILY CONTACT.

1. REASONABLE FORCE: ONLY THAT NECESSARY TO PREVENT HARM.

2. DEADLY FORCE: MAY USE DEADLY FORCE WHEN FACED WITH DEADLY FORCE ONLY WHEN THERE IS REASONABLE FEAR OF SERIOUS BODILY HARM OR SEXUAL ATTACK.

a. DUTY OF RETREAT: IF POSSIBLE, RETREAT--UNLESS IN YOUR OWN HOME.

3. IN RESPONSE TO ASSAULT OR FALSE IMPRISONMENT, YOU ARE PRIVILEGED TO THREATEN MORE FORCE THAN IS NECESSARY TO CREATE APPREHENSION. HOWEVER, THE USE OF EXCESSIVE FORCE RESULTS IN LIABILITY.

B. SELF-DEFENSE OF LAND OR CHATTELS: FORCE MAY BE USED IF:

a. THE INTURSION IS UNPRIVILEGED, AND

b. REASONABLE BELIEF THAT FORCE IS NECESSARY,AND

c. DEFENDANT USES WORDS PRIOR TO USING FORCE

1. MECHANICAL DEVICES: PRIVILEGED IF;

a. REASONABLE, NECESSARY, CUSTOMARY, AND ADEQUATE WARNING IS GIVEN.

b. DEADLY MECHANICAL DEVICES: NOT PRIVILEGED UNLESS INTRUSION CONSTITUTES THREAT OF DEATH. i.e. NO BOOBYTRAP TO DEFEND AGAINST PROPERTY. (SPRINGLOADED SHOTGUN/EXCESSIVE FORCE/LIABLE)

2. RECAPTURE OF CHATTELS:

a. NO PRIVELEGE OF FORCE UNLESS TORTIOUSLY TAKEN

b. MUST BE IN HOT PURSUIT

3. DEFENSE TO A THIRD PERSON:

a. MAY DEFEND OTHERS ON SAME BASIS AS SELF. (DAVIS DANGLING BABY-THIRD PARYT HAS SAME PRIVELEGE TO USE FORCE TO PROTECT CHILD)

C. CONSENT OR APPARENT CONSENT: IN RESPONSE TO A TORT, D. CLAIMS P's CONSENT OR APPARENT CONSENT. i.e.- BAILEY V. BELINFANTE. P. CLAIMS BATTERY AGAINST DENTIST WHO PULLED TOO MANY TEETH. DENTIST CLAIMS P. CONSENTED. i.e.- VOLUNTARY PARTICIPATION IN PHYSICAL ACTIVITY (IMPLIED CONSENT)

1. WHAT ABOUT?

a. INFORMED CONSENT-IF DR. OBTAINS CONSENT FOR OPERATION ON THE P. WITHOUT INFORMING THE P. OF RISKS INVOLVED, IS CONSENT VALID?

b. SUBSTITUTED CONSENT-SHOULD A RELATIVE BE PERMITED TO GIVE O.K. FOR OPERATION?

c. MINORS-CAN MINORS GIVE VALID CONSENT???

2. EXCEPTIONS TO CONSENT:

a. FRAUD

b. DURESS

c. LACK OF INFORMATION

D. NECESSITY:

ARREST & DETENTION:

1. SHOPKEEPERS PRIVILEGE: HE MAY REASONABLY AND TEMPORARILY DETAIN FOR PURPOSES OF SEARCH. MUST HAVE:

a. PROBABLE CAUSE

b. USE REASONABLE FORCE

c. REASONABLE PERIOD OF DETENTION

d. INVESTIGATION ON OR NEAR PREMISES

e. REASONABLE MISTAKE PROTECTED

f. NOTE: COLORADO STATUTE SAYS SHOPKEEPER HAS A RIGHT TO TEMPORARILY DETAIN TO SEARCH.

1. PRIVILEGE OR ARREST:

a. FELONY ARREST: POLICE OFFICER IS PRIVELEGED WITHOUT WARRANT IF REASONALBE GROUNDS EXIST.

b. PRIVATE CITIZEN ARREST: PRIVILEGED ONLY IF IN FACT COMMITTED AND REASONABLE GROUNDS THAT PERSON ARRESTED COMMITTED IT.

c. FORCE ALLOWED VARIES TO MAKE AN ARREST, YET COMMON LAW ALLOWS DEADLY FORCE. POLICE OFFICER PRIVILEGED TO USE FORCE NECESSARY TO MAKE ARREST.out

2. CORPORAL PUNISHMENT/DETENTION (DEPENDS ON STATUTE OF STATE)--CORPORAL PUNISHMENT OR DETENTION BY TEACHER ON A STUDENT IS PRIVILEGED ONLY IF REASONABLE AND NOT EXCESSIVE UNDER CIRCUMSTANCES. (COLORADO STATUTE)

IX. PRIVILEGES NOT BASED ON PLAINTIFF'S CONDUCT

A. PRIVATE NECESSITY--AN PRIVELEGED INVASION OF PROPERTY.

1. AN INVASION ON PROPERTY IN TIME OF NECESSITY TO SAVE GOODS OR HUMAN LIFE IS NOT A TRESPASS. PERSON CANNOT BE PREVENTED FROM USING PROPERTY IN EMERGENCY. INTRUDER DOES NOT PAY FOR INTRUSION BUT DOES PAY COMPENSATION FOR DAMAGE TO PROPERTY.

2. HOWEVER, IF P PROTECTS PROPERTY OF ANOTHER IN TIME OF EMERGENCY THE P IS ENTITLED TO RECOVER DAMAGES FROM D OR OWNER OF PROPERTY PROTECTED.

B. PUBLIC NECESSITY--PUBLIC OFFICIALS MAY IN TIME OF NECESSITY SEIZE OR DAMAGE PRIVATE PROPERTY AND NOT BE LIABLE FOR COMPENSATION DESPITE THE CONSTITUTION. (BLOWING UP HOUSE TO STOP FIRE)

X. NEGLIGENCE

NEGLIGENCE IS A NAME FOR A KIND OF CONDUCT. THERE IS A DUTY OF REASONABLE CARE AND A BREACH THEREOF. THIS IS NEGLIGENCE. TO ESTABLISH GROUNDS FOR NEGLIGENCE UPON DEFENDANT (LIABILITY) PLAINTIFF MUST SHOW:

1. DEFENDANT UNDER A DUTY OF REASONABLE CARE.

2. D BREACHED THAT DUTY.

3. CAUSE IN FACT-ACTUAL CAUSE

4. PROXIMATE CAUSE.-- D's CONDUCT WAS THE LEGAL CAUSE OF THE HARM (i.e. D's LIABILITY EXTENDED FOR THE CONSEQUENCES CAUSED BY HIS ACTS)

5. DAMAGES RESULTED. (FROM THE NEGLEGENCE)

A. DUTY OF REASONABLE CARE DOES NOT ALWAYS EXIST. DUTY OF R. C. IN INTENTIONAL TORTS ALWAYS EXISTS, BUT NOT IN NEGLIGENCE CASES.

B. REASONABLE/PRUDENT PERSON STANDARD:

1. EACH OWES A DUTY TO BEHAVE AS THE REASONABLE PERSON WOULD UNDER THE SAME OR SIMILAR CIRCUMSTANCES.(IT'S AN OBJECTIVE STANDARD-GOOD FAITH IRRELEVANT/CONDUCT IS ONLY JUDGED IN LIGHT OF HOW A REASONABLE PERSON WITH ORDINARY PRUDENCE WOULD HAVE ACTED)

2. STANDARD REMAINS IN ALL CIRCUMSTANCES:

a. THE GREATER THE RISK OF HARM, THE GREATER THE CARE REQUIRED.

b. EMERGENCY DOCTRINE--ACTION WHICH IS NORMALLY NEGLIGENT MAY NOT BE SO IN AN EMERGENCY.

(1) EXAMINE IF D. CREATED EMERGENCY.

HOW STANDARD OF REASONABLE CARE ESTBLISHED:

3. D. UPON PROFF OF CIRCUMSTANCES EXISTING AT THE TIME OF D's CONDUCT.

4. COMMUNITY CUSTOM ADMISSABLE AS EVIDENCE OF STANDARD OF CARE OWED--D. MUST HAVE HAD REASON TO KNOW CUSTOM.

a. IF A CUSTOM OBSERVED (BY ACT OR OMMISSION) IS INHERENTLY WRONG, THEN D. STILL NEGLIGENT. (BOAT ON LAKE POWELL)

5. COMPLIANCE OF STATUTE: ADMISSABLE BUT NOT CONCLUSIVE.

a. VIOLATION OF STATUTE/NEGLIGENCE PER SE.

(1) MAY ESTABLISH NEGLIGENCE BY PROVING VIOLATION OF STATUTE.

(a) STATUTORY PURPOSE DOCTRINE:

i) PERSON INJURED MUST BE WITHIN THE CLASS STATUTE AIMED AT PROTECTING. (OH-THE DOG!)

ii) HARM DONE MUST BE KIND THE STATUTE WAS AIMED TO PROTECT AGAINST.

iii) CAUSAL CONNECTION BETWEEN VIOLATION AND INJURY. (PROXIMATE CAUSE)

b. EXCUSABLE VIOLATION OF STATUTES:

(1) VIOLATION DUE TO INCAPACITY--TO AVOID NEGLIGENCE PER SE, INCAPACITY MUST NOT HAVE BEEN FORSEEABLE BY D. (HALLUCINATING BATMAN LADY [WHO KNEW OF HER CONDITION] AND HEART ATTACK, STROKE VICTIM [NO FOREKNOWLEDGE])

(2) NEITHER KNOWS OR SHOULD HAVE KNOWN OF THE OCCASION FOR COMPLIANCE.

(3) UNABLE AFTER REASONABLE DILIGENCE OR CARE TO COMPLY--CONFRONTED BY EMERGENCY NOT DUE TO OWN MISCONDUCT. (DRIVER SWERVES TO AVOID CHILD, CROSSES DOUBLE LINE, HITS ONCOMING CAR)

(4) COMPLIANCE WOULD INVOLVE GREATER RISK: (WALKING STREET AT NIGHT AGAINST TRAFFIC IN VIOLATION OF STATUTE, BUT LESS RISKY-O.K.)

(a) VIOLATOR CARRIES BURDEN OF PROOF-TO SHOW ACT ACCORDED WITH STANDARD

c. WORKMAN'S COMPENSATION: PROVIDES EXCLUSIVE REMEDY UNDER IT'S OWN RULES.

(1) OSHA STANDARDS DO NOT SUPERCEDE STATE/COMMON LAW STANDARDS FOR NEGLIGENCE PER SE.

d. LISCENSING STATUTES: ACTS WITHOUT LISCENSE DO NOT ESTABLISH NEGLIGENCE. (DRIVING CAR WITHOUT LISCENSE) MUST SHOW ACTUAL NEGLIGENCE.

6. HOW REASONABLE STANDARD OF CARE APPLIES:

a. CHILDREN: REASONABLE PERSON STANDARD WITH AGE, INTELIGENCE, EXPERIENCE CONSIDERED.

(1) MINORITY VIEW: NO SEPERATE STANDARD AGE 7 AND UP. (UNDER 7-INCAPABLE.)

(2) ADULT ACTIVITIES: A CHILD WHO ENGAGES IN A LISCENSED ADULT ACTIVITY IS JUDGED BY THE ADULT STANDARD OF CARE. (SNOWMOBILE)

b. PHYSICAL DISABILITIES: DISABILITY IS SEEN AS ONE OF THE CIRCUMSTANCES OF THE CASE.

(1) KNOWLEDGE OF DISABILITY SEEN AS CIRCUMSTANCE.

(a) NEGLIGENCE FOR ENGAGING IN ACTIVITY THAT REASONABLE PERSON WITH SAME DISABILITY WOULD NOT HAVE ATTEMPTED.

(b) INTOXICATION: DRUNK IS JUDGED SAME AS OTHERS--STILL NEGLIGENT

c. SUPERIOR KNOWLEDGE OR SKILLS:

(1) HELD TO STANDARD COMENSURATE WITH ABILITY

(a) PROFESSION OR TRADE--HELD TO STANDARD CUSTOMARILY EXCERCISED BY MEMBERS OF THAT PROFESSION.

7. TO WHOM IS DUTY OF CARE OWED:

a. DUTY OF CARE IS OWED TO ANYONE IN THE WORLD WHO SUFFERS AS A PROXIMATE RESULT OF D's BREACH OF DUTY.

b. D. IS LIABLE TO RESCUERS OF VICTIMS OF HIS NEGLIGENCE. (NOT APPLICABLE TO PROFESSIONAL RESCUERS) i.e. FIREFIGHTERS

c. RESCUE ATTEMPT MUST BE REASONABLE

XI. BREACH OF DUTY; NEGLIGENCE

A. NEGLEGENT ACT:

1. ACT OR OMMISSION BY D. WHERE A DUTY OF CARE IS OWED TO P.

2. BREACH OF DUTY BY CREATION OF UNREASONABLE RISK OF FORSEEABLE HARM.

a. ONE CONFRONTED WITH AN EMERGENCY IS NOT NEGLIGENT IF EMERGENCY IS NOT OF HIS MAKING AND HE ACTED REASONABLY.

b. EMPLOYER NOT LIABLE IN FAILING TO PROVIDE SAFETY IF EMPLOYEE'S MEANS OR KNOWLEDGE IS EQUAL TO OR GREATER THAN EMPLOYER, THE LIABILITY OF EMPLOYER NO LONGER APPLIES (ROOF WORKER FOR DOCTOR)

c. EMPIRACHAL TEST TO DETERMINE IF THE RISK CREATED IS UNREASONABLE AND THUS A BREACH OF DUTY: (U.S. V. CARROLL TOWING-JUDGE HAND)--IN DETERMINING IF ACT OR OMMISSION IS PRUDENT OR REASONABLE, CONSIDER:

(1) (P)-PROBABILITY OF INCIDENT OCCURRING.

(2) (L)-THE GRAVITY OF RESULTING INJURY.

(3) (B)-THE BURDEN OF ADEQUATE PRECATIONS.

(a) WHERE B < PxL, THE D. IS LIABLE FOR DAMAGES/CONSEQUENCES. WHERE SOCIAL UTILITY IS HIGH, ACCEPTABLE RISK (PxL) THRESHHOLD INCREASES. IN APPLICATION FOLLOW--THERE IS A DUTY OF CARE TO PROTECT OTHERS FROM HARM WHEN THE BURDEN OF TAKING ADEQUATE PRECAUTIONS IS LESS THAN THE PRODUCT OF THE PROBABILITY OF THE RESULTING HARM AND THE MAGNITUDE OF THE HARM.

B. PROVING NEGLIGENCE/TYPES OF EVIDENCE: MUST BE A RELATIONSHIP BETWEEN THE CONDUCT OF THE DEFENDANT AND OF THE HARM WHICH THE P. COMPLAINS. WHAT TYPES OF EVIDENCE:

1. DIRECT EVIDENCE: EYEWITNESS TESTIMONY IS STRONGEST EVIDENCE OR PROOF--BEWARE OF PERCEPTUAL PROBLEMS IN WITNESSES (BIASED, LIE, TOO YOUNG, RECOLLECTION)

2. CIRCUMSTANTIAL: SURROUNDING CONDITIONS/CIRCUMSTANCES (CONDITION OF CAR, WEATHER, ROAD CONDITIONS, VISIBILITY ECT...)

a. P. MUST PROVE BY FAIR PREPONDERANCE OF EVIDENCE THAT NEGLIGENCE IS MORE LIKELY THAN NOT.

(1) ALWAYS A JURY QUESTION

3. P. HAS BURDEN OF EVIDENCE AND PERSUASION: IF CONFLICTING TESTIMONY, EVALUATED BY COMMUNITY REASONABLE MAN STANDARD.

4. TYPES OF TESTIMONY--EXPERT V. NON-EXPERT OPINION.

a. NON-EXPERT-- INADMISSABLE AS PROOF

b. HEARSAY--OUT OF COURT STATEMENT WHICH IS SELF-PROVING. INADMISSABLE. i.e. "I HEARD FRED SAY THAT BOB KILLED BILL.

c. EXPERT TESTIMONY--USED IF AVERAGE JURY COULD NOT BE EXPECTED TO UNDERSTAND THE ISSUE. ADMISSABLE.

5. CUSTOM: EVIDENCE OF NEGLIGENCE BUT NOT CONCLUSIVE UNLESS STATUTORILY DEFINED. (GETS A CASE TO JURY)

a. NEGLIGENCE MAY EXIST NOTWITHSTANDING COMPLIANCE TO CUSTOM--SOME CUSTOMS MAY BE INAPPROPRIATE (BOAT ON LAKE POWELL W/O RADIO)

(1) CUSTOMS GENERALLY SPEAK TO REASONABLENESS AND FORSEEABILITY.

b. MUST BE ABLE TO PROVE DEFENDANT HAD KNOWLEDGE OF CUSTOM--MUST BE WIDELY ACCEPTED IN LOCALITY TO JUSTIFY CHARGING WITH KNOWLEDGE.

C. RES IPSA LOQUITUR ("THE ACT SPEAKS FOR ITSELF")

a. EVENT IS ONE WHICH DOES NOT NORMALLY OCCUR W/O NEGLIGENCE.

b. CONDUCT OF P. AND THIRD PARTY ELIMINATED BY EVIDENCE (NO CONTRIBUTORY NEGLIGENCE)

c. CONSEQUENCES WITHIN D's SCOPE OF DUTY TO P.

d. NOTE: R.I.L. WHERE AN ACCIDENT COULD NOT HAVE HAPPENED IN THE ABSENCE OF A D's NEGLIGENCE, THE P. DOES NOT HAVE TO PROVE THE D's NEGLIGENCE. MAJORITY VIEW-R.I.L. CREATES ONLY INFERENCE OF NEGLIGENCE-GARANTEES TRIAL [MINORITY VIEW-STATUS OF REBUTTABLE PRESUMPTION OF BREACH OF DUTY OWED, SHIFTS BURDEN OF PROOF TO D. TO PROVE NO NEGLIGENCE. IF D. FAILS-THEN LIABLE.]

e. R.I.L. NOT APPLIED TO MULTIPLE ACTOR CASES. i.e. AUTOMOBILE ACCIDENTS.

1. R.I.L.--A RULE OF EVIDENCE WHICH HELPS P. PROVE A BREACH OF DUTY BY CIRCUMSTANTIAL EVIDENCE. PROOF OF ONE THING IN WHICH SOMETHING ELSE CAN BE INFERRED.

2. R.I.L. APPLIED--AT TIMES, IT IS NOT FAIR FOR P. TO PROVE EVIDENCE OF NEGLIGENCE--P. HAS NO EVIDENCE--R.I.L. HELPS. (DOES NOT GUARANTEE EVIDENCE BUT DOES BEAT A NON-SUIT OR DISMISSAL)

a. MUST BE ABLE TO TIE D. TO NEGLIGENT ACT.- D. HAS CONTROL OVER WHAT HAPPENED OR NO OTHER NON-NEGLIGENT EXPLANATIONS OF RESULT. [REQUIRED CONTROL AT TIME OF NEGLIGENCE/ NOT AT TIME OF INJURY]

3. R.I.L.- IS USED BY PEOPLE WHO HAVE DIFFICULTY OBTAINING INFORMATION - USUALLY THE D. KNOWS MORE ABOUT THE CASE.

CAUSE IN FACT/ACTUAL CAUSE

D. MUST PROVE THE CONNECTION BETWEEN D's ACTION IN THE RESULTING INJURY

1. THE "BUT FOR" RULE: "BUT FOR" THE CONDUCT OF THE D., IT WOULD NOT HAVE OCCURRED.

2. JOINT/SEVERAL LIABILITY: 2 D's ACTING TOGETHER(A CONCERTED ACTION) INCUR JOINT/SEVERAL LIABILITY. P. MAY ACT AGAINST EITHER OR BOTH.

3. INDEPENDANT TORTIOUS ACTS (2 OR MORE CAUSES: CONCURRENT LIABILITY)

a. WHERE INDEPENDANT TORTIOUE ACTS OF TWO OR MORE DEFENDANTS JOIN TO PRODUCE A SINGLE INDIVISABLE INJURY WHICH CANNOT BE APPORTIONED W/ REASONABLE CERTAINTY THEN ALL WRONGDOERS ARE HELD JOINTLY AND SEVERALLY LIABLE.

(1) P. MAY PROCEED AGAINST ANY OR ALL IN ONE SUIT COLLECTIVELY FOR DAMAGES. eg, IF P. SUFFERS DAMAGES OF $10000, AND A,B,C, ARE SEVERALLY LIABLE P. MAY RECOVER AGAINST ANY ONE OR ALL THREE YET TOTAL CANNOT EXCEED $10,000.

b. GENERAL PARTNERSHIP SUITS: EACH PERTNER IS LIABLE WITH WRONGDOER.

c. MASTER/SERVANT RELATIONSHIP: "RESPONDEAT SUPERIOR"-BOTH MASTER AND SERVANT ARE LIABLE FOR SERVANTS ACTIONS. HOWEVER MASTER MAY INDEMNIFY HIMSELF FROM EMPLOYEE IN A SEPARATE SUIT.

d. SINGLE INDIVISABLE RESULT:

(1) SINGLE INDIVISABLE RESULT = JOINT LIABILITY. i.e. 2 D's SHOOT AND P. HIT, DON'T KNOW WHO'S BULLET HIT, YET BOTH ACTORS, COURTS RULE JOINT & SEVERAL LIABILITY.

(2) ALTERNATIVE LIABILITY: WHERE JOINT LIABILITY EXISTS, YET P. CANNOT APLY THE "BUT FOR" RULE TO DETERMINE RESPONSIBILITY, THE BURDEN OF PROOF IS SHIFTED TO D's TO PROVE THAT THEIR NEGLIGENCE WAS NOT THE CAUSE OF INJURIES. AS IN CASE ABOVE (SHOOTING) UNLESS THE BURDEN WAS SHIFTED TO D., NEGLIGENCE WOULD GO UNREDRESSED BECAUSE P. WOULD OTHERWISE HAVE NO WAY TO PROVE CAUSATION.

e. SUBSTANTIAL ELEMENT RULE: WHERE 2 DESTRUCTIVE ELEMENTS MERGE TO CAUSE DAMAGE:

(1) IF FIRST D. AND SECOND D. ARE KNOWN, THEN JOINT & SEVERALLY LIABLE. IF ONLY ONE D. IS KNOWN, P. MAY PROCEED AGAINST KNOWN TORTFEASOR. (KNOWN TORTFEASOR MUST CONSTITUTE A MATERIAL AND SUBSTANTIAL ELEMENT OF P's DAMAGE.)

(2) WHERE NATURE CAUSES ONE ELEMENT, CASES CAN GO EITHER WAY.

(3) SUBSTANTIAL FACTOR RULE: WHERE AN ACTOR'S CONTRIBUTION TO DAMAGE IS MINIMAL, ACTOR RELIEVED OF LIABILITY. (NON-SUBSTANTIAL ACTORS REMOVED)

f. DIVISIBLE LIABILITY: WHERE DAMAGES MAY BE APPORTIONED WITH PARTICULAR CERTAINTY, DAMAGES WILL BE PROPORTIONALLY ALLOCATED. [THIS IS DOCTRINE OF EQUITABLE CONTRIBUTION]

(1) UNIFORM CONTRIBUTION AMONG TORTFEASORS ACT-COLORADO STATUTE. "A TORTFEASOR WHO HAS PAID MORE THAN HIS SHARE OF LIABILITY IS ENTITLED TO RECOVERY ONLY OF THE AMOUNT IS EXCESS OF HIS SHARE. NO TORTFEASOR IS COMPELLED TO PAY BEYOND HIS SHARE."

XII. PROXIMATE/LEGAL CAUSE

IN ADDITION TO SHOWING THAT D's CONDUCT WAS THE CAUSE IN FACT OF P's INJURIES, P MUST ALSO ESTABLISH THAT THE CONDUCT WAS THE PROXIMATE OR LEGAL CAUSE OF THE INJURIES. IN DETERMINING PROXIMATE CAUSE WE DETERMINE, AS A MATTER OF POLICY, HOW FAR THE D's LIABILITY EXTENDS FOR THE CONSEQUENCES CAUSED BY HIS ACTS. PROXIMATE CAUSE DEALS WITH D's LIABILITY FOR UNFORSEEABLE OR UNUSUAL OCCURANCES.

A. POLEMIS: THE DIRECT CAUSE RULE (MINORITY)

1. LIABILITY RESULTS REGARDLESS OF THE FORSEEABILITY OF THE CONSEQUENCES. IF D. IS THE CAUSE IN FACT, THEN HE IS LIABLE FOR ANY AND ALL CONSEQUENCES NO MATTER HOW REMOTE OR UNFORSEEABLE. (FIRE BURNING BARN, CITY, STATE, WORLD ECT...)

B. WAGON MOUND--THE RISK RULE (MAJORITY)

1. THE D. IS ONLY LIABLE FOR DAMAGES THAT COULD HAVE BEEN REASONABLY PREDICTED OR ANTICIPATED CONSEQUENCES OF HIS ACTIONS. THE FORESIGHT OF THE REASONABLE OR PRUDENT MAN DETERMINES LIABILITY. TO DETERMINE LIABILITY, ASK "WHAT WOULD THE REASONABLE MAN IN LIKE CIRCUMSTANCES REASONABLY FORESEE".

C. PALSGRAF--THE FORESEEABLE P. OR PERSON WITHIN THE ZONE OF DANGER RULE

1. THE D. IS NOT LIABLE TO THOSE P's OUTSIDE A REASONABLY FORESEEABLE ZONE OF DANGER.

2. THE FORESEEABLE PLAINTIFF. IF NOT A FORSEEABLE PLAINTIFF THEN DEF. OWES NO DUTY OF CARE.

D. THE RESCUE RULE, AN EXCEPTION TO THE PALSGRAF LINE:

1. CARDOZO " DANGER INVITES RESCUE" AND THUS RESCUE IS FORSEEABLE AS A MATTER OF LAW, CREATING A DUTY OF CARE AND LIABILITY UPON THE NEGLIGENT PARTY. CASES AGREE THAT A RESCUER MAY RECOVER AGAINST A NEGLIGENT DEF.-- THIS THE RESCUE DOCTRINE.

E. VIOLATION OF STATUTE AND PROXIMATE CAUSE:

1. IN MOST STATES A VIOLATION OF A STATUTE IS NEGLIGENCE PER SE. YET " THOSE ONLY TO WHOM THE STATUTORY DUTY IS DUE AND WHO HAVE SUSTAINED INJURIES OF THE CHARACTER ITS DISCHARGE WAS DESIGNED TO PREVENT CAN MAINTAIN ACTIONS FOR BREACH"

THUS UNLESS THE INJURY WHICH RESULTED WAS THAT TYPE

THE STATUTE TARGETED TO LIMIT THERE IS NO RECOVERY.

F. QUALIFYING AND APPLYING THE RISK RULES:

1. THERE ARE TWO BASIC RULES POLEMIS ON THE ONE HAND AND PALSGRAF/WAGONMOUND ON THE OTHER. THE FOLLOWING IS A BRIEF OF MANIPULATIONS OF THESE RULES.

a. HUGHES V. LORD ADVOCATE -- AN EXPLOSION OCCURRED WHEN TWO KIDS ENTERED AN ABANDONED MANHOLE. THE LAMP, BY EXPLODING, BEHAVED IN AN UNPREDICTABLE WAY AND THUS THE COURT RULED THAT THERE WAS NO LIABLITY[A DISTINCT WAGONMOUND RING]. DISSENT -- (MORE PLOEMIS) THE ACCIDENT WAS CAUSED BY A KNOWN SOURCE OF DANGER BUT CAUSED IN A WAY THAT COULD NOT HAVE BEEN FORSEEN, BUT THIS GIVES NO DEFENSE.

G. THE "THIN SKULL CASES" -- DEF. STRIKES A P. NEGLIGENTLY WITH ORDINARILY WOULD ONLY RESULT IN SLIGHT INJURY. THE P. HAS AN UNUSUALLY THIN SKULL AND THE RESULTANT INJURIES ARE SEVERE. THE THIN SKULL RULE: IF THE DEF. IS GUILTY OF A TORT, THAT IS WAS NEGLIGENT OR GUILTY OF AN INTENTIONAL HARM THEN THE FACT THAT THE INURY THAT RESULTED WAS WORSE THAN ANYONE EXPECTED DOES NOT LIMIT HIS LIABLITY. "THE DEFENDANT TAKES THE PLAINTIFF AS HE FINDS HIM".

H. THE FIRE CASES: SMITH V. LONDON S.W. RAILWAY -- THEY HELD THAT LIABILITY EXISTED FOR ALL THE NATURAL CONSEQUENSES OF THE NEGLIGENTLY STARTED FIRE. [THIS CASE WAS RELIED UPON FOR POLEMIS] YET IN THE DISSENT -- " WHAT A PERSON ANTICIPATES IS IMPORTANT IN CONSIDERING HIS NEGLIGENCE. THIS CASE IS DATED 1870 AND WAS USED IN POLEMIS, YET REVEALED, IN THE DISSENT IDEAS OF FORSEEABILITY.

INTERVENING CAUSES AND THERE IMPACT ON PROXIMATE CAUSE

I. THE PROXIMATE CAUSE OF AN INJURY IS THAT WHICH IN A NATURAL AND CONTINOUS SEQUENCE UNBROKEN BY ANY EFFICIENT INTERVENING CAUSE PRODUCES INJURY AND WITHOUT WHICH THE INJURY WOULD NOT HAVE OCCURED.

1. THUS THE DEFENDANT MAY NOT BE LIABLE IF THERE IS A SECOND CAUSE ARISING LATER AND CONTRIBUTING TO THE PLAINTIFF'S INJURY.

2. THE DOMINANT VIEW OF THE TWENTIETH CENTURY WAS INFLICTION OF HARM BY A MORAL BEING WHO IS FREE TO ACT, INFORMED AND ABLE TO CHOOSE WOULD "SUPERSEDE" THE NEGLIGENCE OF THE FIRST ACTOR. YET IN WALKER V. BURGDORF " WHEN THE NEW CAUSE OR AGENCY CONCURS WITH THE CONTINUING AND COOPERATING ORIGINAL NEGLIGENCE IN WORKING THE INJURY AND BECAUSE THE NEW AGENCY IS UNFORSEEABLE IS NO MEANS OF RELIEF OF LIABLITY.

3. IN DERDIARIAN V. FELIX CONTRACTION CORP. -- THE COURT HELD " AN INTERVENING ACT MAY NOT SERVE AS A SUPERSEDING CAUSE AND RELIEVE AN ACTOR OF RESPONSIBILITY WHERE THE RISK OF THE INTERVENING ACT OCCURRING IS THE VERY SAME RISK WHICH RENDERS THE ACTOR NEGLIGENT. IN THIS CASE A CONTRACTOR WAS UNDER A DUTY TO PROTECT A WORKSITE FROM ON-COMING CARS WHICH WOULD INJUR WORKERS. A DRIVER SUFFERED AN EPILEPTIC SEIZURE AND CRASHED THROUGH THE WORKSITE AND INJURED THE PLAINTIFF. IT WAS PROVEN THAT THE SITE WAS NOT PROTECTED TO LEGAL SPECIFICATIONS AND BECAUSE THE SEIZURE CAUSED THE CRASH THE DEF. IS NOT PROTECTED FROM LIABLITY WHICH RESULTED FROM THE FACT THAT THE PROPER BARRICADE WOULD PROTECT WORKERS FROM ALL CAR CRASHES REGARDLESS OF THERE CAUSE.

4. AN INTERVENING ACT INTERUPTS THE NATURAL SEQUENCE OF EVENTS TURNS ASIDE THEIR COURSE PREVENTS THE NATURAL AND PROBABLE RESULT OF THE ORIGINAL ACT OR OMISSION AND PRODUCES A DIFFERENT RESULT THAT COULD HAVE BEEN REASONABLE FORSEEN. IN THIS INSTANCE THE ORIGINAL NEGLIGENCE IS PROTECTED.

5. WHEN THE RISK EXPOSED TO A PLAINTIFF AS A RESULT OF NEGLIGENCE HAS CEASED OR "STABLIZED" ANY INJURY THAT RESULTS AFTER THE PASSING OF SUCH RISK IS BEYOND THE LIABLITY OF THE ORIGINAL NEGLIGENT PARTY. THIS NOTION OF TIMING AND RELATEDNESS TO A NEGLIGENTLY PROVIDED RISK WAS BROUGHT UP IN MARSHALL V. NUGET WHERE THE COURT HELD THAT THE DEF. WAS LIABLE BECAUSE THE EXTRA RISKS CREATED BY DEF. NEGLIGENCE WERE NOT OVER AT THE MOMENT THE COLLISION OCURRED AND THUS DEF. IS LIABLE.

6. THE TERMINATION OF RISK -- CONSTRUCTION COMPANY NEGLIGENTLY LEAVES BLASTING CAPS IN THE OPEN. A BOY PICKS THEM UP AND TAKES THEM HOME. THE PARENTS KNEW OF THE CAPS. A WEEK LATER THE BOY TRADED THEM TO ANOTHER CHILD WHO WAS INJURED PLAYING WITH THEM. THIS IS AN EXAMPLE OF A TERMINATED RISK. THIS CONCEPT INVOLVES THE NOTION THAT THE P. REACHES A POSITION OF APPARENT SAFETY. THE MOTHER HAVING LEARNED OF THE CAPS SHOULD HAVE CONFISCATED THEM.

J. RESTATEMENT OF TORTS S.451

1. AN INTERVENING OPERATION OF A FORCE OF NATURE WITHOUT WHICH THE OTHERS HARM WOULD NOT HAVE RESULTED FROM THE ACT0RS NEGLIGENT CONDUCT PREVENTS THE ACTOR FROM BEING LIABLE IF :

a. THE OPERATION OF THE FORCE IS EXTRAORDINARY AND

b. THE HARM RESULTING FROM IT IS OF A KIND DIFFERENT FROM THAT THE LIKELIHOOD OF WHICH MADE THE ACTORS CONDUCT NEGLIGENT.

DEFENSES TO NEGLIGENCE

XIII. CONTRIBUTORY NEGLIGENCE: AS POTENTIAL BAR TO RECOVERY

A. CONTRIBUTORY NEGLIGENCE IS CONDUCT ON THE PART OF THE PLAINTIFF THAT IS A CONTRIBUTING CAUSE TO HIS OWN INJURIES AND THAT FALLS BELOW THE STANDARD TO WHICH HE IS REQUIRED TO CONFORM FOR HIS OWN PROTECTION.

1. DISTINGUISH AVOIDABLE CONSEQUENCES: PLAINTIFF IS REQUIRED TO EXCERCISE REASONABLE CARE AND CANNOT RECOVER FOR AVOIDABLE CONSEQUENCES. VOIDABLE CONSEQUENCES OPERATE ONLY TO REDUCE THE AMOUNT OF DAMAGES P. CAN RECOVER. THIS IS A RULE OF DAMAGES AND HAS NOTHING TO DO WITH CONTRIBUTORY NEGLIGENCE BECAUSE P's FAILURE TO MITIGATE DAMAGES IN NO WAY CAUSED OR CONTRIBUTED TO THE ORIGINAL ACCIDENT. i.e. P. HAS DUTY TO MITIGATE DAMAGES.

B. PRIMA FACIE CASE: IT IS A DUTY TO EXERCISE DUE CARE IN THE CIRCUMSTANCES TO AVOID ONE'S OWN INJURY AT THE HANDS OF ANOTHER. CAN BE ACT OR OMMISSION. P'S CONDUCT IS MEASURED BY WHAT THE REASONABLE PERSON WOULD HAVE DONE UNDER SIMILAR CIRCUMSTANCES

1. THE CONTRIBUTORY NEGLIGENCE MUST BE A PROXIMATE CAUSE OF ACCIDENT.

2. CONTRIBUTORY NEGLIGENCE PER SE: WHERE P. HAS VIOLATED A STATUTE ENACTED FOR HIS OWN PROTECTION AS WELL AS THE PROTECTION OF OTHERS, THE VIOLATIOIN ITSELF MAY ESTABLISH DUTY AND BREACH.

C. AT COMMON LAW, CONTRIBUTORY NEGLIGENCE IS AN ABSOLUTE AND COMPLETE BAR TO RECOVERY NO MATTER HOW SLIGHT THE NEGLIGENCE OF THE PLAINTIFF.

D. EXCEPTION:

1. WHERE THE DEF. POSSESSES WILFUL, WANTON OR RECKLESSNESS P's ORDINARY CONTRIBUTORY NEGLIGENCE IS NO BAR.

a. BUT, IF P's MISCONDUCT IS ALSO WILLFUL, WANTON OR RECKLESS, IT IS A COMPLETE BAR TO RECOVERY.

2. LAST CLEAR CHANCE AND DISCOVERED PERIL DOCTRINES:

a. P's CONTRIBUTORY NEGLIGENCE WILL NOT BAR RECOVERY IF DEF., IMMEDIATELY PRIOR TO THE ACCIDENT, HAD THE LAST CLEAR CHANCE TO AVOID IT AND FAILED TO DO SO.

b. DISCOVERED PERIL: IF AFTER DEF. DISCOVERED OR SHOULD HAVE DISCOVERED P's HELPLESS CONDITION AND NEGLIGENTLY FAILED TO AVOID THE ACCIDENT, P's CONTRIBUTORY NEGLIGENCE IS NOT A BAR.

(1) HELPLESS PERIL CASES: P. MAY BE AWARE OF DANGER AND THE ONLY REMAINING OPPORTUNITY TO AVERT ACCIDENT RESTS WITH DEF. [P. CARELESSLY RUNS ACROSS BUSY STREET, FALLS AND SPRAINS ANKLE]

(2) INATTENTIVE PERIL: P. COULD EXTRICATE SELF IF AWARE OF DANGER.

(a) DEF. IS ONLY LIABLE WHEN HE HAS ACTUAL KNOWLEDGE OF P's PRESENCE IN TIME TO AVOID THE ACCIDENT BEFORE LAST CLEAR CHANCE WILL APPLY.

c. EXCEPTION STATUTES: WORKMANS COMPENSTAION

(1) ALL DEFENSES COMPLETELY ABOLISHED

(a) STRICT LIABILITY FOR INJURY

(b) PERCENTAGE OF WAGE--NO RECOVERY FOR PAIN AND SUFFERING

(c) MEDICAL EXPENSES LIMITED TO STATE FEE SCHEDULES

(2) FEDERAL EMPLOYEE LIABILITY ACT

(a) ABOLISHED FELLOW SERVANT DOCTRINE AND ASSUMPTION OF RISK AS DEFENSES

i) REPLACE CONTRIBUTORY NEGLIGENCE WITH COMPARITIVE NEGLIGENCE.

(b) LIBERAL APPROACH NEARED STRICT LIABILITY BUT REQUIRED SOME FAULT

(3) APPLICATION:

(a) LIMITED TO RAILROAD WORKERS AND SEAMEN.

(b) ALLOWED FOR INCOME, EXPENSES, PAIN AND SUFFERING.

d. EXCEPTION: PRODUCT LIABILITY

(1) IF P's ASSERTED NEGLIGENCE IS EXACTLY THE TYPE A SAFETY DEVICE IS INTENDED TO GUARD AGAINST THEN CONTRIBUTORY NEGLIGENCE IN NOT AVAILABLE.

COMPARATIVE NEGLIGENCE

E. IF BOTH P AND D ARE NEGLIGENT, THIS DOCTRINE ATTEMPTS TO APPORTION THE LOSS ACCORDING TO THEIR FAULTS.

1. PURE COMPARATIVE NEGLIGENCE: ALLOWS A PERCENTAGE RECOVERY EVEN IF P's NEGLIGENCE EXCEEDS D's.

a. APPLIED IN ADMIRALTY COURT AND IN CALIFORNIA.

2. MODIFIED COMPARATIVE NEGLIGENCE: DENY RECOVERY TO P. IF P's NEGLIGENCE PASSES THRESHOLD.

a. STATES MAY HAVE 49% OR 50% PLAN. i.e. STATES WILL DENY RECOVERY OF TO P. IF HIS NEGLIGENCE = OR EXCEEDS THE DEF's NEGLIGENCE OR IF P's NEGLIGENCE EXCEEDS THE THRESHOLD.

3. MULTIPLE DEFENDANTS:

a. VIEW #1:MOST STATES FOLLOW THE 49% APPROACH AND HOLD THAT P's NEGLIGENCE MUST BE LESS THAN THAT OF ANY ONE DEFENDANT. i.e. 2 DEFS, EACH 1/3 INDEPENDENTLY AT FAULT, P ALSO 1/3 AT FAULT = NO RECOVERY.

b. VIEW #2: OTHER STATES [MINORITY] CONSIDER THE NEGLIGENCE OF MULTIPLE DEF's IN AGGREGATE. P ALLOWED RECOVERY IF FAULT IS LESS THAN COMBINED NEGLIGENCE ON DEFS.

c. ABSENT PARTIES: THE JURY IS TOLD TO CONSIDER ALL PARTIES WHETHER THEY APPEAR BEFORE THE COURT OR NOT.

4. WHERE PLAINTIFF IS NOT NEGLIGENT, NO COMPARISON IS NECESSARY. i.e. FAILURE TO USE A PROTECTIVE HELMET WHEN NOT A STATUTORY DUTY IS NOT ADMISSABLE IN DETERMINING COMPARATIVE OR CONTRIBUTORY NEGLIGENCE.

XIV. IMPACT ON OTHER RULES:

A. LAST CLEAR CHANCE/DISCOVERED PERIL: VIRTUALLY ALL COURTS HOLD THAT THE DOCTRICE OF LAST CLEAR CHANCE OR DISCOVERED PERIL IS ABOLISHED UNDER COMPARATIVE NEGLIGENCE.

B. ASSUMPTION OF RISK:

1. IMPLIED ASSUMPTION IS ABOLISHED IS SOME STATES THROUGH COMPARATIVE NEGLIGENCE. i.e. ACCEPTING HAZARDOUS EMPLOYMENT

a. KNOWING DANGER AND SUBMITTING TO IT IS NOT ALWAYS AN IMPLIED ASSUMPTION. MUST CONSIDER:

(1) VOLUNTARINESS

(2) KNOWLEDE OF THE RISK

2. EXPRESS ASSUMPTION OF RISK:

a. VALID EXPRESS WAIVERS RELEASE PARTY OF DUTY AND THUS PRECLUDE NEGLIGENCE

b. BLANKET WAIVERS ARE SUBJECT TO CLOSE SCRUTINY AND STRICT INTERPRETATION. THUS ASSUMPTION OF RISK MAY STILL BE A DEFENSE WHERE THE PLAINTIFF HAS EXPRESSLY CONSENTED TO ENCOUNTER A DANGEROUS ACTIVITY OR CONDITION.

3. WANTON OR RECKLESS CONDUCT.

a. REDUCTION USUALLY REMAINS IF P. CONTRIBUTES WHEN DES. IS WANTON OR RECKLESS.

4. RES IPSA LOQUITOR: REQUIRES ABSENCE OF NEGLIGENCE OF P. TO INVOKE

a. THE RULE GIVES WAY UNDER COMPARATIVE NEGLIGENCE BECUASE OF THE PROBLEM OF ASSIGNING A % OF DAMAGES WHEN DEF. ACT IS UNKNOWN.

ASSUMPTION OF THE RISK

XV. REQUIREMENTS TO INVOKE

A. P. RECOGNIZED AND UNDERSTOOD PARTICULAR RISK.

1. REQUIRES KNOWLEDGE OF SPECIFIC THREAT, NOT GENERAL DANGER.

B. P. VOLUNTARILY CHOSE TO ENCOUNTER RISK.

1. ASSUMPTION MAY NOT BE DICTATED BY NECISSITY, FORCE, OR FRAUD.

XVI. ASSUMPTION BY EXCULPATORY CLAUSES

A. VALIDITY DEPENDS ON ENFORCEABILITY AS MATTER OF CONTRACT LAW.

1. EXAMINE BARGAINING POSITION OF PARTIES.

a. ADHESION CONTRACTS VOID.

(1) MAY NOT INVOLVE A PUBLIC DUTY.

(2) INTENTION MUST BE CLEAR AND UNAMBIGUOUS

2. BLANKET WAIVERS USUALLY VOID

a. e.g. HOSPITAL BLANKET RELEASES

b. FROM LEASE BLANKET RELEASES

3. PARTY MUST HAVE BEEN CAPABLE OF ASSUMING RISK

B. NEVER VALID AS AGAINST INTENTIONAL TORTS.

XVII. IMPLIED ASSUMPTION BY CONDUCT

A. SUBJECTIVELY DETERMINED BY WHAT P. ACTUALLY KNEW. (NOT REASONABLE MAN TEST)

1. EVIDENCED BY EXTERNAL MANIFESTATIONS.

2. AGE AND EXPERIENCE USED AS DETERMINANT.

a. e.g. ATTENDING A BASEBALL GAME--IMPLIED CONSENT TO SOME DANGERS

B. P. MEMBER OF STATUTORILY PROTECTED CLASS

1. INCAPABLE OF IMPLICIT OR EXPLICIT ASSUMPTION.

C. COMPARE: CONTRIBUTORY NEGLIGENCE

1. P. RUNNING INTO STREAM OF TRAFFIC MAY BE CONTRIBUTORILY NEGLIGENT, BUT HAS NOT ASSUMED RISK i.e. DRIVERS STILL OWE STANDARD OF CARE.

STATUTE OF LIMITATIONS

XVIII. WHEN DOES CAUSE OF ACTION ACCRUE?

A. FROM THE DATE OF INJURY OR DATE OF MALPRACTICE.

XIX. DISCOVERY RULE:

A. STATUTE TOLLED UNTIL REASONABLY PRUDENT PERSON ASSOCIATES SYMPTOMS WITH A SERIOUS OR PEMANANT CONDITION AND PERCEIVES DEFENDANT'S ROLE.

1. [SEE UTAH MEDICAL, & PRODUCTS STATUTES]

XX. UTAH SPECIFICS

A. MEDICAL MALPRACTICE = 2 YEARS

1. 1 YEAR FOR FOREIGN OBJECTS LEFT IN PERSON.

a. STATUTE OF REPOSE = 4 YEARS

B. PRODUCTS LIABILITY = 6 YEARS

1. STATUTE OF REPOSE = 10 YEARS

C. STATUTE OF REPOSE

1. ABSOLUTE OUTSIDE LIMIT ON ACTION

2. SOMETIMES UNCONSTITUTIONAL

COMPLIANCE WITH STATUTE

XXI. NOT VALID DEFENSE PER SE

A. DUE CARE MAY REQUIRE MORE THAN CRIMINAL STANDARD

B. DEPENDS ON STATUTE AND CIRCUMSTANCE

SPECIAL OR LIMITED DUTIES OF CARE

STANDARDS BASED ON DANGER:

XXII. GREATER CARE REQUIRED FOR COMMERCE, PRODUCTS, ETC..WHICH INHERENTLY POSE A HIGH RISK TO OTHERS

A. e.g. GAS, ELECTRICITY

DUTIES BASED ON CLASS OR STATUS OF PARTIES

XXIII. COMMON CARRIERS

A. CARRIER OF PASSENGERS FOR HIRE MUST EXERCISE MORE THAN ORDINARY CARE.

1. INVOLVES FORESEEING AS WELL AS GUARDING AGAINST.

2. MUST CHOOSE COURSE LEAST LIKELY TO CAUSE PASSENGERS HARM.

XXIV. HOST DRIVERS [SEE UTAH GUEST ACTS] AIRPLANE GUEST STATUTE

A. COMMON LAW RULE: REQUIRES ONLY REASONABLE CARE.

B. STATUTES:

1. MAY REQUIRE RECKLESS, WILLFUL, OR WANTON MISCONDUCT

C. GUEST OR PASSENGER:

1. PAYMENT MUST OPERATE AS MOTIVATING INFLUENCE.

a. SHARING EXPENSES MAY BE SUFFICIENT.

2. DEMANDING EXIT AS RESULT OF NEGLIGENCE IMPOSES PASSENGER STATUS REGARDLESS.

D. CONSTITUTIONALITY QUESTIONED:

1. VIOLATIVE OF EQUAL PROTECTION UNDER THE LAWS.

XXV. LANDOWNERS

A. PEOPLE OFF THE LAND

1. IF CONDITIONS PURELY NATURAL THEN LANDOWNER HAS NO DUTY.

a. NATURAL CONDITIONS CREATING RISK TO THOSE OFF THE LAND = DUTY. [DEPENDS ON KNOWLEDGE OF RISK]

b. RURAL V. URBAN ROADS--MAINTENANCE OF AREA ADJACENT TO ROAD.

2. ARTIFICIAL CONDITIONS e.g. CUTTING TREES.

a. LIABILITY VIA IMPOSING RISK ON THOSE OFF THE LAND THROUGH ACTIVITIES.

b. NO DUTY AS TO ARTIFICIAL STRUCTURES ON LAND.?

B. PEOPLE ON THE LAND

1. ORDINARY TRESPASSERS

a. NO DUTY IF PRESENSE IS UNKNOWN

(1) DUTY ONLY TO FOREBEAR FROM WANTON, RECKLESS, OR INTENTIONAL INJURY.

b. KNOWN TRESPASSERS

(1) DUTY TO WARN OF ARTIFICIAL CONDITIONS INVOLVING RISK IF TRESPASSER IS KNOWN OR SHOULD BE KNOWN TO LANDOWNER.

(a) NO OBLIGATION TO FIND DANGER, ONLY TO WARN OF ARTIFICIAL DANGERS KNOWN.

(2) WARN WHERE RISK OF BODILY HARM

2. LICENSEES (IMPLIED OR ACTUAL CONSENT)

a. ON LAND FOR OWN PRUPOSES WITH IMPLIED OR ACTUAL CONSENT.

(1) e.g. SOCIAL GUESTS, VISITING RELATIVES, AND BUSINESS VISITORS STRAYING FROM AUTHORIZED AREAS.

b. DUTY OWED TO LICENSEE

(1) NO DUTY TO INSPECT OR MAKE SAFE.

(2) MUST WARN OF DANGER KNOWN OR HAVING REASON TO KNOW OF.

(a) MUST HAVE REASON TO THINK LICENSEE WILL ENCOUNTER KNOWN DANGER.

3. INVITEES

a. ON LAND TO CONFER BENEFIT ON LANDOWNER.

(1) e.g. GARGAGEMEN, METERREADERS, TAX ASSESSORS, PARTONS.

b. DUTY OWED

(1) WARN OF ARIFICIAL DANGERS KNOWN OR KNOWABLE THROUGH REASONABLE INVESTIGATION.

(2) INSPECTION AND WARNING ALL THAT IS REQUIRED. (ORDINARY CARE)

(3) NO DUTY AS TO OBVIOUS AND WELL KNOWN DANGERS.

4. CHILDREN

a. IDENTICAL CLASSIFICATION AS ADULTS.

b. EXCEPTION: ATTRACTIVE NUSIANCE DOCTRINE:

(1) DOES NOT REQUIRE ATTRACTION OR NUSIANCE.

(2) REQUIREMENTS:

(a) TRESPASS BY CHILDREN FORESEEABLE

(b) HARM FORESEEABLE

(c) LANDOWNER KNOWS OR HAS REASON TO KNOW OF DANGER.

i) NO DUTY TO INSPECT, BASED ON FACTS ACTUALLY POSSESSED.

(d) REASON TO THINK THAT CHILD BY REASON OF AGE CANNOT PROTECT SELF FROM DANGER.

(3) DUTY OWED WHERE APPLICABLE

(a) REASONABLE CONDUCT UNDER CIRCUMSTANCES

i) REASONABLY PRUDENT PERSON.

ii) MUST BE ECONOMICALLY FEASABLE AS PER BALANCING TEST.

(b) CIRCUMSTANCES DEPENDANT.

5. FIREMAN's RULE [COPS](PROFESSIONAL PROCUDURES ALSO) NOT LICENSEES OR INVITEES.

a. NO DUTY OWED TO EXERCISE FOR WHICH HE IS TRAINED AND PAID.

(1) NOT LIABLE FOR RISKS INEVITABLY INVOLVED IN JOB.

b. DUTY OWED

(1) USE OPPORTUNITY TO WARN OF HIDDEN PERIL OR NEGLIGENCE WITH RESPECT TO CONDITIONS CREATING UNDUE RISK OF INJURY.

(a) i.e. RISKS BEYOND THOSE INEVITABLY INVOLVED IN FIGHTING FIRE.

C. ROWLAND V. CHRISTIANSEN PRECEDENT

1. ALL PERSONS ON LAND WITH CONSENT ARE OWED THE INVITEE STANDARD.

a. CASE HOLDING DOES NOT INCLUDE TRESPASSERS.

(1) DICTA SUGGESTS ALLL INCLUSIVE.

2. FIRST DECISION TO ABOLISH CATAGORIES.

D. LEGISLATIVE RECREATION OF CATAGORIES

1. RECREATIONAL USE STATUTES

a. NON PAYING GUEST WITHOUT EXPRESS INVITATION

(1) LIABILITY ONLY FOR "WILLFUL OR MALICIOUS FAILURE TO GUARD OR WARN"

b. DUTY OWED TO PAYING ENTRANTS.

E. LESSORS

1. DUTY OWED

a. LAND LESSOR MSUT EXERCISE ORDINARY CARE IN MAINTENANCE OR PREMISES.

b. TENANT LIABLE TO INJURED PARTY WHERE HE HAS KNOWLEDGE OF DEFECT.

c. LESSOR LIABLE ALWAYS WHEN LEASED FOR PUBLIC USE

d. PATENT DANGER

(1) NO DUTY

e. LATENT DANGERS

(1) LESSOR HAS DUTY TO REPAIR OR WARN

(a) HAS NO DUTY TO INVESTIGATE

f. DANGERS ARISING AFTER TRANSFER

(1) NO DUTY ON PART OF LESSOR, EXCEPT MAKING NEGLIGENT REPAIRS.

DUTIES OF PROFESSIONALS: MEDICAL MALPRACTICE [OR LAW]

XXVI. REASONABLE PRUDENT PERSON STANDARD ABANDONED

A. AJUDGED BY THE MEDICAL PROFESSION STANDARD AS GOOD OR CUSTOMARY PRACTICE.

1. NOTE: ABSOLUTE PROTECTION AFFORDED IF WITHOUT STANDARD; EVEN IF PRUDENT PERSON WOULD HAVE ACTED MORE SAFELY.

XXVII. SETTING THE STANDARD:

A. MUST BE ESTABLISHED THROUGH INDEPENDANT EXPERT TESTIMONY AS TO:

1. STANDARD OF CARE

2. DOCTOR's DEPARTURE FROM STANDARD

3. INJURY CAUSED BY NEGLIGENCE.

a. STANDARD MUST BE ASCERTAINABLE

B. SAME OR SIMILAR COMMUNITY STANDARD USED:

1. EXPERT TESTIMONY MUST KNOW LOCAL STANDARD.

2. INVOLVES FACILITIES AND RESOURCES, PROFESSIONAL TRAINING.

3. SPECIALISTS

a. COMMUNITY = COMMUNITY OF SPECIALISTS, NOT GEOGRAPHIC AREA.

(1) EXPERT WITNESS MUST BE PROFICIENT IN SAME FIELD. e.g. PODITRIST MAY NOT TESTIFY AGAINST CHIROPRACTOR.

C. LOCALITY RULE: STANDARD DEPENDS ON COMMUNITY. [GETTING RAPIDLY OVERTURNED]

D. SCHOOLS OF MEDICINE: OSTHEOPATH, HOMEOPATHY, DIFFERNET FROM STANDARD MEDICAL PRACTICE. USE THE STANDARD OF THE SCHOOL OF MEDICINE THAT YOU ARE DEALING WITH.

E. SPECIALIZATION: BOARD CERTIFIED SPECIALIST. WORKERS COMPENSTATION AND PATENT LAW ARE PRESUMED TO BE SPECIALISTS.

1. MANUFACTUROR's DIRECTIONS

a. LIABILITY MAY BE IMPOSED FOR FAILURE TO HEED DIRECTIONS.

F. DIFFERENCES OF OPINION

1. TREATISES MAY BE USED TO ATTEMPT TO IMPEACH EXPERT TESTIMONY.

a. CANNOT BE USED TO ESTABLISH TESTIMONY.

G. P. MUST SHOW VIOLATION OF STANDARD CAUSED INJURY

1. ALTERNATE PROCUDURES OF NO CONSEQUENCE WHERE ONE IS LESS APPROVED OR OLDER.

XXVIII. WHAT IS A PROFESSIONAL?

A. FACTORS:

1. AMOUNT OF TRAINING

2. EXPERTISE REQUIRED

3. SOCIETAL VALUE

XXIX. MALPRACTICE AND RES IPSA LOCQUITUR: LEADING CASE IS YBARRA [APPENDECTOMY LEADS TO NECK & BACK INJURY]

A. MAY BE INVOKED WHERE LAYMEN ABLE TO SAY OR EXPERT TESTIMONY CONCLUDES THAT:

1. EVENT OR INJURY DOES NOT ORDINARILY OCCUR ABSENT NEGLIGENCE; AND

2. AGENCY OR INSTRUMENTALITY CAUSING HARM WAS WITHIN CONTROL OF DEFENDANT. P. NOT IN CONTROL.

B. WHERE PLAINTIFF UNCONSCIOUS:

1. IF TEST IS MET, ALL DEFENDANTS WHO HAD ANY CONTROL OVER PLAINTIFF OR INSTRUMENTALITY MAY BE CALLED TO MEET INFERENCE OF NEGLIGENCE.

a. NURSES BECOME TEMPORARY AGENTS OR DOCTOR DURING OPERATION.

2. TEST = RIGHT OF CONTROL, NOT ACTUAL CONTROL.

XXX. GOOD SAMARITAN STATUTES

A. PROTECTION OF THOSE RENDERING EMERGENCY AID:

B. SEE UTAH STATUTE.

C. PROBLEMS: ROADSIDE HELP:

1. WHO CAN ACT--ALL HEALTH CARE PRACTITIONERS

2. WHAT IS THE STANDARD?

3. ROLE OF COMPENSATION

XXXI. DUTY TO DELIVER INFORMATION RELEVANT TO CONSENT

A. MUST DISCLOSE IN REASONABLE MANNER ALL SIGNIFICANT MEDICAL INFORMATION WHICH IS POSSESSED OR SHOULD REASONABLY BE POSSESSED, MATERIAL TO AN INTELLIGENT DECISION.

1. BLANKET RELEASE FORMS DO NOT SATISFY OBLIGATION TO DISCLOSE.

B. CAUSATION:

1. P. MUST SHOW THAT HAD INFORMATION BEEN DELIVERED, NEITHER THEY OR A REASONABLE PERSON WOULD HAVE UNDERGONE PROCEDURE.

XXXII. STATUTORY CHANGES IN MEDICAL MALPRACTICE LIABILITY AND PROCEDURE. (COMPARE WITH UTAH STATUTE)

A. SUBSTANTIVE LAW CHANGES

1. MUST PROVE ACTUAL NEGLIGENCE (NO RES IPSA)

2. STANDARD OF CARE MUST BE LOCAL

3. OUTSIDE LIMIT ON STATUTE OF LIMITATIONS

4. NO CLAIM BASED ON CONTRACT

5. LIMITATION OF INFORMED CONSENT CLAIMS

B. REMEDIAL CHANGES

1. UPPER LIMIT ON RECOVERY AMOUNT.

C. PROCEDURAL CHANGES

1. SUBMISSION TO ARBITRATION SCREENING PANEL.

a. DETERMINES VIABILITY OF CLAIM.

b. PANEL MADE OF DOCTORS, LAWYERS, 3rd PERSON.

2. CONSITUTIONAL CHALLENGES

a. LIMITING DAMAGES

b. ABROGATING RIGHT TO JURY.

IMMUNITIES

XXXIII. FAMILY MEMBER IMMUNITIES

A. HUSBAND-WIFE

1. AT COMMON LAW, AN ABSOLUTE IMMUNITY.

a. DISRUPTION OF FAMILIAL HARMONY

2. IMMUNITY DISOLVED IN MOST ALL JURISDICTIONS

a. ERROSION BEGAN WITH MARRIED WOMEN's PROPERTY ACTS.

B. PARENT-CHILD

1. NO IMMUNITY EXISTED AT COMMON LAW.

a. IMMUNITIES LATER EMERGED.

2. MODERN TREND: ABOLITION OF IMMUNITY, THOUGH SLOWER TO DO SO THAN SPOUSAL IMMUNITY.

a. ABOLISHED IN MAJORITY OF JURISDICTIONS.

b. WHERE LIMITED IMMUNITY REMAINS, IT IS MORE A PRIVELEDGE THAN AN IMMUNITY.

(1) e.g. LOCO PARENTIS

C. (SEE UTAH STATUTE)

XXXIV. CHARITABLE IMMUNITES

A. NO LIABILITY AT COMMON LAW

1. TRUST FUND DOCTRINE:

a. DONORS GIVE TRUST FUNDS WHICH ARE IMMUNE.

B. IMMUNITY SUBSTANTIALLY ABOLISHED IN MOST STATES.

1. GOOD SAMARITIAN MUST PAY FOR ITS VICTIMS.

C. (SEE UTAH STATUTE)

XXXV. GOVERNMENTAL TORTY IMMUNITY (SOVEREIGN IMMUNITY)

A. TRADITIONAL RULES: "KING CAN DO NO WRONG"

1. STATE, FEDERAL, & AGENCIES OF GOV't HELD ABSOLUTE IMMUNITY.

a. 5th & 14th REQUIRED COMPENSATION FOR TAKING OF PROPERTY, BUT NOT DESTRUCTION.

2. 11th AMENDMENT: STATES NOT SUEABLE IN FED. COURT BY CITIZEN OF ANOTHER STATE (INCLUDES OWN CITIZENS)

a. MAY SUE STATE OFFICERS IN FED. COURT. FOR VIOLATIONS OF FED. CIVIL RIGHTS LAWS.

3. MUNICIPALITIES

a. CORPORATE BODIES AND AGENTS OF THE STATE.

(1) PROPRIETARY FUNCTIONS---NO IMMUNITY

(a) FUNCTIONS PROVIDEABLE BY A PRIVATE CORPORATION.

i) e.g. PUBLIC STREETS, SEWERS, WATER, ELEC. (MINORITY VIEW MAY SEE THESE AS GOV'TMNTL)

(2) GOVERNMENTAL FUNCTIONS---IMMUNITY

(a) PERFORMED ADEQUATELY ONLY BY GOVERNMENT.

B. DISSOLUTION OF IMMUNITIES:

1. FEDERAL TORT CLAIMS ACT

a. GENERAL WAIVER OF IMMUNITY OF FEDERAL GOV'T.

(1) LIABILITY BASED ON STATE, NOT FED. TORT LAW.

(2) NO PUNITIVE DAMAGES

(3) MUST FILE ADMINISTRATIVE CLAIM FIRST

(4) MUST BE IN FED. COURT W/O A JURY

b. NOT SUBJECT TO STRICT LIABILITY

c. FERES EXCEPTION

(1) ARMED FORCES MEMBERS CANNOT SUE FOR NEGLIGENTLY CAUSED INJURIES OCCURING WHILE ON DUTY

d. STATUTORY EXCEPTIONS

(1) MILITARY AND DELIVERY OF MAIL

(2) DIGNITARY OR ECONOMIC TORTS

(a) ASSAULT, BATTERY, FALSE IMPRISONMENT

i) LIABLE ONLY IF COMMITTED BY AN INVESTIGATIVE OR LAW ENFORCEMENT OFFICER.

e. DISCRETIONARY ACTS

(1) NO LIABILITY FOR DESCRETIONARY ACTS.

(2) BUT NOTE: VIOLATIONS OF FEDERAL REGULATIONS RESULT IN LIABILITY.

C. STATE STATUS

1. SOME ABOLISHED IMMUNITY BY STATUTE

2. SOME ABOLISHED IMMUNITY BY DECISION

3. FEW HAVE RETAINED IMMUNITY

D. LIABILITY OF GOVERNMENTAL OFFICERS

1. LEGISLATIVE FUNCTIONS -- IMMUNITY

2. JUDICIAL FUNCTIONS -- IMMUNITY

3. SOLEY EXECUTIVE FUNCTIONS

a. MINISTERIAL FUNCTIONS (REQUIRED ACTIONS)

(1) FAILURE TO PERFORM = TORT LIABILITY

b. DISCRETIONARY FUNCTIONS -- IMMUNITY IF ACTION HONESTLY IN GOOD FAITH.

4. PUBLIC DUTY DOCTRINE

a. TORT ONLY POSSIBLE IF A SPECIAL RELATIONSHIP CAN BE SHOWN.

(1) MUST SHOW THAT DUTY TO PUBLIC INVOLVED A DUTY TO THE INDIVIDUAL.

b. RELEASING PRISONERS

(1) SEEN AS DISCRETIONARY DUTY.

(a) LIABILITY ONLY WHERE THERE IS FAILURE TO WARN A KNOWN, IDENTIFIABLE VICTIM PLACED IN FORESEEABLE DANGER.

5. SECTION 1983 CASES

a. DEPRIVING ANY PERSON OF A RIGHT OR PRIVILAGE PROTECTED BY CONSTITUTION OR FEDERAL LAW, ACTING UNDER COLOR OF LOCAL LAW.

b. LIABILITY SUBJECT TO QUALIFIED IMMUNITY

(1) JUDICIAL & LEGISLATIVE OFFICERS STILL ABSOLUTELY IMMUNE.

(a) MUST BE ACTING IN THEIR CAPACITY.

(2) OBJECTIVE GOOD FAITH = IMMUNITY

(3) NO APPLICATION TO FEDERAL OFFICERS UNLESS ACTING UNDER STATE LAW.

(4) NO CLAIM AGAINST FEDERAL OFFICERS

c. MUNICIPALITIES ARE PERSONS UNDER 1983 AND THUS LIABLE.

(1) NO GOOD FAITH DEFENSE

d. STATES PROTECTED BY 11th IN FED. COURTS

(1) PERHAPS SUEABLE IN STATE COURT UNDER 1983.

e. BASICALLY APPLIES TO STATE, EXECUTIVE OFFICERS, AND MUNICIPALITIES.

LIMITED DUTIES TO PROTECT AGAINST CERTAIN TYPES OF HARM

CERTAIN HARM

XXXVI. ECONOMIC HARM W/O ACCOMPANYING PHYSICAL INJURY

A. GENERALLY NO DUTY TO EXERCISE DUE CARE TO PROTECT PURELY ECONOMIC INTERESTS.

1. WHERE THE HARM IS STRICTLY ISOLATED TO ECONOMIC ASPECTS THERE IS NO LIABILITY.

a. e.g. A RUNS OVER B, AND C BRINGS SUIT BECAUSE B GAVE HIM A RIDE TO WORK EACH DAY.

B. BUT NOTE: ECONOMIC HARM IS USUALLY RECOVERABLE WITH OTHER ACTIONS.

DUTY TO PROTECT AGAINST MENTAL, EMOTIONAL AND RELATED HARMS

XXXVII. TRADITIONAL VIEW

A. NO GENERAL DUTY TO PROTECT OTHERS FROM EMOTIONAL DISTRESS.

1. RECOVERY ONLY AS PARASITIC DAMAGES TO ACTUAL OR PHYSICAL HARM.

B. CONSORTIUM CLAIMS LIMITED TO HUSBAND.

XXXVIII. LOSS OF CONSORTIUM CLAIMS

A. WELL ACCEPTED FROM EITHER SPOUSE

1. MUST OCCUR BEFORE MARRIAGE

2. REJECTED BY UNMARRIED CONSORTS

B. DERIVATIVE CLAIMS (SOME JURISDICTIONS ONLY)

1. CAN RISE NO HIGHER THAN CLAIM OF INJURED PERSON.

a. EQUALLY REDUCED BY CONTRIBUTORY NEGLIGENCE

C. FAMILY CONSORTIUM: GENERAL RULE

1. NO CONSORTIUM FOR OR BY CHILDREN FOR PARTENTS.

XXXIX. GENERAL MENTAL DISTRESS CLAIM

A. THREAT OF IMPACT SUFFICIENT -- (ACTUAL PHYSICAL IMPACT NOT REQUIRED)

1. GENERAL VIEW REQUIRES MANIFESTATAION BY SYMPTOM

XL. BYSTANDER RECOVERY

A. ZONE OF DANGER (SOME JURISDICTIONS)

1. REQUIRES P. TO BE WITHIN ZONE OF DANGER.

a. REQUIRES IMPACT OR THREAT OF IMPACT TO P.

B. THE DILLON RULE (SOME JURISDICTIONS)

1. DUTY EXTENDS TO ALL THOSE WHOM MAY FORESEEABLY SUFFER IMOTIONAL HARM BECAUSE OF INJURY.

a. DETERMINATIVE FACTORS

(1) LOCATED NEAR SCENE OF ACCIDENT

(2) SHOCK MUST RESULT FROM CONTEMPORANOUS PERSONAL OBSERVANCE OF THE EVENT.

(a) NEED NOT BE SIMULTANEOUS

(b) NEED NOT BE VISUALLY WITNESSED.

(3) CLOSENESS OF RELATIONSHIP

XLI. CASES W/O SYMPTON OF PHYSICAL INJURY

A. NEGLIGENTLY MISHANDLING DEATH NOTICES.

B. MISHANDLING OF DEAD BODIES

C. CA. AND MINORITY HAVE ABOLISHED INJURY REQUIREMENT.

1. e.g. WIFE FALSLY DIAGNOSED WITH SYPHILLIS

D. THREAT OF FUTURE HARM

1. IMPORTANT THAT RISK ACTUALLY EVENTUATE.

a. e.g. LIKLIHOOD OF CANCER DIAGNOSIS.

XLII. EMOTIONAL "THIN SKULL" CASES

A. GENERAL RULE -- "THIN SKULL RULE GENERALLY NOT APPLICABLE ABSENT SPECIFIC KNOWLEDGE OF P's HYPERSENSITIVITY.

1. GENERALLY NO RECOVERY WHERE NORMAL INDIVIDUAL WOULD NOT BE AFFECTED.

DUTY TO UNBORN CHILDREN AND RELATED PROBLEMS

XLIII. EARLY VIEW -- NO RECOVERY: NO CAUSE OF ACTION RECOGNIZED PRIOR TO BIRTH.

XLIV. MODERN VIEW -- CONDITIONAL RECOVERY

A. RECOVERY ALLOWED BY VIRTUALLY ALL COURTS IF:

1. CHILD WAS VIABLE AT TIME OF INJURY AND

2. CHILD WAS BORN ALIVE.

B. FEW LIBERAL STATES ALLOW RECOVERY ABSENT VIABILITY REQUIREMENT.

XLV. WRONGFUL DEATH OF FETUS

A. RECOVERY WOULD REQUIRE FETUS BE CONSIDERED A "PERSON" WITHIN THE WRONGFUL DEATH STATUTE.

XLVI. WRONGFUL BIRTH (PARENT's CLAIM FOR COSTS OF RAISING)

A. RECOVERY USUALLY PERMITTED FOR PAIN AND SUFFERING OF PREGNANCY, RELATED MEDICAL EXPENSES AND ASSOCIATED LOSS OF CONSORTIUM.

B. HEALTHY UNWANTED CHILDREN

1. MOST DENY RECOVERY FOR COST OF RAISING.

C. UNHEALTHY UNWANTED CHILDREN

1. ECONOMIC HARM -- RECOVERY FOR EXTRAORDINARY EXPENSES RELATED TO NATURE OF CHILD's CONDITION.

a. NO RECOVERY FOR USUAL REARING COSTS.

2. EMOTIONAL DISTRESS -- SOME STATES ALLOW RECOVERY FOR EMOTIONAL DISTRESS CAUSED BY UNHEALTHY CHILD.

XLVII. NO WRONGFUL LIFE CLAIM BY CHILD

A. NO ACTION RECOGNIZED FOR WRONGFUL LIFE CLAIM BY CHILD.

1. PROHIBITED BY UTAH STATUTE

WRONGFUL DEATH AND SURVIVAL

ANY DEATH ON TORT EXAM CALLS FOR APPLICATION OF STATUTE

XLVIII. WRONGFUL DEATH CLAIM -- RECOVERY FOR LOSS OF INCOME

A. THIS IS A NEW CAUSE OF ACTION FOR BENEFIT OF RELATIVES.

1. CLAIM GOES DIRECTLY TO SURVIVORS.

B. USUALLY DISALLOW PUNITIVE DAMAGES.

XLIX. SURVIVAL ACTION -- RECOVERY FOR DECEDENT's DAMAGES ACCRUING PRIOR TO DEATH

A. LARGEST RECOVERY FOR PAIN AND SUFFERING BEFORE--MENTAL ANGUISH OF IMPENDING DEATH.

1. INSTANT DEATH PRECLUDES SURVIVAL RECOVERY.

B. RECOVERY BECOMES ASSET TO ESTATE.

1. PAYS FOR EXPENSES OF ADMINISTRATION OF ESTATE.

2. SUBJECT TO PAYMENT OF CREDITORS, HEIRS OR LEGATEES.

L. UTAH WRONGFUL DEATH STATUTE

A. PERSONS COVERED -- WRONGFUL DEATH OF A PERSON NOT A MINOR CAUSED BY WRONGFUL ACT OR NEGLECT.

B. WHO MAY BRING SUIT:

1. PERSONS's HEIRS.

2. PERSONAL REPRESENTATIVES FOR BENEFIT OF HEIRS.

3. GUARDIAN OF THE ADULT PERSON.

C. DAMAGES:

1. SUCH DAMAGES MAY BE GIVEN AS UNDER ALL THE CIRCUMSTANCES THE CASE MAY BY JUST.

LI. UTAH SURVIVAL STATUTE

A. CAUSE OF ACTION ARISING OUT OF PHYSICAL INJURY DOES NOT ABATE UPON DEATH OF WRONGDOER OR INJURED PERSON.

1. THIS REQUIRES PHYSICAL INJURY -- PRECLUDES INTANGIBLE TORTS.

B. THOSE WHO MAY SUE:

1. INJURED PERSON; PERSONAL REP, HEIRS.

C. THOSE WHO MAY BE SUED:

1. WRONGDOER OR HIS PERSONAL REP's.

D. MAY SUE FOR SPECIAL & GENERAL DAMAGES:

1. THIS SEEMS TO ALLOW PENAL DAMAGES.

E. NOTE: IF PERSON DIES PRIOR TO JUDGEMENT OR SETTLEMENT AS RESULT OF CAUSE OTHER THAN WRONGDOER's INFLICTED INJURY:

1. MAY RECEIVE NO MORE THAN OUT OF POCKET EXPENSES INCURRED AS A RESULT OF INJURY.

F. ALL RECOVERY REQUIRES EVIDENCE OTHER THAN THE TESTIMONY OF THE INJURED PERSON.

LII. SURVIVAL STATUTE RULE OF PROCUDURE (UTAH RULE 25)

A. MOTION FOR SUBSTITUTION OF PARTIES MUST BE MADE NOT LATER THAN 90 DAYS AFTER DEATH OF PARTY.

1. FAILURE = ACTION SHALL BE DISMISSD AS TO THE DECEASED PARTY.

2. ACTION DOES NOT ABATE IF EITHER THE SURVIVING P's OR SURVIVING DEF's DIE.

LIII. ABNORMAL SITUATIONS

A. ILLEGITIMATE CHILDREN HAVE SOME STATUS AS LEGITIMATES.

B. CO-HABITANTS DO NOT QUALIFY AS "HEIRS" TO BRING THE SUIT.

LIV. DEFENSES

A. DECEDENT'S CONTRIBUTORY NEGLIGENCE: WILL REDUCE OR ELIMINATE RECOVERY AS PER CONTRIBUTORY OR COMPARITIVE NEGLIGENCE.

B. BENEFICIARY'S NEGLIGENCE

1. SURVIVAL CLAIMS: -- DECEDANT'S OWN CLAIM IS PURSUED -- NOT BENEFICIARIES, THUS IRRELEVANT.

2. WRONGFUL DEATH CLAIMS:

a. IF SOLE BENEFICIARY AND HE IS CONTRIBUTORILY NEGLIGENT, CLAIM IS BARRED.

b. MULTIPLE BENEFICIARIES -- AWARD PROPORTIONATELY REDUCED.

C. INTER VIVOS RECOVERY OF VICTIM: BARS RECOVERY IN LATER SUIT.

D. STATUTE OF LIMITATIONS -- USUALLY BEGINS RUNNING AT THE TIME OF DEATH.

1. NOT A BAR EVEN IF IT WOULD HAVE BARRED DECEDENT.

DUTIES TO TAKE AFFIRMATIVE ACTIONS

LV. NONFEASANCE: TORT LAW NOT CONCERNED WITH PURELY MORAL OBLIGATIONS.

A. NO DUTY TO GO TO AID TO STRANGERS WHERE THERE IS NO RESPONSIBILITY FOR INJURY OR PREDICAMENT.

1. TORT LIABILITY PREDICATED ON MISFEASANCE, NOT NONFEASANCE.

B. UTAH GOOD SAMARITAN STATUTE:

1. COVERAGE: ALL PERSONS RENDERING EMERGENCY CARE AT OR NEAR SCENE OF ACCIDENT IN GOOD FAITH.

a. EMERGENCY CARE: ACTUAL ASSISTANCE OR ADVICE OFFERED.

b. EMERGENCY: UNEXPECTED OCCURANCE INVOLVING INJURY OR THREAT OF INJURY TO PERSON OR PUBLIC.

2. PROTECTION: NO LIABILITY UNLESS GROSSLY NEGLIGENT OR RESPONSIBLE FOR CAUSING EMERGENCY.

C. EXCEPTIONS: SPECIAL FACTORS IMPOSING DUTY:

1. SPECIAL RELATIONSHIP: INVITOR -- CUSTIDIAN; EMPLOYER - IMPLOYEE; AD-HOC RELATIONSHIP; FAMILY MEMBER.

2. INSTRUMENTALITY RULE: ONE WHO KNOWS OR HAS REASON TO KNOW THAT HIS CONDUCT, TORTIOUS OR INNOCENT, HAS CAUSED HARM HAS DUTY TO EXERCISE REASONABLE CARE TO PREVENT FURTHER HARM.

3. STATUTORY EXCEPTIONS:STATUTORY EXCEPTIONS: e.g. REQUIREMENT TO AID PERSON INJURED IN ACCIDENT WITH YOUR CAR.

D. DUTY OWED WHERE CARE IS BEGUN

1. WHERE PERFORMANCE IS BEGUN, REASONABLE CARE DUTY IS TRIGGERED.

a. MUST AVOID AFFIRMATIVE ACTS WHICH MAKE SITUATION WORSE.

b. DUTY TO LEAVE P. IN NO WORSE CONDITION.

E. GOV'T DUTIES TO PROTECT

1. DUTY TO PUBLIC GENERALLY, NOT TO PARTICULAR INDIVIDUALS -- RECOVERY USUALLY BARRED.

2. EXCEPTIONS: ACTS WHICH RENDER P. MORE VULNERABLE TO INJURY.

a. e.g. GUARD AT ELEMENTRY SCHOOL CROSS-WALK SUDDENLY TAKEN W/O NOTICE LEAVING CHILDREN VULNERABLE.

F. RESTATEMENT 324: LIABILITY RESULTS FOR FAILURE TO EXERCISE REASONABLE CARE ONCE BEGUN OR WORSENING SITUATION BY DISCONTINUING AID.

1. CANNOT CHANGE POSITION FOR WORSE BY UNREASONABLE PUTTING HIM BACK INTO SAME PERIL OR INTO NEW ONE.

LVI. CONTRACT AND DUTY

A. GRATUITOUS PROMISES: FAILURE TO PERFORM GRATUTIOUS PROMISE IS NOT A BASIS FOR TORT LIABILITY

1. e.g. VOLUNTARY PROMISING TO OBTAIN INSURANCE FOR YACHT.

2. COMPARE - DUTY OWED WHERE D. ENTERS PERFORMANCE

a. EVEN GRATUITIOUS PERFORMANCE REQUIRES REASONABLE CARE ONCE BEGUN.

3. TERMINATION OF PERFORMANCE:

a. FOR TORT LIABILITY: "CONDUCT MUST GO FORWARD TO SUCH A STAGE THAT INACTION WOULD COMMONLY RESULT, NOT IN WITHOLDING A BENEFIT, BUT IN POJSITIVELY WORKING AN INJURY"

(1) e.g. POLICEMAN AT THE SCHOOL CROSSWALK; HOSPITAL SERVICE IN EMERGENCY ROOM;

(a) NEGLIGENT TERMINATION OF GRATUTIOUS SERVICE.

B. LANDLORD TENANT CONTRACTS:

1. LESSOR SUBJECT TO LIABILITY FOR PHYSICAL HARM SUFFERED BY LESSEE OR THOSE ON LAND W/ CONSENT CAUSED BY CONDITION OF DISREPAIR EXISTING BEFORE OR ARISING AFTER THE LEASE IF:

a. LESSOR HAS CONTRACTED TO KEEP LAND IN GOOD REPAIR, AND

b. THE DISREPAIR CREATES AN UNREASONABLE RISK WHICH PERFORMANCE OF DUTY WOULD HAVE PREVENTED, AND

c. LESSOR FAILS TO USE REASONABLE CARE TO PERFORM HIS CONTRACT.

C. CONTRACTUAL DUTIES

1. NONFEASANCE: TORT LIABILITY CANNOT BE PREDICATED ON FAILURE TO PERFORM CONTRACT. P's REMEDY STRICTLY IN CONTRACT.

a. e.g. FAILURE TO LEND MONEY, EMPLOYE PLAINTIFF, FURNISH TRANSPORT, OR DELIVER GOODS.

2. MISFEASANCE: IMPROPER PERFORMANCE ONCE BEGUN IMPOSES LIABILITY BOTH FOR BREACH AND IN TORT.

D. LIABILITY TO THIRD PARTIES

1. MISFEASANCE IN CONTRACT PERFORMANCE RENDERS LIABILITY TO THOSE OUTSIDE CONTRACT MEASURED ON STRAIGHT NEGLIGENCE STANDARD IF HARM IS FORESEEABLE.

a. STILL, NO LIABILITY FOR NONFEASANCE, ONLY MALFEASANCE.

2. EXCEPTION: INCIDENTAL BENEFICIARIES (WATER CASES)

a. FAILURE TO SERVE WATER IS ONLY NONFEASANCE--PRIVATE CO. HAS DUTY OF PERFORMANCE TO PRIVATE CITIZENS, ONLY CITY AS WHOLE.

b. SCOPE OF DUTY: PROTECTS ONLY THE CLASS OF PLAINTIFFS PROMISOR INTENDED TO PROTECT AND ONLY AGAINST THE RISKS INVOLVED IN THE CONTRACT.

E. SHIFTING DUTY BY CONTRACT

1. LIABILITY MAY BE SHIFTED BY CONTRACT OR ACTION.

a. WHEN OTHER PERSON TAKES CHARGE OF SAFETY PROBLEM OR RELEVANT INSTRUMENTALITIES FOR LONG PERIOD OF TIME.

2. IMPLIED-CONTRACT -- TRANSFER OF CONTROL

a. e.g. A TENANT IN ACQUIRING CONTROL SLSO ACQUIRES DUTY.

DUTY TO CONTROL THIRD PARTIES

(NONFEASANCE LIABILITY FOR FAILING TO ACT TO PROTECT 3rd PERSONS)

LVII. DUTIES OWED BY PUBLIC LAND POSSESSOR

A. POSSESSOR OF PUBLIC LAND LIABLE FOR INTENTIONALLY INFLICTED HARMFUL ACTS OF 3rd PERSONS IF HE FAILS TO EXERCISE REASONABLE CARE TO:

1. DISCOVER THAT SUCH ACTS ARE BEING DONE OR ARE LIKELY TO BE DONE; OR

2. GIVE WARNING TO AVOID OR OTHERWISE PROTECT.

B. OWNERS OF PLACE OF ENTERTIANMENT

1. MUST USE REASONABLE CARE TO PREVENT INJURY AND BY POLICEMAN OR GUARDS WARN PUBLIC AGAINST DANGERS THAT MAY BE REASONABLY FORESEEN.

C. SPECIAL RELATIONSHIP: KEY ELEMENT IN CREATING THE DUTY TO THOSE ON PREMISES.

1. e.g. CARRIER-PASSENGER, INKEEPER-GUEST, CUSTODIAN-WARD, BUSINESS INVITOR-INVITEE.

2. ABSENT A SPECIAL RELATIONSHIP, A PRIVATE PERSON HAS NO DUTY TO PROTECT ANOTHER FROM CRIMINAL ACTS BY 3rd PERSONS.

LVIII. ASSUMPTION OF GRATUITIOUS DUTY

A. REQUIRED TO MEET CARDOZO'S "GONE FORWARD" TEST IN ORDER TO IMPOSE LIABILITY.

1. e.g. POSTING ATTENDANT IN LOBBY.

LIX. LESSOR DUTY TO TENANT

A. LESSOR BRINGING IN DANGEROUS PERSON HIMSELF INCURES DUTY TO PROTECT OTHER LESSEES FROM HIM.

B. IF LESSOR HAS CONTROL OVER A DANGER FROM THE TENANT, HE IS UNDER A DUTY OF CARE -- HE IS NOT LIABLE IF THERE IS NO CONTROL.

C. L.L. MUST MAINTAIN THE SAME RELATIVE DEGREE OF SECURITY.

LX. DUTY TO WARN -- INCLUDING CONFIDENTIAL RELATIONSHIPS

A. WHERE DISCLOSURE IS ESSENTIAL TO AVERT DANGER TO OTHERS THE CONFIDENTIAL CHARACTER OF RELATIONSHIP ENDS.

1. PERSON MUST EXERCISE REASONABLE DEGREE OF SKILL, KNOWLEDGE, AND CARE ORDINARILY POSSESSED AND EXERCISED BY MEMBERS OF THE SAME PROFESSION.

a. e.g. WARNING NEIGHBORHOOD AND POLICE OF ESCAPED PRISONERS.

B. IDENTIFIABILITY & FORSEEABILITY OF VICTIM: KEY ELEMENTS IN DETERMINING DUTY TO DISCLOSE RISK.

LXI. TAVERN KEEPERS AND SELLERS'S OF DANGEROUS ITEMS

A. COMMON LAW: DISPENSERS OF INTOXICATING BEVERAGES HAVE NO LIABILITY TO 3rd PERSONS INJURED BY THE INTOXICATED PATRON.

1. PROXIMATE CAUSE OF INJURY IS THE ACT OF PURCHASER DRINKING; NOT ACT OF SELLER SERVING.

2. RESULT MAY BE FORSEEABLE; BUT THE ACT OF SERVING ALCOHOL IS TOO REMOTE TO ANY RESULTING HARM.

B. DRAM SHOP ACTS

1. IMPOSE LIABILITY TO DISPENSERS OF SPIRITIOUS BEVERAGES FOR HARM CAUSED TO 3rd PERSONS.

a. APPLIES RESPONDEAT SUPERIOR.

b. MAY OR MAY NOT APPLY TO SOCIAL GUESTS.

C. GUNS & DANGEROUS ITEMS

1. SELLER OF GUNS MAY INCUR LIABILITY FOR NEGLIGENT SALE.