Thank you for visiting the LawyerWare.com Outline Archive.
Please note that the following outline has not been checked for accuracy (either
substantive or grammatical), and should be used only as a general guide. Always supplement
prepared outline materials with your own research. Don't assume that everything in this
outline is correct. Check everything. Although we obtained this outline from a reputable
source, we cannot guarantee that it is correct. Use it as a starting point and add to it
liberally. THE FOLLOWING IS A STUDY AID TO BE USED BY LAW STUDENTS ONLY. IT IS NOT
INTENDED TO BE, AND SHOULD NOT BE CONSTRUED AS, LEGAL ADVICE OR COUNSEL. IF YOU HAVE ANY
QUESTIONS ABOUT ANY OF THE ISSUES DISCUSSED BELOW, PLEASE CONTACT AN ATTORNEY LICENSED IN
YOUR JURISDICTION.
For a free, confidential referral to an attorney in your area, please click here
TORTS OUTLINE PART 1
Chapter One: Intentionally Inflicted Harm: Prima Facie Case & Defenses
I. Introduction: A tort is a "wrong" that arises through
conduct, in the form of an act or omission, affecting a legally protected interest in a
person or property, and done w/ a certain state of mind, that causes damage.
A. Prima Facie Case: To recover a tort a P. must
establish essential elements of the tort. If he does this then he has stated a prima facie
case which means that he can recover.(unless the P's. facts are contradicted by the other
side w/ more evidence.)ELEMENTS:
1. Act or omission
2. Duty owed by D. to
exercised due care.
3. Breach of duty owed by D.
4. Relationship between
conduct and P's harm.
5. Damages
B. Tort v. Crime: A tort is a wrong against an
individual while a crime is against the state.
C. Torts fall into 3 categories:
1. Liability based on the
intent of the D.
2. Liability based on the
negligence of the D.
3. Liability that attaches
irrespective of the state of mind of the D.
II. INTENTIONAL TORTS:
A. ASSAULTS: The INTENTIONAL CAUSING of one to be put
in APPREHENSION OF AN IMMINENT HARMFUL OR OFFENSIVE BODILY CONTACT. (Words alone are NOT
enough to constitute an assault.)
1. Where a P. is caused to
fear for her safety but not actual physical harm is there an assault? Yes. When the D.
caused the P. to be fearful of harmful touching an assault was committed. I.de S. v. W.de
S. p.4 (Drunk hatchet/old lady case)
2. Elements & Conditions
Re: Assault:
a.
Intent: The D. must have intended to inflict a harm on the P. or put him in fear of an
immediate harmful touching.
b. P.
MUST HAVE APPREHENSION OF IMMINENT FEAR for there to be an assault.
c.
The P. does not have to fear the contact, rather only the apprehension of it.
d.
Transferred intent: If D. INTENDS TO COMMIT an assault (or battery) and the V. is
unexpected, D is still liable.
B. BATTERY: The intentional causing of an ACTUAL
BODILY CONTACT which is HARMFUL OR OFFENSIVE.
1. In an action for battery
must a P. prove that the D. intended to cause the harm which resulted? No. Only that the
D. COMMITTED AN UNLAWFUL ACT OR THAT THE d. HAD AN UNLAWFUL INTENTION TO COMMIT THE HARM
PRODUCED. Vosburg v. Putney p.8 (Kids/kicking in classroom.)
2. Elements and Conditions
Re: Battery
a.
Intent is a desire to cause the consequences.
b. P
doesn't have to be aware of the battery when it occurs.
c.
Unconscious acts like sleep walking and seizures do not count as battery.
d.
Knocking of one's glasses, hat or spitting is a battery.
e.
Note: an intentional conduct is an act that a reasonable person would know that causes
harm or damage.
(1) Children are only held to a reason of care that other kids there
age would understand.
f.
Offensive=dignity Harmful=Pain\Injury
g.
EVERY BATTERY IS AN ASSAULT BUT NOT EVERY ASSAULT IS A BATTERY.
h.
Prof says TO DO AN ACT W/ OUT KNOWLEDGE THAT CONTACT WOULD OCCUR IS NOT A BATTERY.
III. DEFENSES TO INTENTIONAL TORTS:
A. CONSENT: Consent by the P. to an act that would
otherwise be a tort is will bar P. from an action. IT IS THE WILLINGNESS FOR CONDUCT TO
OCCUR.
1. Mohr v. Williams p.15
W/out any consent the D. operated on the P.s wrong ear. Was this unconsented touching an
assault and battery? Yes, even though he was not guilty of negligence D. did commit an
unlawful operation. So he is liable. Consent was not given to the other ear.
2. CONSENT CAN BE EXPRESSED
OR IMPLIED.
3. NO PERSON CAN CONSENT TO
AN ACT CONTRARY TO THE LAW (Boxing promoter case.) But also a counter argument that
promoter didn't actually cause physical harm.
A: 2 views to consent
to crime:
1). There is no consent to any crimes or;
2). Can consent to crime and IF PROTECTED IN A STATUTE, LIKE STATUTORY
RAPE, RECOVER LATER.
4. PARTICIPATION IN AN
ATHLETIC ACTIVITY IS NOT CONSENT TO ALL TYPES ON INJURY.
5. Problems of consent: I
medical case there is no real consent in an emergency, BUT MD'S ARE STILL EXCUSED.
B. INSANITY: Can an insane person have the requisite
intent for assault and battery? Yes. When and insane person knows that they are causing
harm and damage then they are liable. McGuire v. Almy p. 28 Here D. was liable b/c she
knew what she was doing when causing the damage.
(1) Public policy for this is that health workers for the insane should
not have to worry about damages when they take care of these people.
A. Insanity will usually only be a defense if the D. cant understand
the harm or act they are committing.
C. SELF DEFENSE: Anyone is privileged to use
REASONABLE FORCE to defend himself against a threatened batter on the part of another.
1. Non deadly force can be
used if reasonable under the circumstances. This also applies to the use of Deadly Force.
(a) Courvoisier V. Raymond p.32 When the circumstances would lead a
reasonable person to think his life is in danger, is he liable in using force against a
person which he believed to cause the danger? Yes. He is allowed to use force against
those which he reasonably believed were endangering his live. (Here the cop came at D. in
a manner which made him think his life was in danger.)
(b) When force is by negligence the threatened one must retreat of
avoid contact. Also retreat if can be done safely when being threatened w/ deadly
force.(unless in own house)
(c) Threats of force: The one being attacked is privileged to threaten
more force then he could actually use if the threads did nothing more then cause
apprehension in the attacker and not make him stop.
(d) Defense of a third person: An actor is privileged to protect a 3rd
person w/ only reasonable force.
(e) An attacker have the privilege of self defense.
(f) Accidental injury of a innocent by standard in self defense to
repel an attacker is not actionable.
2. Deadly Force: May be used
if P. REASONABLY BELIEVED D. was about to inflict death or serous injury.
D. DEFENSE OF PROPERTY: One must use only REASONABLE
FORCE TO DEFEND HIS PROPERTY. One is privileged to use only enough force that will defend
their property. Usually one cannot use deadly force of inflict bodily harm to protect
their property, yet is allowed to use to protect ones dwelling.
(1) Requesting an Intruder to Leave: May a landowner attack and wound a
trespasser w/out first asking him to leave? NO Before one may eject a trespasser, whose
entry was non violent, he must request him to leave. Defense of property does not justify
wounding unless there is an` assault by the intruder, (Milvoy v. Cockran p.37)
(2) Spring guns: This is not allowed because its sole purpose is to
injure and not deter the trespasser. This is too much force. If notice was given then an
action could not have been deter b/c the trespasser would have been injured at his own
risk. Courts are not apt to allow one to protect his prop. by injuring human life. (Bird
v. HolBrook p.39).
(3) An attacker does not have the privilege of self defense.
E. RECOVERY OF PROPERTY: Land: Majority view says no
privilege to recover by using force. Best to take them to court. Minority view says
permits prompt reasonable force to be used to recover land.
F. RECOVERY OF PROPERTY: Chattels: One can use
REASONABLE FORCE TO RECOVER HIS PROPERTY. Also, he must be in FRESH PURSUIT TO USE FORCE
TO RECOVER HIS PROPERTY. Two Pre-Requisites before using force:
a.
THE ONE THAT USES THE FORCE MUST BE THE RIGHTFUL OWNER..
b.
THE TAKING OF THE PROPERTY MUST BE UNLAWFUL. (This means w/out permission.)
(1) Kirby v. Foster P.46-- Here the D. was not allowed to use force to
get back some $$$ because there was some dispute as to whether it had been taken
wrongfully. Where there is conflict it should be settled by legal matters and not force.
(2) In cases of NON TORTIOUS there is NO PRIVILEGE TO USE FORCE, but in
conditional sales contract situations where the buyer defaults, the seller may reposes
PEACEFULLY.
c.
Shopkeepers Privilege; A shop keeper can detain someone which he reasonably believes that
suspect stole something. This is under the reasonable force standard and only in a
reasonable manner and time.
d.
When permission is given by owner the privilege of force will not apply.
G. NECESSITY:
1. PUBLIC: One is allowed to
use another's property if it is by NECESSITY. This means that they use the other property
to avoid disaster. 2 Requisites:
a.An IMMEDIATE AND
IMPERATIVE NECESSITY AND NOT JUST ONE THAT IS EXPEDIENT OR SENSIBLE...
b. AN
ACT IS IN GOOD FAITH AND FOR THE PUBLIC GOOD.
(1) NOTE: This privilege of necessity is CONDITIONAL AND ENDS WHEN THE
ACT BECOMES UNREASONABLE UNDER THE CIRCUMSTANCE.
(a) Public policy for this is that when a risk threatens the public
interest one has ha defense to act to protect this interest w/out risk.
2. PRIVATE NECESSITY: There
is a privilege to enter land or interfere w/ chattels where it appears reasonably
necessary to protect any person from death or serious harm or to protect land or chattels
from injury. The harm prevented must exceed the harm caused by the invasion.
a.
Ploof v. Putman P.50 Does the privilege to invade another's land and things by reason of
private necessity supersede the privilege of the possessor of the land to prevent the
invasion? YES. There is a privilege to enter the land if there is an emergency. The
preservation of land is more important the property right.
3. LIABILITY FOR DAMAGES AND
NECESSITY: Vincent v. Lake Erie Transportation May one that is forced by necessity to use
the property of another do so w/out liability for injury to the property caused by his
use? NO.
D. docked to P's dock to secure in
storm and is liable for the damages b/c this was PRIVATE NECESSITY. D. PROTECTED HIMSELF
AT THE DOCKS EXPENSE. If can do something to avoid the damage and do not, then are liable.
(a) BIG QUESTION I MUST ASK IS IF PERSON IS TRYING TO SAVE PERSONAL
ITEM OR THE PUBLIC INTEREST. IF PUBLIC INTEREST THEN NOT LIABLE, IF PRIVATE INTEREST, THEN
ACTOR IS LIABLE.
IV. STRICT LIABILITY V. NEGLIGENCE: Historical and Analytic Foundations
A. STRICT LIABILITY: This is liability WITHOUT
FAULT.If a D. engages in ABNORMALLY DANGEROUS ACTIVITIES that could cause harm even if
reasonable care was used, the D. is STRICTLY liable.
1. Rylands v. Fletcher: The
D. brought a force onto his land and engaged in activities that were not
natural and could cause damage if it escaped. The water did escape and the D. was strictly
liable.
a.
RULE: IF D. brings something on his land that is unnatural or artificial, and it escapes
and causes damage, D. is liable.
Second RESTATEMENT:
Abnormally dangerous activity:
(1) Whether activity involves a high degree of risk.
(2) Gravity of risk:
(3) Whether risk can be eliminated by exercise of reasonable care.
(4) Whether activity is a matter of common usage.
(5) whether activity is appropriate to location and
(6) Value of activity to the community.
2. Defenses against strict
liability:
a.
Contributory negligence: This is NO DEFENSE UNLESS P knew of danger and negligently caused
the activity to miscarry.
b.
Assumption of the risk: The Voluntary encountering of a known risk bars recovery,
c.
Comparative negligence: This reduces recovery in some JR's.
3. Policy: No proof of
intent, used for judicial economy, comes from a moral base to grant relief to P. where
might not have any.
V. LIABILITY BASED ON NEGLIGENCE:
A. Negligence: An injury to another arising from
failure of the D. to take reasonable care to avoid a FORESEEABLE AND SUBSTANTIAL RISK TO
ANOTHER PERSON. Or it is subjecting another person to UNREASONABLE RISK OF INJURY.
1. CRICKET CASE: P. was
struck in the head w/ a ball hit over the fence of a ball park. Court held that since D.
was liable because it was foreseeable since a ball had been hit before over the fence.
2. HAMMON CASE: D. was
driving a car and had a seizure although she had not had one nor expected to and then had
an accident. Issue: is D. liable? NO b/c not foreseeable nor is strict liability applied
in these types of cases.
3. Diff theories on
liability:
a.
Some cts focus on what it JUST BETWEEN PARTIES. THIS IS CORRECTIVE JUSTICE. That tort law
should assign a set of entitlement and protect them.
4. To prove negligence one
must prove:
a:
Duty of ordinary care;
b. a
BREECH OF THE DUTY OR ORDINARY CARE.
c. Causation connection
bt the breech and harm.
d.
Damages..................
B. Standard of Care: How or what would a reasonable
person do in the same situation.
1. Standard is established by
custom: This is not conclusive rather it is evidence. Industries are not allowed to set
own standards of care b/c they could pick the lowest.
2. A Doctor or lawyer is held
to the same standard as those in his field. (Custom--Even for small town professions)
National standard may be imposed of nationally certified medical specialist. Doctors also
have a duty to expose risks of their procedures unless in emergences.
3. A person posing as having
unique skills will be held to that standard which he is posing as.
4. A child is held to a
standard of other children his age. This counts when taking part in juvenile acts such as
driving a bike but when engaged in a dangerous adult activity then, like driving a car,
then they can be held to adult standards.
5. Good faith believe by D.
is immaterial.
6. How the reasonable person
acts depends on the circumstances of the situation.
7. A blind person or mentally
handicapped person is held to standards of people like them. Usually they are liable if
they know what they are doing.
8. Drunk people are held to
the standard of a sober person.
9. Rookies are held to the
same standard as pros.
10. Old people are sometimes
treated like infants.
11. Reasonable people are not
excused for forgetting to take reasonable care.
C. To recover in an action for negligence the P. must
prove that he (1) RECEIVED DAMAGE, (2) IT WAS THE d'S FAULT, AND (3) THE D. WAS THE CAUSE
OF THE DAMAGE.
1) Hand Cost Formula:
1.
Probability of harm
2. Is
there a benefit to try and prevent
3.
What is the cost.
D. Who is duty owed to? If the D. could not foresee
the person who was injured then no duty is owed. But if a person is reasonably trying to
rescue an injured person but is injured, then the D. is liable to him as well.
a.
Railroad and hot pipes case: D. could not foresee so he was not liable.
1. Also there is a duty of
due care owed to avoid exposing other to a foreseeable risk of harm from a 3rd person. EX.
Selling gasoline to a six year old creates a duty to the playmates.
E. THE DOCTRINE OF RES IPSA LOQUITUR: THE THING
SPEAKS FOR IT SELF. Used in a trial when questions of fact are determined by the use of
CIRCUMSTANTIAL EVIDENCE. This means telling the jury that circumstantial fact A proves
fact B. It applies when :
1. The action is one that
doesn't normally occur unless someone is negligent.
2. The D. must have and
exercise exclusive management or control of the instrument which caused the accident.
Realistically, the D. must have sufficiently close connection with the instrument that
caused the P's injury so that it is MORE LIKELY THAN NOT that the D. was negligent. Since
were the doctrine is used that injury would not usually occur without negligence.
(1) STILL THE P. MUST PROVE THAT D. WAS NEGLIGENT. AND GETTING TO USE
THE DOCTRINE DOES NOT GUARANTEE A WIN IN CT.
3. JUSTIFICATION FOR THE
DOCTRINE; The doctrine is used because it is more likely to have the D. come forward w/
information as to what actually happened to clear himself.
(1) YABBAR V. SPANGARD, The court used the above policy to justify the
use of the doctrine when a patient was injured while under anesthesia, against all the
doctors an nurses who had dealt with him in the hospital. His shoulder was hurt but he
could not prove it. The doctrine was applied to multiple D's so that they would come
forward and speak.
4. Theories on WHO IS LIABLE:
a.
Corrective justice theory: Strict liability to protect entitlement of persons and
property. IF you are at fault, then you should pay.
b.
Reciprocity Theory: One who takes the greater risk is liable. Strict liability and
negligence. EX. If w/in a group of people all have dogs and one has a lion, then the lion
owner will be liable for damages b/c he took a greater risk.
c.
Economic Efficiency: Justice Hand: Based on socio-economic utility accident costs vs.
preventions cost. Which ever is cheaper to prevent should be done. (Burden less then
injury times probability of potential accident,)
d.
Coarse Theory: Liability rule does not matter because the market will take care of itself.
If rail road is liable to farmer, then they will pay for it.
VI. DEFENSES TO NEGLIGENCE: (THE EFFECT OF THE P'S CONDUCT ON RECOVERY
FOR NEGLIGENTLY INFLICTED INJURY)
A. CONTRIBUTORY NEGLIGENCE: The conduct on the part
of the P. which is a CONTRIBUTING CAUSE OF HIS OWN INJURIES and that FALLS BELOW THE
STANDARD OF CARE TO WHICH HE IS REQUIRED TO CONFORM FOR HIS OWN PROTECTION MUST BE A
SUBSTANTIAL FACTOR TO HIS HARM.
1. Under common law, any
contributory negligence on the part of the P. barred his total recovery if the P's
negligence contributed to his injuries.
a. If
X is driving his car while intoxicated and is at a stop sign and is hit from behind he is
not barred from recovering b/c of his own negligence b/c it did nothing to contribute to
the accident.
2. Now, many states have
allowed recovery even if the P's negligence was related to his injuries. As long as the
P's negligence was not as reckless as the D's then he can still recover.
B. LAST CLEAR CHANCE: At common law the P's
contributory negligence was not a bar to recovery if the D. had a LAST CLEAR CHANCE to
avoid the accident. If a P. through her own fault had been rendered helpless and thus no
linger able to avoid the accident by the exercise of reasonable care, a negligent D. would
be liable for failing to use reasonable care with his then existing last chance to avoid
harm when the D. knew of the P's situation and thus realized the P's risk.
1. Associate Contributory
Negligence:
a.
Master-servant: Employee's negligence is imputed or assigned to the Employer
b.
Joint enterprise: The negligence of one member is imputed or assigned to others to bar
recovery against a 3rd person.
c.
Suit based on injury to 3rd person: In actions for a wrongful death and loss of
consortium, the negligence of victim is imputed to P.
d.
Compare-Bailee and spouses: Negligence of bailee is NOT imputed to bailor as against 3rd
parties. Negligence ordinarily is not imputed between spouses (a few community's are
contra).
e.
MEDICAL: If patient does not inform a doctor of known hazardous conditions and an injury
happens b/c of this the DR. is not liable.
f.
HAND FORMULA: D. can always escape liability by showing that he took costs justified
precautions to avoid the accident.
g.
DOCTRINE OF AVOIDABLE CONSEQUENCES: P. has the obligation to reduce the damages--- similar
to mitigation rules.
C. ASSUMPTION OF THE RISK: If P. EXPRESSLY or
IMPLIEDLY CONSENTS to CONFRONT HARM from a particular RISK, this bars recovery in
negligence, provided P. (1) recognized and understood the danger and (2) voluntarily chose
to encounter it.
1. THEORY: The P. that who
consciously subjects herself to a risk of injury could not complain of the injury ensued.
a.
Expressed: This situation arises in which the P. has signed a RELEASE acknowledging the
risk involved and absolving the D. from any legal liability. Sometimes the court have
struck these agreements down stating that the P had no bargaining power but rather had to
sign if he wanted the services. (Adhesion Contract)
b.
Implied: D. must show P's knowledge of particular risk and her voluntary choice to
encounter the risk. P. is not required to surrender her legal right to avoid the danger.
(1) EX. An employee is told to perform a dangerous task. For fear of
losing his job he does it and is injured. Courts are very apprehensive w/ assumption of
the risk defense to be used unless the employees actions were foolhardy.
D. COMPARATIVE NEGLIGENCE: More then 40 states eject
the rule that contributory negligence is an absolute bar to recovery and base liability on
the COMPARATIVE FAULT OF THE P. AND D. 3 FORMS
1. PURE: The P's damages are
REDUCED IN PROPORTION to his or her fault, EVEN WHEN THE P'S NEGLIGENCE IS GREATER THEN
THE D'S NEGLIGENCE.
a.
ex. If the P. suffered 100K in damages, and the jury found the P. 51% negligent and the D.
49% negligent, the P could recover 49,000$$$
2. MODIFIED:
a.
Modified Equal Fault: If the P's. negligence is LESS THAN the D's. negligence, the P. can
recover but the P's. DAMAGES ARE REDUCED BY THE %%% OF HIS OWN FAULT. (P's negl < D's
negl = P's recovery reduced by P's %%% of fault.) If the P's negligence is EQUAL TO OR
GREATER THAN the D's negligence, the P. IS BARRED FROM RECOVERY.
(1) ex. If the P. suffered 100k in damages and the jury found the P.
and D. each 50% negligent, the P. is barred from any recovery. If the jury found the P.
49% negligent and the D. 51% negligent, the P. COULD RECOVER 51K
b.
Modified Greater Fault: If the P's negligence is EQUAL TO OR LESS THAN the D's negligence,
the P. can recover but the P's damages are reduced by his %%% of fault, (P's negl < D's
negl = P's recovery reduced by P's %%% of fault.) If the P's negligence is GREATER THEN
the D's negligence the P. is BARRED FROM RECOVERY (P's negl > D's negl = NO RECOVERY)
(1) If P. suffered 100K in damages and the jury found the P. and the D.
50% negligent, The P could recover 50k. If the jury found the P. 51% negligent, the P
would be barred from recovery.
c.
Slight-Gross: The P's contributory negligence is a bar to any recovery UNLESS the P's
negligence is "SLIGHT" and the D's negligence is by comparison
"GROSS." If the P's negligence is "SLIGHT" and the D's is
"GROSS" the P's recovery is reduced by the %%% of the P's fault.
(1) If the P suffered 100K in damages and the jury found the P and the
D 50% negligent, the P could not recover anything. If the jury found the P only 5%
negligent and the D 95% negligent, then the P could recover 95K.
3. Limitations: Comparative
negligence is sometimes inappropriate either logically or as a matter of policy i.e. a
doctor's duty may be to P. from her own negligence.
4. Impact on other rules:
a.
Last Clear Chance Doctrine: Under comparative negligence this is generally abolished.
b.
Implied Assumption of Risk: Implied assumption of risk is also abolished in some states.
Other retain the type of assumption of the risk that is really a limitation of D's duty.
c.
Wanton or Reckless conduct by the D: Such conduct apparently will not affect the
comparative negligence doctrine i.e P's recovery can still be reduced but P's negligence
is not a factor if D acted intentionally.
d.
Avoidable Consequence: Total relevant fault is apportioned; thus failure to mitigate
damages is no longer charged solely to P.
e.
Jury instruction; There is a split of opinions as to whether a apportionment will affect
the legal consequences .
f.
Setoffs: When both parities are hurt in a "pure" state or an "equal to or
less than" state, each may recover from the other. In such cases, judgements are
usually set off against each other, so the party w/the lower award gets an award for his
damages minus the lower amount. Setoff may NOT be ordered if the parties are insured.
g.
Res Ipsa Loquitur; Most states no longer require P's to show freedom from contributory
negligence as part of res ipsa loquitur.
h.
Punitive Damages: One court held that punitive damages can be recovered only when D. is
more at fault.
VII. CAUSATION: Involves the relation between the D's conduct and the
harm to the P. Causation encompasses both ACTUAL AND PROXIMATE CAUSE. Actual causation is
a question of the jury and Proximate cause is a question of law- not concerning facts.
A. Factual Causation: D's conduct must be the CAUSE
in fact of P's injuries. I.E. P. would not have been injured BUT FOR THE D'S CONDUCT. MUST
PROVE MORE LIKELY THEN NOT THAT D'S CONDUCT CAUSE THE ACCIDENT AND P'S INJURIES.
1. CONCURRENT/SUBSTANTIAL
CAUSE: Sometimes a court will find a causal connection between the D's negligence and the
P's injuries when as a matter of logic THE INJURIES OCCURRED MORE LIKELY THEN NOT BECAUSE
OF THE D'S NEGLIGENT. P. has burden of proof to show D. caused harm by a more likely then
not standard.
a.
Ex: If a forest fire is started b/c of the D's negligence and meets up w/ a larger fire
caused by an act of god. D. will be held liable as a SUBSTANTIAL CAUSE unless he can prove
that the act of god fire would have done the same damage.
b.
NOTE: By not wearing a seat belt one is not a cause of an accident.
2. Alterative LIABILITY:
Where separate negligent acts of D and X concur and P would not have been injured BUT FOR
THE concurrence: BOTH D AND X ARE LIABLE.
a. SUMMER V. TICE: P.
was a member of a hunting party which there were 2 others. The 2 others hunters shot there
guns in P's direction and was hit in the eye. Both hunters were negligent and were held
liable even though it could not be determined who actual injured the P. for 2 reasons:
(1) The conduct of both of the D's was the substantial cause of the P's
injuries even though it cannot be determined which gun actually did the damage.
(2) Once it is shown that both D's are negligent and the P is unable to
show which one actually did the damage the BURDEN OF PERSUASION ON THE ISSUE OF SHIFTS TO
THE D'S. REASON IS SO A D. WILL COME FORWARD AND GIVE INFORMATION ON THE INCIDENT.
b. A
problem has arisen out of whether a P. can bring an action b/c a negligent D. has taken
P's loss of a chance to avoid some particular risk.
(1) HERSKOVITS V. GROUP HEALTH CO. P. had cancer and was not diagnosed
on his first visit to the D's office which reduced his chance of survival by 14% P's
family sues claiming had he been diagnosed properly, then he would be alive. D. said would
have died anyway. Issue is can the lost opportunity for survival be considered the cause
of death? HELD: Yes, This was a chance that P was entitled to which may have increased his
life.
3. MARKET SHARED LIABILITY:
Enterprise or Industry wide liability and 'SUBSTANTIAL SHARE.'
a.
Where a specific manufacturer of DES Drug cannot be identified, because in this case it
was not know who actual made the drug which injured the P., some courts allow the P. to
recover from all manufactures, but courts vary on how to go about this...Reason how likely
it was for which manufacturer to provide drug.
B. Legal/Proximate Causation: The Question of legal
causation is where are we going to draw the line and say the D. is or is not liable for
the damages.
1. Legal cause: If the CAUSE
IS TOO REMOTE FROM THE INJURY (THIS IS PROXIMATE) TO HOLD THE D. LIABLE? IS THERE A REASON
TO HOLD THE D. LIABLE.
C. If no FACTUAL CAUSE--THEN DONT EVEN HAVE TO DEAL
W/ LEGAL.
VIII. JOINT AND SEVERAL TORTFEASORS: Joint tortfeasors are persons who
either act in concert to cause injury to a P. or act entirely independently but cause a
single indivisible injury to the P. Joint tortfeasors are jointly and severally liable for
the damages they cause.
A. Joint and Several Liability: Any single D. is
responsible for 100% despite being found only partially responsible.
B. Contribution Indemnity: Tortfeasor #1 goes after
Tortfeasor #2 for reinburstment after he has paid the injured P.
C. Individual Tortfeasor settlements: BEWARE:
1. If one tortfeasor is
released, due to settlement, then all others must be released.(Provided they were named in
the first place.)
2. Settlements may reduce all
the amounts from the other D's
3. A settlement may subtract
the %%% of money from the others.
D. NOTE; Do not confuse JOINT & SEVERAL LIABILITY
W/ JOINT CAUSATION. First look at CAUSATION and then to TORTFEASOR(S). THEN APPLY
IX. SPECIAL DUTY QUESTIONS:
A. DUTIES IMPOSED BY STATUTE: NEGLIGENCE PER SE: A
violation of a criminal statue can be used to establish duty and breach if the following
requirements are met:
1. Statutory duty is clear
2. Statutory purpose was to
protect a class of persons of which P is a member from the type of injury suffered.
3. Violation was unexcused.
Statute cannot be used to set specific duty of car if D. had legally acceptable reason for
violation.
a.
Effect of violation:
(1) Unexcused violation: If there is no excuse, the majority treats the
violation as NEGLIGENCE PER SE.
(2) Excuse offered: If an excuse is offered, the majority defers to the
judges decision on the validity of the excuse; there is negligence per se if the excuse is
invalid. The jury decides whether D. is telling the truth.
b.
Causation for damages: These must be shown.
B. Duty to Aid Others in Emergency; There is NO DUTY
AT COMMON LAW TO AID A STRANGER WHERE D IS NOT AT FAULT.
1. There is a duty to aid one
w/ a special relationship, ie family, employer...
2. There is a duty to aid if
the P's injury is caused by D. (even if D's action were not intentional.)
3. Statutes may impose a
duty; EX if in a car accident, the law says must help the injured party.
4. Duty where D. has a
special relationship to harmer.
5. Good samaritan rule: If D.
voluntarily helps P. D must exercise DUE CARE. D can abandon efforts PROVIDED DOING SO
DOES NOT LEAVE P IN WORST CONDITION. (Many states exempt doctors giving aid in an
emergency from liability.)
C. Affirmative duty to prevent harm; Courts
increasingly find a duty of care owed by D's who share a special relationship w/ P. to
prevent harm inflicted another actor. EX. Universities or institution.
D. Duty owed by common carriers: One charged w/
safety of another person or another persons property, MUST EXERCISE a HIGH AMOUNT OF CARE.
a.
Common carriers; Common carriers must always choose a course of conduct least likely to
expose passengers to harm... The highest degree of care. Also, carrier employees must aid
passengers in distress
b.
Compare-liability of driver to GUESTS OR PASSENGERS:
(1) Common law rule: Driver MUST exercise due car to warn any rider of
known dangers not reasonably apparent and MUST use due care in the operation of car.
(2) Guest statutes: Many jr's hold driver liable to a guest ONLY for
WANTON OR GROSS misconduct.
(a) A passenger is NOT A GUEST IF PAYMENT IS MADE THAT SERVES AS A
MOTIVATING INFLUENCE FOR DRIVERS FURNISHING THE RIDE. EX sharing a ride to curb expenses
may qualify a rider for a passenger.
E. Duty owed by a third Person: D. may be liable for
failure to control 3rd persons over whom she had the power of control.
1. Bailment cases: The owner
of bailed chattel is liable for failure to exercise due care to prevent bailee's tortious
acts committed in her presence. Also the owner is liable for failure to use due care in
selecting the bailee.
a.
Compare-vicarious liability: Even though not negligent herself, the owner of a car may be
vicariously liable for the drivers negligence under the "family purpose
doctrine" or permissive use statutes.
b.
Compare-products liability: Bailor may also be responsible for injury caused by a
defective chattel.
2. Master-servant cases;
Employer is directly liable for failure to prevent employees tortious acts committed in
her presence and for failure to exercise due care in hiring employees.
a.
Doctrine of respondeat superior (vicarious liability): Employer is vicariously liable for
tortious acts committed by employee w/in the scope of employment
(1) Intentional tort: Intentional torts often are held to be OUTSIDE
THE SCOPE OF EMPLOYMENT UNLESS THEY ARE COMMITTED IN FURTHERANCE OF THE EMPLOYER'S
BUSINESS.
(2) Other considerations: No vicarious liability exists unless it is
1st shown that employee in fact acted tortiously; but employee's immunity from liability
is immaterial.
3. Independent contractor
cases; Employer who fails to use due care in selecting a competent contractor may be
directly liable for that independent contractor.
a.
Vicarious liability: This can be imposed in the following case:
(1) Nondelegable duties; Employer is NOT relieved of liability by
hiring independent contractor to perform nondelegable duties. EX. keeping a car in safe
condition, keeping a business safe for customers...
(2) Peculiar risk Doctrine: Employer cannot avoid liability where the
activity involves a single major danger which then occurs. EX Blasting, use of fire to
clear land.
b.
Contractor's assumption of risks: This does not insulate employer from liability to 3rd
persons, but does create rights of indemnification.
c.
Limitations-collateral negligence: Employer is not liable if contractor's negligence is
deemed "collateral" to the risk that gives rise to vicarious liability in the
first place.
F. Partnerships and joint ventures: One member of a
joint enterprise is vicariously liable to outsiders for conduct of other members w/in the
scope of the enterprise.
G. Parents duty to control child: Parents are not
vicariously liable under common law but have limited liability under some modern statutes.
1. Direct liability: Parent
is liable for his own negligence such as
a.
Failure to control acts committed in presence;
b.
Failure to protect against child's KNOWN dangerous tendencies;
c.
Failure to warn others of such dangerous tendencies;
d.
Failure to prevent child's foreseeable use of inherently dangerous instruments; or
e.
Negligent entrustment.
H. Liability of tavernkeepers: There is NO liability
at common law from the consequences of the person buying the alcohol to the tavernkeeper.
1. "Dram Shop
Acts": Such acts impose liability on commercial establishments in favor of 3rd
persons injured by intoxicated patrons.
2. Common law rule rejected
in many states: Tavernkeepers is liable if risk to a 3rd person is foreseeable. If patron
is already drunk--furnishing liquor may be a crime....possible negligence per se.
a.
Scope of liability: Recovery is usually limited to 3rd parties. SOCIAL HOSTS ARE GENERALLY
NOT LIABLE EXCEPT IN CASES WHERE LIQUOR IS SERVED TO MINORS.
3. Compare-Liability of
taverkeepers as land occupiers: Tavernkeepers owes duty to prevent dangerous patrons from
injuring other patrons on premises.
V. AFFIRMATIVE DUTIES
DUTY TO RESCUE: General principle: Under common law there was no duty to
help another UNLESS ONE HAD SOME SPECIAL RELATIONSHIP TO THAT PERSON. For the most part
this is still the law, but the range of relationships has changed.
Ex.
Teachers have a duty to students, doctors to patients, parents to their kids, or ONE EVER
ONE PERSON GIVES UP CONTROL TO ANOTHER.
A. Under common law and still today, the person that
caused the injury will have a duty to help the injured person. This counts whether the
injury was the result of negligence or not.
1) There also seems to be a
trend to help those that enter ones dept store and fall sick.
2) Some places have statutes
that will insulate one from liability if he offers help to another and does not act in a
negligent manner. At the same time once one has begun to give aid the cannot stop if it
will leave the person in a worst position.
B. One has a duty to help another and I need to find
negligence, I must SHOW THAT THE STANDARD OF CARE WAS NOT REASONABLE.
THE DUTIES OF PROPERTY OWNERS AND OCCUPIERS
A. A possessor of land is someone who occupies the
land w/ the intention to control it or, in the absence of such person, someone who is
entitled to immediate possession of the land. The liability of the owner or possessor
depends on the person's status when they were on the land. There are 3 basic categories:
1) TRESPASSERS: Person who
enter or remain on the land w/out CONSENT OF THE PERSON IN POSSESSION of the land.
a.
THERE IS NO DUTY OF REASONABLE CARE TO A TRESPASSER UNLESS HE IS FREQUENT OR NOTICED BY
POSSESSOR OR AGENT.
2) LICENSEES: Persons who
enter or remain on the land WITH THE CONSENT OF THE POSSESSOR BUT WHO ARE NOT INVITEES.
These are people that have permission BUT ARE NOT FOR BUSINESS PURPOSES, MORE LIKELY THEY
ARE SOCIAL GUEST OR POSSIBLY A POLICE MAN OR FIRE MAN.
a.
HERE THERE IS A DUTY TO WARN THE LICENSEE OF ANY KNOWN DANGEROUS CONDITIONS.
3) INVITEES: Principally
people who are invited to enter or remain on land for a purpose that directly or
indirectly involves SOME KIND OF BUSINESS DEALINGS W/ THE POSSESSOR. These are usually
people who enter a store or a mall .
a.
Here the possessor is to give REASONABLE CARE. THIS IS THE HIGHEST DEGREE OF PROTECTION OF
THESE CATEGORIES.
b. A
DOOR TO DOOR SALES MAN IS NOT A INVITEE BUT RATHER IS A TRESPASSER SINCE HE AS NOT
INVITED.
4) CHILD TRESPASSERS:
ATTRACTIVE NUANCE DOCTRINE: THE POSSESSOR WILL BE LIABLE TO KIDS IF INJURY OCCURS FROM A
DANGEROUS AND ARTIFICIAL CONDITION.
B. In Rowlands v. Christian, the ct dropped the
common law categories and said it is SIMPLY BASED ON REASONABLE CARE STANDARD.
C. Some places only apply the above to invitees and
licensees but still say not duty owed to a trespasser.
D. It is the landowners responsibility to make sure
that the land is safe and take any precautions needed to ensure this or he will become
liable.
GRATUITOUS UNDERTAKINGS
INTRO: THIS IS WHEN ONE PERSON HAS NO DUTY TO ACT BUT DOES ANYWAY AND
THEN DEVIATES. WHAT IS THERE LIABILITY?
A. Volunteers: Where one person volunteers to do
something but has no obligation and then causes damages he is liable for any damages
caused by his negligence. Also look to causation.
B. Reliance on a volunteer: Where a volunteer
performs acts which cause people to rely on and then stops w/out giving warning they will
be liable for any damages that may arise b/c the V did rely on this service. The volunteer
should give a notice that the services will no longer be carried out.
SPECIAL RELATIONSHIPS
Restatement: general principle: THERE IS NO DUTY TO CONTROL THE CONDUCT
OF A 3RD PERSON AS TO PREVENT HIM FROM CAUSING PHYSICAL HARM TO ANOTHER UNLESS
A. A SPECIAL RELATIONSHIP
EXISTS BETWEEN THE ACTOR AND THE 3RD PERSON WHICH IMPOSES DUTY UPON THE ACTOR TO CONTROL
THE 3RD PERSONS CONDUCT OR
B. A SPECIAL RELATION EXIST
BETWEEN THE ACTOR AND THE OTHER WHICH GIVES THE OTHER A RIGHT TO PROTECTION.
Landlord tenant: Case stated that a landlord did have a special
relationship to his tenant to provide reasonable care and protection from known harms. ie
getting ganked. This is b/c the land lord is the only person that could fix the problems.
The tenants are in no position to do this.
Head shrink: There is a special relationship between a shrink and a
tort feasor so the shrink has a duty to warn a foreseeable victim of any harm that a
patient threatens to do. Must act w/ custom. Because of a statute, no duty to confine.
VI. TRADITIONAL STRICT LIABILITY
A. ANIMALS:
1. General rule: Except for a
DOMESTIC PET, an owner of animals that are likely to stray and do stray onto the land of
another is STRICTLY LIABLE. Must refer to cows and other farm or wild animals.
2. Wild animal: The possessor
of wild animals is STRICTLY LIABLE FOR HARM DONE BY THE ANIMAL IF SUCH HARM RESULTS FROM
ITS NORMALLY DANGEROUS PROPENSITY. This does not apply to ZOOS. Here must show negligence.
3. Known dangerous domestic
animals: If the D. has KNOWLEDGE OF THE DANGEROUS PROPENSITIES OF HIS ANIMAL, (THAT THE
ANIMAL COULD DO SERIOUS HARM OR PROPERTY DAMAGE) HE WILL BE HELD STRICTLY LIABLE FOR ALL
INJURIES RESULTING FROM THOSE PROPENSITIES.
4. Dog bite statutes:
Reversed the common law and said that a keeper is liable for all damages or harm caused by
the animal unless to a trespasser or P was committing a tort.
B. ABNORMALLY DANGEROUS ACTIVITIES
1. Theory of liability: In
cases involving abnormally dangerous activities, the question is WHO SHOULD BEAR THE COST
OF ANY RESULTING DAMAGES---THE PERSON ENGAGED IN THE ACTIVITIES OR THE INNOCENT PERSON.
PUBLIC POLICY SAYS IT SHOULD BE THE PERSON THAT ENGAGED IN THE ACTIVITY.
2. EX. Is a D. liable for
damages that result from his dangerous activities w/out negligence? Yes. If engage in
dangerous activities, then must be liable.
3. Some activities are
abnormally dangerous by nature and so the person engaged in it must be liable. Like
transporting gas, using TNT, ect.
4. Is there strict liability
for an indirect cause of damages during blasting w/ TNT? In this case no. If the minks
would have dies then yes. But since the mother mink killed her babies, it was an
intervening cause. He who uses explosives his liable for the foreseeable consequences and
not every occurrence.
5. Other dangerous activities
include crop dusting, blasting, rush of large liquids stored ect
