TORTS OUTLINE (Summer 2000)

--General concept of a tort is a compensable injury to one's person or property by another in violation of a duty imposed by law. Also civil wrong.



I. INTENTIONAL INVASIONS TO PERSONS OR PROPERTY

A. INTENT=The law presumes that one intends the natural and probable consequences of her acts in light of the surrounding circumstances of which she may be assumed to be aware

1. Intent is determined soley by factual circumstances and not by what is going on in the mind of the actor. It refers to the consequences of an act, rather than the act itself.

2. To prove intent, the actor must desire to cause the (harmful or offensive) consequences of his act or believe the consequences are substantially certain to result from his act.

3. Who can be held responsible?

-To the extent that an insane person or young person does intentional damage (consequences of his act) he is liable as a normal person would be.

-Officers of the court may also be held liable, even acting in good faith (Havens v. Hardesty)

-This goes to the heart of the fact that tort law does not get into moral responsibility:

1. No mens rea needed as in criminal law.

2. As a policy consideration, we want caretakers of young and insane to take better charge so that these acts are not done.

3. Just shifting the loss

4. Immediacy of the act to cause consequences (close connection)

4. Doctrine of Transferred Intent--If one intentionally commits assault or battery toward a specific person and by mistake strikes a 3rd person, he is still liable. By extension...false imprisonment, trespass?

a. Tortfeasor does not need to be aware of 3rd person or any risk off harm to him.

B. BATTERY--Intentional infliction of a harmful or offensive contact with the person of the plaintiff. Any physical contact which is offensive or insulting.

1. Defendant must act

2. Act must be intentional (desire consequences or certain of occurrence)

3. Consequences of act must cause contact with Plaintiff

4. Consequences of act must be harmful or offensive to Plaintiff. (Objectively--reasonable person would be harmed or offended.)

C. ASSAULT--Acts intending to put another in reasonable apprehension of an immediate battery whereby the other is put in such imminent apprehension. (D must be aware that assault happened) However, words alone will not constitute an assault without some (threatening action)

1. Defendant must act

2. Act must be intentional

3. Act threatens immediate harmful or offensive contact (or) makes such contact. (Objective)

4. Defendant's act must reasonably put Plaintiff in apprehension of such contact.

i. Defendant could really do the act at the time

D. FALSE IMPRISONMENT--Willful detention of another without legal justification, against her consent; whether by violence, threats, or other means, which restrain a person from moving from one place to another.

1. Intent to confine, act results in willful detention; whether physical or psychological

2. Without consent (can consent for period of time, but that does not mean unlimited, for instance the ex-gf/bf case (Noguchi)

3. Without authority of law (without legal justification...detention is okay for security to investigate)

4. Other is conscious of confinement or is harmed/under probable force of being harmed. (needs to be 3rd degree inquisition, not just meeting)

E. EMOTIONAL DISTRESS--Common law not a case, but has become a new tort action)

1. Extreme and outrageous conduct exceeding bounds tolerated by the 'society' (community)

A. Castration case is example of extreme; however, court held making fun of stutterer in workplace not so, because of roughousing context.

B. Not subject to eggshell rule, unless D knows P exceptionally sensitive

2. Intended to cause or with a reckless indifference to the likelihood that the conduct will cause emotional/mental distress to another.

A. Must be intended for and witnessed by that specific person, i.e. daughter cannot claim ED for seeing her father beaten if the Defendant did not know she was there as in Taylor.)

B. Family member can recover if indirectly harmed; if not family member, should have bodily harm

3. Severe emotional/mental distress caused (does not have to show physically, but physical signs help to prove case)

F. TRESPASS TO LAND--Any unlawful intrusion of the real property of another (land, grass, permanent additions, interior beneath, airspace)...based on the given that land ownership entails the right to exclude others.

1. Physical invasion of another's real property

-Actual physical entry on to the land of another,

-Remaining on land after the privilege to be there has expired,

-Failing to remove from land a thing which Defendant is under duty to remove

-Physical invasion may involve invisible substances (pollution?) If real and substantial, see Borland v. Sanders Lead Co.

2. Invasion is intentional

3. No consent

-Can also be seen as nuisance (activity on one's own property that unreasonably interferes with use/enjoyment of the property of another) Difference in cause of action that may involve longer/shorter statute of limitations, remedy difference (injunction also) and is more likely to require continuing harm.

G. TRESPASS TO CHATTEL--Any unlawful interference (impairment of condition, quality, or value of the chattel) with the personal property of another.

-Dispossession of the owner's possession of the property

-Dispossession of the use of the chattel by the owner (failure to return, etc.)

-->Measure of Damages is the diminished value of the chattel, and/or damage to the rightful owner/possessor's interest in possession (i.e. guy takes car out and rightful owner can't get to work)

1. Physical interference with another's property

2. Interference is intentional

3. Interference is without consent

H. CONVERSION--Conversion contains the same elements as 'Trespass to Chattel' and in addition, incorporates the seriousness of the interference.

4. Interference must be serious

-Extent and duration of Defendant's control

-Defendant's assertion of his intent to interfere

-Harm done to chattel

-Expense and inconvenience that is caused to the owner/possessor

--->Measure of damages is the fair market value (replacement cost) of the chattel at the time of conversion. The court basically forces the sale of the chattel to the Defendant.



The defense is based on the special circumstances which the Defendant will plead justifies their conduct. If appropriate, the Defendant must RAISE and PROVE the affirmative defense.

NOTE: Defendant can rebut Plaintiff's claim with an affirmative defense, demurrer (so what?). Defendant can also win if Plaintiff does not give proof on all of the elements, because the Plaintiff has the ultimate burden of persuasion.

A. CONSENT (Theoretically, this defense is created by the Plaintiff: The Plaintiff must prove that there was no consent.)

1. The Defendant, however, may allege consent:

-Actual/Express (written/oral)

-Implied (Manifestation of consent which would lead a reasonable person to believe that the Plaintiff consented)

-Implied consent can also be construed from a history of horseplay, friendship, romance etc.

2. Medical Consent, modern law is expanded.

-Rationale is that it is unreasonable to hold physicians to exact operation (emergency situation/surgery) because you cannot always know what is wrong until the person is cut open and under anesthesia. Doctor must be trusted to use sound practice, and only operate in area of original incision (Kennedy v. Parrot)

-->RULE courts may create implied consent (emergency, sound practice), however traditional common law is express consent only.

3. Informed Consent, is preferred (regular) non-emergency medical situations today.

-(All relevant information is given when possible.) Misrepresentation (identity, necessity) or fraud (knowing makes false statement, knowing person would rely on it) vitiates consent

4. Consent in Sports

-Individual, by participation implies consent to contacts permitted by rules of the game. Anything going beyond may be battery or assault.

5. Consent not valid when

-P lacked capacity to give consent

-Consent was coerced

-Consenting person mistaken about nature/quality of invasion D intended

-Conduct was such that no one could/would give valid consent

B. SELF-DEFENSE---One has privilege to use as much force as reasonably appears immediately necessary to protect himself from imminent physical harm threatened by the intentional or negligent act of another.



1. Limitations

-Justification in belief of danger

-Appropriate extent of the force used; amount is, or reasonably seems necessary.

-Deadly force may not be used unless against equally deadly force.

-Defender must cease use of force after aggressor rendered disarmed/helpless

2. In mutual affray,

-Common law may hold anyone fighting liable.

-Modern, no person can sue another unless the force used by one is totally out there.

C. DEFENSE OF OTHERS

1. Similar to self-defense, but with limitations:

-No excessive force

-Reasonableness of conduct

-If mistaken, (majority) absolute liability, (minority/Restatement) mistake ok if reasonable.

D. DEFENSE OF PROPERTY

1. Direct action rule

-No privilege to use any force calculated to cause death or serious bodily injury to repel the threat to land or chattels unless there is also such a threat to defendant's personal safety as to justify self defense.

1. First request to move should be oral (or by extension, sign?); and the other has disregarded the request, or the actor reasonably believes that a request will be useless or that substantial harm will be done before it can be made.

2. Must have reasonable belief in need for force to prevent or terminate intrusion

3. Intrusion not privileged, or intruder causes actor to believe intrusion not privileged

2. Indirect action rule

-Possessor of land cannot do indirectly and by a mechanical device that which were he present he could not do immediately and in person.

1. Cannot be deadly or serious

2. Must be reasonably necessary under the circumstances

3. Must be a device customarily used or must have warning

E. RECAPTURE OF PROPERTY--limited privilege for an owner whose property has been wrongfully taken.

1. Wrongful taking, and the actor must be correct that the taking was wrongful. (Mistake is no excuse--so if you go after someone and they don't have your stuff, then YOU can be held guilty)

2. Fresh pursuit

3. Force used must be reasonable, prefaced by a prior demand for return.

F. SHOPKEEPER'S PRIVILEGE--Unlike recapture of property per se, the shopkeepsr's privilege gives the right to detail the alleged thief for questioning.

1. Must be reasonable cause--property taken without payment, but unlike Recapture, belief has to be reasonable and does not entail absolute liability.

2. The purpose of detention must be valid--to question person or call police

3. Reasonableness of detention must be directly related to any resistance which makes the force used necessary.

G. NECESSITY---Defendant's privilege of defending persons or property from threat of imminent serous harm by intentionally doing some act which results in injury to Plaintiff's property and which otherwise be a trespass or conversion.

1. An imminent threat is necessary to claim necessity

-i.e. during actual warfare, to prevent an imminent public catastrophe, or to abate a public nuisance.

2. Harm threatened must be serious, but does not have to be caused by Plaintiff.

3. Act must be deemed reasonably necessary to that end of stopping harm.

>>Damages--actual damages do not need to be shown; nominal damages always available.



II. NEGLIGENCE

1. Legally recognized duty of care owed to Plaintiff

2. Breach of that duty by D's failure to conform his conduct to meet this required standard.

3. There was a sufficient causal connection between D's conduct and P's harm.

Cause in Fact

Proximate Cause

4. Actual injury or loss to P.

A. DUTY

-Introduction

1. One has a duty to act as a reasonably prudent person would in like circumstances.

A. Apply: Duty in the particular situation would be...

2. Judge Hand: Liability arises when the burden of adequate precautions is less than the probability of the event happening multiplied by the gravity of resulting harm if it does.

3. Balance risk involved and forseeibility of injury against social utility of actor's conduct, magnitude of burden of guarding against harm, and consequences of placing a burden on actor's conduct. (Generally, is known as Risk v. Utility)

a. Manufacturer violates duty of care when creating unreasonable risk by marketing directly to children (Moning v. Alfono)

b. Guard at restaurant when surrounding places had them (Lannon v. Taco Bell)

-What standard? (Under like Circumstances)

A. Persons deemed to have the same knowledge, experience, ability to perceive, understand, and remember of the 'reasonable person'

1. Mentally ill or insane person held to same standard of care as ordinarily careful person.

a. Custodians should be more careful with them

b. Hard to distinguish from plain bad judgement

c. Tort actions don't require moral blame

2. People with pre-existing physical infirmity held to adapted standard of care, of reasonably prudent (disabled) person.

3. Minor owes that degree of care which a reasonably prudent minor of his age, experience, and intelligence would have used under similar circumstances; Exception: when performing adult activities, held to adult standard of care (farm case)

4. Sudden Emergency Doctrine--generally, part of 'under the circs, what would reasonable person do':

A. If sudden emergency (was it reasonable response under the circumstances?)

i.. Failure to anticipate emergency when reasonable person would may point to negligence

ii. Creation of the emergency in the first place may also be negligence

B. Some jurisdictions consider suddenly arising mental disability (which impairs actors' ability to conform his conduct to the standard) as a defense.

i. Ex. Seizures, heart attack, insanity

5. Doctors, surgeons, specialists, architects, even manicurists will be held to a different standard: (Individuals with knowledge or skill superior to the ordinary person are held to a higher standard of the reasonably prudent professional in that field and locality.)

a. Negligence is not presumed just because treatment or result poor. Relates to something that was actually done or omitted that reference point says must (not) be done.

b. Modern rule looks to national standard of medical care (Morrison v. MacNamara)

i. Traditional--in the local community

c. Modern Medical and Legal: Should be informed consent; there is duty to disclose all facts, alternatives, and risks unless there is solid reason not to do so (emergency, general knowledge, etc.)

d. It must be affirmatively shown by expert medical testimony of professional in the field. Expert to testify on special degree of care, skill, and knowledge possessed by ordinary members of their specialized profession.

e. Medical Malpractice/Informed Consent: 1) D failed to inform P adequately of a material risk before securing P's consent, 2) if P knew risks, he would not have consented, 3) adverse consequences which were not made known did occur, 4) P was injured as a result.

B. BREECH/EVIDENCE OF NEGLIGENCE (failure to conform conduct...)

-Can be shown by breech of standard (statute), direct testimony or 3rd person (breach of duty) or circumstantial evidence (res ipsa loquitor)

-The FACTFINDER will determine if it is negligence or not....here's evidence

1. Violation of Statutes (Generally evidence of violation can be introduced into evidence to establish the standard of conduct)

A. Theoretically, statute defines the duty set out by society of what the reasonable actor should do, so violation of the statute would thus constitute negligence, or breach, of that duty.

B. Applicability:

1. If Statute is applicable, most jurisdictions hold that violation of statute is negligence per se (rebuttable presumption) In other jurisdictions, a violation is only evidence of negligence

2. Violation of statute constitutes negligence (breech) ONLY WHEN duty is owed to the Plaintiff. Otherwise, negligence in the air.

C. When is the statute a relevant standard?

1. If the legislature's standard is to be adopted, then the court must also adopt the limits of the purpose for which the statute was intended. Must be relevant.

-Macdonald nurse case-injury not less likely if nurse was licensed in-state. Thus generally, failure to comply with licensing statute not admissible because it goes to character/reputation, and may have no bearing on harm.

-No alcohol on Sunday law has no relevancy for sober shoplifter.

a. Plaintiff must be a member of the class intended to be protected by the statute.

-Look at legislative history, precedent involving the statute, other states and analogous statutes, judge

b. Harm must be of the type the statute was intended to prevent.

-Hetherton v. Sears-Sears sells gun to convicted felon, which violates gun control legislation. Felon shoots cop. Sears is liable, b/c the legislation was to prevent 3rd parties from getting hurt by felons committing more crimes.

2. Circumstantial Evidence and Res Ipsa Loquitor

A. Test:

1. Would the injurious result ordinarily happen in the absence of negligence?

-->NO

-In medical case, must have expert testimony to show this

2. Were the instrumentalities involved under the (exclusive) management and control of the defendant? -->YES

3. Other tests: Did the defendant possess superior knowledge or means of information as to the cause of the occurrence? (Plaintiff being at disadvantage and cannot find out other causes or contribute to freak accident) YES

B. Application:

1. In most jurisdictions, it warrants an inference of negligence that the jury may draw or not.

2. Could also raise a presumption of negligence (breech of duty) which requires the jury to find negligence if D does not produce evidence sufficient to rebut the presumption.

3. Could not only raise such a presumption, but also shift the ultimate burden of proof to D and require him to prove by a preponderance of all of the evidence that the injury was not caused by his negligence

C. Rebuttal

1. Medical evidence showing due care (bad result not proof of negligence)

2. Other causes (breakdown of transmission because of bad driver)

3. Contributory negligence

C. CAUSATION

Apply: Causation is a double inquiry, first we will ask, 1) what are the causes in fact, and 2) which was the proximate cause.

Apply: In a concurring cause situation...., in a single cause situation......, this is a ---- situation, so the ---test will be used to determine cause in fact.

2. CAUSE-IN-FACT-

A. Concurring cause--two or more causes concur to bring about an event. Either of them, operating alone, would have been sufficient to cause the SAME result.

-Ex. Brisbay v. Fireboard Corp. Heavy smoker/asbestos worker dies. Both are regarded as likely causes of his death.

Use the substantial factor test. That is, was D's act a substantial factor in causing P's harm?

-DES case, how to prove that the particular manufacturer made or sold the actual pills which caused the harm?

-Market share-amount of their product on the market

-Alternative-kind of like joint and severable liability where burden is placed on the two parties to duke it out to determine their own part in the harm.

-Enterprise liability-industry wide conduct, joint knowledge, each failed to alert consumers or reduce the risk.

B. Single Cause--a single cause or linked series of causes that lead to the harm

-Ex. Stahl v. Metro Dade- Boy on bike avoids bad patch of sidewalk by riding in the street and is killed by an approaching driver.

Use the but for test. That is, but for D's act in a natural and continuous sequence, P's harm is produced, and without D's act, the harm would not have occurred.

3. Conceptually, the law does not hold one liable for EVERY consequence which follows from his conduct, even if conduct is decidedly negligent. Liability must meet additional and further proximate cause standard.

4. PROXIMATE CAUSE

Apply: The act may be the cause in fact, but was it also the proximate cause. The majority would ask whether this injury was a forseeible consequence of D's conduct, it very well is/isn't... Run thru each test.

A. Forseeibility (majority standard) D is liable if P's harm was a forseeible consequence of D's conduct.

1. Not only what actor believed would happen, but whether he ought to have forseen some kind of harm.

-Grocery store sign; should have seen injury coming

2. General rule is that D is responsible only for forseeible consequences

-Exception: when P has existing condition and D makes it worse--he takes his victim as he finds him (eggshell rule)

3. Forseeible events include acts of nature (normal, not freaky), criminal conduct, and negligence of others. Also, forseeible results because of these events.

4. Frseeability relevant to duty and proximate cause, but not the particular harm.

B. Direct Cause: D is liable if his conduct is the direct cause of P's harm as opposed to a remote cause (closer to cause-in-fact)

1. Ex. Fire on ship, cannot ignore even slight risk so liability

-This approach rejected in Overseas Tankship case because the extent of the harm not forseeible by reasonable person.

C. Natural and Probable consequence: D is liable for the 'natural and probable' consequences of his act (what is likely/normal to occur)

D. Substantial Factor: D is liable if his conduct was a substantial factor in bringing about the harm suffered by P.

5. SUPERVENING CAUSES VS. PROXIMATE CAUSE

Apply: Was y's act an intervening cause? If so, then X's act was not the proximate cause. If it was not an intervening cause but a concurring cause, then it could still be the proximate cause. An intervening cause is:

A. Independent of original act, subsequent to it

B Adequate of itself to bring about the result

C. Must not have been reasonably forseeible.

--ex. Elderly bad driver drives into wall in parking garage and falls to the ground. The bad driving was the independent act, and the architect could not forsee this happening. (Minor v. Zidell Trust) No liability.

--ex. Big drunk guy falls over woman in bar and she is hurt. Traditionally, bar not liable for selling alcohol to patrons, b/c it is the patron who consumes. However, modern, bar now liable because injuries to 3rd parties are forseeible consequences of serving alcohol to drunk people. Liable.

--ex. Modern view allows that when suicide committed in a state of insanity CAUSED BY D's wrongful act, a cause of action IS sustainable. Without insanity, however, suicide is a supervening cause.

D. When situation exacerbated by intentional or criminal conduct by 3rd person, this is a supervening cause!!!

6. THIRD PARTIES, CO-DEFENDANTS, AND OTHER WEIRD SHIT.

A. Rescue Doctrine:

1. There is no duty to rescue, however when one tries to help and then is injured by a third person, the original Ds (if deemed negligent) may be proximate cause of consequences to rescuer. Car accident scenario.

B. Multiple Defendants

1. If held joint and severally liable, then each is liable for the entire judgement. They can seek contribution amongst themselves. This seems to be the best way for P to press charges against multiple defendants because hopefully one of them will have the money, be locatable, etc.

A. Joint and severable liability for single event/transaction or closely related events will be allowed if either,

1. Ds acted in combination and in a concerted manner in causing the harm of which the P is complaining.

2. Harm caused is indivisible, even if D's acted separately and not in concert.

B. If Ds deemed joint and severably liable, then under certain circumstances, #1 has the right to sue #2 and #3 for:

1. Contribution --recovery of the excess over one's proportionate (equal) share of an obligation.

2. Indemnity --the right to recover the entire obligation from the one

who, in all fairness, should pay it.

a. D#2 can recover from doctor who made injury much worse.

C. Exceptions to joint and severable liability

1. Intentional tortfeasor

2. Family immunity doctrine --If 3rd person not liable to P (under family immunity doctrine) then contribution cannot apply

3. Rules of jusrisdiction

D. What is the impact of settlement on joint and severally liable defendants:

1. Common Law--release of one releases all

2. Modern-impact of settlement with one party is a partial satisfaction of the amount of the jury award and may impact further amounts; but, cannot bar lawsuit.

3. Among joint tortfeasors, if one pays the whole amount, he can then go back and seek contribution from the other Ds

E. Comparative negligence and joint and several liability

1. Traditionally, court does not apportion punitive damages among joint tortfeasors because harm is indivisible; single judgement for which all are responsible. Lesser single judgement when P is also negligent (under comparative negligence)

2. Comparative negligence does not undermine joint and several liability: Negligent Ds should in fairness continue to bear the full responsibility for payment of the reduced amount a comparatively negligent P may recover in damages.

III. SPECIAL TOPICS IN NEGLIGENCE

1. SPECIAL CIRCUMSTANCES: DOCTRINE OF LIMITED DUTY

A. Duty-Obligation to conform to a particular standard of conduct toward others.

B. General Rule: No duty to aid a parson in peril. If you do stop to act and end up doing something wrong (gross negligence) you can be sued under Good Samaritan Act.

1. Exception: There is a duty to render aid (to exercise reasonable care under the circumstances) when a special relationship exists.

a. Common carrier-->Passenger

b. Innkeeper--->Guest

c. Employer/Employee

d. Possessor of premisis open to public-->Invitee

e. Highway Patrol--No duty to stop to help collect information but has right to stop/investigate. If he does stop, must exercise due care, especially if he leads person to rely on assistance. (Williams)

i. Duty to public/government, not to individuals

2. Exceptions: Duty exists when:

a. If the individual creates the peril

b. In assisting, duty is not to make the situation worse

c. When there is a voluntary assumption of such a duty

i. Via a gratuitous or for consideration undertaking to render service

ii. Duty not created by a request for help

3. Exceptions: Third parties

a. To prevent third person from causing harm, if there is an ability to control him, and forseibility of harm. (i.e. parent to control child, mental hospital not to let patient out when he still talks of killing his mother)

b. When there is reliance, ex. Employer relies on judgement of insurance company, so indirect reliance by employee.

2. NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

A. Common law allows no recovery for negligent infliction of emotional distress.

B. Elements

1. Conduct would offend reasonable person, is a departure from the action of a reasonably prudent person under the same or similar conditions. (Eggshell rule does NOT apply)

2. Emotional injury must be the natural result of the fright caused by the defendant

3. Physical manifestation of emotional distress is required in a majority of states

C. Physical impact not needed: Mental injury can result from both physical harm/injury and/or mental harm without physical contact

D. Third Party recovery-limited to relieve burden on courts and limit D's liability

1. Plaintiff must be at or near the scene of the accident

2. Plaintiff must directly observe the accident/injury

3. Plaintiff and the injured party must be 'closely related' as in blood or spouse

3. WRONGFUL LIFE/DEATH

A. Child born alive (but injured in utero) may maintain an action for personal injures suffered while in the womb as a result of D's wrongful conduct.

1. Care and Medical support

2. Emotional damages--child usually cannot recover, because it is better to have life, but parent may be able to. .

B. Parent can bring wrongful death action for the death of a viable child killed in the womb.

1. Contradicts Roe v. Wade, unborn have rights, etc.

2. Emotional damages, and care/medical support for parents (but no windfall for kid)

4. OWNERS AND OCCUPIERS OF LAND

1. Under common law as developed, duty of care dependant on status, modern law categories more collapsed under forseeibility.

A. Invitees: On premisis at owner's invitation for mutual benefit (usually economic)

1. Owner must maintain premisis in safe condition; and, exercise reasonable care for invitee's safety.

2. Warn invitee of hidden dangers that have been or could have been discovered by reasonable inspection.

3. No willful and wanton injury

a. No duty when the injuries suffered were cause by known or open and obvious danger (natural), except for where the owner knows it will cause harm--be ignored, etc.

b. No duty when invitee exceeds the area and time of the invitation

i. Ex. Employee who takes the shortcut across the parking lot, or the guy who ventures into the 'Employees Only' section--status will change from invitee to trespasser

B. Licensee: Enters on the premisis with possessor's permission, soley for his own purposes.

1. No duty to maintain safe condition

2. Owner must warn of or make safe any hidden dangers he knows of that landowner knows will not be discovered or realized.

3. No wilful and wanton injury

4. No liability for natural, obvious and apparent dangers.

C. Trespassers: Enters on premisis without the consent of the owner

1. Duty owed is minimal if at all: Owner must not willfully injure or recklessly injure the trespasser once she becomes known

2. Exception: Attractive Nusiance Doctrine:

a. Owner has knowledge of likelihood of tresspassing by children

b. Owner has knowledge of a dangerous condition, whereby a kid would not realize the danger.

c. Condition is artificial, more benefit than cost of eliminating it

2. Generally, no duty to protect against criminal 3rd persons, except for those anticipated or forseen. (Contrast rural branch bank case with Taco Bell in bad neighborhood case)

3. Owner (landlords) duty to leasee/leasee's guests:

A. NO duty concerning defective conditions existing at the time of entry into the lease

B. With the lease, its as if the leasor is selling the property to the lesee for that period of time.

C. Limited exceptions:

a. Latent conditions, known/knowable by the lessor and unknown by the lessee, There is duty to disclose (not repari)

b. Conditions dangerous to outsiders

c. When the premisis is leased for public admission

d. Areas within lessor's control (laundry room, hallways) but not areas off-limits (the roofdeck)

e. When lessor contracts to keep the premesis in good repair

f. Negligence by lessor in making repairs

4. Duty of Owner/Occupier to Outsiders

a. Duty because outsider not doing anything wrong

b. Subject to liability for physical harm caused by structure on the land which the possessor realizes or should realize will involve an unreasonable risk of harm

i. Artificial/structural conditions--liability

ii. Natural conditions--no liability in rural areas, only urban

a. Ex. Tree branch hanging over 1st Avenue

III. DAMAGES (Pecuniary Compensation for the harm)

Apply: What damages are available in order to restore P to his pre-injury condition by translating the losses into dollars...

A. Single Recovery Rule: A single wrong gives rise to only one cause of action in which all damages (past, present, and future) must be recovered)

1. Restore P to pre-injury condition

2. Losses translated into dollars

B. Types of damages:

1. Nominal (small sum awarded for technical injury)

2. Punitive (damages in excess of compensation to punish and deter others)

3. Compensatory (most common in tort cases for injuries to persons/property)

A. Special (for actual, proven result of the event, but not necessarily its result) These must be specially pleaded to put D on notice (otherwise unfair surprise) because they don't happen to everyone the same.

1. Medical expenses (EXPENSES)

a. Past, present and future

b. Surgery, drugs, equipment, etc. in future, medical bills of past

2. Lost earnings/lost earning capacity (EARNINGS)

a. Past loss because of inability to work

b. Future lost earnings capacity (work-life expectancy tables)

B. General (non-economic, jury guided by testimony--not bound)

1. Pain and suffering (PAIN)

a. Hard to quantify, can recover w/o proof

i. Physical injury

ii. Mental injury

2. Loss of enjoyment of life (ENJOYMENT)

C. Future damages

1. Valued with life and worklife expectancy tables

2. Future damages may be discounted to present value, so that judgement will be full amount upon date of award.

3. Some jurisdictions will adjust award for inflation

4. Judgements NOT subject to taxation; historically this is not considered.

D. Wrongful Death award includes

1. Personal injury to decedent prior to the death (medical, pain and suffering)

2. Harm to heirs for damages caused by the loss

a. Value of services

b. Gratuities reasonably expected.

c. Loss of companionship/society

d. Loss of support

3. Measure is with life expectancy tables

E. Injury to Real property

1. Permanent damage--difference in fair market value before and after or replacement

2. Temporary or injury to property--cost of repairs or replacement

F. Jury award of damages will only be disturbed if excessive or inadequate:

1. Evidence bias so as not to shock court's conscience

2. Contrariness to overwhelming weight of credible evidence

3. May grant new trial conditional on P's acceptance/rejection of reduction or D's acceptance/rejection of increase.

4. Lots of discretion on general damages

G. Mitigation (see defenses)

H. Pre-existing condition--Take victim as you find him:

1. Because of a preexisting weakness, injury, or illness, if victim suffers a worse injury than a normal person would suffer, damage award not reduced automatically.

2. If injury would have occurred anyway, then D can offer this to jury to show his liability should be mitigated. (Abernathy--heavy laborer and back injury)

I. Collateral Source Rule

1. Total or partial compensation which P recovers from a collateral source (independent of D) does NOT operate to reduce the damages recoverable from Defendant. (Majority)

2. Minority: Depends on source

3. Other sources can include private insurance, workers compensation, social security, disability insurance, wage continuation plans, sick leave, veterans benefits, public aid.

4. Exception: Payments received from joint tortfeasor is credited toward award.

IV. What defenses does D have?

Apply: The defendant can claim that the Plaintiff was comparitively negligent and/or assumed the risk. He can claim the P suffered avoidable consequences because he failed to mitigate, and/or that he, the Defendant, was immune from liability because of his governmental position or by the statute of limitations.

1. Comparitive/Contributory Negligence

A. P was contributorily negligent

Apply: P failed to act with that degree of care which a reasonably prudent person would have exercised for his own safety under the same/similar conditions. In common law, a complete bar to P's recovery

1. If P deemed contributorily negligent, can use defense of last clear chance to question the proximate cause---say that D's negligence was AFTER P's, so D had the last opportunity to avoid the accident by exercising reasonable care.

a. Test: P negligently put himself in danger, the D saw or ought to have seen the P's dangerous situation, and the D could have avoided injury but didn't

B. P was comparitively negligent--(majority of jurisdictions) P's negligence may not be a complete bar to recovery but will only reduce P's recovery



C. Types of Comparitive fault systems

A. Slight/Gross--closest to contributory

1. P may recover that portion of his damages caused by D if his own fault is slight in comparison to D's

2. P may NOT recover ANYTHING if his own fault is gross in contrast to P's.

B. Not as great as

1. P may recover from D only if his own fault is less than D's, ie. Does not exceed 49%.

2. Recovery is damages reduced by the % of his own fault

C. Not greater than

1. P may recover if his own fault is less than or equal to D's fault

2. Recovery is damages reduced by the % of his own fault.

D. Pure Comparative fault

1. P may recover from D his damages reduced by the degree of his own fault so long as there is SOME negligence on the part of the D (can be 99-1)

2. Assumption of Risk--

Apply: When P assumes the risk, D is relieved of his duty of care because P had consented to bear the consequences of a voluntary exposure to a known risk

a. Subjective standard--what the particular plaintiff in fact sees, knows, understands, or appreciates.

A. Express Exculpatory agreements enforceable

1. Did the language of the agreement include the type of injury suffered?

2. Is the agreement affected by a public interest which renders it void/unenforceable?

a. Inkeepers cannot limit liability

3. Majority: exculpatory clause limits wrongful death action by someone else (3rd party)

B. Implied assumption of risk

1. Relationship that P voluntarily accepts, ie. Spectator

2. Voluntary encountering of known risk, ie. Renting a chep car

3. Unreasonable encountering of known risk, ie. Shortcut

C. Common law--assumption of risk bars recovery

Modern, express assumption bars recovery; implied treated as % comparitive negligence

3. Avoidable Consequences/Mitigation

Apply: P is required to lessen the damages as far as reasonable by the use of due care and diligence. P has no burden to demonstrate mitigation; rather, D must prove he didn't and should have.

A. Zimmerman Injury would only be temporary if she had the surgery

1. If reasonable person would have (weighing risks and benefits) she should have had the surgery.

B. One injured by negligent conduct can recover expenses reasonably incurred in mitigation of damages

C. Compensation received from an independent 3rd source

1. Not evidence of mitigation

2. Cannot be reimbursed

3. Not deducted from award of damages.

4. Statute of limitations

Application: limit on time period from when after the tort that the P must file. Normally, the clock starts ticking when D breaches his duty to P

1. Exception: Discovery rule for particular torts (drug, foreign objects)

A. When P discovers the causal relationship between his harm and D's negligence

5. Immunity

Application: D's act is tortuous but D given a defense because of his favored status.

1. Traditionally, governmental/sovereign immunity was the rule.

2. Modern, general liability of government/government agencies

A. Federal, state, and local have somewhat different rules

B. Exceptions (NO LIABILITY)

i. Performance/non-performance of discretionary functions

ii. Acts of courts/legislatures

iii. Discretionary decisions of the administration

3. Common law neither spouse could sue the other during the marriage

A. Legislation began to allow actions for torts involving property

B. Today, most jurisdictions allow actions for intentional torts.

C. Exceptions: where marriage has been terminated, where tort occurred prior to the marriage

4. Parent-Child

A. Property and contract actions between them have always been permitted

B. Restatement and strong minority of states have abolished immunity generally

C. Parent not liable for ordinary risks of family activities, discretionary functions

D. Most jurisdictions--no immunity for bodily harm intentionally/recklessly inflicted

V. VICARIOUS LIABILITY --Responsibility for negligence is assigned to one other that (and/or in addition to) the actor)based on the relationship of the parties.

1. Respondent Superior--Employer liable for negligent act by employee when employee is doing an activity within the scope of his employment.

A. Restatement--based on the scope of employment

a. Conduct is of the kind he is employed to perform

b. Occurring substantially within the authorized time and space limits (control of employer)

c. Actuated by a purpose to serve the master

B. Independent contractor--no liability

VI. STRICT LIABILITY --primary basis for liability is the creation of an extraordinary risk, either in kind or degree

A. Apply: for social reasons, some activities may be conducted only if the actor is willing to 'insure' others against the harm which results from the risks the activities create.

Theory: Based of the idea or trespass. (Escaping dangers--Generally, one who for his purposes brings on his land anything likely to be harmful if it escapes is under an absolute duty to keep it in.)

B. To impose liability without fault, certain factors must be present:

1. Instrumentality capable of producing harm

2. Circumstances and conditions in its use which, irrespective of its lawful purpose or due care involve a risk of probable injury to such a degree that the activity can be said to be intrinsically dangerous to the person or property of others

3. Causal relation between the activity and the injury (narrower rule than in negligence)

C. Restatement provides strict liability for activities which are 'abnormally dangerous' by picking and choosing from these six factors.

1. Whether activity involves a high degree of risk of some harm to the person, land, or chattels of others.

2. Whether the gravity of the harm which may result from it is likely to be great

3. Whether the risk cannot be eliminated by the exercise of reasonable

4. Whether the activity is not a matter of common usage

5. Wether the activity is inappropriate to the place where it is carried on; and

6. The value of the activity to the comunity

D. Animals

A. Trespassing animals: keepers of all animals are strictly liable for harm resulting form animals' trespass on property of another.

1. Exceptions: owners of dogs and cats not liable absent negligence for their trespass.

2. By statute, exception in some states--farm animals.

B. Non-Trespass

1. Common--Keeper strictly liable for harm to others ONLY if he has actual knowledge or knowledge which puts him on notice of the particular threat.

2. Modern--statutes impose strict liability for certain types of harm without requiring knowledge of the owner.

E. Defenses

A. Unforseeable intervening cause

B. Assumption of risk--encountering must be both voluntary and unreasonable