Intentional torts require that
D act with intent (not recklessness
or negligence).
Intent = D desires the result
or knows to a substantial certainty
that it will occur.
Intent is subjective (D
must, in his own mind,
exhibit desire or
substantial certainty) -
whether a reasonable person
would have been
substantially certain is
evidentiary but not
dispositive.
Intent as "Desire"
Intent is satisfied if D
desires the consequences of his
acts.
Intent as "Substantial Certainty"
Intent is also satisfied when D
is substantially certain (in his
own mind) that his acts will cause
the elements of the tort to
occur.
Garratt v. Dailey: The
court remanded to the trial court
the issue of whether a
five-year-old boy was substantially
certain the victim would fall while
attempting to sit on a chair the
boy had moved.
Transferred Intent
Applies to five traditional
trespass torts:
Assault
Battery
False Imprisonment
Trespass to
Chattel
Trespass to Land
If D intends any of these five
torts, but his acts instead or in
addition result in any of the other
five intentional torts, D is
liable, even though he did not
intend the other tort.
Intent transfers from
one tort to another (with
the five).
Intent transfers from
one intended victim to
another.
Restatement only allows
transferred intent between assault
and battery.
The Mistake Doctrine (reasonable
mistake of fact is no defense)
If D intends to do acts which
would constitute a tort, it is no
defense that D mistakes, even
reasonably, the identity of the
property or person he acts upon or
believes incorrectly that there is
a privilege.
Insanity and Infancy (not defenses)
Neither insanity nor infancy is
a defense to intentional
torts.
D may be so young or mentally
ill that he may not actually
possess the requisite intent
because it is a subjective
test.
However, the child or insane
person need not appreciate the
significance or wrongfulness of his
act.
D, a child, may be
substantially certain that
V will hit the floor if he
pulls the chair away even
though he does not know
that she will incur
injuries as a result of his
conduct.
Battery
Overview and Definition
Battery
occurs when D's acts
intentionally cause harmful or
offensive contact with V's
person.
Accidental contact must be
analyzed under negligence or
strict liability.
Intent Requirement
Battery requires intent to cause
the harmful or offensive contact but
not necessarily intent to do harm.
Leichtman v. WLW Jacor
Communications Inc.: Cigar
smoke purposefully directed at
P can constitute a
battery.
Once the defendant intends
and accomplishes the offensive
or harmful touching, he is
responsible for harm caused by
the battery even if minimal or
no physical harm was actually
intended.
Harmful or Offensive Contact
Battery encompasses either harmful
or offensive contact.
The tort compensates for
psychological affronts where
even trivial physical contact
has occurred.
The offensive contact need
not even physically touch the
body.
Aggressive and
demeaning grabbing of a
plate from P's hands
can constitute a
battery.
There is no requirement that the
victim be conscious of either the
contact or its harmful or offensive
nature at the time of the
intrusion.
The offensiveness of the contact is
based on what an ordinary person would
consider offensive.
If D knows that P is
hypersensitive to touching that
an ordinary person would not
find offensive yet continues to
touch anyway, courts are split
whether D should be liable.
Courts should
consider whether the
touching would cause
physical injury or
whether D could easy
acquiesce to P's
request.
Causation
D's voluntary action must be the
direct or indirect legal cause of the
harmful or offensive contact.
D, himself, need not touch
P - he could throw a rock at
him.
Assault
Overview
Assault recognizes that pure
psychological injury should be
compensable.
I de S et ux v. W de
S: Husband was entitled to
recover on behalf of his wife
from D who wielded an axe at
her. Even though the wife was
not physically touched, the
attack had caused her harm, the
fear of imminent physical
injury.
Definition
Assault occurs when D's acts
intentionally cause V's reasonable
apprehension of immediate harmful or
offensive conduct.
Restatement (unlike many
courts) eliminates the
"reasonable" requirement.
Criminal Assault =
attempted battery.
D could be guilty
of a criminal assault
by swinging a bat at
V's head, but if V were
looking the other way
and was not in
apprehension of
immediate harmful
contact, no tortious
assault occurred.
Intent Requirement
D must desire or be substantially
certain that his action will cause the apprehension of
immediate harmful or offensive conduct.
Motive is irrelevant.
Accidental creation of such apprehension
may be negligent infliction of emotional
distress but not assault.
Transferred intent between the other four
trespass torts applies.
Alteiri v. Colasso:
Apprehension
V must perceive that harmful or offensive
contact is about to happen to him.
If V is attacked from behind or while
asleep, there is no assault.
Apprehension can be created even if D does
not have the ability to actually cause the
harmful or offensive contact.
If D tells V that a gun is loaded
when it is not and fires the gun at V,
he may be guilty of assault even though
there was no possibility of causing the
battery.
Apprehension can only be created if D has
the apparent ability to cause the harmful or
offensive contact.
Imminent Harmful or Offensive Contact
V's apprehension must be of imminent
harmful or offensive contact.
SPLIT
Traditional rule = Words alone are
insufficient to establish assault; an
overt act must establish the imminent
threat.
Restatement = Verbal statements can
on occasion imply sufficient immanency.
Restatement agrees that the
threat must be imminent,
though.
Castro v. Local 1199: Threatening
an employee while slamming a table was "forward
looking" and was therefore insufficiently
immediate to constitute assault.
The threatened harm may be harmful or
simply offensive.
Reasonable Apprehension
SPLIT
Many Jxs require the victim to
suffer "reasonable" apprehension.
Restatement rejects the
"reasonable" requirement.
Under Restatement, D's
exploitation of V's
unreasonable fears or
gullibility is
compensable.
However, Restatement
probably did not intend to
include a privileged act in the
definition of assault.
Fear versus Apprehension
The requisite apprehension of imminent
contact need not produce fear in V.
Apprehension acknowledges V's awareness
that imminent harmful or offensive contact will
occur unless V takes effective evasive
action.
V's confidence that he can effectively
evade D (and hence, lack of fear) does not
minimize D's liability for assault.
Apprehension of an offensive, but not
harmful, contact can constitute assault, even
though the mere offensiveness of the imminent
contact would not induce fear.
Conditional
Assault
Assault made conditional on V's
noncompliance with an unlawful
demand still constitutes assault,
even if V is confident no assault
will actually occur if V complies
with the unlawful request.
If D brandishes a club
and threatens to beat V
over the head unless V
gives D his wallet, D is
guilty of assault.
Source of the Contact
It is not necessary that D be
the perceived source of the
threatened harmful or offensive
contact.
False Imprisonment
Overview and Definition
In false imprisonment, D unlawfully
acts to intentionally cause confinement
or restraint of V within a bounded
area.
Accidental confinement must be
addressed under negligence or strict
liability.
Generally, V must be aware of the
confinement at the time of
restraint.
Bounded Area
V must be confined within an area
bounded in all directions.
It is not false
imprisonment if V is free to
proceed in any direction, even
though he is prevented from
going in the direction he
wants.
The bounded area could be large,
even an entire city.
A vehicle, although moving, can
still constitute a bounded area.
Reasonable means of escape
precludes liability for false
imprisonment.
The escape is not
reasonable if:
It requires V to be
heroic;
It requires V to
endure excessive
embarrassment or
discomfort; or
V is unaware of the
means of escape.
Means of Confinement or Restraint
For false imprisonment to exist, V
must be confined or restrained.
Confinement may be accomplished by:
Physical Barrier
The barriers to
constitute false
imprisonment must
surround the victim in
all directions so that
no reasonable means of
escape exists.
Force or Threat of
Immediate Force
Force or threat of
immediate force can be
used to restrain
V.
The force may be
directed at:
V;
V's
family;
V's
companions;
or
V's
property.
D
grabs
V's
coat
and
tells
her
that
she
cannot
leave
with
it. If
V stays
and
refuses
to give
up her
chattel,
D is
guilty
of
false
imprisonment.
Use of threats of
economic retaliation or
termination of
employment to coerce a
victim to remain do not
constitute false
imprisonment.
Dupler v.
Seubert: Physical
threats were used to
restrain an
employee.
Omissions
False imprisonment can result from D's
omission when he had a duty to act.
D invites V on his boat
and promises to bring V
ashore when requested, D's
failure to do so
constitutes false
imprisonment.
There is no general duty to
act, so P must establish that D, in
the specific circumstance, has a
duty to act.
Improper Assertion of Legal Authority
(False Arrest)
False arrest is false
imprisonment by means of improperly
asserting legal authority.
V must submit to the arrest for
it to constitute imprisonment.
The arrest is improper if the
actor imposing confinement is not
privileged under the circumstances.
Privileges for police
officers
Arrests
pursuant to an
apparently valid
warrant are
privileged.
A police
officer is
privileged to
arrest for a felony
without a warrant
when he reasonably
suspects that the
other is
guilty.
Police officers
are privileged to
arrest for
misdemeanors
constituting
breaches of the
peace occurring in
their
presence.
Privileges for private
citizens
A private
citizen is only
privileged when she
reasonably suspects
the individual
arrested committed
a felony and a
felony in fact has
taken place.
D can
make a
reasonable
mistake in
arresting
the wrong
person but
only if the
felony has
actually
taken
place.
Private
citizens are
privileged to
arrest for
misdemeanors
constituting
breaches of the
peace occurring in
their
presence.
If D
fraudulently
induces V into
wrongfully
believing that D is
a police officer,
and V submits to
detention under
circumstances where
only a police
officer is
privileged to
detain, D has
committed false
imprisonment by
false arrest.
Contrast False Arrest with Malicious Prosecution
and Abuse of Process
Where an arrest is privileged and therefore
conforms to all requisite legal requirements to
justify arrest, the possibility of liability
for false arrest is precluded
A lawful arrest if motivated by bad faith
and satisfying other elements, may constitute
malicious prosecution.
The improper use of certain compulsory
processes such as subpoenas, despite conforming
to legal requirements, and therefore not false
imprisonment, may be tortious as abuse of
process.
Consciousness of Confinement
False imprisonment requires that V be
conscious of the confinement at the time of the
imprisonment.
Restatement modifies this
requirement and would find liability
where V is not aware of the confinement
but is harmed by the confinement.
No Minimum Time
False imprisonment covers even minimal
lengths of detention.
The amount of
compensation awarded for false
imprisonment will reflect the length
of detention.
Transferred Intent
False imprisonment is one of the
five trespass torts in which intent
transfers from victim to victim and
tort to tort.
Malicious Prosecution (MP) / Malicious Institution
of Civil Proceedings (MICP)
Definition: MP addresses wrongful criminal
prosecutions and MICP addresses wrongful civil
proceedings. They both require (all five):
Institution or Continuation of
Criminal or Civil Proceedings Against
P;
D must be responsible for
initiating or in some way
supporting the continuation of
the legal proceedings against
P.
D may ask another to bring
or maintain the suit.
False testimony by D
generally is not sufficient, by
itself, to maintain an action
for MP or MICP, although it may
be used as evidence of D's
instigating activities with an
improper purpose.
False statements to
a prosecutor that
stimulate him to
initiate a proceeding
are generally not
immune from the overall
bar on civil liability
related to a witness's
testimony.
Termination of the Proceeding in
Favor of P;
Suits for MP and MICP
cannot be filed until after the
initial criminal or civil
proceedings have been
terminated in favor of P.
Except for ex parte
proceedings (such as a
proceeding to attach
property), neither MP
nor MICP actions can be
brought until the
alleged wrongful
litigation is fully
completed.
The alleged
wrongful litigation
must result in
exoneration of P.
Dismissal
of the
proceeding
because of the
statute of
limitations,
settlement of
the case,
misconduct by
the accused
that prevents a
proper trial,
request for or
acceptance of
mercy by the
accused, or new
proceeding that
has been
instituted for
the same
offense and
that has not
been terminated
in P's favor do
not constitute
exoneration.
If the
proceeding is
dropped right
before
exoneration or
if the
proceeding is
abandoned
because the
accuser
believes the
accused is
innocent or
that a
conviction has
become
impossible or
improbable,
some courts
will accept
this as meeting
the exoneration
test.
Absence of Probable Cause for
Prosecution or Civil Proceeding;
There must be no probable
cause for the criminal
prosecution or civil
proceedings.
P must prove that
there was no reasonable
basis for D to believe
that he was guilty of
the criminal charge or
potentially liable in
the civil
proceedings.
Restatement defines
probable cause as the
accuser's subjective
belief in the accused's
guilt or liability and
a reasonable basis for
such belief (therefore,
if one element is
missing, probable cause
is lacking).
Improper Purpose or Malice of the
Accuser; and
D must have acted with
malice or (using Restatement
terminology) an improper
purpose.
Improper purpose is established if D
brought criminal or civil proceedings against P:
Whom D did not
think was guilty or
liable; or
In order to
harass P or gain
some extraneous
advantage unrelated
to the merits of
the litigation
(even if D believes
that P is guilty or
liable for the
charge).
If D simply dislikes P,
this alone does not prove
malice or improper
purpose.
Damages suffered by P.
Damages include economic
consequences of the wrongful
litigation, emotional distress,
reputational injury, and (where
malice is established) punitive
damages.
MIN (English Rule): Only
allows MICP where P incurred
some special damage such as
seizure of the person,
attachment of property, or an
injunction (does not apply to
MP).
Immunity of Public Officials
Prosecutors, judges (acting a
judicial capacity), other public
officials (except public defenders),
and the government that employs them
are generally immune from discretionary
decisions to prosecute.
Interaction Between False Imprisonment and
MP/MICP
Imprisonment under criminal process
or civil commitment does not constitute
false imprisonment as long as proper
legal procedures are followed.
Abuse of Process
Definition: Intentional misuse of either a
civil or criminal legal process for an ulterior
purpose (than for which it was designed)
resulting in damage to the plaintiff.
P must prove the ulterior
purpose.
Unlike MP/MICP:
There is no need to await the
outcome of the proceedings (can address
the abuse of legal processes within
such litigation).
Abuse of process can apply
regardless of who ultimately wins the
litigation.
Mancini v. Marquette Univ.: The
court reversed liability on a claim of false
imprisonment, but held that the plaintiff
alleged a proper case for abuse of process. P,
a student at Marquette University, was
restrained from leaving campus by the
university dean and others through wrongful use
of temporary civil commitment procedures
designed to determine whether P's mental
condition required imposing detention.
University officials knew P's mental condition
did not justify civil commitment, but used the
procedure to temporarily detain the student
until her father could be notified of her
intent to withdraw from the university. The
court held that the university's compliance
with legal procedures precluded P's claim of
false imprisonment, but that D's misuse of
procedure allowed liability for abuse of
process.
Intentional Infliction of Emotional Distress (IIED)
Definition: IIED exists when D, by extreme
and outrageous conduct, intentionally or
recklessly causes V severe mental distress (MAJ
= no physical manifestation needed).
Extreme and Outrageous Conduct
Restatement
definition: conduct which is beyond all
possible bounds of decency and to be
regarded as atrocious, and utterly
impossible in a civilized
community.
No objective standard, but mere
rudeness or callousness is
insufficient.
The vulnerability or known
sensitivity of V (e.g., whether a child
or very ill) and the relationship
between D and V (e.g., whether
superior-subordinate) are
important.
Sexual Harassment and Racial Epithets
Courts have hesitated in extending
IIED to sexual and racial harassment,
especially in isolated incidents.
Courts have been more likely to
recognize liability where a pattern of
harassment is constant and ongoing, and
where speech is combined with conduct.
Courts have held
corporations liable for failing
to respond to harassment
perpetrated by its employees,
especially those in supervisory
roles.
Jones v. Clinton: Paula
Jones, a state employee, alleged that
Bill Clinton, while Governor of
Arkansas, exposed himself while
propositioning her. The alleged conduct
was sufficiently brief and without
coercion so as not to be extreme and
outrageous for purpose of IIED. Also,
Jones failed to prove tat she suffered
any severe mental distress required by
the tort.
Constitutional Limits
Public Figures
Public officials must prove
New York Times malice
(same as in defamation) in
order to recover under IIED:
knowledge or reckless disregard
toward the truth or falsity of
the assertion.
Verbal disparagement to
public figures, which are not
asserted as factual, are
generally protected under the
1st Amend. no matter how
extreme and outrageous.
Hustler v.
Falwell: The Supreme Court
held unconstitutional the
determination that a parody
advertisement in Hustler
magazine could result in
liability under IIED. The mock
advertisement, while clearly
satirical, suggested that Jerry
Falwell, a nationally known
religious and political leader
of the Moral Majority, had his
first sexual encounter with his
mother in an outhouse. The
Court held that a public figure
could not recover without
proving New York Times
malice; because the parody was
never asserted to be truthful
and because an ordinary reader
would not reasonably interpret
it as truthful, the Court found
there could be no
liability.
Private Individuals
Proof of negligence toward
the truth is applied in
defamation cases involving
private plaintiffs in public
controversies - by analogy,
this lesser standard could
apply to IIED.
Intent or Recklessness to Cause Severe Emotional
Distress
P must prove that (either):
D intended to cause severe
emotional distress; or
D acted with a deliberate disregard of
a high degree of probability that severe emotional distress
would result (i.e., recklessness).
Severe Mental Distress
P must actually suffer
severe mental distress.
Mild distress will
not suffice.
MAJ: physical
manifestations (heart
attack, stomach trouble
attributable to stress
or shock) of severe
mental distress are
not
necessary.
Third-Party Recovery
IIED is not one of the five torts
that allows transferred intent.
However, if D is substantially
certain or deliberately disregards a
high degree of risk that V will incur
severe emotional distress by observing
D's conduct (e.g., by attacking a young
child's parent in front of the child),
D may be liable for IIED.
Courts have usually limited
recovery to indirect third-party
victims when (all three):
The third party is a close
relative of the direct
(intended) victim;
The third party is Present
at the scene of the outrageous
conduct against the direct
victim; and
D knows that the close
relative is present.
Restatement does
not require D's
knowledge of the close
relative's
presence.
Restatement also allows
non-relatives that can satisfy all
other elements of the tort to recover
if they are present and suffer physical
manifestations of severe distress.
If D intends to cause emotional
distress to the third party by his
actions toward another, the third party
becomes a direct victim and need not be
present, a close relative, or suffer
physical symptoms.
Exception for Innkeepers, Common Carriers,
and Other Public Utilities
Innkeepers, common carriers, and
other public utilities (e.g., telegraph
company) are liable for intentional
gross insults (rather than extreme and
outrageous conduct) that cause patrons
to suffer mental distress (rather than
severe distress).
P must be a patron of D -
but need not have already
purchased a ticket, etc.
MAJ: acknowledge these exceptions
but do not extend them.
Slocum v. Food Fair
Stores: The court held,
without deciding whether to
generally adopt the tort of
IIED, that special liability
for public utilities did not
apply to a grocery store. A
grocery clerk told a customer,
"You stink to me," allegedly
causing V a heart attack
aggravated from pre-existing
heart condition. There was no
allegation that D knew about
the pre-existing
condition.
Intentional Interference with Contract (IIK) /
Intentional Interference with Prospective Economic
Relations (IIPER)
Definitions: IIK and IIPER are parallel;
IIK requires a valid K while IIPER requires a
legitimate economic expectancy. The torts are
only available against third-party meddlers,
not against a party who breaches his own K or
terminates his own economic relationship. The
elements of the torts are (all five):
Valid K or Economic Expectancy
between P and a Third Party;
IIK requires proof of a
valid K.
Texaco v.
Pennzoil: An
unsigned oral agreement was
held to be a valid K under
applicable state law.
IIPER requires proof of a valid
economic expectation.
Mere hope for customers or economic
profit is insufficient.
Competitors in sporting
events generally do not have a
sufficient expectancy to
establish the tort since the
outcome in most events is too
speculative (one court said
that IIPER should not apply to
interference with competitors
in sporting competitions as a
matter of public policy).
CA has allowed an IIPER
claim where a candidate for
office was the victim of false
campaign ads, even where he
lost by a four-to-one
margin.
Knowledge of Valid K or Economic Expectancy
by D;
For IIK, D must know of a valid K.
This is generally understood to mean
that D must know facts from which he
should have concluded that a valid K
existed.
Texaco v.
Pennzoil: It was
irrelevant whether Texaco
actually concluded Pennzoil had
a K to buy Getty Oil stock
based in part on an unsigned
agreement. The relevant
analysis was whether Texaco
should have known, by the facts
available to it, that the
unsigned written agreement was
nevertheless a valid oral
K.
For IIPER, D must know of a valid
economic expectancy.
Intent by D to Interfere with the K or
Economic Expectancy;
Interference must be intentional.
Restatement interprets
intent to mean either
purposeful interference or a
substantial certainty that
interference will occur.
Some courts have required
that intent be purposeful.
Interference Caused by D; and
D must actually cause
interference.
Merely hiring an employee who has
already breached a K with a different
employer does not establish that D
caused the employee to breach the
K.
Damages to P;
P must suffer damages.
Economic damages, compensation for
mental distress, and punitive damages
(where malice is established) may be
awarded.
Justifications for Interference
SPLIT: Whether P or D bears the burden of
proving whether D's conduct in interfering with
a K or economic relations is justified or
improper.
Restatement takes no position
An increasing number of courts are
requiring P to show that D's conduct
was improper.
Justifications for either IIK and IIPER:
Statements of truthful
information;
Honest advice within the scope of a
request;
Interference by a person
responsible for the welfare of another
while acting to protect that person's
welfare (e.g., parent-child,
attorney-client);
Interference with a K that is
illegal or violates public policy;
Interference by someone when
protecting his or her own legally protected interests in
good faith an by appropriate means; or
Inducing breach of a K that
unlawfully interferes with a
legally protected interest or
right.
Justifications only for IIPER or
at-will K:
Fair and ethical competition;
or
Ethical action to protect one's
financial interest.
Restatement factors to help determine
other instances when interference with
prospective economic relations or contract
is not improper:
Nature of the actor's
conduct;
Actor's motive;
Interests of the other with
which the actor's conduct
interferes;
Interests sought to be advanced
by the actor;
Social interests in protecting
the actor's freedom of action and
the other's contractual
interest;
Proximity or remoteness of the
actor's conduct to the
interference; and
Relations between the
parties.
Wrongful Termination of Employment Contract
Definition: An employer may be liable for
wrongful discharge, or wrongful termination,
where its termination of an employee
contravenes public policy.
This tort is irrespective of
whether the employee's termination
violated an employment K.
Termination Must Be for a Reason that
Contradicts Public Policy (all four):
Delineated in either constitutional
or statutory provisions;
"Public" in the sense that in
inures to the benefit of the public
rather than serving merely the
interests of the individual;
Well established at the time of the
discharge; and
Substantial and fundamental.
Terminations Found to Violate Public Policy
Age discrimination;
Questioning and objecting to
employer's making deductions from
pay;
Retaliation for alerting
authorities to potential criminal
conduct by employer;
Retaliation for disclosing illegal,
unethical, or unsafe practices like
hazardous working conditions;
Refusal to join employer in
violating the law.
Terminations Found Not to Violate Public
Policy
Informing a superior that one's
current supervisor is being
investigated by the FBI for
embezzlement charges at the
supervisor's former employer (serves
employer's private interest rather than
a public interest).
Corporate officer's informing the
board of directors that the employer
may have been abusing its tax-exempt
status (D did not link his duty to any
explicit policy or clear mandate that
was violated by his discharge).
Retaliation for making critical
remarks on an internal survey (tort
would have converted an at-will
employment relationship to one
requiring good cause for
termination).
Tortious Breach of the Covenant of Good Faith and
Fair Dealing
In each K, there is
an implied covenant of good faith and fair
dealing to allow for the terms of the K to
be interpreted fairly.
Occasionally, courts have held that breach
of the implied covenant of good faith and fair
dealing constitutes a tort as well as a breach
of K.
Damages for breach of K, economic
loss, mental distress, and punitive
damages (when malice is proven) are
possible.
Generally limited to insurance companies
that in bad faith intentionally deny or
wrongfully reduce indemnification for a
legitimate claim.
Egan v. Mutual of Omaha: P
received his first payment from D on
the claim in issue only after a long
delay and a personal visit to the
claims office. Testimony was introduced
that D's agent, although aware of P's
good faith efforts to work, called P a
fraud and told him that he sought
benefits only because he did not want
to return to work. When P expressed his
concern regarding the need for money
during the approaching Christmas season
and offered to submit to examination by
a physician of D's choice, the agent
only laughed, reducing P to tears in
the presence of his wife and
child.
Foley v. Interactive Data
Corp.: CA Supreme Court refused to
extend the tortious breach of the
covenant of good faith and fair dealing
to employment Ks by concluding that
employers have economic incentives to
treat employees fairly. Therefore, any
bargaining disparity is not comparable
to the insurance context.
Mini-Tort: Bad Faith Denial of the
Existence of a Commercial K
Distinction between disputing the
existence of a K in good faith and
denying it in bad faith is
difficult.
Allowed in very few Jxs (started in
CA, but now reversed there).
Montana extends tort to Ks where
parties have special relationship.
Intentional Misrepresentation
Definition: intentional or reckless
misrepresentation which induces V's reliance
and causes economic damages (six elements):
Material Misrepresentation by D;
Generally, the
misrepresentation by D must be
of a past or present material
fact.
Misrepresentation
of a present intention
is generally accepted
as a misrepresentation
of a present fact
(e.g., a fraudulent
promise when the
promisor has no
intention of keeping
the promise is a
misrepresentation; a
broken promise made in
good faith is not a
misrepresentation).
Misrepresentations
of opinions are
generally not
actionable.
Except for
opinions by an
expert to a
non-expert, by
a fiduciary, by
D who misleads
V as to the
objectivity of
his opinion or
implies
underlying
factual
misrepresentations
by his
opinion.
Even a statement
that is technically
accurate can constitute
a misrepresentation if
it is intended to
convey a factual
misimpression.
Physically
disguising a defect may
suffice.
Misrepresentations
of law (e.g., the
existence of a statute
or court decision) or
opinions of the law by
purported experts to
non-experts can be
actionable.
Misrepresentations must be material
to be actionable (i.e., either a reasonable person would
attach importance to it in determining his action in the
relevant transaction or the maker of the statement knows or
should know the person to whom the misrepresentation is
addressed is likely to regard it as important).
Traditionally, failure to disclose was not
a basis for liability.
Except where there is a duty to
disclose:
Fiduciaries must disclose
material facts.
An actor who initially
misleads V (even innocently) or
conceals information has a duty
to disclose and correct the
misimpression.
Several courts have held
that sellers in a transaction
must disclose fundamental
defects that the potential
purchaser would not be likely
to discover.
Restatement concludes that
there is an obligation to
disclose facts basic to the
transaction if D knows that V
is about to enter it under a
mistake as to them, and that V,
because of the relationship
between them, the customs of
the trade or other objective
circumstances, would reasonably
expect a disclosure of those
facts.
Requisite Scienter (Intent or Recklessness);
D must know the misrepresentation is false
or act with reckless disregard as to its truth
of falsity.
Recklessness = D made the
representation consciously aware of his
lack of knowledge about the
representation's truth or falsity.
Intent to Induce Reliance;
D must intend the misrepresentation to be
relied up as truthful by V.
A joke not intended to be taken
seriously is not actionable.
V who relies on a misrepresentation must be
the intended recipient or one to whom D had
reason to expect the misrepresentation would be
communicated and would be relied on in the same
type of transaction.
Causation;
The misrepresentation must cause reliance.
If V is not deceived, the tort is
not actionable.
Nader v. Allegheny
Airlines: Nader was denied
recovery for his claim based upon the
failure of the airline to disclose its
overbooking policy for confirmed
airline reservations. The federal
appeals court ultimately rejected
Nader's recovery, as he had been
"bumped" previously and was aware of
the airline's practice.
D's misrepresentation need not be the sole
cause of V's deception, but it must be a
substantial factor in misleading V.
D is only liable for foreseeable
damages.
Justifiable Reliance;
V's reliance must be justifiable.
Reliance is not justifiable if the
misrepresentation is immaterial to the
transaction or a mere opinion (subject
to exceptions above).
Courts and Restatement look to the
qualities and characteristics of the
particular P and the circumstances of
the particular case in determining
when P's reliance may be
unjustified even when the misrepresentation is a material
fact.
A knowledgeable V who relies on an obvious falsity,
despite his ability to easily recognize the falsity, is
unjustified in his reliance.
However, contributory or comparative negligence is not
a defense to an intentional tort; therefore, a fool may be
protected from intentional fraud.
Damages
MAJ: Courts award pecuniary damages based on the
"benefit of the bargain" if the misrepresentation had been
true (like a breach of K).
Misrepresented Value - Actual Value
MIN: Only award for P's "out-of-pocket" losses (tries
to restore P to his position before the tort.
Price Paid - Actual Value
Restatement allows P to choose between benefit of the
bargain or out-of-pocket losses if he is the direct V;
third-party Vs are limited to out-of-pocket losses.
Most courts under either approach generally allow
consequential damages, such as physical injuries and
punitive damages (when malice is proven); damages for
mental distress are ordinarily not awarded.
Defenses to Intentional Torts (D has burden of proving
defense)
Consent
Definition: If the asserted V gives permission,
what would otherwise be tortious is instead
privileged.
Express and Implied Manifestations of Consent
Generally, consent is a valid defense
when it is objectively manifested.
If D's actual knowledge of P's
lack of consent contradicts P's
otherwise objective manifestation
of consent, such knowledge
controls.
P can express consent in words or
through gestures.
P can imply consent when his actions
reasonably convey consent (e.g., lack of
objection to known trespasser) or by
adhering to community custom (e.g.,
allowing a stranger to walk on private
property to ring a door bell - unless a "no
trespassing" sign is posted).
Consent by Law
Consent can be implied by law (e.g.,
consent to emergency medical procedures
when unconscious - unless notice is given
by wearing a bracelet or having medical
orders near hospital bed).
Invalidating Manifestations of Consent
Incapacity
A child, based on age, can
consent to some things, but a legal
guardian must consent for elective
surgery. A controversial issue is
whether an adolescent may consent
without parental permission for an
abortion.
An insane or mentally retarded
individual may not legally consent.
The degree of incapacity required
to invalidate consent varies with
the activity in question.
Incapacity may be the result of
drug (including alcohol)
ingestion.
Incapacity
that is not known or should not
be reasonably known by a
potential D should not
invalidate a defense of
consent.
Action Beyond Scope of Consent
Consent is invalidated if the
action goes beyond the consent
manifested.
A medical procedure
without consent, even if
performed competently, may
constitute battery.
Fraud
Consent is invalid if it is
induced by fraudulent
misrepresentations of an essential
aspect of the interaction.
Failure of a physician
to inform the patient about
the risks of medical
treatment before procuring
the patient's consent is
most often treated as an
issue of negligence.
Duress
Consent procured under physical
threat is invalid.
Economic pressure,
while coercive, does not
negate consent.
In very extreme
instances, situational
duress can negate
consent.
Illegality
MAJ: A person cannot consent to
a criminal act.
MIN/Restatement: A person can
consent to a criminal act for tort
purposes except where the criminal
law is specifically designed to
protect members of V's class.
Self-Defense
Definition: Reasonable force can be used
where one reasonably (objectively) and
sincerely (subjectively) believes that such
force is necessary to protect oneself from
immediate harm.
Threat Must Be Immediate
Self-defense must be in response to
an immediate threat of harm.
Traditional C/L: Preemptive
strikes are not permitted.
MIN: Relaxes the immediacy
requirement (e.g., in spousal
abuse cases).
Retaliation is not a basis for
justification under self-defense.
If the initial aggressor
retreats, the victim may not
pursue and attack.
However, the
retreat must be
effectively conveyed to
the victim or else he
may continue to
reasonably believe that
self-defense is still
justified.
If the initial
aggressor effectively
conveys his retreat and
is attacked, he may
justifiably respond
with self-defense.
V's Response Must Be Reasonable
Self-defense is only justified if V
reasonably and sincerely believes that
force is necessary to avoid an unlawful
attack.
An honest and reasonable
mistake of fact about the need
to use force will not result in
liability for V even if he
harms or kills an innocent
(apparent) aggressor.
Deadly force is only justified if V
reasonably and honestly believes that
he would suffer death or serious bodily
injury from the attack.
V may not respond to a
non-deadly threat with deadly
force even if that is the only
avenue of response available
(he must endure the non-deadly
attack).
A threat to use deadly force (e.g.,
brandishing a weapon) is not deadly force if V does not
intend to use it but only threaten with it.
Obligation to Retreat from Deadly Force
V need not retreat from a
non-deadly threat and may reply in
kind.
MAJ: V need not retreat from a
deadly threat, either, provided V has a
legal right to be present or
proceed.
MIN/Restatement: V must retreat
where deadly force would be required in
self defense, except:
V need not retreat from his
dwelling, unless the aggressor
also lives in the dwelling;
and
V need not retreat if he
reasonably or correctly
believes that such a retreat
could not safely be
accomplished.
Defense of Others
Definition: A person can use reasonable
force to protect a third person from immediate
unlawful physical harm.
MAJ: The third party need not be a
family or household member; he can be a
stranger.
Limited Privilege Rule
Some courts allow privilege to use
force in defense of a third person only
when the person being defended was
privileged to use self-defense.
A reasonable, but
incorrect, mistake of fact
regarding whether the person
being attacked is privileged to
use self-defense does not
relieve the intervener from
liability.
Restatement Rule
Other courts have concluded that
there is a privilege to use reasonable
force to protect a third party whenever
the actor reasonably believes a third
party is entitled to exercise
self-defense.
Defense and Recovery of Property
Definition: An individual is privileged to
use reasonable force to prevent a tort against
her real or personal property. However, unlike
self-defense, a reasonable mistake will not
excuse force that is directed against an
innocent party.
Reasonable Force
Only reasonable force may be
exercised in protection of property.
Deadly force is never
reasonable to protect just mere
property.
Even slight force is
unreasonable in defense of
property if it is excessive
(e.g., a property owner is not
privileged to push a trespasser
if a verbal request to leave
his property would
suffice).
Force that appears reasonable at
the time is privileged even if it later
is found to be unnecessary.
Force Against a Privileged Party
Unlike in self-defense, if an actor
makes a reasonable mistake about
whether his victim is privileged to
intrude or use property and uses force
against the privileged victim, the
actor is liable unless the victim
intentionally or negligently led the
actor to believe that the victim was
not privileged.
Defense of Habitation
Restatement
allows deadly force when needed
to prevent any breaking and
entry into a dwelling and
possibly other
buildings.
Current view = deadly force is
not justified unless the intruder
threatens the occupant's safety by
committing or intending to commit a
dangerous felony on the
property.
A homeowner may not eject a
non-threatening trespasser or
invited guest when doing so would
subject that person to serious
physical harm.
Mechanical Devices
Mechanical infliction of deadly
force, such as by a spring gun, is
not privileged unless such force
would be justified if the owner of
the device were inflicting the harm
himself.
Increasing authority/MPC =
mechanical devices that are
intended to inflict deadly force
are never justifiable.
Barbed wire fences and similar
deterrents are not generally
perceived as intended to inflict
deadly force; therefore, if harm
ensues, liability depends on
whether the method of protecting
the property under the
circumstances was negligent.
Recovery of Personal Property
An individual may use
reasonable force to recover
property when in hot pursuit of the
wrongdoer.
The actor acts at her
peril, though, if she makes
a reasonable mistake and
uses force against an
innocent party (unless such
mistake was knowingly
induced by the innocent
party).
MAJ: Merchant's privilege
allows stores to use reasonable
force to detain a person for
reasonable periods of time to
investigate possible thefts if the
detention is within or near the
immediate parameters of the store.
Reasonable mistakes are allowed
under this privilege.
Necessity
Definition: Necessity is a defense that
allows D to interfere with an innocent
party's property in order to avoid a
greater injury.
Private Necessity
In private necessity, D has an
incomplete privilege to interfere
with P's property rights to avoid a
greater harm if D reasonably
perceives an immediate need to
appropriate P's property.
D must compensate P for
the interference.
But P may not repel D's
trespass or damage D's
property.
Privilege appears to apply even
if P's property has great
sentimental value but is
objectively less valuable than D's
property.
Vincent v. Lake Erie
Transp. Co.: D moored its ship
to P's dock in a storm in order to
avoid damage to the ship. The ship
damaged the dock during the storm.
D was privileged to use P's dock
but was required to pay P for the
damage done.
Public Necessity
Public necessity allows the
appropriation or injury of an
innocent party's property to avoid
more substantial public harm.
Unlike private
necessity, there is no
liability for inflicting
private loss to protect the
public (e.g., fire
department could burn down
a house and not allow the
owner to retrieve his
possessions in order to
create a fire line to
protect more homes from a
spreading fire without
incurring liability).
Some courts are
rebelling against providing
full immunity against
innocent victims.
Intentional Injury and Killing
There is sparse authority
supporting the use of necessity to
inflict personal injury or death to
an innocent party to save more
lives. Perhaps if a fair lottery
were used, the killing would be
justified.
Restatement takes no view, but
MPC allows use of necessity as a
justification for intentional
killing.
Negligence
Overview
To recover for negligence, P must
establish each of the following elements by
a preponderance of the evidence (i.e., more
than 50%) to establish a prima facie case:
Duty
Legally recognized
relationship between the
parties.
Standard of Conduct
The required level of
expected conduct.
Breach of the Standard of
Conduct
Failure to meet the
standard of care.
Cause-in-Fact
P's harm must have the
required nexus to D's
breach of the duty.
Proximate Cause
There are no policy
reasons to relieve D from
liability.
Damages
P suffered a cognizable
injury.
Standard of Conduct
Negligence liability only flows where
D's conduct has fallen below the relevant
standard of care.
Standard of care is the level
of conduct demanded of a person so
as to avoid liability for
negligence.
The Reasonable Person
D must act as would a
reasonably prudent person in the
same or similar circumstances.
Objective standard that
looks at D's conduct
(rather than his mental
state) and compares it to
an external standard of a
reasonable person.
Generally, D's physical
conditions and whether he
was acting in an emergency
are considered but not his
mental condition.
The Characteristics of the
Reasonable Person
The reasonable person
possesses those attributes
that a jury decides
represent the community
norms or what the community
standard should be.
The reasonable
person cannot be
expected to be
infallible,
though.
The reasonable person
is no real person nor any
member of the jury.
It may be
reversible error to
instruct the jury
to put themselves
in D's position to
determine
reasonableness.
The reasonable person is expected to
recognize the dangerousness of certain common items (fire,
loaded guns, etc.).
Reasonable person should be aware of what
is evident, open, and apparent.
The reasonable person has the general
experience of the community (therefore, if D is
new to the community, he must rise to its
standard).
Flexibility in the Reasonable Person Standard
Emergency Doctrine
Nearly all states permit the jury
to consider in its determination of D's
reasonableness evidence that D was
acting under emergency conditions.
The standard becomes a
reasonable person in a similar
emergency situation.
Cordas v. Peerless
Transp. Co.: A taxi driver
that jumped out of his car when
a gun-wielding thief got in was
held not to be negligent even
though the taxi ran onto the
sidewalk and injured
pedestrians.
The emergency doctrine in
unavailable where D's tortious conduct
contributed to the creation of the
emergency.
D may be negligent for failure to
anticipate an emergency (e.g., a
business operator should anticipate a
fire, a pool operator should anticipate
a drowning, etc.)
Physical Conditions
D's own physical qualities may be
taken into account by the jury in the
breach determination.
Jury should consider
conduct expected of a
reasonable person with D's
height, loss of a limb,
blindness, deafness, or other
illness or disability.
However, a person
with a disability may
be expected to take
more care or avoid
certain activities
(e.g., a blind person
should not drive).
Totally involuntary actions
(e.g., from an epileptic
seizure) are not negligent acts
where D had no warning.
D's voluntary intoxication is
disregarded - he is held to a
reasonable sober person standard.
Involuntary intoxication is
typically treated as a physical
ailment.
Mental Conditions
Mental disabilities are generally
irrelevant for negligence
purposes.
MAJ: Insane, mentally deficient,
stupid, low-intelligent, excitable, or
accident-prone D is held to the
standard of a sane reasonable person
with normal intelligence.
MIN: Allow some exceptions for
unforeseen sudden attacks of mental
illness or for negligent acts committed
by mentally deficient patients against
their paid caregivers.
Breunig v. American
Family Ins. Co.: P was
allowed to recover from a
motorist, D, who had a sudden
insanity attack and tried to
follow a light from God off the
road thinking she could fly
like Batman. D had notice of
her delusional behavior before
she got behind the wheel.
Effect of Superior Abilities, Skills, or
Knowledge
Generally,
D's experience and
abilities (provided he is
not a "professional") will
not be considered in
determining his standard of
conduct - he will be held
to the standard of a
reasonable person under
same or similar
circumstances.
However, his attention,
perception, memory,
knowledge, intelligence,
and judgment will be
considered in determining
whether he has breached the
standard of conduct.
The reasonable
person standard
sets a minimum
conduct level, but
those possessing
greater ability are
expected to use it
(a reasonable
person is expected
to use all of his
faculties).
Gender Bias in the Reasonable Person
Standard
Historically, a "reasonable man"
standard was used, which was supposed
to be gender-neutral. This has been
replaced with the less explicitly
sexist "reasonable person" standard,
but some argue that the standard
continues to judge conduct by reference
to men.
Some argue for a
"reasonable woman" standard,
which has been adopted in some
Title VII sexual harassment
claims.
Child Standard of Care
Children are not held to the adult
reasonable person standard.
MAJ: Children are held to a standard of
conduct compared to other children of like age,
experience, and intelligence under like
circumstances.
Objective because it compares the
child to other children.
Subjective because it considers D's
experience and intelligence.
MIN (old C/L): Child under 7 = conclusively
presumed incapable of negligence, 7 to 14 =
rebuttably presumed to be incapable of
negligence, and over 14 = rebuttably presumed
capable of negligence (some modern courts still
hold that very young children lack capacity to
be negligent).
Exception: Adult Activities
Children are required to meet the
objective adult reasonable person
standard of conduct when engaged in
certain activities.
MAJ/Restatement: Adult
activities that require adult
qualifications.
Jxs that use adult
activity test = hunting
is not solely an adult
activity; therefore
child is held to child
standard.
Jxs that use
inherently dangerous
test = hunting is
inherently dangerous;
therefore, child is
held to adult
standard.
Golf (Neumann v.
Shlansky), although snow
skiing has been held not to be
an adult activity.
Professional Standard of Care
Because of the specialized skill and
training needed to be a doctor, lawyer,
accountant, architect, or engineer, courts
defer to the expertise of the profession to
determine the appropriate standard of
care.
Typically only professions that
require post-graduate education qualify.
Restatement includes vocations and trades
such as electricians, plumbers, and
pilots.
Custom establishes the standard of care.
Deviation from custom proves breach.
Compliance with custom insulates D from
negligence liability.
Medical Malpractice
A physician is held to the professional
standard of care when acting in a professional
capacity; he must use and possess knowledge and
skill common to members of the profession in
good standing - only requires physician to be
of minimal competence (not average or highly
skilled).
Standard of care is set by custom
(jury may not find that custom itself
is unreasonable).
Alternative Approaches to the Practice of
Medicine
D is protected from liability if
his approach is a reputable or
respectable treatment although there
are other treatment alternatives,
irrespective of the relative merits of
each alternative.
Doctors should obtain an
express assumption of risk from
their patients for new
treatments that have not become
established customs in order to
avoid potential negligence
claims.
Proof Issues in Medical Malpractice
Failure to cure or occurrence of
complications does not prove
malpractice (res ipsa loquitur is not
of use to P because development of an
inherent risk is not proof of
negligence).
Expert Witnesses
Expert testimony helps
establish the appropriate
standard of care - the relevant
medical custom - and D's breach
of duty.
Testimony regarding
what the expert would
have done himself is
irrelevant.
Expert need not practice
the same type of medicine as D
to testify, but he must have
familiarity with the custom
applicable to D's practice (or
that his field of medicine has
the same custom as D's
field).
Custom of Other Doctors in
the Relevant Medical Community
General
Practitioners
MAJ/Same or
Similar
Locality Rule:
D is held to
the standard of
doctors engaged
in a similar
practices in
similar
localities,
considering
geographical
location, size,
and character
of the
community in
general.
Specialists
MAJ:
Specialists are
held to a
nation-wide
standard.
Common Knowledge Exception and Res
Ipsa Loquitur
Some medical malpractice
does not require expert
testimony: amputating the wrong
limb, operating on the wrong
organ, leaving a foreign object
inside the patient.
P may
also use expert testimony to
show that the harm she
suffered does not usually
occur except when there has
been medical malpractice,
thereby proving her case by
res ipsa loquitur.
Informed Consent
D's liability is predicated
upon his failure to provide
information to the patient and,
therefore, failure to obtain P's
informed consent for the procedure
(not liability resulting from
failing to diagnose or prescribing
the wrong treatment).
Battery
D performs a
substantially different
procedure for that to which
P agreed or where D
significantly exceeds the
scope of P's consent (e.g.,
operating on wrong or
additional organs).
Most lack of
informed consent
cases are based in
negligence rather
than battery
(battery usually
connotes a total
lack of consent to
the treatment
rather than just a
failure to fully
inform).
Differences
between battery and
negligence: battery
does not require P
to show actual harm
as part of his
prima facie case,
there may be a
difference S.O.L.
for battery and
negligence, D will
usually be liable
for punitive
damages if battery
is proven, and D's
malpractice
insurance may not
cover battery.
Negligence
Usually occurs when an
undisclosed complication
with a procedure arises. P
essentially says that he
would have made a different
decision regarding his
course of treatment if he
would have had all the
necessary information.
The Physician Rule
(MAJ)
Custom sets the
standard of care
(just like other
medical malpractice
cases) and expert
testimony is
required to
establish the
custom.
P must
show that
it is the
custom of
doctors in
good
standing in
the
relevant
medical
community
to disclose
the risk
which D did
not
disclose.
The Patient Rule (MIN)
D must disclose
all material risks
- those that would
likely affect
patients' medical
decisions.
Jurors
determine
when the
reasonable
doctor
should
inform
regardless
of current
medical
practice.
Expert
medical
testimony
is not
required to
determine
when D
should
disclose
the
risk.
SPLIT:
Whether the
materiality
test should
be
objective
or
subjective.
In most
cases,
there is
little
difference
between
what would
be material
to P and a
reasonable
person
unless P
has
expressed
an
idiosyncratic
fear or
susceptibility.
Cobbs v.
Grant: a
particularly
unlucky P was
unable to establish
negligence by the
surgeon-D based on
evidence that
slight, but
inherent risks,
materialized on
several occasions.
P's claim was based
on failure to
disclose these
inherent risks. The
court held that an
adult in sound mind
has the right, in
exercise of control
over his body, to
determine whether
or not to submit to
lawful medical
treatment. Material
risks, such as
possible death or
serious bodily
injury, should be
disclosed while
every minor or
infrequently
occurring risk need
not be discussed.
All customarily
disclosed risks
must also be
disclosed.
Causation
Once P proves D
breached the
standard of conduct
and failed to
adequately inform P
of the risks, P
must prove that the
failure to inform
caused P harm. If P
would have accepted
the treatment even
if he knew the
risks, he has not
been harmed.
MAJ:
Subjective
standard is
used - P
himself
would not
have chosen
the
procedure
if he were
given full
information.
MIN:
Objective
standard -
the
reasonable
person
under
similar
circumstances
would not
have chosen
the
procedure
if given
the
information.
Justifications
D may be
justified in
failing to disclose
material risks
under emergencies,
where P had
specifically
requested that he
not disclose them,
or where disclosure
might have a
detrimental effect
on the physical or
psychological
well-being of the
patient (very
narrow
exception).
Extensions of the Informed
Consent Doctrine
Some courts have held
doctors liable for failure
to disclose potentially
negative consequences of
declining a procedure.
A patient may recover
for lack of informed
consent where his doctor
failed to disclose research
or economic interests in
the procedure.
Attorney Malpractice
Attorney-client relationship
establishes duty.
Custom of the profession sets
the standard of care.
Statewide or nationwide
standard should be used. If
attorney is a specialist,
nationwide standard should
be used.
Breach of the duty is shown by
the attorney's failure to meet the
standard of care.
Expert testimony (unless breach
is patently obvious) establishes
standard of care and breach.
Causation: P must show by a
preponderance of the evidence that
but for his attorney's malpractice
he would have won the underlying
action (essentially there is a
trial within a trial).
Other Professions
Police officers have been held
negligent where their training
failed to meet standards
established in similar
localities.
Clergy members can be subject
to malpractice for negligent
performance of their roles,
especially for sexual misconduct
with followers.
Breach of the Standard of Conduct
Determination of Reasonableness
The Risk Calculus
Negligence liability is only imposed
where D engages in unreasonable risk creation - D creates
risks that a reasonable person would not - that should have
been foreseen at the time of D's conduct.
Fairness and efficiency support
premising liability on fault.
The Hand formula: Liability depends on
whether the burden (B) is less than the injury
(L) multiplied by the probability (P) [If B
< P*L, then D acted unreasonably]
Probability
Measures the likelihood of
the harm-causing occurrence
taking place (how foreseeable
the harm-causing event
is).
Magnitude of the Loss
Likely harm flowing from
the injury-causing event when
it occurs (what a reasonable
person would foresee as the
likely harm - not necessarily
the actual harm that
occurred).
Burden of Avoidance
Costs associated with
avoiding the harm, alternatives
and their feasibility,
inconvenience to those
involved, and the extent to
which society values the
relevant activity.
All activities
involve some risk
taking - eliminating
all risk is not the
goal of negligence
liability.
Burdens are
expected to be borne by
D based on what a
reasonable person could
afford in light of the
likelihood and
magnitude of
foreseeable
losses.
Role of Custom
Custom = well-defined and consistent way of
performing a certain activity, often among a
particular trade or industry.
Deviation from Custom
If P can persuade the jury that
there is a well established custom -
widespread enough that D knew or should
have known about it - the jury may
consider D's deviation from custom in
its determination of breach of duty.
Deviation from custom does
not itself prove breach of
duty.
D is still held to
reasonable person
standard, but deviation
from custom is strong
evidence that D did not
act reasonably.
P needs to show that the harm he
suffered was the harm sought to be
avoided by the custom (custom plays
into a perception of probability of the
harm in the Hand formula).
D's argument that taking
precautions (assuming the burden) would
be too costly is weak when it is
customary for those in his industry to
take such precautions.
Compliance with Custom
Evidence of D's compliance with
custom is usually admissible as
evidence of D's lack of
unreasonableness.
Jury may find adherence to
custom suggestive of a high
burden of avoidance or a low
probability of harm.
D's
compliance with custom does not
establish his reasonableness,
though.
The jury may find that the
custom itself is unreasonable.
Rules of Law
The jury generally decides the
reasonableness issue.
The judge may decide as a matter of law in
a directed verdict or judgment notwithstanding
the verdict that, based on the evidence
presented, no reasonable jury could find that D
was unreasonable.
If reasonable minds could disagree,
the decision is left to the jury.
Akins v. Glens Falls City
School District: The court held
that there was no negligence as a
matter of law because the dimensions of
D's backstop were appropriate at a
baseball field.
Negligence Per Se Doctrine
In certain situations, a criminal statute,
administrative regulation, or municipal
ordinance, may be used to set the standard of
care in a negligence case.
The statute relied upon does not
mention civil liability; it is borrowed
for a civil negligence standard.
The legislative standard
replaces the reasonable person
standard.
Negligence per se is not when a
civil statute prescribes that a certain
activity is negligent by law (this may
be done so long as the law is
constitutional).
Factors Used for Determining the Propriety
of Adopting a Statute as the Standard of Care
Statute must provide the type of
specific guidance that justifies its
use by a civil court.
Type of Harm Suffered by P
The judge must decide
whether the statute was
designed to protect against the
type of harm suffered by the
plaintiff.
The legislative
history, the statute
itself, or other
indications of the type
of harm the legislature
intended to protect
with the statute is
examined.
P in Protected Class
Judge must also determine
whether P falls into the class
of persons designed to be
protected by the statute.
Licensing Statutes
Most courts refuse to use a
violation of a licensing
statute as a basis for
negligence per se because
although the licensing statute
may have been enacted to
protect the public from actors
who lack requisite skill, a
showing that D lacked requisite
skill is generally
required.
Effects of Non-Adoption and of Adoption of
Statute
Effects of Non-Adoption of a
Statute
If a judge refuses to use
the statute as the standard for
negligence, it does not
preclude P from winning a
negligence claim.
The standard
defaults to reasonable
person.
P may show D's
violation of the
statute of evidence
that he did not act
reasonably.
MIN of Jxs do not accept negligence
per se and only allow violation of a statute to be used as
evidence of unreasonableness.
Effects of Adoption of the Statute
and Statutory Violation
The statutory requirements
replace the reasonable person
standard.
All the jury must decide is
whether D violated the
statute.
P must also prove the other
elements of negligence:
cause-in-fact, proximate cause,
and damages.
Role of Excuse
Modern courts have recognized
excuses to statutory violations in
negligence cases (e.g., sudden
emergency not of the actor's making,
compliance would involve greater danger
than violation, actor neither knows nor
should know of the occasion for
diligence, actor has some incapacity
rendering the violation reasonable, or
party is unable to comply after
reasonable efforts).
In practical effect,
finding an excuse exculpates D
because it shows the
reasonableness of his
conduct.
Negligence Per Se and Children
MAJ: Child standard of care
generally applies instead of a
statutory per se standard.
Violation of the statute
may be evidence of
unreasonableness if a child of
like age, intelligence, and
experience would have obeyed
the statute.
If the child-D is involved
in an adult activity, he would
be held to the adult standard
and negligence per se would
become central to the
case.
Compliance with Statute (Reasonableness Per
Se)
The rule is well-settled that
compliance with a statute is merely
relevant evidence of reasonableness;
compliance does not establish due care.
The statute establishes the
minimum acceptable conduct -
not reasonable conduct.
Proof of Breach: Res Ipsa Loquitur
Where res ipsa loquitur applies, a jury may
infer that D acted unreasonably without any
other proof that D failed to use due care.
Res ipsa loquitur is most important
in cases where P is unable to make
specific allegations about what D did
wrong.
From the happening of the accident,
P seeks to establish that the
harm-causing event was probably due to
negligence and D was probably the
culpable party.
Traditional three elements must be
proven by P by a preponderance of the
evidence:
It is an accident that
normally does not happen
without negligence;
D had exclusive control of
the instrumentality that caused
the harm; and
P was not at fault.
Restatement Elements:
The event is of a kind
which ordinarily does not occur
in the absence of
negligence;
Other responsible causes,
including conduct of P and
third persons, are sufficiently
eliminated by the evidence;
and
The indicated negligence is
within the scope of D's duty to
P.
Byrne v. Boadle: P
was seriously injured when a barrel of flour fell on
him. No witnesses testified as to anything done by D
that could have led to the barrel falling. The trial
court dismissed the action for lack of proof that D
was the responsible party and or that he committed
an unreasonable act. The Exchequer Court, in
reversing the trial judge, noted that the barrel
could not roll out of a warehouse without some
negligence and to require P to call witnesses from
the warehouse to prove negligence would be
preposterous.
Probably Negligence
P must persuade the jury that more likely
than not the harm-causing event does not occur
in the absence of negligence.
D may proffer evidence to show
other possible causes or that it
exercised due care.
Certain harms are generally clear
enough to fit within res ipsa loquitur:
two trains collide on the same track,
bottles explode, rodents are cooked
into food, medical malpractice where an
instrument is left inside a person, or
airline crashes.
Probably the D
Instrument Under D's Exclusive Control
Some courts will not allow res ipsa
loquitur if anyone other than D may
have come in contact with the
harm-causing instrumentality.
Generally, though, it is enough for
P to get to a jury on res ipsa loquitur
if he can provide evidence showing that
others were probably not the
responsible party and that D probably
was, even though D did not have
completely exclusive control over the
harm-causing instrumentality.
Other Jxs follow Restatement and
have made it clear that P need only
establish a likely nexus between P and
the harm-causing instrumentality.
Restatement states that
exclusive control is not
essential to a res ipsa
loquitur case.
Traditional/Restatement Rules: P must not
have contributed to his own harm.
MAJ: Because of comparative
negligence and the control requirement,
this element has lost much of its
importance.
Outer Reaches of Res Ipsa Loquitur-Ybarra v.
Spangard
Although P need not prove the specific
improper conduct under res ipsa loquitur, he
generally must allege the responsible party.
MIN: Ybarra v. Spangard:
P's shoulder was injured while
unconscious undergoing an appendectomy.
P sued all those who might have been
responsible for his injury, admitting
that he knew neither how he was harmed
nor by whom. The court allowed the suit
to go forward against all medical
professionals who may have come in
contact with P, unless they could prove
their innocence. No one on the team of
medical professionals came forward to
claim responsibility or disclose who
was responsible (perhaps because of a
culture where medical professionals do
not testify against one another). The
court assigned joint liability for the
damages.
Pleading in the Alternative
MAJ: Allow P to plead specific acts of
negligence and res ipsa loquitur as an
alternative theory.
MIN: Res ipsa loquitur may not be
pled if specific allegations of negligent acts are
made.
Also, a court may deny res ipsa
loquitur if P could have discovered the
actual cause of an accident through
investigation but chose not to.
Cause-In-Fact
"But For" Analysis
MAJ/Traditional Test for Causation:
But for D's culpable conduct or
activity, P would not have been
injured.
D's negligence is not a
"but for" cause if the outcome
would have been the same even
if D had not been
negligent.
Generally, P has the burden
of establishing "but for"
causation.
By a preponderance
of the evidence (more
likely than not D was a
"but for" cause of P's
injury).
There may be multiple "but for"
causes if any of several actors could
have avoided the injury by acting
reasonably.
Substantial Factor Test
Used when redundant multiple causes
(each sufficient alone to cause the
harm) would preclude liability under
the "but for" analysis.
If D materially contributed
to P's injury, he may be
considered a
cause-in-fact.
Test eliminates liability
for insignificant contributions
to causation.
Restatement and some Jxs utilize a
substantial factor test to convey to
the jury the requirement of both actual
and legal causation in all cases.
Restatement still requires
that "but for" causation should
be established, except in
redundant cause cases.
"Substantial Factor" is vague; some
courts have used it beyond redundant
cause cases (e.g., medical malpractice)
where policy concerns justify relaxing
the "but for" requirement.
Incremental Loss
P may recover damages for extra
increments of pain, suffering, or harm
caused by D's negligent conduct even if
harm, death, or destruction were
inevitable because of an external
factor.
Proof Problems in Cause-in-Fact
Shifting the Burden of Proving
Causation
Courts may shift the burden
of proof by requiring Ds to
prove they were not the actual
cause when each breached a duty
of care to P and one was
necessarily responsible for the
actual cause (Ds are punished
for their behavioral rather
than causal conduct).
Usually limited to
where there is a small
number of Ds that have
all acted tortiously
toward an innocent P at
nearly the same
time.
Courts generally
require that all
wrongdoers be joined as
Ds.
Restatement holds that
where the conduct of two or
more actors is substantially
and simultaneously tortious,
but the cause of the harm is
caused by only one of them, the
burden is on each actor to
prove that he has not caused
the harm.
Summers v. Tice:
Two hunters negligently fired
while P stood in the line of
fire. A shotgun pellet hit P's
eye, but it was impossible to
establish which
hunter had fired the pellet. Under
a standard "but for" analysis, P would be unable to prove
more likely than not that either of the Ds was the cause
of the injury. Because each D had breached the duty of
care to P, the court shifted the burden of proof to each
D to prove that he was not the cause-in-fact. Since
neither D could exculpate himself, they were treated as
joint tortfeasors.
Market Share Liability (MIN)
This theory extends and modifies the burden-shifting
doctrine and pertains to suppliers of defective products
where P cannot prove which brand of product he used.
Unless D can prove it was not the cause-in-fact
of P's injury, each D pays to each P a portion of
P's damages equal to D's proportionate share of the
market for the product.
For example, if D1 had a 20% market
share and D2 had a 15% market share of a
dangerous product, D1 would pay 20% of each
P's damages and D2 would pay 15% of each
P's damages.
Any percentage of market share that was
not represented by the group of Ds would go
uncompensated (i.e., liability is several
only).
Courts are SPLIT on what defines a
market (national, local, etc.) thereby
pulling in Ds that could not have possibly
harmed a specific D. This theory is based
on imposing liability because of D's
tortious conduct rather than because of P's
harm caused.
Sindell v. Abbott: Daughters of women who used
the drug DES during pregnancy developed various
reproductive diseases, including ovarian cancer, years
later. The diseases could be attributed to the drug,
but in many instances, P could not establish which
brand of DES her mother used. The court held that once
P established D's culpability - that D had manufactured
and marketed a dangerous drug - D had the burden of
proving that it was not the cause-in-fact of P's harm.
If D could not disprove its culpability, it was
responsible for its share of the DES market at the time
of the mother's exposure to the product. Ps were
required to join enough drug companies as Ds so that a
substantial share of the market was represented (this
is a questionable requirement because each D is only
severally liable for its percentage of the damages).
The court rejected the "enterprise liability
doctrine" of Hall v. DuPont because all
DES manufacturers (over 200) were not represented
as Ds and the DES industry was not governed by a
trade association that promulgated standards.
Therefore, the court found that Ds were not "acting
in concert" (akin to conspiracy), which could have
made each liable for the tortious acts of the
others.
Market share liability has not been used widely outside
of DES cases; when there are too many other possible causes
of P's harm or there is a long time delay between exposure
and harm, proving a causal connection becomes more
difficult.
Medical Uncertainty Cases
MAJ/Traditional View: P must prove that D's conduct was
a "but for" cause of D's injury.
Under
this approach, courts do
not allow recovery for
malpractice - no matter
how blatant - unless P
would have had more than
a 50% chance of survival
or recovery in the
absence of D's
negligence.
MIN (Substantial Factor Test):
A reduction in the chance of
survival may be sufficient evidence
to allow a jury to determine that
D's conduct was a substantial
factor in causing P's harm even
though it otherwise more likely
than not that P's harm would occur.
Some courts may give
the fact-finder discretion
to reduce an award in a
case like this though it is
not required.
Herskovits v. Group
Health: The court
allowed P to recover in a
wrongful death against a
physician whose malpractice
significantly reduced P's
chance of survival, despite
evidence indicating that P
would have most likely died
even if D had not been
negligent. Evidence showed
that D's conduct reduced
the patient's chance of
survival from 39% to 25%.
The court relaxed causation
requirements by not
requiring proof that
malpractice was the "but
for" cause of the patient's
premature death.
MIN / Modern Trend: Loss of
Opportunity to Survive
"But for" causation is
not relaxed, but instead
loss of a substantial
chance is perceived as a
cognizable damage for which
V may be compensated.
The loss of the
opportunity would
be valued as a
percentage of the
total damage
suffered.
Usually only
used when P would
recover nothing at
all (e.g., if P's
chance of survival
fell from 55% to
45% because of D's
conduct, D would
satisfy the "but
for" test and P
would be entitled
to full recovery
rather than just
10% recovery under
the lost
opportunity
test).
Statistical Evidence of Causation
Courts are reluctant to
conclude that D's action was the
cause of P's harm based on a
statistical probability absent some
other proof of causation.
If the harm has few
causes other than D's
action, the case is
stronger that D should be
held liable.
Statistical
evidence is
particularly strong
in medical cases
because of the
abundance of
research.
Courts are reluctant to hold D
liable for a percentage of P's harm
based on the statistical likelihood
that D's conduct caused P's harm,
especially in toxic tort
cases.
Toxic Torts
P must prove that he was
exposed to a toxic substance, that
D was responsible for P's exposure,
and that the toxic substance caused
P's harm.
Generally P relies on
expert testimony, which is
admissible if it consists
of scientific knowledge and
assists the trier of fact
in understanding or
determining the relevant
issue.
Suggestiveness
of a cause/effect
relationship is not
sufficient to meet
evidentiary
standards.
Ayers v. Twp. of
Jackson: Ps were not able to
recover for mere exposure to toxic
substances in the absence of
present injury (the court did not
recognize a cause of action for
"enhanced risk of illness"), but Ps
were able to recover the costs of
medical monitoring.
Duty
Duty establishes that there is a legally
recognized relationship between D and P that
obligates D to act or refrain from acting in a
certain manner toward P.
Duty to the Foreseeable Plaintiff
MAJ: Absent some other basis for
limiting the scope of duty, D owes a
duty to foreseeable Vs for foreseeable
harm.
Palsgraf v. Long Island
R.R.: P was standing on D's
railroad platform waiting for a train
when she was injured by an explosion
that caused a nearby scale to fall on
her. The explosion was caused when a
railroad guard dislodged a passenger's
package while attempting to help the
passenger board a moving train. The
package, only 15 inches long and
covered by newspaper, contained
fireworks which caused the explosion
that knocked the scale onto P. The
court found that D owed P no legal duty
because P was not a foreseeable V of
the railroad's apparent negligent
handling of the package. P was nowhere
near the package and there was no
reason for the guards to believe that
the package contained fireworks or
other explosives; therefore, P was
outside any "zone of risk"
Duty versus Proximate Cause
Both limit D's liability
for negligence.
Duty focuses on to whom D
owes an obligation to conform
to a prescribed standard of
reasonable conduct.
Proximate cause limits the
type or kind of harm D can be
held liable for.
Duty is generally
determined by the court as a
matter of law, while proximate
cause is a question of
fact.
Duty to Rescuers: Generally
rescuers who voluntarily expose
themselves to risk are considered
foreseeable Ps, even if they were not
initially within the zone of
danger.
MIN (Palsgraf dissent):
Everyone owes the world at large a duty
to refrain from acts that may
unreasonably threaten safety of others.
Limitations on D's liability are
imposed by proximate cause.
Proximate Cause
Generally, courts require that in addition
to showing that D's conduct breached a duty of
care to P and was the cause-in-fact of P's
injuries, P must prove that D was the
proximate, or legal, cause of P's injuries to
establish D's responsibility.
Courts preclude liability if D's
conduct and P's injury are to
attenuated, remote, or freakish to
justify imposing responsibility on
D.
Generally, the point of proximate
cause is a policy question rather than
a mechanical application of a rule.
Jury usually decides, subject to the
court's ability to rule as a matter of
law that no reasonable jury could
decide differently.
Courts consider the
foreseeability of the harm,
intervening actors, acts of
God, general societal and
economic policy goals, the
physical proximity of the harm
to D's activity, morally who
most fairly should bear the
loss.
By holding D
responsible for all
possible harms, he
would be over-deterred
from taking reasonable
risks that would better
society by efficiently
enhancing
productivity.
Proximate cause is generally not an
issue in intentional torts because D's intent must be
proven, including application of the transferred intent
doctrine of the five historical trespass torts. Courts
generally are willing to find proximate cause when D acted
intentionally.
Proximate Cause Tests
Foreseeability Test
The leading test for proximate
cause focuses on whether D should have
reasonably foreseen, as a risk of his
conduct, the general consequences or
type of harm suffered by P.
Result or type of harm must
be reasonably foreseeable - the
extent and precise manner in
which the harm occurs need not
be foreseeable.
There must not be a
superceding intervening force:
human, animal, mechanical, or
natural force that occurs after
D's conduct which causes P's
injury and is sufficient to
relieve D of liability.
Wagon Mound and Reasonably
Foreseeable Consequences
MAJ: Most courts require a
finding of reasonable
foreseeability of consequent
damages.
Wagon Mound I: P's
dock was burned as a result of
oil negligently spilled by D's
ship. This oil joined with the
hot molten metal that was
released into the water by P's
employees while they were
soldering the dock. The court
held that because D could not
reasonably have been expected
to know that the spilled oil
was capable of being set on
fire in the water, the court
ruled for D since the
consequence was not reasonably
foreseeable.
Wagon Mound II:
The owner of another ship
destroyed in the fire sued the
same D for negligent discharge
of oil. This P argued that the
resulting fire was a
foreseeable risk from the oil
spill, and the court accepted
the claim. The court emphasized
that, while the risk of fire
was relatively remote, the
foreseeability required need
not be great when the risk, if
manifested, would be
significant and there were no
justification to incur the
risk. The court concluded that
if a reasonable man would have
realized and foreseen or
prevented the risk, then it
must follow that D is
liable.
Type of Harm versus Manner and
Extent
While the consequence or
type of harm must be reasonably
foreseeable, the precise manner
in which it occurs and the
extent of the harm need not be
foreseeable.
D would be
responsible for keeping
an open flame near a
gas outlet, where one
could reasonably
foresee an explosion,
even though one could
not reasonably foresee
that a rat would ignite
its fur and cause the
explosion.
All foreseeable Ps
(to whom D owes a duty)
may recover for the
type of foreseeable
harm caused, even
though the extent of
the harm was not
foreseeable (e.g., a
fire got out of
control).
Superceding Intervening Forces
The foreseeability test is
limited by the additional
requirement that there be no
superseding intervening
force.
Superseding
intervening forces are new
forces which join with D's
negligence to injure
P.
In order to be superseding
(and thus preclude D's
liability), they generally must
be highly improbable and
extraordinarily
unexpected.
Independent versus Dependent
Intervening Forces
Dependent forces are
stimulated by D's conduct while
independent forces are
not.
Dependent forces are less
likely to be superseding
intervening forces unless they
are extremely abnormal.
Independent forces are more
likely to be superseding
intervening forces unless they
are foreseeable.
Intentional or criminal acts by
third parties are more likely to be
superseding intervening forces unless
they are extremely foreseeable (e.g.,
the negligence takes place in a high
crime area exposing V to criminal
activity that should have been
expected).
Hamilton v.
Accu-Tek: The court held
that criminal use of handguns
was not a superseding
intervening cause and allowed
Ps to sue gun manufacturers for
harms caused by the guns.
Unlikely, but nevertheless
foreseeable, possible contingencies are
often not found to be superseding
intervening forces.
Negligent acts of V's
medical providers or ambulance
drivers are not generally
superseding intervening forces
unless such acts are extremely
abnormal.
Acts of nature may be superseding
unless it should have been anticipated
(even if it is extraordinarily strong).
Restatement would not find
a natural occurrence to be
superseding unless the
operation of the force is
extraordinary and the harm
resulting from it is a
different kind of harm the
likelihood of which made the
actor's conduct negligent.
"Eggshell-Plaintiff" Personal Injury Rule
Only the general consequences and
type of harm need to be foreseeable -
not the extent of that harm.
The P generally takes the D as he
finds him and is liable for all of D's
personal injuries (regardless of the
type suffered) if any personal injury
were foreseeable.
SPLIT: Whether psychological
sensitivity is also covered.
Steinhauser v.
Hertz: Court held that a
14-year-old girl with a
predisposition to schizophrenia
could recover when a slight
automobile accident causing no
bodily injuries was the
precipitating factor in causing
her schizophrenia.
Damages for Eggshell-Plaintiffs
In measuring damages for
personal injury to an
eggshell-plaintiff, life
expectancy and prospective
health of P are taken into
account.
Direct Causation Test
No longer accepted by modern courts.
P need not establish foreseeability
of the type of harm but must instead prove the absence of
any intervening forces.
In re Poemis:
Servant of D who leased a yacht
dropped a plank creating a
spark that caused petrol flames
to ignite and the ship to
explode. The explosion was
deemed unforeseeable, but D's
servant's actions were the
direct cause of the explosion
because no intervening force
existed.
"Practical Politics" and "Rough Sense
of Justice" Test
MIN: Some courts will agree
with Andrew's dissent in
Palsgraf and will depart
from the reasonable foreseeability
test.
These courts rely on
public policy
considerations, fairness,
and justice to determine
proximate cause rather than
logic or a mechanical
test.
Andrew's test considers
foreseeability not from D's
perspective before the
accident but from the
perspective of what would
appear to be the natural
results of a negligent act
looking back to the
accident.
Kinsman I: P was able
to recover for lost property when
D's boat became unmoored, collided
with another boat, and set it
adrift. The two boats collided with
a drawbridge, clogged the river
with ice and caused a flood that
damaged P's property.
Kinsman II: The court
did not extend D's liability to
economic damages suffered by ships
that had to navigate around the
clogged drawbridge.
Restatement Test (MIN)
An actor's negligent conduct is
the legal cause if:
His conduct is a
substantial factor in
bringing about the harm;
and
There is no rule of law
relieving the actor from
liability because of the
manner in which his
negligence has resulted in
harm.
"Substantial factor"
encompasses both proximate cause
and cause-in-fact.
Restatement, like Andrew's
dissent, considers proximate cause
in light of "prevision" of what
subsequently occurred.
Limitations on Duty
Failure to Act (Nonfeasance)
An actor typically is liable for
affirmative acts that create an
unreasonable risk of harm but not for
nonfeasance.
Misfeasance by commission
or omission generally gives
rise to a duty.
Misfeasance often
consists of affirmative
acts of misconduct -
doing something that a
reasonable person would
not do (e.g., firing a
gun in a crowded
area).
Misfeasance can
also be shown by a
negligent omission -
failing to do something
that a reasonable
person would do while
engaged in other
activity (e.g., paying
attention while
driving).
An actor does not generally
have a duty to act to prevent
or alleviate another's harm
except in certain
circumstances:
When a special
relationship (including
a contractual
relationship)
exists;
When D, or an
instrument under his
control, has created
the peril; or
When D voluntarily
undertakes to acts and
puts P in a worse
position.
Some states and
foreign countries have enacted criminal
laws that punish those who do not aid a
person in peril if doing so would not
put the actor in danger.
Duty to Rescue
Generally, a person does not have a duty to
aid another, even when the person could render
aid with little risk or effort, except in these
situations:
Creating Peril
D has a duty to act when
the need for rescue arises
because of D's negligence.
This exception has been
extended to situations where
D's fault-free conduct leads to
a need for rescue or where P's
negligence leads to the need to
rescue if D is in any way
connected to the situation.
Modern courts (but
not traditional C/L)
may find D liable for
not correcting or
warning of danger
created by his conduct
even if his initial
conduct was
non-negligent.
Special Relationships
Courts have imposed a duty
to rescue when justified by a
special relationship.
Historically, these
relationships were
narrowly construed,
applying only where P
clearly entrusted his
safety to D (e.g.,
common
carrier-passenger,
innkeeper-guest, ship
captain-seaman,
parent-child, land
possessor-invitee).
These relationships
have been expanded to
likely include:
spouse-spouse,
employer-employee,
school-student, and
business-customer.
Undertaking to Act in Reliance
While people generally have
no obligation to intervene,
once they do, a duty arises.
Traditional View:
Once a person
undertakes to rescue,
he must no leave V in a
worse position.
Modern View:
Rescuer is obligated to
act reasonably once he
has begun to act.
A duty will be
found where D's
unfinished rescue
efforts have dissuaded
others from helping, or
where D has prevented
others from
assisting.
Virtually all Jxs protect
rescuers from potential
liability through Good
Samaritan statutes, which
insulate rescuers from
liability for ordinary
negligence.
Tort law treats all rescue
efforts as per se foreseeable,
so if the rescuer is injured
rescuing V when V negligently
placed himself in a position
requiring rescue, V is
liable.
Once D undertakes an act
(such as giving a warning) that
P relies upon for his safety, D
may be obligated to continue
such act.
K Obligation
A rescue obligation can
arise from a contract (e.g.,
babysitter, lifeguard).
SPLIT: Whether a gratuitous promise,
without more, gives rise to a duty.
A promise creating reliance may give
rise to a tort duty.
Even where there is a contractual
obligation to repair, courts are divided
about whether breach of this contractual
provision leading to personal injury gives
rise to a tort duty.
Duty to Control and Protect
Generally, a person is not legally
obligated to control the conduct of another or
to take steps to protect another from harm
except when a special relationship exists
(between D and P or D and a third party).
Duty to Control
While generally a person had no
obligation to control another person's
conduct to prevent harm to a third
person, exceptions arise if there is a
special relationship.
The relationships giving
rise to duty to control require
some relationship between D and
the third party, combined with
knowledge (actual or
constructive) of the need for
control.
If D takes
possession of dangerous
persons (e.g.,
criminals or mentally
ill) and negligently
permits them to
escape.
Although a child's
parents are not
vicariously liable for
their child's torts
(unless statutorily
responsible), they are
responsible for
supervising their child
and may be liable when
the child attacks
another and the parents
knew or should have
known the child's
tendency toward
violence.
Wells
v.
Hickman: A
mother sued the
mother and
grandparents of
a child who
killed her son
for wrongful
death claiming
that Ds were
aware or should
have been aware
of the child's
propensity
toward
violence. The
court ruled
that duty is
limited to
those
circumstances
where a
reasonably
foreseeable
victim is
injured by a
reasonably
foreseeable
harm. Here, the
mother could
not reasonably
foresee the
child's
homicidal
tendencies
based on his
history of
cruelty to
animals and
suicide
threats. Also,
the
grandparents
did not have a
duty to protect
the decedent
because they
were unaware
that he was in
their
backyard.
For there to be at duty to control,
D must be in a position to exercise
control over the third party for the
protection of P.
Tarasoff v. Regents of Univ. of
Calif.: Ps asserted that D, a
therapist, had a duty to warn them
or their daughter of death threats
against the daughter made by the
psychotherapist's patient. The
court held that a psychotherapist
has an obligation to take
reasonable steps to protect a third
party where the therapist knows, or
based on professional standards,
should know that the therapist's
patient presents a serious risk of
physical harm to the third party.
Some Jxs apply
Tarasoff warnings to
foreseeable Vs; others limit it
to readily identifiable
Vs.
Some Jxs do
not apply it to threats of property
damage.
Suppliers of Liquor
At C/L, neither commercial
establishments nor social hosts that
supplied liquor were liable to those
injured by those to whom they served
alcohol.
Courts and legislatures have
imposed duties on commercial
establishments that serve alcohol to
prevent intoxicated patrons from
driving home drunk.
"Dram shop:" Usually a duty
applies only when the patron is
visibly intoxicated or is a
minor.
MIN: Some courts have extended the
duty to social hosts who directly serve
guests whom the host knows is beyond
the point of intoxication and plans to
drive home.
Legislatures typically
limit or eliminate
court-imposed duties on social
hosts.
Negligent Entrustment
D's liability is premised on
misfeasance: supplying a potentially
dangerous instrumentality (e.g., a gun
or car) to a person D knows or should
know is not fit to handle it.
Courts have typically
required a close connection
between D's negligent act and
the harm and have limited
negligent entrustment cases to
situations where D has the
right to control the
instrumentality causing P's
harm.
Some courts have
extended this doctrine
to find one liable who
supplies a third party
with money to purchase
a potentially dangerous
chattel.
Duty to Protect
Generally, there is no duty to protect
another from harm, except:
Where D and P have a relationship
in which P has ceded the ability for
self-protection, in which case D has a
duty to make reasonable efforts to
protect P (e.g., jailor-prisoner,
innkeeper-guest, parent-child,
school-student, hospital-patient,
common carrier-passenger,
employer-employee); or
Where D undertakes to protect P and
P relies on that protection.
Landlord Duty to Protect Tenants
A landlord may have a duty to
protect his tenants in common areas of
an apartment building where criminal
acts are common and the landlord
previously provided security.
Business Duty to Protect Customers
The business-patron relationship is
rarely enough to establish duty in the
context of third-party assaults; courts
typically require a high degree of
foreseeability to establish a duty.
Some courts require proof
of prior, similar
incidents.
Other courts rely on the
totality of the circumstances
standard of
foreseeability.
Police Duty to Protect and Public Duty
Doctrine
Governmental immunity may limit duty,
and a governmental actor performing improperly is not
usually liable to individuals harmed because any duty owed
is limited to the public at large rather than to any
specific individual.
Generally, a governmental
official may be liable for
negligently executing policy but
not for negligently making policy
decisions.
Police Duty
MAJ: Police departments are
typically not liable for failing to
protect individual citizens.
Most courts limit finding a
duty to situations where police
undertook to act and created
reliance, enlisted the aid of P, or
increased the risk of harm to
P.
Some Ps have asserted that
constitutional equal protection
rights and civil rights statutes
impose a duty (however, the Supreme
Court has held that due process
does not impose a duty to
protect).
Supervisory responsibility over
other police officers can lead to
civil and criminal liability if the
supervising officers unreasonably
fail to intervene.
Public Duty Doctrine in Other Contexts
Many courts have held fire
departments immune from liability
for negligently fighting or failing
to respond to a specific fire.
Courts are reluctant to
overrule legislative or executive
decisions about public policy
decisions regarding allocation of
resources (e.g., in mass transit
and public schools)
Negligent Infliction of Emotional Distress (NIED)
Direct Actions
P sues for emotional harm
occasioned by D's tortious conduct
directed toward P.
MIN: Physical Impact Rule
Very few, if any states,
retain the historic rule that V
must suffer physical contact by
D's negligence to recover for
mental distress.
Courts allow mental
distress recovery as a
parasitic injury so long as V
suffered any impact - the
impact need not itself cause
the physical injury.
Even slight impact
like electric shock or
x-rays have been
sufficient.
MAJ: Risk of Physical Impact Rule -
The Zone of Danger
P may recover for mental
distress if P was at risk of
physical impact.
MAJ: P must suffer
physical symptoms of
mental distress.
Heart
attacks,
miscarriages,
panic attacks
accompanied by
abdominal pain,
and stomach
troubles have
sufficed.
Crying,
sleeplessness,
increased
migraine
headaches, and
upset feelings
have failed to
suffice.
MIN: Special Cases
Ps have been able to
recover for mental distress in
the following cases (without
proving physical manifestations
of such distress):
Negligently
handling a close
relative's corpse.
Erroneous
notification of a close
relative's death.
Generally,
courts do not allow for
recovery for mental distress
resulting from destruction of
chattel.
However, some courts allow
recovery if the property as
particular sentimental value
and D should have foreseen such
distress.
MIN: Broadest Direct Recovery
A few Jxs permit recovery for NIED
for all foreseeable Vs who suffer
severe emotional distress (both direct
and bystanders).
Molien: P was able
to recover when hospital
erroneously informed P's
wife that she had syphilis
and that he should be
tested. The court held that
D should be liable for
reasonably foreseeable
mental distress regardless
of physical manifestations
- but such mental distress
must be severe (based on
objective reasonable man
standard).
Some courts have
restricted this
liability to only cases
where P and D have a
special
relationship.
No Jx allows recovery to all
foreseeable Vs.
Hawaii allowed recovery to
P who watched his house get
flooded but did not allow
recovery to a grandfather in
California that had a heart
attack upon hearing of daughter
and granddaughter's death in an
accident caused by D.
Recovery for Fear of Future Physical Harm
SPLIT: Whether emotional distress
damages should be awarded for fear of
future physical harm.
Toxic Torts and Defective Products
MAJ: Courts are wary of
permitting recovery due to the
difficulty of measuring
damages, potentially crushing
liability, and serious proof
problems such as possibility of
multiple causes.
Potter v.
Firestone: Absent
physical injury,
recovery of damages for
fear of cancer in a
negligence action is
limited to cases where
P proves that it is
probable that P will
develop cancer in the
future due to toxic
exposure.
HIV / Communicable Diseases
MAJ: Courts require actual
exposure to HIV for P to
recover for his emotional
distress, though some apply a
less exacting standard (would a
reasonable person experience
mental distress).
Bystander Actions
P sues for emotional harm suffered by P as
a result of physical harm caused by D to
someone other than P.
MAJ: A bystander action is a
derivative action of the direct V's
claim against D; therefore, D must have
been negligent in his conduct toward
the direct V for P to recover
(contributory and comparative
negligence of V and P are
considered).
Slight MAJ/Restatement: Zone of Danger
P can recover for emotional harm
suffered from witnessing negligently
inflicted harm causing death or serious
bodily injury to another (generally a
close relative) when he is in a
position to fear for his own
safety.
MAJ: P may recover regardless of
whether mental distress is due to fear over one's own safety
or harm to another.
MAJ/Restatement: P must suffer
physical manifestations of mental
distress.
Substantial MIN: Dillon v.
Legg
P can recover if he is a
bystander to an accident and not
physically at risk himself if:
P is Physically Near
the Scene of the Accident
P has been able
to recover upon
witnessing the
aftermath of an
accident in a
hospital, not at
the scene.
P has Contemporaneous
Sensory Perception of the
Accident
Some courts
have allowed P to
recover when he
hears but does not
see the accident or
comes immediately
after the accident
and witnesses the
aftermath.
P has been
denied recovery
when witnessing an
accident but being
unaware that V is
dead (thinking that
V is sleeping), or
upon hearing an
accident but not
knowing at that
time that it was a
death-inflicting
injury.
P is Closely Related to
V
Some courts
insist on legal
marriage, parental,
child, or sibling
relationship.
MAJ: P must suffer physical
manifestations of mental
distress.
Wrongful Death
Wrongful death damages may be claimed when
V is killed by an intentional tort, strict
liability, or by negligence.
Wrongful death claims are in
addition to NIED, survival actions, and
loss of consortium claims.
MAJ: Wrongful death is a derivative
claim to V's tort against D. Therefore,
contributory/comparative negligence of
V or P in bringing about V's death may
eliminate/reduce an award for wrongful
death.
Early C/L did not allow recovery by anyone
when D tortiously killed V, but now, all Jxs
have enacted wrongful death statutes.
Who May Recover
An action may be brought
only by those permitted to do
so by the Jx's wrongful death
statute.
A surviving spouse,
parents, and children are
typically permitted to bring an
action.
Statute may exclude
long-time partners,
close friends,
non-adopted
children.
SPLIT: Whether an
adopted child may bring
a claim for the
wrongful death of the
child's biological
parent.
SPLIT: Whether
parents can bring an
action for the wrongful
death of an unborn
(viable or unviable)
fetus.
MIN: Compensation
allowed based on
decreased value of V's
estate due to his
premature death.
Recoverable Damages
MAJ: Only
pecuniary losses that P would have
received from V.
P must prove loss - this
considers: life expectancy of V,
life expectancy of P, V's income
potential, education, career path,
generosity, P's need, the value of
services performed by V less
amounts P would have provided to
V.
MIN: Pecuniary loss that P would have
received from V + consortium-type losses
(e.g., companionship, affection).
Small MIN: Pecuniary loss + consortium
loss + P's grief, sorrow, and upset.
Survival Actions
Survival statutes allow heirs of a decedent
to inherit his on-going or potential tort
actions and pursue those claims in court
(neither death of P nor D generally ends most
tort actions).
MAJ: Property torts survive.
Some Jxs allow personal
injury torts to survive.
MAJ: Economic
consequences (medial
bills + lost wages) +
pain and suffering
survive.
MIN: Only allow
economic consequences
of personal injury (not
pain and suffering) - P
will usually try to
affix punitive damages
to the property claim,
though.
CA: Only
property torts
survive and no
punitive
damages may be
awarded in
wrongful death
cases unless
felonious
homicide is
proven.
Therefore, O.
J. Simpson was
sued for
destruction of
Simpson/Goldman's
property during
the time
between attack
and death,
which could
survive and
attract
punitive
damages of
$25mm.
Some Jxs exclude all
intangible torts, such as
mental distress or pain and
suffering.
A tort action is devisable by will, so an
heir may bring or continue the survival action
(generally the administrator, executor, or
personal representative of the decedent brings
the claim).
The claim must be viable to survive (if V
could not bring it himself because of S.O.L. or
some other reason, his heirs cannot bring
it).
Survival action for V's personal injury
that results in death may be brought in
addition to NIED, wrongful death, and loss of
consortium actions.
Personal injury survival actions
are not available if V dies
instantaneously from the injury.
Loss of Consortium and Society
Loss of consortium damages may be claimed
when V is killed by an intentional tort, strict
liability, or by negligence.
Loss of consortium may be claimed
for the period of time between injury
and death of V, wrongful death may be
claimed for the death, and NIED and
survival actions may also be
brought.
MAJ: Loss of consortium is a
derivative action, so D's conduct must
be tortious and
contributory/comparative negligence of
V or P eliminates or reduces the
award.
Loss of consortium applies when D
inflicts serious (mental or physical) injury (rather than
death) to V, a close relative of P.
Early C/L: Allowed husband to recover for
lost services of his wife (like loss of an
asset): household services, sexual services,
companionship, comfort, etc.
MAJ: Either spouse may recover under loss
of consortium for loss companionship,
affection, and society when the other spouse in
injured by D.
P must prove loss - that D's
tortious conduct harmed an otherwise
fulfilling and strong
relationship.
MAJ: Loss of consortium only
applies to spouses (not
children-parent, parent-children, or
between non-married partners) on the
basis of loss of sexual services.
MIN: Allow children/parents
to claim loss of consortium
since children/parents may
recover for wrongful death if V
dies instead of just being
injured.
Non-married partners (gay
or straight) are barred from
recovery.
MAJ: Allow recovery for physical or mental
injury that directly disrupts the relationship
between V and P.
Wrongful Life, Wrongful Birth, and Wrongful
Conception
These torts do not address whether a child,
after birth, may bring a tort action for harm
done to it while it was a fetus. This is
generally a valid claim.
If the fetus dies before birth, an
issue arises whether it is considered a
person under the state's wrongful death
statute.
In the following torts, if D was
non-negligent, the child would not be born at
all.
Wrongful Conception
Parents sue D for negligently
causing the birth of an unwanted, but
healthy, child.
MAJ: Allow recovery of
medical costs and pain and
suffering associated with the
failed procedure, any
corrective procedure,
pregnancy, and the birth plus
mother's lost wages and
father's loss of consortium.
MIN: Also add full
costs of raising the
child to majority.
Some courts
will only allow
recovery of
child rearing
costs if
parents can
prove that they
intended not to
have children
because of
financial
concerns.
Some courts and
Restatement require
damage awards to be
mitigated by emotional
gains of having a
healthy child.
Most courts will not allow evidence
that P failed to mitigate damages by
keeping the child to full term rather
than aborting or putting the child up
for adoption.
Wrongful Birth
Parents sue D because his negligent
genetic counseling or misdiagnosis
about the fetus' condition caused the
birth of an unwanted child with a
health disability.
MAJ: Allow recovery for the
extraordinary expenses
associated with the birth
defect.
Generally,
P does not claim that
the child was unwanted,
so child-rearing
expenses are not
recoverable (if
conception was unwanted,
too, P can claim damages
under wrongful
conception).
Some courts allow
recovery of emotional
distress occasioned by
having a child with a
disability.
Some courts require a
reduced damage award
because of emotional gain
from having a child
(depending on its
condition).
P must prove that but for D's
negligence, she would have terminated
the pregnancy (if negligence occurred
after conception) or elected not to
conceive.
Wrongful Life
The child sues and claims D's
negligence caused his own birth.
Not a claim that D caused
the child harm, but just caused
him to be born.
MAJ: Child cannot sue D for
negligently causing his own birth. It
would be impossible to put him back to
his pre-tort condition (nonexistence).
P cannot generally sue for
being resuscitated and being
brought back to life,
either.
MIN: Allows child to sue, but
limits damages to extra expenses
because child was born with defects if
these expenses are not recovered by the
parents in their wrongful birth action
(parent's damages is limited by their
life expectancy, child's action limited
by child's life expectancy).
No Jx allows child to
recover for emotional distress
in being born with a disability
or a healthy child to sue for
being born.
Landowners and Occupiers
MAJ: Courts limit the duty of care required
by possessors of land for the benefit of
visitors to the land based on the visitor's
status:
Trespassers
Trespassers are visitors to
the land who come without
permission or privilege.
Permission need not
be explicit but can be
implied by the
occupier's actions or
simply community
customs.
Traditional View: The only
duty owed trespassers was to
avoid intentional or willful
injury to them (except under an
applicable privilege such as
self-defense). Consequently, it
was also unlawful to set up
intentional traps to injure
trespassers.
Modern/Restatement View
Unknown
Trespassers: No duty
(except to refrain from
willful or wanton
infliction of
injury).
Frequent or Known
Trespassers
Activities:
D must act as a
reasonable
person when
engaged in
activities
(such as using
machinery) when
it is known
trespassers are
present or in
locations
trespassers
should normally
be anticipated
to be present
because of
constant
trespassing in
specific
portions (such
as a trail) of
D's land.
Conditions
Man-made: D must warn or make safe
known, concealed artificial conditions which involve risk of
death or serious bodily injury - does not apply to
artificial hazards that the trespasser would be expected to
discover or which are inherent in the use of the land or
non-serious risks. This does not impose a duty to inspect
for hazards (such as exposed electrical wires).
D is required to exercise
reasonable care if (all five):
The place where the
condition exists is one
upon which the possessor
knows or has reason to know
that children are likely to
trespass;
The condition is one of
which the possessor knows
or has reason to know and
which he realizes or should
realize will involve an
unreasonable risk of death
or serious bodily harm to
such children;
The children because of
their youth do not discover
the condition or realize
the risk involved in
intermeddling with it or in
coming within the area made
dangerous by it;
The utility of the
possessor of maintaining
the condition and the
burden of eliminating the
danger are slight as
compared with the risk to
the children involved;
and
The possessor fails to
exercise reasonable care to
eliminate the danger or
otherwise to protect the
children.
No longer does the condition
injuring the child have to lure the
child onto the property.
Does not apply to natural
conditions.
Does not apply if child, by his
age, should appreciate the harm
(e.g., harms caused by moving
machinery, heights, water, or
fire).
D must have clear evidence that
a child might come into contact
with the harm-causing artificial
condition (not enough that a
reasonable person would have
known).
Does not apply if avoiding the
harm would pose a great burden on
D, although the greater the risk,
the more precautions D must
take.
Licensees
Licensees are those that enter the land
with the express or implied consent of the land
possessor, as in the case of social guests,
those visiting for their own personal business
(e.g., salesperson before D has agreed to
transact business), those approaching the front
door (unless there is a fence or sign
prohibiting such), or police or
firefighters.
Activities: Land possessor must act like a
reasonable person when engaged in activities
(such as mowing the lawn) when the presence of
a licensee is known or should be known.
Conditions
Man-made
or Natural: D must
warn of all known,
hidden (not
apparent)
conditions posing
an unreasonable
risk of any harm
(not just serious
or deadly
harm).
Inspections to
discover dangerous
conditions and
repairs are not
required.
Invitees
Invitees come onto the land
with the express or implied
consent of the possessor and
are either business invitees
(on the land for the potential
financial benefit of the
possessor) or public invitees
(on land held open to the
public at large). Examples of
invitees are customers,
business guests, and museum
patrons - some Jxs consider
building inspectors, mail
carriers, and meter readers as
invitees.
There is no limit on the
duty of the possessor to act
reasonably to protect invitees.
D has duty to
inspect the land to
discover hazards and
make reasonable repairs
when a mere warning is
inadequate.
If a
possessor knows
or should know
of a danger on
the property,
he must either
remedy it or
warn the
invitee of its
existence where
the risk is not
known or
obvious.
D must only act reasonably,
though, he need not insure an
invitee's safety.
MIN: Unitary Standard
Status approach is replaced with a
generalized reasonable person standard
(this would obviate the need for a
child trespasser standard as
well).
Some courts have merged the invitee
and licensee category but retain a
limited duty for trespassers.
Some courts have statutorily barred
trespassers with criminal intent to
recover from land possessors except for
willfully or wantonly inflicted
injuries.
Land Possessor's Liability to Plaintiffs Off the
Land
C/L Rule
Natural Conditions: Land possessor
owes no duty to those outside the land
for natural conditions on the land,
even where the land possessor realizes
that the condition creates a
significant risk of serious harm.
Man-made Conditions/Activities: For
harms created by artificial conditions
or the possessor's activities, he owes
a duty.
Trees in Urban Areas: An exception
to C/L rule exists; a land possessor is
required to exercise care to see that
trees on property in an urban area do
not pose unreasonable risks to those
outside the land.
Some Jxs have expanded this
to trees in rural, suburban, as
well as urban areas.
Some Jxs have abandoned the C/L rule and
impose a duty of reasonable care for all
activities and conditions.
Negligent Misrepresentation
Duty to Client
If client hires CPA, CPA is under
the duty of the professional standard
of conduct and may be liable to his
client for negligence in breaching that
duty, even if the client's damages are
solely economic.
There is no duty in the absence of a
business, professional, or employment relationship.
Duty to Third Parties
MIN: Quasi-Privity
D owes duty only to
those third parties to
whom D provides
information at the
request of its client.
P must be
specifically
identified to
D.
MAJ: Restatement/Intended
Recipients
D owes duty only to
a limited group of
persons for whose
guidance D intended to
supply the information.
P need not
be specifically
identified to
D.
Duty is
limited to the
transactions D
intends, or
knows the
recipient
intends, to
influence, or
to a
substantially
similar
transaction.
Limited to
information provided in
a business,
professional, or
employment
relationship.
MIN: No Limit/Foreseeable
Recipients
Duty is owed to all
foreseeable recipients.
NJ has used
this standard
but requires
that P obtain
the information
from D's client
for a proper
business
purpose.
Attorney Liability to Third Parties
MAJ: Absent fraud or bad
faith, an attorney is not
liable for negligently
inflicted economic harm on
non-client third parties.
Some courts will
find an exception when
the attorney's client
intended to benefit a
third party, such as a
beneficiary of a will
(in those cases, the
party that was in
privity of K with the
attorney is dead and
cannot bring the
malpractice
action).
Negligently Inflicted Economic Loss
Clear MAJ: No legal duty under
negligence to refrain from causing pure
economic loss.
Economic loss is generally
only awarded when it flows from
a negligently inflicted
personal injury or property
damage.
Slight MIN: Exception when P is
"Particularly Foreseeable"
People Express v.
Consolidated: Allowed
recovery of economic damages to
an airline forced to shut down
because of D's negligent fire.
The court ruled that the
airline was part of an
identifiable class of Ps, which
were particularly foreseeable
Ps, and the injury was the type
of expected economic
disruption. However, passengers
were not allowed to recover for
their lost business deals,
etc.
J'Aire v. Gregory:
P was the owner of an airport
restaurant that had to closed
while D renovated the airport's
heating and air conditioning.
The court allowed P's claim for
negligent interference with
prospective economic advantage
to go forward against D for
lost profits incurred due to
D's unreasonable delays in
renovating the HVAC system
despite a privity of K
relationship.
Defenses to Negligence
Contributory and Comparative Negligence
Contributory
Negligence
Definition: Conduct on the part of P which
falls below the standard of conduct to which he
should conform for his own protection, and
which is a legally contributing cause
cooperating with the negligence of D in
bringing about P's harm.
Complete bar to P's recovery.
The standard is objective:
Usually reasonable adult
standard (unless child or
professional standard should be
used).
Modern Trend: Some courts
make allowances for mental
deficiencies or insanity in
assessing contributory
negligence of P (even though
they do not consider mental
deficiencies for D's
negligence).
P's negligence must be
cause-in-fact and proximate cause to
his own injuries.
Failure to take precautions
to avoid injury is not a cause
of the injury (e.g., failing to
wear a seatbelt does not cause
a car collision).
However, P is
required to mitigate
his injuries (unless it
would be unreasonable
to do so because such
conflicts with his
religious beliefs).
Therefore, some courts
have characterized
failure to wear
seatbelts or motorcycle
helmets as failure to
mitigate in advance of
an injury and have held
D not responsible for
P's exacerbated
injuries.
In many Jxs,
negligent failure to
mitigate is subsumed by
comparative
negligence.
Contributory negligence is not a
defense to intentional torts or
willful, wanton, or reckless conduct
related to negligent torts.
In comparative negligence
Jxs, P's negligence can reduce
an award for D's willful,
wanton, or reckless
conduct.
Last Clear Chance Doctrine
P's contributory negligence is not
a defense to D's negligent conduct if
P's negligent conduct occurs
chronologically before D's negligent
conduct.
Jxs are generally rejecting
the last clear chance doctrine
when adopting comparative
negligence in place of
contributory negligence.
Plaintiffs Unable to Exercise
Self-Protection
Restatement precludes contributory
negligence for D who violates a statute
enacted to protect a class of persons
from their inability to exercise
self-protective care (e.g., child labor
laws, sale of liquor to intoxicated
persons).
Comparative Negligence
Definition: Conduct of P falls below the
standard of conduct that he should conform to
for his own protection and that is a legally
contributing cause cooperating with the D's
negligence in bringing about P's harm.
Only partial bar to P's recovery:
P's recovery is reduced by the
percentage of his responsibility in
causing the harm.
All but 4 states have replaced
contributory negligence with some form
of comparative negligence.
Pure Comparative Negligence (12 states)
P can recover some percentage from
D regardless of the extent of his own
negligence.
P is 60% responsible for an accident.
P can recover 40% of his damages.
Modified Comparative Negligence (MAJ)
P is allowed a partial recovery
just as in pure comparative
negligence, until P reaches a
certain level of culpability for
his own accident. Once P reaches
this level of culpability, P is
completely barred from any
recovery.
Greater than 50% Approach
(>20 states)
P is barred from
recovery only when he is
more negligent than D (more
than 50% responsible)
P and D are
equally liable for
the accident. P can
recover 50% of his
damages.
50% or Greater Approach (15
states)
P is barred from
recovery when he is equal
to or more negligent than D
(greater than or equal to
50% at fault).
P and D are
equally liable for
the accident. P can
recover
nothing.
P is 49% liable
for the accident. P
can recover 51% of
his damages.
P, X, and D are
equally liable for
the accident. X is
not included in the
suit. P can recover
damages from D
because he is only
33% at fault.
"Slight" Comparative Negligence
(1 state)
P is barred from
recovery if negligent
unless his negligence is
slight.
Determining the Percentage of Fault
Attributable to P
The trier of fact selects a
percentage based on its appraisal
of the relative fault in order to
determine an equitable
apportionment of loss.
Assumption of Risk
Definition: Assumption of risk has
traditionally been a complete defense to
negligence if P has (all three):
Knowledge of a Particular Risk;
Assumption of risk uses a
subjective standard: P must
have actual and conscious
knowledge of the particular
risk (unlike contributory or
comparative negligence, which
use an objective standard of
what P should have known).
P must know of the
particular risk, along with its
magnitude and implications.
Jury may examine
P's actions in a common
sense context to
determine whether he
knew, even if he denies
knowing of the
risk.
Murphy v.
Steeplechase Amusement
Co.: P got on an
amusement park ride
after seeing that it
was a moving conveyer
belt which threw riders
down as part of the
ride. P's negligence
award against the
amusement park was
reversed where the
court held that he was
aware of the risk
before he got on the
ride.
Voluntariness; and
P must voluntarily expose
himself or his property to the
risk.
Courts vary in
their interpretation of
voluntariness.
Rush v. Commercial
Realty: The court held as
a matter of law that despite
the fact that P knew the floor
of the outhouse she was using
was in bad order, she had no
choice when impelled by the
calls of nature and was
required to leave the premises.
She was held to involuntarily
assume the known risk that
the
floor would collapse, which it
did, thereby barring the defense of assumption of
risk.
Assumption of the Risk.
The defense only applies to the particular risk that P
knowingly and voluntarily assumes (similar to consent as a
defense to intentional torts).
Woodall v. Wayne Steffner Productions: A stunt
flyer, the "Human Kite," flew while strapped to a makeshift
kite attached to a moving automobile, was injured when an
inexperienced driver exceeded a safe speed and the kite
plunged to the ground as a result. The court held that
although P did assume the risk of falling, he did not
assume the risk of being driven by an incompetent
driver.
Classifications of Assumption of Risk
Express versus Implied Assumption of Risk
Express Assumption of Risk: when, by K or
otherwise, P explicitly agrees to accept a risk.
Complete defense to the specific risks
P has agreed to assume.
Can be invalidated when it would be
contrary to public policy:
Made under duress or
coercion,
Where P assumes risk of very
reckless conduct,
Where P is at a bargaining
disadvantage to D, e.g.,
employer-employee status, public
utility-customer.
Usually not invalidated where P
expressly assumes a risk for participation
in a recreational activity (e.g.,
skydiving).
Implied Assumption of Risk: when P's voluntary
exposure to risk is derived merely from his
behavior not from explicit assent.
Approach 1: Assumption of Risk Remains
a Complete Defense
Small number of Jxs hold that
while comparative negligence should
properly supplant contributory
negligence, assumption of risk
should remain a complete defense.
Recognizes that
comparative negligence does
not require a subjective
awareness of the risk that
assumption of risk
does.
Approach 2: Questioning the
Reasonableness of the Assumed Risk
Unreasonable assumption of risk
is absorbed into comparative
negligence as a partial rather than
complete defense.
Reasonable implied assumption
of risk does not overlap with
contributory negligence but,
counter-intuitively, is held to
remain a complete defense.
An unreasonable P who assumes
the risk is only barred from
partial recovery while a reasonable
P is completely barred from
recovery.
MAJ Trend/Approach 3: Absorption of
Implied Assumption of Risk into Comparative
Negligence
Allows both reasonable and
unreasonable implied assumption of
risk to be absorbed into
comparative negligence (called
"comparative fault").
The fact-finder may
properly allocate some
comparative responsibility
to P for assuming the
risk.
Firefighters' Rule
Firefighters (and sometimes police officers) are precluded
from suing the person who negligently started the fire in which
the firefighter was injured (does not preclude suing
arsonists).
This is an old torts outline from 1999. The basic torts outline issues have not changed but there are state specific issues. You will be lost if you depend on someone else's torts outline. You must do your own and then compare to be sure you have all the issues. Then test yourself on sample torts essay questions at:
ASK A LAWYER YOUR TORTS QUESTION. A DEPOSIT IS REQUIRED.
NOTICE!!!
Under no circumstance will Law School books be held liable for any loss or damage caused by a visitor's reliance on information obtained through this web site. It is the responsibility of each individual visitor to evaluate the accuracy, completeness or usefulness of any information, opinion, advice or other content. This site is intended to provide you only with general information. However, there is no guarantee that this information is comprehensive or accurate. Law school Books does NOT provide legal, financial, or tax advice. Please consult a professional in these areas. Only an attorney licensed in your state can provide you with legal advice. Links and Ads to third party sites are here for the convenience of site visitors only. The content of any third party site which visit via a link from this site is solely the responsibility of the provider of that web site.