Download I. INTENTIONAL TORTS - Intent - purposefully causing elements of

I. INTENTIONAL TORTS
- Intent - purposefully causing elements of tort to occur (subjective - what D was thinking) OR
- substantially certain elements of tort will occur (objective - reas prudent person)
- Transferred intent - (1) To a different intentional tort, OR (2) to a different victim of tort
- (1) Intend to falsely imprison and cause battery (2) intent to hit A and hit B
- Must be tort to intended person in order to transfer to other
- Mistake - Even if D mistakes person/property/privilege while committing tort, still liable
- Some special privileges used as defense allow for reas mistake including self-defense
- Insanity/Infancy - insanity/infancy is not a defense for intentional tort
- UNLESS shown that there could not have been the necessary intent due to handicap
- P’s Negligence - this is never a defense for an intentional tort
- Extended Liability - even if bizarre consequences occur from what you intended, still liable
A. Battery
- Definition: intentionally causing harmful or offensive contact - NOT accidental contact
- Not necessary to intend harm or injury, just to intend harmful or offensive contact
- Not necessary to touch P’s body - anything from body is contact - snatching plate/necklace
- Direct OR indirect contact is enough to constitute battery - throwing ball at someone (indirect)
- Motive is not important - whether intending to harm or not - simply must intend contact
- If D says “leave me alone” - there may be enough to show any touching as offensive
B. Assault
- Definition: intentionally cause the apprehension of an immediate harmful or offensive contact
- Must have apparent ability in the present to carry out the battery - RPP must think D had ability
- Not necessary for D to be able to touch P, just that P reas believes D could touch them
- This is not a physical disturbance but a mental disturbance
- Apprehension of contact must be of an imminent nature
- There does not necessarily have to be fear, just an apprehension of imminent contact
- Apprehension must be of RPP EXCEPT if D knows of P’s sensitive fears
- Apprehension must exist concurrently with action deemed assault - no assault if asleep
C. False Imprisonment
- Definition: (1) Intentionally (2) restrains/confines (3) against one’s will (4) boundary (5) appreciable time
- Accidental confinement is NOT false imprisonment - locking store while patron in bathroom is not FI
- Boundary may exist in conception only - not having clothes to leave a lake imposes a boundary of lake
- Boundary may be a large area even as big as a city - but this is rare
- Exclusion is not the same as confinement - refusal to admit is NOT false imprisonment
- False arrest is a form of FI if not privileged or if no law broken - you must submit to arrest to be FI
- Victim must only be aware of confinement at time of confinement - if later forgetting, doesn’t matter
- If victim not aware but harmed during imprisonment, may still be FI - baby harmed while held
- If a person remains in their car to avoid towing, still FI because protecting their property
- A threat for future confinement is not enough, must be imminent - unless P fears disobeying
- Foolish attempt to escape may be found unreasonable and D would not be liable for damage
D. Intentional Infliction of Emotional Distress
- Definition: (1) Intentional/reckless act (2) extreme and outrageous conduct (3) causes severe emot dist
- Double threshold tort - conduct and severity of distress:
- If conduct was awful but no severity of distress - no action
- If conduct was minor but with severe distress - no action
- Simple comments like “You stink to me” are not considered extreme and outrageous
- Transferred intent does NOT work here with IIED
- IIED can be shown if the distress caused is a phobia
- Distress must be severe to RPP EXCEPT if knowing of touchiness and exploiting weakness
- Conduct must be beyond the bounds tolerated by reasonable society
- Common carrier, contract, or non-competitive public utility implies courtesy
- May be held liable for intentional gross insults causes patron mental distress - no extreme needed
- 3rd party victim recovery usually needs: (1) close relative of victim (2) present at scene (3) D aware of presence
- Liable for both emotional distress and resulting bodily harm - though physical injury not required for IIED
E. Trespass to Land
- Definition: intentional unauthorized entry onto the land of another
- Negligent entry such as being pushed onto or falling onto land is NOT an intentional trespass to land
- However, even if not intentionally entering land, if volition to enter exists, still trespass
- Trespass extends immediately above ground - shooting a bullet above land
- Airplane or military missile flying high above ground does NOT count as a trespass to land
- Liability exists for nominal damages even if no substantial damage exists
- Transitory/environmental matter (pollution) - tangible matter that physically remains on land causing subst damage
- In all other situations there is no need to show that substantial damage exists
- Nuisance: (1) Unreasonable interference with use and enjoyment (2) substantial damages (3) phys invasion not req’d
- Overstaying welcome - even if not trespass when entering, if continuing to remain against owner’s wishes - trespass
F. Trespass to Chattels
- Definition: intentional interference with the right of possession of personal property
- Chattel - any property that is not land or not affixed to land
- Must be real damages not just nominal damages for trespass to chattels
- Four ways to be held liable:
1. Dispossessing the chattel
2. Chattel is impaired as to its quality, condition, or value
3. Possessor deprived of use of chattel for substantial time
4. Bodily harm is caused to the possessor
- Property remains P’s property plus P receives damages for diminution of value
G. Conversion
- Definition: Treating chattel of another as your own - so seriously interfering that may be req’d to pay full value
- Only very serious harm to the property or other serious interference with right to control means conversion
- Purchasing stolen property even if in good faith is still conversion on the buyer’s part
- Damage recovered in conversion case is the full value of the chattel - effectively sells chattel to the D
- Conversion may be shown with only nominal damages, but not so in trespass to chattels
- Often conversion or trespass to chattels may be claimed - P must decided what compensation they require
- Items protected as property without being destroyed include:
- Literary works or scientific research
- When secrecy is necessary to ensure value
- Information sold as a commodity (commodified info)
II. PRIVILEGES
A. Consent
- If consent is given, what would have been tortious is now privileged
- Consent may be given by:
1. Expression - by words or gestures
2. Manifestation and circumstances giving reason to believe consent is granted
3. Participation in organized activity with rules, customs, and understanding (football rules)
4. Previous conduct or relationship (history of practical jokes)
5. From custom - allowing people to fish or turn around in driveway (must post warning to disallow)
6. Arising from an emergency - (person unconscious and can’t consent/during surgery new problem arises)
7. Representative or surrogate giving consent for you
- Consent may be invalidated by:
1. Exceeding the consent given (operating on non-consented left ear instead of consented right ear)
2. Consent being deemed ineffective because:
a. Information needed to decided on consent not fully disclosed (major risks of surgery)
b. If in violation of law - sometimes still effective consent
c. If statute exists to protect a particular class from poor decisions (statutory rape)
3. If induced by fraud
4. If consent is given while under duress or physical threat
B. Self Defense
- Definition: Using reasonable force that one reasonably believes necessary to protect oneself from immediate harm
- Privilege when:
1. One reasonably believes force is necessary even if mistaken
2. Transferred to a third party (defending against A and injure B)
3. Against sick people in your home
- No privilege when:
1. Threat has ended
2. Merely provoked by words/insults
- Retreat:
1. No need for retreat if you have an option of limited force that won’t cause serious injury
2. Must try to retreat if only self defense is serious force
a. No need to retreat if you will place yourself in harm’s way
3. No need to retreat if inside your own home
- If threat ends and you continue to “defend” now you are liable for tort action - threat must be immediate
- Must have reasonable apprehension of serious bodily harm or loss of life in order to use deadly force as defense
- Not allowed to use excessive force in retaliation (defending against rock thrower with machine gun)
- Size and strength are considerations - smaller person may exert greater force against larger person (reasonability)
C. Defense of Others
- Definition: one may use reasonable force to defend third parties from immediate physical harm
- One may have privilege even if mistakenly helping the wrong person (helping person who started fight)
- Relationship between P and 3rd person might influence - defending family more important than stranger
- Only able to defend if person you are defending currently has the privilege to defend himself
D. Defense of Property
- Definition: one may use reasonable force to protect real or personal property
- May not use deadly force in order to protect property - unreasonable
- Even slight force is excessive if a simple verbal warning would suffice
- Verbal warning not necessary first if dangerous to do so
- Signs warning of danger do not give privilege to use force
- If present in your home, now possibly considered self-defense and greater force may be allowed
- A reasonable mistake of person causing harm is not a privilege or excuse
- Barbed wire fences may be perceived simply as deterrents and not excessive force unless installed negligently
E. Recovery of Property
- Reasonable force to recover property if wrongdoer used force or fraud and pursuit is fresh
- Any lapse in time or break in pursuit removes privilege of true owner
- Reasonable mistakes don’t matter - if you get wrong person or they have a right, you are liable
- No unnecessary violence is allowed at all - may not recover property if on other person (snatching necklace)
- Shopkeepers may use reasonable force to detain someone for a reasonable period of time if suspecting theft
- Innocent customers cannot recover against shopkeeper if suspicion was reasonable
F. Necessity (Duress)
- Definition: one may interfere with property of another in order to protect against a greater injury
- Action must minimize overall risk - thus private necessity must save greater interest
- Public necessity - protecting the community by injuring private personal property:
1. Valid if good faith to save other property - much damage needed (can’t save one by destroying another)
2. Necessity must be apparent to reasonable person
2. Complete privilege - no need to pay damages even if it was unnecessary as long as reasonable at time
- Private necessity - protecting private personal property by injuring another’s property deemed less valuable:
1. Landowner may not refuse entry to someone protecting private interest or he becomes liable
2. Incomplete priv - actual damages must be paid by injuring party- not liable for nominal trespass damages
3. If people on or in property saving, may become public necessity and liability denied
G. Discipline
- Parents may be immune from liability
- Teachers are liable for using excessive force
H. Justification
- Defense may claim they were justified in their actions as a defense - not very important topic
III. NEGLIGENCE
- Four parts of negligence needed for liability:
1. Duty to use reasonable care
2. Breach of the duty - Risk analysis: negative formula, calculus of risk, framework of thinking
3. Causation - reasonably causal connection between conduct and resulting injury
4. Damages - actual loss resulting to interests of another
A. Duty
- Definition: actor owes a duty of reas care under circum to those 4CBL exposed to risk due to actor’s conduct
- Reasonable care standard unless under a limited duty
- No duty to pick up items that are not intrinsically dangerous (golf club, no - shotgun, yes)
- Sometimes statutes will impose a definition of the reasonable care necessary in a certain situation
B. Breach
- Must ask: If an actor had a duty, did he breach the duty?
1. Risk Analysis - Calculus of Risk
- Learned Hand method - B < PL - Burden is less than probability of occurrence and gravity of harm
- If the burden is greater, there is no negligence
- Burden must be measured as to the class of people, not individually to the D
- Doctors have duty to inform about material risks of a procedure, UNLESS:
1. Therapeutic privilege - emotionally upset or apprehensive patient
2. Emergency non-disclosure - if in an emergency or patient is unconscious
3. Patient or general public is already aware of the risks
- Material risk is one that might make a reasonable person refuse treatment
- Minority - might make patient refuse - only if patient would have refused if knowing
2. Standard of Care
a. Reasonable prudent person (RPP)
- General intelligence or capacity of actor not taken into account
- Sometimes one of superior skills must use full capacity (more physical than mental)
- Responsible for knowledge common to the community - common to RPP in your circum
- If belonging to a class, must acquire the typical knowledge of that class (driver of car)
- Customs may play an important part in analysis (not binding) - brings notice to RPP
- If not complying with custom, maybe liable
- If unaware of custom when RPP would know, maybe liable
- If custom shown to be unreasonable, maybe a good defense
- Emergency might lower standard - still must be reasonable to RPP in same circumstances
- If negligence of D is cause of emergency - not considered an emergency
- Damages only given if time to consider and D chooses to damage
- RPP must be given the physical disability of the actor
- Child held to standard of similar child of like age and experience
- If participating in an inherently dangerous activity treated as adult (driving snowmobile)
- Permanent insanity of actor is not given to RPP - sudden onset w/no warning may be defense
b. Professional
- Professional standard used when holding oneself out as a professional - reasonable professional
- Objective standard - don’t consider training or abilities - not based on custom
- Experts may testify as to what reasonable prof would do - not what he would do
- Reasonable attorney must have adequate knowledge, good judgment, and reasonable care
- Not liable if issue not yet decided by highest court
- No experts as judge is considered an expert on what reasonable attorney should be
- Doctors must use a standard in the medical community
- Strict locality standard - based on locale - allows for substandard medical community
- Locality standard - based on locale or other similar locale - Majority
- Ex. Wash DC is nation’s capital, should be leading in medicine, not isolated
- National standard - based on a nationwide standard
- Doctors often need expert testimony to explain what the standard is - not what he would do
- No expert needed if obvious even to lay person (leaving glove in person during surgery)
3. Aggravated Negligence
- Definition: Negligence by reckless, willful, or wanton conduct
- May allow for punitive damages here, not in other negligence cases
- Might negate the effect of certain defenses (ex. Contributory negligence)
- Reckless behavior can be subjective (D knew and did anyway) or objective (D should have known)
- Courts find no “degree of care” based on circum - some circum require greater care when greater risk
- Might require those in pro sports to show reckless conduct rather than merely negligent conduct
C. Causation - Factual and Proximate - discussed later
D. Damages
- P must prove damages to have a case for negligence
- May include damages incurred while trying to escape/prevent harm caused by D’s negligence
E. Rules of Law
- Some situations have a standard of conduct created by law - must stop/look/listen at RR to exercise reas care
- Must be a matter of law to go to jury - matter of fact is not enough to prove negligence
F. Violation of Statute
- Typically a statute setting a standard of care creates a shortcut for establishing negligence
- If a statute provides a civil remedy - apply the statute without going to trial
- Regulations work like statutes and may set standard of care for a situation - violation = negligence
- For a statute to be applicable, it must:
1. Set a specific standard of care (duty)
- Must be a clear standard - vagueness might render unusable
2. Protect a specific identifiable class
3. P must be a member of the protected class (breach)
- Prescription drug for human eaten by cat and poisons it - cat not part of protected class
4. Harm that occurred must be that which the statute set out to protect (causation)
- Don’t drive on Sundays - protects disturbing church, might not imply protecting people
- Don’t exceed 25MPH - describes how you should drive - implies protection of people
- If statute does not apply, it drops out of the case and case continues as normal case for negligence
- Meaning of a statute is always a question of law - thus not for jury to decide
- If a statute is silent as to the remedy, what happens when violated:
1. Majority - negligence per se - no excuses allowed
2. Presumption of negligence - excuse may rebut presumption
- If excuse - case goes to jury to decide who wins
- No excuses: child labor, pure food, federal safety appliance, “safe place” statutes, guns to minors
3. Prima facie evidence of negligence - enough to get to jury
4. Statute not used if standard of conduct is unclear - common law reasonability still applies
- Statute does not apply if compliance creates more danger than not (ex. Must walk on sidewalk, but sidewalk is icy)
- If statute is a revenue measure, it is not for benefit of a particular class - does not establish standard of conduct
- License statutes say whether you can/cannot do something - doesn’t say how you should do it - no SOC
- Absence of a license may not mean that doctor did not exhibit necessary care
- Might use statute to support a case as evidence rather than to prove negligence
- Statute saying must fence pigs to prevent crossbreeding might show necessary method for fencing
G. Proof of Negligence
1. Circumstantial Evidence
- Evidence is enough to permit an inference of negligence - may go to jury
- If not enough evidence to permit an inference - directed verdict for D
- Condition of evidence may be enough to permit inference
- Fresh banana peel may have only been there 1 minute - dirty peel may have been there a while
- May be enough to show constructive notice was given
- Dirty banana in open may give notice, whereas dirty banana in dirty area hidden away not notice
- Must apply B < PL test as certain situations have greater risk and thus burden to protect is greater
- If operating methods create dangerous conditions with easily 4CBL risks - notice makes inference OK
- If exhibiting reasonable care and accident still may happen - may be enough - no need for over deterrence
2. Res Ipsa Loquitur
- Res Ipsa Loquitur occurs when:
1. Injurious event - if no event, no negligence
2. Must be an unusual event to occur without negligence
3. If there was negligence, more likely than not the D’s negligence - D in control
4. No contributory negligence
- Owner is in control of premises and thus even if not present, still held liable for failure to supervise
- D not liable for UN4CBL injury - duty only exists to protect against 4CBL injuries
- Burden and standard of care must be reasonable (no need for hotel to protect every window)
- P receives unusual injuries while unconscious during medical treatment
- All those under whose care he was must come forward and explain their conduct
- Can only apply RIL if an inference of negligence could permissively be drawn by jury
- Possible effects:
1. Majority - permits an inference for jury to decide
2. Creates a presumption of negligence unless excused
3. Shifts burden of proof to the D
IV. CAUSATION IN FACT
- Definition: D’s negligence must be related in a significant way in producing injury to impose liability
- No liability if negligent aspect of D’s conduct isn’t what caused injury - would have occurred anyway
A. Sine Quo Non - “without which not”
- But for test - injury would not have occurred but for D’s negligent conduct
- Negligence must have more probably than not caused the injury
- If D’s negligence greatly increased the risk that occurred, may be liable
- Other jurisdictions require expert testimony as juror’s cannot speculate
- Loss of chance - reducing chance of survival may be enough to take to jury
- D only must show that P’s claim is not the most probable cause - not that his claim is
- In attorney malpractice, P must show D was negligent and that P would have won case but for D’s negligence
B. Concurrent Cause
- Definition: Two or more acts of negligence combine in time to cause a single injury
- Either would have caused it without the other or neither would have caused it without the other
- Concurrent does not necessarily mean acts occur at same time, but injury at one time as a combo of both
- One bullet hits arm, later one hits leg - not concurrent; one crash causes broken arm and leg - concurrent
- Joint and several liability - both parties are liable jointly or separately for the entire injury
- No double or triple costs, however, if all money from D1, no money from D2 - D1 must sue D2
- D is liable even if another factor combined and would have caused harm alone if D’s was a subst factor
- Damages may be lower if subsequent issue would have caused same harm (1st fire burns, 2nd would have)
- Even though not a “but for” cause, negligence may be a cause in fact and thus liability
C. Problems in Determining Who Caused Harm
- This occurs when:
1. Multiple parties are negligent
2. Either party could have caused the injury, but only one did
3. P cannot prove who caused the harm
- If this occurs, the burden switched to D - basically strict liability because D cannot prove the unprovable
- Different from RIL in medical case because not everyone was necessarily negligent as here
- Example is two shooters firing negligently into woods and one strikes P
- If only one fired gun and P doesn’t know which - one D is lying and jury can decide credibility
- If both negligently sell gun to minor and he shoots P with one - only one who sold gun used negligent
- If we don’t know which gun minor used, burden shifts to D to show it wasn’t their gun
- Sometimes might not know which manufacturer created the product that caused the harm (pharmaceuticals)
- Statistical causation - causation is equal to a statistic derived based on market share
- D not liable if he can prove he did not manufacture the product - reallocate D’s market share to others
- Jurisprudential causation - ???
V. PROXIMATE CAUSE (LEGAL CAUSE)
- Definition: D is responsible for consequences that flow from unreasonable risks that were 4CBL at time of act
************** SKIP FOR NOW ****************
VI. DUTY OF CARE
- Definition: Standard is to exercise reasonable care, UNLESS an actor is under a limited duty:
A. Privity of Contract
- A  Promise  B  Relationship  C - does A have an obligation to C?
- Nonfeasance - A doesn’t act on the promise made to B
- Unless tort law obligates A to do that which he didn’t, cannot impose contract between A and B to C
- Ex. A promises to repair coach of B, C drives B coach and it breaks - A has no duty to C
- A has only breached duty of contract not duty of law, thus no duty to those outside of contract
- Misfeasance - duty may be imposed to 3rd person when there is a misperformance of contract
- Misfeasance not enough when P claims duty owed by D and D has adverse relationship with P
- P cannot sue one for being a bad lawyer while defending original D’s interests
- Exception: Duty exists to C when A puts product into stream of commerce via B knowing:
1. Product likely to be dangerous if made negligently
2. Product will not be inspected again reaching C
- Duty is now in the law and privity of contract is no longer needed in this case
B. Failure To Act
- Generally there is no duty to act to help strangers, EXCEPT:
1. D in control of instrumentality causing injury under obligation not to let injury aggravate
- Ex. Boy catches finger in fine escalator - storeowner now has duty to shut off escalator
2. Undertaking an obligation to help, must exercise as RPP - may not cease if worsening conditions
- Worsening may be due to deterring others to help or P’s reliance on D’s help to P’s detriment
3. Particularized 4CBLT - part. knowledge that part. P (or class of P) would suffer part. Damage
- Parent not liable for child unless child has specific propensity to do certain harm
- Wife may be liable for not knowing husband may be committing sex abuse
- Psych may have to warn person if patient threatens their life - must be specific identified person
4. Promise plus something more - a promise alone may not be enough to establish a duty
- Promise to non-stranger to do something and don’t do it - relationship gives reason to believe
- Must look like a tort - physical harm and not just economic harm
C. Pure Economic Loss
- Generally no duty to protect against a pure economic loss
- Duty may exist if there has been an injury to a proprietary interest (uninjured in crash but car is damaged - duty)
- Husband or wife may claim for loss of spouse’s salary or loss of consortium
- Claim may be allowed if there was a misrepresentation as in fraud, deceit, or negligent misrepresentation (auditing)
D. Emotional Distress - see emotional distress continuum
1. Traditional Grounds
a. Physical injury causes emotional distress
b. Physical contact causes emotional distress (car crash and no phys injury - triggers emot distress)
c. Emotional distress causes a physical harm (freaking out causes heart attack)
2. Traditional Victim - no injury, contact, or physical harm
a. Objective symptoms - if reaction of normal person, not hypersensitive person unless known
b. Zone of danger - narrowly escaped physical danger - no objective symptoms needed
3. Special Category
a. Misdelivery of death message may be liable (delay leads to missing funeral - RPP distress)
b. Interfering with dead bodies creates liability - not all juris, but most
4. Bystander
a. Majority - no recovery for bystanders - not in zone of danger
b. Minority - (1) close relative (2) close to scene (3) saw with own senses
1. Thing rule - 3 elements - also need serious emotional distress
2. Dillon rule - 3 factors - also D’s 4CBLT of injury
E. Unborn child
1. Wrongful Injury - injury to child in utero, child born alive
a. Parents - yes - must care for child
b. Child may sue
1. Must stop at first generation - child can’t sue for negligence to grandmother
2. Wrongful Death - injury to child in utero, child not born (statutes, not common law)
a. Parents - yes, mother’s pain and suffering, father’s loss of service/consortium
b. Fetus - depends on whether viable or not
1. Majority - yes, fetus was viable as a separate existence
2. Minority - no, not viable - if incapable of life on own, not capable for damages
3. Wrongful Birth/Life
a. Wrongful birth (parent) - but for Dr.’s negligence, would have choice of avoiding birth
1. Emotional distress
2. Extraordinary expenses
b. Wrongful life (child) - but for Dr.’s negligence, would not have been born
1. Extraordinary expenses - through majority of life
2. NOT for emotional distress, diminished childhood, parents’ inability to cope
4. Wrongful Pregnancy
a. Minority - yes, cost of rearing is problematic
5. Other
a. Injury to mother affecting ability to rear children - YES
b. Mother’s conduct - negligent driving, drug use, etc. - YES
c. Wrongful conception - father promises to marry mother but doesn’t - illegitimate child - NO
d. Other family members - new child ruined lives of other family members - NO
e. Preconception wrong - wrongful conduct prior to conception - Not enough cases ???
VII. DEFENSES
A. Contributory Negligence
- Definition: If P is negligent in any way, claim is barred against D regardless of D’s conduct, EXCEPT
- Last clear chance - if D has last clear chance to prevent injury, may be held liable
- Contributory negligence is only used in AL, VA, MD, NC, and DC
B. Comparative Negligence
- Definition: P recovers the amount of damages minus the percentage of damages due to P’s negligence
- Types of schemes for determining when to award damages:
1. Pure - D is only liable for the percentage of damages caused by him, even if only 1%
2. Modified - D is only liable if causing a high enough percentage of damages:
a. 49% rule - P’s negligence is not as great as D’s - if 50% or more by P - $0
b. 50% rule - P’s negligence is not greater than D’s
- First aggregate contribution of all D’s and then apply scheme - P = 40%, D1 = 35%, D2 = 25% - P recovers
- Even if P has more percentage than each individual D, may still have less than combined D’s
- Methods of recovery if joint tortfeasors:
1. Joint and several liability - Each D liable for total contribution of all D’s
a. Pro rata - divide the cost evenly among tortfeasors regardless of percentage
b. Comparative - each D pays the percentage of the damage due to their negligence
- CAUTION - make sure it is % of total damages, not just % of D’s damages
2. No joint and several liability - Each D only responsible for % of contribution
- No more concept of last clear chance - blame is shared among tortfeasors
- Avoidable consequences - SKIP FOR NOW
C. Assumption of Risk
1. Express - parties make an agreement (usually contract) to release D from liability for negligence
a. Must be a valid contract with risks occurring in terms of contract
b. To be considered valid:
1. Parties must have fairly equal bargaining power
2. Must be a non-essential activity (access to a gym is non-essential)
3. No overriding public interest
4. No non-competitive public utilities or common carriers
5. In line with safety standards and regulations
6. Statute of Frauds may apply to land, contracts w/in time frame, Dr. guarantee
7. Must be unambiguous with clear intent to release D from liability
8. Derivative claims (spousal claims) must be same or less than interest of victim
2. Implied - no longer to be considered under comparative regime
- Definition: Having actual knowledge of a particular risk and its magnitude and voluntary exposing to it
a. Primary - Taken over by comparative fault - P’s conduct as failure to exercise care of RPP
- Ex. Attending a baseball game assumes risk of being hit by foul ball
- Decreases/removes the duty necessary from D because P assumes the risk
b. Secondary - reasonable and unreasonable assumption of risk by P
- Ex. Diving into D’s pool from roof
- Either no duty for D or contributory negligence
- Unprivileged conditions - D has duty to maintain, cannot force P to use alternative b/c it exists
- Failure to take advance precautions (seatbelt/helmet defense) before accident
- Avoidable consequences - P has obligation to mitigate further losses after the injury
D. Statutes of Limitations and Repose
1. Statute of Limitations
- Majority: SOL begins to run once P discovers, or should discover, the injury
- Minority: SOL accrues after occurrence of injury
- Continuous treatment causing injury may delay accrual even if negligence occurs early
2. Statute of Repose
- Action is barred if not brought w/in certain time after relationship ends (limit on discovery rule)
VIII. VICARIOUS LIABILITY
A. Respondeat Superior
- Definition: Principle (employer) is responsible for his agent (employee) and act within scope of employment
- Going and coming rule - employer not responsible for commute (unless b/t sites, travel salesman, part of job)
- Dual purpose rule - P does something on way to doing job - depends on if frolic (personal) or detour (related)
- Joint and several liability - a way to make sure P can regain compensation by going after employer - indemnity
B. Independent Contractor
- Definition: One who has the right to control physical details of his work or delegate to others
- No vicarious liability for independent contractors
- Apparent authority - if independent contractor appears to represent one as an agent, may be liable
- Non-delegable duty - sometimes statute or other prevents one from delegating a duty to independent contractor
- Independent contractors may still be held liable for misfeasance if no vicarious liability
- If D is negligent in choosing an independent contractor, may be liable for concurrent negligence - not vicarious
C. Joint Enterprise
- Definition: Relationship with a common purpose/goal, pecuniary (financial) interest, and equal right of control
- Joint enterprise is a basis for vicarious liability
- Familial or personal relationships typically don’t qualify as the business or commercial interest needed here
D. Bailments
- Majority: Bailments do not make a bailor vicariously liable for acts of bailee in use of chattel
- Minority exceptions:
1. Family purpose doctrine - owner of family car liable for other family drivers if sharing
2. Automobile consent - owner of car may be liable for drivers with owner’s consent
3. Negative entrustment - lend car to someone without license
IX. STRICT LIABILITY
A. Animals
1. Trespassing intruders
a. Barnyard animals - liable
b. Household pets - not liable
2. Personal Injuries
a. Domesticated - animal species devoted to service of humans - no liability
- Except if owner knows or has reason to know of propensity uncharacteristic of species
- If harm not what makes animal dangerous - no strict liability, just negligence
- Should know - may impose obligation to find out with reasonable inspection
- Reason to know - actual knowledge of facts to give RPP chance to discover
b. Wild - just about everything not domesticated (ferrets but not bees or tame deer)
- Wild in one place might not be wild in another (elephant in India not wild)
- Strict liability even if harm caused by unexpected forces
- Intentional conduct by 3 rd party may end liability, but not if negligent/reckless
B. Abnormally Dangerous - traditional strict liability (AKA ultrahazardous)
- Definition: One who carries out abnormally dangerous activity is subject to strict liability regardless of utmost care
- Typically for activities where no degree of care can truly provide safety
- Factors to consider in determining if abnormally dangerous:
1. High degree of risk
2. Harm that results is great
3. Inability to eliminate risk by reas care
4. Extent to which not common usage
5. Inappropriateness of activity where it is carried on
6. Value to community outweighed by dangerous attributes
- Posner says to reorder and make #3 above first consideration
- Strict liability only works where negligence fails - if negligence works fine, apply it
- Strict liability usually arises when P cannot determine who was negligent
- Must consider if injuring object is non-natural to the environment it is in
C. Limitations on Strict Liability
- No strict liability when harm not caused by what makes activity ultrahazardous
- Minor shakes scaring sensitive mink when blasting miles away - normal risk, not ultrahazardous
- No strict liability to protect against harm due to unusual use of land - mink farm near blast site
- No strict liability if force causing harm cannot be anticipated - Act of God - can’t anticipate to prevent
- No strict liability if P brings harm on himself - must have knowledge harm will occur and act voluntarily
- Mere negligence of D will not bar recovery under strict liability - contributory negligence is no defense
X. PRODUCTS LIABILITY
A. Types of defects
1. Manufacturing - defect that arises as a difference from actual design of product (missing part)
- Strict liability - reasonable care or negligence of mfc not important
2. Design - actual design is defective as made, effectively rendering whole product line defective
- Risk/utility standard - liability based on analysis of factors
3. Information - instructions or warnings are inadequate to warn of danger
- Instruction = use product in following way, warning = if you use product, be careful
B. Application - applies to all products, EXCEPT:
1. Components materially altered in mfc process (sheet metal used to build bike)
2. Special cases: food, used products, human blood/tissue, services, prescription drugs
C. Liability limitations - everyone in chain of distribution is liable as long as product defective when leaving them
1. Liability may be maintained for injury to person or property
2. No liability when product simply doesn’t work or if product destroys itself
3. Vouching - mfc liable even if simply putting seal of approval on product it didn’t actually mfc
4. Container rule - no difference between product or container - treated as one product
5. Sellers - strict liability - liable if someone above them in chain is liable - indemnity available
- Does not apply to casual sales - Ex. personal car sale, business surplus sale
D. Design defect
1. Risk/utility balancing test
- Factors to consider:
a. Usefulness and desirability of product - utility to user and public
b. Safety aspects of product - likelihood of injury, seriousness of injury
c. Availability of a substitute - if same need and safer
d. Ability to eliminate unsafe character without impairing usefulness or expense beyond utility
e. Ability to avoid danger by exercise of care in use of product
f. Obviousness or awareness of inherent danger and avoidability
g. Feasability of spreading the loss in the cost of the product
2. Required elements
a. Product was defective when leaving hands of person being sued
b. Reasonable alternative existed
1. Available in or out of market - D might be required to know about it
2. No prototype necessary to show alternative exists
3. Egregious hazard to children may not need alternative design to prove liable
4. Ultrahazardous w/out utility may be liable w/out alternative - statutory
5. Not that alternative was available but it was technologically feasible to have one
6. Alternative would have reduced the 4CBL risks of harm
3. Defenses
a. State of the art - existing level of technology practically feasible - not same as industry custom
b. Obviousness of risk - nature might serve as own warning - causes P to exercise more care
- Not available for mfc defects because once discovered, P is using with knowledge
c. Contributory negligence - Local law should determine - contrib. vs. comparative negligence
- If P modified product in some way that made defect arise - may bar liability on mfc
- No reas care - notices problem 3 times but uninjured, 4th time injured - mfc not liable
d. Comparative fault - reduce recovery to extent of P’s fault contributing to defect
e. Misuse - P misuses product in UN4CBL way not due to defect (using sword to cut hair)
4. Prescription drugs
a. Majority - no strict liability for design or information defect - maybe if mismanufactured
b. Learned intermediary - well-warned physician in better place to assess risks to patient
c. When drugs marketed directly to consumer, may be greater liability to mfc
d. Allergic reactions only create liability when substantial # are allergic - P’s burden to show
E. Warnings
1. Reasonableness - 4CBL risks could be reduced or avoided by warnings - omission make product unsafe
a. No duty to warn of obvious dangers - may detract from usefulness of non-obvious warnings
b. Whether reasonableness used is a question for the jury to decide
2. Presumption that P will read a warning - makes warnings useful
- Presumption is rebuttable by mfc if he can show user would not have read warning anyway
- Cause in fact is not absence of warning if P would not have read it
3. Post-sale duty to warn - if danger arises after sale of product, must either warn or recall product
F. Burden on P
1. This is D’s product - done by vouching, labeling, etc
2. Defect existed when leaving hands of D - everyone in chain liable once defect proved
3. Product must have caused the injury - toxic things, but may come about otherwise - tough (lung cancer)
4. Basis for liability - defect in mfc, design, or information
5. Avoid defenses
6. Avoid limitations on liability - proximate cause, etc.