Torts Outline

TORTS FINAL EXAM OUTLINE INTENTIONAL TORTS3 2. Battery3 3. Assault3 4. Intentional Infliction of Emotional Distress3 5. False Imprisonment4 6. Trespass4 6. 1. Trespass to Land4 6. 2. Trespass to Chattels4 6. 3. Conversion4 AFFIRMATIVE DEFENSES5 7. Consent (Privilege)5 8. Self Defense (Privilege)5 8. 1. Self-Defense by Force Not Threatening Death or Serious Bodily Harm5 8. 2. Self-Defense by Force Threatening Death or Serious Bodily Harm6 9. Defense of Others6 10. Defense of Property6 11. Necessity (Privilege)7 12. Discipline (page 93 in casebook)7 13.

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Arrest and Crime Prevention (page 95 in casebook)7 14. Shopkeeper’s Defense7 NEGLIGENCE8 15. Negligence8 16. Negligence Per Se8 17. Custom9 18. Res Ipsa Loquitor (The Thing Speaks For Itself)9 19. Affirmative Duties (duty established by a relationship or nonfeasance and misfeasance)10 20. Landowner and Possessor Liability – Duties10 CAUSATION11 21. Actual Causation11 21. 1. Actual Causation – Single Defendants12 21. 2. Actual Causation – Joint and Several Liability13 21. 3. Actual Causation – Joint and Several Liability (Substantial Factor)13 21. . Actual Causation – Joint and Several Liability (Alternative Causation)13 22. Proximate Cause14 22. 1. Foreseeable Consequences14 22. 2. Intervening Causes15 22. 3. Proximate Cause for Intentional Tortfeasors15 22. 4. Foreseeability of Rescuers15 22. 5. Foreseeable Plaintiffs15 NEGLIGENCE – SPECIAL RULES16 23. Non-liability for Foreseeable Consequences16 23. 1. Bystander Emotional Harm16 23. 2. Negligent Infliction of Emotional Distress (NIED)17 23. 3. Injury to Personal Relationships (Loss of Consortium)17 24. Prenatal Harm17 25. Economic Harm18

NEGLIGENCE – AFFIRMATIVE DEFENSES18 26. Contributory Negligence18 27. Last Chance Rule18 28. Comparative Negligence (Modern Rule)18 29. Assumption of Risk20 30. Immunities20 DAMAGES21 31. Damages21 31. 3. Eggshell Plaintiff Rule22 31. 4. Wrongful Death22 STRICT LIABILITY23 32. Worker’s Compensation23 33. Vicarious Liability23 34. Strict Liability (Activities)24 34. 3. Animal Strict Liability24 34. 4. Nuisance24 34. 5. Affirmative Defenses25 PRODUCTS LIABILITY25 35. Strict Product Liability25 36. Manufacturing Defect26 37. Failure to Warn27 38. Design Defect28 39.

Product Liability – Causation28 40. Products Liability – Defense: Comparative Responsibility28 1. Reasons for Tort Policy Instrumental Rationales: Tort law is an instrument for achieving social goals. E. g. Econ. Analysis of Law (Posner) 1) Deterrence: people should desist from harm producing or wasteful conduct; 2) Efficiency: Maximize total social wealth Non-Instrumental Rationales: Tort law should punish wrongful conduct. E. g. Non-reciprocal Risk (Fletcher) 1) Compensation (to P): D causes harm to P; 2) Fairness (to D): corrective justice INTENTIONAL TORTS Intent |Recklessness |Negligence |Strict Liability | |R 3d § 1 |R 3d § 2 |R 3d § 3 |R3d § 20, Products Liability | |R 2d § 8A |R 2d § 500 |R 2d § 283 |R 2d §§ 402A, 519 | |Act with purpose of producing the|Acts with knowing indifference to a |Does not exercise |Engages in certain conduct that | |consequence or knowing that the |risk of harm that would be obvious to |reasonable care under all |causes harm. |consequence is substantially |another in that situation; Acts with |the circumstances; | | |certain (constructive intent) to |deliberate disregard of a high |Creates an unreasonable |E. g. , Vicarious Liability, | |result |probability of harm |risk of harm. |Abnormally Dangerous Activities, | | | | |Sale of Defective Products | 2. Battery 1. Rule • Restatement 2d Section 13 (Harmful) & Section 18 (Offensive) 2. Prima Facie Case • D Acts Intending (Garratt, Section 8A, Section 20) to • Cause (Vosberg Rule #2, chapter 2) or the intentional apprehension that D will cause a • Harmful (Section 15) or Offensive (Section 19) • Contact with another p. 28-29 • Harmful or offensive contact results to another or a third person (transferred intent, p. 24) 3. Related Cases 4. Other Information • Definition of Offensive – Offends a person’s dignity as defined by the time and place. Is the action against the social norm? The actor does not have to know the contact is offensive. • Instrumentality – An individual may be guilty of battery if an instrumentality of his causes harm to another.

In this case, you must determine the individual’s intent in using that instrumentality. (Think snowmobile incident) • Mentally disabled people are commonly held liable for intentional torts even though intentional torts require subjective intent which they don’t meet. 3. Assault 1. Rule • Restatement 2d Section 21 2. Prima Facie Case • D Acts • Intending (Garratt, Section 8A) to • Cause (Vosberg Rule #2, chapter 2) or the intentional apprehension that D will cause a • Harmful (Section 15) or Offensive (Section 19) Contact • Imminent Apprehension ensues • The threat must be imminent and present. • The actor must have the ability to do so. Ask yourself would a reasonable person have this fear? 3. Related Cases 4. Intentional Infliction of Emotional Distress 1. Rule • Section 46 in the Restatement 2d 2. Prima Facie Case • Extreme and outrageous conduct: so outrageous in character and extreme in degree as to go beyond all possible bounds of decency and regarded as atrocious and intolerable in a civilized community. (comment d) • Intentionally or recklessly: acts with the purpose of producing the consequence or knowing that the consequence is substantially certain to be result; OR knows of the risk created by the conduct or know facts that make the risk obvious to another in that situation and indifference to the risk. • Causes Severe emotional distress: extreme, that is, no reasonable person should be expected to endure it. • Transferred Intent: R. 2d Sect 46(2) – immediate family if present and emotional distress happens, and any other person if present AND bodily harm results from the emotional distress. 3. Related Cases 4. Other Information • Courts typically agree that this tort can be applicable in the first five instances: o

1) Future threats of serious bodily harm; 2) Debt Collection; 3) Constitutionally protect rights (Fisher w/o plate); 4) Dead bodies: Restatement Section 868 – Interference w/ dead body; 5) False reports of serious bodily harm (Wilkinson, telegraph cases); 6) Insulting language? Taylor, Logan) • If there is a relationship between the parties, if it occurs 2 or more times and you can establish a repeated pattern of conduct, and if you are aware of the person’s susceptibility to the conduct, then you can claim IIED. 5. False Imprisonment 1. Rule • Sections in the Restatement that apply here are 39, 40, 40A. 2. Prima Facie Case • Did the defendant intend to confine the individual or a third person? • Did the defendant fix the boundaries? • The act directly or indirectly results in the confinement of the other • Is the plaintiff aware of the confinement or suffered harm from it? 3. Related Cases 4. Other Information • Restraint is the setting of fixed boundaries by the defendant so as to not let the plaintiff leave. • Physical restraint is not always required, acts and threats are a good sign. • There must be no reasonable escape Merchants have some maneuvering room to do what is necessary to protect property, but it must be reasonable • Reasonable time (be brief), reasonable grounds (be certain), reasonable manner (be polite). 6. Trespass 1. Trespass to Land 1. Rule • Restatement 2d Section 158 – Intentional, physical entry onto the land possessed by another. 2. Prima Facie Case • Basic trespass here. Looking for intent or recklessness, physical entry, of another’s land. • Defendant acts intentionally o To enter the land in the possession of the other o Or remain on the land o Or failed to remove something from the land they had a duty to remove o Or caused a third person to do any of the above

• Transferred intent – can put something or a third person on the property and it is still trespass 3. Other Information Check for affirmative defenses here – privilege, necessity, consent • Restatement 2d Section 163 (No Harm) – still liable to the possessor for a trespass if he intentionally trespasses even if no harm happened to the land, the possessor, or any thing or person the possessor has a legally protected interest • Restatement 2d Section 164 (Mistake) – still liable to the possessor for a trespass if he intentionally trespasses even if it is a mistake, however reasonable, not induced by the conduct of the possessor, that the he is in possession of the land or entitled to it, that he had consent, or that he had some other privilege 2. Trespass to Chattels 1. Rule • Restatement 2d Section 217 & 218 – Intentional dispossession or use of the chattel of another. 2. Prima Facie Case • Intentional dispossession or use of • Another person’s property • And the dispossession is not permanent – aka the property has not been permanently altered • And there is a negative effect (i. e. bodily harm) to the possessor. 3. Other Information • Check for affirmative defenses here – privilege, necessity, consent 3.

Conversion 1. Rule • Restatement 2d Section 222A – Intentional exercise of dominion or control of a chattel of another which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel. In addition, if it severely prevents someone from using it for their convenience, it could be deemed a conversion. 2. Prima Facie Case • Looking for intent – did they mean to keep it or take it for an extended period of time. • Did the defendant take control of the property? • Was it seriously interfered with so as to interrupt the right of another? • Was it changed or altered?

Was there inconvenience? How was the chattel harmed? • What was the inconvenience and expense done to the other party? 3. Other Information • Check for affirmative defenses here – privilege, necessity, consent 4. Related Cases AFFIRMATIVE DEFENSES 7. Consent (Privilege) 1. Rule • Restatement 3d Rules 892 (A – D) 2. Prima Facie Case • Objective manifestation (Restatement Section 892 (2) O’Brien), of • Subjective willingness in fact (Restatement Section 892 (1)): Voluntary • For the particular or substantially the same conduct to occur: Knowing (Restatement section 892A) 3. Related Cases Barton, Ban, Kennedy, Hackbart 4. Other Information Consent is subjective, but it may be manifested objectively. Words or conduct are reasonably understood by another to be intended as consent, they constitute apparent consent and are as effective as consent in fact. (Implied consent) 1. Exceptions to Consent • Consent induced by fraud or duress not valid because not voluntary; R2d §892B

• Emergency Action does not require consent; R2d § 892D 2. Criminal Consent Rules • There are three (3) different rules regarding consent: o Criminal Consent (Majority Rule) – if there is consent from the victim and the underlying activity is criminal then consent is no longer valid. Restatement Rule 892C (Minority Rule – Twist on Barton) – Consent is effective to bar recovery in a tort action even though it was consent to a crime, UNLESS the conduct was made criminal to protect a certain class of people at which point the consent of members of that class is no longer valid. o Barton (Minority Rule) – if she consented to the action, then it would bar her action in court. Her consent is valid as long as she knows the nature and quality of her act. 3. Medical Consent • Consent rules as they apply to doctors. Consent to one body part is not consent to the rest of the body. • The patient must be given alternatives or at least know all the facts before true consent can be given. • Cannot go beyond specific consent given by patient UNLESS it is an emergency (Scope of consent). 4. Informed Consent Two types of informed consent violations: 1) Battery 2) Negligence • Negligence – type of informed consent where someone fails to explain the risk involved. The patient has given consent but there as been a breach of duty adequately to inform the patient of the risks.

• Battery – type of informed consent. It is unapproved/un-welcomed touching of one’s body. “Where treatment is unauthorized and performed without consent, the doctor has committed a battery” even if “A condition is on the consent, it is a matter of primary importance, and the doctor acts in excess of violation of that condition, if proved, constitute a battery” If the scope of consent is violated, it is a battery. Also liable for battery if you explain all risk but did not explain a risk or result that they should have known to a substantial certainty would happen, then it is a battery. (constructive intent) • Majority Rule for Scope – consent applies to just the operation that was consented to, unless it is an emergency and you have a reason to know that they would consent. Bang • Minority Rule for Scope – you may extend consent to the general area of the operation/incision as a good surgeon would allow (p. 53). Kennedy 8. Self Defense (Privilege) 1. Self-Defense by Force Not Threatening Death or Serious Bodily Harm 1. Rule • Restatement 2d Section 63 2. Prima Facie Case Reasonable force (not intending to cause death or serious bodily harm) • Against unprivileged harmful or offensive contact • Reasonably believes another actor • Intends to inflict on him 3. Other Information • Self-defense is privileged even though: the actor correctly/reasonably believes (objective – does not have to be right) he can avoid the necessity to defend himself by retreating or giving up a right or privilege or by complying with a command which he has no duty to comply with or the other has no privilege to enforce by the means threatened. • Reasonable belief – a reasonable person would also entertain the same apprehension. This includes acts and statements. Reasonable force – must not be disproportionate to the harm which the actor is protecting himself from; the fact that it is an emergency situation is considered (a reasonable man in this emergency situation) • Duty to Retreat – there is no duty to retreat in this situation • Legal Duty Exception – if the actor has a legal duty to comply to a demand then he cannot use self-defense against the harm the individual is privileged to apply for the purpose of securing compliance. 2. Self-Defense by Force Threatening Death or Serious Bodily Harm 1. Rule

• Restatement 2d Section 65 2. Prima Facie Case • An actor is privileged to use force causing death or serious bodily harm when: o He reasonably believes the other is about to inflict an intentional contact or bodily harm o He is put in peril of death or serious bodily harm o Can safely be prevented by the use of such force 3. Other Information Self-defense is privileged even though: the actor reasonably believes he can avoid the necessity by retreating within his dwelling place or permit the other to intrude or dispossess him of his dwelling place or abandon an attempt to get a lawful arrest. • Self-defense is NOT privileged if: the actor reasonably believes he can safely avoid the necessity by retreating (if attacked anywhere other than his dwelling or in a place which is the dwelling of another) or relinquishing any right or privilege other than the privilege to prevent intrusion or dispossession or to effect a lawful arrest. • Standing Ground (the Jason Rule) – a person can stand his ground, if he reasonably believes, the slightest doubt that he cannot escape safely. 3. Related Cases 9. Defense of Others 1. Rule • Restatement 2d Section 76 2.

Prima Facie Case • Can protect a third Person • From harmful or offensive contact (or other invasion of his interests) • Under same conditions by which the actor is entitled to self-defense (see section 8 of this outline) • If the actor reasonably believes: o The circumstances are such that the third person is entitled to self-defense o His intervention is necessary for the protection of the third person 3. Related Cases 4. Other Information • Restatement 76 (Minority Rule) – Objective rule: You have whatever privilege a reasonable person would have in my circumstance. If I can see but the one being attacked can’t, I can’t shoot. Derivative Privilege (Majority Rule) – Subjective rule: You have whatever privilege the party “in danger” has. If I can see but the person “in danger” can’t, I can shoot. 10. Defense of Property 1. Defense of Possession by Force 1. Rule • Restatement 2d Section 77 2. Prima Facie Case • Actor can use reasonable force not intended to cause death or serious bodily harm if: o The intrusion is not privileged or the other acted to make the actor believe its not privileged o AND the actor reasonably believes the only way to terminate it is by the use of force o AND a request to desist was made and disregarded or the request would be useless or result in substantial harm before it can be made 3. Other Information

Incomplete Privilege – This refers to cases where a person has a privilege to protect himself or his chattel so he is free of liability from trespass, but he is not free from liability for any material harm done to its physical condition. The only way an actor can prevent this intrusion is if he has reasonable grounds to believe that it is likely to cause substantial bodily harm to him or third persons. 2. Use of Mechanical Device Not Threatening Death or Serious Bodily Harm 1. Rule • Restatement 2d Section 84 2. Prima Facie Case • Privileged to use device, not likely to cause death or serious bodily harm, to protect land or chattels if: o It is reasonably necessary AND the device is reasonable under the circumstances o AND the device is customarily used or reasonable care is taken to make it known to intruders 3. Other Information • Look at comments for any extra situation regarding the type of device used. 3. Use of Mechanical Device Threatening Death or Serious Bodily Harm 1. Rule • Restatement 2d Section 85 2. Prima Facie Case

• An actor is privileged to use a device producing serious bodily harm or death for the purpose of protecting his land and chattel only if, had the actor been present, he would have been allowed to use such force. 4. Related Cases 11. Necessity (Privilege) 1. Public Necessity 1. Rule • Restatement 2d Section 196 2. Prima Facie Case Can enter the land of another if the actor reasonably believes it is necessary for the purpose of avoiding an imminent public disaster. 2. Private Necessity 1. Rule • Restatement 2d. 197 2. Prima Facie Case • One is privileged to enter or remain on another’s land if it reasonably appears to be necessary to protect: o The actor, his land, or his chattels o Or a third person (his land or chattels), unless he knows the person does not want such action. • This is not a full privilege. The actor is still liable for any harm done in the exercise of the privilege unless the threat of harm was caused by the tortious conduct or contributory negligence of the possessor. 3. Related Cases • Restatement 197(1) – Ploof; Restatement 197(2) – Vincent 4. Other Information Doctrine of necessity: “An inability to control movements inaugurated in the proper exercise of a strict right, will justify entries upon land and interferences with personal property that would otherwise have been trespass” • Using or destroying someone else’s property is justifiable if based on necessity. • Necessity is a privilege that can negate self defense and defense of property. If the person is privileged to be on the property and the other uses physical force thinking of self defense, this may be a valid battery claim. 12. Discipline (page 93 in casebook) 1. Prima Facie Case • Parents and teachers have a privilege to impose reasonable discipline on children.

Things to Consider – Nature of the punishment itself, nature of the misconduct, the age and physical condition of the pupil, and teacher’s motive. o Reasonableness – Must measure the actor’s reasonable perception of the need to use force, and the reasonable harm inflicted. 13. Arrest and Crime Prevention (page 95 in casebook) 1. Prima Facie Case • This is in reference to police officers and other law enforcement in arresting lawbreakers and preventing crime. • Reasonableness of the actor’s perception of the need to use force; reasonableness of the harm actually inflicted 14. Shopkeeper’s Defense • Shopkeeper has a right to take reasonable action to protect its property. Remember, human life more important than property. • From False Imp. – Reasonable time (be brief), reasonable grounds (be certain), reasonable manner (be polite). Also, you cannot detain witnesses. NEGLIGENCE 15. Negligence 1. Rule • NEGLIGENCE – Restatement 3d Section 3 – A person acts negligently if the person does not exercise reasonable care under all the circumstances. Primary factors to consider in ascertaining whether the person’s conduct lacks reasonable care are the foreseeable likelihood that the person’s conduct will result in harm, the foreseeable severity of the harm that may ensue, and the burden of precautions to eliminate or reduce the risk of harm. ORDINARY CARE – Restatement 2d 283 – standard of conduct is reasonable man under like circumstances RPP apply him to CircumstancesP x G vs. B OBJ SUBJ • BURDEN OF PROOF – It is the plaintiff’s job to show alternate ways the defendant should have conducted their actions. This way you can show what may or may not have been too burdensome. Each different count of negligence requires its own separate analysis. There is still the basic duty, breach, cause, and damage, but what is the source of the duty, what a possible breach is, etc.

2. Prima Facie Case • Restatement 2d Section 328A o Duty = Standard of Care, Question of law for the court p. 163 o Breach= Did D fall below the applicable standard of care? Question of fact for jury, p. 63 o Cause= Actual cause (but for, sub factor, joint and several) and Proximate cause (proportionate scope of liability) o Damage=Compensatory damages for physical injury, prop damage, lost work capacity and pain and suffering 3. Related Cases 4. Other Information Children – Restatement 2d Section 283A • In order to determine if a child is behaving negligently, a child must conform to what a reasonable person of like, age, intelligence, and experience under like circumstances. • Adult Activity – An exception to this rule is when children engage in adult activities where adult qualifications are required. In this case he will be held to the standard of adult skill, knowledge, and competence required by the activity. No exception will be made for immaturity. Age – Another exception to this is children under the age of 5 since they are incapable of comprehension. Restatement 3d Section 10. Mental Deficiency – Restatement 2d Section 283B • Unless the actor is a child with mental deficiency, insanity or other mental deficiencies do not relieve the actor from liability of not conforming to the standard of a reasonable man in like circumstances. Why? Hard to measure; hard to verify; not entirely obvious or visible to a third party. However, if it is a child who is mentally deficient, then you can raise the deficiency for the consideration of the court. Physical Deficiency – Restatement 2d Section 283C

• If the actor is ill or has a physical disability (blind, handicapped, etc. , the standard of conduct would be that of a reasonable man under like disability. Why? It is measurable; it is verifiable; it is visible to a thirty party. • This applies to the circumstances in the reasonable man formula not the RPP half of the formula. • This also applies to temporary disabilities (i. e. heart attacks); however, if the person knows he is prone to them then he may be held negligent. Emergency – Restatement 2d Section 296 (Young v. Clark p. 171 in casebook) • The fact that the actor is faced with sudden emergency requiring rapid decisions is factored in determining if the person acted reasonably under the circumstances. • There is just too little time to determine what a reasonable person should do. Just because the person did not act negligently after the emergency happened, does not preclude him from being held liable if his tortious conduct produced the emergency. • Courts typically define lack of time as 3 seconds or less. 16. Negligence Per Se 1. Rule • Restatement 2d Section 286 – The standard of conduct for a reasonable man can be defined by legislative enactments or administrative regulations. These enactments are usually made to protect a class of people, interests, particular kinds of harm, or particular kinds of hazards. 2. Prima Facie Case • Duty – duty here is determined by the law or statute (it is a question of law if such a duty should apply).

The statute must be a safety statute, and it must be apply and be relevant to the case at hand. (Think of the licensing statute that did not apply to the physician’s malpractice) • Breach – proof that the actor acted in a way contrary to the conduct specified in the law or regulation. In addition, ask yourself if the violation is excused (look below) • Cause – same as regular negligence • Damage – same as regular negligence 3. Related Cases 4. Other Information 1. Excused Violations 1. Rule • Restatement 2d Section 288A – Excused violations is not negligence. Unless the statute states that such exceptions are not excused, 288A (2) states when violations are excused.

Think of the following issues: 1) incapacity (minors), 2) impossibility (doesn’t know or should know the situation calls for compliance) 3) inability (after reasonable diligence and care is unable to comply), 4) emergency (confronted with an emergency not due to their own misconduct, and compliance brings a greater risk), 5) greater risk of harm if complied, and 6) statute allows for exceptions. • Exception – Restatement 2d 288C: If compliance with the statute may bring more harm than good in the circumstances, than the defendant must prove that he acted like an RPP in that situation. |Irrelevant |Some Evidence |Rebuttable Presumption |Negligence Per Se | |E. g. , |E. g. |E. g. , |E. g. , | |Brown v. Shyne, |N. Y Civ. Prac. L. & R. § 4504(d), |Sheehan p. 184, Peterson p. 185 (internal |Martin v. Herzog, | |Gulla v. Straus, 154 Ohio St. |Gill p. 185 |police dept. regulation) |Tedla v. Ellman | |193(1950) [driver’s license] |Chambers v. St. Mary’s School, 82 Ohio | | | | |St. 3d 563(1998)[Adm. Regs. | | | |Statutory purpose is not a |P gets to the jury (prima facie case) by |P proves duty and breach by proving D’s |P proves duty and breach by proving | |safety purpose, or violation |proving D’s violation of applicable |violation of applicable safety statute; b/p |D’s violation of applicable safety | |of the statute did not cause |safety statute; jury determines whether D|shifts to D to prove D acted as a RPP under |statute; b/p shifts to D to prove | |the harm |was at fault |the circumstances |legally recognized excuse | |Statutory violation not |Jury instructed that if they find D’s |Jury instructed that if they find D’s stat. |Jury instructed that if they find D’s | |admissible. Jury must find |stat. violation caused harm, they may |violation caused harm, they must find for P |stat. violation caused harm, they must| |that D did not act as a RPP |find for P. |unless D establishes that he acted as a RPP |find for P unless D can establish | | | |under the circumstances. |excuse. | 17. Custom 1.

Rule • Custom can be made admissible for a prima facie case. 2. Prima Facie Case • Duty – need expert witness to testify what indeed is the custom for that group of people. This is relevant but not determinative. • Breach – show that the defendant acted inconsistently with that custom • Cause and Damage – still the same as in basic negligence. 3. Other Information • Exceptions to custom – if the custom causes more harm than good go back to RPP (Learned Hand Balance). Also, if the custom should change because of safety, custom does not carry. T. J. Hooper 4. Professional Malpractice (Medical and Legal) 1. Rule • Restatement 2d Section 299A Skill and knowledge normally possessed by member of that specialty in good standing in similar communities = national S/C for physicians, statewide S/C for lawyers. • If you are a professional, expert testimony is required to establish the custom to get to the jury unless the matter is within the common knowledge of the jury. 2. Other Information • If you do not need an expert witness, you can still submit expert testimony to develop custom. • The reason they have a higher standard for getting to the jury is because they are more trained, more skilled, more educated in this area.

Not everyone can testify as to the right thing that should be done. • Medical common knowledge exceptions for expert testimony – 1) Injury to remote body part; 2) foreign objects left in patient; 3) informed consent in ? urisdictions that adopt patient need standard • Legal common knowledge exceptions for expert testimony – 1) failure to obey client’s lawful instructions; 2) failure to research law; 3) failure to file case within required time period. 18. Res Ipsa Loquitor (The Thing Speaks For Itself) 1. Rule • Restatement 3d Section 17: It may be inferred that D is negligent when the accident causing P’s physical harm is a type of accident that ordinarily (more likely than not) happens as a result of the negligence of the class of actors of which the D is a relevant member. • This happens where plaintiffs don’t have access to recreate the accident or to show that there was a specific negligence because only the defendant had control of it.

You must prove as much as you can so that a reasonable inference of negligence can be made. 2. Prima Facie Case • An inference of negligence is permitted, but not required if P proves: o DUTY AND BREACH – The accident is such as in the ordinary course of things would not happen if the defendant had exercised reasonable care. o CAUSE AND DAMAGE – The instrumentality that CAUSED the HARM is in the exclusive dominion and control of the defendant (at the time of the negligent act), and o The instrumentality has not changed after it left the defendant’s possession. 3. Related Cases • Boyer v. Iowa HS (bleachers), Shutt v. Kaufman’s Inc, City of Louisville v. Humphrey, Escola v.

Coca-Cola (bottle exploding – the beginning of Justice Traynor’s Product Liability) 4. Other Information • As a defense, defendant could prove that someone/something else caused the accident, but this is not required. • Works only in a very small amount of accidents, that you can infer negligence, lack of ordinary care, etc. 19. Affirmative Duties (duty established by a relationship or nonfeasance and misfeasance) • Misfeasance v. Nonfeasance – Distinguish misfeasance (active misconduct causing injury; taking control of the risk) from nonfeasance (passive inaction or not causing harm, but being in a position to avoid or prevent harm not caused by a wrongful act of that person. ) E. g.

Restatement 2d Section 321 o When you move from nonfeasance to misfeasance, then there may be more responsibility involved because you’re taking an action regarding the incident. • Reliance – There is also a question of reliance. Taking action may make others rely upon them, at which point you owe a greater duty to them, because you willingly took action, and no longer performing that action without notice will increase the risk to those who relied on it. • Contract – You may also have an affirmative duty based on contractual obligations. Keep in mind. 1. Duty to Rescue 1. Rule • Common law rule: No duty to rescue a stranger. See Buch. 2. Exceptions: Negligent performance of undertaking to render services, if you have begun to render services then you have a greater duty R 2d §323, Stewart; R 3d §§ 42 & 43. • If defendant caused the harm, then they must render aid Restatement 2d Section 322, Tubbs; R 3d § 39. • Certain relationships with the injured person, R 3d § 40 1. Common carriers (strict standard of care): Restatement 2d Section 314A 2.

Innkeepers: Restatement 2d Section 314A 3. Business inviters: Restatement 2d Section 314A 4. Employers: Restatement 2d Section 314B (in imminent danger and helpless) 5. School: Restatement 2d Section 320 6. Landlords 7. Custody: e. g. Parents: Restatement 2d Section 320 (must be under legal obligation or have voluntarily taken custody) • Duty to third persons based on certain relationships with the person causing the injury Restatement 2d Section 315, R 3d § 41 1. Parents 2. Employers 3. Custodians: Those in charge of persons who they know have dangerous propensities (jailers, teachers, parents, employers) Restatement 2d Section 319 4. Mental health professionals and patients, Tarasoff 3. Other Information • Tarasoff Interpretations – The Tarasoff case can be read in three ways: 1) reasonable care case, they should have exercised ordinary care to the victim – extension of Rowland v.

Christian; 2) professional malpractice case; 3) special relationship case – see above; 4) statutory requirement. • Tarasoff Rule – 1) Therapist has professional standards; 2) the patient presents a threat of violence; 3) to a foreseeable victim; 4) duty to warn. This may apply to other professions as well (i. e. doctors). • Jurisdiction Differences – certain jurisdictions have rules that make it a misdemeanor for not rendering assistance or calling for aid when you are in a position to do so. 20. Landowner and Possessor Liability – Duties 1. Rule • Invitee (Public or Business): Restatement 2d Section 343 – Induced to come on land. Inspect, Warn, and/or Protect.

You must warn and protect the actor from any risk from any artificial AND natural conditions on the land that the defendant knows or should know that it could foreseeably cause harm and the invitee would come in contact with it. The common law relationship to this is ordinary care (P x G vs. B). • Licensee (On the land with the possessor’s consent): Restatement 2d Section 342 – The defendant must warn or protect from any risk from any artificial AND natural conditions if possessor knows or has reason to know of danger. The common law relationship to this is that no greater burden is placed on the licensee than the possessor would impose on him/herself. This includes social guests. Trespasser (No consent): Restatement 2d Section 333 – No duty to trespassers. Must have no intentional injury if criminal purposes, no willful or wanton conduct. If non-criminal, then you have to duty to protect from intentional and reckless injury. The common law relationship is that the burden is too great in all cases except intentional injury.

1. Exceptions to Trespasser No Duty Rule • Frequent or Constant Trespasser on a Limited Area: Restatement 2d Section 335 – Warn of serious known damages (death or serious bodily harm) caused by creation or maintenance of artificial condition on land. The common law relationship is that these trespassers are highly foreseeable. Discovered Trespassers: Restatement 2d Section 337 – Warn if serious known danger (death or serious bodily harm)caused by artificial condition maintained on land. The common law relationship is that this particular trespasser is highly foreseeable and may be affected by the condition on the land. • Children (Attractive Nuisance): Restatement 2d Section 339 – Duty to eliminate the danger or protect children known to trespass from dangerous artificial conditions on land that the possessor knows or had reason to know the condition existed on the land and had reason to know the children will be there. This duty is right below licensee. The common law relationship is that children are foreseeable to engage in trespassing activities and they are less able to protect themselves. 2. Prima Facie Cases Determine status of person (invitee, licensee, or trespasser) • Is the danger foreseeable? • Is the danger obvious? (If so, you can rely on others to take care of themselves and not have to warn them) • What did the trespasser know 3. Related Cases 4. Other Information • Jurisdiction Differences – There is a split in the courts as to whether or not to have distinctions between the different types of statuses. 27 jurisdictions still have all three distinctions; 13 jurisdictions have a distinction between trespassers and everyone else only; 10 jurisdictions have no distinctions at all between those who come on a person’s property (in this case, P x G vs. B). • Rowland v.

Christian – Balance of key factors when no distinctions are present: 1) foreseeability of harm to a plaintiff; 2) degree of certainty that the plaintiff suffered injury; 3) the closeness of the connection between the defendant’s conduct and the injury suffered; 4) the moral blame attached to the defendant’s conduct; 5) the policy of preventing future harm; 6) the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach; 7) and the availability, cost, and prevalence of insurance for the risk involved. CAUSATION • Must remember that causation is a piece of all other torts.

Need to show causation as it applies to negligence, products liability, and to a lesser extent intentional torts. So this isn’t a separate topic. Here we’re focusing on the "C” in DBCD!! • Actual Cause and Proximate Cause are questions for the jury. They are matters of fact. (Legal)(Proximate) Cause Cause-in-fact Proximate Cause Actual Cause – Chapter 2 R. 3d Policy Issue – Scope of Liability Factual Cause – R. 3d Tortious ConductUnlawful Intent CauseDuty/Breach Damage 21. Actual Causation A History of Causation in the Law of Tort: (Start with but for rule, and everything under #2 are exceptions to the rule. ) 1. Single Defendants: P v. D = but for 2. Multiple defendants: P v. D1 and P v.

D2 = apportion damages [each D = but for] (Revlon – battery given from one defendant, emotional distress given from other). Think two separate single defendant claims. 3. Joint Tortfeasors = P v. D1 and D2 (if tortious acts combine to cause harm) [R[R. 3d § 26: A factual cause] acting in concert or multiple tortious acts At this point in time we are now shifting the burden of difference to the defenant 4. Substantial Factor = P v. D1 and D2 (Kingston) (if one tortious and either alone was sufficient to cause all the harm) [R[R. 3d § 27]. Alternative Causation = P v. D1 and D2 (Summers) (if all acted tortiously and fewer than all caused the harm) [R[R. 3d § 28 (b)]. Actual Causation – Single Defendants 1. Overview Actual Cause is also known as cause in fact or factual cause. This refers to the physics of the occurrences. • Defendants must show an alternative theory of what caused the event as opposed to their conduct. 2. Rule (in supplement) • FACTUAL CAUSE – Restatement 3d § 26: Tortious conduct must be factual cause of physical harm for liability to be imposed. Conduct is factual cause of harm when the harm would not have occurred absent the conduct. Tortious conduct may also be a factual cause of harm under § 27.

3. Prima Facie Case Single causes or defendants: If harm would not have occurred absent the D’s conduct. (R. 3d § 26) • 1) “But for” test (sine qua non = without which it is not). But for the defendant acting at all, would the plaintiff nevertheless have suffered the same harm? ” If “no,” then actual cause is established (Hoyt); if “yes,” then other cause(s) are responsible and actual cause not established against this defendant (Smith, Dillion). • 2) Wrongful Death more probably than not caused death; OR lost chance of survival more probably than not; OR lost chance of a % chance of survival. More probably than not means 51% or more. If you accelerate someone’s death, it qualifies for wrongful death. 4. Other Information • General Causation – in general it is feasible that something caused something else. This is not enough; P cannot simply prove it could have happened. Specific Causation – refers to what a plaintiff must prove. Plaintiff must prove that a specific conduct done by D created a specific result. P does this by looking at all possible alternative theories and eliminating them either directly or via other evidence. If the plaintiff were to suffer the same harm, then we have no specific causation. • Probabilities – probabilities are not enough to prove specific causation. This will not get you past a directed verdict and to a jury. • Circumstantial Evidence – other evidence such as testimony, past history, information surrounding the event, etc used to illustrate an event could have occurred as stated without any direct evidence. Can be used in court. Direct Evidence – observation or other direct proof of the evident occurring.

• “But For” Serious Injury vs. Death – tricky concept. If the jury finds that yes P would have suffered serious injury as opposed to die or live longer, then D would have caused the damage with their breach of duty. In that case D would have to pay P for his expected life. Causation also applies to apportionment of damages. If P would have lived to 70 but after losing his balance he lives to 45, then they have to pay for the difference between the two. D here would only pay for the damage it has actually caused. THIS IS A JURY QUESTION. They decide what was caused and how much to pay. Loss of Chance Approach – MINORITY RULE. This regards the loss of probability. What we’re focusing on is the loss of chance. Here P can not recover then entire sum of wrongful death, instead the plaintiff can only recover the proportion of their survival that they lost by the misdiagnosis. (Did it hasten or aggravate an existing condition? ) The damages will be proportional to the actual damages you have suffered. Therefore if P lost a 30% chance of survival that is what you pay for. Why create this rule? Because it is unfair to hold D guilty for all the damages of her death since she would have probably died anyway. However, if you eliminate all liability, it is unfair to P.

In addition, there will be zero deterrence of other doctors to ensure that they perform the appropriate diagnosis. When you are already discussing damages that means that you have already illustrated a duty and a breach of that duty. It is also efficient, because we are only passing on the costs of what exactly the doctor was at fault for. So the right people pay the right amount. The MAJORITY RULE is the traditional “but for” and “more probably than not” test. 5. Related Cases • Hoyt –saw mill causing fire at Garvey house. Used cir. evidence to show how: wind, previous fire, D’s knowledge • Smith – bus accident on Main St. P had a bus schedule and stated it was prob that co. P did not eliminate other causes. Ford – Admiralty case involving man who went overboard, but no one saw or heard him go over. P proved that D was liable based on general causation but could not make the link between D’s breach of duty and the specific harm suffered. • Lyons – parking lot case; D is speeding and hits decedent. Expert stated that even if D followed the speed limit, there still would have been a fatal accident. So negligence per se did not result in specific causation. • Dillon – boy dies by falling off of bridge and onto charged wires owned by D. Key concepts. If boy would have died by the fall anyway, then no harm by D’s negligence. Then court discusses difference in life between dying on wires and dying moments later. Should D pay for that?

Also court discusses pain and suffering regarding the difference of both deaths. • Cahoon – D misdiagnosed cancer patient, and did not find cancer. Experts state if D found cancer during initial visit, decedent would still only have a 30% chance of survival. D’s negligence was not specific causation because would’ve happened anyway. Court applied the loss of chance approach. 2. Actual Causation – Joint and Several Liability 1. Overview • Reject the “but for” rule and apply a different standard for joint and several liability. • P knows at least several of the parties involved. • Here the plaintiff can sue all defendants or just one of the defendants to get their full recovery. They have this option.

At which point, the plaintiff can get the full recovery from one or all, but they can only get one recovery. • After this, there can be a separate contribution case in which one defendant tries to get the other defendant to pay their fair share because their negligent acts also caused the act. • The acts do not have to be equal. If they acted tortiously and they all combined to cause the damage, then they’re all responsible. 2. Rule • FACTUAL CAUSE – Restatement 3d § 26 applies here as well. 3. Prima Facie Case Joint and Several Liability p. 127 • 1) Defendant acted in concert to cause harm = agreement to cause harm by tortious conduct. (Katko p. 0) • 2) Defendants acted independently but caused indivisible harm = two or more tortious acts combined to cause the harm. (Fisher, p. 30; Leichtman p. 32 (employee and employer); RKO, p. 166) 4. Other Information • But for vs. Joint Tortfeasors – In but for, D just has to show that result would have happened anyway, which is easy because there was another tortious act. In joint tortfeasors, P just has to show that one of the defendants acted tortiously and should be liable. That’s it, D can then go after the other defendants. 5. Related Cases • Katko – couple who set up the shotgun trap. They acted together to cause the harm. • Fisher – black man in the restaurant who would not be served by the manager. Manager and business both liable. Leichtman – Radio station mgr who blew smoke on the employee who asked it not to happen. Manager and radio station. 3. Actual Causation – Joint and Several Liability (Substantial Factor) 1. Overview

• Same as joint and several liability. Under this concept, you can go after only one D if they alone could have caused the harm. • P probably only knows one of the tortfeasors involved although more were probably involved. 2. Rule • Multiple Sufficient Causes – Restatement 3d § 27: If multiple Acts exist, each of which alone would have been a factual cause under §26 of the physical harm at the same time, each act is regarded as a factual cause of the harm. 3. Apportionment of Liability Rules Effect of Joint and Several Liability – Restatement 3d § 10: When under applicable law, some persons are jointly and severally liable to an injured person, the injured person may sue for and recover the full amount of recoverable damages from any jointly and severally liable person. • Intentional Tortfeasors – Restatement 3d § 12: Each person who commits a tort that requires intent is jointly and severally liable for any indivisible injury legally caused by the tortious conduct. • Persons Acting in Concert – Restatement 3d § 15: When persons are liable because they acted in concert, all persons are jointly and severally liable for the share of comparative responsibility assigned to each person engaged in concerted activity. 4. Prima Facie Case • P v. D1 and D2 (Kingston) o If one tortious conduct alone was sufficient to cause all the harm 5. Other Information Tortious and Innocent Conduct Liable – If you have an innocent act and a tortious act and the tortious act alone would have been responsible and done the same amount of harm, then the tortious actor is responsible. • Tortious and Innocent Conduct Not Liable – If you have an innocent act and a tortious act but the tortious act was not sufficient to cause the damage done, then the tortious actor is not liable for the damage. 6. Related Cases • Kingston – 2 fires were created and burned down P’s property. It was known the RR Co. (D) started one of the fires, but the other is unknown. Under “but for” rule D would not have been liable because they can state that the other fire would have done the damage anyway (no specific causation). This is unfair so court applied joint tortfeasors rule.

P showed that D’s fire would still have caused damage anyway on its own, and D was tortious in starting that fire. D is liable. 4. Actual Causation – Joint and Several Liability (Alternative Causation) 1. Overview • Same as joint and several liability in where P brings all the D’s to court or only one. • In Alternative Causation though, P has no idea who amongst the defendants actually caused the harm. So, P sues them all. • This rule is based on Summers v. Tice. 2. Rule • Burden of Proof – Restatement 3d § 28 o (a) Subject to Subsection (b), the plaintiff has the burden to prove that the defendants’ tortious conduct was a factual cause of the plaintiff’s physical harm. (b) When the plaintiff sues all of multiple actors and proves that each engaged in tortious conduct that exposed the plaintiff to a risk of physical harm and that the tortious conduct of one or more of them caused the plaintiff’s harm but the plaintiff cannot reasonably be expected to prove which actor caused the harm, the burden of proof, including both production and persuasion, on factual causation is shifted to the defendants. 3. Prima Facie Case • P v. D1 and D2 (Summers) o If all acted tortiously and fewer than all caused the harm. 4. Other Information • § 28(b) Explained – Burden of production means who has the responsibility to bring forward the evidence needed. Usually burden of persuasion and burden of production refer to the same party.

The burden of proof to show that there was tortious conduct is still on P to prove. The only burden of proof that shifts to D is the causation. They have to prove what exactly they did or did not cause after P shows that there was tortious conduct involved in causing the damage. • Policy – Don’t want defendants to get off free because P can’t prove who did what. You still want to deter tortious conduct. • Consequential Control vs. Shared Control – having control one after another is consequential control, all at once is shared. • Market Share Liability Theory – only applied to DES cases. Many manufacturers of the same product that caused harm.

P could not tell which caused the harm, so courts allowed P to sue all and they paid relevant to their market share at the time. 5. Related Cases • Summers – P and both defendants are hunting quail. D knows safety and where P is standing. Quail flushed and D fire at P. • Ybarra – P has appendectomy, but ends up with injury to shoulder. No expert witness necessary because remote body part. Practitioner, surgeon, and three hospital employees in room. Now, P came on res ipsa claim. D agrees to duty and breach but not cause and damage. Don’t know who caused it, and under res ipsa, P can’t prove that D had exclusive control. The judge says that is unfair to P since he was unconscious. So P sues all of them because the tortious act happened somewhere among them.

They all shared control, they all shared instrumentalities, and if he can show the negligence, then the burden of proof shifts to D to prove that they didn’t do anything or show that someone else did it. 22. Proximate Cause 1. Distinguish: Actual Causation (“but for”) Ford, Lyons, Cahoon, from Proximate Causation (legal cause or responsible cause) Marshall, Watson, Gorris, Wagon Mound 2. Definition: policy considerations that limit a defendant’s liability to a person or for a consequence of a tortious act or omission. When does D stop being responsible for consequences of D’s tortious act? 3. Legal Standards: Foreseeable Consequences: Marshall p. 273 a. Foreseeable Consequences = Majority [c[confine liability to consequences that were generally foreseeable in the first place, i. e. at the time of the tortious conduct]. d Section 29 “physical harms that result from the risks that made the actor’s conduct tortious i. Parallel’s P x G in the duty analysis

ii. Requires foresight b. Direct Result = Minority [c[confine liability to consequences that are not remote in time or place, i. e. which follow in a direct unbroken sequence or chain of events traceable to the tortious act]Does foreseeability need supplementation? R3d Section 30 & Marshall resumed journey hypo. i. Parallels but for analysis ii. Requires hindsight 4. Intervening Cause: Watson, p. 277 [b[based on foreseeability of the intervening act or acts]Restatement 3d Section 34,35 1. Foreseeable Consequences 1. Rule Limitations on Liability for Tortious Conduct – Restatement 3d § 29: An actor’s liability is limited to those physical harms that result from the risks that made the actor’s conduct tortious. 2. Other Information • Direct Result – minority rule. Confine liability to consequences that are not remote in time or place, i. e. which follow in a direct unbroken sequence or chain of events traceable to the tortious act • Special Note on Proximate Cause – The phrase legal cause used to encompass both factual and proximate cause. Proximate cause actually refers to “Scope of Liability”. Tort law does not impose liability on an actor for all harm factually caused by the actor’s tortious conduct.

Factual cause is separate from scope of liability. • Clean Up Risks – This makes the original tortfeasors liable for all the conduct involved in getting the injured party back to normal. This is also known as back to normal risks. • Foreseeability of Risk vs. Foreseeable Consequences – foreseeable risks is P x G. This refers to the duty that is owed to other. This is a question of law. Foreseeable consequences refer to causation (proximate cause). This is a question of fact. • Intentional Acts – defendants are not liable for intentional acts of other parties, unless they had a duty to prevent the intentional act. Why? Because these acts are unforeseeable.

D can’t expect someone to do something intentionally tortious. • Intervening Acts – If the intervening act is foreseeable, it is not a superseding act, and the original tortfeasor is still liable. • Process – Start with actual causation. If you have multiple tortfeasors, you may need to apply other tests like substantial factor to see who in fact is liable. After that, you will still have a proximate cause question. 3. Related Cases • Marshall – Truck driver (D) crosses center line (duty and breach – neg. per se) on hill and pushes third party’s car off the road. Truck driver tries to help get car back on road; P runs up hill to warn other cars of stopped truck.

P is struck by another car driven by Marshall (D). Actual cause – but for negligent driving, P wouldn’t be on hill. Proximate cause – P was part of clean up risks. Original risks as well as clean up risks are foreseeable consequences. Marshall not liable, but driver is. • Watson – RR Co. (D) had a leak in one of its tank cars. Leak caused standing puddles of gasoline. Duerr throws match into gasoline puddle, causing an explosion and hurting P. P sues RR and others. D argues that Duerr’s act is a superseding intervening act. Court orders to see if Duerr acted intentional. If not, intervening acts that are foreseeable still make D liable 2. Intervening Causes 1. Rule Intervening Acts and Superseding Causes – Restatement 3d § 34: When a force of nature or an independent act is also a factual cause of physical harm, an actor’s liability is limited to those harms that result from the risks that made the actor’s conduct tortious. 2. Related Cases • Watson – discussed above 3. Proximate Cause for Intentional Tortfeasors 1. Rule • Scope of Liability for Intentional and Reckless Tortfeasors – Restatement 3d § 33: o (a) Actor who intentionally causes physical harm is subject to liability for that harm even if it was unlikely to occur o (b) Discusses the factors to be considered in determining exactly what the tortfeasor is liable for. This is greater if he acts intentionally as opposed to negligently. (c) Notwithstanding Subsections (a) and (b), an actor who intentionally or recklessly causes physical harm is not subject to liability for harm the risk of which was not increased by the actor’s intentional or reckless conduct.

2. Related Cases • Gorris – P alleges D violated a criminal safety statute by not guarding P’s sheep and keeping them in appropriate cages and therefore losing them overseas. The criminal safety statute was made to prevent the foreseen consequence of disease entering the country not to keep from losing the animals. D’s violation of the criminal safety statute was therefore unable to support a negligence claim, because he didn’t breach a duty as stated in the statute. 4. Foreseeability of Rescuers 1. Rule Rescuers – Restatement 3d § 32: Notwithstanding § 29 or § 34, if an actor’s tortious conduct imperils another or the property of another, the scope of the actor’s liability includes any physical harm to a person resulting from that person’s efforts to aid or protect the imperiled person or property, so long as the harm arises from a risk that inheres in the effort to provide aid. 2. Other Information • Wagoner v. International Railway – this case stated that rescuers are foreseeable. The need to have people rescue others in an accident is a foreseeable danger involved. This is a direct duty. They are foreseeable plaintiffs. Therefore rescuers can sue for injuries suffered during rescue. part test: o 1) It does not matter if you were wrong in your duty to rescue; you just have to have a reasonable belief that there was a need to rescue. (objective person in subjective circumstances) o 2) Did the rescuer carry the rescue in a reasonable manner? • Firefighters Rule – This bars recovery by professional rescuers for injuries incurred in the course of their duties. They have already been compensated ahead of time for the risks inherent in their work. 3. Related Cases • Solomon – Father went to help son being arrested. He had no idea it was a lawful arrest because officers were plain clothed and were not wearing badges. Father tries to get men off son.

There was no duty to rescue here, but there is still a question of whether or not the father thought it was necessary. If so, then P was attempting a reasonable rescue. 5. Foreseeable Plaintiffs 1. Rule • New Negligence rule: o Duty (law) – foreseeability of plaintiff, foreseeable risk (P x G) o Breach (fact) – break statute, custom, duty, etc. o Cause (fact) – Factual Cause: But for (single Ds); Joint Tortfeasors (multiple Ds) o Cause (fact) – Proximate Cause (Scope of Liability): Foreseeable Consequences (maj. ) or Direct Result (min. ) o Damages (fact) – Eggshell Plaintiff Rule (tortious actor liable for unforeseen harm) 2. Other Information Orbit of Danger – this is the foreseeable plaintiff doctrine. This lists who is owed a duty at that time the action occurred. However, this is not set. It is looked at case by case. • Foreseeability Multiple Tortfeasors – Foreseeability does the job that comparative negligence will do in the future. If there are other tortfeasors, then we don’t need to apply foreseeability because there are other tortfeasors who can share the liability. • Foreseeability Single Tortfeasor – If there is only one tortfeasor, then you need to stick to foreseeability because they are taking the complete damage, and it can be injustice if we make the one tortfeasor pay for everything. 3. Related Cases Polemis – Plank drops into hold of ship and spark causes fire that destroys ship. This is a direct result case. It was a fairly immediate result. Direct result means liability. It risked immediate harm to the ship, cargo, and people. But the fire was not foreseeable. If you applied foreseeability this would not make them liable; yet direct result made them liable. Foreseeability is only relevant to the negligence. Once there is negligence, D pays for all the damage caused as long as it’s direct. Minority • Wagon Mound 1 – ship is being filled with oil, but it’s seeping out of ship at a slower pace. Duty not to let oil out, but this is breached. It is noticed later that oil is leaking. Oil goes all around the wharf.

Welding and other activities are stopped. However, after some time and some information from an “expert” welding resumed. Fire started destroying ships and the wharf. Wharf owner brought suit. Eliminate the “direct” Polemis case, and saying direct is no longer valid. Foreseeability result is now the new rule. An actor cannot be liable for all damages unless they are foreseeable. It was unlikely that furnace oil would ignite. Which means, it was even more unlikely that the wharf would go up. Majority • Wagon Mound 2 – Boat owners get to recover. How so? Isn’t it the same facts? The fire had a degree of foreseeability to a chief engineer. Subjective foreseeability.

Therefore it was more foreseeable that the ship would light on fire and the entire wharf. They recovered relief. If the judges don’t like the gut feeling justice of it, they change the rule or apply different law. • Kinsman – Grain elevator company was negligent in inspecting and installing a deadman because it came out of the ground and broke away with the boat tied to it. Capt of ship does not drop anchors due to panic. Boat knocks 2 other freighters loose. Bridge personnel not in place to lower bridge, and a huge accident occurs at the bridge forming a dam. Businesses along with water are flooded. Bridge is destroyed. Court uses the minority direct/indirect result test.

The majority will allow the damages of the flood because it was a direct result of the negligence. These businesses and properties were already threatened with the same general risk of the river, and this is just a different way of realizing that harm. Therefore, it was direct result. Dissent wanted foreseeability, and they stated the damage to property around the river was not foreseeable. • Palsgraf – Man jumps train; package of fireworks falls and explodes; shock causes scales at other platform to hit P. Once you have a duty and a breach to someone, you have to see how far down the line you can send the proximate cause to other plaintiffs. In applying the Learned Hand Balance, you can see there is a breach of duty.

But to who was that duty owed to? Was it owed to P? The foreseeability of the plaintiff is the majority rule that comes from the case. The range of apprehension – the orbit of the danger. Was she harmed because of a breach of duty to someone else? If so, then she was not in the initial orbit of danger. The orbit of danger here was around the person getting on, not P at the other end. NEGLIGENCE – SPECIAL RULES • These are kind of derivative claims. First you need to find the negligence (DBCD), and then you can sue for all the stuff that happened outside of the actual harm suffered by the plaintiff. 23. Non-liability for Foreseeable Consequences Just as foreseeability based proximate cause serves to limit a defendant’s liability for harms that were actually caused by the defendant, courts have identified a number of situations where foreseeability itself may be too expansive a test for the limits of liability. 1. Bystander Emotional Harm 1. Rule • (a) Impact Rule – No recovery for emotional distress damages alone in the absence of physical impact caused by the negligent acting defendant [e[e. g. Mitchell, p. 294] (b) Zone of Danger Rule – No recovery for emotional distress damages in the absence of plaintiff being within the zone of danger of physical impact. [e[e. g. Waube p. 294]referred rule by Prof. Martyn. • (c) Foreseeability – [e[e. g. Dillon p. 298]ajority Rule in some form or another. This is a flexible standard, but can lead to uncertainty in the law.

Recovery allowed on a case-by-case basis depending on: o Whether P was located at the scene o Whether P observed the accident o Whether P and victim were closely related • (d) Limited Foreseeability – [e[e. g. Thing, p. 301]inority Rule In the absence of physical injury or impact recovery allowed if: o P is closely related to victim injured by D’s negligence o P is present at the scene of the injury and is aware that it is causing injury to the victim o P suffers severe emotional distress beyond that which would be anticipated in a disinterested witness. 2. Prima Facie Case • Prove negligence happened to victim. Then you can apply derivative claims. 3. Related Cases Mitchell – Impact Rule case. Woman scared by horses charging her and has miscarriage. Court ruled impact was needed. • Thing – P’s son is involved in accident she did not witness. When P ran over, she saw her son lying bloody and unconscious. P sued for emotional harm. Court does not accept the flexible rule of Dillon, and instead adopts a more stringent rule. The flexibility of the law leads to uncertainty, which causes trouble for the courts since it is more difficult to come to some kind of general finding, and it opens up for tons of new plaintiffs and defendants leading to more cases regarding NIED. 2. Negligent Infliction of Emotional Distress (NIED) 1.

Rule • Negligent Infliction of Emotional Distress to Non-Bystanders o (a) Distinguish: Direct victims (those to whom a duty was created to P due to a pre-existing relationship) and bystanders (those whose claim is derivative) o (b) Direct Duties include contractual relationships, e. g. Burgess, p. 309, Johnson, p. 313 and duties voluntary assumed absent contract, e. g. , Molien, p. 310 o (c) Bystanders include those who witness injury to another, e. g. , Thing, Ochoa, p. 311, Doe, p. 314. 2. Prima Facie Case • DBCD – This is actually a direct duty. So this is different from bystander harm. 3. Related Cases Burgess – P goes in for childbirth; cesarean section is needed; doctor informs P there were complications with the birth and child suffered sever injuries; P suffers emotional distress because of it. Doctor (D) wanted the Court to use the Thing rule and make P a bystander. Court disagreed and held that a direct duty was owed to both the mother and child. • Molien – Here, a woman (P) was misdiagnosed with syphilis, and the doctor instructs P to tell her husband that he should get tested. This represents a direct duty because there was an undertaking by the doctor to warn the husband. He had begun to render services, and therefore a duty has been created.

Therefore, any negligent action which causes emotional distress is a breach of duty to both parties, and therefore both can sue. 3. Injury to Personal Relationships (Loss of Consortium) 1. Rule • Loss of Consortium: o Distinguish – Harm to a significant personal relationship [L[Loss of Consortium]rom harm caused by observing an injury [B[Bystander liability]r from the actual harm itself to a significant other. o Loss of Consortium generally recognized for spouses, not for other relationships. Must be pleaded as a separate cause of action for the non-injured spouse. 2. Prima Facie Case • Must prove harm via negligence first and then can be plead with bystander liability as a derivative claim. • A spouse can sue for losing a spouse or for losing a personal relationship.

This is widely recognized, but Martyn disapproves. 24. Prenatal Harm • These issues below all involve negligent actions that adversely affect children prior to birth. As is true with the other rules above, they all involve situations in which courts fear that a foreseeability-based definition of the scope of liability may sweep too broadly. 1. Wrongful Death 1. Rule • Wrongful Death: Should a fetus injured in utero be entitled to compensation? [p[p. 325-27] (a) Wrongful Death statutory language governs: When is a fetus a “person? ” e. g. Werling, p. 322 o (b) All courts agree that if fetus is born alive, cause of action for prenatal injury is stated. (c) Most agree that if the fetus is viable when injured, a cause of action is stated, whether the fetus is born alive. 2. Wrongful Birth 1. Rule • Wrongful Birth: Should parents of a child have a cause of action against a defendant whose negligence cause or failed to prevent the pregnancy? o (a) Costs of the pregnancy usually are recoverable, p. 329 o (b) Costs of raising the child generally are not recoverable, unless the negligence of the defendant failed to prevent birth of a child with foreseeable disabilities, p. 329-31 o (c) This usually applies to sterility operations such as vasectomies, and it applies to genetic counseling. This refers to people who want to see if there is a problem with their child regarding genetic issues.

The doctor negligently diagnoses the genetic deficiency, and a child is born with a horrible defect. They can sue to try and recover. 3. Wrongful Life 1. Rule • Wrongful Life: Should a child born alive have a cause of action for prenatal or preconception injuries? p. 331-32 o Yes, if injured, Renslow, p. 331 o Generally, no if the “harm” is being born. o Most recent cases do allow a cause of action for children with severe birth defects for pain and suffering to be endured during a limited life span, e. g. , Turpin. p. 332, and for living expenses caused by the disability that will be incurred after the child reaches majority. 25. Economic Harm • Most often economic harm is based on promise.

This is found usually in Contracts as opposed to Torts. Torts looks at mostly physical injury and damage to property. • Courts look at the economic harm and state that the parties should have been in contract to recover for any losses that occurred between the parties. If not, then they lose. • Torts do have a small section of economic harm that it focuses on. • These issues concern those where there is no contract, and someone’s negligence affects other parties. 1. Rule • The general rule is that parties cannot recover. • If there is accompanying physical harm or intentional harm, then you can add the financial loss to it. 2. Other Information • Why the rule? Two reasons: 1) Administrative: If you allow parties to begin to recover for financial losses, where do you draw the line before a large number of plaintiffs begin to raise claims? o 2) Disproportionality: Refers to the extreme costs that the party causing the injury could be made to paid and the affect it would have on the insurance carriers. • Types of Claims – Defamation, injurious falsehood, and loss of consortium are all recognized torts on their own, and they have their limits and purposes. There are a few more exceptions, but these are the ONLY exceptions. These typically stand on other recognized Torts, and the financial harm is just added on to the rest of the charges in the complaint. • Union Oil v.

Oppen – There is a totally undeterred defendant without having environmental agencies coming for the defendant. So the Court instituted the limited foreseeability rule for economic harm. No one else could bring suit to them, so they allowed the fishermen to sue. They were directly affected by the spill, and they lost their livelihood for some time. They are really the only conceivable plaintiffs who were not too remote. 3. Related Cases • Barber Lines – P’s boat could not dock in designated pier because of oil. P suffered extra financial costs and sued to recover. Controlling law denies that a plaintiff can recover damages for negligently caused financial harm, even when foreseeable, except in special circumstances.

NEGLIGENCE – AFFIRMATIVE DEFENSES • Comparative responsibility applies to all of negligence and to intentional torts as well. It also applies to physical injury and to property. • Apportionment of Liability is the new law that looks at comparative fault and how to implement it in the courts today. 26. Contributory Negligence 1. Rule • Restatement 2d 463: Conduct on the part of the P which falls below the standard to which he should conform for his own protection, which is a legally contributing cause co-operating with the negligence of D in bringing about the P’s harm. Total bar to P’s recovery. E. g. , Brown, p. 148, Butterfield, p. 353. 2. Prima Facie Case Did plaintiff use ordinary car in his actions? o Yes, then D is liable. o No, then it is a complete bar for recovery. 3. Related Cases • Butterfield – Rider (P) is riding pretty hard down highway. D has pole across part of highway while engaging in repairs. P hits pole suffers harm. Court found that he had a want of ordinary care in his actions, and therefore barred all recovery. 27. Last Chance Rule 1. Rule • Restatement 2d 479, 480: Created to mitigate the harsh all or nothing result of contributory negligence doctrine. If applicable, allows P to recover in full. Davies, p. 353. The defendant was the last to act, and he had the last opportunity to avoid the accident completely.

However, if his negligence precludes him from doing that, he is still liable. 2. Prima Facie Case • Look at who was last to act: o If D, then did his negligence preclude him from avoiding harm? If yes, can recover in full. o If P, then his negligence will prevent him to recover. 3. Related Cases • Davies – D had his donkey tied by a public highway. Its body was still sticking out. P came down at a “smartish” pace and hit the donkey killing it. P sued for donkey’s death. P is entitled to recover because D had chance to avoid accident if not for negligence 28. Comparative Negligence (Modern Rule) 1. Rule • Comparative Fault (by statute or common law), p. 360-364.

P’s recovery is a function of the percentage of the total fault of all the parties to the claim, taking into account the nature of the conduct of each party at fault and the extent of the causal relation between the conduct and the damages claimed. E. g. , Uniform Comparative Fault Act, p. 366. Generally, abolishes last clear chance and secondary implied assumption of risk. R3d Sec. 3 o Majority: Modified Comparative Fault: P can recover so long as P’s share of causally related negligent conduct is less than D’s. If P’s share is greater than (or equal to, depending on jurisdiction) D’s fault, then P cannot recover. o Minority: Pure Comparative Fault: P’s recovery is reduced by P’s share of fault that causes harm, but never eliminated until D is no longer at fault. 2. Apportionment of Liability Rules Issues and Causes of Action Addressed by This Restatement – Restatement 3d § 1: This restatement addresses issues of apportioning liability among two or more persons. It applies to all claims (including lawsuits and settlements) for death, personal injury (including emotional distress or consortium), or physical damage to tangible property, regardless of the basis of liability. • Proof of Plaintiff’s Negligence and Legal Causation – Restatement 3d § 4: D has the burden to prove plaintiff’s negligence, and may use any of the methods a plaintiff may use to prove defendant’s negligence. Except as otherwise provided in Topic 5, the defendant also has the burden to prove that the plaintiff’s negligence, if any, was a legal cause of the plaintiff’s damages. Effect of Plaintiff’s Negligence When Plaintiff Suffers an Indivisible Injury – Restatement § 3d 7: Plaintiff’s negligence (or the negligence of another person for whose negligence the plaintiff is responsible) that is a legal cause of an indivisible injury to the plaintiff reduces the plaintiff’s recovery in proportion to the share of responsibility the fact finder assigns to the plaintiff (or other person for whose negligence the plaintiff is responsible).

• Factors for Assigning Shares of Responsibility – Restatement 3d § 8: Factors for assigning percentages of responsibility to each person whose legal responsibility has been established include: o (a) the nature of the person’s risk-creating conduct, including any awareness of indifference with respect to the risks created by the conduct and any intent with respect to the harm created by the conduct; and o (b) the strength of the causal connection between the person’s risk-creating conduct and the harm. • Apportionment Section 10: Written above applies here as well. Effect of Several Liability – Restatement 3d § 11: When, under applicable law, a person is severally liable to an injured person for an indivisible injury, the injured person may recover only the severally liable person’s comparative-responsibility share of the injured person’s damages. Only get their fair share. 3. Prima Facie Case • Modified – look at P’s comparative responsibility. o Was it over 51%? o Yes, then bar recovery. o No, then get amount minus percentage of fault attributed to P. • Pure – look at P’s comparative responsibility: o Take number, and subtract from 100% o D pays remainder 4. Hypos | | |Modified |Pure | |P = 49% |D = 51% |The defendant will recover 51,000 |The defendant will recover $51,00 | |P = 50% |D = 50% |The defendant will recover $50,000 in most jurisdictions, but |The defendant will recover $50,000 | | | |it depends on the statute because some statutes state if the | | | | |fault is equal then they bar recovery. | | |P = 51% |D = 49% |The defendant will collect absolutely nothing. |The defendant will recover $49,000 | |P = 20% |D1 = 50% and uninsured |Plaintiff gets $80,000. |Plaintiff gets $80,000 | | |D2 = 15% and rich but no |Plaintiff would then recover $50,000 from D1, $15,000 from D2, |Plaintiff would then recover $50,000 from D1,| | |insurance |and $15,000 from D3. $15,000 from D2, and $15,000 from D3. | | |D3 = 15% and plenty of |* If there is several liability, then the plaintiff can | | | |insurance |collect this amount from any of the parties. Many | | | | |jurisdictions kept this along with joint and several liability | | | | |statutes. | | | | |**This is known as the aggreate theory.

The plaintiff did not | | | | |act more negligently than the aggregate amount of all the | | | | |defendants. | | | | |*** Partial aggregate theory is in place if the plaintiff shows| | | | |that one of the parties cannot pay the verdict, and at the | | | | |point the money is then thrown back to the other defendants for| | | | |them to pay. | | 29. Assumption of Risk 1. Rule • Assumption of the Risk: R 2d Sec. 96A-E: Knowing (completely understanding) and Voluntary (not coerced or of “practical necessity” to the public) agreeing to accept the risk of D’s negligent conduct. [E[Equivalent of consent defense in intentional torts]f applicable, bars P’s recovery in full. o Express A/R: express agreement by words to accept a risk. R 358B, e. g. p. 359. See also R 3d Sec. 2, Contractual limitations on liability. Also known as primary A/R. This is a question of duty. (only one that still exists) o Implied A/R: implied agreement from the conduct of the P. R 496C. Abolished by judicial decision, e. g. , Meistrich, p. 356, or comparative fault statute or decision, e. g. , Li, p. 369, R 3d Sec. 3 Majority Rule

2. Apportionment of Liability Rules Contractual Limitations on Liability – Restatement 3d § 2: When permitted by contract law, substantive law governing the claim, and applicable rules of construction, a contract between the plaintiff and another person absolving the person from liability for future harm bars the plaintiff’s recovery from that person for the harm. Unlike a plaintiff’s negligence, a valid contractual limitation on liability does not provide an occasion for the fact finder to assign a percentage of responsibility to any party or other person. (Express Assumption Risk) • Ameliorative Doctrines for Defining Plaintiff’s Negligence Abolished – Restatement 3d § 3: Plaintiff’s negligence is defined by the applicable standard for D’s negligence. Special ameliorative doctrines for defining plaintiff’s negligence are abolished. . Prima Facie Case • Look for contractual obligation that is both knowing (COMPLETE understanding) and voluntary. 4. Other Information • Restatement 2d Info: o Section 496 B R 2d is express assumption of risk o Section 496 C R 2d is implied assumption of risk – this has been abolished. o Essentially there is no A/R. This has been reduced to contract, duty, and contributory negligence questions. o The abolishment of secondary assumption of risk is the majority rule. o Section 496D is still around for express assumptions of risk as it defines knowledge. o Section 496E is still around for express assumptions of risk because it explains voluntary. Primary A/R – Primary deals with the idea that a defendant did not owe a duty to the plaintiff or that there was no breach of the existing duty. This is a duty question, P x G vs. B. This isn’t really assumption of risk though. This is duty more • Secondary or Implied A/R – Secondary implied assumption of risk is that the defendant did owe a duty, they breached the duty, but the plaintiff did not act reasonably. This deals with contributory negligence. 5. Related Cases • Meistrich – Ice skating rink not prepared properly, and P gets injured. D stated P contributed to injury and assumed the risk. However if you have express assumption of risk, then they need to tell you what the dangers of risk are.

Knowing means you know the risk, and voluntary means that you are willing do it on your own. There was no express assumption of risk here because there was no oral or express assumption of risk here. Court rejects primary (duty) and secondary (comp neg) A/R. Only contract • Knight – P sued D for injuries suffered in touch football game. The rule of the case discusses active sports, and it eliminates negligence here for the purposes of the case. It only focuses on intentional and recklessness. Court takes secondary A/R and puts it into comparative fault. Only primary survives, but court makes this a duty question. Was there a duty owed here? 30. Immunities Must know if and when it exists. 1. Rule – Government Immunity • No legal right to sue the authority that makes the law on which the right depends, absent consent of the authority. p. 371 (barred) 2. Rule – Charitable Immunity • Largely abolished. p. 372 3. Rule – Intra-Family Immunity • Spouses and Parent-Child, p. 373. Parental Immunity – Court ruled that the immunity only applies to the “exercise of parental authority, the performance of parental supervision, and the provision of parental care and custody. ” DAMAGES 31. Damages 1. Oveview I. General Categories and Concepts a. Nominal Damages – “in name only” = Intentional Torts (e. g. , Chap. 1, 10) b.

Compensatory Damages – Amount necessary to restore P to pre-injury condition c. Punitive Damages – to punish and deter socially unacceptable behavior. Zenobia, p. 598. See also, Williams v. Phillip Morris II. Compensatory Damage Rules: 1. Single Controversy Doctrine: Plaintiff is entitled to recover in a lump sum for all damages proximately caused by the tortfeasors(s), and for all damages that will occur in the future, and is barred from any subsequent adjustment. You have one chance to bring up all your claims, and if you don’t, you lose the ability to claim it. This works for damages as well. Must think of the past and the future. 2.

Eggshell P Rule: Once liable, D must pay for all harm to P caused by his wrongful conduct, even those unforeseen at the time of the conduct. Vosberg, p. 13, 258; R 3d 31 3. Avoidable Consequences Rule (mitigation of damages): party seeking damage due to the tortious conduct of another must use reasonable and proper effects to make the damage as small as possible. P. 536, 540-541. R 3d Apportionment of Liability Section 3 comment b. – Here, you have to act like a reasonably prudent person and do what is necessary to help mitigate the extent of the damages. 4. Collateral Source Rule: Once liable, D must pay for all harm caused to P even if P received some previous payment from a collateral source, such as insurance or an employer. P. 41-42, 545-47 – Even though some people recover damages from other sources, this does not prohibit the tortfeasor from having to pay. There is a need to properly deter the tortfeasor, and alleviating that because of insurance or gratuity, would not be a proper deterrence. III. Compensatory Damages Categories: a. Special Damages i. Medical and Rehab Expense: Past and Future, p. 535, 541v, 556-57 ii. Lost Work: Past and loss of future earning capacity, p. 547, 549-51; Grayson b. General Damages = Pain and suffering: Past and future, Walters, p. 570-71, 577. IV. Adjustments a. Future Damages: Discount to present value, p. 562 – done automatically in most jurisdictions regarding bringing the amount.

If you’re supposed to get a certain amount for the rest of your life, then you have to determine how much money would be needed to invest in a safe investment in order to get that 2 million. Or how much would be needed in an annuity to get that 2 million dollars. b. Inflation: Considered if expert testimony provided, p. 564-65. – Not done automatically in all jurisdictions. c. No Income Tax on compensatory damages, p. 565. – When you look at tax, you do not get charged on compensatory damages. The argument comes around what can be included in compensatory damages. V. Death: Read the Statute(s), p. 597. VI. Personal Property p. 598. 2. Rules General and Special Damages – Restatement 2d § 904: o (1) “General Damages” are compensatory damages for a harm so frequently resulting from the tort that is the basis of the action that the existence of the damages is normally to be anticipated and hence need not be alleged in order to be provided. o (2) “Special Damages” are compensatory damages for a harm other than one for which general damages are given. • Punitive Damages – Restatement 2d § 908 (Majority Rule – Implied Malice & Preponderance of the Evidence): o (1) Punitive damages are damages, other than compensatory or nominal damages, awarded against a person to punish him for his outrageous conduct and to deter him and other like him form similar conduct in the future. o (2) Punitive damages may be awarded for conduct that is outrageous, because of D’ evil motive or his reckless indifference to the rights of others. In assessing punitive amages, the trier of fact can properly consider the character of D’s act, the nature and extent of the harm to P that D caused or intended to cause and the wealth of D.

• Damages for Past, Present, and Prospective Harms – Restatement 2d § 910: One injured by the tort of another is entitled to recover damages from the other for all harm, past, present, and prospective, legally caused by the tort. • Avoidable Consequences – Restatement 2d § 918: o (1) Except as stated in Subsection (2), one injured by the tort of another is not entitled to recover damages for any harm that he could have avoided by the use of reasonable effort or expenditure after the commission of the tort. (2) One is not prevented from recovering damages for a particular harm resulting from a tort if the tortfeasor intended the harm or was aware of it and was recklessly disregardful of it, unless the injured person with knowledge of the danger of the harm intentionally or heedlessly failed to protect his own interests. • Effect of Payments Made to Injured Party – Restatement 2d § 920A: o (1) A payment made by a tortfeasor or by a person acting for him to a person whom he has injured is credited against his tort liability, as are payments made by another who is, or believes he is, subject to the same tort liability. o (2) Payments made to or benefits conferred on the injured party from other sources are not credited against the tortfeasor’s liability, although they cover all or a part of the harm for which the tortfeasor is liable. Collateral source rule. 3. Eggshell Plaintiff Rule Preexisting Conditions and Unforeseeable Physical Harm – Restatement 3d § 31: When an actor’s tortious conduct causes physical harm to a person that, because of preexisting physical or mental condition or other characteristics of the person, is of a greater magnitude or different type than might reasonably be expected, the actor is nevertheless subject to liability for all such harm to the person. 4. Wrongful Death • Survival Statute – before if P died then there was no recovery because the person isn’t suffering any more, however now statutes state that even if P or D die before the case is tried, the case can still continue and any recovery will go to the estate.

Whatever damages P is entitled to; she still gets it even if she is dead. • Wrongful death statutes – are enacted when you can prove that the tortious conduct of the defendant caused the death of the plaintiff. Wrongful death also gives you a different plaintiff. The plaintiff is now the named beneficiaries in the case of her death. • Three categories in wrongful death recovery – 1) funeral costs, 2) lost wages and services, and 3) emotional harm suffered by her loved ones. 5. Punitive Damages Constitutional Constraints • Due process requires adequate guidance from a court to enable a jury to properly enter into the correct constitutional calculus.

Criteria of reasonableness or reasonable notice to defendants include: o 1) Proportionality of the award to the harm likely to result (economic or physical harm; repeated or isolated misconduct, single digits multiples) Compare: St. Farm v. Campbell (4 to 1) with Mathias (37. 2 to 1) with Williams (97 to 1) o 2) Sanctions should be based on the wrong done, i. e. reprehensibility of the D’s conduct. o 3) Profitability of D’s conduct. o 4) Financial position of D if it enables D to make litigation costly, especially if Ps are financially vulnerable (all the costs of the litigation) o 5) Imposition of other criminal or civil sanctions, taken as mitigation. If they have already been deterred via other methods, then we do not need to further deter them and can reduce punitive damages. • In order to meet Constitutional constraints, it must meet all factors.

In the unusual case, 2 to 5 is met, but number 1 isn’t met. 6. Other Information • Subjectivity – damages are completely subjective to each case. The same set of facts will not produce the same results. • Subrogation – If an insurer pays for most of your damages, the insurance company can go after the tortfeasor to recover the money it spent on the hospital bills, etc. They are given the same rights as the victim since they are subrogating, or standing in the victim’s shoes. This can only happen if there is a contract between the health insurance and the victim. • Entitlement – a victim is entitled to all three types of damages falling under general and special damages. Past (time of injury until settlement/judgment) |Future (time of settlement/judgment until P dies, if permanent, or until | | |injury continues to cause damages) | |Medical and Rehabilitation Expense p. 535 |Medical and Rehabilitation Expense p. 541, 556-57 | |Lost Earnings p. 547 |Impairment of Earning Capacity p. 549-551; Grayson, p. 557 | |Pain and Suffering Walters, p. 566 |Pain and Suffering p. 577 | Medical Expenses – difficult to determine future medical expenses because of where medicine is now. • Probability of Future Expenses Arising (2 Different Rules by Jurisdiction): o 1) If the probability is less than 50%, then you cannot recover for that future expense. o 2) If the probability can be determined, then you can multiply that by what the cost would be to the victim and awarded to the victim. • Factors to Determine Loss of Earnings – How long you’ve been out of work? How much were you paid? How long will you be out of work? Will the injury affect your future promotion opportunities or future success? Will you not be able to work as long as you wanted to? Will the person perform at the same level? Pain and Suffering: o Pain – physical pain that the person suffers o Suffering – embarrassment, loss of future enjoyment of life • Settlements – The rules of damages apply to only those verdicts that went into trial. If you settled, then you can avoid all the rules and come to a lump sum both parties feel comfortable with. • Structured Settlement – This is another option to lump sum settlement. Defendant will buy an annuity, and pay attorney fees and other damages up front. The rest of the settlement will be paid out in an annuity. This is a contract. 7. Related Cases • Grayson – young vocalist is injured on poorly lit sidewalk, and suffers hearing damage.

Rule: you have to find out how much those careers make, and then multiply it by the probability that P would have reached that level. Artists are tough to gauge. • Walters – housewife has tumor removed, and doctor’s malpractice leads to severe complications and loss of life expectancy. Counselor makes testimonial like claim, but not big enough mistake to overturn. Learn categorical approach. Divide damages into as many categories as possible, and fill in the buckets. Also, court states will not overturn judgment if it doesn’t shock the conscience of the court. • Zenobia – P sued for damages alleged to have been caused by asbestos manufactured by D. D knew of the dangerous fibers.

This case dismissed the old standard and me made the new standard of actual malice (evil motive, ill will, intent to injure, or fraud). This case also changed the standard of evidence. It made it clear and convincing evidence (much more likely) instead of preponderance of the evidence. This applied to only nonintentional torts. Actual malice (Minority Rule) – knowing the dangers, and not doing something about it or purposely telling others not be concerned with. • Matthias – Bed bugs case. D knew they had bed bugs and tried to hide it. P was guest, and was bit several times. Supreme Court had a rule that only in unusual circumstances can punitive damages be greater than a single digit ratio compared to compensatory damages.

Also, if the punitive damages are lower, then there would be no deterrence. It is important to make sure that others learn from this. Mathias falls under the unusual case stated by the Supreme Court whether more than single digits can be allowed. STRICT LIABILITY • You can deter more defendants with strict liability than basic negligence because plaintiffs do not have to prove duty or breach. This makes the cases a lot easier to prove. 32. Worker’s Compensation 1. Overview • Worker’s Compensation: Employee v. Employer for injuries – the only activity that must be done here is employing the victim. This is a version of strict liability: o (a) Arising out of employment (but for


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