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181 Cards in this Set

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CONTRIBUTORY NEGLIGENCE, BASIC ELEMENTS
I. THE P HAS FAILED TO CONFORM TO THE STANDARD OF CARE REQUIRED FOR THE P’S OWN PROTECTION, AND

II. THE P’S FAILURE TO CONFORM TO THIS STANDARD WAS A SUBSTANTIAL FACTOR, ALONG WITH THE D’S NEGLIGENCE, GIVING RISE TO THE P’S HARM.
CONTRIBUTORY NEGLIGENCE, OTHER ASPECTS
 THE D HAS THE BURDEN OF PROVING EVERY ELEMENT OF CONTRIBUTORY NEGLIGENCE IN ORDER TO MAKE OUT AN AFFIRMATIVE DEFENSE.

 WHERE ITS ELEMENTS ARE PROVEN BY THE D, CONTRIBUTORY NEGLIGENCE COMPLETELY BARS ALL RECOVERY BY THE P, NO MATTER HOW GREAT OR SLIGHT THE P’S FAULT IS RELATIVE TO THE D’S FAULT.

 MOST CONTRIBUTORY NEGLIGENCE JURISDICTIONS DO NOT HOLD AN AUTOMOBILE DRIVER CONTRIBUTORILY NEGLIGENT FOR FAILURE TO USE A SEAT BELT.

 CONTRIBUTORY NEGLIGENCE IS NOT A DEFENSE WHERE A D’S CONDUCT AMOUNTED TO GROSS NEGLIGENCE OR “WILLFUL AND WANTON” MISCONDUCT.
RELATIONSHIP TO ASSUMPTION OF RISK
» THERE ARE AT LEAST TWO TYPES OF CONTRIBUTORY NEGLIGENCE

A. SITUATIONS WHERE THE P ACTS UNREASONABLY BY FAILING TO BECOME AWARE OF A RISK OF HARM TO HIMSELF OR HERSELF WHICH THE P SHOULD HAVE KNOWN ABOUT.

» IN THIS SITUATION (ASSUMING CAUSATION CAN BE PROVEN), THE D WILL ONLY HAVE A DEFENSE OF CONTRIBUTORY NEGLIGENCE AND NOT A DEFENSE OF ASSUMPTION OF RISK.

B. SITUATIONS WHERE THE P UNREASONABLY CHOOSES TO INCUR A KNOWN RISK.

» IN THIS SITUATION, THE D MAY RAISE A DEFENSE OF CONTRIBUTORY NEGLIGENCE OR ASSUMPTION OF RISK, OR BOTH.
Butterfield v. Forrester 1809
This is a common law case in which the P was completely barred from recovery because his own conduct did not amount to ordinary care.

MINTZ Lord Ellenborough defined contributory negligence as “One person being in fault will not dispense with another’s ordinary care for himself.”
Beems v. Chicago, Rock Island Railroad 1881
In this case, P’s conduct was not contributory negligence because “the jury could have found that after the signal had been given, and after P had gone between the cars, if their speed had been checked, he would not have been exposed to danger.” His act, therefore, was not necessarily contributory negligence
Gyerman v. United States Lines Co. 1972
A P is required to exercise only that amount of care which would be exercised by a person of ordinary prudence in the same circumstances. The burden of proving all aspects of the affirmative defense of contributory negligence, including causation, rests on the D, unless the elements of the defense may be inferred from the P’s evidence.

MINTZ The court said that you can’t expect the longshoremen to stop working. In on the job accident negligence cases, where a D employer has violated a safety statute, violation of the same safety statute by the P employee is not contributory negligence because of the greater control of the D over the workplace. Note that, workers compensation falls into the category of strict liability. There is a $1 dollar cap on recovery.
CONTRIBUTORY NEGLIGENCE AND PRIVATE NECESSITY
The court in Raimondo v. Harding 1973 held that “a person faced with an emergency and who acts, without opportunity for deliberation, to avoid an accident may not be charged with contributory negligence if he acts as a reasonable prudent person would act under the same emergency circumstances.”
LeRoy Fibre v. Chicago 1914
The rights of one man in the use of his property cannot be limited by the wrongs of another. This is claimed upon the theory that every man has a right to use his own property as he pleases without reference to the great inconvenience he may thereby impose upon others. The doctrine of contributory negligence is entirely out of place.
Derheim v. N. Fiorito Co. 1972
The conduct in question (failure to buckle up) occurs before D’s negligence, as opposed to contributory negligence which customarily is thought of in terms of conduct contributing to the accident itself. The court also held that the doctrine of avoidable consequences does not apply because “a D whose negligence proximately causes an injury to P, takes P as he finds him.”
ASSUMPTION OF RISK, MINTZ
Assumption of Risk is a Defense to Negligence and Sometimes to Strict Liability. Contributory Negligence is a defense to Negligence Only and Not Strict Liability. P should plead both in the alternative (Assumption of Risk and Contributory Negligence). Police officers and fire fighters are not able to sue for injuries sustained while saving one’s life or acting in the line of duty. They assume the risk and are ensured at the expense of the governmental employers.
ASSUMPTION OF RISK, BASIC ELEMENTS
I. P VOLUNTARILY DECIDES TO PROCEED WITH THE P’S CONDUCT IN THE FACE OF A RISK OF HARM, AND

II. THE RISK OF HARM IS KNOWN TO THE P, AND

III. THE P’S HARM IS CAUSED BY THE SAME RISK WHICH THE P WAS AWARE OF AND DECIDED TO PROCEED IN SPITE OF IT.
ASSUMPTION OF RISK, RELATIONSHIP WITH CONTRIBUTORY NEGLIGENCE
» THERE ARE AT LEAST TWO TYPES OF ASSUMPTION OF RISK

A. VOLUNTARY DECISIONS BY THE P TO INCUR A KNOWN RISK WHICH ARE UNREASONABLE.
» ASSUMING THAT THE D CAN PROVE CAUSATION, THIS DECISIONS BY THE P CAN GIVE RISE TO DEFENSES OF ASSUMPTION OF RISK AND, OR CONTRIBUTORY NEGLIGENCE.

B. VOLUNTARY DECISIONS BY THE P TO INCUR A KNOWN RISK, WHICH ARE REASONABLE.
» THIS DECISION BY THE P CAN GIVE RISE TO A DEFENSE OF ASSUMPTION OF RISK BUT NOT A DEFENSE OF CONTRIBUTORY NEGLIGENCE.
TO SUMMARIZE
» PURE CONTRIBUTORY NEGLIGENCE
P acts unreasonably without choosing to incur a known risk.
Example: Playing touch football or Running through banana peels in full speed.

» CONTRIBUTORY NEGLIGENCE AND ASSUMPTION OF RISK
P makes an unreasonable choice to incur a known risk.
Example: P enters a lion cage to feed the lions without having a reason to enter and without having been trained to do so.

» PURE ASSUMPTION OF RISK
P reasonably chooses to incur a known risk.
Example: Agreeing to have surgery when the doctor tells the patient that there is a 1 in a 1000 risk of disability.
Lamson v. American Axe & Tool Co. 1900
P appreciated the danger of the faulty hatchet racks. He perfectly understood what was likely to happen. He complained, and was notified that he could go if he would not face the chance. He stayed and took the risk. Thus, when P willingly and deliberately encounters a known risk created by D’s negligence, then P cannot recover for the harm resulting from that risk.
Obstetrics & Gynecologists v. Pepper 1985
An adhesion contract need not be unenforceable if it falls within the reasonable expectations of the weaker or “adhering” party and is not unduly oppressive. However, courts will not enforce against an adhering party a provision limiting the duties or liabilities of the stronger party absent plain and clear notification of the terms and an understanding consent.
COMPARATIVE NEGLIGENCE
“Comparative Negligence is a Response to the concern that Contributory Negligence is too harsh to P’s in Negligence Actions, where most of the P’s Harm was a Result of the D’s Negligence, rather than being the P’s Own Fault.”

BASIC PRINCIPLE
» WHERE BOTH THE P AND THE D ARE AT FAULT, AND THE CONDUCT OF BOTH OF THEM CONTRIBUTED TO THE P’S HARM, THE P’S DAMAGES ARE TO BE APPORTIONED BY THE JURY IN PROPORTION TO THE RELATIVE FAULT OF THE PARTIES.
TYPES OF COMPARATIVE NEGLIGENCE, Pure Form
» PURE FORM. P’S DAMAGES ARE APPORTIONED ACCORDING TO THE RELATIVE FAULT OF THE PARTIES, REGARDLESS OF WHETHER THE P’S NEGLIGENCE IS LESS THAN, EQUAL TO, OR GREATER THAN THE D’S NEGLIGENCE.
TYPES OF COMPARATIVE NEGLIGENCE, The 50% System
» THE 50% SYSTEM. P’S DAMAGES ARE APPORTIONED ACCORDING TO THE RELATIVE FAULT OF THE PARTIES SO LONG AS MORE OF THE P’S HARM WAS DUE TO THE D’S FAULT THAN WAS DUE TO THE P’S OWN NEGLIGENCE. IF THE P’S NEGLIGENCE IS EQUAL TO OR GREATER THAN THE D’S FAULT, THE P IS BARRED FROM RECOVERING ANY DAMAGE AWARD.
COMPARATIVE NEGLIGENCE, OTHER ASPECTS
I. COMPARATIVE NEGLIGENCE PRINCIPLES ARE A GROWING TREND IN TORT LAW, REPLACING CONTRIBUTORY NEGLIGENCE IN MANY JURISDICTIONS. THESE PRINCIPLES HAVE BEEN ADOPTED BY JUDGES IN SEVERAL STATES, INCLUDING FLORIDA. MORE COMMONLY, HOWEVER, COMPARATIVE NEGLIGENCE HAS BEEN CREATED NU STATUTE.

II. IN GENERAL, IN JURISDICTIONS WHICH TAKE A COMPARATIVE NEGLIGENCE APPROACH, ASSUMPTION OF RISK IS NOT A VALID DEFENSE TO THE EXTENT THAT IT OVERLAPS WITH CONTRIBUTORY NEGLIGENCE. ON THE OTHER HAND, WHERE ASSUMPTION OF RISK DOES NOT OVERLAP CONTRIBUTORY NEGLIGENCE, IT IS STILL A GOOD DEFENSE UNDER A COMPARATIVE NEGLIGENCE RULE.

III. UNDER COMPARATIVE NEGLIGENCE, DAMAGES ARE APPORTIONED ACCORDING TO THE RELATIVE FAULT OF THE PARTIES EVEN WHERE THE D WAS GROSSLY NEGLIGENT OR ACTED WILLFULLY OR WANTONLY.
Li v. Yellow Cab Co. of California 1975
California, as Florida, adopts the system of pure comparative negligence, the fundamental purpose of which shall be to assign responsibility and liability for damage in direct proportion to the amount of negligence of each of the parties, even if the P is more at fault than the D. Note that this is a minority position. The majority of comparative negligence jurisdictions use the “50% System” (Impure Form), in which the P recovers in proportion to the respective levels of negligence, but only if the P is less than 50% at fault. Otherwise, she recovers nothing.

MINTZ Mintz says that “Assumption of Risk is not a defense under comparative negligence where P makes an unreasonably choice to incur a known risk.” Where the P has made a reasonable choice to incur a known risk (where there is “pure assumption of risk”), then assumption of risk is still a valid and complete defense. Contributory negligence is no defense to an action based on Willful and Wanton misconduct by the D.
CAUSATION, INTRODUCTION
» Once the D has established that the D has engaged in some wrongful conduct, she must link that conduct to her harm. In practice, this requirement of causal linkage raises two issues: Cause in Fact and Proximate Cause. With regards to Cause in fact, the issues are Factual. With regards to Proximate Cause, the issues are not Factual but Conceptual. The materials on this chapter are organized in historical Sequence to trace the evolution of the basic doctrine.

MINTZ Causation comes up in both negligence and strict liability. Causation in Fact concerns the threshold question whether there is a basic factual link between the D’s conduct and the P’s harm. The question concerning proximate causation is whether assuming that causation has been established; is that connection direct or proximate so that the D should be liable for the P’s damages as a matter of legal policy.
CAUSATION IN FACT, TRADITIONAL APPROACH: ONE OF TWO TESTS ARE APPLIED
 “BUT FOR TEST”
BUT FOR (IF NOT FOR) THE D’S CONDUCT, WOULD THE P HAVE BEEN HARMED?

» If the answer is YES, then the D’s conduct WAS NOT the cause in fact of the P’s harm.
» If the answer is NO, then the D’s conduct WAS the cause in fact of the P’s harm.

THIS IS THE MAJORITY APPROACH AND PREVAILS IN MOST AMERICAN JURISDICTIONS.

 “SUBSTANTIAL FACTOR TEST”
WAS THE DEFENDANT’S CONDUCT A SUBSTANTIAL FACTOR GIVING RISE TO THE PLAINTIFF’S HARM?

» If the answer is YES, then the D’s conduct WAS the cause in fact of the P’s harm.
» If the answer is NO, then the D’s conduct WAS NOT the cause in fact of the P’s harm.

THIS IS THE MINORITY APPROACH.
New York Central Railroad v. Grimstad 1985
Cause in fact (“but for” causation) does not exist when a jury is “left to pure conjecture and speculation.”
Zuchowicz v. United States 1998
The court, as done very rarely, applied both the “But For” test and the “Substantial Factor Test.” The court held that “when a negative side effect is demonstrated to be the result of a drug, and the drug was wrongly prescribed in an unapproved and excessive dosage (meaning that a strong causal link has been shown), the P who is injured has generally shown enough to permit the finder of fact to conclude that the excessive dosage was a substantial factor in producing the harm.”

MINTZ Mintz does not want us to apply both tests on the exam due to time restraints. Use one or the other.
SLIP AND FALL CASES
In Reynolds v. Texas & Pacific Ry., P, a 250 pound woman, after hurrying out of a lighted waiting room, fell down the unlighted steps leading to the train station. The D argued that “she might well have made the misstep and fallen even had it been broad daylight,” but the court affirmed the judgment for P, noting: “Where the negligence of the D greatly multiplied the chances of accident to the P, and is of a character naturally leading to its occurrence, the mere possibility that it might have happened without the negligence is not sufficient to break the chain of cause and effect between the negligence and the injury. Courts, in such matters, consider the natural and ordinary course of events, and do not indulge in fanciful suppositions.”
General Electric v. Joiner 1997
The court said that “the studies were so dissimilar to the facts presented in this litigation that it was not an abuse of discretion for the court to have rejected the experts’ reliance on them.” As such, a court may conclude that there is simply “too great an analytical gap between the data and the opinion proffered.”

MINTZ Mintz does not agree with the trial court’s and the appellate court’s opinion.
Herskovits v. Group Health Cooperative 1983
The court held that the relationship between the increased risk of harm and P’s death is sufficient to hold D liable. The court said that “to decide otherwise would be a blanket release from liability for doctors and hospitals any time there was less than 50 percent chance of survival, regardless of how flagrant the negligence.”

MINTZ The traditional view is no longer the majority view. The view in this case is the majority view. Deterrence and Punishment are the purposes that this case was decided in the way that it was. This is a LOSS OF CHANCE OF SURVIVAL CASE.
LOSS OF CHANCE OF SURVIVAL CASES
» UNDER THE TRADITIONAL VIEW (NOW THE MINORITY VIEW), WHERE THE MEDICAL MALPRACTICE OF A D HEALTH CARE PROVIDER REDUCES A PATIENT’S CHANCES OF SURVIVAL, THE P IN A WRONGFUL DEATH ACTION, MUST PROVE THAT “BUT FOR” THE D’S NEGLIGENCE, THE P’S DECEDENT OR PATIENT WOULD PROBABLE HAVE HAD AT LEAST A 50% CHANCE OF SURVIVAL.

» HOWEVER, A NUMBER OF STATES HAVE TAKEN THE VIEW THAT, IN THESE CASES, THE P MUST ONLY PROVE THAT THE D’S MALRACTICE DEPRIVED THE DECEDENT OF A “SIGNIFICANT CHANCE” TO SURVIVE OR RECOVER, EVEN IF, BUT FOR THE D’S MALPRACTICE WOULD PROBABLY HAVE HAD LESS THAN A 50% CHANCE OF SURVIVAL.
Kingston v. Chicago & N.W. Railway 1927
In the law of negligence, any one of two or more joint tortfeasors or one of two or more wrongdoers whose concurring acts of negligence result in injury, are each individually responsible for the entire damage resulting from their joint or concurrent acts of negligence. The fact that one of the fires was set by the railroad company, which fire was a proximate cause of P’s damage is sufficient to affirm a judgment against the D. The fire of unknown origin is not a superseding cause that could save the defendant from liability. However, if the bigger fire was an act of god, D would not have been liable because of the superseding bigger fire.

MINTZ Tortfeasors are jointly and severally liable when there are “logically or reasonably indivisible injuries” and when there is a “reasonable basis for the fact finder to determine that amount of damages separately caused by each party.” Courts will apportion damages among multiple D’s where there is a reasonable basis how much harm was caused by each D. D’s will then be able to bring an action for contribution in which the D will “recoup” some of the damages.

» THE TYPICAL CASE OF JOINT AND SEVERAL LIABILITY ARISES WHEN IT IS CONCEDED THAT EACH OF TWO OR MORE D’S PLAYS SOME CAUSAL ROLE IN BRINGING ABOUT THE INJURY.
APPORTIONMENT OF DAMAGES
The court in Smith v. J.C. Penny Co., Inc., wanted to avoid the unfair regime in which both parties escaped liability for indivisible injuries. The court said that “there is evidence that the greatest injury to P arises out of the totality of her condition. There is testimony that she is physically and psychologically permanently disabled and unable to lead a normal life. This cannot be attributed to a burn on her foot, her head, or her body but only to her entire condition.”
Summers v. Tice 1948
In situations where P is injured as a result of D’s negligence, yet it is impossible for P to determine which D caused what injury, the D’s are jointly and severally liable for the whole injury to P as joint tortfeasors. The innocent wronged party should not be deprived of his right to redress for reasons of policy and justice. The wrongdoers should be left to work out between themselves any apportionment.

MINTZ Alternative Liability or Double Fault Liability Case (Those terms mean the same thing). The burden of proof shifts from the P onto the D’s. If D’s cannot prove that they are not liable, they are each jointly and severally liable. It is P’s choice as to whom to get the money from. Thus, where harm can be rationally logically divided between causes, the court will apportion causes. Note also that if the injuries are indivisible, the egg shell rule applies.
Skipworth v. Lead Industries Association 1997
The court here concluded that alternative liability theory is inapplicable to the matter sub judice. The court said that “first, D’s did not act simultaneously in producing the lead paint. Over the hundred year period at issue, several of the D’s entered and left the lead paint market. Second, it is uncontroverted that P’s have failed to join all entities which manufactured lead paint over the one hundred year period.” Thus, P’s failed to establish that they had a cause of action.

MINTZ Market share liability is a theory of collective liability where the P was harmed by an identical or fungible product to recover based on the market share of the D’s product. Under this theory, the P does not have to identify the particular manufacturer of the particular batch of the product that caused the harm.
ALTERNATIVE TO THE TRADITIONAL APPROACH, DOUBLE FAULT
DOUBLE FAULT; ALTERNATIVE LIABILITY

» ONLY APPLIES WHERE TWO OR MORE D’S (BUT NOT MANY MORE THAN TWO D’S) ARE NEGLIGENT. ONE AND ONLY ONE D CAUSED THE P’S HARM. IT CANNOT BE DETERMINED WHICH D CAUSED THE P’S HARM. ALL D’S ARE JOINTLY AND SEVERALLY LIABLE TO THE P.
ALTERNATIVE TO THE TRADITIONAL APPROACH, CONCERT OF ACTION
CONCERT OF ACTION

» ONLY APPLIES WHERE CO D’S PLANNED AND MUTUALLY CARRIED OUT A COMMON TORTIOUS UNDERTAKING (E.G. A DRAG RACE, A BANK ROBBERY OR A PLANNED ACT OF VANDALISM). ALL D’S ARE JOINTLY AND SEVERALLY LIABLE TO THE P.
ALTERNATIVE TO THE TRADITIONAL APPROACH, MARKET SHARE LIABILITY
» ONLY APPLIES WHERE MANY MANUFACTURERS PRODUCED AN IDENTICAL (I.E. FUNGIBLE) DEFECTIVE PRODUCT, ONLY ONE MANUFACTURER’S SPECIFIC PRODUCE CAUSED THE P HARM, AND THE MANUFACTURER OF THAT SPECIFIC PRODUCT CANNOT BE IDENTIFIED. P MUST JOIN AS D’S A “SUBSTANTIAL PERCENTAGE” OF MANUFACTURERS OF THE GENERIC PRODUCT.

» AT PRESENT, THIS DOCTRINE HAS ONLY BEEN APPLIED IN CALIFORNIA AND A HANDFUL OF OTHER STATES.
MARKET SHARE LIABILITY, Burden of Proof
» GENERALLY, THE BURDEN OF PROOF AS TO CAUSATION IN FACT SHIFTS TO THE D’S, I.E. IN MOST “MARKET SHARE” STATES, EACH D HAS THE BURDEN OF SHOWING THAT HIS OR HER PRODUCT DID NOT CAUSE P’S HARM. EACH D WHO CANNOT MEET THAT BURDEN OF PROOF IS LIABLE FOR THE PROPORTION OF THE JUDGMENT REPRESENTED BY ITS SHARE OF THE MARKET, I.E. THE PERCENTAGE WHICH THE D’S PRODUCT BEARS TO THE ENTIRE PRODUCTION OF THE DEFECTIVE PRODUCT.

» IN OTHER STATES THAT HAVE ADOPTED MARKET SHARE LIABILITY, D’S WHO ARE SHOWN TO HAVE MANUFACTURED A FUNGIBLE DEFECTIVE PRODUCT THAT HARMED THE P ARE LIABLE, TO THE EXTENT OF THEIR MARKET SHARE(S), WHETHER OR NOT THEY ARE CAPABLE OF DEMONSTRATING THAT THEIR OWN INDIVIDUAL PRODUCT DID NOT CAUSE THE P’S HARM.

» IN MOST MARKET SHARE LIABILITY STATES, RESPONSIBLE D’S ARE ONLY LIABLE TO THE EXTENT OF THEIR MARKET SHARE. THEY ARE NOT JOINTLY AND SEVERALLY LIABLE FOR ALL OF THE P’S INJURIES.
PROCEDURAL SIGNIFICANCE OF JOINT AND SEVERAL LIABILITY
» BURDEN OF PROOF AS TO CAUSATION IN FACT SHIFTS TO THE D’S. EACH D MUST PROVE:

A. HE OR SHE WAS NOT THE CAUSE OF THE P’S HARM,
OR
B. THERE IS SOME LOGICAL BASIS FOR APPORTIONING DAMAGES AS BETWEEN (OR AMONG) THE D’S.

» IF THIS BURDEN CANNOT BE MET BY D’S, THE P MAY CHOOSE TO APPORTION DAMAGES BETWEEN (OR AMONG) THE D’S IN ANY WAY THE P SEES FIT. AFTER THE P HAS BEEN COMPENSATED, D’S WHO FEEL THEY HAVE BEEN HELD RESPONSIBLE FOR A DISPROPORTIONATE SHARE OF THE P’S DAMAGES MAY BRING AN ACTION FOR CONTRIBUTION AGAINST OTHER D’S OR POTENTIAL D’S.
PROXIMATE CAUSATION, NATURE OF THE ISSUE

» ESSENTIAL QUESTION POSED
ASSUMING A D HAS BEEN NEGLIGENT AND THAT NEGLIGENT D IS THE CAUSE IN FACT OF HARM TO A P, SHOULD THE D BE HELD LEGALLY RESPONSIBLE FOR THE D’S CONDUCT AS A MATTER OF JUSTICE AND LEGAL POLICY.

» THE ISSUE IS SOMETIMES STATED IN TERMS OF THE SCOPE OF THE D’S DUTY OF CARE: DID THE D’S DUTY OF CARE EXTEND TO THE AVOIDANCE OF THE HARMFUL CONSEQUENCES?

» PROXIMATE CAUSATION IS A NECESSARY ELEMENT OF NEGLIGENCE. IT MUST BE PROVEN BY THE P IN EVERY NEGLIGENCE ACTION.
PROXIMATE CAUSATION, NATURE OF THE ISSUE & SUPERSEDING CAUSE
» PROXIMATE CAUSE CASES OFTEN INVOLVE A CHAIN OF EVENTS, SOME OF WHICH ARE INTERVENING EVENTS, I.E. EVENTS WHICH COME INTO ACTIVE OPERATION IN PRODUCING THE P’S HARM AFTER THE D HAS ACTED NEGLIGENTLY.

» THE QUESTION TO BE RESOLVED IN THESE CASES IS WHETHER ONE OR MORE INTERVENING EVENTS SHOULD BE DEEMED A SUPERSEDING CAUSE OF THE P’S HARM, I.E. A CAUSE WHICH EXONERATES THE D OF LIABILITY TOWARD THE P.
PROXIMATE CAUSATION, TEST APPLIED, Majority

MOST JURISDICTIONS APPLY ONE OF TWO GENERAL TESTS TO DECIDE PROXIMATE CAUSE ISSUES.
» DIRECTNESS TEST.

WAS THE D’S CONDUCT THE DIRECT CAUSE OF THE P’S HARM? DID THE P’S HARM OCCUR IN A “NATURAL AND UNBROKEN” SEQUENCE OF EVENTS FOLLOWING THE D’S NEGLIGENCE?

This test is still the Prevailing View in Most American Courts, although the trend is toward Other Types of Analysis of this Issue. Examples of Application include the cases of In Re Polemis and the Opinion of Judge Andrews in Palsgraf v. LIRR.
PROXIMATE CAUSATION, TEST APPLIED, Minority
» FORESEEABILITY TEST.

WAS THE P’S HARM A REASONABLY FORESEEABLE CONSEQUENCE OF THE D’S NEGLIGENCE?

This test is still the Minority Approach although it has been adopted by an increasing number of courts. Examples of Application include the cases of Judge Cardozo in Palsgraf v. LIRR and Wagon Mound No. 1.
SPECIFIC PROXIMATE CAUSE RULES AS TO PARTICULAR KINDS OF INTERVENING EVENTS, REASONABLE ATTEMPTS TO ESCAPE HARM.
WHERE A PERSON IS PLACED UNDER A REASONABLE APPREHENSION OF PHYSICAL HARM AS A RESULT OF THE D’S NEGLIGENCE, AND THAT PERSON IS INJURED WHILE MAKING A REASONABLE ATTEMPT TO ESCAPE THE HARM, THE D’S CONDUCT IS THE PROXIMATE CAUSE OF THAT PERSON’S INJURIES.
SPECIFIC PROXIMATE CAUSE RULES AS TO PARTICULAR KINDS OF INTERVENING EVENTS, RESCUE DOCTRINE.
NEGLIGENT D’S ARE LIABLE FOR ANY HARM WHICH RESULTS FROM ATTEMPTS BY A RESCUER TO RESCUE A PERSON WHO WAS INITIALLY HARMED OR ENDANGERED BY THE D’S NEGLIGENCE.

THIS DOCTRINE DOES NOT APPLY WHERE THE RESCUER’S CONDUCT WAS FOOLHARDY OR ILL ADVISED.
SPECIFIC PROXIMATE CAUSE RULES AS TO PARTICULAR KINDS OF INTERVENING EVENTS, ACTS OF CRIMINALS.
INTERVENING ACTS OF CRIMINALS SUPERSEDE A NEGLIGENT D’S ACTS IF THEY COULD NOT HAVE BEEN REASONABLY FORESEEN BY THE D AS LIKELY TO CAUSE HARM TO THE P. WHERE A CRIMINAL ACT WAS REASONABLE FORESEEABLE, IT IS NOT A SUPERSEDING CAUSE AND THE NEGLIGENT D REMAINS LIABLE FOR THE P’S HARM.
SPECIFIC PROXIMATE CAUSE RULES AS TO PARTICULAR KINDS OF INTERVENING EVENTS, ACTS OF GOD.
AN ACT OF GOD WHICH HAS ITS EFFECT ON THE P FOLLOWING THE D’S NEGLIGENCE IS NOT A SUPERSEDING CAUSE TO THE P’S HARM WHERE THE ACT OF GOD WAS REASONABLY FORESEEABLE. ACTS OF GOD WHICH ARE NOT REASONABLY FORESEEABLE (I.E. UNUSUALLY HEAVY FLOODS, VIOLENT EARTHQUAKES, ETC.), ARE GENERALLY CONSIDERED SUPERSEDING CAUSES, WHICH EXONERATE NEGLIGENT D’S OF LIABILITY.
Street, Foundations of Legal Liability 1906
The terms “proximate” and “remote” are respectively applied “recoverable” and “non recoverable” damages. It is always to be determined on the facts of each case upon mixed considerations of logic, common sense, justice, policy and precedent.
Ryan v. New York Central Railroad 1866
The court here said that “the damages incurred are not immediate but the remote result of negligence of the D’s. The immediate result was the destruction of their own shed and beyond that, it was too remote.” The court further said that “to sustain such a claim as the present would subject to liability against which no prudence could guard.”
Berry v. Sugar Notch Borough 1899
The court here said that the speed of the car was not the cause of the accident, neither did it contribute to it. That the speed brought him to the place of the accident at the moment of the accident was the merest chance, and a thing which no foresight could have predicted. Here, the P’s breach of a safety statute was not causally connected with his injuries because “it did not increase the risk or hazard of his being struck.”

MINTZ Under the But For test, applying it strictly, “But for the P’s driving at the improper speed, he would have not reached the tree when he reached it.” Thus, it could be argued that there was a Causal Link.
D’S ACTIVE FORCE
It has also been said that “if the D’s active force has come to rest, but in a dangerous position, creating a new or increasing an existing risk of loss, and the foreseen danger comes to pass, operates harmfully on the condition created by the D and causing the risked loss, we say that the injury thereby created is a proximate consequence of the D’s acts. On the other hand, where D’s active force has come to rest in a position of apparent safety, the court will follow it no longer; if some new force later combines with this condition to create harm, the result is remote from the D’s act.”
Union Stock Yards Co. of Omaha v. Chicago, Burlington & Quincy R.R. 1905
When there is a less culpable D involved, he may recover from the party whose wrongful act has thus exposed him. In such case the parties are not in pari delicto. (Equal Footing).

» JOINT LIABILITY implies that each of several D’s is responsible for the entire loss that they all caused in a party. SEVERAL LIABILITY holds each D responsible only for his proportionate share of the loss. If the P sues two D’s, a jointly liable D must answer for the full loss, while the severally liable D can only be held liable for his share.

California Civil Procedure Code

This code operates on principles of equality. As such, in California, each D pays his pro rata share. Pro Rata means “Proportionately”.
American Motorcycle Association v. Superior Court 1978
The apportionment of loss between multiple tortfeasors has been thought to present a question of CONTRIBUTION. INDEMNITY, by contrast, has traditionally been viewed as concerned solely with whether a loss should be entirely shifted from one tortfeasor to another, rather than whether the loss should be shared between the two.
Brower v. New York Central & HRR 1918
Defendant cannot escape liability because the loss of the goods was the natural and probable result of the negligent act.

MINTZ The court said that it was foreseeable that thieves would take off with the unguarded property. Therefore, it could be considered the proximate cause. Here, the court looked to the notion of foreseeability, one of the traditional tests, a Minority View. If the intervening agency is something so unexpected or extraordinary as that he cold not or ought not to have anticipated it, he will not be liable. Therefore, deliberate and malicious acts should in general negative causal connection. The Restatement’s position is that the D should be liable precisely because the third party did exploit the dangerous condition that was created by the D.
Wagner v. International Ry. 1921
Rescue Doctrine Case. The court said that the P’s rescue attempts were a natural and probable result of the negligent act.

MINTZ The rescue doctrine does not look at foreseeability. With regards to the “SUICIDE RULE”, people who attempt suicide in a way that makes it likely for people to come to rescue them, are liable for any harm that results to the rescuer.
Palsgraf v. Long Island Railroad 1928
CARDOZO said that, “negligence is not actionable unless it involves the invasion of a legally protected interest, the violation of a right. Proof of negligence in the air, so to speak, will not do. Even then, the orbit of the danger as disclosed to the eye of reasonable vigilance would be the orbit of the duty. The consequences to be followed must first be rooted in a wrong.

ANDREWS said that, “everyone owes to the world at large the duty of refraining from those acts that may unreasonably threaten the safety of others. Unreasonable risk being taken, its consequences are not confined to those who might probably be hurt. The court must ask itself whether there was a natural and continuous sequence between cause and effect. Is the result too remote from the cause, and here we consider remoteness in time and space.” “We look back to the catastrophe, the fire kindled by the spark, or the explosion. We trace the consequences, not indefinitely, but to a certain point. And to aid us in fixing that point we ask what might ordinarily be expected to follow the fire or the explosion.” “We are told by the appellant in his brief that it cannot be denied that the explosion was the direct cause of the plaintiff's injuries. This means that it was a substantial factor in producing the result; meaning that there was here a natural and continuous sequence, or direct connection. Thus, there was no remoteness in time, little in space. But injury in some form was most probable.”

MINTZ It is not easy to resolve because, “it is all a question of expediency. There are no fixed rules to govern our judgment. There is in truth little to guide us other than common sense.”
Overseas Tankship Ltd., v. Morts Dock & Engineering Co., Ltd. (“Wagon Mound 1”) 1961
The court here overruled Polemis and applied the Foreseeability test, because “it is a principle of civil liability that a man must be considered to be responsible for the probable consequences of his act. To demand more of him is too harsh a rule, to demand less is to ignore that civilized order requires the observance of a minimum standard of behavior.”

» “The weight of authority in this country rejects the limitation of damages to consequences foreseeable at the time of the negligent conduct when the consequences are direct, and the damage, although other and greater than expectable is of the same general sort that was risked. Courts will often try as hard as is necessary to bifurcate cause in fact and proximate cause.”
Mitchell v. Rochester Railway 1896
The court here said that, “the P cannot recover for injuries occasioned by fright, as there is no immediate personal injury.” The court here said that “if the right of recovery in this class of cases should be once established, it would naturally result in a flood of litigation in cases where the injury complained of may be easily feigned without detection, and where damages must rest upon mere conjecture and speculation.”

Mintz No court today would do the same analysis as the court did in this case. As the casebook notes, some cases after Mitchell try to soften the impact rule by allowing the P’s to recover for emotional distress even where the contact was only slight. Today most courts have entirely abandoned the physical impact approach. Instead, they have adopted the Zone of Danger Rule.
Dillon v. Legg 1968
The court overruled Amaya v. Home Ice, holding that the plaintiff could recover for serious emotional distress for witnessing the accident, even if she was only in “close proximity” to the accident and not within the “zone of danger.”

MINTZ This case represents a MINORITY approach. This case said that “courts should grant remedies for all substantial wrongs” and thus, goes beyond the zone of danger test.
PROXIMATE CAUSATION WITH RESPECT TO NIED

EARLY CASES, PHYSICAL IMPACT RULE
THE EARLY CASES GENERALLY REFUSED TO ALLOW RECOVERY UNDER A NEGLIGENCE THEORY FOR “NERVOUS SHOCK” OR EMOTIONAL DISTRESS IN THE ABSENCE OF PHYSICAL IMPACT UPON THE P’S OWN PERSON. THIS POSITION WAS GROUNDED ON TWO CONCERNS:

A. THE COURTS FEARED THAT IF NO PHYSICAL IMPACT REQUIREMENT WAS IMPOSED, THE RESULT WOULD BE A “FLOOD OF LITIGATION” IN CASES WHERE THE INJURY COMPLAINED OF MAY BE EASILY FEIGNED WITHOUT DETECTION, AND
B. THE COURTS BELIEVED THAT THE P’S DAMAGES, IN NON PHYSICAL IMPACT CASES WAS “TOO REMOTE” TO BE LEGALLY CAUSED BY THE D.

A SECOND SET OF CASES RETAINED BY SOFTENING THE PHYSICAL IMPACT REQUIREMENT BY ALLOWING RECOVERY EVEN WHERE THE ACTUAL PHYSICAL CONTACT WITH THE P’S PERSON WAS ONLY SLIGHT.
PROXIMATE CAUSATION WITH RESPECT TO NIED

THE MAJORITY “ZONE OF DANGER RULE”
TODAY, MOST CASES HAVE ABANDONED THE PHYSICAL IMPACT RULE. INSTEAD, RECOVERY IS NOW LIMITED TO CASES WHERE THE D’S NEGLIGENT CONDUCT CAUSED THE P TO HAVE FRIGHT AND DISTRESS OUT OF A REASONABLE FEAR FOR THE P’S OWN SAFETY BECAUSE THE P WAS IN A “ZONE OF DANGER” CREATED BY THE D’S ACTIONS.

RECOVERY FOR NIED MAY ONLY OCCUR WHERE:
I. The D’s negligence Caused the P to Experience Fright and Distress,
II. Out of a Reasonable Fear for the P’s Own Safety because
III. The P was in the Zone of Danger Created by the D’s Negligent Conduct.
IN A MINORITY OF STATES, THE COURTS HAVE GONE BEYOND THE ZONE OF DANGER RULE...
IN A MINORITY OF STATES, THE COURTS HAVE GONE BEYOND THE ZONE OF DANGER RULE BY ALLOWING RECOVERY FOR PARENTS WHO EXPERIENCE EMOTIONAL DISTRESS WHILE WITNESSING THE NEGLIGENTLY CAUSED DEATH OF THEIR CHILDREN, SO LONG AS THE DISTRESS IS ACCOMPANIED BY PHYSICAL INJURY.

IN ADDITION, A FEW COURTS HAVE ALLOWED AN ACTION FOR NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS THAT IS NOT ACCOMPANIED BY PHYSICAL INJURY IN SITUATIONS WHERE IT WAS FORESEEABLE THAT THE D’S CONDUCT WOULD ELICIT SERIOUS EMOTIONAL RESPONSES IN THE P.
THE BASIC DISTINCTION BETWEEN MISFEASANCE AND NONFEASANCE
AT COMMON LAW, A DISTINCTION WAS MADE BETWEEN MISFEASANCE (ACTIVE NEGLIGENT MISCONDUCT) AND NONFEASANCE (PASSIVE FAILURE TO TAKE STEPS TO PROTECT OTHERS FROM HARM). MISFEASANCE WAS ACTIONABLE BUT NONFEASANCE WAS NOT (IRRESPECTIVE OF WHETHER A REASONABLE PERSON, IN THE D’S CIRCUMSTANCES, WOULD HAVE TAKEN STEPS TO PROTECT OTHERS).

» THIS DISTINCTION IS STILL ACCEPTED, AT LEAST IN THEORY, BY MANY JURISDICTIONS TODAY. AT THE SAME TIME, HOWEVER, IN MOST STATES AN INCREASING NUMBER OF EXCEPTIONS TO THE GENERAL RULE THAT NONFEASANCE IS NOT ACTIONABLE HAVE BEEN AND ARE BEING, RECOGNIZED.

» IN SOME SITUATIONS, IT IS DIFFICULT TO DRAW A LOGICAL DISTINCTION BETWEEN CONDUCT WHICH IS NONFEASANCE AND CONDUCT WHICH IS MISFEASANCE SINCE THE D’S PASSIVE FAILURE TO TAKE ACTION MAY BE VIEWED AS ONLY ONE COMPONENT ASPECT OF A PATTERN OF ACTIVE MISCONDUCT WHICH MAY BE LOGICALLY CLASSIFIED AS MISFEASANCE.
MISFEASANCE
ACTIVE MISCONDUCT THAT HARMS ANOTHER PERSON OR INVADES HIS OR HER LEGALLY PROTECTED INTEREST. (ACTIONABLE).
NONFEASANCE
PASSIVE FAILURE TO COME TO THE AID, PROTECTION OR ASSISTANCE OF ANOTHER PERSON WHO IS AT RISK OF HARM. (NOT ACTIONABLE UNLESS AN EXCEPTION TO THE RULE EXISTS.)
THE GOOD SAMARITAN RULE, “THE NO DUTY TO RESCUE DOCTRINE”
GENERALLY, PEOPLE DO NOT HAVE A LEGAL DUTY TO RESCUE OR COME TO THE AID OF ANOTHER PERSON WHO THEY KNOW TO BE IN PERIL AND WHO IS UNABLE TO HELP HIMSELF OR HERSELF.
THERE ARE SEVERAL EXCEPTIONS TO THIS GENERAL RULE
I. A PERSON WHO VOLUNTARILY CHOOSES TO AID A HELPLESS PERSON MUST EXERCISE REASONABLE CARE WHILE IN CONTROL OF THE HELPLESS PERSON’S SAFETY.

II. A PERSON WHO VOLUNTARILY CHOOSES TO AID A HELPLESS PERSON, AND THEN DISCONTINUES THE GIVING OF AID, WILL BE LIABLE TO THE HELPLESS PERSON IF THE DISCONTINUATION OF AID LEAVES THAT PERSON IN A WORSE POSITION THAN SHE WAS IN WHEN THE AID BEGAN.

III. IF THE D’S OWN NEGLIGENT CONDUCT IS RESPONSIBLE FOR PUTTING THE P IN A HELPLESS SITUATION, THE D HAS A DUTY TO COME TO THE P’S AID.
Luke 10:30 - 37
US law does not follow the Good Samaritan parable. The law imposes no duty on people to come to the aid of others who are in danger.
Buch v. Amory Manufacturing Co. 1897
This case said that “the D’s are not liable unless they owed to the P a legal duty which they neglected to perform. With purely moral obligations, the law does not deal.”

MINTZ The court said that a landowner also has no duty to warn children. Under modern law, this case would have come out differently by applying the Restatement § 339.
Hurley v. Eddingfield 1901
This case is the prevailing view in that physicians have no duty to treat patients under the Good Samaritan Rule. “The mere fact that a D saw the P in a position of peril imposes upon him no legal, although moral, obligation or duty to go to his rescue unless the D was legally responsible in whole or in part, for placing the P in the perilous position. It is the P’s own fault for undertaking a dangerous and reckless course of action.”
Montgomery v. National Convoy & Trucking Co. 1937
The court said that, “one may be negligent by acts of omission as well as of commission and liability therefore will attach if the act of omission of a duty owed to another, under the circumstances, is the direct, proximate and efficient cause of the injury.”

» THE RESTATEMENT § 327 further “renders any person who knows or has reason to know that a third party is giving or is ready to give another aid necessary to prevent physical harm to an endangered person is tortiously liable if he negligently prevents or disables a third person from giving such aid.”
LIABILITY OF OWNERS AND OCCUPIERS OF LAND TO ENTRANTS UPON LAND

THE TRADITIONAL COMMON LAW APPROACH
GENERALLY THE LAW CATEGORIZED ENTRANTS UPON LAND AS TRESPASSERS, LICENSEES OR INVITEES. THE DUTY OF CARE OF LANDOWNERS AND OCCUPIERS VARIED ACCORDING TO THE TYPE OF ENTRANT WHO WAS PRESENT ON THEIR LAND. TO THE EXTENT THAT AN ENTRANT ONTO THE LAND COULD SHOW THAT A LANDOWNER OR OCCUPIER BREACHED A DUTY OF CARE TOWARDS HIM OR HER, THE ENTRANT ALSO WAS REQUIRED TO DEMONSTRATE ALL OTHER ELEMENTS OF NEGLIGENCE (I.E. CAUSATION AND ACTUAL HARM) BEFORE THE ENTRANT COULD RECOVER DAMAGES FOR HIS OR HER HARM.
LIABILITY TO TRESPASSERS
DEFINITION OF A TRESPASSER:

A PERSON PRESENT ON THE LAND WITHOUT THE LANDOWNER’S PERMISSION.

DUTIES OF LANDOWNERS:

» UNLESS AN EXCEPTION TO THE GENERAL RULE APPLIES, A LANDOWNER’S ONLY DUTY TOWARD THE TRESPASSER IS TO AVOID GROSS NEGLIGENCE (“WILLFUL OR WANTON MISCONDUCT.”)
LIABILITY TO TRESPASSERS, EXCEPTIONS TO THE GENERAL RULE
I. LANDOWNERS HAVE A DUTY OF ORDINARY CARE TOWARDS TRESPASSERS WHOM THEY SPECIFICALLY KNOW ARE PRESENT ON THE LAND. THIS PRINCIPLE ALSO APPLIES WHERE A SUBSTANTIAL NUMBER OF TRESPASSERS REGULARLY TRAVERSE A PORTION OF A LANDOWNER’S PROPERTY WITH THE OWNER’S KNOWLEDGE BUT WITHOUT HIS OR HER PERMISSION.

II. 3RD PARTIES HAVE A DUTY OF ORDINARY CARE TOWARDS PERSONS WHO ARE TRESPASSING ON LAND OWNED BY SOMEONE ELSE.

III. LANDOWNERS HAVE A DUTY OF ORDINARY CARE TO PREVENT THE CREATION OF DANGEROUS CONDITIONS IMMEDIATELY ADJACENT TO A PUBLIC WAY.

IV. LANDOWNERS HAVE A DUTY TO USE ORDINARY CARE TOWARDS TRESPASSERS ON THEIR LAND WITH RESPECT TO ANY CONDUCT OF THE LANDOWNER WHICH TAKES PLACE OUTSIDE THAT LAND.

V. LANDOWNERS HAVE A DUTY TO USE ORDINARY CARE TOWARDS TRESPASSING CHILDREN WHERE THE ATTRACTIVE NUISANCE DOCTRINE APPLIES.
THE MODERN ATTRACTIVE NUISANCE DOCTRINE: THE SECOND RESTATEMENT

"APUCEB"
AN OWNER IS LIABLE FOR HARM TO TRESPASSING CHILDREN ON HIS LAND IF:

I. THEY ARE HARMED BY AN “ARTIFICIAL CONDITION” ON THE OWNER’S LAND.

II. THE PLACE WHERE THE CONDITION EXISTS IS ONE WHERE THE OWNER KNOWS OR SHOULD KNOW THAT CHILDREN ARE LIKELY TO TRESPASS.

III. THE OWNER KNOWS OR SHOULD KNOW THAT THE CONDITION POSES AN “UNREASONABLE RISK OF DEATH OR SERIOUS BODILY HARM” TO TRESPASSING CHILDREN

IV. BECAUSE OF THEIR YOUTH, THE CHILDREN DO NOT DISCOVER THE DANGER OR REALIZE THE RISK WHICH THE CONDITION POSES TO THEM

V. THE OWNER DOES NOT USE REASONABLE CARE TO ELIMINATE THE DANGER OR OTHERWISE PROTECT THE CHILDREN, AND

VI. THE BURDEN TO THE OWNER OF ELIMINATING THE DANGER IS SLIGHT AS COMPARED WITH THE RISK TO THE CHILDREN INVOLVED

» THIS RULE IS GENERALLY SAID TO APPLY ONLY TO “YOUNG CHILDREN” OR THOSE “OF TENDER YEARS”. MOST STATES WHICH ESTABLISH AN UPPER AGE LIMIT FOR APPLICABILITY OF THE RULE DO NOT APPLY TO CHILDREN OVER THE AGE OF 12.
LIABILITY TO LICENSEES
DEFINITION OF A LICENSEE:

A PERSON WHOM THE LANDOWNER HAS NOT INVITED ONTO HIS OR HER LAND BUT WHOM THE OWNER HAS EXPRESSLY OR IMPLIEDLY PERMITTED TO USE THAT LAND.

» EXAMPLES OF LICENSEES: TRAVELING SALES PEOPLE, SOCIAL GUESTS, POLICE OR FIREMAN CARRYING OUT HIS OFFICIAL DUTIES, NEIGHBORS WHO STOP BY TO BORROW SOMETHING.

DUTIES OF LANDOWNERS:

» LANDOWNERS HAVE A DUTY TO AVOID GROSS NEGLIGENCE (“WILLFUL OR WANTON MISCONDUCT”) TOWARD LICENSEES AND TO INFORM LICENSEES OF ANY CONCEALED DANGERS ON THEIR LAND OF WHICH THEY ARE AWARE. HOWEVER, LANDOWNERS DO NOT HAVE A DUTY TO THE LICENSEE TO INSPECT THE PREMISES FOR CONCEALED DANGERS.
LIABILITY TO INVITEES
DEFINITION OF AN INVITEE:

A PERSON INVITED ONTO THE LANDOWNER’S LAND FOR A PURPOSE OF BENEFIT TO THE LANDOWNER OR THE PUBLIC.

I. BUSINESS VISITOR. A PERSON INVITED ONTO THE LAND FOR A PURPOSE CONNECTED WITH THE BUSINESS DEALINGS OF THE LANDOWNER

II. PUBLIC INVITEE. A PERSON INVITED ONTO THE LAND FOR A PURPOSE FOR WHICH THE LAND IS HELD OPEN TO THE PUBLIC

» EXAMPLES OF INVITEES: CUSTOMERS IN STORES, INDEPENDENT CONTRACTORS DOING WORK ON A LANDOWNER’S PREMISE, VISITORS TO A PUBLIC LIBRARY.

DUTIES OF LANDOWNERS:

» LANDOWNERS HAVE A DUTY TO USE ORDINARY CARE TOWARDS INVITEES. LANDOWNERS ALSO HAVE THE DUTY TO INSPECT THEIR PREMISES FOR CONCEALED DANGERS, AND TO ELIMINATE THOSE DANGERS, BEFORE THOSE PREMISES ARE OPENED TO THE PUBLIC.
SOME MODERN JUDICIAL APPROACHES

ROWLAND V. CHRISTIAN APPROACH
» THE TRADITIONAL DISTINCTION AMONG TRESPASSERS, LICENSEE AND INVITEES IS ABOLISHED. LANDOWNERS MUST MEET A STANDARD OF REASONABLE CARE UNDER ALL THE CIRCUMSTANCES, AS TO ALL ENTRANTS ONTO THEIR LAND
SOME MODERN JUDICIAL APPROACHES

MODIFIED ELIMINATION OF TRADITIONAL CATEGORIES
» THE TRADITIONAL DISTINCTION BETWEEN LICENSEES AND INVITEES IS ABOLISHED. LANDOWNERS MUST MEET A STANDARD OF REASONABLE CARE UNDER ALL THE CIRCUMSTANCES, AS TO ENTRANTS ON THEIR LAND WHO WOULD HAVE BEEN CONSIDERED LICENSEES OR INVITEES.

» LANDOWNERS ARE LIABLE TO TRESPASSERS ONLY WHERE THEIR CONDUCT IS WILLFUL, WANTON, OR WHERE IT CONSTITUTES GROSS NEGLIGENCE.
VOLUNTARY ASSUMPTION OF A DUTY OF CARE
» WHERE A PERSON VOLUNTARILY UNDERTAKES TO PERFORM A SERVICE TO PREVENT HARM TO OTHERS, AND THEN NEGLIGENTLY FAILS TO CARRY OUT THAT SERVICE, THAT PERSON IS LIABLE FOR ANY HARM CAUSED TO ANOTHER BY HIS OR HER FAILURE TO CARRY OUT THE SERVICE. THIS PRINCIPLE APPLIES EVEN WHERE THE PERSON VOLUNTARILY UNDERTAKING TO PROTECT OTHERS INITIALLY HAD NO LEGAL OBLIGATION TO DO SO.

» THERE IS A SPLIT OF AUTHORITY AS TO WHETHER A PERSON INJURED UNDER THESE CIRCUMSTANCES MUST HAVE HAD ACTUAL NOTICE THAT THE D HAD UNDERTAKEN AFFIRMATIVE STEPS TO PROTECT HIM OR HER FROM HARM.

» A VOLUNTARY UNDERTAKING TO PROTECT OTHERS FROM HARM, WHICH WAS NOT INITIALLY REQUIRED TO FULFILL A LEGAL DUTY, MAY BE DISCONTINUED, AS LONG AS THE PARTY DISCONTINUING THE UNDERTAKING PROVIDES ADVANCE NOTICE TO THE PUBLIC THAT THIS WILL HAPPEN.
DUTY TO PROTECT OTHERS AGAINST HARM BY 3RD PARTIES

GENERALLY, PEOPLE DO NOT HAVE A LEGAL DUTY TO CONTROL THE CONDUCT OF THIRD PARTIES SO AS TO PREVENT THOSE THIRD PARTIES FROM CAUSING HARM TO OTHERS. HOWEVER, THERE ARE AN INCREASING NUMBER OF EXCEPTIONS TO THIS DOCTRINE
EXCEPTIONS

SPECIAL RELATIONSHIP. PEOPLE DO HAVE A LEGAL DUTY TO PROTECT OTHERS AGAINST HARM INFLICTED BY THIRD PARTIES WHERE THOSE PEOPLE ARE IN A “SPECIAL RELATIONSHIP” WITH EITHER THE VICTIM OR THE 3RD PARTY WHO INFLICTS HARM. THOUGH THE DEFINITION OF A “SPECIAL RELATIONSHIP” VARIES FROM JURISDICTION TO JURISDICTION, MOST STATES HAVE RECOGNIZED AT LEAST SOME OF THE FOLLOWING RELATIONSHIPS AS “SPECIAL”:

INNKEEPERS AND GUEST, LANDOWNER AND INVITEE, SHOPKEEPER AND PATRON, EMPLOYER AND EMPLOYEE, TAVERN OWNER AND CUSTOMER, CARRIER AND PASSENGER, HOSPITAL AND PATIENT, LANDLORD AND TENANT, PSYCHIATRIST AND PATIENT

NO DUTY TO PROTECT OTHERS EXISTS WHERE THE HARM INFLICTED BY THE 3RD PARTY IS SUDDEN AND UNFORESEEABLE.

» TO THE EXTENT THAT THE PERSON HARMED BY A THIRD PARTY HAD ADVANCE NOTICE THAT SHE MIGHT BE HARMED, SOME JURISDICTIONS WILL ALLOW THE D TO PLEAD AND PROVE CONTRIBUTORY NEGLIGENCE AND, OR ASSUMPTION OF RISK. COMPARATIVE NEGLIGENCE PRINCIPLES MAY ALSO BE APPLIED IN THESE SITUATIONS IN JURISDICTIONS WHICH HAVE ADOPTED THE COMPARATIVE NEGLIGENCE DOCTRINE.
Robert Addie & Sons v. Dumbreck 1929
The occupier of land has no duty towards a trespasser to take reasonable care for his protection or even to protect him from concealed danger. The trespasser comes on to the premises at his own risk. An occupier is liable to a trespasser only where the injury suffered by the trespasser is due to some willful act involving something more than the absence of reasonable care.

MINTZ The owner toward the trespasser really only has the duty to refrain from gross negligence, or the absence of even slight care. Thus, the owner can remain passive toward the trespasser.
WILLFUL AND WANTON EXCEPTION
P’s cannot act in reckless disregard of people’s welfare. The court often expresses an obvious distaste for a rule that treats alike all trespassers, from guileless infants to persistent poachers. The court in Gould v. DeBeve, said that “the D’s statutory obligation certainly comprehends, in the Washington summer when windows must be raised, screens which keep flies out and young children in.” The court found that it was proper to find the D’s guilty of “willful and wanton misconduct” in ignoring their statutory duty to replace the defective screen in the window.
ATTRACTIVE NUISANCE
This doctrine allows infant trespassers to recover when lured onto the D’s premises by some tempting condition created or maintained by the D, such as railway turntables, explosives, smoldering fires and rickety structures. Exposure to liability tends to exclude “rivers, creeks, ponds, wagons, axes, plows, woodpiles, haystacks, and the like.” Early courts rejected the attractive nuisance doctrine because “to the irrepressible spirit of curiosity and intermeddling of the average boy there is no limit to the objects which can be made attractive playthings. In the exercise of his youthful ingenuity, he can make a plaything out of almost anything, and then so use it as to expose himself to danger.
Rowland v. Christian 1968
The court here said “the common law has moved toward imposing on owners and occupiers a single duty of reasonable care in all circumstances.” The court reasoned that “a man’s life does not become less worthy of protection by the law nor a loss less worthy of compensation under the law because he has come upon the land of another without permission or with permission but without business purpose.”

MINTZ According to Prosser and Keeton, only 15 jurisdictions follow this lead set out in Rowland v. Christian. Other states, including Florida, have abolished the distinction between licensees and invitees and both are allowed to receive a reasonable duty of care.
LANDLORD’S LIABILITY
The court’s generally hold that a landlord owes a general duty of care to all persons on his premises. However, neither landlords not hotel proprietors are strictly liable on a products liability theory for injuries to their respective tenants and guests caused by a defect in the premises.

» It has been said that “a landowner cannot be expected to maintain his premises in a safe condition for a wandering tramp or a person who enters against the known wishes of the landowner.” In summary, “a canvasser who comes on your premises without your consent is a TRESPASSER. Once he has your consent, he is a LICENSEE. Not until you do business with him is he an INVITEE.”
Coggs v. Bernard 1703
A gratuitous bailor can be held liable for his negligence in keeping the goods he was entrusted with.

MINTZ A nudum pactum in Latin literally means ‘Bare or Naked Promise.’ In common law, it refers to a promise that is not legally enforceable for want of consideration. Note that today, most courts view a wrongful discharge to be “nonfeasance.”
Erie R.R. v. Stewart 1930
A railroad company has a positive duty to a person crossing a railway when they employ a watchman to watch the railway, and this employment is known and relied upon by the P. Where there is voluntary employment of a watchman, knowledge of this by the P, and reliance by the P, a presumption of negligence arises that must be rebutted by the D.

MINTZ This case illustrates that when there is a “voluntary assumption of duty and then the D fails to carry out the duty, he is liable for any harm caused by that conduct.” Although in this case there was no initial duty because the railroad undertook the act voluntarily, once they had established a custom, they had an assumed obligation to use reasonable care.
Marsalis v. LaSalle 1957
The court here said that “one who voluntarily undertakes to care for, or to afford relief or assistance to, an ill, injured, or helpless person is under a legal obligation to use reasonable care and prudence in what he does.” Here, the P unquestionably and in good faith relied upon the D to carry out the agreement which he voluntarily made, thus foregoing such other possible available protection. No change whatever in the animal’s usual routine was undertaken in this case.
Kline v. 1500 Massachusetts Avenue Apartment Corp. 1970
The court said that the landlord has a duty to all those on the premises of legal right to use ordinary care and diligence to maintain the retained parts in a reasonably safe condition because the landlord is in the best position to take the necessary protective measures. However, PROXIMATE CAUSATION is needed and “the necessary causal link between a landlord’s culpable failure to provide adequate security and a tenant’s injuries resulting from a criminal attack in the building can be established only if the assailant gained access to the premises through a negligently maintained entrance.”
CAPITULATION TO CRIMINAL ACTIVITY
There is no basis for an assumption that complying with a robber’s demands would guarantee the safety of a hostage. Robbers are unpredictable and often injure victims and others even though there has been no resistance.
Tarasoff v. Regents of University of California 1976
Court concluded that public policy favoring protection of the confidential character of patient-psychotherapist communications must yield to the extent to which disclosure is essential to avert danger to others. The protective privilege ends where the public peril begins. Remember that there is no special relationship with the public at large. However, the court in this case cited the federal case of Greenberg v. Barbour in which the court upheld a cause of action against a hospital staff doctor whose negligent failure to admit a mental patient resulted in patient assaulting the P.
INTRODUCTION TO STRICT LIABILITY
» LIKE NEGLIGENCE AND INTENTIONALITY, STRICT LIABILITY IS A THEORY OF TORT LIABILITY. UNDER THE DOCTRINE OF STRICT LIABILITY, THE P NEED NOT PROVE EITHER THAT THE D ACTED WITH THE INTENTION OF INVADING A LEGALLY PROTECTED INTEREST OF THE P OR THAT THE D BREACHED A DUTY OF CARE OWED TO THE P. TO RECOVER DAMAGES, THE P NEED ONLY SHOW THAT THE D WAS ENGAGED IN A “STRICT LIABILITY ACTIVITY” AND THAT THIS ACTIVITY CAUSED THE P HARM.
SOURCES AND TYPES OF STRICT LIABILITY
I. CASE LAW
II. THE ABNORMALLY DANGEROUS ACTIVITIES TEST (2ND RESTATEMENT OF TORTS)
III. STRICT PRODUCTS LIABILITIES (2ND RESTATEMENT OF TORTS)
IV. WORKER’S COMPENSATION LEGISLATION
V. AUTOMOBILE “NO FAULT” LEGISLATION
POLICY REASONS FOR THE ADOPTION OF STRICT LIABILITY
» “PAY THEIR WAY”: PEOPLE WHO PROFIT BY DANGEROUS ACTIVITIES SHOULD COMPENSATE FOR ANY HARM THAT THOSE ACTIVITIES CAUSE SINCE:
I. THEIR PROFITS SHOULD FAIRLY REFLECT THE RISKS AND HARM WHICH THEIR ENTERPRISE IS CREATING, AND
II. IT IS MORE JUST THAT THEY SHOULD PAY THE COSTS OF HARM THEY CAUSE, THAN THAT THE INNOCENT VICTIMS OF THEIR ACTIVITIES SHOULD BE MADE TO BEAR THOSE COSTS.

» “COST SPREADING”: D WHO ENGAGE IN STRICT LIABILITY ACTIVITIES ARE GENERALLY IN A BETTER POSITION TO SPREAD THE COSTS OF THE HARM WHICH THEIR ACTIVITIES CAUSE (BY OBTAINING STRICT LIABILITY INSURANCE OR RAISING THE PRICES OF THEIR PRODUCTS IN THE MARKETPLACE).

» “COMPENSATION”: STRICT LIABILITY EFFECTIVELY FURTHERS AN IMPORTANT GOAL OF TORT LAW: THE COMPENSATION OF INJURED PERSONS.
STRICT LIABILITY CASE LAW

A. THE RYLANDS V. FLETCHER DOCTRINE
2 PRINCIPAL VERSIONS:

I. PEOPLE WHO BRING AND COLLECT ON THEIR LAND ANY SUBSTANCE WHICH IS LIKELY TO DO MISCHIEF IF IT ESCAPES ARE STRICTLY LIABLE FOR ALL HARM DONE IF THAT SUBSTANCE DOES ESCAPE, OR

II. LANDOWNERS ARE STRICTLY LIABLE FOR HARM CAUSED OFF THEIR LAND BY ANY “NON-NATURAL USES” OF THEIR LAND.
STRICT LIABILITY CASE LAW

B. CONVERSION, Elements
» ELEMENTS

I. D INTENTIONALLY INJURES OR HARMS P CHATTEL IN A SERIOUS FASHION

AND

II. D INTENTIONALLY AND SERIOUSLY DEPRIVES THE P OF HIS CHATTELS (USUALLY WITH THE PURPOSE OF TAKING DOMINION OR CONTROL OVER THEM).
CONVERSION, Special Features
 PROOF OF CONVERSION DOES NOT REQUIRE A SHOWING OF EITHER INTENTIONALITY OR NEGLIGENCE ON THE D PART.

 MISTAKE IS NOT A DEFENSE TO CONVERSION.

 PATIENTS WHO ALLOW THE MEDICAL REMOVAL OF PARTS OF THEIR BODY, WITHOUT CONSENTING TO THE SUBSEQUENT USE OF THOSE PARTS IN MEDICAL RESEARCH, DO NOT HAVE A GOOD CAUSE OF ACTION FOR CONVERSION
CONVERSION, Remedies
I. THE ORIGINAL (AND STILL THE PRIMARY) REMEDY FOR CONVERSION WAS A “FORCED SALE” IN WHICH THE D WAS COMPELLED TO PAY THE P THE FULL MARKET VALUE OF THE PROPERTY THAT WAS HARMED OR TAKEN AWAY.

II. HOWEVER, WHERE A CONVERSION IS DONE ACCIDENTALLY, INNOCENTLY OR IN GOOD FAITH, A CONVERTING D MAY FORCE THE P TO TAKE BACK HIS OR HER PROPERTY, CONDITIONAL UPON THE D COMPENSATING THE P FOR REPAIRS TO THE PROPERTY AND, OR INTERIM LOSS OF ITS USE.
STRICT LIABILITY CASE LAW

C. STRICT LIABILITY FOR THE KEEPING OF FEROCIOUS ANIMALS
» MOST STATES HOLD THE OWNERS OF FEROCIOUS ANIMALS ARE STRICTLY LIABLE FOR ANY HARM WHICH THESE ANIMALS CAUSE.

THE TERM “FEROCIOUS ANIMALS” INCLUDES ANIMALS WHICH ARE INHERENTLY DANGEROUS (LIONS, ELEPHANTS, WOLVES) AND ANIMALS WHICH ARE OF A NON FEROCIOUS TYPE (DOGS, CATS) WHICH ARE INDIVIDUALLY KNOWN TO BE DANGEROUS.

» FORMER OWNERS OF FEROCIOUS ANIMALS WHICH ESCAPE, RETURN TO THE WILD FOR A SIGNIFICANT TIME, AND THEN DO HARM, ARE STRICTLY LIABLE FOR THAT HARM WHERE THE ANIMAL IS AN EXOTIC SPECIES, BUT NOT WHERE IT IS INDIGENOUS TO THE AREA.

» IN GENERAL, THE OWNERS AND OPERATORS OF PUBLIC ZOOS ARE NOT HELD STRICTLY LIABLE FOR HARM CAUSED BY ANIMALS WHICH ESCAPE FROM THE ZOO.
STRICT LIABILITY CASE LAW

D. STRICT LIABILITY FOR BLASTING WITH EXPLOSIVES
MOST AMERICAN STATES IMPOSE STRICT LIABILITY ON PERSONS WHO ENGAGE IN BLASTING FOR CONSTRUCTION OR OTHER PURPOSES. A MAJORITY OF STATES NOW TAKE THIS VIEW REGARDLESS OF WHETHER THE HARM IS CAUSED DIRECTLY (BY THE IMPACT OF DEBRIS) OR INDIRECTLY (BY THE IMPACT OF NOISE AND MOVEMENT OF AIR).

» COURTS WILL OFTEN GIVE CONSIDERABLE WEIGHTS TO THE DEGREE OF ISOLATION OF THE SITE WHERE BLASTING OCCURS IN DECIDING WHETHER TO IMPOSE STRICT LIABILITY FOR HARM WHICH IT CAUSES.
THE ABNORMALLY DANGEROUS ACTIVITIES TEST (2ND RESTATEMENT)

GENERAL PRINCIPLES
» PEOPLE WHO CARRY ON “ABNORMALLY DANGEROUS ACTIVITIES” THAT CAUSE HARM TO THE PERSON, LAND OR PROPERTY OF OTHERS ARE SUBJECT TO STRICT LIABILITY.

» STRICT LIABILITY ONLY APPLIES TO HARM WHICH RESULTS FROM THE RISK THAT MAKES THE ACTIVITY IN QUESTION ABNORMALLY DANGEROUS.
THE ABNORMALLY DANGEROUS ACTIVITIES TEST (2ND RESTATEMENT)

FACTORS TO BE CONSIDERED IN DECIDING WHETHER THE ACTIVITY IS “ABNORMALLY DANGEROUS”
I. EXISTENCE OF A HIGH DEGREE OF RISK OF HARM.

II. LIKELIHOOD THAT THE HARM THAT RESULTS FROM THAT RISK WILL BE GREAT.

III. INABILITY OF THE D TO ELIMINATE THAT RISK BY EXERCISING REASONABLE CARE.

IV. EXTENT TO WHICH THE ACTIVITY IS NOT A MATTER OF COMMON USAGE.

V. INAPPROPRIATENESS OF THE ACTIVITY TO THE PLACE WHERE IT IS CARRIED ON.

VI. EXTENT TO WHICH THE VALUE OF THE ACTIVITY TO THE COMMUNITY IS OUTWEIGHED BY ITS DANGEROUS ATTRIBUTES.
THE ABNORMALLY DANGEROUS ACTIVITIES TEST (2ND RESTATEMENT)

APPLICATION
» IN DETERMINING WHETHER AN ACTIVITY IS “ABNORMALLY DANGEROUS”, THE COURT MUST CONSIDER EACH FACTOR AND GIVE IT THE “WEIGHT IT MERITS” UPON THE FACTS OF THE PARTICULAR CASE.

APPLICATION TO AVIATION

» OWNERS AND OPERATORS OF AIRCRAFTS ARE SUBJECT TO STRICT LIABILITY FOR ANY HARM CAUSED ON THE GROUND WHEN THEIR AIRPLANE(S) CRASH.

» IN MID-AIR COLLISIONS, DAMAGE TO AIRCRAFT, PASSENGERS OR AIRLINE PERSONNEL IS GOVERNED BY PRINCIPLES OF NEGLIGENCE AND NOT STRICT LIABILITY.

AS COMMON CARRIERS, AIRLINES HAVE A DUTY OF THE “UTMOST CARE” TOWARD THEIR PASSENGERS.
CAUSATION IN STRICT LIABILITY CASES
MAJORITY VIEW: TRADITIONAL CAUSATION ANALYSIS

» WAS THE D’S CONDUCT BOTH THE CAUSE IN FACT AND THE PROXIMATE CAUSE OF THE D’S HARM, USING THE SAME CAUSATION TESTS EMPLOYED IN THE SAME JURISDICTION IN NEGLIGENCE ACTIONS?

MINORITY VIEW: SUBSTANTIAL FACTOR TEST

» WAS THE D’S CONDUCT A SUBSTANTIAL FACTOR GIVING RISE TO THE P’S HARM?
DEFENSES BASED UPON EXTERNAL FORCES OUTSIDE THE D’S CONTROL
» TYPES OF DEFENSES
ACTS OF GOD
ACTS OF THIRD PARTIES
ACTS OF ANIMALS

» APPLICABILITY

MAJORITY VIEW. THESE DEFENSES MAY BE RAISED BY D’S IN STRICT LIABILITY CASES.

MINORITY VIEW. THESE ARE NOT GOOD DEFENSES IN A STRICT LIABILITY ACTION. (THE 2ND RESTATEMENT TAKES THIS POSITION.)
DEFENSES BASED UPON P’S CONDUCT
» ASSUMPTION OF RISK IS GENERALLY A GOOD DEFENSE IN A STRICT LIABILITY ACTION (EVEN IF IT ALSO COULD BE CONSIDERED CONTRIBUTORY NEGLIGENCE).
» CONTRIBUTORY NEGLIGENCE, AS SUCH, MAY NOT BE RAISED AS A DEFENSE IN STRICT LIABILITY CASES.
» STRICT LIABILITY DOES NOT GENERALLY EXTEND TO HARM WHICH IS THE RESULT OF THE P’S OWN UNIQUE SENSITIVITY OR VULNERABILITY TO SUCH HARM.
INTRODUCTION TO NUISANCE LAW
» NUISANCE LAW GENERALLY CONCERNS INVASIONS OF LANDOWNER’S RIGHTS TO THE USE AND ENJOYMENT OF THEIR LAND.

» THE LAW OF NUISANCE TENDS TO BE COMPLEX AND THE RESULTS IN NUISANCE CASES ARE SOMETIMES INCONSISTENT WITH ONE ANOTHER.

» SOME COMMENTATORS, INCLUDING DEAN PROSSER, HAVE SUGGESTED THAT NUISANCE SHOULD BE VIEWED AS A FIELD OF TORT LIABILITY, RATHER THAN A SINGLE TORT.
NUISANCE PER SE
AN ACT, OCCUPATION OR STRUCTURE WHICH IS A NUISANCE AT ALL TIMES AND UNDER ANY CIRCUMSTANCES, REGARDLESS OF LOCATION OR SURROUNDINGS.
NUISANCE PER ACCIDENS
AN ACT, OCCUPATION OR STRUCTURE WHICH BECOMES A NUISANCE BY REASON OF ITS CONSTRUCTION, LOCATION OR OPERATION.
PUBLIC NUISANCE
A NUISANCE WHICH AFFECTS THE PUBLIC IN GENERAL, OR A VERY GREAT NUMBER OF PERSONS.

» IN GENERAL, PUBLIC NUISANCE ACTIONS MAY ONLY BE BROUGHT BY GOVERNMENT AUTHORITIES. HOWEVER, WHERE PRIVATE PARTIES INCUR “SPECIAL, PECULIAR OR DISPROPORTIONATE” HARM, THEY MAY BRING A PUBLIC NUISANCE ACTION IF MANY OTHERS ARE ALSO IN SOME WAY HARMED BY NUISANCE.
PRIVATE NUISANCE
A NONTRESPASSORY INVASION OF ANOTHER PERSON’S INTEREST IN THE PRIVATE USE AND ENJOYMENT OF HIS OR HER LAND.
THE SUBSTANTIVE BASIS OF NUISANCE LIABILITY

» NUISANCE ACTIONS MAY BE BASED ON ANY OF THE 3 TORT THEORIES
I. INTENTIONAL NUISANCE (AKA “INTENTIONAL INVASION”)

A. INTENTIONAL NUISANCE ACTIONS LIE WHERE THE D HAS ACTED EITHER INTENDING TO INTERFERE WITH THE P’S USE AND ENJOYMENT OF THE P’S LAND, OR

B. WHERE THE D HAS ACTED KNOWING THAT IT IS SUBSTANTIALLY CERTAIN THAT THE D’S ACTIONS WILL INTERFERE WITH THE P’S USE AND ENJOYMENT OF THE P’S LAND.
THE SUBSTANTIVE BASIS OF NUISANCE LIABILITY

» NUISANCE ACTIONS MAY BE BASED ON ANY OF THE 3 TORT THEORIES
II. NEGLIGENT NUISANCE

NEGLIGENT NUISANCE ACTIONS MAY BE BROUGHT WHERE THE D HAS FAILED TO USE REASONABLE CARE NOT TO INTERFERE WITH THE P’S USE AND ENJOYMENT OF THE P’S LAND, AND THAT FAILURE HAS CAUSED THE P SOME PERSONAL INJURY OR PROPERTY DAMAGE.
THE SUBSTANTIVE BASIS OF NUISANCE LIABILITY

» NUISANCE ACTIONS MAY BE BASED ON ANY OF THE 3 TORT THEORIES
III. STRICT NUISANCE (AKA “STRICT LIABILITY NUISANCE”)

“STRICT NUISANCE” ACTIONS MAY BE BROUGHT WHERE THE D HAS INTERFERED WITH THE P’S USE AND ENJOYMENT OF THE P’S LAND BY CARRYING ON AN ACTIVITY FOR WHICH STRICT LIABILITY WILL BE IMPOSED

» MANY COURTS WILL CITE THE MAXIM “SIC UTERE TUO UT ALIENUM NON LAEDAS” (EVERY PERSON USE HIS PROPERTY SO AS NOT TO INJURE THE PROPERTY OF ANOTHER) AS THE BASIC PRINCIPLE OF NUISANCE LAW.

» THE MODERN CASES DO NOT APPLY THIS PRINCIPLE IN THE STRICT, LITERAL SENSE. SOME INTERFERENCE WITH ONE’S NEIGHBOR’S USE AND ENJOYMENT OF LAND IS GENERALLY PERMITTED SO LONG AS THAT INTERFERENCE IS NOT “UNREASONABLE.” IN DETERMINING WHETHER INTERFERENCE IS “UNREASONABLE”. THE COURTS WILL GENERALLY BALANCE THE SOCIAL AND ECONOMIC UTILITY OF THE D’S CONDUCT AGAINST THE HARM WHICH IT CAUSES TO THE P’S USE AND ENJOYMENT OF THE P’S LAND.
SOME SPECIFIC NUISANCE RULES
» WHERE STRUCTURES THAT SERVE A USEFUL PURPOSE CUT OFF THE NATURAL LIGHT AND AIR THAT WOULD OTHERWISE REACH AN ADJOINING PROPERTY, THE OWNERS OF THOSE STRUCTURES ARE NOT GENERALLY LIABLE TO THEIR NEIGHBORS FOR A NUISANCE.

A FEW COURTS HAVE ARTICULATED EXCEPTIONS TO THAT PRINCIPLE, HOWEVER, WITH REGARD TO “SPITE FENCES” THAT WERE MALICIOUSLY CONSTRUED WITH THE SOLE PURPOSE OF SHUTTING OUT A NEIGHBOR’S LIGHT AND AIR AND AS TO LAND USES THAT INTERFERE WITH A NEIGHBOR’S COLLECTION OF SOLAR ENERGY.

» GENERALLY, LIABILITY FOR A NUISANCE ONLY EXTENDS TO HARM THAT WOULD BE EXPERIENCED BY A NORMAL PERSON IN THE COMMUNITY, NOT TO HARM THAT WOULD ONLY BE SUFFERED BY A PERSON WHO IS UNUSUALLY SENSITIVE TO THE EFFECTS OF THE D’S CONDUCT.

» STRAY VOLTAGE FROM ELECTRICITY HAS BEEN HELD TO BE A NUISANCE PER ACCIDENS. HOWEVER, SUCH STRAY VOLTAGE DOES NOT CONSTITUTE AN INTENTIONAL NUISANCE UNLESS THE D CONTINUES TO SUPPLY ELECTRICITY WITH KNOWLEDGE THAT ITS EXCESSIVE VOLTAGE IS SUBSTANTIALLY CERTAIN TO INTERFERE WITH THE P’S USE AND ENJOYMENT OF LAND.
DEFENSES TO NUISANCE
» UNDER THE MAJORITY VIEW, P IN PRIVATE NUISANCE ARE ENTITLED TO MAINTAIN SUCH ACTIONS EVEN IF THE CONDUCT THAT IS ALLEGED TO CONSTITUTE A NUISANCE WAS BEGAN PRIOR TO THE TIME THAT THE P BEGAN TO OWN OR OCCUPY PROPERTY LOCATED CLOSE TO THE ALLEGED NUISANCE.

» ON THE OTHER HAND, A MINORITY OF STATES ADHERE TO THE “COMING OF THE NUISANCE DOCTRINE” WHICH PROVIDES D IN PRIVATE NUISANCE CASES A COMPLETE DEFENSE IF THEY CAN PROVE THAT THE P ONLY BEGAN TO OWN OR OCCUPY PROPERTY LOCATED NEAR TO THE D’S PROPERTY AFTER THE CONDUCT ALLEGED TO BE A NUISANCE WAS COMMENCED.
REMEDIES IN NUISANCE CASES
» P WHO PREVAILS IN NUISANCE ACTIONS ARE OFTEN AWARDED TEMPORARY OR PERMANENT DAMAGES IN COMPENSATION FOR THEIR LOSS OF THE USE AND ENJOYMENT OF THEIR PROPERTY.

» COURTS HAVE DISCRETION TO AWARD INJUNCTIONS IN NUISANCE ACTIONS. INJUNCTIVE RELIEF IS REQUIRED IN ALL NUISANCE CASES IN SOME STATES. ON THE OTHER HAND, COURTS IN OTHER JURISDICTIONS WILL DENY INJUNCTIVE RELIEF CASES WHERE THE P’S HARM FROM THE NUISANCE IS SLIGHT IN RELATION TO THE EXPENSE AND INCONVENIENCE TO THE D THAT AN INJUNCTION WOULD CAUSE.
Rylands v. Fletcher 1868
Justice Cranworth in this case agreed with Justice Blackburn and said: “If a person lawfully brings on his land something, which though harmless whilst it remains there, will naturally do mischief if it escapes out of his land, he does so at his peril. If it causes damage, he is responsible however careful he may have been. Further, “landowners who have brought something on their property which was not naturally there, harmless to others so long as it is confined to his own property, but which he knows to be mischievous if it gets on his neighbor’s should be obliged to make good the damage.”

MINTZ This case established the principle of strict liability for escape of materials accumulated on land. The P does not have to prove that the D was at fault. The P only has to prove that the D engaged in some strict liability activity, and, the D’s conduct must have been the cause in fact and the proximate cause of the P’s harm. Strict liability is sometimes also known as “no fault liability.” Note that Holmes said that, “the safest way to secure care is to throw the risk upon the person who decides what precautions shall be taken.”
TRESPASS TO CHATTELS (LITTLE BROTHER OF CONVERSIONS)
» ELEMENTS

I. D INTENTIONALLY INTERFERES WITH THE P’S POSSESSION OF CHATTELS (PERSONAL PROPERTY), AND

II. D ACTS INJURED OR HARMED THE P’S CHATTEL OR DEPRIVED THE P OF THE USE OF HIS CHATTEL.

» DEFENSES

 MISTAKE IS NOT A DEFENSE

 RETURN OF THE PROPERTY IS NOT NECESSARILY A DEFENSE

» REMEDY

 COMPENSATION FOR THE D’S USE OF THE P’S PROPERTY
CONVERSION (TORT VERSION OF LARCENY)
» ELEMENTS

I. D INTENTIONALLY INJURES OR HARMS P’S CHATTEL IN A SERIOUS FASHION, OR
II. D INTENTIONALLY AND SERIOUSLY DEPRIVES THE P OF HIS CHATTEL; USUALLY WITH THE GOAL OF TAKING “DOMINION AND CONTROL” OVER THE P’S CHATTEL.

» DEFENSES

 MISTAKE IS NOT A DEFENSE

 RETURN OF THE PROPERTY IS ONLY A DEFENSE WHERE IT IS DONE PROMPTLY AND WHERE IT RESULTS IN A NON SERIOUS DEPRIVATION OF THE P’S CHATTELS.

» REMEDY

 PAYMENT BY THE D TO THE P OF THE FULL MARKET VALUE OF THE CHATTEL.
Poggi v. Scott 1914
Justice Henshaw here said that “the foundation for the action of conversion rests neither in the knowledge nor the intent of the D. It rests upon the unwarranted interference by D with the dominion over the property of the P from which injury to the latter results. Therefore, the D has an absolute duty. The act itself is unlawful and redressible as a tort. Absence of bad faith can never excuse a trespass. In this case, the D had no legal right to sell the barrels whether or not they contained wine. The D was exercising an unjustifiable and unwarranted dominion and control over the property of another. This case stands for the principle that conversion does not require proof of fault (either intentionally or negligently).
THE REACH OF CONVERSION
Traditionally, trespass to chattels required the P to show that the D carried off goods that were in the P’s “possession.” The Latin name for the wrong was “de bonis asportatis” (the asportation of chattels). In contrast, conversion could be brought by any party who claimed either ownership rights in the thing or some right to its immediate possession.
Moore v. Regents of the University of California 1990
The court here said that “conversion protects against interference with possessory and ownership interests in personal property.” In this case the P did not expect to retain possession of his cells following their conversion and to sue for their conversion, he must have retained an ownership interest in them.

MINTZ If the use of cells in research is a conversion, then with every cell sample, a researcher purchases a ticket in a litigation lottery and would also cripple medical research. However, the court held that the doctors had violated their duty of disclosure because they should have disclosed their financial self interest.
Gehrts v. Batten 2001
When wild animals, such as a bear or wolf, are kept as pets, an owner is liable for injuries caused by the animal. This results even if the owner had no prior knowledge of the animal’s propensity to cause harm, and even if the owner has exercised the utmost care in preventing harm. Owners of domesticated animals may also be held liable for harm caused by their pet if the owner knows or has reason to know that the animal has abnormally dangerous propensities. As it is a cause of action sounding in negligence, the defenses of contributory negligence and assumption of the risk are available to temper this liability. The owner’s knowledge is generally imputed to the owner when there is evidence of at least one attack by the animal. In the case of a dog, evidence of the owner’s knowledge that it constantly barked, bared its teeth, and strained at its leash is sufficient to establish dangerous propensities, absent an actual attack.

MINTZ Strict liability is different from “absolute liability.” There are absolutely no defenses to absolute liability. There are, however, some defenses to strict liability such as acts of third parties.
BASIS OF LIABILITY FOR ANIMALS
The common statement that every dog is entitled to one free bite is not an accurate reflection of the general rule. According to the 2nd Restatement, a demonstrated tendency to bite is enough. The 3rd Restatement rejects the vicarious liability intuition by noting that the language of trespass is analytically imperfect: “a cow is obviously incapable of committing a tort.”

» In Woods-Leber v. Hyatt Hotels a rapid mongoose leaped out of the woods and bit the P while she was sunbathing at the D’s hotel. The strict liability case failed because the P could not show “at a bare minimum” that the hotel had possessed or owned the animal. The negligence claim failed because there was no warning or anticipation of a possible infestation of mongoose.
Spano v. Perini Corp. 1969
The court here held that, “one who engages in blasting must assume responsibility, and be liable without fault, for any injury he causes to neighboring property.”

MINTZ Remember that, if you are not able to prove that an activity classifies as an ultra hazardous activity, you are still able to bring a negligence cause of action (in fact, it is good to bring both claims). The court here refused to allow damages from indirect harm because it would be too much of an infringement on people to use land to build up cities.
» RESTATEMENT (2ND) OF TORTS. § 522. CONTRIBUTING ACTIONS BY THIRD PERSONS, ANIMALS AND FORCES OF NATURE
1. One carrying on an ultra hazardous activity is liable for harm under the rule stated in § 519, although the harm is caused by the unexpectable
a. Innocent, negligent or reckless conduct of a third party, or
b. Action of an animal, or
c. Operation of a force of nature.

Note that the Restatement takes the minority view and rejects these defenses based upon “External Forces” outside the D’s control.
RESTATEMENTS ON "DEFENSES FOR STRICT LIABILITY BASED UPON P'S CONDUCT"
» RESTATEMENT (2ND) OF TORTS. § 523. ASSUMPTION OF RISK
The P’s assumption of the risk of harm from an abnormally dangerous activity bars his recovery for the harm.


» RESTATEMENT (2ND) OF TORTS. § 524. CONTRIBUTORY NEGLIGENCE
1. Except as stated in Subsection (2), the contributory negligence of the P is not a defense to the strict liability of one who carries on an abnormally dangerous activity.
2. The P’s contributory negligence is knowingly and unreasonably subjecting himself to the risk of harm from the activity is a defense to the strict liability.


» RESTATEMENT (2ND) OF TORTS. § 524A. P’S ABNORMALLY SENSITIVE ACTIVITY
There is no strict liability for harm caused by an abnormally dangerous activity if the harm would not have resulted but for the abnormally sensitive character of the P’s activity.
Vogel v. Grant-Lafayette Electric Cooperative 1996
The court here concluded that nuisance law is applicable to stray voltage claims because excessive levels of stray voltage may invade a person’s private use and enjoyment of land. The court said that, while the P’s requested electrical service, they did not request excessive stray voltage to flow through their farm. Nevertheless, although excess stray levels may invade a person’s private use and enjoyment, the determination of whether it unreasonably interfered with a person’s interest in the private use and enjoyment of land is reserved for the trier of fact and has not been found in this case because the D rectified the problem once notified.

MINTZ Note that some courts adopt a public policy that private interests must endure “some inconvenience for the general public to receive the benefits of utilities.” In this case, per accidens nuisance was involved because putting in the electricity is not dangerous itself, but the stray voltage was a result of the construction, placement, and operation of the farm. Note that there are very few nuisances per se. One such example is a power plant that has a disposal area for nuclear waste.
FEAR OF INVASION AS A NUISANCE
The court in Adkins v. Thomas Solvent Co. held that, “the non trespassory invasion was strictly necessary for the nuisance action to go forward. He then concluded that negative publicity resulting in unfounded fear about dangers in the vicinity of the property does not constitute a significant interference with the use and enjoyment of land.”
ABSOLUTE PROPERTY RIGHTS
The rhetoric of absolute property rights, so dominant in the law of trespass to land, is much more muted in the law of nuisance. The convenience of such a rule may be indicated by calling it a rule of “give and take, live and let life.”
LOCALITY RULE
Persons living in organized communities must suffer some damage, annoyance and inconvenience from each other. For these they are compensated by all the advantages of civilized society. If one lives in the city he must expect to suffer the dirt, smoke, nuisance odors, noise and confusion incident to life.
Fontainebleau Hotel Corp. v. Forty-Five Twenty-Five 1959
The maxim “sic utere tuo ut alienum non laedas” does not mean that one must never use his own property in such a way as to do any injury to his neighbor. It means only that one must use his property so as not to injure the lawful “rights” of another. This case indicates that American courts traditionally rejected a common law easement for the light and air that pass over a neighbor’s property on the ground that such a rule would inhibit the growth of both towns and industry. The trial court here nevertheless allowed the injunction by applying the “maximum nuisance law” under which a D does not have the right to use his own property to harm another.

MINTZ There are two exception to the rule in this case: (1) “Spite Fences”, (2) A nuisance that interferes with someone’s solar energy cells.
Rogers v. Elliott 1888
The court here said that, “it is necessary to ascertain the natural and probable effect of the sound upon ordinary persons; not how it will affect a particular person.” This is the rule because if one’s right to use his property were to depend upon the effect of the use upon a person of peculiar temperament or disposition, or upon one suffering from uncommon disease, the standard for measuring it would be so uncertain and fluctuating as to paralyze industrial enterprises.”

MINTZ This case is consistent with the common law majority view, which held that liability for a nuisance is extended only to harm that would be experienced by a normal person. As such, the eggshell P rule does not apply.
Ensign v. Walls 1948
The court here concluded that D had not acquired by a “prescriptive” use the right to continue the nuisance. This court adopts the view that it is no defense to show that the P “came to the nuisance.” The D is not entitled to acquire by her unilateral conduct an easement to cause damage to the P’s property. The Restatement Section 840C provides that assumption of risk should be a defense in nuisance actions to the same extent as in other tort actions. Thus, the minority view holds that, it is an assumption of the risk by the P and applies to the “coming to the nuisance” defense. However, it could be argued under 840D that “it is a factor to be considered in determining whether the nuisance is actionable.”
PRINCIPLES OF TORT DAMAGES, INTRODUCTION
» IN GENERAL, THERE ARE TWO CATEGORIES OF DAMAGES IN TORT CASES: COMPENSATORY (OR ACTUAL) DAMAGES AND PUNITIVE DAMAGES. COMPENSATORY DAMAGES ARE INTENDED TO “MAKE THE P WHOLE”, OR, “AFFORD THE P THE EQUIVALENT IN MONEY OF THE LOSS CAUSED BY THE D TORT. IN CONTRAST, PUNITIVE DAMAGES HAVE TWO PURPOSES:

I. TO PUNISH THE D FOR HIS WRONG DOING AND,

II. TO DETER THE D, AND ANY OTHER POTENTIAL TORTFEASOR, FROM DOING WHAT THE P DID.
ELEMENTS OF A DAMAGE AWARD
A. PAIN AND SUFFERING
B. PAST LOST WAGES
C. PROJECTED FUTURE LOST WAGES
D. PAST MEDICAL EXPENSES
E. PROJECTED FUTURE MEDICAL EXPENSES
A. PAIN AND SUFFERING
IN ALMOST ALL STATES, P’S WHO PREVAIL IN PERSONAL INJURY ACTIONS ARE ENTITLED TO DAMAGES FOR ANY PHYSICAL PAIN AND SUFFERING, MENTAL ANGUISH AND, GRIEF AND HUMILIATION WHICH RESULTED FROM THE D’S TORT.
I. P’S ARE GENERALLY ENTITLED TO THESE DAMAGES WHETHER OR NOT THE D’S CONDUCT WAS WILLFUL OR MALICIOUS.
II. WHILE SOME STATES HAVE SANCTIONED THE AWARDING OF SEPARATE DAMAGES FOR PAIN AND SUFFERING AND FOR LOSS OF THE ENJOYMENT OF LIFE, MOST COURTS DO NOT PERMIT JURIES TO CALCULATE DAMAGES IN THIS WAY.
III. THE COURTS ARE DIVIDED AS TO WHETHER A P WHO IS PERMANENTLY COMATOSE AS A RESULT OF THE D’S TORTUOUS CONDUCT IS ENTITLED TO COMPENSATION FOR PAIN AND SUFFERING.
B. PAST LOST WAGES (AS A RESULT OF THE P HAVING BEEN UNABLE TO WORK IN THE PAST BECAUSE OF THE INJURY SHE SUSTAINED)
I. THE CURRENT TREND IS TO COMPUTE PAST LOST WAGES ON THE BASIS OF WHAT THE P’S AFTER TAX INCOME WOULD HAVE BEEN, RATHER THAN THE GROSS INCOME WHICH THE P LOST BECAUSE OF THE D’S TORT.
C. PROJECTED FUTURE LOST WAGES (AS A RESULT OF THE P BEING UNABLE TO WORK IN THE FUTURE BECAUSE OF THE INJURY SHE SUSTAINED)
I. IN MOST JURISDICTIONS, DAMAGE AWARDS FOR FUTURE LOST WAGES ARE “DISCOUNTED TO PRESENT VALUE” TO TAKE AWAY THE BENEFIT OF ANY WINDFALL THE P WOULD OTHERWISE RECEIVE BY INVESTING THE LUMP SUM AWARD FOLLOWING TRIAL AND RECEIVING INTEREST INCOME ON IT.
II. WHERE THE DAMAGES AWARD IS DISCOUNTED TO PRESENT VALUE, PROJECTED FUTURE LOST WAGES ARE NORMALLY ADJUSTED TO TAKE ACCOUNT OF PROJECTED FUTURE INFLATION.
III. THIS ITEM OF DAMAGES IS BASED SOLELY UPON WHAT THE P WOULD LIKELY HAVE EARNED IN THE FUTURE FOR HIS OR HER INJURY. WHAT THE P DID OR DID NOT EARN IN THE PAST IS NOT NECESSARILY RELEVANT TO DETERMINING THIS.
D. PAST MEDICAL EXPENSES
HOSPITALIZATION COSTS, DOCTOR’S BILLS, COST OF MEDICINE, ETC
COMPUTATION OF COMPENSATORY DAMAGES AWARDS
A. UNLESS THE PARTIES SPECIFICALLY PROVIDE OTHERWISE IN A SETTLEMENT AGREEMENT, DAMAGES IN TORT CASES ARE GENERALLY AWARDED IN ONE LUMP SUM FOLLOWING TRIAL.

B. DAMAGES RECEIVED IN TORT ACTIONS ARE GENERALLY NOT CONSIDERED TO BE “INCOME” WHICH IS SUBJECT TO TAXATION.
COLLATERAL BENEFITS RULE
AN INJURED P MAY GENERALLY RECOVER HIS OR HER DAMAGES IN FULL FROM THE D, REGARDLESS OF ANY COMPENSATION THE P MAY RECEIVE FROM A COLLATERAL SOURCE (I.E., INSURANCE, DISABILITY BENEFITS, SICK LEAVE)
ATTORNEY’S FEES
IN THE US, UNDER THE SO CALLED “AMERICAN RULE”, THE PARTIES MUST BEAR THEIR OWN LEGAL EXPENSES (EXCEPT WHERE PUNITIVE DAMAGES ARE INVOLVED)

I. VERY OFTEN, P’S LAWYERS IN DAMAGE SUITS ARE RETAINED UNDER A CONTINGENT FEE ARRANGEMENT, UNDER WHICH THE P’S ATTORNEY AGREES TO RECEIVE COMPENSATION ONLY OUT OF FUNDS THE P RECEIVES FROM THE D (BY JUDGMENT OR IN A LEGAL SETTLEMENT). IF THE P LOSES, THE P’S ATTORNEY RECEIVES NOTHING IN RETURN FOR THE ATTORNEY’S LEGAL SERVICES.

II. ON THE OTHER HAND, ATTORNEYS FOR D’S IN TORT ACTIONS ARE MOST OFTEN RETAINED ON THE BASIS OF AN HOURLY WAGE, THE AMOUNT OF WHICH IS NEGOTIATED, IN ADVANCE, BETWEEN THE D AND THEIR LAWYER.
JUDICIAL REVIEW OF JURY AWARDS
A. TRIAL AND APPELLATE COURTS ARE GENERALLY LOATHED TO MAKE CHANGES IN DAMAGE AWARDS WHICH JURIES ARRIVE AT.

B. COURTS WILL ONLY OVERTURN A JURY DETERMINED DAMAGE AWARD WHERE, ON THE FACTS, SUCH AN AWARD “SHOCKS THE CONSCIENCE” AND “SUGGESTS PASSION, PREJUDICE, OR CORRUPTION AT THE PART OF THE JURY.”

C. IN MANY STATES, TRIAL COURTS THAT VIEW A JURY VERDICT AS EXCESSIVE AND UNJUSTIFIED ARE AUTHORIZED TO ISSUE AN ORDER OF REMITTITUR UNDER WHICH THE P IS REQUIRED TO ACCEPT THE AWARD OF A LESSER AMOUNT OF DAMAGES THAN THE JURY DECIDED TO GIVE HIM OR HER, OR MOVE FOR A NEW TRIAL.

CONVERSELY, TRIAL COURTS IN MANY STATES ALSO HAVE THE AUTHORITY TO GRANT AN ORDER OF ADDITUR UNDER WHICH THE D MUST PAY A GREATER AMOUNT IN DAMAGES THAN THE JURY PRESCRIBED, OR MOVE FOR A NEW TRIAL.
MITIGATION OF DAMAGES
» GENERALLY, P’S IN TORT CASES HAVE A DUTY TO TAKE “ALL REASONABLE STEPS” TO LESSEN THEIR OWN LOSS AFTER THEY HAVE SUFFERED HARM THROUGH THE TORTUOUS CONDUCT OF ANOTHER. D’S ARE USUALLY NOT HELD RESPONSIBLE FOR ANY HARM WHICH THE P COULD HAVE AVOIDED BY TAKING SUCH STEPS.
DAMAGES FOR WRONGFUL DEATH
I. AT EARLY COMMON LAW, THERE WAS GENERALLY NO ACTION FOR WRONGFUL DEATH.

II. HOWEVER, IN MOST STATES TODAY WRONGFUL DEATH ACTIONS MAY BE MAINTAINED UNDER COLOR OF A WRONGFUL DEATH STATUTE.

III. IN A MAJORITY OF STATES, WRONGFUL DEATH ACTIONS MAY ONLY BE BROUGHT, PURSUANT TO “LOSS TO SURVIVOR” STATUTES, BY ONE OR MORE SURVIVING DEPENDENT RELATIVE(S) OF THE WRONGFULLY KILLED DECEDENT.

A. IN THOSE STATES, THE CLASS OF SURVIVING DEPENDENTS WHO MAY MAINTAIN SUCH ACTIONS USUALLY INCLUDES SURVIVING DEPENDENT SPOUSES, CHILDREN, PARENTS, GRANDCHILDREN AND GRANDPARENTS OF THE DECEDENT.

IV. IN A MINORITY OF STATES, ON THE OTHER HAND, WRONGFUL DEATH ACTIONS MAY ONLY BE MAINTAINED BY THE ESTATES OF WRONGFULLY KILLED DECEDENTS.
DAMAGE AWARDS IN WRONGFUL DEATH ACTIONS GENERALLY INCLUDE MONEY FOR
A. THE DECEDENT’S PAST AND FUTURE LOST WAGES, AND

B. THE DECEDENT’S PRE DEATH MEDICAL EXPENSES, AND

C. THE PAIN AND SUFFERING THAT THE DECEDENT’S DEATH CAUSED TO HIS OR HER SURVIVING RELATIVES.

VI. WRONGFUL DEATH STATUTES DO NOT GENERALLY AUTHORIZE DAMAGES FOR THE PAIN AND SUFFERING EXPERIENCED BY THE DECEDENT BEFORE SHE DIED

» HOWEVER, COMPENSATION FOR THAT PAIN AND SUFFERING IS OFTEN AUTHORIZED SEPARATELY BY TORT CLAIM “SURVIVAL STATUTES.”
SURVIVAL OF PERSONALLY INJURY ACTIONS
I. IN NEARLY ALL AMERICAN STATES, LEGISLATURES HAVE ENACTED SURVIVAL STATUTES WHICH PROVIDE THAT TORT CLAIMS WILL SURVIVE THE DEATH OF EITHER (OR BOTH) THE P AND THE D.

II. SUCH STATUTES SUPPLEMENT WRONGFUL DEATH ACTIONS BY ALLOWING P’S DECEDENT’S ESTATE (OR SURVIVING BENEFICIARIES) TO RECOVER DAMAGES FOR THE PAIN AND SUFFERING EXPERIENCED BY THE DECEDENT UP TO THE TIME OF HIS DEATH.
DAMAGES FOR LOSS OF CONSORTIUM
I. MOST AMERICAN JURISDICTIONS ALLOW INDEPENDENT ACTIONS FOR LOSS OF CONSORTIUM.

II. SUCH ACTIVITIES MAY BE BROUGHT UP BY SPOUSES, CHILDREN OR PARENTS OF INDIVIDUALS WHO HAVE BEEN HARMED AS A RESULT OF THE TORTUOUS CONDUCT OF OTHERS.

III. DAMAGES IN LOSS OF CONSORTIUM ACTIONS COMPENSATE THE P FOR LOSS OF THE COMPANIONSHIP, SERVICES, INCOME, AND, OR AFFECTION OF THE PERSON WHO HAS BEEN INJURED OR KILLED BY THE D, AS WELL AS FOR ANY MEDICAL EXPENSES THE P WAS REQUIRED TO PAY ON THE VICTIM’S BEHALF.
PUNITIVE DAMAGES
I. GENERALLY, TO RECOVER PUNITIVE DAMAGES, SUCCESSFUL TORT P’S ARE NOT REQUIRED TO INTRODUCE EVIDENCE CONCERNING THE D’S NET WORTH.

II. THE CONSTITUTIONALITY OF PUNITIVE DAMAGES HAS BEEN CHALLENGED IN A NUMBER OF CASES.

A. THE US SUPREME COURT HAS HELD THAT PUNITIVE DAMAGE AWARDS VIOLATE THE 14TH AMENDMENT DUE PROCESS REQUIREMENTS ONLY WHEN THEY ARE “GROSSLY EXCESSIVE.”
THE COURT HAS ESTABLISHED THREE GUIDEPOSTS TO DETERMINE WHEN PUNITIVE DAMAGES ARE GROSSLY EXCESSIVE
I. THE DEGREE OF REPREHENSIBILITY OF THE D’S CONDUCT, AND

II. THE RATIO OF PUNITIVE DAMAGES TO THE P’S ACTUAL HARM, AND

III. THE RELATIONSHIP BETWEEN THE PUNITIVE DAMAGE AWARD AND THE CIVIL OR CRIMINAL PENALTIES THAT COULD BE IMPOSED FOR COMPARABLE MISCONDUCT.
VICARIOUS LIABILITY
A. AS A GENERAL RULE, AN EMPLOYER IS RESPONSIBLE FOR ALL TORTS OF HIS OR HER EMPLOYEES THAT ARISE OUT OF AND IN THE SCOPE OF EMPLOYMENT.

» THIS IS TRUE WHETHER OR NOT THE EMPLOYER WAS NEGLIGENT IN SELECTING OR SUPERVISING THE EMPLOYEES AND EVEN IN SITUATIONS WHERE THE EMPLOYER HAS EXPRESSLY FORBIDDEN THE VERY CONDUCT THAT CONSTITUTED THE EMPLOYEE’S NEGLIGENCE.
VICARIOUS LIABILITY, COURTS HAVE USED SEVERAL TESTS TO DETERMINE IF AN EMPLOYEE’S TORTUOUS CONDUCT TOOK PLACE “IN THE SCOPE OF EMPLOYMENT.”
I. UNDER ONE TEST, THE “MOTIVE TEST”, CONDUCT OF AN EMPLOYEE IS DEEMED WITHIN THE SCOPE OF EMPLOYMENT IF IT IS ACTUATED, AT LEAST IN PART, BY A PURPOSE TO SERVE THE EMPLOYER.

II. UNDER ANOTHER TEST, AN EMPLOYEE’S WRONGFUL CONDUCT IS IN THE SCOPE OF EMPLOYMENT IF THE EMPLOYER COULD “REASONABLY FORESEE” THAT THE EMPLOYEE WOULD ENGAGE IN SUCH CONDUCT.

III. WHERE AN EMPLOYEE DEVIATES FROM A ROUTE SET BY HIS OR HER EMPLOYER, THE EMPLOYER IS VICARIOUSLY LIABLE WHERE THE EMPLOYEE COMMITS A TORT DURING A “SMALL DEVIATION” BUT NOT DURING A “LARGE DEVIATION.”
VICARIOUS LIABILITY, SEXUAL HARRASSMENT CREATED BY "SUPERVISOR WITH AUTHORITY OVER EMPLOYEE"
EMPLOYERS ARE VICARIOUSLY LIABLE FOR SEXUAL HARASSMENT WHERE A “HOSTILE ENVIRONMENT” IS CREATED BY A SUPERVISOR WITH AUTHORITY OVER AN EMPLOYEE UNLESS:

I. THE EMPLOYER EXERCISED REASONABLE CARE TO PREVENT AND CORRECT PROMPTLY ANY SEXUALLY HARASSING BEHAVIOR, AND, OR

II. THE EMPLOYEE UNREASONABLY FAILED TO TAKE ADVANTAGE OF ANY PREVENTIVE OR CORRECTIVE OPPORTUNITIES TO AVOID HARM THAT WERE PROVIDED BY THE EMPLOYER.
INDEMNIFICATION (“REIMBURSEMENT”)
AN EMPLOYER WHO HAS BEEN HELD VICARIOUSLY LIABLE MAY RECOUP HIS OR HER LOSSES OR BRINGING AN ACTION FOR INDEMNIFICATION (“REIMBURSE”) AGAINST THE EMPLOYEE WHOSE TORTUOUS CONDUCT CAUSED THE EMPLOYEE’S LOSS.
HMO’S MAY BE HELD VICARIOUSLY LIABLE FOR MALPRACTICE BY THEIR INDEPENDENT CONTRACTOR PHYSICIANS
IN SOME JURISDICTIONS, HMO’S MAY BE HELD VICARIOUSLY LIABLE FOR MALPRACTICE BY THEIR INDEPENDENT CONTRACTOR PHYSICIANS (NOTWITHSTANDING THE GENERAL RULE THAT EMPLOYERS ARE NOT VICARIOUSLY LIABLE FOR THE TORTS OF INDEPENDENT CONTRACTORS), WHERE AN AGENCY RELATIONSHIP IS ESTABLISHED UNDER EITHER THE DOCTRINE OF APPARENT OR IMPLIED AUTHORITY.
APPARENT AUTHORITY AGAINST AN HMO
I. TO ESTABLISH APPARENT AUTHORITY AGAINST AN HMO FOR PHYSICAL MALPRACTICE, A PATIENT MUST PROVE THAT:

A. THE “HMO HELD ITSELF OUT AS THE PROVIDER OF HEALTH CARE”, WITHOUT INFORMING THE PATIENT THAT THE CARE WAS TO BE GIVEN BY INDEPENDENT CONTRACTORS, AND

B. THE PATIENT JUSTIFIABLY RELIED ON THE CONDUCT OF THE HMO BY LOOKING TO THE HMO (RATHER THAN TO A SPECIFIC PHYSICIAN) TO PROVIDE HEALTH CARE SERVICES.
IMPLIED AUTHORITY AGAINST AN HMO
II. TO ESTABLISH IMPLIED AUTHORITY AGAINST AN HMO, THE P MUST PROVE THAT THE HMO RETAINED “ENOUGH AUTHORITY TO MAKE DECISIONS ABOUT PATIENT HEALTH CARE" THAT PHYSICIANS ASSOCIATED WITH THE HMO WERE NO LONGER INDEPENDENT CONTRACTORS IN CONTROL OF THEIR PATIENTS’ TREATMENT.
INDEPENDENT CONTRACTORS
INDEPENDENT CONTRACTORS ARE PERSONS WHO HAVE A RIGHT TO “CONTROL THE MANNER, MEANS AND DETAILS” OF THE SERVICES THEY PROVIDE. IN GENERAL, THEIR EMPLOYERS ARE NOT VICARIOUSLY LIABLE FOR THEIR TORTS.

» HOWEVER, WHERE INDEPENDENT CONTRACTORS PERFORM WORK THAT IS INHERENTLY DANGEROUS TO OTHERS, THEIR EMPLOYERS MAY BE HELD VICARIOUSLY LIABLE FOR PHYSICAL HARM CAUSED TO SUCH OTHERS BY THE CONTRACTORS’ “NEGLIGENT PERFORMANCE” OF THE WORK IN QUESTION.
THE EMPLOYEE, INDEPENDENT CONTRACTOR DISTINCTION
EMPLOYEE: A PERSON EMPLOYED TO PERFORM A SERVICE WHO IS SUBJECT TO THE ROUTINE CONTROL OF HIS OR HER EMPLOYER WITH REGARD TO THE DETAILS OF HIS OR HER WORK (EMPLOYER IS VICARIOUSLY LIABLE.)

INDEPENDENT CONTRACTOR: A PERSON EMPLOYED TO PERFORM A SERVICE WHO HAS INDEPENDENCE WITH REGARD TO THE MANNER, MEANS AND DETAILS OF PERRFORMING THAT SERVICE (NO VICARIOUS EMPLOYER LIABILITY UNLESS A) WORK IS INHERENTLY DANGEROUS OR B) THERE IS APPARENT OE IMPLIED AUTHORITY.)
REMITTITUR
A POST TRIAL COURT ORDER THAT GIVES A P THE OPTION OF ACCEPTING A SPECIFIC REDUCTION IN THE SIZE OF A JURY AWARD PARTICIPATING IN A NEW TRIAL.
ADDITUR
A POST TRIAL COURT ORDER THAT GIVES THE D A CHOICE OF ACCEPTING A SPECIFIC INCREASE IN THE SIZE OF A JURY AWARD OR PARTICIPATING IN A NEW TRIAL.
COMPENSATORY DAMAGES
DAMAGES INTENDED TO “MAKE THE P WHOLE” (TO THE EXTENT POSSIBLE). I.E., TO PUT THE P IN THE POSITION THE P WOULD HAVE BEEN IN IF HE OR SHE WERE NOT HARMED.
PUNITIVE DAMAGES
DAMAGES INTENDED TO PUNISH THE WRONGDOER FOR MALICIOUS, INTENTIONAL OR GROSSLY NEGLIGENT CONDUCT, AND TO SET AN EXAMPLE THAT DETERS OTHER POTENTIAL TORTIOUS CONDUCT
Sullivan v. Old Colony Street Railway 1909
The principle on which damages is founded is compensation. Its object is to afford the equivalent in money for the actual loss caused by the wrong of another.
McDougald v. Garber 1989
“By nonpecuniary damages, we mean those damages awarded to compensate an injured person for the physical and emotional consequences of the injury, such as pain and suffering and the loss of the ability to engage in certain activities. Pecuniary damages, on the other hand, compensate the victim for the economic consequences of the injury, such as medical expenses, lost earnings and the cost of custodial care.” The court here held that: (1) some degree of cognitive awareness is a prerequisite to recovery of damages for loss of enjoyment of life, and (2) the jury may not be instructed to consider and may not award damages for loss of enjoyment of life separately from damages for pain and suffering. Remember that the typical elements of pain and suffering include worry, anguish and grief.
Duncan v. Kansas City Southern Railway 2000
General damages are those which may not be fixed with pecuniary exactitude; instead, they involve mental or physical pain or suffering, inconvenience, the loss of intellectual gratification or physical enjoyment, or other losses of life or life style which cannot be definitely measured in monetary terms. Vast discretion is accorded the trier of fact in fixing general damage awards. Future medical expenses must be established with some degree of certainty. Awards will not be made in the absence of medical testimony.

MINTZ Remember that many courts now “cap damages”, especially in medical malpractice cases. Some courts calculate, taking account to the fact that there is other income for the P.
STRUCTURED SETTLEMENTS
These settlements pay P’s damages in periodic installments rather than in a single lump sum. Structured settlements may be either contingent or absolute. A settlement is contingent if it calls for so much per year as long as the P needs medical treatment. Periodic payments contingent upon P’s condition are common in the workers’ compensation area, in which the rehabilitation and treatment of the injured employee is heavily monitored.

MINTZ Structured settlements are periodic installments adjusted to inflation.
FEE SHIFTING
The largest item of expense in any litigation is attorney’s fees, followed in many cases by expert witness fees. Under the American Rule, these costs are borne by the respective parties, win or lose. In ordinary tort litigation, attorney’s fees are rarely awarded, only when the prevailing party can clearly demonstrate that the other side advanced a claim or defense that was frivolous or malicious.

Both the English and the Continental systems use fee shifting, which entitles the winning party to recover its “reasonable” attorney’s fees from the losing party as a matter of course (usually as determined by a taxing master).
Harding v. Town of Townshend 1871
The “insurer and the D are not joint tortfeasors or joint debtors” so as to make a payment or satisfaction by the former operate to the benefit of the latter. Nor is there any legal privity between the D and the insurer so as to give the former a right to avail itself of a payment by the latter. The policy of insurance is collateral to the remedy against the D, and was procured solely by the P and at his expense, and to the procurement of which the D was in no way contributory.

MINTZ The law rationalizes that the claimant should benefit from the collateral source recovery rather than the tortfeasor, since to the tortfeasor, it would be a total windfall.
SUBROGATION AND REIMBURSEMENT
A way to avoid double payments to injured parties is to allow the parties that have paid the collateral benefit to recover them from the award. Systems of this sort can come in two varieties. The first, “subrogation”, gives the collateral source the power to participate in, or even control, the tort litigation, and to recover its expenses from the tort claimant. “Reimbursement”, leaves the injured party in full control over the litigation, and allows the insurer to recover its expenses only from the proceeds of recovery. The normal default rule appears to compensate the injured party in full for pain and suffering damages before the subrogee is entitled to reimbursement for medical expenses.
WRONGFUL DEATH AND LOSS OF CONSORTIUM AT COMMON LAW
» Both types of suit vindicate the “relational interest” of the P to the person injured or killed. The chief common law protection of relational interests was found in the action “quod servitium amiserit” (“because the service has been lost”) given only to a man whenever the D injured his wife, child or servant, thereby preventing them from rendering valuable services.
Types of Wrongful Death Statutes
1. Loss of Survivors Statutes
2. Loss of Estate Statutes

Under the “loss to survivors” test, the D must pay damages only if some beneficiary depends upon the decedent for support. Under the “loss to estate” test, damages will be awarded against the D even if the D had not dependents at the time of death. Most jurisdictions have adopted a “loss to survivors” test as the measure to damages.
GUIDEPOSTS FOR JUDICIAL REVIEW OF PUNITIVE DAMAGE AWARD (“THE GORE FACTORS”)
1. DEGREE OF REPREHENSIBILITY OF THE D’S MISCONDUCT

2. DISPARITY BETWEEN THE P’S COMPENSATORY DAMAGE AWARD AND THE PUNITIVE DAMAGE AWARD

3. DIFFERENCE BETWEEN THE PUNITIVE DAMAGES AWARD AND THE MAXIMUM POSSIBLE STATE LAW CIVIL PENALTY IN COMPARABLE CASES.
Kemezy v. Peters 1996
The standard judicial formulation of the purpose of punitive damages is that it is to punish the D for reprehensible conduct and to deter him and others from engaging in similar conduct. An award of punitive damages expresses the community’s abhorrence at the D’s act.

MINTZ The court here also said that, “a P seeking punitive damages is never required to introduce evidence concerning D’s net worth, and if D is to be fully indemnified, such evidence is inadmissible.”
CAP IN FLORIDA
STATUTORY REFORM OF PUNITIVE DAMAGES. Florida imposes an across the board cap on punitive damages equal to three times compensatory damages, unless the fact finder determines that at the time of injury the D had a specific intent to harm the claimant and determines that the D’s conduct did in fact harm the claimant, in which case there shall be no cap on punitive damages.
State Farm Mutual Automobile Insurance Co. v. Campbell 2003
Compensatory damages are intended to redress the concrete loss that the P has suffered by reason of the D’s wrongful conduct. By contrast, punitive damages serve a broader function; they are aimed at deterrence and retribution. The court in this case considered three guideposts set out in BMW of North American v. Gore: (1) the degree of reprehensibility of the D’s misconduct; (2) the disparity between the actual or potential harm suffered by the P and the punitive damages award; and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases. In sum, when awarding punitive damages, courts must ensure that the measure of punishment is both reasonable and proportionate to the amount of harm to the plaintiff and to the general damages recovered.

MINTZ The court in this case said that the damages were so excessive so as to violate the due process clause of the 14th Amendment. Remember that the court of appeals should apply a de novo standard of review when passing on district courts’ determination of the constitutionality of punitive damages award. This is to ensure that an award of punitive damages is based upon an “application of law, rather than a decisionmaker’s caprice.”

» The de novo standard applies to trial court decisions of law: appellate courts are not required to defer to these decision and review them de novo (as if they were “new”). The clearly erroneous standard applies to findings of fact by a trial judge.
Ira S. Bushey & Sons, Inc. v. United States 1968
What is reasonably foreseeable in this context of respondeat superior is quite a different thing from the foreseeably unreasonable risk of harm that spells negligence. The employer should be held to expect risks, to the public also, which arise “out of and in the course of” his employment of labor. It is foreseeable that a drunken sailor might cause damage while crossing a drydock on the way back to his ship.

MINTZ Vicarious liability is also known as the doctrine of “respondeat superior” (let the superior answer).
INTENTIONAL TORTS
A theory of “direct negligence” offers an alternative route for recovery against the employer when the torts of the employee fall outside the scope of employment.
OWNER CONSENT STATUTES
Even when the actual tortfeasor is not the employee of the D, principles of vicarious liability may still be an important source of liability, under so called “owner consent statues” which enable the victim of a tort to sue not only the driver of a vehicle but also its owner.
Petrovich v. Share Health Plan of Illinois 1999
As a general rule, no vicarious liability exists for the actions of independent contractors. Vicarious liability may nevertheless be imposed for the actions of independent contractors where an agency relationship is established under either the doctrine of apparent authority or the doctrine of implied authority. Thus, a principal will be bound not only by the authority that it actually gives to another, but also by the authority that it appears to give. The doctrine functions like an estoppel. Implied authority is actual authority, circumstantially proved.