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156 Cards in this Set
- Front
- Back
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Respondeat Superior/Vicarious Liability
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A can have imputed negligence on behalf of B – Respondeat superior
In one sense a form of strict liability – who should best be able to bear loss? |
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Birkner Criteria
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*Conduct was general kind employee was hired for
*Occurred substantially within the hours and spatial boundaries of employment *Motivated by serving employers interest |
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Apparent Agency Criteria
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(1) principle “represents” direct agency
(2) reliance on representation by 3rd party (3) change in position by 3rd party resulting from reliance (Roessler v. Novak) |
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Apparent Agency Restatement (409)
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2nd R § 409 – employers of independent contractors not liable for harm done by them unless creates apparent agency
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Prima Facie Case for Negligence
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Prima Facie Cause of action: duty breach cause in fact proximate cause loss/damage
No more extraordinary care | care which prudent/cautious men will use | [Brown v. Kendall] |
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General Standard of Care
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General Standard is Reasonable care. Acting with due care to foreseeable accidents [Adams v. Bullock]
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Hand's Formula
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P(a) * Gravity > burden of precaution = liable
Purely economic |
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Reasonable Person
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Objective, hypothetical, reasonable person with reasonable prudence, embodying all societal standards [abandoning “highest” care/ “extraordinary care” | used for train operators, person hurt in seat | Bethel v. NYC Transit]
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Children & Negligence
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generally not liable unless doing adult activity | parents can be vicariously liable
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Insanity
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Must be held to standard normal standard
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Custom
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Juries can use custom/trade usage/business practice/ to decide if D was acting as a RP. [plaintiff cut because of breakable glass used as shower door - Trimarco v. Klein]
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Statutory Duty
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Statute’s can dictate what constitutes negligence. Juries cannot relax this standard [plaintiff not having headlights on buggy = negligence Martin v. Herzog ]
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Per Se Negligence
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negligence established as a matter of law so that breach of duty is never a jury questions | arises from statutory violation | STRONGEST NEGLIGENCE CLAIM
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Excuses to Per Se
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Per se negligence is flexible according to situation and P’s view of what is safe. Provides General Standard of Conduct [p’s deciding it was more safe to keep to left side of road – struck by car. D held negligent despite statute - Tedla v. Ellman]
EXCUSES TO PER SE: Telda – violating statute safer Where d has exercised reasonable care toward compliance Where defendant had sudden incapacity |
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Prima Facie vs. Per Se
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Prima Facie vs. Per Se = Jury vs. Judge deciding negligence
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Constructive Notice
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Contructive notice = visible and apparent | must exist for a sufficient length of time to permit defendant’s employees to discover/remedy. [P slipped on paper outside D’s concession stand Gordon v. American Museum of Natural History]
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Res Ipsa Loquiter
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Res Ipsa Loquiter - negligence speaks for itself – establishes prima facie negligence without evidence of breach. Automatically shifts burden to D
(1) plaintiff must establish that the instrumentality causing injury was under exclusive control of d (2) Accident would not have occurred w/o negligence on d’s part (3) must not be due to any voluntary action of contribution on the part of the plaintiff Joint control can negate this. Plaintiff MUST define instrumentality [barrel of flour falls on p’s head. P can’t remember what happened. Byrne v. Boadle] | [P struck by spare tire from D’s car McDougall v. Perry] |
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Medical Malpractice
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Because of sensitivity of medical injuries, conduct is measured as reasonably prudent doctor
Plaintiff must present expert witness testimony Differs from normal custom Special relationship/diagnosis implies an affirmative duty |
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General Duty
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§ 7 – if but for d’s existence in the world risk would not exist = duty
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Affirmative Duties
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special relationships
social companions |
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misfeasance
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illegal/improper performance of lawful actions | but for d's existence in the world injury would not have happened
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nonfeasance
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failure to do what ought to be done
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superior knowledge
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Foreseeability is not enough to make a duty. Special relationship needs to be proved. Superior knowledge insufficient to create duty [p says d had duty to warn water was shallow Harper v. Herman]
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Superior knowledge + your own conduct
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§ 322 – if you know or have reason to know that by your conduct you have caused harm, you have duty to exercise reasonable care to prevent further harm
You have a duty to remove a hazard that you non-negligently created [ex. Knocking down power lines] § 321 – if you do something and afterward realize you crated a risk you have a duty of reasonable care to prevent the risk from happening, even if at the time you didn’t believe your actions would create risk Even if recognition is years later |
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assumption of duty
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Beginning performance = assumption of duty. [D was drinking with P, P got hurt, D started to rescue then stopped. P died. Farwell v. Keaton]
§ 324 – a person who helps with a prior lack of duty is liable if fails to exercise reasonable care or discontinues aid/protection and leaves P in worse position. |
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Third Party Duties
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Duty to third party exists if you intentionally and negligently provide false information to someone which then affects third party. Half truth portrayed as entirety = lie.
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TPD II
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§ 311- misfeasance – one who negligently gives false information is liable for physical harm caused by action taken by other in reasonable reliance upon such info where harm results (1) to the other or (2) to such third parties as the actor shouls reasonably expect to be put in peril by the action taken. Such negligence may consist of failure to exercise reasonable care (1) in ascertaining the accuracy of the information or (2) in the manner in which it is communicated [p harmed by d falsely recommended school teacher who abused her Randi W v. Muroc Joint Unified School District]
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Conditions for excepting standard duty rule
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Foreseeability of harm to plaintiff
Degree of certainty that plaintiff suffered injury Closeness of connection b/t d’s conduct and injury Moral blame Policy of preventing future harm Extent of d’s burden Consequences to community of imposing duty Availability, cost, prevalence of insurance for risk involved |
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Duty to Warn
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Whenever one person by circumstances is in a position where if reasonable care is not used another will be harmed, duty arises. Foreseeability is key. [Psychiatrist has duty to warn third party if patient has violence intentions. Tarasoff v. Regents of the Univ of California]
§ 315 – an actor who knows/should know that she has the ability to control the third person and knows/should know the need for action has a duty Some courts say third parties must be known Some courts say physicians don’t have to warn about drug side effects Some courts “no duty to warn in suicides” |
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Private Right of Action
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Whether p is covered under statute
Whether private right of action would promote legislative purpose Whether creation of this right would be in tune with legislative scheme [where statute has its own enforcement scheme, no private right of action and no statutory duty. Uhr v. East Greenbuch Central School District] |
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Public Utilities
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Public utilities do not have duties to their users – would put them out of business. Importance of privity since public utility often does not have a direct relationship with individuals, but with buildings instead. [P sues electric company when he fell in a dark stairwell in apartment building. Strauss v. Belle Realty Co.]
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Social Guests
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Does a duty exist for P to be responsible for the conduct of a third-party in a social relationship? [underage drunk minor hits P. P sues D who provided alcohol Reynolds v. Hicks
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Negligent Entrustment
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Negligent entrustment is often misfeasance
§ 390 – one who supplies directly or through a third party a chattel for the use of another whom the supplier knows or has reason to know to be likely because of youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them. [D provided money for a car to a knowingly irresponsible driver who injured P. Vince v. Wilson] |
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Trespasser
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Trespasser – no duty except no affirmative harmful acts unless trespasser is known then treated as:
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LIcensee
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Licensee – reasonable care against known dangers (social guests subclass here)
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Invitee
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Invitee (only one with permission + business interest) reasonable care against known dangers AND those that could be revealed upon reasonable inspection [P slipped on ice. Since classified as licensee, no duty unless conditions were known. Carter v. Kinney]
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trespass and foreseeability
(jurisdiction II) |
Consider foreseeability, purpose on premesis, time/manner/circumstance, use to which premesis are put/expected to be put, resonableness of inspection, repair or warning, opportunity and ease of repair/warning, burden on occupier in providing protection [P slipped outside hospital, although damage was foreseeable court says can’t collect unless we rid categories of premesis liability Heins v. Webster County]
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3rd party proteciton - premesis
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Specific harm rule – no duty unless aware of specific imminent harm
Prior similar incidents – looks to foreseeability, recency, frequency Totality of the circumstances – nature/condition/location of land Balancing – balances foreseeability against burden of imposing a duty to protect. [P robbed in D’s parking lot. Court says impossible to have guards patrolling parking lot. No duty. Posecai v. Wal-Mart Stores, Inc.] |
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immunity - intrafamily
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Family have reasonable person standard to each other. Parents have reasonable/prudent parent standard under the circumstances [P left in swimming pool, nearly drowned, and suffered brain damage Broadbent v. Broadbent]
Parents still have immunity from duty in some jurisdictions No duties owed to fetus Religious beliefs must yield when jeopardize a child’s health |
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soveriegn immunity
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Police protection is limited by resources and by decisions of how to allocate these resources. Therefore, police do not have an affirmative duty to help, despite being asked [P killed despite asking police help multiple times to protect her from bf Riss v. City of NY] police can’t possibly protect everyone. Duty to public not individual [sara’s words of wisdom]. Distinguishable from when police say they will help and do not follow through [then they have allocated their resources and must follow through]. Assumption of rescue there. Municipalities immune for governmental f(x) but not proprietary f(x).
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State employees
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State employees have no duty to members of the public for general activity. State duty is to citizens as entirety, not to individuals. Despite conduct being ministerial (ie requiring adherence to a governing rule) as opposed to discretionary (involving reasoned judgment) an individual can’t recover from public purse unless has a very specific complaint. [P sues for emotional distress damages due to D’s negligence in allowing P to be accused of his son’s murder - Lauer v. City of NY]
Once state makes decision to reconcile a defective condition a duty is imposed to act reasonably and not to unreasonably delay solution. State has chosen its method of allocating resources and must follow through. Here governmental immunity is qualified (taken from Weiss). [Multiple P’s claim defective road where D had plan to fix but hasn’t gone through with it. Friedman v. State of NY] |
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emotional harm - old standard
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you can only collect for emotional harm when it manifests from physical impact
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Emotional harm - new standard
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negligence causing fear of immediate personal injury, despite no physical impact, can make D liable for resulting emotional distress
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EGSPR
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D is liable even if P is predisposed to injury. Must take P as he is found
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SED
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Serious emotional distress when a reasonable person would be unable to adequately cope with mental strain. A person’ psyche as much a matter of protection as their body [man and father’s leg - Gammon]
Objective manifestion of harm is arbitrary as long as harm was generally foreseeable [no juris has adopted this] |
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Dillon Factors
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P needs to be near scene of
ED needs to be from direct observance of accident (not hearing about it) Plaintiff/victim must be closely related [Portree v. Jaffee – child dies in elevator] |
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ED - tests
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These rules are vague – look at various rules/tests and take facts and see which applies where. Talk about all policies relevant
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Pecuniary Interest Test
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§ 552 test – pecuniary interest. False information for the guidance of others subject to liability for penuniary loss caused by justifiable reliance upon the info if D does not exercise reasonable care or competence
Must be where D intends to have information influence – or knows the recipient will rely on Intend to reach/influence is key [Nycal Corp – third party suing accountants for relying on their audits] |
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cause in fact
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You do not have to rule out every possibility in order for a jury to draw reason nable inferences of cause in fact [Stubbs v. Rochester – bad drinking water alleged to cause plaintiff’s typhoid]
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substantial factor
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Besides proving fault, plaintiff must establish causal relationship b/t negligence/failure to act and resulting injury by showing the action/omission was a substantial factor in producing injury [Zuchowicz v. US – plaintiff od’s on medication and it caused rare condition]. Plaintiff must prove D’s NEGLIGENCE caused injury (not just D caused injury). Injury alone does not mean negligence was cause in fact – negligence must increase risk, creating prima facie case so burden will shift to D.
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but for cause
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Expert testimony often used to establish this in medical/other cases
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loss of chance
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D can be liable if his negligence caused NOT a loss but a LOSS of opportunity to save. [Alberts v. Schultz – leg amputation case]
Plaintiff must prove EACH element Underlying injury caused by problem Exacerbation of problem caused by D Damages awarded based on proportion of percentage value of “lost of chance” (ex. Leg woth 100K. Lost change of 20%. P recovers 20k) % of entire life - % of value of lost chance |
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joint liability
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Joint – plaintiff recovers all liability from only one D who then sues others for indemnification
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Several Liability
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Several – each D only pays its own share of fault
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Concerted Action
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Concerted Action Theory - [Summers v. Tice – two shooters who injured P can’t decide who shot]
When you can’t tell who caused injury – both liable Burden is shifted to D’s to decide |
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market share
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Market Share Liability - [Hymowitz v. Eli Lilly – drug caused harm, can’t decide who manufactured]
Using national market, take market share percentage and use that as percentage of liability |
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EGSPR - R
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§ 461 – once p establishes D caused injury, liability for full extent of injury (NOT merely those foreseeable) is imposed.
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superseding causes
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destruction of PC
§442 – negligent D whose conduct creates/increases risk of a particular harm AND is a SF in causing harm does not escape liability by the intervention of another person EXCEPT where harm is intentionally caused by third person and is not w/I the scope of the risk created by D [Doe v. Manheimer – P sues d for failing to trim bushes. Says THAT is the PxC of her rape – d not liable] |
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intervening negligence
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no destruction of pc
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directness vs. remotness test
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Once act is negligent does not matter if you can’t foresee what damage would have been caused - Polemis
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foreseeability test
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Polemis is not good law. D can only be liable for propable consequences of an action – must maintain foreseeability. Can’t isolate consequences from act. Liability AND damages rest on foreseeability [Wagon Mound]
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3rd R supervening/intervening
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An actor is not subject to liability for harm for which a force of nature or an independent act is also a factual cause of the harm, if the harm is different from the harms whose risks made the actor’s conduct tortious
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scope of the risk test
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§ 29 – an actor’s liability is limited to those physical harms that result from the risks that made the actor’s conduct tortious
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Palsgraf
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Risk reasonably perceived defines duty to be obeyed. Liability no greater than foreseeability [Palsgraf v. Long Island Railroad]
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Andrews & Palsgraf
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Dissent – where an unreasonable act causes damage – liability should result despite unforeseeability – ZONE OF DANGER TEST
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UCFA
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If a party is insolvent you can reapportion percentages among all parties, even P if at fault.
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pure comparative fault
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p recovers even if d is only 1% at fault
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CF version 1
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p recovers if fault is less that d
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CF version two
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p recovers if fault is less than or = to D
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Iowa Code Chapter 668
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P is only barred from recovery if his fault percentage is greater than D or D + d1 + d2
If D is greater than 50%, shall be liable for economic damages but NOT for noneconomic damages |
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pro rata
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never pay more than your % of fault
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pro tanta
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non settling party may have to pay more than their % of fault
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Fritts Rule
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Can’t avoid negligence by arguing it was P’s negligence that got him into the situation in the first place [Fritts v. McKinne – p died after d messed up surgery. P drunk drove and had weird artery]
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AOR
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Analysis goes: did exculpatory clause cover type of injury in dispute is it enforceable as a matter of pp?
§ 469 – test Freely/fairly made b/t parties of = bargaining power no social interest interfered with |
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colorado test
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Existence of duty
Nature of service performed Whether k was fairly entered into Whether intention of parties is expressed with clarity |
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implied
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Partaking in open/obvious dangerous activity makes one assume danger inherent to activity as far as dangers are obvious/necessary. Different if dangers are latent or if activity was inherently dangerous [P injured while on flopper Murphy v. Steeplechase]
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Davenport Criteria
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P had knowledge in fact of dangerous condition
P knew condition was dangerous P appreciated nature/extent of danger P voluntarily exposed himself to danger Implied – primary – focuses on whether d’s duty covered p’s risk Implied secondary – p knowingly encountered risk by d’s negligence – did p act reasonably? |
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limitations on AOR
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§ 496E – assumed risk must be voluntary. Is not voluntary if defendant’s tortious conduct has left the plaintiff no reasonable alternative way to protect another or to “exercise or protect a right/privilege of which D has no right to deprive him”
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SL and Land
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P bears loss unless can prove D did something wrong [Fletcher v. Rylands – d constructing on his land, not aware coal mine was underneath, water damaged p’s property]
The person who for his own purposes brings on his land and collects and keeps there anything likely to do mischief if it escapes must keep it in at his peril – if doesn’t this is a prima facie case for total liability of damage resulting naturally from the escape Can escape if can prove it was an act of God |
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Sic Utere Tuo
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Safety of person more sacred than safety of property [Sullivan v. Dunham- d killed decedent by blasting tree into out of d’s yard]
Sic utere tuo – you must use property in a way that doesn’t harm others |
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Risk and Land - restatement
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1st R § 519 20 - existence of a high degree of risk of some harm to the person, land, or chattels
Likelihood that the harm that results from it will be great Inability to eliminate the risk by the exercise of reasonable care Extent to which the activity is not a matter of common usage Inappropriateness of the activity to the place where it is carried on Extent to which its value ot the community is outweighed by its dangerous attributes |
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Abnormally dangerous activities
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Abnormally dangerous activities have different standard for SL [Indiana Harbor Belt – d’s manufactured a chemical which ended up spilling]
Is there an inability to eliminate risk? Look to exactly WHOSE negligent – carrier or manufacturer § 402A – manufacturer of a product is not engaging in ABDA merely b/c product is dangerous when handled or used in some way after it leaves his premesis. Even if danger is foreseeable |
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ULTRA H Activities
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1st R re ultrahazardous activities – necessarily involves a risk of serious harm to the person/land/chattels of others which cannot be eliminated by the exercise of utmost care/and is not a matter of common usage
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AOR defense
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DEFENSE - § 523 – p’s AOR bars recovery. CN not a defense to SL except when p knowingly and unreasonably subjects himself to the ROH (risk of harm) from this activity.
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Cardozo on Products
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Cardozo – nature of product has to be reasonably certain to put people in danger. Must be knowledge of a danger, not merely possibility but probability. Not enough that a product is danger if defective – must be knowledge that in the usually course of events the danger will be shared by others than the buyer. If seller knows it is not going to be used for further testing.
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Inspection
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D best to bear the risk of inspecting products/remedying defects. [Escola v. Coca Cola – bottle broke in waitress’ hand]
D can disaffirm liability by showing he took every possible care (unless product is ridiculously dangerous and then court might hold they are liable regardless) |
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Governmental liability
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A private k who follows government k is not liable
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PL and ED
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ED – recoverable where p is actual product user
Restatements |
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SL - R test
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(1) Rest. 2d § 402A
(a) SL for anyone who sells a product in a “defective condition unreasonably dangerous” (b) “unreasonably dangerous” determined by “ordinary consumer expectations” |
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SL R 3rd test
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(2) Products Rest. 3d § 2
(a) SL for anyone who sells a product that “departs from its intended design” |
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Macpherson test
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Macpherson – if the nature of a thing is such that it is reasonably certain to place life/limb in peril when negligently made and the seller has knowledge that the thing will be used w/o new tests, by persons other than the purchaser, then the manufacturer is under duty to make it carefully
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Traynor/escola test
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Traynor’s concurrence in escola – when a manufacturer has placed an article on the market knowing that it is to be used w/o inspection and that article proves to have a defect that causes injury to any human beings a manufacturer incurs and absolute SL
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Cronin test
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Cronin case omits unreasonably dangerous requirement
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Barker Factors
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a. A product may be found defective in design if the plaintiff demonstrates that the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner
b. Design defect could be shown if through hindsight the jury determines that the product’s design embodies excessive preventable danger – or if the jury find the risk of danger inherent in the challenged design outweighs the benefits of such design i. Gravity of danger ii. Likelihood danger would occur iii. Mechanical feasibility of a safer alternative design iv. The financial cost of an improved design v. Adverse consequences to the product and to the consumer that would result from an alternative design vi. HERE DEFENDANT HAD BURDEN OF PRODUCING EVIDENCE/PERSUADING THE TRIER OF FACT THAT THE PRODUCT SHOULD NOT BE JUDGED DEFECTIVE vii. Involves feasibility, cost, practicality, risk, benefit |
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CxTEST
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CExT – used where everyday exp makes decision easy w/o expert testimony | where jurors have common knowledge:
P shows manufacturer’s product failed to perform as safely as an ordinary consumer would expect The defect existed when the product left the manufacturers possession The defect was a legal cause of plaintiff’s enhanced injury Product used in a reasonably foreseeable manner |
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R/U Test
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Don’t need to prove that design is safest – just reasonable
Benefit must outweigh risk |
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RAD
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Was design chosen reasonable from among alternatives that manufacturer was aware of?
PL R §2 D must prove that a reasonable alternative design would have reduced the foreseeable risk of harm Broad range of factors considered – expert testimony not vital Here you are doing a r/u test of existing design and r/u test of alternatives Price considerations also necessary |
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Irreducibly safe products
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If product is egregiously unsafe/ultrahazardous
The ordinary user/consumer of the product cannot reasonably be expected to have knowledge of the products risk / or the product poses a risk of serious injury to persons other than the user/consumer Product has little/no usefulness |
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Safety Instructions/Warning
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1. Warnings of danger of using product in unintended ways
2. Warnings of irreducible dangers 3. Instructions of how to use product Threshold issue – whether any words at all are needed to address risk in question Once past this we decide is warning is sufficient Warnings only need be reasonable under circumstances. Don’t need to warn of every possible danger (this warning held to be OK even though it didn’t warn that blade could fly off) [Hood v. Ryobi – p hurt by sawblade. P removed blade guards.] |
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Pittman test for adequacy
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Pittman test for adequacy
Adequately indicates scope of danger Reasonably communicates extent/seriousness of harm that could result from misuse Physical warning must be adequate to alert a reasonably prudent person Simple directive might be inadequate when it failrs to indicate the consequences that might result from failure to follow it |
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Unintended Trespass
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§ 165 – unintended intrusions – those resulting from reckless/negligent conduct or from abnormally dangerous activities – will be subjected to liability only if the intrusion causes actual harm
If intrusion is intentional, person will be liable despite no actual harm (nominal damages) If person intentionally walks across land, might be liable for punitive damages |
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Intentional Trespass
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§ 158 – one is liable to another in trespass for intentional intrusion, irrespective of harm caused
Actionable invasion of a possessor’s interest in the exclusive possession, whether that intrusion is by visible or invisible pieces of matter or by energy = trespass. |
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Intent
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Intent – the intent to enter the land, not necessarily to invade or harm another’s interest in the exclusive possession of land
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Nuisance
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Actionable invasion of a posessor’s interest in the use and enjoyment of his land = nuisance[Martin v. Reynolds- D’s plant was spraying chemical’s on p’s land
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Intent R 3rd
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R 3rd § 1 liability for physical harm (intent) (a) person acts with the purpose of producing the consequence or (b) the person act knowing that the consequence is substantially certain to result
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Negligence R 3rd
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§ 3 – negligence – failing to exercise reasonable care under all the circumstances
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Reckless Action R 3rd
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Person knows the risk of harm created by the conduct or knows facts that make the risk obvious to another in the person’s situation
The precaution that would eliminate or reduce the risk involves burdens that are so slight relative to the magnitude of the risk as to render the person’s failure to adopt the precaution a demonstration of the person’s indifference to the risk |
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Battery
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Battery – intentional infliction of harmful bodily contact upon another. D must know with substantial certainty that his action would cause harm. Must have INTENT [Garrat v. Dailey – d removed chair from p and she fell]
Intent needs to be focused EGSPR does not apply here Insanity still holds d liable § 316 – insurance can cover intentional torts |
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Assault
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Assault – physical act of a threatening nature or an offer of a corporal injury which puts an individual in reasonable fear of imminent bodily harm. EGSPR may not apply. Usually joined with battery in an action. [Picard v. Barry- p injuried while trying to take picture of d, whom p thought was cheating her. No causation proved]
Assault damages: mental disturbance, fright, humiliation, etc. as well as any physical injury. |
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Assault Damages
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Assault damages: mental disturbance, fright, humiliation, etc. as well as any physical injury.
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Battery - R 2nd test
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2nd R § 18 – unpermitted and intentional contacts with anything so connected with the body as to be customarily regarded as part of the other’s person and therefore as partaking of its inviolability is actionable as an offensive contact w/his person. Could be clothing or a cane.
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IIED
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§46 – one who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm. | where a reasonable person would say OUTRAGEOUS!
Comment i – this rule also covers a situation where the actor knows that distress is certain, or substantially certain, to result from his conduct |
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Womack's 4 prong test
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Four prong test [Womack v. Eldridge – d deceitfully took picture of p and used it in molestation case]
Wrongdoer’s conduct was intentional/reckless Satisfied where act was purposeful and knowledge of emotional distress obvious Conduct was outrageous and intolerable and it offends against the generally accepted standards of decency and morality Limits frivolous lawsuits There was a causal connection b/t wrongdoer’s conduct and the ED ED was severe |
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Sullivan Standard
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NY times v. Sullivan standard – in libel cases, public officials who sue for false statements that harm reputations must prove that D made the statement knowing it was false, or recklessly uttered w/o caring for its truthfulness
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Falwell Standard
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State seeks to prevent not reputational damage but the severe emotional distress suffered by the person who is the subject of an offensive publication. Intent to cause injury is the foundation of the action. 1st amd seeks free flowing of ideas. Outrageousness standard is too subjective. Must show that publication contains a false statement made with actual malice – w’knowledge that the statement was false or with reckless disregard as to whether or not it was true [Hustler Magazine v. Falwell – p suing against malicious caricature]
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Consent
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Every consent case revolves around the issue of what exactly did P consent to. Did you consent to fight but not to death? Sex but not pregnancy?
§ 75 – one who sufficiently expressed willingness to suffer a particular invasion has no right to complaint if another acts upon his consent so given. No man shall profit by his own wrongdoing. [Hart v. Geyser – p killed in a consented to fight] Other tests – majority Where parties engage in mutual combat in anger, each is civilly liable to the other for any injury. Voluntary engagement is no defense Minority Relief is denied at least in the absence of a showing of excessive force/malicious intent to do serious injury upon the part of the defendant |
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self-defense
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OK as long as evidence shows you are protecting yourself from imminent bodily harm [Courvoisier v. Raymond]
o An action of force is justified by self-defense whenever the circumstances are such as to cause a reasonable man to believe that his life is in danger or that he is in danger of receiving great bodily harm and that it is necessary to use such force for protection. o A person using force does not actually have to be in danger as long as he reasonably believes that he is and that force is necessary for his self-defense. Self-Defense: a justification doctrine that permits one to respond to a threatened injury with a corresponding degree of physical force, while negating any corresponding legal consequence for the results of his defensive act. RST § 75: defendant is liable to an innocent third party “only if the actor realizes or should realize that his act creates an unreasonable risk of causing such harm.” RST § 76: a person is privileged to defend a third party under the same conditions and by the same means as those under and by which he is privileged to defend himself and if his intervention is necessary to protect that party. |
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protection of property
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Right to protect property is qualified by injury other people. Owner of premesis is prohibited from injuring a trespasser by means of force (taking life/bodily harm) excepted if the trespasser is committing felony of violence/endangering human life. [Katko v. Briney]
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Posner on Deadly Force
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Posner reasonableness test for deadly force
Value of property at stake measured against cost of human life/limb Existence of an adequate legal remedy as an alternative to the use of force Location of the property in terms of the difficulty of protecting it by other means Kind of warning given Deadliness of the device used Character of conflicting activities Cost of avoiding the interference by other means |
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Private Necessity
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Privilege to use another’s property if it means saving yourself from harm [ploof v Putnam]
Defendant has privilege against suit for an intentional tort in these cases but still have to pay damages to plaintiff (no punitives) Since d was not protecting life/limb, it was ok to use p’s property, but still must pay damages [Vincent v. Lake Erie- d’s boat harmed p’s dock during unprecedented storm] |
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contingencies
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guard against all foreseeable
Braun |
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posner on dangerous machines
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brings world forward - maximize benefit - minimize risk
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custom
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used to establish what should be standard for reasonable care. can be offensive or defensive. can get you out of statutory duties
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statute
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look at essence and decide who are they trying to protect - that establishes duty - then look at hazards of deviating from this duty
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repeated activity
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can show contructive notice
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business practice rule
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exception to contructive
businesses should not create reasonably foreseeable risks of harm to invitees |
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exclusivity
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in the control of the D -the most important factor of RIL
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reasonable inference
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may but not need find the defendant negligent
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rebuttable presumption
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must find the defendant negligent unless d presents plausible rebutting negligence
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exceptions to AD: non-negligent injury
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one who innocently injured another had a duty to exercise due care ot ensure the other's subsequent wellbeing
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exceptions to AD: non-negligent creation of risk
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duty to exercise due care to prevent the risk from occurring even though at the time the actor had no reason to believe that his act would create such a risk
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duty to rescue
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a person who knows another is exposed to grave physical harm shall, to the extent that the same can be rendered w/o danger or peril to himself or w/o interference w/important duties owed to tohers, give reasonable assistance to the exposed person unless that assistance/care is being provided by others
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safety net for duty to rescue
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shall not be liable in civil damages unless his acts constitute gross negligence or unless he will receive or expects to receive remuneration. nothing contained in this subsetion shall alter existing law with respect to tort liability of a practitioner of the healing arts for acts committed in the ordinary course of his practice
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child abuse reportin
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very strict
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duty to report
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any person reasonably believes he or she has observed the commission of murder rape or other listed sex crimes (victim under the age of 14) is a misdeameanor
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open and obvious dangers
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no duty owed
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child trespassers
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exercising of greater care
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landlord/tenant
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liable if 1) hidden danger in the premisis of which the landlord but not the tenand is aware (2) premesis leased for public use (3) premesis retained under the landlord's control, such as common stairways, or (4) premesis negligently repaired by the landlord
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duty for business owners
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resisting robbers and apprehending perpetrators
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parental immunity
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(1) suuing one's parents would disturb domestic tranquility (3) suing one's parents would create a danger of fraud and collusion (4) awarding damages to the hcild could benefit the parent of the child predeceases the parent and the parent inherits the child's damages (5) suing one's parents would interfere with parental care, discipline, control
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cuffy factors
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assumption by the municipality through promises/action of an affirmative duty to act on behalf of the party who was injured (2) knowledge on teh part of the minicipality's agents that inaction could lead to harm (3) some form of direct contact b/t municipality's agents and the injured party (4) that party's justifiable reliance on the minicipality's undertaking
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911
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if enough direct contact - then duty
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Federal Torts Claims Act
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DC have exlusive jurisdiction of civil actions on claims against the US
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emotional distress of victims who realize they are doomed
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pre-impact fright is collectible
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toxic waste
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1() as a result of the defendant's negligent breach of a duty owed the plaintiff is exposed to a toxic substnace which threatens cancer AND (2) the plaintiff's fear stems from a knowledge, corroborated by reliable medical or scientific opinion, that it is more likely than not that hte plaintiff will develop the cancer in the future due to the toxic exposure
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HIV cases
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"window" cases - b/t event creating the concern and result of test (not often recoverable)
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expert testimony
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toxic exposure claims, medical malpractice, etc.
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non-delegable duties
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city SL liable for these -->
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sin qua non
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essential condition - an indispensible thing
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fault
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acts or omissions that are in any measure negligent or reckless toward the person or property of the actor or others, or that subject a person to strict tort liability - includes breach of warranty, unreasonable assumption of risk not constituting an enforceable express consent, misuese of a product for which the defendant otherwise would be liable and unreasonable failure to avoid an injury or to mitigate damages. legal requirements of causal relation apply both to fault as the basis for liablity and to contributory fault
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setoff
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NO under UCFA
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joint/several liability & insolvency
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joint - loss reapportioned - several - plaintiff bears loss
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Mary Carter Agreement
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one party settles and testifies against the others
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SL
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liability w/o fault
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nisi prius
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unless before
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used good sellers
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usually not imposed liability -
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