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156 Cards in this Set

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  • Back
Respondeat Superior/Vicarious Liability
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?
Birkner Criteria
*Conduct was general kind employee was hired for
*Occurred substantially within the hours and spatial boundaries of employment
*Motivated by serving employers interest
Apparent Agency Criteria
(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)
Apparent Agency Restatement (409)
2nd R § 409 – employers of independent contractors not liable for harm done by them unless creates apparent agency
Prima Facie Case for Negligence
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]
General Standard of Care
General Standard is Reasonable care. Acting with due care to foreseeable accidents [Adams v. Bullock]
Hand's Formula
P(a) * Gravity > burden of precaution = liable
Purely economic
Reasonable Person
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]
Children & Negligence
generally not liable unless doing adult activity | parents can be vicariously liable
Must be held to standard normal standard
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]
Statutory Duty
Statute’s can dictate what constitutes negligence. Juries cannot relax this standard [plaintiff not having headlights on buggy = negligence Martin v. Herzog ]
Per Se Negligence
negligence established as a matter of law so that breach of duty is never a jury questions | arises from statutory violation | STRONGEST NEGLIGENCE CLAIM
Excuses to Per Se
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]
Telda – violating statute safer
Where d has exercised reasonable care toward compliance
Where defendant had sudden incapacity
Prima Facie vs. Per Se
Prima Facie vs. Per Se = Jury vs. Judge deciding negligence
Constructive Notice
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]
Res Ipsa Loquiter
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]
Medical Malpractice
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
General Duty
§ 7 – if but for d’s existence in the world risk would not exist = duty
Affirmative Duties
special relationships
social companions
illegal/improper performance of lawful actions | but for d's existence in the world injury would not have happened
failure to do what ought to be done
superior knowledge
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]
Superior knowledge + your own conduct
§ 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
assumption of duty
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.
Third Party Duties
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.
§ 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]
Conditions for excepting standard duty rule
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
Duty to Warn
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”
Private Right of Action
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]
Public Utilities
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.]
Social Guests
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
Negligent Entrustment
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]
Trespasser – no duty except no affirmative harmful acts unless trespasser is known then treated as:
Licensee – reasonable care against known dangers (social guests subclass here)
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]
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]
3rd party proteciton - premesis
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.]
immunity - intrafamily
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
soveriegn immunity
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).
State employees
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]
emotional harm - old standard
you can only collect for emotional harm when it manifests from physical impact
Emotional harm - new standard
negligence causing fear of immediate personal injury, despite no physical impact, can make D liable for resulting emotional distress
D is liable even if P is predisposed to injury. Must take P as he is found
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]
Dillon Factors
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]
ED - tests
These rules are vague – look at various rules/tests and take facts and see which applies where. Talk about all policies relevant
Pecuniary Interest Test
§ 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]
cause in fact
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]
substantial factor
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.
but for cause
Expert testimony often used to establish this in medical/other cases
loss of chance
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
joint liability
Joint – plaintiff recovers all liability from only one D who then sues others for indemnification
Several Liability
Several – each D only pays its own share of fault
Concerted Action
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
market share
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
§ 461 – once p establishes D caused injury, liability for full extent of injury (NOT merely those foreseeable) is imposed.
superseding causes
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]
intervening negligence
no destruction of pc
directness vs. remotness test
Once act is negligent does not matter if you can’t foresee what damage would have been caused - Polemis
foreseeability test
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]
3rd R supervening/intervening
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
scope of the risk test
§ 29 – an actor’s liability is limited to those physical harms that result from the risks that made the actor’s conduct tortious
Risk reasonably perceived defines duty to be obeyed. Liability no greater than foreseeability [Palsgraf v. Long Island Railroad]
Andrews & Palsgraf
Dissent – where an unreasonable act causes damage – liability should result despite unforeseeability – ZONE OF DANGER TEST
If a party is insolvent you can reapportion percentages among all parties, even P if at fault.
pure comparative fault
p recovers even if d is only 1% at fault
CF version 1
p recovers if fault is less that d
CF version two
p recovers if fault is less than or = to D
Iowa Code Chapter 668
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
pro rata
never pay more than your % of fault
pro tanta
non settling party may have to pay more than their % of fault
Fritts Rule
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]
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
colorado test
Existence of duty
Nature of service performed
Whether k was fairly entered into
Whether intention of parties is expressed with clarity
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]
Davenport Criteria
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?
limitations on AOR
§ 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”
SL and Land
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
Sic Utere Tuo
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
Risk and Land - restatement
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
Abnormally dangerous activities
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
ULTRA H Activities
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
AOR defense
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.
Cardozo on Products
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.
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)
Governmental liability
A private k who follows government k is not liable
PL and ED
ED – recoverable where p is actual product user
SL - R test
(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”
SL R 3rd test
(2) Products Rest. 3d § 2
(a) SL for anyone who sells a product that “departs from its intended design”
Macpherson test
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
Traynor/escola test
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
Cronin test
Cronin case omits unreasonably dangerous requirement
Barker Factors
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
vii. Involves feasibility, cost, practicality, risk, benefit
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
R/U Test
Don’t need to prove that design is safest – just reasonable
Benefit must outweigh risk
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
Irreducibly safe products
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
Safety Instructions/Warning
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.]
Pittman test for adequacy
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
Unintended Trespass
§ 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
Intentional Trespass
§ 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.
Intent – the intent to enter the land, not necessarily to invade or harm another’s interest in the exclusive possession of land
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
Intent R 3rd
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
Negligence R 3rd
§ 3 – negligence – failing to exercise reasonable care under all the circumstances
Reckless Action R 3rd
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
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
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.
Assault Damages
Assault damages: mental disturbance, fright, humiliation, etc. as well as any physical injury.
Battery - R 2nd test
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.
§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
Womack's 4 prong test
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
Sullivan Standard
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
Falwell Standard
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]
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
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
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.
protection of property
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]
Posner on Deadly Force
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
Private Necessity
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]
guard against all foreseeable
posner on dangerous machines
brings world forward - maximize benefit - minimize risk
used to establish what should be standard for reasonable care. can be offensive or defensive. can get you out of statutory duties
look at essence and decide who are they trying to protect - that establishes duty - then look at hazards of deviating from this duty
repeated activity
can show contructive notice
business practice rule
exception to contructive
businesses should not create reasonably foreseeable risks of harm to invitees
in the control of the D -the most important factor of RIL
reasonable inference
may but not need find the defendant negligent
rebuttable presumption
must find the defendant negligent unless d presents plausible rebutting negligence
exceptions to AD: non-negligent injury
one who innocently injured another had a duty to exercise due care ot ensure the other's subsequent wellbeing
exceptions to AD: non-negligent creation of risk
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
duty to rescue
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
safety net for duty to rescue
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
child abuse reportin
very strict
duty to report
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
open and obvious dangers
no duty owed
child trespassers
exercising of greater care
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
duty for business owners
resisting robbers and apprehending perpetrators
parental immunity
(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
cuffy factors
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
if enough direct contact - then duty
Federal Torts Claims Act
DC have exlusive jurisdiction of civil actions on claims against the US
emotional distress of victims who realize they are doomed
pre-impact fright is collectible
toxic waste
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
HIV cases
"window" cases - b/t event creating the concern and result of test (not often recoverable)
expert testimony
toxic exposure claims, medical malpractice, etc.
non-delegable duties
city SL liable for these -->
sin qua non
essential condition - an indispensible thing
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
NO under UCFA
joint/several liability & insolvency
joint - loss reapportioned - several - plaintiff bears loss
Mary Carter Agreement
one party settles and testifies against the others
liability w/o fault
nisi prius
unless before
used good sellers
usually not imposed liability -