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93 Cards in this Set

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Negligence:
What are the elements of a Negligence cause of action:
Duty; Breach: Cause-in-Fact; proximate cause; harm/damages
What are the restatement facotors in doing a B<PL?
Determining Utility Of Conduct:
a. Social Value of conduct
b. Effectualness of conduct
c. Possible alternatives
Determining Mag of Risks
a. Social value of imperiled interests
b. Chance of an actor's invasion of those interests
c. Extent of likely harm
Number of persons whose interests are likely to be invaded if risk results in harm
If an actor had inadequate information, what should we base our negligence decision on?
Whether a reasonable person would have researched futher before acting. "Know or should have know"
What does the reasonable prudent person know?
RPP has "common knowladge"-people expected to know laws of nature physics...
Ex: RRP knows when new tires are needed on car. We hold people to this standard even if they know nothing about cars.
What is the best way to defend yourself in a negligence suit where customary practice is used against you?
Differentiate custom from your case
Reasonable Prudent Disabled Person?
How the RPP with that same type of disability would act.
Ex: Reasonably prudent blind person familiar with workplace surroundings might not use a cane.
Reasonable Prudent Disabled Person?
How the RPP with that same type of disability would act.
Ex: Reasonably prudent blind person familiar with workplace surroundings might not use a cane.
Negligence: Religious Beliefs: What is the general rule.
– if a reasonable person would get treatment and you don’t because of beliefs, then defendant can’t be held responsible for additional damages resulting from refusal of treatment (particularly in blood transfusion cases).
(i) Jury is however allowed to consider religious belief in making there analysis.
What were the 2 rather unorthodox positions taken in the Hieling case? (Glaucoma)
1. Court did not refer to medical custom as controlling in a case involving medical malpractice
2. It established a rule of law governing medical malpractice without expert testimony, supporting the posotion that the standard of care adopted was reasonable for the medical profession.
When should a statute be borrowed in order to establish a standard of care for negligence? 4Q's
1.) Does the statute impose a specific duty for the protection of others
2.) Was the plaintiff within the class to be protected by the statute
3.) Was the accident the type the statute was designed to prevent
4.) Did the defendant breach the statutory duty?
What effect procedural effect does CA give to borrowing a statute?
Rebuttable presumtion of negligence: Violation of statute creates a rebuttable presumtion of negligence which can be over come by showing reasonable care. Violation creates a prima facie case that can be rebutted by proof that a reasonable person would have acted as did the person who's conduct is in question.
What are the 5 excuses for violating a statute or regulation recognized by the Restatement? Cited in Impson v. Structural mentals
1. Actor incapacitated
2. Actor neither knows nor should of know of the occasion for compliance
3. Actor is unable, after reasonable diligence or care to comply
4. emergency
5. Actor would create a greater risk of harm by compliance
What are the Res Ipsa factors/requirements?
1. Accident is of a kind that is doesnt ordinarily occur in the absence of someones negligence.
2.Defendant is probably responsible for the negligence that caused the accident
3. Plaintiff not contribute in anyway.
4. {information about the accident is more readily available to D] -more a factor then requirement.
What effect does CA give to Res Ipsa?
Raises a presumption of negligence which requires the jury to find negligence if the defendant does not produce evidence sufficient to rebut the presumption
What is the rule from Anderson v. Somberg: the case following Ybarra. (metal tip of surgical instrument lost in P's spinal canal)
When negligence is clear and all the D's are b/f the court the jury must find against at least one D. (the one most likely to be culpable, even if he is less then 50% likely)
What are the policy reasons behind the Ybarra rule?
1. Defeat conspiracy of silence
2. Compensate vulnerable P's
3. Recognize heightened duty of care in special relationships.
What is the Daubert Rule?
FRE 702 rejected the stricter "Frye" requirment of "general acceptance"
Rule 702 requires the evidence to be
1) Scientific knowledge
2) assist the trier of fact
In evaluating admissibility of proposed expert opinion court should consider
1) Is is scientific knowledge that can be tested?
2) Has it been subjected to peer review and publication?
3) What is the known or potential error rate?
4) Has it achieved general acceptance?
If a doctors negligence is found to reduce your chance of survival from 39% to 25% can you recover?
Yes. "Herskovits". Courts allowed recovery, court says we are compensating for the decreased chance not for the death. An increased chance is valuable. Every last day you can eke out is valuable.
If a doctors negligence is found to reduce your chance of survival from 39% to 25% can you recover?
Yes. "Herskovits". Courts allowed recovery, court says we are compensating for the decreased chance not for the death. An increased chance is valuable. Every last day you can eke out is valuable.
What is result when one of 2 negligent actors harmed P but we dont know which one?
 Alternative liability theory: Shift burden to D’s to show that they were not responsible, and each tortfeasor who cannot meet this burden is responsible for the whole damage.
What is result when one of 2 negligent actors harmed P but we dont know which one?
 Alternative liability theory: Shift burden to D’s to show that they were not responsible, and each tortfeasor who cannot meet this burden is responsible for the whole damage.
When two fires together burn down a house what is the result? One from source A one from source B.
There is a split in courts. Some would excuse liability from A if B was a natural cause.
Others would not excuse liability based on B stemming from natural causes.
If two fires A & B, both burn down house, what is result.
There is a split in the courts.
1) If one of the fires was due to natural causes then the other may escape liability
-If we dont know where 2nd fire came from, then we assume human causes.

2) It is irrelevent if one is from natural causes
Proximate causation: What are the prox cause hints?
1) Distance in time
2) Distance in place
3) *Foreseeability of kind, extent, and manner of injury (Very important)*
 The closer the connection between breach and harm the more likely a D will be liable
 If the harm that the duty of care was designed to prevent is the harm that happen, D will be liable.
4) Directness*
 Look at number of intervening events
5) Tort Policies**
 Compensating P’s
 Deterring misconduct
 Peacekeeping
6) Economic aspects
 Risk spreading
 Requiring insurance (e.g. fire rule: Liability for negligently caused fire on D’s premises extends to property destroyed next door, but no farther.)
 Burden on industry (e.g. liability for injuries caused by DES extended to cover daughters of drug but not granddaughters)
7-8) Administrative convenience and efficiency
 Should there be some other mechanism for compensation, such as workers comp. or a legislative solution?
9-11) Common sense, fairness justice (jury questions)
Are natural causes usually considered superseding? why?
• Usually not superseding we are supposed to know how, nature/whether/animals behave.
Can people be liable to their own rescuer if they were negligent in placing themselves in a position from which they needed to be resued?
Yes
Do good samaritan statutes create a duty to act?
no
What do good Samaritan statutes do?
They dont create a duty to act, they protect you when you act and you dont have a duty.
Foreseeable Consequences
• Situations where court won’t allow recovery even though injury was foreseeable.
• Judges find if we go w/ reasonable foreseeability alone there’s too much liability, so they impose some limits that a reasonably foreseeable analysis alone would permit.
“Good Samaritan” Statutes
• Legislatures created “Good Samaritan” statutes to shield Doctors from liability if they helped people in accidents. Statutes vary: some only protect doctors, others protect non-doctors too.
- CA started with doctors, then expanded to nurses, then EMTs, . . .
- It’s a defense, not some affirmative duty.
- They don’t create a duty to act; they protect you if you decide to act.
 Rather, they say if you engage in a voluntary undertaking, you won’t be liable for mere negligence, essentially taking out exception where a voluntary undertaking creates a duty.
- Typically, statutes don’t cover intentional torts, but they vary from state to state.
- If Δ already had a duty to act, then he doesn’t get the benefit of Good Samaritan statute.
 E.g. If you were a participant in a sports activity and as a result of your conduct another was hurt, the Good Samaritan statute doesn’t protect you. Good Samaritan statutes only protect those who didn’t have a duty in the first place.
Limitations on Duty to Rescue
• At C/L, torts law was concerned w/ compensating for the most egregious conduct; minimal goals to only protect against he most egregious behavior, e.g. battery, assault, etc.
- No duty to do good; Duty to not do bad.
- Duty to do no wrong; No duty to protect against wrong.

General Rule: No duty to rescue another (even where it would be easy and not dangerous to the rescuer).
• E.g. Expert swimmer w/ boat and rope in hand who sees someone drowning may do nothing and watch the person drown.
• E.g. No duty to rescue child from using hammer from hitting dangerous explosives.

“Easy Rescue” Doctrine
• Some argue for an “easy rescue” doctrine where Δ would be liable for not rescuing where it could be done w/ little or no harm him/herself. But, this brings us issues of “how easy” was the rescue.

Yania v. Bigan
Fact Recap: Large trenches. One was cut was 8 feet deep w/ water & 16-18 feet vertical walls. B asked R & Y to help start pump. B and R enter trench where pump is located. Y jumped from side into water and drowned. Conflicting evidence of why Y jumped in.
Procedure: B’s demurrer was sustained. So, on appeal, must accept Π’s version of the facts that B taunted Y to jump into the trench.

Holding: Even if B taunted Y into jumping in, B’s not liable. B didn’t breach any duty to Y.
• B>PL: No Duty to not taunt.
- Burden: Small. Not taunting easy.
- Probability: Small. Most people won’t succumb to taunts to jump in deep H2O trenches.
- Harm: Big.
• Duty to warn?
- Y should have known it was a dangerous situation. Usually don’t have to warn about obvious dangers.
• Duty to Rescue?
- Seems like B would have some rescue gear available, but court saying even if B had rope ladder over his shoulder, B had no duty to throw ladder to Y.
 Basically, you can taunt a guy to jump in, then stand there and watch him drown.
Exceptions to No Duty to Rescue Rule
1. Δ’s conduct created the peril to Π
- E.g. If you negligently crash into something w/ your car and your passenger gets injured, you have a duty to rescue.
2. Δ voluntarily undertook a precaution or rescue that either induced reliance by Π or others who would’ve helped.
3. Special relationship b/w Δ and Π:
- Employer-employee
- Family relationship
- Teacher-student
- Jailor-jailee
- Common carrier-passenger
- Innkeeper-guest
- Tortfeasor-victim
4. Π’s initial injury caused by Δ’s instrumentality
- Doesn’t mean Δ was negligent; but if Δ’s machine caused the injury that was under Δ’s control and Π couldn’t help him/herself, Δ had a duty to do something.
5. Statutory Duty
Voluntary Undertaking Exception
Once you voluntarily undertake to provide a precaution, or rescue, and the victim or 3rd person relies on that, there’s a duty.
• Discourages people making precautions for fear they’ll elevate the standard of care and create a duty.

Split in Authority:
• Some courts require a showing that a 3rd person did see and did decide in reliance of seeing Δ help to not go and help.
• Others say if a 3rd party was potentially deterred, then you did have a duty to carry through the rescue.

Erie RR Co. v. Stewart
Facts: The usual guard wasn’t there to warn them that the train was approaching.
Procedure: Judgment for S. RR appealed alleging trial court erred in charging jury that it was negligence as a matter of law.
Issue on Appeal: Whether it was negligence as a matter of law or for the jury to decide.
• No statutory duty. But, Δ’s voluntary advance precaution created a duty once Π relied on that undertaking.
• Unfair to RR?
- RR goes beyond required duty by hiring guard and then is required to provide guard by court. But, by providing guard, they’re almost admitting that one is needed.
- Society wants to protect people’s reliance.
 Πs knew there was normally a crossing guard and should be able to recover based on their reliance, but people that don’t know about crossing guard, don’t get money.
• How can RR get out of duty?
- RR needs to put all those who relied on notice that guard wouldn’t be available. Maybe put up sign: No watchman on duty, proceed with caution.

Examples of Voluntary Undertaking Exception
• In community college class, 35-year-old student lost consciousness and started convulsing and having difficulty breathing. Professor instructed students that he’s having a narcoleptic fit and they shouldn’t call 911. Student died. College & Professor found guilty; $200M damages.
- When pleading alternative theories, if you come w/in exception to general rule, you want to show more than one exception.
 E.g. Π was trying to bring case w/in 2 exceptions. Voluntary undertaking exception by taking charge of the situation and special relationship, teacher-student relationship.
Special Relationship → Business-Invitee & Δ’s Instrumentality Exception
• Special relationship used to be a fairly limited exception, but it’s expanding.
- For example, there was no little boy-department store special relationship recognized, but in the case below, the court recognized a business-invitee special relationship.
• Even if Δ’s instrumentality, escalator, was well-designed and maintained, i.e. even if Δ was negligent, if the instrumentality caused the injury, Δ may still have duty to rescue.

L.S. Ayres & Co. v. Hicks
Facts: 6-year-old boy w/ mom in dept. store coming down escalator and little boy fell. Got his fingers caught in escalator. Delay in the rescue and Δ failed to respond to the accident.
• Judgment for Π. Not responsible for initial injury, but for aggravation of injury.
- Once someone gets injured, Δ had a duty to respond even if they had the safest escalator.
• Special relationship b/w the store and little boy.
- Little boy was an invitee.
 Traditionally, not a sufficient relationship to give rise to a duty, but smashing it together w/ exception where Δ’s instrumentality caused harm, it creates a duty.
• Argument against landowner liability: Little boy wasn’t an invitee; he wasn’t going to buy anything.
- Counter: If you want mom to spend money at your place, then you must make it safe for her kid too.
- Counter: Why distinguish b/w why someone’s there. If a non-invitee gets hurt, an invitee could just as easily be hurt.
Exception: Statutory Duty via Child Abuse Reporting Statute
J.S. And M.S. v. R.T.H.
Facts Recap: J criminally convicted of sexually abusing 2 girls for >1 year. Parents and girls sued civilly for negligence against the J, the molester, and his wife.
Procedure: Complaint amended to add wife b/c she knew or should have known of J’s proclivities. Wife conceded for the purposes of this argument that she knew or should have known, but nevertheless, she wasn’t negligent.

2 Issues: Duty and PXC
Duty: Was there a duty? If so, was failure to intervene or take precautions a breach?
• NJSC found wife had a duty, derived from the special relationship of husband-wife, special relationship b/w 2 Δs. Wife’s duty: If you suspect your husband of something, you have to do something about it.
- Conflicting public policies:
 Policy to protect children against sexual abuse
 Inferred from statute requiring any person that has reasonable cause to believe abuse must report immediately.
 Statute not used to establish negligence per se, but instead as evidence of negligence.
 NJ statute was atypical. Most statutes of this kind define a particular class of people that have a duty to report, as opposed to NJ’s broad statute of anyone.
 Policy to protect marriage privacy.

PXC
General rule: Intervening criminal conduct is usually superceding.
• J did engage in criminal conduct, but it didn’t cut off M’s liability b/c it was foreseeable criminal conduct. Foreseeable intervening criminal conduct is less likely to supersede.
- Contrast with the unforeseeable, malicious criminal conduct of throwing a match into pool of gasoline. Foreseeable → Negligent gas spill; Unforeseeable → someone deliberately throwing a match in.
- Similar case where a school failed to supervise some special education students and one student sexually assaulted another. Court found they had a duty to protect both children and $2M punitive damages awarded.
Special Relationship → Psychotherapist-Reasonably Identifiable Victim
Tarasoff v. Regents of University of California
Facts: Parents allege that PP intended to kill TT. At request of therapist, LM, campus police briefly detained PP, then let him go after they found him to be rational. LM’s supervisor, ordered LM not to bother w/ PP anymore.

Psychotherapist Privilege
This is no privilege under this article if the psychotherapist has reasonable cause to believe that the patient is in such mental or emotional condition as to be dangerous to himself or to the person or property of another and that disclosure of the communication is necessary to prevent the threatened danger
• Court found public policy to choose life over confidentiality from the psychotherapist privilege statute passed by legislature.
- Additionally, it seemed Δs already impaired PP’s treatment, breaching confidentiality, by calling the police.
- Most therapists say threat of not having confidentiality doesn’t really discourage. If the person is there for therapy, they want to talk and are going to talk anyway.
• Therapists: We owed no duty to TT or her parents. The special relationship was w/ PP, not TT or her parents.
• Should we extend duty to 3rd party foreseeable victims?
- No! Psychotherapist over predict violence, so many, who aren’t under peril, will be notified, which will undermine treatment and that could end up doing more harm that good.
- Yes! Public policy to protect life is more important than policy for doctor-patient confidentiality, which wasn’t officially established yet.
• Court: TT’s death proximately resulted from Δs’ negligent failure to warn TT or others likely to warn her of the danger. Duty arose b/c TT was a reasonably foreseeable victim
• CA Legislature codified this duty in CA Civ. Code § 43.92
(a) There shall be no monetary liability on the part of, and no C/A shall arise against, any person who is a psychotherapists as defined in § 1010 of he Evidence Code in failing to warn of and protect from a patient’s threatened violent behavior or failing to predict and warn of and protect from a patient’s violent behavior except where the patient has communicated to the psychotherapist a serious thereat of physical violence against a reasonably identifiable victim or victims.
(b) If there is a duty to warn and protect under the limited circumstances specified above, the duty shall be discharged by the psychotherapist making reasonable efforts to communicate the threat to the victim or victims and to a law enforcement agency.
- In statute, liability limited to the exact facts of Tarasoff.
- Elements
 Reasonably identifiable victim
 A client that’s generally dangerous isn’t enough.
 Duty is discharged if both victim and law enforcement are notified
 Don’t have to do any follow-up or anything else, just reasonable effort to notify.

Who else is Tarasoff going to apply to?
Lawyers
• General rule: No duty if you have a dangerous client.
- If psychiatrists can’t predict accurately, lawyers certainly can’t.
- Split in authority is not over whether lawyer has a duty at all, but whether if lawyer had a duty, lawyer breached it by disclosing that client was a danger to himself or others.
 ABA: Breach.
 CA: Absolutely not. Recent legislative act: Can disclose in those circumstance w/o breaching duty.
Doctors
• Duty to people hurt in car accident where doctors failed to disclose the sleepy effects of drugs, or where doctor didn’t report bad vision of patient, who doctor knows drive, to DMV.
• Duty to patient and foreseeable 3rd parties that blood transfusion received by patient was HIV infected.

Hypo: Kid over for dinner reveals his intent to commit suicide. Makes friend and parents not tell his parents. Kills himself few days later. Duty?
• Not w/in any well-defined special relationship, no statute for duty, etc. Illustrates and underscores the prevailing general rule of no duty to rescue. May be bad mistake or judgment, but the general rule is no duty.
Immunities
• Immunities are affirmative defenses.
• Gov’t gets immunity for their discretionary functions
- E.g. Police chief deciding how many people to deploy in different neighborhoods
• No immunity for negligence in day-to-day operations.
- E.g. policeman drives negligently by speeding and causes an accident; or gov’t negligently maintains public property.
• Some states statutes waive immunity for garden variety negligence.
• Majority: No municipal liability.
- Judgment call needed to determine whether to impose liability on gov’t.
 Balancing 2 policies: (1) need to conserve public resources, the more money taken out to pay for torts, then the less police to protect people, and (2) protecting people generally.
 Balance weighs in favor of not taking limited public resources out to help one or a small number of people.
Professional Rescuers
• Professional rescue does not produce a special relationship!

Riss v. City of NY
Facts: Π was terrorized by BP for more than 6 months. Π went to police, but her pleas for help were met with “little more than indifference.” BP called w/ threat on the night of Π’s engagement party. BP carried out his threat and hired someone to throw lye in Π’s face causing blindness and permanent scarring. After attack, she was protected for 3½ years.
Procedure: Trial court dismissed complaint. Appeals court affirmed. NYSC affirmed.
Issue: Did police have duty to protect this woman given this particular set of facts?
• Municipal immunity. No duty.
• Too few resources can’t protect everyone.
• Policy reasons for sticking w/ the rule of municipal immunity & no duty to rescue:
- Don’t want police to be responsible for all criminal conduct
- Don’t want to burden already limited resources of government
- Don’t want to see courts finding professional rescuers liable, effectively second guessing their allocation of resources.
• Isn’t throwing lye in someone’s face a superceding 3rd party crime? If not, doesn’t that make police responsible for something that they didn’t do, making them responsible for criminal’s acts?
- No, it’s foreseeable a policeman will have to deal w/ criminals, it’s their job is to prevent crime. Police had plenty of warning. It was a well-documented foreseeable harm.

Dissent
• Not saying police liable, just that there are enough facts to allow it to go to jury.
• Police can’t respond to every call. They aren’t liable to everyone that calls and doesn’t get help. Police can discharge the duty by doing preliminary investigation.
• Π followed the law by not carrying self-defense weapons and so was forced to rely on the police to protect her.
Exception to Gov’t Immunity if Voluntary Undertaking
• Someone was breaking into her house and she called 911. Operator told her not to leave house and that someone’s on the way. Operator was negligent by not verifying the address through proper procedures, so police dispatched to wrong address. Burglar broke in and killed her. → Duty found.
• Arguably there’s a voluntary undertaking where police get called to HS party where kids are drinking then send them home to drive drunk, or where police pulls over a person for driving w/o headlights and gives the person a ticket for DUI, then let him continue on his way.
If a D already had a duty to act, do they get the benefit of a Good Samaritan Statute?
No,
ex. E.g. If you were a participant in a sports activity and as a result of your conduct another was hurt, the Good Samaritan statute doesn’t protect you. Good Samaritan statutes only protect those who didn’t have a duty in the first place.
What are the exceptions to the "no duty to rescue rule"
1. D's conduct created the peril to P
e.x. You negligently crash your car, and passenger is injured, you have duty to resucue.
2. D voluntatily undertook a precaution or rescue that either induced reliance by P or others would have helped
3. Special relationship wiht D and P
-Employer-employee
-Family relationship
-teacher/student
-jailor/jailee
-common carrier-passenger
-inkeeper/guest
-tortfeasor victim
4. P's initial injury caused by D's instrumentality
e.x. -Doesn’t mean Δ was negligent; but if Δ’s machine caused the injury that was under Δ’s control and Π couldn’t help him/herself, Δ had a duty to do something.
5. Statutory duty.
In relation to duty to rescue what is the voluntary Undertaking exception?
Once you voluntarily undertake to provide a precaution, or rescue, and the victim or 3rd person relies on that, there’s a duty.
Policy: Discourages people making precautions for fear they’ll elevate the standard of care and create a duty.

Split in Authority:
•A) Some courts require a showing that a 3rd person did see and did decide in reliance of seeing Δ help to not go and help.
•b) Others say if a 3rd party was potentially deterred, then you did have a duty to carry through the rescue.
Does exerting social pressure on someone to drink untill they passout constitute a duty/breach, does it impose a duty to rescue?
Nope,
Guys who got girl drunk, not found to have duty from pressuring her to drink, but duty from failing to follow threw with rescue attempt.
What is "Tarasoff Liability"?
a. Court recognized duty to warn based on special relationship
b. Legislature codified this duty Civ Code §43.92
i. Where patient has communicated to the psychotherapist a serious threat of physical violence against a reasonably identifiable victim
ii. Psychotherapist has a duty to make reasonable efforts to communicate the threat to the victim or victims and to a law enforcement agency
What are the elements for Tarasoff liability?
1.)Reasonable identifiable victim
-A client that is generally dangerous isnt enough
2) Duty is discharged if both victim and law are notified.
-just duty to reasonable effort to notify, probably not have to fly somewhere to tell girl. Dont have to do a B>PL.
Do lawyers have Tarasoff liability?
No, In CA you are allowed to disclose info about a dangerous client w/o breaching fiduciary duty.
HYPO: Doctor fails to disclose the sleepy effect of drugs is he liable when Patient crashes?
yes
Hypo: Kid over for dinner reveals his intent to commit suicide. Makes friend and parents not tell his parents. Kills himself few days later. Duty?
• Not w/in any well-defined special relationship, no statute for duty, etc. Illustrates and underscores the prevailing general rule of no duty to rescue. May be bad mistake or judgment, but the general rule is no duty.
If you have a duty to rescue then someone else comes to the rescue may that relieve you of your duty?
Yes, it might, case where guy was lit on fire at campsite. Campsite owner duty to rescue, but brother came to help, and that relieved him of his duty.
T, a commercial cargo transporter, negligently caused an explosion that nearly destroyed R’s restaurant, forcing it to close for a month of extensive repairs. R brings a tort action against T to recover for the costs of repair and the lost profits for the month the restaurant was closed. Will R’s claim survive T’s MSJ?
Yes, R gets to recover the economic damages flowing from that physical injury.
Hypo 33: T, a commercial cargo transporter, negligently caused an explosion that resulted in the release of toxic fumes over a wide area of the city. R, a restaurant owner, suffered minor property damage to his restaurant as a result of the explosion and was forced to close for a week, when due to the toxic fumes, the police restricted public access in the 20-block area in which his restaurant is located. R brings a tort action against T to recover for the cost of repairs to the restaurant and one week’s lost profits due to the closure. Will R’s claims survive T’s MSJ?
• No, R only gets the cost to repair. The lost profits don’t flow from the injury, so are unrecoverable.
• Possible argument that the toxic gas in the restaurant was a physical injury wherefrom the lost profits flowed.
Hypo 34: Same facts as Hypo 32, except R includes a claim against T for the amount R was required to pay S, a supplier, during the month that the restaurant was closed. Under a preexisting K b/w R and S, R promised to purchase a certain quantity of food supplies from S per week and guaranteed S a minimum payment of $250 per week if for any reason the food supplies weren’t needed. R paid $250/week for a total of $1000 during the month the restaurant was closed for repairs. Will R’s claim against T for the $1000 paid to S survive T’s MSJ?
•R suffered $1000 consequential harm, it’s not lost profits, but it flows from the injury, and therefore, recoverable.
•T isn’t liable to S, the contractee.
-If R pays out K obligation to S, R can recover from T, but S couldn’t recover w/o going through R.
-R may want to cooperate w/ S esp. if they have a long term relationship
Suppose I have a contract with A to rent his boat, and I will use his boat to make money. B damages A's boat so i cant use it. Can I sue B for the economic loss i suffered?
No, "Robins" case.
What is the duty imposed on landowners to Tresspassers; Licensee; Invitee?
oTrespasser: No duty to make premises safe; duty not to be wanton; duty of reasonable care once trespasser is discovered: exception for children
oLicensee: No duty to make premises safe; duty to warn of known (not should have known) dangerous conditions (Unknown to plaintiff)
oInvitee: Duty of reasonable care to make premises safe
•Recreational Use Statutes
o Generally if land open to public then you have invitee liability.
o Purpose: Encourage people to allow others onto their land for free w/o being exposed to liability.
 I.e. if you let people come on your land for picnics and hiking, then your duty is limited. Cant charge them
o Applies mostly for rural property.
oThey’re statutory and they get complicated.
Duties Owed to those Outside the Premises: What is the important distinction
oNatural Conditions: No duty; no liability
E.g. Snow falls, bee sting, stream flows
Exception: Tress esp. in urban areasDuty
oArtificial Conditions: Duty; Potential liability
E.g. softball field had short fences and pedestrians kept getting hit by softball on fairly busy sidewalk. Sent to jury. Found liable. Rule was softball is an artificial activity.
Duty → Artificial conditions that increases the risk to someone outside the premises
Duty to inspect Trees?
Depends on factors:
 Case Rule: Reasonable duty to inspect. Sometimes there’s a duty to inspect and sometimes not depends on the obviousness of defect, where the tree is located and other factors.
o Duty of reasonable inspection varies depending on the tree’s location:
 Lower duty on forested land.
 Bigger duty where it’s a tree by sidewalk.
 Basically, the more foreseeable it is people will be hurt by a tree that falls, the higher the duty. Requires a very fact sensitive analysis.
o General Rule: Duty in urban areas, no duty in rural areas
Rowland v. Christianson
Facts: Tenant knew porcelain faucet was cracked, since she sent request to landlord a month before. Unclear if guest knew faucet was broken. Guest used faucet which broke in his hand causing serious injury
-Got ride of categories for CA
What is the CA test governing premises liability against 3rd party crimes?
- Balancing test: Balance the foreseeability and gravity of the harm against the burden of the precaution on the landowner (CA TEST)
MICRA?
Medical Injury Compensation Act. Limits recovery in medical malpratice cases to $250,000 for GENERAL Damages
What are the two standards we saw for reviewing jury personal injury damages?
"Reasonable jury standard"-Anderson: Court looks at max recover and see if jury award exceeded that.
2) "shocks the conscious" took into account multipler
What is the Collateral Source Rule?
Evidence of a collateral source is not submitted to the jury in considering damages
What are the policy reasons for and against the collateral source rule?
PROS: Defendant should not get a break/windfall just because plaintiff has been responsible and made insurance payments.
Cons: Opposing View: Compensate not punish. Economically wasteful.
Is there a split in jurisdictions on the collateral source rule?
Yes< majority say no reduction, minority allow reduction in damages
o Plaintiffs cannot be required to undergo surgery/medical treatment, but plaintiff cannot be compensated for the injury if she unreasonably refuses treatment. (Would a reasonable person have refused surgery under the circumstances?)--What is this rule called
Avoidable Consequences Rule
What type of recover is allowed for wrongful death?
Loss of support; loss of service; loss of love, comfort companionship; funeral expenses
What type of damages are recoverable for Survival?
Wage loss; Medical expenses; property damage; Pain and Suffering(Split)(CA says no)
What is the CA requirments for punative damages?
Showing "clear and convincing evidience" of "malice, oppression, or fraud"
From the Supreme Court decision in "BMW v. Gore" what are the 3 factors to consider when looking at punative damages
a) Degree of reprehensibility
b) Ratio of punitive to compensatory damages
c) Difference between punitive damages and available civil penalties
Can insurance cover punative damages in CA?
No
What is the general rule regarding Employer liability to employees?
Liable for negligence of employee acting within the course of employment
What is the exception to the coming and going rule?
o Exception to Exception: Unless you are on your way home from your last business appointment or on your way from home to your 1st business appointment.
What is the "frolic and Detour rule"
When employee is departing from furthering the employers interests and acting for thier own interets no longer in "Course and scope of employment"
What are the key questions to consider to see if employee is in the scope of employment?
1) In futherance of work duties
2) Furtherinf employers interests
3) Did employer have control over employee?
-Right to control
What are some exceptions to the rule of non-liability for independant contractors
Inherently dangerous activity
Statutory duties
Employer aware of misconduct
Non-delegable duties
Illegal Activites
What are the four requirments for Joint Enterprise liability?
1) express or implied agreement to perform some activity
2)common purpose of goal
3) common pecuniary interest
4) equal rights to control the activity in question
Popejoy: calf case- mom w/ daughter on way to buy calf hit P - ∏ sued husband- not JE because no pecuniary interest between the husband and wife in buying a pet calf for daughter
When is contributory negligence not a valid defense?
1) Intentional torts
2) Willful/wanton
3) Strict Liability
4) Negligence per se--When neg. is based on a statutory violation.
What rule does CA apply for assumption of risk?
Primary assumption of risk- No duty owed to P and thus no negligence.
Implied assumption of the risk, what are the requirments?
Knowladge of risk, and voluntary assumption. Deliberate encounter of damger doesnt mean that you consented. (i.e. jaywalker may be contributory neg. but not voluntarily assumption
For expressed assumption of the risk what are the factors the court will look toward in determing the validity of the contract?
1.) Must be clear and explicit in expressing the intent of the parties
2.) Was the risk that materialized within the range of assumed risks? "Thos reasonable related to the object or purpose for which the realase was given
3.) Is the assumption viod for policy reasons.
Can a conspiracy to commit crime give rise to a duty?
No "Baker/manning"
What is the "Last clear chance doctrine"
If the D had the LCC to aviod the harm P may still recover although P was contributorly negligent.
What are the 3 situations where two tortfeasors will be in concert according to the restatement?
a. When D does a tortious act in concert with the other or pursuant to a common plan, or
b. D knows the other conduct is a breach of duty and D gives substantial assistance or encouragement, or
c. D gives substantail assistance to the other in commiting the tort, and D's own conduct is in breach of duty to P.
What are the 3 types of actions a tortfeasor may use to recovery from another tort feasor
oContribution: Paying defendant’s right to reimbursement from other tortfeasors; generally on pro rata basis
oIndemnity: Paying defendant’s right to shift the entire loss to another tortfeasor for equitable reasons
oComparative partial equitable indemnity: Multiple tortfeasors required to share loss based on percentage of fault
What are the 3 varying rules for settling tortfeasors
oRestatement § 23: Bars non-settling Δ from recovering from settling tortfeasor; Unless settlement was made in “bad faith” with malice. (very hard to prove)
Pro-P, encourages settlement
oUniform Comparative Fault Act: Reduces recovery from the non-settling defendant by the amount of the settling tortfeasors equitable share-Limits liability of non-settling D to his or her % share of responsibility.
 Discourages settlement.
o California: Tech-Bilt: If the settlement is “in the ballpark” the settlement protects the settling Δ from further liability; allocate settlement amount to both economic and noneconomic damages
What are 3 different rules of recovery for joint tortfeasors?
1. Joint and several liability
2. Pure Comparative Fault
3. CA-Prop 51
o Economic Damages: Joint & Several Liability
oNon-economic damages: NO J&S liability: Comparative fault
What is the rule on wild animals for strict liability?
Owners are strictly liable for injuries caused by their wild animals
-Zookeeper exception
What is the rule regarding stict liability for livestock?
State variations….West let animals go free more.
•Often strictly liable where animal is trespassing OR
•Animal is not trespassing but the owner knew of the dangerous propensity
o Sandy: Mean horse in public field
P being contributory negligent is not enough to bar relief. Maybe if gross or wanton behavior that will bar relief.
Today P’s recovery would likely be reduced under comparative fault.
"RYLANDS v. Fletcher"
(neighboring dam- neg builders but ∆ not neg – water escape flooded ∏’s mine) if bring onto land 1) non natural use then 2) liable for all natural conseq of its escape.
Do acts of God and 3rd party negligence cut off strict liability?
Restatement says no, some courts say yes.
What is the Restatement q's in seeing in something is "abnormally dangerous activity"
-Does the activity create a great risk of harm?
-Is that harm likely to be great?
-Could the accident be prevented by the exercise of due care
-is the activity of common usage indicating that it is highly valuable despite its risks
-Is the activity appropriate to the place
-Is the value of the activity so great that the unavoidable risks are offset?
What is the Scope of liability in strict liability?
1. Risks is one of the risks that make the activity abnormally dangerous in the 1st place
2. Manner in which harm occures- if harm occurs in unforeseen manner-not liable.
What are the two views on Pure economic loss?
1.)Pure Economic Loss (Testbank): No recovery for pure economic loss unaccompanied by physical injury or property damage
2) Modified Rule (People Express) Allow recovery to P’s who are in an identifiable class of foreseeable plaintiffs.
What is the CA rule with regard to NIED?
Not sure maybe all of them but Dillion/Thing
oCA RULE Dillion/Thing;
P must be closely related to injury victim (blood)
P must be present at scene and aware event is causing injury
P must suffer serious emotional distress more than would be felt by a disinterested bystander and which is not an abnormal response.
Does CA allow recover for wrongful birth?
Only if the child is disabled, and they allow recovery for additional expenses
What are the restatement factors regarding strict liability for abnormally dangerous activities.
High degree of risk; risk of serious harm; inability to eliminate risk with due care; not common usage; inappropriateness to location; value of activity compared to danger
What were the facts in "J'Aire" "Testbank" and "People express"
Testbank: Boat spill oil into pier:
J'Aire: Contact with builder not with lessor and contractor dely building
"people Express" C allowed oil to escape from tank, all people have to evacuate, P suffered interruption to businiess. Identifiable v. foreseeable
What is the impact rule?
Some sort of physical contact, the impact itself does not have to be significant: Condom in salad, women and miscarriage
What is the Zone of Danger rule?
oIf you were almost run down, courts find that’s distressing enough. The fact that it didn’t brush you doesn’t bar recovery.
oWaube: Mother died of shock after seeing her child run over by truck. She was on the curb and not on the street, so no recovery, considered too far away from the zone of danger.
oSplit in Zone of Danger JXs
Some courts require some kind of objective physical injury
•E.g. Saw child hit by car, 2001 MN court said no recovery b/c she was in zone of danger, but not enough b/c she needed to be in the zone of danger and suffer an objective physical injury.
oOther courts say as long as you’re in the zone of danger, don’t need physical injury.
What is the physical injury rule?
Daley v. le Croix: Crash loud bang cause her ED.
Consent: "Brien"
Works or conduct reasonably understood by another to be intended as consent constitue apparent consent.
Informed COnsent What is the Duty?
Disclose all material risks likely to affect a patients decision.
-Split Majority (reasonable doctor standard)
--Minority (Reasonable patient standard. (CA)
What is the "cause in fact" for informed consent.
Majority: Reasonable persons standard. (CA)
Minority: This patients decision
What are the exceptions to informed consent?
Plaintiff knew of the undisclosed risks
full disclosure would have been detrimental to the patients best interests or
an emergency exisited requiring prompt treatment and patient was incapacitated