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146 Cards in this Set
- Front
- Back
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BATTERY
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1. An act by the defendant
2. which brings about harmful or offensive contact to the Plaintiff’s person. 2. Intent on the part of the defendant to bring about harmful or offensive contact to the plaintiffs person and 3. Causation |
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ACT
BATTERY |
an external manifestation of the actors will. Some volitional movement (conscience choice or decision) of some part of his body.
Seizures, reflexes, persons asleep or under the influence of drugs are not generally sufficient to constitute an act. Acts by incompetents (minors, insane persons) are still capable of volitional conduct and may still be held liable for their acts. |
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INTENT
BATTERY |
The defendant did the act with the intent to inflict a harmful or offensive contact.
Tests: 1. D’s purpose or desire was to cause the harmful or offensive contact 2. D knew that such contact was substantially certain to occur 3. Transferred intent applies Tests 1 and 2 are SUBJECTIVE- that is the basic question is not what a reasonable person would have desired or believed but, but what the particular defendant in fact desired or believed. even though juries make inferences of the defendants state of mind from objective facts. Note: Courts are split on single or dual intent. |
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HARMFUL OR OFFENSIVE CONTACT
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1. Harmful- injures, disfigures, impairs, or causes pain to any bodily organ or function.
2. Offensive contact- is to be judged by whether it would be considered offensive by a reasonable person of ordinary sensibilities. Contact is deemed offensive if the P has not expressly or impliedly consented to it. for purpose of battery anything connected to the Plaintiffs person is viewed as part of the plaintiffs person Note: Plaintiffs hypersensitive reaction is insufficient Unless the defendant has knowledge of the hypersensitivity. Note: Plaintiff need to be aware of the touching at the time of the incident- i.e. D kisses P while sleeping- or D performs unauthorized operation while unconscious- |
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CAUSATION
BATTERY |
Defendant is liable for direct contact and indirect contact, so it will be sufficient if he sets in motion a force that brings about harmful or offensive contact to P.
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ASSAULT
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1. An act by the defendant creating a reasonable apprehension in plaintiff of immediate harmful or offensive contact to Plaintiffs person.
2. Intent on the part of the defendant to bring about in the plaintiff apprehension of immediate harmful or offensive contact with the plaintiffs person and 3. Causation |
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ACT
ASSAULT |
Same as Battery: a volitional movement of some portion of the body.
1. words alone are not they must be accompanied by an overt act. 2. Words may also negate an assault- i.e. waving a clenched fist says “if I weren’t such a nice guy, I’d hit you. (no reasonable apprehension). 3. Conditional threat is sufficient- if the words and act combine to form a conditional threat, an assault will result. i.e. robber points gun and says your money or your life. 4. Immediacy- must be of immediate contact- future not sufficient. Also no assault if def is too far away or is preparing for future harmful act. 5. threats to property, are not enough. |
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INTENT
ASSAULT |
1. Intended to put the person in apprehension of an imminent harmful or offensive contact.
2. intended to inflict harmful or offensive contact. 3. both of the above are measured by the desire OR belief in substantial certainty. 4. Transferred intent applies |
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APPREHENSION
ASSAULT |
1. Must be aware of the threat at the time of the incident.
2. Defendant’s apparent ability to act is sufficient, can be placed in apprehension even if the person is not actually capable causing injury. But it is necessary that the def have the apparent ability to bring about the contact. |
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NATURE OF APPREHENSION
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1. Reasonable apprehension
2. Fear is not required- sufficient that is placed in apprehension of being touched. So one may reasonably apprehend an immediate contact although he believes he can defend himself or otherwise avoid it. 3. it is sufficient that the defendant had the actual or apparent ability to inflict touching. 4. The courts do not generally protect P from exaggerated fears UNLESS the defendant knows of the unreasonable fear and uses it to put the plaintiff in apprehension. |
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CAUSATION
ASSAULT |
must be caused by D directly or indirectly
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EXAMPLES WHERE WORDS ARE
ENOUGH TO CREATE APPREHENSION |
occasionally, the impact of the words alone may create a sufficient apprehension or immediate harm
examples: 1. "don't turn around or i'll shoot you"- circumstances make the P rely on the words. 2. Duck X just threw a rock at you! |
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IIED
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1. An act by the defendant amounting to extreme and outrageous conduct
2. Intent on part of the defendant to cause Plaintiff to suffer sever emotional distress, or recklessness as to the effect of defendants conduct. 3. Causation; and 4. Damages- Severe emotional distress |
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ACT
IIED |
1. Words alone may be sufficient.
2. The conduct must be extreme and outrageous- must exceed all bounds of decent behavior. In the absence of this the courts find a reasonable person would not have IIED. 3. The totality of the circumstances will be taken into account 4. Special relationship sensitivities- common carriers and innkeepers owe special duties liable even if something less than outrageous. |
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EXAMPLES OF EXTREME AND
OUTRAGEOUS CONDUCT |
Threatening languages by bill collectors, bullying tactics of landlord seeking their rent, the deliberate killing of someones pet.
the refusal of insurance company to pay benefits clearly owed. someone who is aware of their sexually transmitted disease havinf sex with someone. a psychologist initiation of an affair with unstable patients wife. A racial epithet from an employer. |
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INTENT
IIED |
1. must have intended to cause severe emotional distress to the P.
2. Reckless conduct will also suffice- the D acts in deliberate disregard of high probability that his actions will cause emotional distress. 3. these intents may be inferred if the D knows that the P is particularly sensitive. i.e. elderly, pregnant women, children. 4. No transferred intent |
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CAUSATION
IIED |
1. Early view- the intentional act had to cause distress that caused physical injuries. (to assure against fraudulent claims.
2. Modern Approach- distress alone suffices- rationale- the outrageous nature of of the defendants conduct may be a more reliable indication of damage than the plaintiffs actual injury. MUST BE SEVERE |
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KNOWN SENSITIVITY
IIED |
Generally, the defendants conduct must be sufficient to cause severe emotional distress in an ordinary person, However, a D who has knowledge of P fragile condition is liable even if the defendant's conduct would not have caused a reasonable person severe emotional distress.
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DEFENSES TO IIED
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1. common law defenses do not apply
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CONSTITUTIONAL DEFENSES TO
IIED |
The first amendment may be a defense where allowing the suit would curb the freedom of speech.
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THIRD PERSON LIABILITY
EXTENSION |
When def causes IIED to a third person they are generally required to show the following:
a. P present when the conduct occurred b. They were a close relative c. The def knew of their presence Rationale: Under the circumstances the D must have known that his conduct toward the first person was substantially certain to hurt the P (family member), or the conduct was at least reckless toward the P. |
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FALSE IMPRISONMENT
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1. An act or omission to act on the part of the defendant that confines or restrains the plaintiff to a bounded area.
2. Intent on the part of the defendant to confine or restrain the P to a bounded area 3. Confinement and 4. Causation |
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ACT
FALSE IMPRISONMENT |
Plaintiff must show some act by the defendant that caused the confinement of the Plaintiff. Usually requires volitional movement
or Omission- Hypo: P consents to sail on D’s Yatch after trip D anchors ship in shark infested waters P asks to get off the boat and D refuses. When she desired to leave and he did nothing to accommodate the request that it became false imprisonment then by omission. Words alone are sufficient. |
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INTENT
FALSE IMPRISONMENT |
The act must have been done by the P with the Intent to confine the plaintiff or some third person.
Desire or belief in substantial certainty. Transferred intent applies. |
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CONFINEMENT
FALSE IMPRISONMENT |
Act must result in confinement. the P must be restricted to a limited area without knowledge of a reasonable means of escape.
What constitutes confinement: 1. Area of confinement- specific area in which the Plaintiff is completely confined by the defendants acts. 2. No means of escape available- if reasonable means of escape are available AND known to the P then there is no confinement. * the P has not duty to search for means of escape or run any risk of harm to self or property by attempting to escape. *if the D asserts that he will free the P if the P complies with some unlawful condition- compliance is not deemed an unreasonable escape. 3. Plaintiffs awareness- There can be no confinement UNLESS *Plaintiff is aware of confinement at time of confinement *or is harmed by the confinement. |
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HOW CONFINEMENT IS CAUSED
FALSE IMPRISONMENT |
The P's confinement may be caused by any of the following:
1. Physical Force against P, P's immediate family member, P's property. 2. Threats- of IMMINENT physical harm to the P, immediate family member or property. * Future threats are not sufficient * Threats to P's economic well being- usually not sufficient. 3. Actual or apparent physical barriers to escape- walls, fences, enclosures- must be bound from movement in all directions. 4. Similarly, acts that deprive the P the ability to escape. * Immobilization- i.e. someone takes your crutches (could also be battery) * Isolation: cannot exercise your freedom of choice you want to go Refusing to release- refusing to release the P or assist them in leaving when under a duty to do so. |
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SHOP LIFTING
FALSE IMPRISONMENT |
Invalid use of Authority- may result in false imprisonment if it results in confinement
Shoplifting detentions are privileged- have been given the privilege to detain for investigation. For this to apply the following conditions must be satisfied: 1. There must be reasonable belief as to the fact of theft 2. The detention must be conducted in a reasonable manner and only non deadly force can be used 3. The detention must be for a reasonable period of time and only for the purpose of making an investigation. |
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CAUSATION
FALSE IMPRISONMENT |
Causation- confinement caused by D directly or indirectly. Act or something set in motion.
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TRESPASS TO LAND
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1. An act of physical invasion of plaintiffs real property by defendant
2. Intent on Def part to bring about a physical invasion of Plaintiffs real property 3. Causation |
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ACT
TRESPASS TO LAND |
P must show a volitional movement by the D of some part of body that results in intrusion onto anothers land or sets in motion a force resulting in such intrusion.
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INTENT
TRESPASS TO LAND |
The D must have intended to do the act that causes the intrusion onto the land or have known with substantial certainty that his actions would cause entry.
BUT he need not realize that the land belongs to another, he is liable for an intentional intrusion even though he acts in good faith, believing himself to the owner. Transferred intent applies. |
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INTRUSION UPON LAND
TRESPASS TO LAND |
1. What constitutes “physical invasion”- all that is necessary to satisfy this element is that there be a physical invasion of Plaintiffs land:
i. Defendant need noT enter onto land- trespass exist where D floods P’s land, throws a rock onto it, or chases a third person onto it. ii. Lawful right of entry expires- if D remains on P's land after an otherwise lawful right of entry has lapsed. i.e. you leave your car in a lot overnight. Intangibles- dust particles, smoke, vibrations, noise, orders may be treated as nuisance or trespass or both. |
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WHO MAY BRING A TRESPASS TO LAND ACTION?
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by anyone in actual or constructive possession of the land. Even if it is possession without title. If nobody is in possession, the true owner is presumed to posses and may maintain the action.
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WHAT CONSTITUTES LAND?
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Surface, above and below. This includes the air space and sub surface space to the height or depth P can make beneficial use of such space-
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CAUSATION
TRESPASS TO LAND |
the physical invasion of P’s property must have been legally caused by D’s act or something set in motion thereby even if it is unforeseeable.
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DAMAGES
TRESPASS TO LAND |
It is immaterial whether any actual damages were caused. Trespass to land is complete upon the D's intentional intrusion, and the P is entitled to nominal damages.
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TRESPASS TO CHATTELS
T.P.C. |
1. An act of defendant that interferes with Plaintiffs right of possession in the chattel.
2. Intent to perform the act bringing about the interference with plaintiffs right of possession. 3. Causation 4. Damages |
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ACT
T.P.C. |
P must show a volitional movement by the D of some part of his body that results in:
1. Dispossession of OR 2. Damage to the Chattels of another (intermeddling). |
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INTENT
T.P.C. |
It is necessary only that the D have intended to deal with the chattel in the manner in which he did deal
Transferred Intent applies Mistake is no defense |
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DISPOSSESSION
T.P.C. |
conduct amounting to the defendant's assertion of a proprietary in the chattel over the interests of the rightful owner.
Deprivation of P's lawful right of possession. This includes theft or destruction of the chattel. |
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INTERMEDDLING
T.P.C. |
conduct by the defendant that does not challenge the rightful owners interest in the chattel, conduct by D that in some way serves to directly damage P’s Chattels.
Includes throwing a stone at another's automobile, beating anothers animal. |
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POSSESSION
T.P.C. |
The Plaintiff must either be in actual possession of must have the right to immediate possession.
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CAUSATION
T.P.C. |
must be caused by the def or set in motion by def.
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DAMAGES
T.P.C. |
Dispossession or the D deprives the P of the chattels use: the P can recover for loss of possession i.e. rental value even if the chattel itself has not been damaged. In these cases the P may choose to sue for conversion.
Intermeddling: must have actual damages. |
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CONVERSION
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1. An act by D interfering with P’s right of possession in the chattel that is serious enough in nature or consequence to warrant that the D pay the full value of the chattel.
2. Intent to perform the act bringing about the interference with P’s right of possession and 3. Causation |
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ACT
CONVERSION |
Volitional movement by the D that results in a SUBSTANTIAL interference with another's possession of their chattels.
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INTENT
CONVERSION |
D must only have the intent to deal with the chattel in the manner in which he actually did deal with it.
No Mistake Defense Transferred intent applies. |
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EXAMPLES OF
SUBSTANTIAL INVASIONS CONVERSION |
The following invasions will suffice:
1. Substantial dispossession: takes without the owners consent, bars the possessor's access to the chattel, obtains possession by fraud. 2. Destroying or altering 3. Unauthorized use by bailee- must constitute a material breach an important factor is whether any harm to the chattel was caused by the improper use or during the improper use. 4. Buying or receiving stolen property- because it still involves the requisite intent to assert ownership rights and to deal with the chattel in a manner inconsistent with the rights of the true owner. 5. selling or disposing stolen property 6. misdelivering of chattel by D- even if done in good faith. 7. Refusing to surrender chattel on demand- 4. |
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POSSESSION
CONVERSION |
The plaintiff must be in actual possession or entitled to immediate possession.
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SUBSTANTIAL INVASION
CONVERSION |
The invasion required for a conversion claim is greater than the required for a T.P.C.
This is such severe interference that it amounts to claim of dominion and control on the actors part. The Longer the withholding period and the more extensive the use of the chattel during the time, the more likely it is that conversion has resulted (but no bright line rule). |
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CAUSATION
CONVERSION |
must have been cause by def or actions set in motion by def.
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DAMAGES
CONVERSIONS |
Remedies- basic remedies are:
a. Damages- fair market value as of the time and place of conversion b. Repelvin- if they want the chattel returned and collect damages sustained. c. if it does not have market value- replacement value or actual value to the plaintiff. |
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Relevant Factors in determining seriousness of the interference with property in a conversion action
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1. the extent and duration of the exercise of domino or control
2. the actors intent to assert a right in fact inconsistent with the others right of control 3. a actors good faith 4. the extent and duration of the resulting interference with the others right of control 5. the harm done to the chattel 6. the inconvenience and expense caused to the other 1, 2 and 3 look at the mental state. 4, 5 and 6 look at the plaintiff and the damage to the plaintiff All of them are focused on what the defendant did. |
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DEFENSES TO INTENTIONAL TORTS
CONSENT |
Consent- A defendant is not liable for an otherwise tortuous act if the Plaintiff consented to the D’s act-
Consent may be given: 1. expressly 2. implied from custom, conduct, or words OR 3. by law. |
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ACTUAL EXPRESSED CONSENT
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When the Plaintiff actually communicates to the D a willingness to submit to the D's conduct.
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APPARENT CONSENT
IMPLIED FROM CONDUCT |
This consent is implied from the P's conduct in light of the circumstances.
i.e. the plaintiff by conduct has led the defendant reasonably to believe that the plaintiff is willing to submit to the D's act. i.e. P's failure to object to a vaccination that P sees D preparing for. taking the bus impliedly consents to taps on shoulders or brushing. |
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CONSENT IMPLIED BY LAW
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The plaintiffs consent may be implied by law to a bodily contact (e.g. surgery) that is necessary to save their life if:
1. the plaintiff is unconscious or otherwise unable to consider the matter and grant or withhold consent. 2. an immediate decision is necessary 3. there is no reason to believe that the plaintiff would withhold consent is able to do so; and 4. a reasonable person in the plaintiffs position would consent. |
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CONSENT IS INVALIDATED IF:
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1. Acts in excess of consent given- the invasion goes beyond the limits of the consent given.
2. Fraud- ineffective if procured by fraud 3. Consent obtained by Duress- this may be held to be invalid- but legal duress does not include threats of future action or of some future economic deprivation. These would not invalidate consent. 4. Mistake- Where P expressly consents by mistake, the consent is still a valid defense unless the defendant caused the mistake or knows of the mistake and takes advantage of it. |
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CAPACITY REQUIRED
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Incompetents, drunken persons, and very young children are deemed incapable of giving consent to tortuous conduct. Need consent of a parent or guardian.
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CRIMINAL ACTS AND CONSENT
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Majority view a person cannot consent to a criminal act that involves a breach of peace otherwise consent is effective for crimes that do not breach the peace.
Minority consent is effective is any case unless P is a member of the protected class. |
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CONSENT OF INVASION OF
LAND OR CHATTELS |
The Plaintiffs consent (expressly or by conduct) to the invasion of their land or chattel operates as a defense. However, consent may not be effective: as to trespasses that go beyond the scope of consent; if consent was obtained by fraud. duress or apparent mistake, and incapacity.
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CONSENT BY FRAUD
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Consent induced by fraud- the consent is generally not a defense but it must go to an essential matter.
1. C expressly consents to balancing an apple for R to shoot it off. R claimed to be a professional, this was not true- this fraud goes to an essential matter, consent is ineffective. 2.Same as above but she is a professional but she gave him a fake 10 bill. This is a collateral matter; consent is effective. |
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CONSENT OF SPECIFIC PERSON
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There can be consent to a particular person but it can run out if another person does it in their place.
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SELF-DEFENSE
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when a person has reasonable grounds to believe that he is being, or is about to be, attacked, he may use such force as is reasonably necessary for protection against the potential injury.
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SELF-DEFENSE
NON-DEADLY FORCE |
When acting in self defense, a defendant is privileged to use force that is NOT likely to cause death or SBI, subject to the following conditions:
1. Reasonable apprehension of any bodily contact, and 2. Reasonable means used 3. Retreat- the defendant must not have had a duty to retreat. |
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REASONABLE APPREHENSION
SELF-DEFENSE NON-DEADLY |
the Plaintiff must have acted in a way that led the defendant to reasonably believe (either Correctly of by reasonable mistake) that the Plaintiff was about to inflict an IMMINENT harmful or offensive contact upon him.
actor need only have a reasonable belief- so apparent necessity, not actual necessity is sufficient. |
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REASONABLE MEANS
SELF-DEFENSE NON-DEADLY |
The defendant used only those means that appeared reasonably necessary to avoid or prevent the contact threatened.
If more force than necessary is used, the actor loses the privilege of self-defense. So the self-defense must match the force used by the aggressor. |
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RETREAT
SELF-DEFENSE NON-DEADLY |
The defendant must not have had a duty to retreat.
For example: Abandonment- As the perceived threat diminishes; the need to use serious force diminishes too. What is the nature of the first threat, once it is clear that the other party has withdrawn or stopped very clearly apparent then you have the duty to stop. |
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SELF-DEFENSE
DEADLY FORCE |
The defendant is privileged to use force likely to cause death or SBI when acting in self defense if:
1. There is reasonable apprehension of SBI 2. Duty to Retreat- There is a split over whether, as an alternative to using deadly force in self-defense, the defendant must retreat if it is safe to do so. |
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REASONABLE APPREHENSION
SELF-DEFENSE DEADLY |
The Plaintiff must have acted in a way that led the D to reasonably believe that the Plaintiff was about inflict IMMINENT harmful or offensive contact upon him, AND the defendant reasonably believed that such contact would inflict death or SBI.
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DUTY TO RETREAT
SELF- DEFENSE DEADLY |
Majority view- No duty to retreat as an alternative to using deadly force.
Minority- impose a duty to retreat before using deadly force if this can be done safely. Note: Where guns apply there is rarely a means of safe escape, thus the minority view will not apply. |
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LIMITATIONS ON SELF-DEFENSE
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1. Danger terminated- there is no privilege of self defense if the defendant knows the danger has terminated.
2. Excessive use of force- no privilege to use force in excess of that which the defendant is privileged to use to defend himself. When excessive force is used: a. the defendant is liable for whatever amount of the force is excessive, and b. The Plaintiff then has the privilege of self defense. Note: there is no privilege of self defense against privileged action by another i.e. lawful arrest. |
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THIRD PERSON LIABILITY
SELF-DEFENSE |
1. self-defense does not justify the defendant's INTENTIONAL use of harmful force against a third person.
2. but if the defendant UNINTENTIONALLY injures a third person while reasonably attempting to defend himself, he will be liable only if he was negligent toward the third person. |
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REASONABLENESS
SELF-DEFENSE |
Objective test- how the situation would have looked to the reasonable person in the same or similar circumstances, not how the defendant actually perceived it or how it actually was.
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DEFENSE OF OTHERS
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The defendant may also be privileged to use force to defend another person. However the force the defendant may use is limited to that which the person defended would have been privileged to use in self-defense.
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WHO MAY BE DEFENDED
DEFENSE OF OTHERS |
Under modern law, the policy is to encourage a person to go to the aid of anyone who is endangered even if the defended is a complete stranger to the defendant.
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EFFECT OF MISTAKE
DEFENSE OF OTHERS |
The courts are split on whether the defendant is privileged if the person defended was not actually entitled to defend himself. i.e. going to the aid of A who is being arrested by undercover cop B.
Older view- held that if D intervenes, he must "stand in the shoes" of the person he is defending, so that unless the person being helped was actually privileged to defend himself, D is subject to tort liability. Thus the privilege could not be based on mistake no matter how reasonable. Modern- allow reasonable mistake. So D must reasaonably believe that: a. the third person was privileged to defend himself and use the means of defense and amount of force that D used. OR b. D's intervention was necessary to protect the third person. |
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DEFENSE OF LAND OR CHATTELS
USE OF NON-DEADLY FORCE |
A defendant may NOT use deadly force to defend his land or chattels. He is only privileged to non-deadly force, but only if:
1. the invasion by the Plaintiff is not privileged, or is conducted so as to lead the D to reasonably believe that it is not privileged, and 2. the D reasonably believes that force is necessary to prevent or terminate intrusion, and 3. the D prior to the use of force, demands that the P desist or leave and the demand is ignored- Note: no demand need be made where it appears to be futile or the demand would further endanger the D property. |
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USE OF MECHANICAL DEVICES
DEFENSE OF LAND OR CHATTELS |
The D is privileged to use mechanical devices (high voltage fences, spring traps) in defense of his land or chattels only if:
1. The use of such means to protect property is reasonable and necessary under the circumstances, or customary in the local, and 2. Adequate warning of the use is given or posted. Note: Deadly Mechanical Devices- their use is only privileged is the intrusion in fact constitutes (not just reasonably appears to constitute) a threat of death or SBI to the D or his family. simple trespass, vandalism, or theft is not sufficient. |
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RECOVERY OF DISPOSSESSED
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once the D has been permanently dispossessed of the property and the tort is complete she may not use force to recapture it. BUT if they are in “hot pursuit” the defense still operates because the tort is viewed as being in process.
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DEFENSE OF PROPERTY DEADLY
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Deadly Force- Privilege of property defense can be transformed into a right of self defense or defense of others and thus you can use deadly force. It is transformed if there is a risk of harm to you or your family etc.
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NECESSITY
DEFENSE OF PROPERTY |
a person may interfere with the real or personal property of another where the interference is reasonably and apparently necessary to avoid threatened injury from a natural or other force and where the threatened injury is substantially more serious than the invasion that is undertaken to avoid it.
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PUBLIC NECESSITY
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Necessity
• Reasonable belief there is a threat- harm to society •Reasonable measures completely insulated from liability Policy- may be more inclined to help public interest if you know there is no liability but controversial because of unjust enrichment. |
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PRIVATE NECESSITY
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Necessity
• Reasonable belief in need to prevent imminent harm to P or P’s property • Reasonable measures This is still a privileged but will be liable to harm to others property. |
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NEGLIGENCE
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1. Duty – Did the defendant have a legal obligation to exercise some level of care to avoid the risk of harming persons or property?
2. Breach- Did the D's conduct fall below the level of care owed to the P? In light of the foreseeable risks created by the conduct, was the defendants conduct unreasonable under the circumstances? 3. Factual causation- Did a causal connection exist between the defendant's unreasonable conduct and the P's harm. 4. Scope of liability- Did the D's obligation include the general type of harm the P suffered? are there any intervening causes that are superseding? 5. Damages - What legal recognizable losses has the P incurred to date, and what loses may be incurred in the future? |
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DUTY
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The circumstances under which an obligation to exercise reasonable care exist. This is a legal question decided by Judges.
Two major categories: 1. The general duty principle of reasonable care. 2. Exceptions to the general duty principal that establish limited Exception rules or full duty exception rules. |
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DUTY
GENERAL |
Generally a defendant only has a duty (or responsibility) to everyone to avoid creating unreasonable risks of harm to foreseeable plaintiffs.
In the absence of risk creation, a person must use reasonable care only in the presence of a special relationship. Bottom line: there is generally no duty to come to the aid of another if there is no relationship or risk creation that imposes a duty. |
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AFFIRMATIVE ACT
DUTY? |
GENERALLY YES.
If the Defendant's conduct creates a risk of physical harm, the defendant owes a duty to "do the conduct" with due care. The scope of this duty is defined by the reasonable person standard so the question is how the reasonable person of ordinary intelligence would have acted. If the risk is not foreseeable you are beyond the duty of care- what you cannot foresee you cannot control and what you cannot control you cannot be responsible for. |
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OMISSION
(FAILURE TO ACT) DUTY |
GENERALLY NO.
There is generally no duty for acts of omission. of course we will see exceptions. |
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VOLUNTARY UNDERTAKING
DUTY (full duty exceptions for omission) |
Although a stranger in the absence of of a special relationship and risk creation has no responsibility to come to the aid of another, once the stranger does so, there is an obligation not to make things worse.
Thus to escape liability for abandoning a voluntary undertaking you must show the the P was not worse off. Policy: by undertaking this duty you have discouraged others from helping, so you must follow through. |
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INNOCENT RISK CREATION
DUTY (full duty omission exception) |
even if the risk you created was through no true fault of your own you must nonetheless exercise due care to avoid liability.
I.e. a deer darts out and you hit it, killing it on the road- even though this was not really your fault you must remove the deer from the road because failure to do so would create a risk onto others. |
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SPECIAL RELATIONSHIPS
Full Duty Omission exception |
As a matter of policy, courts decide that some relationships should require imposition of a duty to come to the aid of another even in the absence of risk creation.
policy: A special relationship typically exists when one party has the knowledge, power and ability to control the risks of the association and the other party does not. NOTE: The special relationship question is relevant only in cases in which the defendant has engaged in no risk creation in relation to the P. when there is a risk creation, a duty arises regardless of special relationship. |
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TYPES OF SPECIAL
RELATIONSHIPS |
1. Ship captain and crew
2. Employer and employee (but only at work and part of job) 3. Common carrier and passenger: taxis, airlines, trains, bus, anybody who transports 4. Innkeeper and guest 5. Custodian relationship: jailor to prisoner, babysitter 6. Occupier and entrant to land 7. Husband and wife 8. Parent and child 9. Invitor and invitee 10. School and student; Teacher and student 11. Business and customer 12. Doctor and patient |
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DUTY TO THIRD PERSONS
BECAUSE OF SPECIAL RELATIONSHIP |
Tarsoff: case where the psychologists patient told the doctor about his desire to kill his girlfriend and the doctor did not warn the girlfriend that was eventually killed.
Though the court recognized the confidentiality of the therapist- patient relationship, it is said that in narrow circumstances of a threat to an identifiable victim, the benefits of disclosure exceed the costs of chilling patients from being open and forthright with their therapists. this is the most prominent example of the courts, for policy reasons, imposing a duty onto upon a person not because of a special relationship between a second party directly but to an indirect third party. These decisions are made for POLICY reasons other third party warning examples: 1. a parent with a dependent child. 2. a custodian with those in its custody 3. an employer with employees when the employment facilitates the employee's causing harm to third parties and 4. a mental health professional with patients. |
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MISFEASANCE
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the risks of harm that arise out of one's conduct.
Affirmative acts- the courts generally impose a duty for affirmative acts unless the court feels that a full duty policy exception should exist. (this will be seen later). |
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NONFEASANCE
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risks of harm that DO NOT arise out of one's conduct.
the courts generally DO NOT impose a duty for acts of omission. |
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CONTRACTUAL RELATIONSHIP
Full duty omission exception |
where a party has agreed to provide aid thus although there is generally no duty to act here one is imposed contractually.
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STATUTES
negligence per se |
Statutes that impose duties may supersede the general no duty to aid rule.
(negligence per se discussed later) |
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LIMITED DUTY POLICY
EXCEPTIONS |
1. Special Actors
2. Special Harms |
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OWNERS AND OCCUPIERS OF
LAND (Special actors limited duty exceptions) |
3 approaches:
1. the duty of care owed to a visitor on the property varies with regard to the status of the visitor. a. Traditional Majority (tiered approach) i. Trespasser- one on the land without permission. Duty Owed: to avoid willful and wanton misconduct unless there is a right of self defense-(almost no duty) ii. Licensee- person on land with permission, includes social guest, unilateral benefit. Duty Owed: must warn of hidden dangers that the owner is aware of NO duty to fix or inspect. iii. Invitee- person invited onto the land primarily for business purpose, mutual benefit. Duty Owed: general duty of reasonable care based on limits of foreseeability. This may require inspection or fixing something if it may foreseebly lead to an injury. This approach also includes the invitee test, which allows you to figure out if the person on the land is an invitee or a licensee. • Invitee Tests: 1. Economic benefit test- business invitee, financial gain 2. Public invitation- building is open to the public- stores hospitals etc. |
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OWNERS AND OCCUPIERS OF
LAND (Special actors limited duty exceptions) |
approach 2
Modified Two Tier Approach i.Licensee and Invitee combined- because they do not like to apply the economic test- these are then both subject to the normal negligence duty rule. |
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ATTRACTIVE NUISANCE
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FIRST APPROACH- NO LONGER VALID - allowed recovery by children who were attracted to an artificial condition on a landowners land (as opposed to natural like a stream) and got injured in the event that the child was too young to appreciate the danger if they are old enough to appreciate then they are treated like a trespasser.
Ring of Reasonableness Now used- reasonable standard of care depending on the childs understanding, age, maturity. If they don't understand then must use reasonable care, If they do understand then trespasser almost no duty. |
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OWNERS AND OCCUPIERS OF
LAND (Special actors limited duty exceptions) |
d. Case by Case approach- (California)- in this approach the status of the person does not matter as much, the thought is that we should treat everybody reasonably- these courts are concerned with the factors that are not captured by the traditional approach. The approach is based on upon a full consideration of public policy issues involved and a balance of them- so all statuses are owed normal negligence duty of care unless there is a compelling policy reason not to impose such a duty.
Factors considered: 1. foreseeability of harm to the plaintiff 2. the degree of certainty that the plaintiff suffered injury 3. the closeness of the connection between the defendant conduct and the injury suffered 4. the moral blame attached to the defendant’s conduct 5. policy of preventing future harm 6. burden on the defendant 7. burden on the community 8. insurance costs Note: Status is considered but only a factor. |
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OWNERS AND OCCUPIERS
CRIMINAL ACTS |
Policy concerns because trespassers are not foreseeable. liability on the part of the landowner for criminal acts is burdensome as insurance will go up, rent goes up, people displaced etc. so courts hesitate to create liability for all criminal acts. So they impose foreseeability tests:
1. Specific Harm Test- landowner owes no duty unless the owner knew or should have known that the specific harm was occurring or about to occur. Thus unless that very same act has occurred it is not foreseeable- very narrow test as virtually the exact same thing had to occur. This is criticized for its imbalance of owner v. P’s right. 2. PSA- Prior Similar act- broader interpretation- i.e. person gets stabbed then someone is physically assaulted with a gun- the owner can be held liable as these are similar acts and he should have taken steps to prevent these. Not looking for the same act but roughly the same risks. May be held liable if performed in the same general area and the owner was previously put on notice as it is now foreseeable. 3. Totality of Circumstances- any circumstances that may be relevant to put the property owner on notice should be considered ( location, nature etc) more beneficial to P but becomes meaningless because criminal activity is so commonplace that this opens flood gates and no protection on land owners. Balance test- So always balance the foreseeability of the harm and the burden on the defendant from the duty to be imposed. Factors to be considered- number of incidents, nature, location, burden of precaution. |
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PROFESSIONALS
Special Actors Limited duty exception |
a. Generally have a full duty of due care to clients as they are deemed to have a special relationship.
i. Rationale- because the professional is undertaking a responsibility they have a duty not to worsen their client’s position. People are relying on the expert for safe performance. b. Professionals generally have a limited duty or no duty to non-clients- policy concerns- professional/client relationship is private so they would be breaching the trust of their clients if we require professionals to leak information- privacy concerns- also don’t want to make it unaffordable for people to get help. i. Courts have recently began to distinguish professions by risk- thus a doctor will require more care or duty as opposed to a lawyer. • Tarasoff- Dr. owes a duty to the third party that is removed from the Dr. to protect, control and warn. But we must determine who is foreseeable to limit the scope so the following must be met: o The threats must be serious- cannot be dreams or delusions o Must be threat of physical violence o Must be an identifiable victim- the burden is low if it is one identifiable person. o(has been used against clergy men (confession); Lawyer (criminal saying they are going to kill someone) But do these cases fit against the policy of tarasoff- they are experts in people in knowing when the danger is high same for lawyers? Confidentiality issue? |
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PUBLIC AGENTS AND AGENCIES
special actors limited duty exception |
a. Now you can only sue when public agents and agencies violate their own policies.
4. Police Officer- in order for the police officer to have a duty towards a particular citizen the following must be met: i. There must be some kind of contact between the citizen and a particular officer ii. Assumption through some kind promise or action, of an affirmative duty to act on behalf of the party who was injured. iii. Knowledge on the part of the police officer that inaction could lead to harm iv.The person must rely on the promise. v.The undertaking must thus make them worse off. vi. Policy: having a duty to society as a whole would open up flood gates, would be costly, so they only have a duty if they choose to help (undertaking) |
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Pure Emotional Distress
Direct Victim special harms limited duty exception |
1. Pure Emotional Distress- recovery for negligently inflicted emotional harm in the absence of physical injury. Is there a duty in this situation? Originally there has been no recovery in this area now there has been movement for recovery in limited cases
a.Policy- Deter negligent conduct, Place burden of cost on culpable D not innocent P, Fairness, fraudulent claims. b. Direct Victim i. Physical Impact Rule (small minority)- Plaintiff must suffer physical contact to recovery this is not to say they must sustain an injury or that the contact must manifest itself in some symptoms. The contact may be unclear and courts may be split on this issue i.e. something that falls only hits the persons sleeve- 1. Policy Con: this view is narrow because a person can sustain the same emotional distress if something falls one inch from them but does not hit them- they could not recover under this theory because there was no contact. 2. Policy Pro- proof makes it harder for people to fake. ii. Physical Zone of Danger and Severe emotional distress- Sub Min- if you are placed in the zone of danger no contact is required- this is a zone where a reasonable prudent person is expected to have emotional reaction- 1. Policy- courts still skeptical because they can fake so the majority have adopted: iii. Physical Zone of Danger and Physical Manifestation. 1. Policy- this insured evidence and allowed P to recover for near misses. iv. Physical Manifestation- you must have a physical manifestation of your emotional distress, courts have found this in loss or gain of weight, insomnia, psychologist testimony. Can’t be hypersensitive, injuries must flow from fright caused by D’s conduct, Burden of Proof on the P, Objective symptoms. Note: this is not a test in itself it may be an addition to the other test- 1.Policy- very speculative easy to fake, flood gates, L>C |
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Pure Emotional Distress
Bystander special harms limited duty exception |
i. Physical Zone Of Danger (majority)- this also compensates bystanders for distress that is a product of fear for one’s own safety and distress over safety of another (close relative). So can recover for her own near miss AND emotional trauma from fear of close relative.
ii. Foreseeability- Dylan v. Leg- the thing that must be foreseen is that you will actually experience emotional distress- a sort of emotional zone of danger- factors of foreseeability of emotional distress: Note: These are not elements just consideration thus they are flexible. 1. P was located near the accident- farther less chance of recovery 2. Whether shock resulted from actually witnessing it- temporal proximity- makes it more intense. 3. Whether P and victim are closely related. a. Policy- Con- Arbitrary- i.e. does not witness but arrives one second later, who is closely related? Easily abused, L>C b. Policy Pro- foreseeable P, predictable iii. Thing (CA)- because Dylan was heavily abused the factors were replaced by elements to limit the floodgates and L>C. 1. P located at scene at time of accident & is aware that an injury is being caused 2. Closely related- no cohabitant the court does not want to have to analyze relationships. 3. As a result P Suffers serious ED, a reaction that is beyond that which would be experienced by a disinterested witness & and which is not abnormal under the circumstances. |
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Pure Economic Loss
Special Harms limited duty exception |
oPolicy= narrow scope of liability bc would result in flood gates
o Specific Exceptions •Special relationships (third-party beneficiaries) •Attorney-Client o Ask attorney to draft will, part of will, client wants everything to go to Joe, as the sole beneficiary of the will o Bc of legal malpractice he screws up will, as a result when client dies Joe gets nothing o Can Joe sue attorney for the econ losses? If he can then why? o The attorney not only knows that he has a special responsibility to Joe---No prob of flood gates, no difficulty of how much econ loss bc indicated in will • Termite Inspector-Seller o Seller of home hires inspector, inspector says no termite o Based on report , buyer gets home o But inspector wrong, buyer says that I got termite infested house, I was jipped and econ damaged o Should inspector be responsible to buyer? • Yes, Inspector knows that person would buy house, there’s no flood gates •Fisherman o As a result of negligence of party your unable to fish, so you are entitled to compensation o Entire livelihood based on environment and ocean • Insurance • Lots of insurance companies offer compensation • Want business to self-insure bc easier and cheaper for insurance companies to provide for business losses then third party tort losses • Limited Duty Rule o A readily indentified and foreseeable class of victims •Factors • Type or persons • Certainty or predictability of class • Numbers in the class • The type of econ expectations disrupted o No duty of care unless there’s econ damages |
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FULL DUTY EXCEPTIONS
TO AFFIRMATIVE ACTS |
III. Full Duty Policy Exceptions- Novelty cases scenarios where the court will not impose a duty of care even when the D created the risk. These exceptions require in multifactor analysis to determine if a full exception should be created.
i. Moral blame ii. Certainty of injury iii. Clarity and causation iv. Deterrence v. Burden on society and defendant vi.Insurance loss spreading vii. Foreseeability- the lower the foreseeability the harder it is to make defendant responsible. viii. Other- like constitution first amendment. |
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BREACH
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Three questions guide this analysis:
1. What is the defendant’s standard of care? 2. Did the defendant breach the standard of care? 3. How is the breach proved or disproved? |
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ADULT STANDARD OF CARE/ RPP
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A. The Reasonable Prudent Person/ Adult Standard- this is a guideline for determining reasonable conduct under the circumstances. This is an objective standard of a reasonable person not a subjective standard. The courts are not delving into the mind of the defendant; instead they use an external standard.
i. Objective Standard: Commends D to act as a RPP would in the same/similar circumstances, failure to do so would result in a breach of duty. ii. Policy reasons for this objective standard: safety and deterrence- everyone will know what to follow so, so people cannot claim they did not know better this would be counter to deterrence. there is an incentive to be safer so they don’t get sued. |
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CHARACTERISTICS OF RPP
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i. We do not use a specific person; there is no specific person that represents all people.
ii. Local customs and norms of the jurisdictions are taken into account iii. A reasonable person is expected to know basic physics, natural elements, animal and human nature. iv. However if you have cultural difference you are still treated against the RPP with the customs and norms of the place you live in although this may be unfair it is pragmatic without a clear rule there is chaos and no standard whatsoever. |
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CHARACTERISTICS THAT INFLUENCE THE STANDARD OF CARE - EXTERNAL
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External circumstances
1. Risks of Defendant’s act is considered and effects the standard of care- as the risk goes up; societies expectations of the standard of care also go up- i. D tries to pass P on a highway. D was driving on bald tires, they blow out, standard of care is higher because the risk was increased by the bald tires. ii. If A fires a gun in woods in Alaska v. A shooting in the streets of L.A. higher standard of care in L.A. cause risk of shooting people is higher. 2. Emergency conditions- this is considered and the standard of care is altered to a reasonable person under those emergency circumstances- this however is not available if D contributed to the emergency- thus this emergency must be: i. Sudden and unexpected ii. Not of the defendants making iii. Not a failure to anticipate |
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Characteristics that influence the standard of care: Internal
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Internal circumstances that effect that standard of care
1. Physical Disability (i.e. blind)- held to a standard of reasonable person with the same condition- this is done because it would be fair to punish them for something they cannot change unlike dumb person who can learn. i. Standard changes with condition ii. Expert witnesses would testify as to what standard is iii. Standard could go up or down- i.e. elderly person held to higher standard when driving iv. Note: intoxicated held to reasonable sober person standard 2. Mental Disability- Does not affect the normal adult standard of care- it is NOT lowered. i. Policy- someone must be held liable and if both are seen as innocent this is unfair to the party without a disability; incentive to make their caretakers more responsible in their care; CON- unfair to the disabled to be held to a high standard than they can achieve. ii. Exception- some courts will take into account sudden insanity but only if the D had no forewarning of the mental disorder. 3. Children- (under 18)- held to a reasonable child standard of the same age, experience, intelligence, maturity, under the same circumstances. i. Policy for lowering the standard of care: recognition of their inability to possess and use the judgment expected by adults; children have not yet comprehended the experiences of the world, we do not want to deter them from learning and being kids- (disabled will not learn already know the world) ; children in size cannot cause as much damage as disabled adult; children have a limited sphere of influence. ii. Still an objective standard although more subjective than the adult standard. iii. EXCEPTION- children engaged in adult activities or inherently dangerous activities will be held to the standard of an adult- The court may choose to apply the inherently dangerous over adult activity because in some places adult activities are customarily done by children. So some juris even hold that adult activities customarily done by children can be held to child standard. Advantage of adopting inherently dangerous activity is it would be the same anywhere cars, moto are dangerous everywhere, adult activities by children may have different outcomes dependent on the place. iv. Policy- deters children from engaging in dangerous activities |
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NEGLIGENCE PER SE
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1. First we must determine through policy analysis if the court should adopt the statute or not.
2. then we must look to the statute specifically to see if: a. Does P fit into the statute? b. Is the harm the statute sought to prevented the harm P suffered c. Is P a member of the protected class of the statute. 3. even if P passes these tests D can move on to see if D has breached the standard of due care. 4. The courts then choose how much weight is given to the statute in determining the breach. i. Strict negligence per se- rare- if you violated the statute you have breached the standard. ii. Rebuttable presumption- majority- if P can establish that the statute applies and it has been violated the P is entitled to a presumption of negligence unless D can show an excuse for the behavior- these excuses are but not limited to: 1. Incapacity- i.e. child 2. Someone who does now know there is an occasion for compliance 3. Unable after reasonable care to comply 4. Emergency- i.e. child jumps into lane swerve to avoid it 5. Compliance would involve a greater risk of harm to others iii. some evidence- substantial minority- violation of the statute is merely evidence, and it's weight is left to the juries discretion. |
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DID THE D BREACH THE STANDARD OF CARE?
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a. Hand’s balancing of risks formula- if (B)urden< (P)robability x L (gravity of loss) then the defendant’s conduct was unreasonable. This formula was meant to be flexible as it would be affected by surrounding circumstances.
i. It basically expresses that if you could fix the problem with very low cost and save society a lot then you are negligent in not doing that act. 1. Burden of Avoidance(B)- this is the cost associated with avoiding the harm, alternatives and their feasibility, inconvenience to D and society (price increase, socially desirable activity). The greater the risk of serious danger the more onerous the burden that courts will be willing to impose on the defendant. 2. Probability of risk happening (P)- this is the likelihood of the harm occurring- so this measures how foreseeable causing the harm is. 3. Magnitude of Loss (L)- this is what a reasonable person would foresee as the likely harm- so focus is on the likely harm NOT the actual harm that occurred. Body> Property> Pure eco loss. |
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HOW IS BREACH PROVED OR
DISPROVED? |
Evidence to prove breach:
1. Customary Evidence- 2. Circumstantial 3. Res-Ipsa |
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CUSTOMARY EVIDENCE
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• Custom evidence, evidence of a long standing practice of many/significant pple doing the same thing for many years, shows the extent to what reasonable pple think of the burden, risk; so relevant to the standard of care and the hand formula (def, relevance, weight)
• There’s no requirement to give it a presumption, the jury can give as much weight to custom evidence as they want • It’s common and persuasive but wont necessarily win your case |
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CIRCUMSTANTIAL EVIDENCE
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• Circumstantial evidence, facts circumstance and common sense to make inferences, common sense +facts= inference, (KMART case)
• Subject to jury’s discretion, can be persuasive, but doesn’t mean will win case |
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RES IPSA
the facts speak for themselves |
(strongest type of circumstantial evidence), has different effect, gives a lot of power to plaintiffs the happening of the accident so clearly speaks of negligence that the court will create presumption if negligence and actually switches the burden of proof, more powerful form
o Elements: 1.Does not happen without negligence (common sense +) 2.Def as exclusive control of instrumentality (fact+) 3. Plaintiff not a contributory cause (fact) (= Inference of def’s negligence) Weight (Circumstantial evidence→ under Res Ipsa) • Discretionary inference • EATON case (marginal Res Ipsa case) 1. Accidents happen for a lot of reasons, maybe you could deduce that negligence is one of the causes, but says that other things would have to be eliminated, like environmental factors (rain, snow) • so to negate res ipsa negligence then come up with counter reasons why they were not negligence, 2. Mom’s testimony gives number 2 3. No indication that mother caused the crash The jury at the end has to determine what happened Rebuttable Presumption (most cases use this) HARDER case o 1. Doesn’t happen without negligence— prosecutor need to show more than 50% that your interpretation of facts are true, that it was the negligence of somebody at the nursing home that resulted in injury o 2. When looking at who had control of the medication, we see that the caretaker had control of the drugs that caused injury. Counterargument is that they don’t even have that drug at all. Counter is nursing home have responsibility to prevent exposure to medication Presumption of negligence, nursing home try to rebut it o 3. Def would have to show that she got the medication herself, but then you would say that nursing home had responsibility to prevent overdose, take care of patients • Burden Of Proof Shift • YBARRA case (Strongest use of Res Ipsa) 1. courts assuming that caused by somebody’s negligence otherwise wouldn’t cause it 2. Doctors and staff, doesn’t know who caused the injury bc unconscious, the doctors would have the best idea of why he was injured, so only word of defs Show as a group that they had control over whatever the instrumentality was 3. Plaintiff cant cause own injury bc unconscious Burden of proof on everybody, don’t need to single out nurse or doc, • If plaintiffs prove elements of res ipsa, they have to show a greater then 50% probability that def was negligent then plaintiff is done with proving evidence, at this point burden of proof shifts to def, and now def has to convince to a greater than 50% prob that def was not negligent • If def fails to prove not negligent more than 50% then def loses • The def has all the evidence, we want to smoke out the truth as a policy reason to switch burden of proof to def |
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MEDICAL MALPRACTICE
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a. Standard of Care- For Doctors Custom sets the standard of care, deviation from the custom constitutes a breach in the standard of care. So in this case custom evidence is conclusive in establishing the standard of care. Performance errors are judged from this standpoint.
i. Knowledge, skill, due diligence, ii. Customarily used by (need experts to testify to this) iii. Minimally competent practitioner- (unless they are a specialist as they are held to the highest standard) iv. In the same school of practice (if there are more than one school of thoughts then the exception below may apply) v. Within the relevant geographic community (three views)- (Requires Expert Testimony) 1. Local- held to the custom standard of the locals. 2. Similar location- look at same types of injuries, population, technology et. 3. Nation- (Specialist) vi. Given the available medical resources. 1. Exception of Judgment v. Performance- If the doctor makes a mistake in judgment but this mistake was chosen between two schools of thought we will not judge him on which one he chooses but on his good faith in choosing the one that he did. If they choose in good faith they are free from liability- this would apply even if it is a minority school of thought. Policy- we want them to be able to experiment and craft the best treatment as opposed to a standard that may not be appropriate. When there is a judgment call to be made and there is no clear custom. b. Breach of standard- in these cases custom evidence is conclusive there is no need to use the hand formula since the custom is the determination of breach. i. Note: when res ipsa or common knowledge shows gross negligence no expert testimony is needed. |
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INFORMED CONSENT
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focuses on providing patients with information related to their medical problems, the proposed treatment, material risks involved, and alternative procedures so that a patient may decide whether to consent.
a. Standard of Care in regards to what must be disclosed- i. Professional Standard is based on custom: Generally doctors must disclose what is customary or what doctors normally disclose this insulates them from liability. 1. But there was a policy issue of personal freedom, doctors had sole control over what they wanted to disclose? So there has been movement toward a reasonable patient standard. b. Patient standard is based on materiality-trend to this- Reasonable patient standard- so what would a reasonable patient want to know? This is what is material to their decision-making. The following must be disclosed: 1. Diagnosis 2. The nature and purpose of the proposed treatment 3. Risks and consequences of the proposed treatment 4. Potential benefits 5. Feasible alternatives 6. What will happen if they decline. i. Criteria in evaluating material disclosures- you must weigh the probability of that risk v. the potential harm- the higher these are the more the doctor needs to disclose. c. Exceptions i. If the doctor operates and finds a life threatening problem and they cannot wake you up and you have no family- the doctor can do what he needs to as it is assumed that a reasonable person would consent if they could. ii. Best interest of the patient exception- the doctor thinks it would be in the best interest of the patient to withhold information because giving them the information would do more harm than good. This switched the burden of proof to D and they must show why they believed this. Note: courts are split on whether the patient should know about private life such as drug addiction but agree that they should be informed when they have never or rarely performed a procedure. |
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CAUSATION
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1. FACTUAL CAUSE
a. But For Test b. Substantial Factor Test 2. PROXIMATE CAUSE a. foreseeability Test b. Risk Test |
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BUT FOR TEST
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1. But for Test- but for the defendant’s negligence the plaintiff would not have been harmed. The make the difference test.
a. This is a hypothetical test- it asks you to hypothesize this alternate world where the defendant changes his behavior to reasonable and b. ask what result? Same? Different? i. If the result would have been the same then the D is not liable. ii. If Different then his behavior did have an impact on P. c.Think of it as an edit to the video. d.NOTE: this can be influenced by policy considerations- complex owner and assault in fed-ex employer found no factual connection they thought there would be no difference and they did not want to impose costs onto tenants. e. Note: it is far more difficult to connect an act of omission than an affirmative act. |
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SUBSTANTIAL FACTOR TEST
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usually used when there are multiple factors- in this test you do not ask what would have happened you look at what actually happened and what actually happened is that multiple factors caused the injury.
a. First- you must establish that the defendant is A factor. b. Then you must evaluate and establish that they are a substantial factor then they can be held liable. c.Factors to establish substantial factor: i. The number of other factors and the extent of the effect they have in producing the harm. The more the factors the harder it is to find liability as the negligence of the defendants is diluted. ii. Whether the actors conduct has created a force or series of force which are in continuous and active operation up to the time of the harm, or has created a situation harmless unless acted upon by other forces for which the actor is not responsible. Directness v. indirectness. iii. Lapse of time- may dilute influence on the outcome. iv. These factors are trying to asses the strength of the connection by eliminating other factors. 3. Liability in Multiple cause scenario a. Joint Liability- Effect: each P can potentially be held to be 100% liable- P can choose how to divide or who to hold 100% liable. i. Vicarious liability- when a worker is negligent through vicarious liability can make employee and employer both liable. ii. Joint enterprises- i.e. the motorcycles besides the horse- can both be held jointly liable. iii. Independent acts- indivisible harm- because you cannot divide the harm in accordance with who caused which harm they will be held jointly liable. b. Apportionment- if the injuries are divisible then the corresponding D will pay that injury- i.e. two cars hit one car in different places- damages correspond to one or the other. |
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IF BUT FOR TEST AND SUBSTANTIAL FACTOR TEST FAIL THERE ARE THREE ALTERNATIVE TESTS:
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1. Loss Chance Liability- medical malpractice
2. Alternative Liability- 2 or more possible causes, actual cause unknown 3. Market share liability- 2 or more causes actual cause unknown |
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LOST CHANCE LIABILITY
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Lost Chance/substantial increase of risk Test (use when medical malpractice): Herskovits case
• Court uses this new test, replaces the substantial factor and but for test, court replaces it with how much negligence increase the risk of death o Just a small increase would be enough to be entitled to damages, doesn’t need to be over 51% • so if you lose any substantial chance then doctor is responsible for that loss and would have to pay for the loss, like wage expenses [limited to med malpractice cases—trying to balance injustice] o Why does it have to be a substantial reduction? (more then 5%) • There’s margin of error with predictions of survival, but in this case they were very specific 39% chance of survival, 14% of survival lost—suspicious o 14% chance of survival and multiply within the amount of money ($1mill) will lose within those 5 years of lost life= $140,000, price of depriving person on chance of surviving |
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ALTERNATIVE LIABILITY
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this comes up when there are 2 or more possible causes and the actual cause is unknown- i.e. two shooters one bullet- cannot use the but for test bc would have to show at least 51% that it was one over the other but we have 50/50. For the same reason cannot use the substantial factor test. But because both are negligent someone should be held liable. So the new approach says:
a. both parties are negligent- because both negligent b. all parties must be in court- don’t want a truly innocent party to be held responsible c. there have to be a small number of D’s d. Burden on the D to prove that one or the other did not do it- smoke out, deterrence, fairness. Because D has sole access to proof. e. If they cannot disprove then they are jointly liable. |
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MARKET SHARE LIABILITY
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6. Market share liability- 2 or more possible causes I actual cause that is unknown. The following must be met:
a. Must be a generic defective product- made of essentially the same elements b. All manufactures must have been negligent c. Because D has the sole access to the evidence the burden of proof shifts to the D but to be fair the P can only recover the damage x the percentage of market share from each. Proportional not jointly liable. d. Proportional because the chance they are the producer is proportional to their market share. e. All of the D’s must be at least 51% of Market. f. Smoke out, deterrence, fairness. |
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PROXIMATE CAUSE
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II. Proximate Cause (scope of liability)- this establishes the strength of the connection to establish if it is strong enough to make him legally obligated. Here you must also check for an intervening cause that may break the chain of causation connecting the P and the D.
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FORESEEABILITY TEST
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MAJORITY- Focuses on the knowledge of the defendant- focuses on what dangers could have been predicted by a reasonable person in the shoes of the defendant- foreseeability as a matter of fact by the jury. i.e. child with gun foreseeability reaches outer rings like dropping on her foot. Here we can hold defendants liable for highly foreseeable central factors AND secondary risks depending on which argument the court takes.
a. The Plaintiffs argument will always be broad and general to show that the circumstance was foreseeable. b. The Defendants argument will always be narrow and specific so as to show that this was a rare occasion and therefore not foreseeable. Three prong test: i. P’s class of person ii. P’s type of harm iii. Intervening causes of P’s injury? • Both parties will contract or constrict the scope but they may attack different prongs- i.e. the def may say okay fine P foreseeable but harm was not etc. • You are looking to the extent that the D controlled the situation- • Use the stop the DVD test. |
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RISK TEST
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inherent risks- Focus on the conduct what is it about this conduct that would make a person say that it is negligent. What risks are created by this kind of conduct. i.e. child with a gun, danger is shooting something someone etc. this test tried to narrow the scope of liability and covers ONLY the primary risks.
a. The Plaintiffs argument will always be broad and general as to what the inherent risks constitute. b. The Defendants argument will always be narrow and specific in defining the inherent risks. |
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WHICH APPROACH TO TAKE?
BROAD V. NARROW |
No matter which test is adopted the court will need to chose the broad or narrow approach and apply policy reasons for that decision- these policy reasons are:
a. Burden on Def- if low then broader b. Gravity of risk posed by D- if great then broader c. Nature of P’s or Intervening causes conduct- IC will be discussed below. d. Relative expertise of parties- high expertise then expand the scope of the expert. |
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INTERVENING CAUSES
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these are causes that become operative after the defendants negligence and enhances P’s injury. If these intervening causes are foreseeable then they do not supersede the D’s negligence. If very unforeseeable then they cause a break in the chain.
• The higher the intervening cause is on the culpability spectrum the more likely the chain will break- but caution fireman’s negligence was not seen as foreseeable and he was seen as having broken the chain. While in the pacbell case they said the negligence was foreseeable. • Here you will also argue a broad or narrow interpretation of the actions of the IC to hold or break the chain. P would argue general to keep the chain- D would argue narrow to break the chain a. Negligent- generally foreseeable b. Reckless- possibly breaks chain c. Intentional- generally breaks liability sample exceptions: • Fed-ex employee even though intervening cause prior similar acts could trigger duty. • Gun store owner violates state statute in selling gun to shady character- Intentional intervening cause D creates the risk. • Bank guard falls asleep- special duty relationship to stop intentional IC’s |
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EXCEPTION TO GENERAL RULE THAT FORESEEABLE INTERVENING CAUSES DO NOT BREAK CAUSATION
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1. Eggshell rule- what seems to be an unforeseeable exception is nonetheless the responsibility of the negligent party and are deemed foreseeable.
2. Rescuer Doctrine- Rescuers are deemed a foreseeable IC. so the D is responsible for any harm to any person who attempts to rescue the P. |
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DAMAGES
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* No nominal: must have actual damages
* Compensatory: o Eco (special): + Medical + Lost wage + Property loss + consequential o Non Eco (gral): + Pain & suffering * Punitive o Only if malice or reckless disregard for safety o Can’t exceed 9 times the compensatory damages |
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NEGLIGENCE DEFENSES
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1. Comparative fault
2. Assumption of risk |
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COMPARATIVE FAULT
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here the defendant is saying that the Plaintiff breached some standard of care or that P’s negligence was factual and proximate cause of her injuries. Analysis is the same- what standard of care was owed? How was he suppose to act? Hand formula balance, custom, evidence or circumstantial evidence etc.
a. Types i. Pure: you can recover even if your share becomes 1% because you were 99% at fault. ii. Modified- once a certain amount of fault is allocated to the P then the claim is barred turning into contributory negligence 1. 50% bar 2. 51% bar iii. Special issues- what if you have more than one party? 1. Most Jurisdictions say that P must be less liable than the total defendants- so P can recover as long as less than 50% at fault. 2. Some hold that the Def must be less liable than each individual defendant to collect on them individually. |
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COMPARATIVE FAULT AND IMPLICATIONS FOR JOINT LIABILITY
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Once the Defendant establishes comparative fault against multiple defendants which remedy should be used?
• Joint (favors pl) or proportional liability (favors def) • Most courts use proportional liability • Each of these defs was cause of plaintiff injury, combined effect resulted in single injury. • Should we apply joint liability or should we change or get rid of joint liability bc of the way they assigned the percentages of fault o Lets say def1 only has money, so under joint liability he had to pay all of the money, even though he was just 15% at fault this seems to be unfair and this is why most juris. have eliminated joint liability. |
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ASSUMPTION OF RISK
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Expressed- characterized by an expression of the parties of their willingness to assign the risk themselves- usually something written although can be verbal.
i. Most courts do not enforce the “fine print” contracts because they believe that there is no meaningful choice they weren’t bargaining. ii. They will normally enforce the waiver to dangerous sport participation because you do have a meaningful choice. Implied objective- you do not have to subjectively know, the law assumes that the person accepts the dangers that are inherent risks. Implied subjective assumption must: 1. Have actual and subjective knowledge of the risk 2. Appreciate and comprehend the risks being exposed to 3. Voluntarily choose to accept that risk. 4. The courts will choose how to construe the risk, narrow or broad. |
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STRICT LIABILITY
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No fault liability- alleviating plaintiffs burden of proof and tries to eliminate defendant's defenses.
1. Vicarious Liability 2. Abnormally dangerous activities 3. Wild and Vicious Animals |
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POLICY FOR STRICT LIABILITY
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Lack of control unpredictable, people don’t know how to handle them, high degree of risk, imposing risks on others.
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ABNORMALLY DANGEROUS
ACTIVITY |
ADA factors:
1. existence of high degree of harm to person etc 2. likelihood that harm would be great 3. inability to eliminate the risk by the exercise of reasonable care- inherent 4. extent to which the activity is not a matter of common usage 5. inappropriateness of the activity to the place where it is carried on 6. extent to Which it’s value to the community is outweighed by it’s dangerous attributes. Note: 1-3 ultra hazardous 4-6- looking at normality or abnormality- you must satisfy some in both. |
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ANIMALS
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Domestic animals- cats dogs normal so just having them will not impose strict liability only if they are especially vicious and the defendant has knowledge of this.
Barnyard animals- If they do escape then strictly liable- but only for property damage- injuries most likely a negligent case- these animals are not as dangerous. Wild Animals and Vicious Animals 1. Why strict? Because vicious animals lack domestication, cannot control them they are unpredictable, people don’t know how to handle them, high degree of risk, imposing risks on others. 2. Does not matter what degree of care you use, if the choice is abnormally dangerous it makes you liable. 3. Policy- deterrence 4. Other side- Zoos public displays promote learning etc. |
