Term
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Definition
a) Intent to cause contact on another human being or imminent apprehension
b) Resulting harmful or offensive contact occurs |
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Term
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Definition
i) Intent element satisfied if has intent to contact and ∆ reasonably knows going to create unwanted contact
ii) Without intent there is no tort
iii) Garrat v. Dailey – outlined two possible criteria
(1) Intent entails knowledge contact will occur to substantial certainty
(2) Age not immune from battery
iv) White v. Muniz – dual intent
(1) Have to intend to make contact
(2) Have objective appreciation of offensive conduct |
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Term
| Battery: Resulting in harmful or offensive contact |
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Definition
| i) Contact can be something ∆ launches in motion that makes contact |
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Term
| Battery: liability for others |
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Definition
c) Insane person held liable if act with requisite intent(commits voluntary act and intends resulting injury)
d) Parental liability for minor – child must have committed wantonly, damages capped at low amount |
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Term
| Battery: Transferred intent |
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Definition
i) Intends tort on one person and commits on another or
ii) Intends one tort but accomplishes another |
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Term
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Definition
a) Act intended to cause harmful or offensive contact
b) Creates imminent apprehension of battery in other persons mind |
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Term
| Assault: Apprehension element |
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Definition
i) Apprehension judged by what reasonable person would feel
ii) Need more than words, need other acts combined with it |
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Term
| Assault: Extended Liability |
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Definition
| damages suffered as result of tort makes ∆ liable for |
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Term
| Elements of False Imprisonment |
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Definition
a) Act with intent to confine (mere exclusion from someplace)
b) Confinement occurs within boundaries against your will
c) Victim conscious of confinement or if harm occurs can be unconscious |
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Term
| False Imprisonment: Confinement |
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Definition
i) By threats or demands – factual details critical
ii) By assertion of authority
iii) By duress of goods |
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Term
| Elements of Trespass to land |
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Definition
a) Entry onto property but intent doesn’t have to be to trespass
b) Subject to extended liability principle where liable for any damage that occurs even if don’t intend or foresee |
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Term
| Elements of Conversion of Chattels |
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Definition
a) Must intend to exercise substantial dominion over chattel but doesn’t have to be conscious of wrongdoing
b) Factors to consider
i) Extent and duration of control
ii) ∆ intent to assert right over property
iii) ∆ good faith
iv) harm done
v) expense or inconvience caused |
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Term
| Elements of Trespass to Chattles |
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Definition
6) Trespass to Chattels - intermeddling with another chattel but short of conversion
a) Liability imposed only if
i) Possessor suffers dispossession or lost use
ii) If chattel or possess is harmed
b) Different bwt conversion and trespass is one of degree |
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Term
| Elements: Intentional Infliction of Emotional Distress |
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Definition
a) Extreme/outrageous conduct
b) Intent o cause or recklessly cause severe emotional distress
c) Severe emotional distress occurs |
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Term
| IIED: Extreme/ Outrageous Conduct |
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Definition
i) Look at party relationship and also if behavior repeated or carried out over time
ii) What seems outrageous from perspective of Π |
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Term
| IIED: Intent to Cause or Reckless cause of ED |
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Definition
| i) Have to show ∆ has knowledge of vulnerabilities |
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Term
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Definition
i) Ultimate standard if what Π thinks whether distress occurred or not
d) Impt factor is exploitation of hierarchal, power relationship
e) Causing ED must be intended and primary consequence of ∆ conduct
f) 3rd party IIED – has to be directed to 3rd party or be present when distress occurred |
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Term
| Intentional Torts: Defenses |
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Definition
| Self defense, arrest & detention, defense or repossession of property, consent, public of private necessity, shop keepers rule. |
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Term
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Definition
1) SD- privileged to use reasonable force to defend against contact or confinement depending on apparent necessity of defense, not actual reality
a) Can use deadly force if necessary but never privileged for excessive force
b) ∆ has privilege to put Π in apprehension of harm even though contact itself would not have been privileged
2) Arrest and Detention
a) Great Atlantic v. Pacific Tea – man detained because thought stole something, didn’t sore liable. Detention only exists until person tries to leave without paying
3) Defense and repossession of property
a) Impermissible to use deadly force to prevent trespassers
b) Value of human life outweighs possession of property |
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Term
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Definition
a) Consent in fact – actual willingness that conduct of another occur
b) Apparent consent – overt manifestation understood by reasonable person as consent
c) Negate consent factors
i) Age
ii) Mental capacity- ineffective only if substantially impairs ability to understand and ∆ knows of incapacity
iii) Consent obtained by fraud or misrepresentation
iv) force
d) Manifested consent – discerned from physical actions, doesn’t have to be verbal
e) Conditional consent – object of consent is the contact
f) Consent of minors – can consent to touching appropriate to their age
g) Implied consent – generally implied, like in operation, limited by absence of proof to contrary,
i) Necessary because often difficult to get substitute consent
h) Revocation of consent – Π can revoke consent at any time by communicate this to ∆ |
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Term
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Definition
6) Shopkeeper’s privilege –
7) Public necessity – trespass to land or chattels when actor reasonably believes averting imminent public disaster- absolute privilege
a) Necessity must be clearly shown
b) Applies when there’s imminent public disaster
c) Thing avoided should be greater than what inflicting
d) Can address problem of from whom Π can recover and also permits ∆ to avoid personal liability if meet criteria
8) Private necessity – focus on indiv not public arena
a) Limited privilege here but still liable for damages if actual damage occurs
b) Extended liable may apply here
c) If physical unable to leave then refusal may be privileged |
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Term
| NEGLIGENCE: Elements for PC. |
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Definition
i) Duty (core concept)
ii) Breach
iii) Actual harm (LRH)
iv) Cause in fact
v) Proximate (legal) cause |
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Term
| Duty and Breach: General Standard of Care |
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Definition
a) General duty of care: prudent person standard – exercise care that reasonable person under similar circumstances to avoid or minimize risk of harm. Only applies to foreseeable harm
i) Stewart v. motts – duty of care varies with each circumstances and only have “reasonable care” duty. Greater danger, greater care required
ii) Wilson v. sibert
iii) Robsinson v. Lindsay – adult SOC applied when involved in inherently dangerous adult activity
(1) Kid driving snowmobile hurt passenger, should be held to adult SOC
(2) Children under 3 cant be N, over that can apply child SOC
(3) Should take age into account when determining N
iv) Creasy v. Rusk – mentally disabled held to same SOC regardless of capacity to understand
(1) Shouldn’t take mental disabilities into account when determining N
v) if actor has more than minimum knowledge of risk supposed to use skills to maximum ability
vi) Roman v. Estate of Gobbo – take into account physical disabilities
(1) Man had heart attack while driving, use same standard as person with similar problems in similar situation, cant judge by someone who doesn't have same disabilities
vii) Intoxicated person treated same as non intoxicated |
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Term
| Duty and Breach: Specifications |
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Definition
i) Chaffin v. Brame – emphasize have to determine duty on case by case basis
ii) Rains v. Bend of river – NPS case
(1) Kid bought ammunition, killed himself, guy who sold violated gun control act, no NPS because gun act not designed to prevent this type of injury
(2) NPS – violation of statute is conclusive that breached duty of care, statute is duty and violation is breach, only resolves breach of duty issue
(3) Statute must establish specific standard of conduct. Need ask
(a) Does Π belong to class statute designed to protect
(b) Is injury type statute designed to prevent
(c) Need to look at leg. intent
(4)
iii) Impson v. Structural Metals – excuses are restrictive and conclusive
(1) Guy changed lanes within 100 ft of intersection and caused accident. Tried to invoke excuse but court only accept those outlined in R 288
(2) Excuses are
(a) Violation reasonable b/ of actors incapacity
(b) Neither knows nor should know of occasion for compliance ex: light goes out unexpectedly
(c) Unable to comply after reasonable diligence – cases of impossibility
(d) Confronted by emergency not due to own conduct – unexpected failure in car component
(e) Compliance would involve greater risk of harm to actor or others
(3)
iv) When decided as matter of law means – court concludes on fact that RP could not find otherwise and directs verdict, another words nothing for jury to decide |
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Term
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Definition
| BREACH ELEMENT- foreseeability is central here, need to think about theories b/ will effect CIF element
1) Breach: assessing reasonable care by assessing risks and costs
a) Risk of harm unreasonable when RPP would foresee that harm might result
b) Can articulate many diff breach theories – be creative with this to fit to your case
c) Π job to articulate what alternative courses of conduct ∆ should have engaged in to establish behaved unreasonably
d) Indiana v. Mathew
i) Guy started mower in garage and blew up, no liability b/ garages made for that kind of activity, no foresee that would blow up
e) Stinnet. Buchele – if Π in better position to avoid risk ∆ not liable for injury – least cost risk avoider
i) Roofer fell off roof and blamed homeowner, court found ∆ in better position to take precautions
ii) Some risks so obvious no precaution is needed and Π should have taken own care to avoid risk
f) Bernier v. Boston Edison – duty breached
i) Electric pole case, gravity of harm was critical to courts reasoning, was foreseeable that poles would fall, should have made better design
ii) have to anticipate where going to be used, been knocked down before,
g) US v. Carrol Towing – risk utility formula = burden |
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Term
| Negligence: When more than one person is Negligent: Proving and evaluating conduct |
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Definition
3) Proving and evaluating conduct
a) Joint and several liability – Π can enforce claim against either tortfeasors, gets judgment against both but can’t collect more than full damages awarded. One party can pay whole and then get reimbursed from other
b) Several liability systems/comparative fault – fact trier makes fault apportionment of liability, no one party is more liable than for his share, use most often |
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Term
| More than one N person: Proving conduct |
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Definition
i) Santiago v. first student – had no theory of breach
(1) Bus had accident but Π couldn’t remember much about it or what driver did wrong
ii) If have evidence dispute harder to get directed verdict, easier for ∆ to get MSJ ( can have no disputed facts) or directed verdict since Π has burden of proving N
iii) Expert testimony plays significant role in torts, not necessary when jurors can make assessment about reasonableness of act (usually in everyday experiences)
iv) Jury is decision maker for witness credibility and reasonable inferences |
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Term
| More than one N person: Evaluating conduct |
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Definition
i) Diff theories of breach have diff implications how and if can apply CBA as well as how to prove breaches
ii) 3 common theories of liability
(1) ∆ created dangerous condition or should have known about it
(2) ∆ didn’t directly create condition but discovered or should have discovered and taken precautions
(3) ∆ mode of business operations made all too likely that others would create dangerous conditions
iii) Thoma v. Cracker Barrell
(1) Lady slipped in store and no one saw anything, odds are that ∆ business practices were lacking
iv) Wal Mart stores v. Wright – establish principles use of custom in establishing breach,
(1) Π fell on puddle, used store manual to try and establish duty which was higher than RPP
(2) Court said that possible policies were same as RPP but may have exceeded
(3) Evidence that ∆ violated customary safety precautions of community usually sufficient for Π to get to jury, to use custom offensively must be one whose purpose is safety, if its custom could prove foreseeable of harm
v) The T.J. Hooper – defensive use of custom, ∆ says adherence to custom cant be N but not fly
(1) there are precautions so imperative that universal disregard will not excuse their omission
(2) Two boats lost off coast, no custom to have receiving sets but still should have
(3) Compliance with custom tends to prove reasonableness but not in this case
(4) CBA applied here- less costly to put radios than likelihood of wreck
vi) Custom can be used offensively by Π to establish SOC even if exceeds RPP but must be safety custom and make sure applying to control group intended, even if doesn’t establish SOC might get to foreseeability |
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Term
| Proving unspecified Negligence: Res Ipsa Loquiter |
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Definition
ONLY PROVES BREACh
a) 3 elements of RIL
i) event one that ordinary doesn’t occur in absence of N
ii) other responsible cause including conduct of Π are eliminated by evidence - ∆ has exclusive control
iii) indicated N is within scope of ∆ duty to Π, Π had no voluntary contribution to injury |
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Term
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Definition
b) applying RIL permits inferences of N that can satisfy Π burden of proof allowing them to survive MTD or directed verdict and get to jury, also forces ∆ to defend himself instead of hiding behind ∏ burden of production
c) RIL not used in slip and fall cases b/ ∆ most likely in control of where they were walking and usually not used in cases were public place that lot of people have access to
d) RIL not very helpful when 2 or more ∆ have control
e) Byrne v. Boadle
i) Π walking by and hit with barrel of flour, had no specific breach theory, said accident spoke for itself
f) Attributing fault to ∆ rather than others
i) Giles v. City of New haven – aggressive use of RIL
(1) ∏ is elevator operator, malfunctions and she’s hurt. Court found ∆ had enough control to find that without their error the accident wouldn’t have happened
ii) Exclusive control not necessary as long control ∆ did have was sufficient enough to warrant inference that ∆ was more likely responsible than someone else. TC must allow jury to draw inference
g) Is N more probable than not
i) Warren v. Jeffries – straightforward app. Of RIL
(1) Kid ran over after car rolled, no one had touched gears. Court found RIL not applicable
(2) ∏ should have excluded all other possible explanations, did not so lost, too many other items that could not have been ∆ fault
ii)
iii) Widmeyer v. S.E. Skyways
(1) Wrongful death suit for plane crash, court found should have applied RIL instruction
(2) ∆ said weather was problem and that explained all problems but court said no reason to not apply RIL in cases where acts furnish a complete explanation of the accident
(3) These type of accident don’t normally occur without error even in bad weather conditions
(4) ∏ can apply theory of breach and still use RIL as long as there’s uncertainty surrounding the theory
iv) Normally when evidence shows complete explanation for accident don’t apply RIL |
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Term
| Negligence: Harm & CIF: HARM |
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Definition
1) Actual harm
a) Preston v. Cestaro – established that ∏ had to show actual harm
i) Bus passenger claimed back injuries from bump but court found no actual harm had occurred
ii) Injuries must not be pre existing and must be physical or economic injury
iii) In personal injury cases can get past and future medical expenses, los of wagers or earning capacity and pain and suffering |
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Term
| Negligence: Harm & CIF: CIF |
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Definition
actual cause, proves that LRH was caused by ∆
a) Expressed as but for test – when this statement is true have proven actual cause. Must convince court that caused harm but also should be liable for it
b) But for requires firm finding that ∆ N was absolute prerequisite to what happened, whereas substantial factor test requires finding that N was major contributor
c) But for test –
i) Salinetro v. Nystrom
(1) Pregnant lady didn’t know, doctor did x-rays and fetus was harmed but doctor not blamed because ∏ didn’t even know pregnant so couldn’t blame doctor b/ he didn’t ask if she was.
(2) But for fails
ii) Determining causation requires evaluation of what might have happened using but for, very subjective and case by case basis
d) Respondeat superior liability – parties liable for their partners or employees actions, those who act in conspiracy are all liable for harm, at least one person in group must be but for cause |
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Term
| Nagligence: Harm & CIF: CIF-Alternatives to But-For |
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Definition
i) Landers v. E. Tx
(1) ∏ owned lake and blamed 2 ∆ for ruin and couldn’t tell which one got there first, court held that where have 2 ∆ and cant figure out apportionment all will be held liable for damages and injured party can enter judgment against all together or separately
(2) each spill was sufficient to have caused damage by itself
(3) To hold both liable must be indivisible (cant trace to anyone else – nature of injury cant be apportioned with reasonable certainty) and concurrent in time
ii) Anderson v. Mineapolis
(1) 2 fires converge and burn ∏ property, but for test not suffice here to find ∆ liability but ∏ won because either fire would have burned land even if there had been no others
(2) Cause must be indep. Sufficient to cause harm, allowed jury to find causation if ∆fire was substantial element in harm done
(3)
f) Proof: what was caused
i) Summers v. Tice – 2nd doctrinal limitation on but for relaxation
(1) Three guys hunting, knew where ∏was but only one shot hit eye and but for not enough to show which was responsible but both had breached duty so liable
(2) Need to show both ∆ were wrongdoers
(3)
ii) have to rule out all other possibilities of cause to find ∆ liable
iii) Lord v. Lovett – Loss of opportunity doctrine case – usually only used malpractice cases
(1) Guy with broken neck goes to hospital where misdiagnose and suffers further loss
(2) Recovery allowed for LOOD when ∆ alleged N aggravates preexisting injury to deprive of substantially better outcome
(3) 3 approaches to LOOD
(a) All or nothing (traditional)- ∏ must prove deprived of at least 51% of recovery, not used very often
(b) Worst of both worlds - ∆ N more likely than not increased harm and once established can recover completely – not used often either
(c) Lost opportunity gets damages just for lost chance not previous injuries, ∏need to establish causal link bwt N and lost opportunity can recover. Most commonly one used
(4) Preponderance test - ∏evidence persuade trier that probabilities are greater than 50% that each element is established
(5)
iv) Causation difficult to prove but can show ∆ liable without proof that conduct cause legal harm if
(1) ∆ acted N
(2) N created identifiable risk
(3) ∏ was persons subjected to risk
(4) ∏actually suffered harm of kind risked by ∆
v) Joint and several liability used when:
(1) ∆ are joint tortfeasors
(2) Indep feasors are liable for single indivisible harm
(3) Indep feasors are liable for divisible but practically indivisible harm – both ∆ caused harm but cant apportion amounts for each |
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Term
| Negligence: Scope of Risk/ Proximate Cause: Principle |
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Definition
– designed to limit scope of liability by creating link bwt ∆ N action and injury, PC is question of degree and must be done by fact finder
1) Principle scope of risk
a) Risk rule – risk that manifested is same risk or in same general class that made behavior N and was foreseeable, must be connected to risk that occurred
i) Justification for rule is that liability must stop somewhere and person should only be liable for harm caused
b) If ∆ was CIF but not proximate cause then no N
c) Metcalf v. Washington Heights
i) Lady attacked as waiting for buzzer to work, ∆ was CIF but not proximate, not foreseeable that would get attacked
d) Palsgraf v. Long Island -
i) ∏ on platform, operator drops package of fireworks and explosion hurts ∏. No labeling on package of contents
ii) Establishes that ∆ only liable for
(1) Type of injury risked by N
(2) Class of persons risked by N
(3) Foreseeable – RPP could have foreseen injuries that occurred
iii)
Guard conduct not wrong in relation to ∏, ∏ not in class of persons duty owed, class of risks only extends to those in immediate area
iv) Risk perceived defines duty owed
v) Transferred intent can be used to establish PC
e) Under risk rule if use NPS most likely will establish PC
f) Rescue doctrine – rescuer can recover from ∆ when N prompts rescue, used in special ∏ cases |
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Term
| Negligence: Scope of Risk/ Proximate Cause: Assessing Scope of Risk |
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Definition
a) Is harm outside scope b/ of manner it occurs?
i) Hughes v. lord advocate
(1) Guys left manhole open and kids got in caused explosion and was hurt, burns were foreseeable, highest level of generality used here
(2) Too narrow to say that ∆ not N because risks that were foreseeable happened in unforeseeable way – still liable
(3)
ii) Thin skull or eggshell skull rule – if ∆ commits tort fact that harm was worse than expected doesn’t limit liability, takes ∏ as they are. ∆ act must be one that would cause harm to normal person or ∆ also at fault b/ knew ∏ was especially vulnerable
b) Is harm outside scope b/ unforeseeable
c) Intervening cause – bwt ∆ N and injury and can still apply risk rule
d) Superseding cause – intervening cause enough to break causal chain and free original ∆ from liability
e) Outside b/ results most directly from act of intervening person
i) Marshall v. Nugent – superseding cause, terminated risk case
(1) Car run off road and ∏ goes to get help and ∆ to avoid car stalled hits ∏. Court found ∆ N was breach of duty owed to ∏
(2) Car accidents driver should contemplate risks and often impossible to foresee but doesn’t always bar recovery
ii)
f) terminated risk - ∆ conduct created risk but no longer existent, emphasizes Π had reached position of apparent safety
g) Anaya v. Superior Court – kid hurt in accident and in helicopter to hospital crashed and died. Appeals court found actor is liable if N is substantial factor in injury and not relieved if intervening act of 3rd person was foreseeable. Foreseeability is the risk of harm not of that particular intervening act. ∆ responsible for injuries during medical treatment to treat injuries from accident
h) Layers of thinking about PC
i) Purpose or policy – circumstances that link ∆ N and harm is indirect not appropriate to hold them liable
ii) Legal principle – risk rule and direct cause
iii) Special application of risk rule – rescue doctrine, thin skull rule, fire case rules, terminated risk, medical aggravation
iv) Courts apply specific rules when have them, we should start with C then work up to A |
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Term
| Negligence: Contributory Negligence |
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Definition
o Contributory negligence
o If plaintiff fails to offer due care can the defendant be held negligent?
o Affirmative defense in common law.
• Eliminates defendant’s liability even when all of the elements of the prima facie case are present.
o Same set of operative facts can be used in different doctrinal fashions.
• Proximate cause
o Note 2: Standard: is the intervening act foreseeable?
• Apply proximate cause principles. Breach of ordinary care?
• Stinnet v. Buchell argument.
• The defendant is not expected to anticipate every negligent behavior if plaintiffs.
o Apportioned liability between contributorily negligent plaintiff and the negligent defendant exists. Traditional, Butterfield, practice is not as popular anymore. |
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Term
| Negligence: Comparative Negligence |
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Definition
o Pure Comparative Negligence
• If the plaintiff is more negligent than the defendant than the plaintiff gets nothing.
o Modified Comparative Negligence
• Damages awarded are proportionate to the amount of negligence of each person. Normally must be more than 50%. |
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Term
| Negligence: Contributory Negligence |
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Definition
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Term
| Assumption of Risk: Express |
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Definition
1) express assumed risk – contractual apportionment of risks to deviate from default standard. Can be oral or in writing. 2 limitations
a) enforceability – tunkl case – hospital made patient sign release, finding when service is essential ROA not apply
b) scope of release – moore case
2)
a) Moore v. Hartley Motors –
i) Π bought ATV, attended class and even though signed release court found trail was dangerous that was not covered by release signed b/ only released from dangers inherent in ATV riding not general N of course. ATV course not essential,
ii) Unreasonable risk – likelihood and gravity of harm outweighs utility of conduct and burden on ∆ for removing danger- CBA |
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Term
| Assumption of the Risk: Implied |
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Definition
– crews case – those who voluntarily consent express or implied to exposure of known risk cant sue for damages from that exposure
a) Confronting known risk – Crews v. Hollenbach
i) Π was gas employee and hurt when line blew up. Court found he had AOR, AOR is complete bar to recovery. Π was aware of risk of explosion as gas employee and also as RPP standard
ii) AOR objective analysis
(1) Π had knowledge of risk of danger
(2) Appreciated risk – normally subjective standard but Crews used objective
(3) Voluntarily (product of conscious will, not under duress) exposed himself to it
iii) if ∆ owed duty to Π then cant use AOR and go back to evaluating CN
iv) once Π has consented to risks ∆ only has ordinary duty of care
b) no difference bwt CN and AOR when raised as defense to established breach of duty
c) if employer fails in duty cant use defense based on breach of duty that employee is barred because should have known about dangerous condition
d) Sunday v. Stratton – skier hurt by tree covered by snow. Court held that where evidence shows assumption of duty and breach by ∆, Π is not assuming that risk, only assuming use of reasonable care by ∆. Doesn’t assume risks not inherent in activity |
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Term
| Assumption of Risk as limited or no duty |
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Definition
a) Turcotte v. Fell -
i) Jockey hurt when other guy broke rules, court found participation in sport relieved other riders of duty of reasonable care with respect to known dangers. Foreseeable risks and dangers in sport waive right to recovery. Injury was foreseeable risk, outside inherent risks of sport there’s range of normal violations that participants consent to
b) Gavin v. Clark – established standard that in sports only need to avoid reckless misconduct |
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Term
| Defenses not on Merit: Statutes of Limitation |
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Definition
bar claims brought after claim accrues
a) Continuous treatment rule- clock starts after treatment ends
b) Accrual – when clock starts, apply discovery rule
c) Tolling- time out, potential Π suffering disability would delay bringing cause of action
i) Ex: minor age, mental disability
d) Estoppel – similar to tolling in its effects, ∆ unable to invoke SOL b/ of willful conduct or other reasons
e) Pre emption – usually fed statute that overrides inconsistent state regulation
f) Occupy the field – fed regime is sole authority when this term used
g) Crumpton v. Humana
i) Π counsel failed to file before SOL ran out, was dismissed b/ Π didn’t establish that accident and injury didn’t occur at same time
ii)
h) discovery rule – statute starts when Π discovered or should have discovery injury, discovery depends on facts of each case
i) Schiele case – SOL of claims involving N infliction of occupational disease doesn’t begin to run till Π knows or RPP knows that condition for which action is brought and that ∆ caused it |
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Term
| Defenses not on Merit: Preemption and compliance with statute |
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Definition
| a) Miller v. Warren – hotel room burned and no smoke alarms. Code didn’t require it but court found compliance with regulations is competent evidence of due care but not conclusive of it. ∆ should have known risk and even though not required should have taken extra precautions. |
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Term
| Limiting Duties According to Class or Status of Parties: Carriers |
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Definition
| 1) Common carrier – those in business of carrying passengers and goods who hold themselves out for hire by public owe degree of care of very cautious and prudent person; not higher then RPP just diff circumstances |
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Term
| Limiting Duties According to Class or Status of Parties: Hosts |
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Definition
| 2) Guest statutes – reduced duty, not used much anymore |
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Term
| Limiting Duties According to Class or Status of Parties: Land Owners |
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Definition
a) Trespasser – no right to be on land, enters without express or implied consent, owner only owes duty to avoid reckless conduct unless discovers in peril then owes ordinary care
b) Invitee – person there for economic benefit to owner or premises open to general public (park, mall). Owes reasonable care and if discovers presence should try to help if in danger
c) Licensee – person with limited permission to be on grounds ex: is social guest, owed same duty as trespasser
d) Owner has no duty to protect from dangerous condition on neighboring premises unless created or contributed to it
e) Gladon v. Cleveland –
i) Π mistakenly exited tracks, was attacked thrown on tracks and then run over. Said operator N in failing to stop , court said only duty owed by ∆ was to avoid willful conduct prior to discovery on tracks and had duty to avoid once discovered him but would be question for jury to determine extent of that duty
ii) ∆ was invitee and this didn’t extend to area at or near tracks, became trespasser
iii) when trespasser and licensee discovery Π in position of peril required to use ordinary care to avoid injury
f) Bennet v. Stanley
i) Mother and child drown in pool that neighbor let rain water accumulate, adopted AND creating exception to duty owed to trespassers, extends children duty of ordinary care, to invoke this utility has to be less than danger, applies to kid in grade school or younger
ii) AND – possessor of land is liable for physical harms created by artificial condition if:
(1) place where condition is one that owner knows or should have known children are likely to trespass
(2) condition one that should known involves unreasonable risk of serious bodily harm to children
(3) children b/ of youth don’t realize risk involved in coming within dangerous area
(4) utility of maintaining condition and burden of eliminate danger is less then danger to children
(5) owner fails to exercise reasonable care to eliminate danger or otherwise to protect children
(6) key element is that there is foreseeable risk of serious bodily harm- owner must have known about it
iii)
g) O’sullivan v. Shaw
i) Guy dives head first in shallow end of pool and hurt, court found under open and obvious doctrine ∆ duty was alleviated.
ii) OOD – no duty to protect against dangers that are obvious to persons of average intelligence and not foreseeable that visitor using reasonable care would suffer injury; focuses on ∆ conduct and presumption that Π is using RC
h) Its better to find that no duty exists if can so don’t have to worry about breach issue going to jury, duty questions are usually decided by the court |
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Term
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Definition
a) FFR – precludes FF and other public employees from recovery against ∆ who caused the FF injury while on the job;
i) Exception is that owner is liable for reckless harms not related to reason why FF was there originally
ii) There are various forms of rule, some states have abolished it, SC never recognized and this not part of common law
iii) Has no effect on private people who try to assist under rescue doctrine, no CN or AOR to render assistance
b) Minnich v. Med Waste
i) Π was public safety officer and hurt when truck rolled away, ∆ says FFR barred claim. Court here didn’t recognize the FFR. Said that injuries are recoverable under workman’s comp, these professionals enter at unforeseeable times so not reasonable to make owner do this |
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Term
| Adopting a reasonable Care Standard for Landowners |
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Definition
a) Rowland v. Christian
i) Π was social guest and got hurt on broken handle that owner knew was cracked, and gave no warning to Π. Court found owner owes reasonable care no matter what status, ∆ should have told Π |
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Term
| Traditional Duties of Healthcare providers |
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Definition
a) Need experts to establish duty of professionals since custom establishes the duty aspect, this duty is ∆ protective standard
i) Only applies to judgment of professional care not things like falling on carpet in docs office
ii) Medical standard reflects particular custom used under very particular circumstances
b) Modified locality rule – expert has to be able to testify standard in similar geographic communities
c) Walski v. Tiesenga
i) ∆ operated and cut around nerve and paralyzed vocal cords. Court found that Π failed to introduce evidence that showed ∆ violated any general medically accepted standard. Not sufficient to say that another doctor would have done things a different way
ii) to establish element of cause of action in MM, SOC proof usually need experts b/ difficult for jury to understand and then Π must prove in light of those standards doc was N
(1) if conduct was grossly N like leaving sponge in body experts not needed
d) if Π doesn’t establish medical standard ∆ usually gets directed verdict
e) doctor has obligation to use all skill and knowledge he has even if its more than ordinary SOC but in some cases could be less
f) Vergara v. Doan – adopted idea that expert had to be from same class so focus more on specialty then geo location
i) Π sued for N during delivery. Court abandoned modified locality rule and said that locality rules no longer needed since not really any major differences bwt urban and rural doctors
ii) Adopted new doctrine: doctor must use degree of care exercised by prudent doctor in same class under similar circumstances. Factors to consider in this are
(1) Locality
(2) Advances in profession
(3) Availability of facilities
(4) If specialist or general practitioner
iii)
g) specialist- held to standard of their specialties
h) non med doctors like psycho can practice according to theirs schools of belief, they are subject to schools standards not medical ones
i) Velazquez v. Jiminez
i) ∆ responding to aid another doctor in Π baby delivery messed up and baby was damaged. ∆ says good Samaritan statute immunized her. Court said no b/ immunity only applies where come across victim by chance in compromised location which this hospital was not and the ∆ is a doctor so no immunity under this statute
ii) GSS – core is to encourage rendering medical care by those who come upon victim by chance without benefit of medical faculty or expert assistance without worrying about liability
(1) Not applicable if have pre existing relationship like patient and doctor
(2) 3 types of GSS
(a) expressly exclude hospital care
(b) include
(c) have no provision either way
(3)
j) nurses held to standard of nurses in similar practice
k) hospitals owed duty of reasonable care under national standards
l) pharmacists – owe no duty to warn if prescription is excessive but in some J might be liable only if undertakes to give appropriate warnings
m) architects, engineers, lawyers – held to circumstance and reasonable person in that profession
n) Smith v. Knowles- sometimes ∆ can establish duty and breach experts normally would provide, emphasize that impt to prove causation
i) Wife and child died from ecalampsia, medicine based on doctor orders was a never given. Court said expert not sufficient b/ didn’t show ∆ action was direct cause of death, Π had no indep. Medical experts |
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Term
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Definition
a) States v. Lourdes – Π can invoke RIL if meets all elements and can use experts to establish first element
i) Arm injured after cyst removal, court found proper to use of expert testimony to establish RIL elements, experts can bridge gape bwt jury common knowledge and special knowledge
b) If medical procedures carries inherent risk and risk happens cant use RIL merely b/ risk occurs
c) Patient can terminate doctor patient relationship but hospital cant abandon patient before treatment complete
d) Ybarra v. Spangard
i) Patient gets pain after operation but couldn’t pinpoint who caused it or what they did. Court found when patient gets unusual injuries while unconscious and in course of medical treatment all who had any control over body or instrument that might have caused it, can be called to give explanation of conduct
ii) Test of exclusive control to strictly followed and became one of right of control |
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Term
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Definition
every adult person has right to determine what should be done with body, looking out for patients personal autonomy
a) Harnish v. Childrens hospital
i) Nerve severed during operation and Π said doctor should have told her was possible otherwise she wouldn’t have done it, made no claim that operation was performed in N manner. Hospital won
ii) To make this claim an unrevealed risk that should have been know must occur and show that RPP or patient would not have undergone operation if known all the risks
iii) Need patient to know of options and risks but also shouldn’t put undue burden on doctor, only need to share what is relevant to Π decision and doesn’t require disclosure of risks that doc thinks patient already knows about
iv) Elements of informed consent
(1) Material risks –RPP standard
(2) Risks doctors should know- need experts for this
v)
b) Wooley v. Henderson – adopts view that custom establishes what should be disclosed, it’s a pure professional standard set by what reasonable doc in same circumstances would do, and need expert to establish this
c) In cases where patient better off not knowing doc has option not to disclose if would complicate condition or render unfit for treatment
d) Areto v. Avedon – established that making of persons financial arrangements not relevant factor to establishing that doc should have told about certain risks, ∆ here had no duty to disclose statistical life expectancy for cancer patient |
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Term
| NON FEASANCE: No Duty Rule |
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Definition
1) one person owes another not duty to take active or affirmative steps for their protection
2) No duty to act rule
a) Yania v. Bigan
i) ∆ installing water pumps at mine site, Π came to help jumped in and drowned. Court found ∆ had no duty to save Π who was competent adult with full capacity and should have known was dangerous. If had been child or retard might have been different. No evidence that ∆ pushed Π into water.
ii)
b) Newton v. Ellis - ∆ was well digger, left hole open and Π fell in. court found this was misfeasance b/ ∆ was doing unlawfully what could have done lawfully |
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Term
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Definition
i) If person knows or has reason to know if tortuous conduct even if innocent has caused harm to another then has duty to give assistance to prevent further harm
ii) If person has created unreasonable risk of harm now has duty of RC to prevent harm from occurring
iii) If statute or ordinance requires person to act affirmavltey for protection of another
b) Wakulich v. Mraz
i) Π drinking and passes out, boys try to care for her, doesn’t let anyone call 911 and Π dies. Court found ∆ voluntarily undertook to care for Π after became unconscious and was N in that
c) some courts apply N in this area if Π was left in worse position than when ∆ found but not many courts use this
d) Farwell v. Keaton
i) Π was beaten and ∆ kept in car, ∆ died and later found that would have survived it taken to hospital earlier. Court found 2 parties here had special relationship b/ were on social venture and implicit in this was a understanding that one would render assistance to other if in peril if could do so without endangering himself
(1) This special relationship created the duty to care
e) Exception to 3rd person based on ∆ relationship with Π – if have special relationship and injury that occurred was foreseeable ∆ can be liable
f) Special relationships
i) Employer-employee
ii) Landlord-tenant
iii) Custodian-person in custody
iv) Innkeeper-guest
v) Carrier-passenger |
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Term
| Duty to Protect from 3rd Persons |
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Definition
| - with limited exceptions ∆ person has no duty to protect from 3rd person conduct |
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Term
| Duty to Protect from 3rd Persons:Defendant's relation with Plaintiff |
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Definition
a) Posecai v. Wal Mart
i) Π attacked in parking lot and claimed ∆ was N in failing to provide security guards. Court found ∆ didn’t have degree of foreseeability to impose that kind of duty. Used balancing test
ii) 4 basic approaches to determining foreseeability
(1) specific harm rule – landowner has no duty to protect from 3rd person unless aware of specific imminent harm. Too restrictive in limiting duty
(2) prior similar incidents – foreseeability established by evidence of previous crimes, past history should put owner on notice of future risk. Can lead to arbitrary results
(3) totality of circumstances(most common) – takes into account condition and location of land and other factors like economic impact on owner, and others. Nature and number of similar incidents used to determine duty, this focuses on level of crime in surrounding area
(4) balancing test – similar to CBA, balance foreseeability against burden of imposing duty
iii) businesses are in best position to appreciate crime risks posed on premises and take reasonable precautions
iv) LAC v. Parkway – Π raped in mall and court found that foreseeability doesn’t require same exact crime in exact same location
v) Parish v. Truman – Π was social guest in ∆ home, 3 men came in and Π was shot. Court found in absence of special relationship private person has no duty to protect from 3rd party, didn’t have this relationship here.
b) Marquay v. Eno
(1) Π are students who were harassed by one of teachers and allege other school employees should have been aware of abuse. Court found failure to report abuse in accordance with statute (NPS) could make school liable case was remanded.
(a) Found principal had primary authority over student and charged with overseeing all aspects of school
(2) At school kids are deprived of protection from parents so actor who takes custody is required to give them that
(a) Duty limited to time when parental protection is compromised
(3) 2 basis of liability
(a) statutorily express or implied – whether or not law recognizes cause of action, Π can have action under applicable statute where leg. Intended violation of it would give rise to liability
(b) NPS – where cause does exist at common law, standard of conduct ∆ is held to may be defined by that statute instead of RPP
(4) Schools scope of duty is limited to what’s foreseeable and factors that influence relationship bwt student and school is
(a) Character of school attendance
(b) Parents expectation for reliance on school safety
(c) Imp. Of society to learning taking place at school
(5)
c) young v. Salt lake case – kid going to school and had accident. Court found injury didn’t occur on premises within schools control
d) courts don’t usually impose duties on colleges for dangers related to sex, drugs, alcohol, over study but might if related to land issue like a pothole
e) Funchess v. Cecil – Π was killed by intruders but had to open door to see who buzzed since security door wasn’t working. Court found landowner had no duty of care for attacks b/ couldn’t prevent these attacks
f) Kline v. Mass Ave – Π attacked in hallway of apt complex, court said landlord had duty to control over attacks in common passageways since tenant lack control over that area |
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Term
| Duty to Protect from 3rd Persons: Defendant's relation with dangerous person |
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Definition
a) Rosales v. Stewart – Π died from bullet from yard ∆ rented to 3rd guy. Court found landlord under duty to 3rd persons to do all legally can to get rid of dangerous condition. Π must show ∆ had legal power to control 3rd person
b) Employer might be N for hiding dangerous person or supervising employee who might cause harm
c) Duty to control children – parents only liable for failing to control some specific dangerous habit of child that parent knows about
d) Tarasoff v. Regents
i) 3rd guy killed Π, Π alleged ∆ had told doctor of intention to do this earlier that month. Court found that doctor has degree of control b/ of ability to confine crazy person so cause of action against ∆ for breach of duty. Doctor has duty to reasonable care once determines that patient poses danger to others since has special relationship with patient and owes duty to patients would be victims
ii) control of 3rd party acts is impt to establishing duty bwt Π and ∆
iii) if parties have special relationship duty imposed on Π to warn another of ∆ conduct
iv) adequacy of therapists conduct must be measured against traditional N standard of reasonable care under circumstances
v) there’s no privilege if doctor has reasonable cause to believe patient is in mental condition to be danger to himself and disclosure is necessary to prevent threatened danger
e) DiMarco v. Lynch – nurse was stuck with needle that had hepatitis, doctor said she was symptom free but really not and infected partner. Court said doctor had duty to Π and when treats communicable diseases must take precautions to protect well being of others within foreseeable risk of harm to class of persons likely to be injured
f) Witthoeft case – lady had vision below standard to operate car, but doctor didn’t warn patient and she had accident. Court found doctor could rely on patients ability to determine her own visions skills.
g) N entrustment theory – when owner knows of person incapacity, inexperience or recklessness and entrusts with instrument of harm with permission to use, is liable for damages. Owner must have actual or construct knowledge of incompetence. most of these cases involve products that can be operated like guns, cars, cigarette lighters
h) Brigance v. Velvet Dove
i) ∆ served drinks to minors who caused car accident. Court found one who sells drinks on premises for consumption has duty of reasonable care not to sell to noticeably drunk person.
ii) Restatement of torts related to this area
(1) Its N to allow 3rd person to use thing or engage in activity under control of actor if known person intends to use for activity that will create unreasonable risk of harm to others
iii) Π must show illegal sale of alcohol led to ability impairment of rive that was proximate cause and there was causal connection bwt sale and foreseeable ensuing injury
i) Dram shop statutes – impose civil liability on dispenser of alcohol and can be exclusive remedy barring all common law claims |
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Term
| Limiting duty to protect against Certain Types of Harm: Emotional Harms: Fright or Shock from Risk of Physical Harm |
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Definition
a) Mitchell v. Rochester- horses run at Π but don’t touch her and court found without physical injury the N of ∆ is not proximate cause – impact rule (physical injury required)
i) Most states have overruled cases like this and impact no longer required
b) Most states don’t allow recovery for fright and shock and where impact only allow recovery if Π produces physical evidence of physical harm resulting fro shock or some kind of objective physical manifestation of shock or fright
c) Physical manifestation – can recover from emotional harm by showing objective manifestation of harm, sometimes must be medically diagnosed
d) Grube v. Union Pacifict- general mental distress claim
i) Π employee of ∆ had train collide with car while operating. Claimed NIED based on physical manifestations of distress and physical illness. Court found Π never feared for his own person safety at any time
ii) Court adopted zone of danger test – worker must be within zone of danger of physical impact to be able to recovery for emotional injury, doesn’t require fear for ones safety at time of collision but fear of safety must be expressed at or near time of danger to allow recovery
iii)
e) Dillon case – allowed recovery for bystanders, court said mental injuries can be real and should be compensated for in the absence of some special relationship. Adopt test that determines if can recover based on foreseeability
i) If Π was near scene of accident
ii) If shock resulted from direct emotional impact on Π from sensory and contemporaneous observance of accident
iii) If Π and victim were closely related
iv) These are called relative bystander test and used by most states
f) Thing case – Π son hit by car, parent didn’t see or hear accident. Court established that can only recover for ED caused by observation of N infliction injury of 3rd person
i) Closely related to injured victim
ii) Present at scene of injury producing event at time occurs and aware that that’s what’s causing injury to victim
iii) As result suffers serious ED – reaction beyond which would be anticipated in disinterested witness
iv) This case turns Dillon factors into requirements
g) Burgess v. Superior Court – established 2 classes of emotional harm cases
i) Π is bystander and has no pre existing relationship with victim- Thing rules apply here
ii) Π is direct victim and has pre existing relationship and claim is based on breach of duty assumed by ∆ (like a doctor) and Thing rules don’t apply here
iii) Recognizes that some claims are against ∆ who has undertaken duty to protect Π and this uses different rules |
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Term
| Limiting duty to protect against Certain Types of Harm: Emotional Harms: Loss of Consortium |
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Definition
includes loss of support services and elements like love, companionship, affect, society, sexual relations, solace etc. usually used in spousal cases
a) Boucher v. Dixie Medical – makes corrective justice argument
i) 18 yr old son had operation and came out brain damaged. Court denied parents b/ not in the zone of danger and declined to adopt cause of action allowing consort claim. Said that other courts cant develop rational limit on claims, Leg is one who should determine if should adopt, don’t want to expand liability
b) erroneous death messages sometimes treated special by courts and recovery allowed
c) Boyles v. Kerr – ∆ taped sex with Π and claim NIED from showing tape. Court found no general duty to avoid NIED, only recognize cause where ∆ creates physical risk of harm |
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Term
| Duties of care to protect emotional well being indep of physical risks |
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Definition
a) Sacco v. High Country
i) After Π fired, ∆ told cops she had stole items. Court adopted rule: cause of action for NIED arises when serious distress was reasonably foreseeable consequence of ∆ act or . omission. Allowed jury to determine if severeness |
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