Torts 1L 362

is to [compensate] many persons who would not otherwise receive reimbursement for the medical expenses and wage losses occasioned by an illness or injury

(1) to act as a reasonably prudent person would act, or
(2) to respond to foreseeable unreasonable risks of harm.

(1) trespass vi et armis, or intentional direct physical harm, and
(2) trespass on the case, or negligent indirect harm.

(1) a duty to the plaintiff to use due care,
(2) proof of breach of that duty,
(3) cause-in-fact, based on the but-for test or the substantial-factor test,
(4) proximate cause, based on foresight of the kind of harm directed at the plaintiff, and
(5) compensable damages.

(1) autonomy and the freedom to choose upon whom we bestow concern, resources, and skills,
(2) individualism, self-reliance, and self-sufficiency,
(3) cultural norms,
(4) judicial administration,
(5) separation of secular law from religious morality,
(6) deterrence of unnecessary risks,
(7) economic efficiencies of purely voluntary rescues, and
(8) efficiency of avoiding bad rescues.

(1) social welfare, communitarianism, and fostering the greater good,
(2) morality as an integral part of law, and
(3) community norms as a limit to the possible scope of liability.

"[o]ne owes a duty to save another from impending death or great bodily harm when one may do so with little or no inconvenience to one's self."

(1) common carriers and passengers,
(2) innkeepers and guests,
(3) landowners and invitees,
(4) landlords and tenants,
(5) employers and employees,
(6) schools and students,
(7) parents and children

They have an ongoing duty to continue assistance, aid, or rescue.

The flexible standard of reasonable care and "the reasonable person" , as illustrated by Learned Hand's BPL formula,
(2) community expectations,
(3) custom, and
(4) statutes.

(1) superior skill, expertise, or intelligence,
(2) physical disabilities,
(3) youth, but only with regard to age and intelligence, and
(4) emergencies.

(1) below average intelligence,
(2) mental disabilities, and
(3) youth, with regard to adult activities.

(1) flexibility - they avoid rigidity,
(2) creativity - they avoid conformity,
(3) spontaneity,
(4) equity,
(5) evolution - they avoid obstinacy,
(6) generosity - they avoid stinginess and indifference, and
(7) progress.

(1) uniformity,
(2) precision - they avoid looseness,
(3) neutrality - they avoid bias and sentimentality,
(4) efficiency,
(5) order - they avoid chaos, and
(6) stability - they avoid uncertainty.

(1) the plaintiff is within the class of persons that the statute was designed to protect, and
(2) the plaintiff's injuries are within the class of injuries that the statue was designed to prevent.

If the statutory purpose rule is satisfied, then the breach of a statutory provision qualifies as negligence per se. (Martin v. Herzog)

(1)the ease of creating fraudulent claims,
(2) the difficulty in establishing a causal link between the defendant's conduct and the plaintiff's emotional distress,
(3) the possible unlimited scope of liability,
(4) the idea that emotional distress is trivial and ubiquitous, and
(5) the stigmatization of emotional harm (e.g. "only supersensitive people become emotionally distressed")

(1) recovery for the full cost of childrearing,
(2) recovery for the full cost of childrearing, subtracting offsets for emotional and economic benefits from having the child, and
(3) limiting recovery to economic expenditures through the child's birth and the second sterilization operation.

(1) not be awarded,
(2) be awarded only if the child has a birth defect, or
(3) be awarded regardless of the absence or presence of a birth defect.

the community assumption that the accident at hand cannot occur in the absence of negligence,
(2) the defendant (or the class of actors of which defendant was a part)'s exclusive control of the cause of the accident (due to possible spoliation of evidence concerns), and
(3) the absence of contributory negligence on part of the plaintiff.
- joint and several liability imposed on the entire class of actors that had exclusive control of the cause of the accident

(1) fairness to plaintiffs when defendants have all the evidence,
(2) compensation to victims who were unconscious at the time of the harm, and
(3) the moral blameworthiness of the defendants.

physical or scientific link between the defendant's breach of duty and the harm that the plaintiff suffered.

the legal cause-in-fact of an event if the event would not have occurred without the defendant's conduct.

fairness and avoiding plaintiffs' windfalls if the defendant breached his/her duty but it was an efficient breach,
(2) laissez-faire economic policies, efficiency, self-reliance, private enterprise, individualism, free-market economic policies (will reduce findings of causation), and
(3) social welfare, equity, altruism, communitarianism, interdependence, corporate responsibility, liberty preserved through regulation (will increase findings of causation).

(1) either cause would have produced the identical result,
(2) either cause would have produced a similar result, or
(3) a defendant made a clearly proven but insignificant contribution to the result.
(Summers v. Tice)

(1) the defendant's conduct is a but-for cause-in-fact of the event,
(2) there is a scientific causal link between the defendant's conduct and the event, and
(3) the link between the defendant's conduct and the event is not too attenuated.

(1) compensation for plaintiffs,
(2) social welfare,
(3) corporate responsibility, and
(4) deterrence for defendants.

an action committed by the defendant creates a harm that occurs to the plaintiff for which the defendant is legally liable.

(1) an unexpected kind or type of harm occurred, or
(2) an unexpected victim was harmed.

(1) the defendant's active and efficient conduct sets in motion a train of events that creates plaintiff's harm, and
(2) there are no intervening events between the defendant's conduct and the plaintiff's harm.

(1) moral responsibility and social solidarity,
(2) social welfare and altruism,
(3) communitarianism and interdependence,
(4) deterrence,
(5) compensation, and
(6) punishing selfishness.

Under the simple foreseeability test of proximate cause, the defendant is legally liable for the plaintiff's harm when the plaintiff's harm was a foreseeable result of the defendant's conduct.

Under the risk rule foreseeability test of proximate cause, the defendant is legally liable for the plaintiff's harm when the plaintiff's harm was within the scope of the foreseeable unreasonable risks by reason of which the defendant is said to be negligent.

the defendant's scope of duty does not include the a direct duty to the plaintiff. (Palsgraf v. Long Island Railroad)

(1) legal formalism,
(2) judicial administration,
(3) laissez-faire economic policies,
(4) private enterprise and free-market economics,
(5) self-reliance, and
(6) avoidance of unlimited liability.

(1) legal realism, where law should be responsive to changing times and policies,
(2) deterrence,
(3) compensation,
(4) social welfare, altruism, communitarianism, interdependence, and
(5) corporate responsibility.

Under the eggshell or thin-skulled plaintiff rule, "you take the plaintiff as you find him/her"; if a defendant is found liable for a plaintiff's harm, then the defendant is liable for the plaintiff's full damages, regardless of any pre-existing conditions.

(1) compensation through insurance and loss-spreading,
(2) moral responsibility and culpability,
(3) lack of extra burdens on judicial efficiency, and
(4) the difficulty of allocating fault and ensuring compensation otherwise.

If a defendant is found liable for a plaintiff's harm, then the defendant is liable for the plaintiff's full damages, regardless of any later medical complications or aggravations.

(1) the difficulties in proving malpractice and ensuring compensation,
(2) judicial efficiency, because of the difficulties in proving malpractice, and
(3) compensation by the defendant's insurance.

Although jurisdictions may differ, if a defendant is found liable for a plaintiff's harm, the defendant may also be liable for the plaintiff's foreseeable later wrongful death by suicide.

(1) changing views of suicide, where responsibility is shifting away from the person committing suicide, and
(2) compensation for the survivors of the decedent.

then the defendant may also be liable to any harm that befalls a rescuer.

(1) the idea that "danger invites rescue" and that a rescue was foreseeable,
(2) the relative moral blameworthiness of the parties, and
(3) social welfare, communitarianism, and interdependence.

(1) the deterrence of malingering, and
(2) reduced judicial administration costs.

(1) medical bills, past and future,
(2) lost wages, past and future, and
(3) (possibly) lost of household services.

(1) calculating the total base wage or pay the plaintiff would receive over the course of his/her life expectancy,
(2) adding any productivity increases,
(3) adding inflation or cost of living increases,
(4) adding any promotion or merit increases,
(5) adding any fringe benefits, and
(6) then subtracting the plaintiff's expenses, and possibly, taxes.

his/her past and future physical and mental pain and suffering.

(1) using an ad hoc approach (essentially pulling a number from the air),
(2) using a per diem approach, or
(3) using a multiple of special damages.

In cases of very serious, willful, wanton, malicious, or outrageous misconduct, punitive damages may be awarded to punish and make an example of the defendant.

(1) lost income between the injury and the deceased's death,
(2) medical expenses,
(3) pain and suffering between the injury and the deceased's death,
(4) (possibly) hedonic damages, and
(5) (possibly) loss of life (through death).

(1) solely the loss to the survivors (loss of expected financial support, inheritance; pecuniary value of services, advice, comfort, companionship; mental anguish of the survivors), or
(2) the entire loss to the estate (lost wages, less the amount of personal expenses; the loss of services, advice, comfort, companionship).

(1) fault liability is allocated between the defendants (per capita, by a quantitative and scientific determination of contribution, or by a qualitative assessment of fault),
(2) the plaintiff may collect a full recovery from any defendant, and
(3) the defendants may file contribution claims against each other if they have overpaid.

(1) the strict locality (because local conditions differ from community to community),
(2) the same or similar locality, or
(3) the national standard.

(1) obtain a patient's consent before implementing a surgical or nonsurgical treatment, and
(2) discuss with the patient medically reasonable invasive and noninvasive alternatives (along with their respective risks and benefits).

(3) professional custom, or
(2) the prudent patient or materiality of the risk standard (i.e. what would a reasonable patient want to know?).

(1) objective (i.e. would a reasonably prudent person have submitted to the procedure if (s)he had been fully informed?), or
(2) subjective (i.e. would this particular plaintiff have submitted to the procedure if (s)he had been fully informed?).

(1) the defendant behaved intentionally, wantonly, willfully, or recklessly,
(2) the defendant had the "last clear chance",
(3) the defendant had an affirmative duty to protect the plaintiff from the plaintiff's negligence, or
(4) the defendant tries to impute it onto a plaintiff that would be held vicariously liable.

(1) equity and social desirability,
(2) the fact that the "all-or-nothing" approach of contributory negligence is too harsh and unfair, and
(3) the fact that juries nullify the doctrine of contributory negligence regardless.

the plaintiff may recover damages in every situation where the plaintiff is not 100% at fault.

Under a 50% system of impure comparative negligence, the plaintiff may only recover his/her proportional damages when the plaintiff is less than 50% at fault.

Under a 51% system of impure comparative negligence, the plaintiff may only recover his/her proportional damages when the plaintiff is less than 51% at fault.

(1) there are open and obvious risks in an activity,
(2) the risks are beneficial,
(3) the risks cannot be reduced without destroying the value of the activity,
(4) based on an objective reasonable person standard, the plaintiff should have known about the risks in the activity, and
(5) the plaintiff participated in the activity regardless.

(1) the plaintiff knew, subjectively, about the extent of risks in an activity, and
(2) the plaintiff participated in the activity regardless.

Reasonable secondary implied assumption of risk typically does not waive the defendant's liability.

Unreasonable secondary implied assumption of risk typically waives the defendant's liability.

Under the firefighter's rule, firefighters and police officers are licensees on a landowner's property; therefore, a landowner only owes them a duty to protect against known dangers and willful or wanton negligence.

(1) the belief that firefighters and police officer assume certain risks with their professions,
(2) the unforeseeability of firefighters' and police officers' arrivals, and
(3) the avoidance of double taxpayer liability.

(1) compensation through loss-spreading to customers,
(2) deterrence through increased costs,
(3) increasing safety incentives,
(4) efficiency in judicial administration,
(5) enterprise liability,
(6) corporate responsibility and moral blameworthiness, and
(7) fairness and justice in the distribution of burdens and benefits.

(1) reduced innovation and competitiveness,
(2) potential for universal liability,
(3) higher prices for consumers,
(4) unfairness of no-fault liability,
(5) potential for over-deterrence, and
(6) possible increase in total tort claims, thus lowering any judicial administration efficiencies gained.

if a defendant keeps something on his land that is likely to create harm if it escapes, then the defendant liable for any damage resulting from such an escape, regardless of whether the defendant exercised due care.

, if a landowner introduces a non-natural condition onto his land, then (s)he is responsible for any neighbors' damage resulting from that non-natural condition, regardless of whether the defendant exercised due care.

(1) involve a risk of serious harm that cannot be eliminated with due care, and
(2) are not commonly used.

(1) if there is a high degree of risk of harm,
(2) if there is great gravity of harm,
(3) if the danger cannot be eliminated by the exercise of due care,
(4) if the activity is not commonly used,
(5) if the activity is not appropriate to the place, and
(6) if it is not valuable to the community.

(1) involve a foreseeable and highly significant risk of serious harm that cannot be eliminated with due care by all actors, and
(2) are not commonly used.

(1) if there was substantial harm, then there was no need to prove that the defendant's interference was unreasonable - the defendant was prima facie liable for private nuisance, and
(2) if there was liability for private nuisance, then an automatic injunction or order of abatement was granted.

(1) the plaintiff must demonstrate that the defendant's conduct was unreasonable, and
(2) an automatic injunction may not be granted.

(1) temporary damages awarded in successive actions,
(2) permanent damages awarded in a lump-sum recovery,
(3) a conditional permanent injunction, avoidable if permanent damages are paid or
(4) a permanent injunction.

is a form of strict liability that holds a corporation or employer vicariously liable for the torts of its employees, regardless of whether the corporation or employer was at fault.

(1) the employee's conduct must have been of the general kind that the employee was hired to perform - i.e. the employee must not have been engaged in personal business,
(2) the employee's conduct must have been within the hours and spatial boundaries of the employment, and
(3) the employee's conduct must have been motivated, at least in part, by serving the employer's interest (the motive test).

(1) the independent contractor was given apparent authority by the employer,
(2) the independent contractor has assumed a nondelegable duty from the employer that the employer cannot contract away, or
(3) the independent contractor is performing an inherently dangerous activity for the employer.

a product departs from its intended design even with all due care; the manufacturer's specifications are used as the standard for comparison.

(1) the consumer expectations test: does the design meet the expectations of an ordinary consumer?
(2) the reasonable care / risk-utility balancing test: was the product unreasonably dangerous, as compared to a reasonable alternative design (RAD), when it left the defendant's possession and entered the stream of commerce?

(1) a dangerous direct consequence is reasonably foreseeable from the use of the product, or
(2) a product's riskiness could be reduced to a reasonable level without diminution to its utility and at virtually no added cost.

(1) indicate the scope of the danger,
(2) reasonably communicate the seriousness of the harm,
(3) by its physical aspects alert a reasonably prudent person of the danger,
(4) indicate the potential consequences, and
(5) use appropriate and adequate means to convey the warning.

(1) contributory negligence,
(2) comparative responsibility,
(3) assumption of risk,
(4) disclaimers and waivers,
(5) statutes of repose, and
(6) preemption by federal statutes.

(1) victim compensation based on an inferior status or a status to which a duty is owed,
(2) deterrence,
(3) punishment,
(4) social welfare,
(5) communitarianism, and
(6) interdependence.

Assault is essentially an attempted battery; assault is the threat to use force or the use of force that causes another to experience a reasonable apprehension of an immediate harmful and offensive battery.

(2) physical contract with the plaintiff or anything attached to or identified with plaintiff,
(3) intent to cause harm,
(4) intent to offend (based on community expectations and the reasonable person
(5) no implied license of provocation.

(1) confinement within actual or apparent physical barriers,
(2) the intent to restrain or confine, and
(3) the use of physical force, threats of force, duress, or the assertion of legal authority.

(1) extreme and outrageous conduct, usually based on statutory or regulatory standards,
(2) intentional or reckless conduct, and
(3) causation of severe emotional distress.

(1) the consenter was incapacitated,
(2) there was fraud or deceit in obtaining the consent,
(3) there was duress in obtaining the consent, or
(4) the conduct was illegal. (majority rule for illegal prizefighting

(1) the defendant had actual and reasonable belief that force was necessary,
(2) the defendant used no more force than was reasonable, and
(3) the defendant ceased using force when the aggressor was disarmed or helpless, or when the danger had passed.

(1) allows the use or destruction of property, but
(2) may not waive the actor's liability.

generally an intent to harm or offend is required

Examples: Battery, Assault, False Imprisonment, Intentional Infliction of Emotional Distress and Trespass to Land

generally based on a failure to use due care, to act as a reasonably prudent person would.

generally requires harm, causation and a social purpose to compensate or deter

1. DUTY (owed to plaintiff) to use due care to degree that reasonable person would in those circumstances - reasonable person responds to foreseeable, unreasonable risks → (Did relationship between parties establish duty?)
2. The defendant, by behaving negligently, BREACHed that duty (Did the conduct justify discharge of duty?)
3. CAUSE IN FACT (Was the breach a "but for" or "substantial factor" in causing the harm)
4. PROXIMATE CAUSE → (Foresight of kind of harm and to the Plaintiff)
5. Compensable DAMAGES → Actual damage plaintiff suffered (Considers the nature of the injury and how to remedy)

oBPL (Hand Formula - Cost-benefit balancing)
oForeseeable Danger Approach
oCommunity Expectations/Norms Value Approach

The plaintiff and defendant tried to start the car with the fuel tank unattached. (The Plaintiff was inside the car turning the key) Car exploded casing the plaintiff to suffer severe burns to his upper body.

-No higher standard for dangerous instruments only reasonable standard which is proportionate to the danger of the situation

Women pushing stroller unexpectedly began to cross the street in the middle of traffic. Plaintiff forced to suddenly stop causing the defendant to, just a few feet behind her to smash into her car.
--Defendant cannot appropriately claim she faced sudden-emergency due to her statement that she was already following too close (placing herself in a position of peril through own negligence)

Proponent must show there is sufficient "evidence to support a finding that [the proponent] had been suddenly placed in a position of peril through NO negligence of his or her own, and in meeting the emergency, acted as a reasonably prudent person would in the same or similar situation

Plaintiff has moderately bad vision (cataracts) and trips on raised concrete slab in the sidewalk in front of defendant's place of business.

--Ordinary care in this case = ordinarily prudent person with a like infirmity would have exercised under the same or similar circumstances

∆ is an Alzheimer's patient at a healthcare center where he often does not behave. Nurses try to put him in bed but he is kicking and hitting. Defendant kicks a nurse (Plaintiff) and her back pops.

• Persons with mental disabilities are generally held to the same standard of care as that of a reasonable person under the same circumstances without regard to the alleged torfeasor's capacity to control or understand the consequences of his/her actions
• HOWEVER, one employed to take care of patient known to be combative because of Alzheimer's disease has NO complaint for injuries sustained doing so

1. Allocates losses between two innocent parties to the one who caused of occasioned the loss...
2. Provides incentive to those responsible for people with disabilities and interested in their estates to prevent harm and "restrain" those who are potentially dangerous
3. Removes inducements for alleged tortfeasors to fake a mental disability to escape liability...
4. Avoids administrative problems involved in courts and juries attempting to identify and assess the significance of an actor's disability
5. Forces persons with disabilities to pay for the damage they do if they "are to live in the world."

Defendant puts sister on earth scraper. She falls off and her runs her over.

--Does the defendant have superior qualities that he should have exercised

14-year-old taking drivers-ed lesson on public road. Turns at intersection and can't stop the car before it hits a pedestrian exiting their car (possibly hit accelerator instead of brake)

--Defendant should be held to same standard as everyone else

: π (Arroyo) contracted an infection from his mother during birth. The physicians failed to diagnose and treat the infection, which caused the newborn to suffer severe brain injuries, which affected him for the rest of his life.

--Court took into account that π was uneducated, poor, had poor language skills, and looked at how a reasonable person in her situation would take on this problem. There is no way this family in their situation would have been able to understand this problem

Uniformity, Precision, Neutrality, Efficiency, Order, Exactness, Stability, and Security

Flexibility, Creativity, Spontaneity, Equity, Evolution, Generosity, Progress, Trust, and Prevent bad static customs from being entrenched

Rigidity, anility, conformity, indifference, and stinginess

Bias, sloppiness, uncertainty, sentimentality, and chaos

π must be within class of persons statute was designed to protect and her injury must be within class of injuries the statute was designed to prevent

When a safety statute has sufficiently close application to the facts of the case at hand, an unexcused violation of that statute by ∆ is "negligence per se" this conclusively establishing that ∆ was negligent

•A reasonably prudent person responds to foreseeable, unreasonable risks
•A reasonably prudent person is not negligent if she or he or it fails to respond to an unforeseeable risk
•A reasonably prudent person is negligent if she or he or it fails to respond to a reasonable risk

Railroad trestle narrow road from 30 to 15 feet. Two cars approach at the same time, plaintiff ran into trestle.

--operator of a motor vehicle must exercise ordinary care (prudent person would). Keep reasonable lookout and to keep under control at night to be able to stop within the range of his lights

Plaintiff was driving at night when an oncoming car from the opposite lane blinded his vision, causing him not to see an unlit truck blocking the entire right lane. Hit the truck.

-Rejecting rule in favor of standard here
-Defendant not found contributorily negligent as he did everything possible to avert collision

Crossed over center line of street and hit buggy with no lights (Buggy driver died)

•Court of Appeals decides that this is a case of negligence per se
•Driving without lights on vehicle is in violation of statute

Children killed while playing in landfill: went through open gate in school yard and across field where there was no obstruction to get to the landfill

•Statute or regulation must clearly define the required standard of conduct
•The statute or regulation must have been intended to prevent the type of harm the defendant's act or omission caused
•The plaintiff must be a member of the class of persons the statute or regulation was designed to protect
•The violation must have been the proximate cause of the injury

∆ crusing at 45 mph on a 55 due to road conditions (in Alaska). Moose emerges out of darkness causing the defendant to brake and skid out of control. The ∆ crosses the center lane and stopped in the southbound lane. Π hits ∆.

•Π argues the ∆ should be guilty negligence per se because crossing that middle line violates a statute
•Consider the sudden emergency rule- the violation of an enactment or regulation will ordinarily be excused when the actor is confronted with an emergency, which is not caused by his own misconduct
•Moose counts as a sudden emergency

"The least touching of another in anger is a battery..."

--an intentional infliction of a harmful or offensive contact or touching of the person of another or anything attached to or identified with another's body

Contact is "offensive if it offends a reasonable sense of personal dignity."
-"It must be contact unwarranted by the social usages prevalent at the time and place at which it is inflicted

If D held necessary intent with respect to person A, he will be held to have committed an intentional tort against any other person who happens to be injured. This transfer between people and object (i.e. if you throw a rock to scare someone and hit their car the intent transfers from assault to trespass to chattel)

Acting with the desire or purpose of bringing about contact that is harmful or offensive or
-Acting with knowledge that contact is substantially certain to occur, with that contact being harmful or offensive

Acting with the desire, purpose or knowledge of substantial certainty of harming or offending (a consciousness of the character of contact)

Frustrated doctor pulls nurse's face down toward surgical opening

•Touching, No consent and Intent to harm or offend (All 3 met)
•Nurse did not consent to be pushed toward surgical opening
•Reasonable minds could conclude Doctor intended offensive act

Having baby, hold religious beliefs that doesn't allow another man to
see/touch wife naked.

•Our society & courts respect religious beliefs even if harm could result by abstaining
•Intended to commit offensive contact and contact results
•Liable for battery due to lack of consent

5 year old pulled lawn chair out from under plaintiff when she was about to sit down and she fractured her hip

--Law of battery doesn't make a distinction as to age; but age plays a role in determining whether it is reasonable for someone of that age to have "knowledge that such contact is substantially certain to occur."
--The act must be intentional, but the harm need not be. All we care about is whether the defendant knew the plaintiff would make contact with the ground as a result of his action.

Defendant in assisted living being put in diaper and hits defendant in jaw (defendant had mental issues)

--A jury can find a mentally deficient person liable for an intentional tort, but in order to do so, the jury must find that the actor intended an offensive or harmful outcome
•Jury instructed to "look into the mind of defendant"
•Insanity is not a defense, but insanity makes proving the intent difficult

Plaintiff waiting in line at store, attacked by mentally disabled person from behind who was with employees of state health treatment program.
-Statute says State is not liable for "conduct arising out of battery"
-Single intent rule: only intent required for battery is simply an intent to make contact

Mother broke up fight at daughter's party and got punched in the face when she put herself between the fighting boys.
--doctrine of transferred intent states that the tort of battery or of assault and battery may be committed, although the person hit by the defendant is not the one whom the strike was intended (the act of punching was intentional regardless if mother was hit)

"No matter how trivial the incident, a battery is actionable, even if damages are only one dollar."

Actionable against an intentional tortfeasor who is guilty of "malice" or wanton misconduct.

Plaintiff who wins a battery case has proved that he has suffered an invasion of this protected interest, and is thereby entitled to damages to compensate for that invasion or loss.

Plaintiff saw 16-year-old girl in parking lot and asked to have a coke with him. Her and her family show up at his place a few hours later and threaten him to stay away from her.

•Unquestionable that assault, unlike battery, is effectuated when one acts intending to cause a harmful or offensive contact with the person of the other or an imminent apprehension of such conduct
•Words must be in combination with other actions to be an assault

-Confinement within actual or apparent physical barriers
-Intent to restrain or confine
-Use of physical force, threats of force, duress or the assertion of legal authority

1.In the employment context: (1) Investigations of rule breaking employees, (2) Confinement of employees in the workplace to prevent theft or escape, sometimes tantamount to involuntary servitude
2.In the retail context: (1) Confinement of suspected shoplifters that exceeds privilege of reasonable detention

Plaintiff with two children shopping at Wal-Mart. After paying, while leaving the store stopped by employees and told children have been seen stealing on prior occasion. Threaten they are calling cops, kid can't go to bathroom. Security guard comes and says they aren't the right kids. Receipt had 10:10pm check-out and they left the store at 11:15pm

•Telling family they are waiting for police to arrive while standing guard and telling kid no bathroom is enough to conclude the family would be physically restrained if they attempted to leave
•Threats of physical force can suffice for false imprisonment

Self-Defense and Defense of Others
Defense of Property
Consent
Necessity: Public and Private

-An actual and reasonable belief that force is necessary
-Use of no more force than is reasonable (not excessive)
-Cessation of use of force when the aggressor is disarmed or helpless, or when the danger has passed

1) There must be reasonable grounds to believe that the suspect is stealing
2) The detention must be conducted in a reasonable manner
3) The detention must not be unreasonable in length

→Incapacity (due to age, mental illness or disability)
→Fraud or Deceit
→Duress
→Illegality

Plaintiff inmate, defendant was new correctional officer. When he first met defendant her and another inmate flashed him. Brought plaintiff to shower where she performed fellatio on him.

•Defendant raised affirmative defense of consent
•Court says not a defense here
•Take note of the power relationship here

Magic Johnson gave HIV to a girl through consensual unprotected sex. Defendant claims because of his promiscuous life he should have known about the HIV. He did not warn the defendant of his high risk

•One who knows he has a venereal disease, and knows that his sexual partner does not know of his infection, commits a battery by having sexual intercourse

Girls got in fight over a Facebook post. Plaintiff argues injuries as defendant pleads self-defense.

•There are issues of material fact

Plaintiff fired from car dealership. Defendant gets threatening messages from plaintiff. Defendant goes to plaintiff's new place of work at RV dealership and where plaintiff turns around, says "F you" and defendant struck plaintiff multiple times.

•Defendant claimed self-defense
•Burden on defendant to prove self-defense
•Defendant must show objective factors that battery was imminent
•Not a proper place for self-defense

People always break into defendant's inherited farmhouse. Defendant decides to set up trap shotgun aimed at legs that fires when a door is opened. Plaintiff enters and large portion of his leg is blown off

•"Cannot inflict death or serious injury unless the trespasser is committing a felony of violence or a felony punishable by death or where the trespasser was endangering human life by his act."
•Value of life greater than interest in one's property
•Reasonable force is allowed

Two 15 year olds trespass on property to steal watermelon. Homeowner hears them, comes out and fires warning shot that hits one boy in the leg.

•Force used must be of a kind appropriate to the defense of the property
•No privilege to use force that could kill or harm unless safety is threatened
•Privilege to expel lost if mistaken over force required
•Mere trespass does not justify this act

Plaintiff shopping at automotive store when employee has hunch he picked something up and has not yet put it down. Two boys leave the store to which they are followed. One boy put in chokehold and the other searched. Item was still in the store. Medical attention necessary after headlock.

•Detention was probably unreasonable as a matter of law

involves the public interest and completely excuses liability

involves the actor's private interest and is only a limited privilege

Conflagration raging. Authority figures decides it is necessary to destroy the plaintiff's home in order to save others in the fires path. Plaintiff's belongings destroyed...couldn't wait or benefit would no longer exist.

•Evidence clearly establishes the fact that blowing up the house was necessary as it would've been consumed by flames if left standing anyway
•Plaintiffs CANNOT recover for the value of the goods
•If defendant waited until plaintiffs removed all of their goods the purpose of destroying the home would be useless

Plaintiff and family sailing on lake when storm hits. To avoid destruction and injury to his family the plaintiff moored the boat at the defendant's dock. Defendant unmoored the boat and it was destroyed and people were injured.

--One may sacrifice the personal property of another to save his life or the lives of his fellows

Violent winds prohibited a steamship from leaving its dock. Vessel laid along the side of the dock for the duration of the storm and cause significant damage

*No negligence on the part of the defendant because it was reasonable to keep the vessel tied because the defendant's interests trumped the plaintiff's interest → necessity for captain to replace the ropes. Defendant not negligent but still has to pay

Three 16 year olds in a truck travelling at 55mph. One grabs the wheel causing the truck to veer off the road. 30 seconds later the same kid did it again and the truck hit a tree.

•Π says driver owes her a duty of care
•Conduct of misbehaving passenger was foreseeable it would happen again claims π
•Minors operating vehicles in Delaware held to same standard of care of an adult motorist
•Driver's negligence should have been submitted to jury

Π collapsed while playing soccer in high school. Coach ran onto the field to check his player. Within 3 minutes π was unconscious and not breathing. AED requested by coach but never brought to the scene (it was at the game facility). EMS arrived and resuscitated π 26 minutes later but he already sustained severe brain injury due to lack of oxygen.

• Respondent owed a common law duty to supervise π, and that once injured, respondent owed a duty to take reasonable measures and come to his aid to prevent aggravation of his injury
• Left to jury to decide if coach acted reasonably

This is rule vs. standard debate

Brothers live across the street from each other and take turns cutting each other's lawn. ∆ went to brother's garage to start mower, pulled it away from the wall and saw flames from within the engine. Turns off mower, tries to put it out with towel, mower becomes engulfed in flames so the ∆ runs back across the street to call fire department. (Garage ruined)

•Law values human life over property... no need to risk life to save garage

∆ is doctor who hires π to repair a roof on a barn at one of the ∆'s properties. Π severely injured when he fell off the roof while painting.

• No evidence to jury that indicates ∆ was negligent in failing to provide a safe work place
• Liability of an employer rests upon the assumption that the employer has a better and more comprehensive knowledge than the employees, and ceases to be applicable where the employees' means of knowledge of dangers to be incurred is equal to that of the employer
• Π was an experienced painter... could have asked for equipment
• Liability must find superior position of employer or guiding company to protect
• "Obviousness of risk may make no need to eliminate it"

Women gets into accident and continues driving and hitting multiple things. Eventually hit an electric lamp pole. The pole fell and hit both πs.

•"Must anticipate the environment in which its product will be used, and it must design against the reasonably foreseeable risk attending the product's use in that setting."

Barge broke lose and hit into propeller of a tanker. It sank
Could have been saved but no bargee aboard at the time.

-BPL approach
-Bargee being on boat would have prevented the incident

•Actual notice
•Constructive notice: proof that the condition was visible, apparent, and existed long enough for the ∆ to discover and remedy it
•Business Practice or Mode of Operation Rule: Proof that the mode of operation creates continuous and foreseeable risk of harm to customers

• The accident is of the kind that ordinarily does not occur in the absence of negligence
• The causal agency or instrumentality was in the exclusive control of the defendant
• The accident was not due to the voluntary action or contribution of the plaintiff

Allows π to survive a motion for nonsuit
Shifts burden of production to ∆
Shifts both the burden of production and the burden of persuasion to the ∆

refers to "a party's duty to introduce enough evidence on an issue to have the issue decided by the fact-finder" rather than by the judge as a matter of law

refers "to a party's duty to convince the fact-finder to view the facts in a way that favors the party."

π claims that in 1997 while in 8th grade and riding a First Student bus she was in an accident. Π could not remember the location nor many details regarding the accident. No reports of any accident by the bus company or the police. Π can't provide any witnesses either.

• Π has not met the burden in this case and therefore the ∆ is entitled to judgment as a matter of law
• Assigning negligence to defendant based on the evidence in the record would impermissibly cross the line from reasonable inference and venture into the realm of rank speculation
• Π has burden of presenting sufficient evidence to demonstrate the existence of a material question of fact

Π and ∆ driving in a car when the car leaves the road and strikes a tree. Contradicting experts in terms of speed and exiting the roadway. Officer and π expert mention of alcohol involved with the ∆.

•Unless it is clear to the court that the verdict is the contrary to the overwhelming weight of the credible testimony, this court will not set aside the verdict of the jury
•Jury verdict for ∆ stands and JNOV is denied

Π in car hit by truck going too fast

• Speed of truck proven circumstantially: same weight given as direct evidence
• Expert witnesses can state fact with their knowledge, no conclusions
---Testimonies sometimes differ
• Not always partisan but supposed to be

customer fell 3-4 steps away from her table. When she stood up noticed clear liquid. Did not see anyone drop any liquid while in restaurant for 30min. Witness didn't see spillage either.

• Spill must be proven circumstantially
• Must show owner created or had knowledge of dangerous condition

women slipped on puddle in garden area. Sued for injuries, alleging Wal-Mart was negligent in maintenance care and inspection of premises.

Wal-Mart's level of care can exceed ordinary care and this care shouldn't be used as evidence as the care that should be considered "ordinary" by a jury through instruction
• *Allows companies to follow best practices without necessarily establishing them as legal norm

Top step collapsed in ∆'s house and π was injured.

• Court found common practice testimony admissible in judging ordinary care
• Some courts allow safety codes and handbooks as evidence, if city ordinance then standard of care

Two barges full of coal were being pulled by tug boats. Both lost off shore due to weather.

• Universal disregard can be no excuse
• Differing practice over admitting customs can be evidence
--Flexible Standard: ∆'s conduct, dangerous, actual or constructive knowledge of alternatives.
Approaches to slip and fall: actual notice, constructive notice, business practice or mode of operation, industry custom

π awoke in a motel room to find it filled with smoke. They attempted to get out, but the door was too hot to touch. Suffered serious burns before they were rescued.

• Fire code did not require smoke alarms
• Court says compliance is not a per se duty, only minimum requirement
• If ∆ knew risks then required to protect against

π walking on a road when he lost all recollection. Witnesses say a barrel of flour fell from the ∆'s shop. No evidence against ∆.

•Court says negligence need not be proved but event itself is enough for prima facie case of negligence
•Res Ipsa Loquitur (RIP) evidence that self-evidently shows negligence: the evidence speaks for itself
•Rule: (1) accident doesn't occur normally without negligence (2) Instrument causing negligence was under exclusive control of ∆ (3) negligence would be in scope of ∆'s duty to π.

high-voltage power line broke and fell, starting a fire that did considerable damage.

•Standard weather so power lines don't break without negligence RIP applied
•Based on policy that lines should be built not to fall

Stormy night, electric company's power lines were seen sparking in an alley. At some point fire started. Evidence indicated that a leak in a buried gas line ignited the sparks.

•Π could use RIP against gas company, not power company cause other factors like the storm can cause the lines to fall/spark but ruptured gas line doesn't happen without negligence
•Also gas company's superior knowledge of fact provided it duty to communicate and explain

Last person entered car parked on steep driveway, heard clicking sound and car began to roll backwards. One older boy opened door and told everyone to jump out. Little boy jumped and car ran over his chest, which eventually led to his death.

•No evidence of cars condition after the accident—pure speculation
•If π were to exclude evidence then inference is dis-favorable to π
•Necessary to show good faith effort to determine cause
•RIP not applicable where there was no proof...the boys could have been messing with the hand brake

π sued Otis Elevator Company for its negligent failure to inspect, maintain and repair an elevator compensation chain. Π sustained injuries when an elevator began to shutter and shake. Feared safety so directed elevator to nearest floor and jumped from the elevator sustaining injuries.

•Even if π contributed, RIP still available if ∆'s control was consistent with the duty that was breached
•Jury to decide

Elderly mute women admitted to rehab center for five days while daughter was out of town. Came back to discover dehydrated with a broken leg.

•Sues ambulance company and health center
•∆ argues that because there were two defendants, π cannot, and does not, pleaded Superior was the only one causing the injuries; a requirement necessary for a cause of action or Res Ipsa Loquitur
•Complaint against both is sufficient for RIP

Rear ended at red light: minor car damage, no physical damage, ∆ showed that injuries presented could have been from numerous previous accidents

• Court agrees that all aspects of a negligence claim required for even nominal recovery
• Different from intentional torts where nominal damages awarded as deterrent even without actual damages
--Nominal damages of very little

∆'s negligence must be "but for" cause of amount of damages and is only responsible for that amount of damage which negligence is "but for" cause.
-"But for" is used to see if the accident would have happened if the negligent act was not present.

On a walk home from a different bus stop, π walked on unfamiliar sidewalk where overgrown bushes forced her to enter the street. She tripped and sued bushes property owner, separate from sidewalk

• "But for" test to determine cause in fact, therefore possible to prove "but for" for either bushes or sidewalk - Survives Summary Judgment
• Negligence requires proof of two types of causation: Causation in fact and proximate cause
• "But for" is used to see if the accident would have happened if the negligent act was not present

π was in a car accident. Went for x-rays, unknowing she was 4-6 weeks pregnant

• X-ray damaged child, sued doctor for negligently not asking or taking enough steps to see if she was pregnant
• Underwent abortion and pathology stated fetus was dead at the time of birth
• Π admits if asked if she was pregnant she wouldn't have known
• Therefore, not "but for" cause so no liability
*Correct for wrongful conduct to see if injury still would have occurred

π owns lake and stock with fish. Two ∆'s pollute the lake by causing a large amount of salt water to flow into the lake, killing the fish and other damages.

-allows joint and several liability when one indivisible injury produced
-Jointly and severally liable- can get 100% from one, the other, or mix of the two
-Damages of trees and grass are caused by only one party East Texas

∆ lost part of its load of glass panes on freeway. This caused a traffic backup. During clean up, decedent was stopped when a driver hit him from behind. This caused a leak in the fuel system that led to a fire that killed the π's son.

•Court found the driver 78% at fault and the company 22% at fault
*Substantial factor test: either factor alone would cause identical result - insignificant contribution exonerated

-Lost chance of survival

-Lost chance of recovery

-Lost chance of a more favorable outcome

π shot and injured in face and eye while hunting quails with two ∆s. Both ∆s shot at quail at same time. Impossible to know who hit π. One in the eye (most severe) and one in the lip

•Court says both negligent though only one could have actually caused it
•"Alternative causation" both negligent only one caused harm
•Restatement puts burden on ∆s to apportion

π ran into light pole after hypoglycemic event, ∆ is doctor. Doctor didn't continue to give neurological tests despite continued symptoms, delays with treatment, leads to brain damage.

•There was a 50-60% chance of a better outcome without negligence involved
•Π permitted to recover for loss of an opportunity for a better outcome, an interest that we agree should be compensable, while providing for the proper valuation of such an interest
•Proportionate damage to lost probability to recover

•No matter how small that chance may have been - and its magnitude cannot be ascertained—no one can say that the chance of prolonging one's life or decreasing suffering is valueless.

Catheter left in body and pieces end up in heart: jury awarded for pain, future pain and incurred risk of future harm

•Court found this permissible but better instructions required
•Must prove future harm and probability thereof
•Courts divided on future loss: don't allow for small chance

∆ left disassembled trampoline 20 feet from road, large storm blew it into the road in front of ∆'s house. Π car swerved to avoid hitting it, entered ditch, rolled and ∆ awoke to π's screams at 9:40am.

•Court said π was negligent in respect to not removing or discovering the trampoline obstruction until two hours after daybreak
•Π has both burdens of cause in fact and proximate cause (policy related)
•"Risk Standard" limited to liability from harm caused by tortious risks (hunter not liable if child drops gun on toe: tortious risk is shooting)

∆ didn't provide ambulance for women going into labor when contractions were 10 minutes apart. Instead friend drove and ran through red light and hit by drunk driver, in coma for two weeks and child dies.

•Failure of ∆ to provide an ambulance was not the proximate cause of the injuries
•Couldn't have foreseen result of not sending ambulances so no proximate cause
•Older courts used "direct and immediate result" as test
•Policy objective of not holding 911 operator liable

•Rescuers
•Thin-skulled or eggshell plaintiff
•Suicide
•Medical complication or aggravation

Man holding package gets onto train, workers help him get on by pushing him. He drops the package, the fireworks inside go off and knocks scale down on other side of train platform and it lands on a women (π).

•No negligence toward plaintiff in this case: no notice of danger from the situation - no invasion of legally protected space
•Risk reasonably perceived defines duty to act
•Necessary to be foreseeable to be within scope of duty - risk imparts relation

--Dissent: Duty runs is to the world at large and negligence toward one is negligence to all

•Duty pertains to unforeseeable π, proximate cause pertains to unforeseeable harm
•Duty requires foreseeable unreasonable risk of harm as well as public policy consideration
•Special rules: rescue, thin-skulled, suicide

∆ left open manhole with tent over it unguarded. Boys climbed in got out, knocked lamp in, gas in it vaporized and exploded. This knocked one of the boys back into the manhole and he was severely burned.

•∆ liable: sufficient for the source of damage to be foreseeable, how it causes the damage is immaterial.

Knocked cement cover into molten liquid: nothing splashed initially, but chemical reaction took place which led to a delayed eruption and burns.

•Unforeseeable harm because foreseeable harm is splashing while this was an eruption: too much of stretch to call it a variation
•Other side says failure to avoid knocking cover was enough of a breach

π a diabetic and hotel knew this. Walking up and down stairs was bad for him but since there were no rooms available on the ground floor, there was an elevator. Fire alarm goes off. Elevators locked and π forced to walk down the stairs. Twists ankle and he finds a blister on his foot. Blister becomes infected and disrupts his blood circulation.

•Underlying injury should have been foreseeable therefore ∆ liable
•Follows thin-skull rule - liable for whatever damage incurred if it would cause any damage to an ordinary person
•Liable for full extent of harm even if only some of it was foreseeable

•Proximate cause indicates "natural and continuous and unbroken by intervening causes"
•Courts say superseding causes break chain - second cause in sequence
•If within scope of 1st cause it doesn't supersede it
•Foreseeability of intervention central: intervening cause considered a risk factor against which ∆ has duty to protect if foreseeable

∆ picks up girls (age 14 & 13) and takes them to a party. On the way takes them to store where Steven Woodward purchased them alcohol. At the party the girls drank and the parents came home and told them they couldn't stay over. ∆ says he can't take them home. Two of the girls steal a car, car hits embankment minutes later, killing one girl and causing a serious head injury to another.

•Question for the jury to determine, under proper legal instruction to determine the measure of the petitioner's knowledge of participation in the procurement of alcohol, and if whether the facts/circumstances leading up to events were reasonably foreseeable.

∆ constructed an apartment development and did not use a licensed architect. Discovery indicated that the building did not comply with fire safety codes. Twenty years after the complex was built, a fire started there. One death and several others injured. Man arrested and plead guilty to arson.

•Court says not an intervening force (criminal act) because fire is a foreseeable risk and negligence made escape more difficult and no fire suppression features
•In scope of negligence

π lived with ∆, a police officer who stored a loaded, unlocked gun in the house and the π knew where it was. ∆ kicked π out of the house (a known drug user), tried to shoot window and gun failed then shot self in face.

•Π sued ∆ for not locking gun away because he knew her suicidal voice
•Question is if suicide is a superseding cause of injury
•Is suicide extraordinary so unforeseeable?
•Also should fall to jury whether risk to self with gun was foreseeable and failure to secure was proximate cause

•Usually States find suicide superseding intervening force
--Exception: Inducing impulse in victim or special relationship.

Liquid enamel boiling at job site in a location already mentioned to be suspiciously dangerous for oncoming cars. Driver suffered seizure and lost consciousness. Car crashed through wooden barricade and struck the π causing serious injuries and burns as a result.

• ∆ sued for unsafe workplace, argues freakish accident without causal link
• Court says where it is a substantial cause of injury there is no need for precise manner of accident or extent of damage to be foreseen
• Even if negligence intervenes the causal chain is not automatically severed
• Must be determined if foreseeable from ∆'s negligence

π rented car with faulty trunk (∆ aware of it). Π was trying to lock down trunk in a parking spot when another car jolted forwards and hit him.

•Not foreseeable that this type of accident would happen in a parking spot... possibly on the side of the road
•No proximate cause of injury
•Dissent: It was not only foreseeable, but a most reasonable rather than a remote expectation, that a driver confronted by such an emergency would alight and promptly proceed to the rear of the care to attempt to secure the lid manually so that he might continue on his way without further danger to himself and others.

π a passenger in car that was forced to pull off the road to avoid being struck by truck partly in their lane. Truck driver gets out to help them bring car back onto the road. Π went to block the road at the top of the hill to let cars know of the accident. Π struck and injured by a car.

•The consequences of such past negligence were in the bosom of time, as yet unrevealed

π riding down the street on horse violently and runs into obstacle, which causes him and the horse to fall, ultimately causing injury to his body.

•Π proved to be riding as fast as his horse could go and if he had used ordinary care he must have seen the obstruction; so the accident appears to happen entirely from his own fault
•Ruled in favor of ∆

π went down the wrong gravel road travelling at 63mph when the speed limit was 50mph. There was a 90-degree turn with a defective sign that did not adequately warn the π. Π's car left the road, hit an embankment and severely injured him. He was forced to crawl to the nearby farm for help. Argument was that county should have better maintained that road according to provisions.

•∆ says comparative negligence for going 63mph when the standard rule is 50mph. π says would have missed turn at 50mph too.
•Court finds π 40% at fault, no intervening cause because no 3rd party
•Apportionment except for severe error is left to jury/fact finder

π's job was to put round metal discs, one at a time on top if a die. Machine held one at a time and he would press pedal and machine would activate. Hand crushed, no safety feature but option of 2 buttons or guardrail.

• Court says in interest of justice preclude contributory negligence because policy concerns with strict liability
• Furthermore the exact purpose of the safety feature was case occurring
• Π part of protected class: worker and young
• Viable safety option to prevent the incident that occurs therefore bars a contributory negligence defense

26-year-old teacher engaged in sexual activity with his 13 year old middle school student. Activity occurred in the classroom. Apparently 13 year old voluntarily participated.

• ∆ alleges contributory negligence by consenting and then lying about anything ever happened when asked
• School has a "Special Relationship" with students in its custody and a duty to protect them "from reasonably anticipated dangers"
• As a matter of public policy, children do not have the duty to protect themselves from sexual abuse by their teachers

oDissent is OUTRAGEOUS
•Says contributory negligence is question for jury
•Claims students have incentive to engage in this activity

a rule of law holding that one who sees a person in imminent danger caused by the negligence of another cannot be charged with contributory negligence

Two friends drank tequila, snorted black-tar heroin and smoked marijuana. Decedent fell asleep and made choking sound. Dugger delayed calling 911 and when he did he didn't tell them about the heroin, just the two other substances. He was treated for alcohol poisoning and he died.

• Can π recover for act cemented in an unlawful action?
• Unlawful Acts Doctrine not available as an affirmative defense in personal injury and wrongful death cases
• Illegal act is not an absolute bar

π was wearing 5-inch heels to work. Slipped on bathroom floor and brought tort case against employer

--she was not comparatively negligent

spin class, handle fell of bike, instructor failed to lock pin in

o Court accepted waiver of rights except for reckless gross negligent acts
o Enforceable contract because equal bargaining power of parties
o She could have gone to another gym
o Public policy: possible to assume risk with discretionary activities

π signed documents setting forth certain "Conditions of Admission" to the hospital. One point outlined that hospital was free from liability from negligent and wrongful acts or omissions of its employees because it's a nonprofit and charitable organization. Π died.

• Patient is in no position to reject the agreement, to bargain or in lieu of agreement find a new hospital. Cannot conclude instant agreement manifested the characteristics of an adhesion contact
• Hospital-patient contract clearly falls within the category of agreements affecting public interest
• Π had no other option than to sign, needed to be treated (this waiver was against public policy)

Husband and wife bought an ATV and signed up for a safety class provided by the dealership. At the safety class π struck a rock and was thrown from ATV. Prior to class the instructor had everyone sign a consent form and release.

• By signing the waiver and release form the πs had good reason to reasonably presume the course to not be unreasonably dangerous. (Course geared towards novice riders)
• Exculpation of negligence must be explicit... the form only released from inherent risks of ATVing not negligence in general

π removed leaky fuel tank from a Ford Pick-up truck and notice it was not properly secured. He attempted to loosen the tank and it fell to one side and doused him with gasoline. He pulled out from under the truck and smashed a shop light which broke and ignited the gasoline, causing him severe burns.

• Assumption of risk cannot bar recovery
• The assumption of risk doctrine is a common-law affirmative defense to negligence. Doctrine is premised on a view that there is an express or implied agreement within the employer-employee relationship that an employee accepts the risk of known dangers to which the employee is exposed to as part of the work and takes responsibility for any resulting injury

(1) the employee knew and understood the risk being incurred and (2) the choice to incur the risk was entirely free and voluntary

π worked in ∆'s house to take care of Alzheimer's patient. Warned by husband she could be violent. While π was washing dishes one day the patient bumped into her while holding a knife. Attempting to restrain the patient, π dropped the knife, which struck her wrist. Lost feeling in several fingers and experiences recurring pain.

• No recovery
• Assumption of Risk doctrine applies in favor of those who hire workers to handle dangerous situations, in both public and private sectors
• Supervision was included in duty of π

is a complete bar to recovery. It applies when, as a matter of law, the defendant owes no duty to guard against a particular risk of harm

Applies when the ∆ does owe a duty, but the π has knowingly encountered a risk of injury caused by the ∆'s breach.

π eating at a fully netted in restaurant at a baseball game. Heard crowd roar, turns around and hit in the eye by a foul ball. Π lost his eye.

• Decline to adopt Baseball Rule (stadium owners must provide as much netting as may reasonably be expected for the number of people that want cover)
• End of Assumption of Risk in Idaho
• Up to jury to decide the degrees of fault
• Contributory negligence is not a complete bar of recovery; liability to be apportioned between the parties based on the degree of fault for which each is responsible

π hit in the eye with hotdog at a baseball game launched by the mascot. Sues baseball team for negligence and damage caused.

•Royals owe the fans reasonable care in conducting the Hotdog Launch and can be held liable for damages by a breach of that duty

π gets drunk at baseball game. Goes to bathroom and leaves without friends. Boards train and gets off at wrong stop, to which two men chase and beat him. All Gladon remembers is he was balled up on the tracks unsure of how he got there. Train approach, only able to see his tennis shoe, hit brake but hit π. Alleged negligent security and train operation

• Duty owed trespasser and licensee are the same
• Only to refrain from willful or reckless conduct
• Still required to use due care to avoid injuring trespasser in position of peril (no duty to discover and avoid danger)
• Because of facts possible that driver was wanton in not slowing down when she saw π

any person who has no legal right to be on another's land and enters the land without the landowner's consent.

is any person on the premises (1) at least in part for the pecuniary benefit of the landowner (a "business invitee") or (2) who is on the premises held open to the general public (a "public invitee")

is on the land with permission, but with a limited license to be there; it is not inaccurate to say that a licensee is someone who is neither a trespasser nor an invitee

Old pool without fence has filled up with water and acts as a pond in the neighbors yard. Π's child was playing around the pool like he usually does when he fell in and his mother jumped in to save him; both drowned. Fencing gap between the two properties.

• Attractive nuisance adopted liable if artifact in place that ∆ has reason to know children have access to the pool; knowable risk of serious harm to a child
• Children don't discover danger due to youth
• BPL test if requirement slight duty increases
• Recognizes children owed more duty than adults
• Key element is foreseeable unreasonable risk of serious harm

• A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon land if
o (a) The place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass and,
o (b) The condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk death or serious bodily harm to such children, and
o (c) The children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it and,
o (d)The utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children, and
o (e) The possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect children
*Definitely should not have to spend A LOT of \$ to make the property child proof.

• 14 year old electrocuted in a railroad yard
• Court adopts standard of reasonable care for all entrants
• Can emphasize the "unforeseeability" portion of this happening
• Show you were not negligent
• Still open to ∆ there was no duty to breach... maybe under BPL approach

π injures hand on ∆'s porcelain handle in bathroom, which causes severed tendons and nerves. ∆ knew about the handle's crack but did not warn the π before going into the bathroom.

act as a reasonable man in view of probability of injury to others on property, trespasser or invitee has bearing but no determinative
o More egalitarian
• In old approach licensees only owed duty to not use wanton or intentional harm
o Argument against old system: land no longer source of wealth
• Same effect as making exception for social guest
• Most states have a similar non-trespasser owed duty rule

π tripped over curb while transporting patient into the hospital. (Apparently no curb like this at other hospitals and her focus was totally on the patient). She had traversed the curb 400 times though in a deceptive position: argues as paramedic duty to only focus on patient.

• Only hospital of many in area to have curb in that location
• Trend to allow jury to evaluate comparative fault in open and obvious situation
• Recognizes risk of harm may be unreasonable and foreseeable creating duty
• Austin says moving to more liberal ground on trespass is good

- states that land possessors cannot be held liable to invitees who are injured by open and obvious dangers.

π helping family move out of 2nd floor duplex. He was lowering a box spring over the balcony with an old wooden railing. When he grabbed the railing to adjust himself up after, it gave way and he fell to the ground. Upon inspection the railing had been dry rotted but not obvious to the naked eye.

• Old rule is landlord generally not liable: conveys property and control to tenant
o Exceptions: if knows of hidden defect or contracts to repair defects
• Abandons old rule in favor of ordinary care standard: perhaps should have been inspected better
• Back to jury to decide if landlord exercised ordinary care in the maintenance of the premises under all circumstances.
• *Better public policy lies in the abandonment of the general rule of non-liability and the adoption of a rule that a landlord is under duty to exercise ordinary care in the maintenance of the properties

π (Public Safety Officer) employed by Medical University and was loading medical waste onto truck owned by ∆. Π noticed the truck owned by Med-Waste was rolling away. Π ran after the truck, hopped inside and stopped it. Π alleges he suffered serious injuries.

• ∆ argues barred like certain public officials like police and firefighters
o Rationale licensees, assumption of risk, public policy
o Court split over wanton conduct toward firefighters
• Court says no firefighter rule in S.C.: discriminatory single out
• Courts undecided on issues like off duty, private employee rescuers
• Most don't apply to intentional wrongdoers
• Often not including violations of fire safety standards
• Not for risks inherent in job

is a common law doctrine that precludes a firefighter (and certain other public employees, including police officers) from recovering against ∆ whose negligence caused the firefighter's on-the-job injury.
Could be a double payment on the ∆ as a tax payer and π has workers comp and other recovery would be double

initial tortfeasor responsible for harm in course of treatment up to and including malpractice
•Doctors liable for any aggravation of injury, 1st doctor liable for 2nd doctor's malpractice: response to difficulty of proof

∆ operated on the π to remove thyroid. Well-recognized risk that vocal cords may be injured and result in loss of voice. Great deal of scar tissue in this case as a result of an earlier operation. Instead of locating the nerve the doctor, the doctor made a wide cut so as to avoid the area where nerve was thought to be. Cut nerve and now π's vocal chords are paralyzed.

•Standard is what average qualified doctor would do in scenario, honest mistake and no guarantee not valid excuses
•If competent authority divided then no liability
•Expert testimony usually required: common knowledge exception if expert not needed

π's baby delivery caused him severe and permanent injuries. Malpractice delivery, trial court held to locality standard... but asked to abandon it

•Abandon locality rule for measuring standard, adopt new rule that a doctor acting in similar circumstances (can still sue hospital for outdated equipment)
•Unlikely the change above would alter the way the case was tried
Locality Rule: Standard of care is that degree of care, skill and proficiency which is commonly exercised by ordinarily careful, skillful and prudent physicians, at the tome of operation and in similar localities
Adopted New Rule → A physician must exercise that degree of care, skill, and proficiency exercised by reasonably careful, skillful, and prudent practitioners in the same class to which he belongs, acting under the same or similar circumstances

Surgery to remove tumor in π's neck. Surgery didn't go well when hypoglossal nerve was severed and resulted in permanent and total loss of tongue function. Π upset she was not warned of the potential outcomes and would not have underwent procedure if she would have known. Π argues negligent lack of warning for foreseeable outcome, and wouldn't have done with knowledge.

• Right to forego treatment so duty to warn
• No undue burden on doctor to warn: only reasonable and significant medical information that doctor has and should have been material to decision
• Expert there to say what doctor should know, materiality: lay determination
• Doctor privileged to withhold information for therapeutic reasons
• Π must still prove risk occurred and reasonable person wouldn't have done the surgery with prior knowledge of risk
• *Her subjective thoughts matter because it is cosmetic... most of the time objective
• Physician can be obligated to do what is customary on field or give patient the option
• Patient is better weigher to make that decision

Operation on back cased tear due to abnormality: normal but not warned

• Entitled to disclosures as would be made by a reasonable doctor: professional standard
• Therapy reasons for withholding
• Adds burden to π to prove standard as well as causation (on top of reasonable person would refuse proof)
• Jury found for the ∆.

This rule is justified (1) because this is professional malpractice and the professional standard must be used, (2) because there might be therapeutic reasons for withholding information, and (3) because since the plaintiff must produce medical testimony on other issues, this will add very little burden.
*The π in informed consent cases must also prove causation by the objective test, that is, that a reasonable person would have refused the treatment had full information been given, and that the π herself would have refused it.

π suffered kidney failure during his senior year in high school. Family selected doctor for transplant unknowing the doctor's last 5 out of the 7 procedures were unsuccessful. Π dies as a result

•Only has duty to disclose risks of procedure, not statistics of doctor for informed consent

π diagnosed with cancer. Wanted to know the truth about survival rates. Cancer was a kind overwhelmingly likely to cause death in a short time. Doctor never told him this but rather suggested some post-operative treatments that had been experimentally successful with other forms of cancer. Treatment unsuccessful and survivors file suit against doctor for having him live in false hope and unable to get affairs in order that led to business and tax losses.

•No duty to disclose life chances, only procedural risks, standard of industry of telling risks
•Request for truth doesn't matter

Doctor repeatedly advised patient to get a pap smear but never warned her of the purpose or of the dangers of not having one. She died of cervical cancer.

•If patient declines treatment then doctor has a duty to advise of material risks of not doing
•It was reasonable to assume π didn't know risks

Double mastectomy with some unfortunate results. She sued on informed consent theory. Π given comparative fault of 50% of the damages for failure to give truthful and complete family history when it is material.

•No comparative fault for failing to ask questions of doctor, only withholding family history.

π underwent surgery for removal of an ovarian cyst. Claims that during operation her right arm was negligently hyper-abducted beyond a 90-degree angle for an extended period of time causing thoracic outlet syndrome and reflect sympathetic dystrophy.

• Court says expert testimony can be used to bridge knowledge gap even for RIP
• Purpose of expert opinion in this context is to educate the jury, enlarging its understanding of the fact issues it must decide
• ∆ must be given the opportunity to rebut the assertion with competent expert evidence to show the injury complained of is an inherent risk of the procedure and not totally preventable with exercise of reasonable care

π makes appointment with doctor to have appendix removed. After surgery wakes up with pain and injury to his right arm and shoulder. Files suit against may parties.

• Unreasonable for doctors to say that π has to identify one of them as the person committing the negligence act.
• ∆ says π cannot show which instrumentality caused or which operating medical staff caused it
• Court says because doctors work in teams, employer and supervisor liable as well as perpetrator
• Liberalize instrumentality doctrine because RIP used when lack of evidence and π was unconscious at time: all evidence controlled by ∆s
• Respondeat Superior doctrine: even for visiting doctors or nurses

π is a registered nurse who was drinking and driving. His car left the road and rolled once, and ended up in a ditch. Assessed at hospital, poor x-rays taken but before the better set of x-rays printed to doctor discharged him. Went to jail in major pain and turns out he had a burst fracture in his spine, suffered from neurological defects including incontinence and sexual dysfunction.

•This scenario is so grave that a jury could conclude that the screening requirement was simply not met

81-year-old women with broken hip. Never informed her that without surgery she will never be able to walk again. Doctor only prescribed bed rest.

•Whether or not doctor should have disclosed
•Doctor decided her lifestyle for her
•Guilty failure to obtain informed consent

π developed severe pressure sores at a nursing home. Jury found for her and awarded damages. Records reflected deficiencies.

-Evidence sufficient to support jury's findings of damages for physical pain and mental anguish, disfigurement, and impairment

π helped clean out step-grandmother's house. Disposing of garbage by throwing it into a fire in the backyard. Aerosol can exploded causing the 17 year old sever burns. Sues father under the theory that his father negligently supervised him by failing to institute and maintain adequate standards for the safe disposal of flammable materials, warn him, etc.

-Parental Immunity

"(1) where the alleged negligent act involves an exercise of reasonable parental authority over the child; and (2) where the alleged negligent act involves an exercise of reasonable parental discretion with respect to the provision of food, clothing, housing, medical and dental services, and other care.

Foster parents (∆s) confined child to wooden cabinet inside bedroom closet. She died of asphyxia and hyperthermia.

parental discretion in the provision of care includes maintenance of the family home, medical treatment, and supervision of the child" The ∆'s conduct, though severe, was the very kind to be protected under this standard.
Neel provided expansive test, other courts say no duty to supervise

Infant given hammer by father and a container of nails that contained an explosive nail gun cartridge. He was injured when he struck the cartridge with the hammer.

father breached duty to world at large by maintaining explosives and is liable for that. (child can recover, this is outside familial relationship)

π terrorized by suitor. Π sought law enforcement protection due to his threats. Eventually she became engaged to another man. Received call warning her that it was her last chance. Again she contacted the police to no avail. Next day, Pugach (rejected ∆) hired a guy to throw lye in her face. Π blinded in one eye and lost significant vision in the other, also suffered severe scaring.

•Courts don't want to interfere with government allocation of limited resources or police policy

(1) Promises or actions that represent an assumption of an affirmative duty to act on the π's behalf; (2) knowledge by the municipality's agents "that inaction could lead to harm; (3) some form of direct contact between the municipality's agents and the injured party; and (4) the party's justifiable reliance on the municipality's affirmative undertaking."

Dispatcher sent cops to wrong address then dropped the call as a prank, π stabbed to death by burglar.

•Special relationship existed between the city and the caller. Victim's plea for assistance was not refused.
•The special relationship required the ∆s to exercise ordinary care in the performance of a duty it has voluntarily assumed.

π brought suit on priest, Melville and the bishop based on sexual abuse claim. Bishop knew Melville had abused a child before he was ordained. Insured where is excluded sexual or physical abuse or molestation of any person by the assured, any employee of the assured or any volunteer worker

•Do not recognize the defense of charitable immunity in claims involving intentional torts

π owned five brick buildings that were destroyed in a fire that started on the 6th floor of one of the buildings. The firefighters who arrived went against accepted practice and instead of also using the sprinkler system went just with the fire hoses. Building was destroyed.

in exercising their discretion not to use the buildings' sprinkler systems, the Lowell firefighters were negligent because they failed to conform to generally accepted firefighting practices
• City not shielded from liability by the discretionary function exception

There is no duty unless some additional factors such as a special relationship are present

The actor's affirmative act itself creates the duty, absent some policy reasons warranting an exception

π and ∆ on and off dating for over a year. One night called it off. Π comes to ∆'s trailer, does not leave and accidently shoots himself. ∆ left thinking he was playing around and didn't see any blood. Came back with friends, saw he shot himself, called for help. Could not be resuscitated. Doctor said if he got there sooner he probably would have made it.

• Court says π was a trespasser so no duty and no special relationship
• Without special relationship or created harm then no duty

must save life if little/no inconvenience to oneself

• Places a possessor of land under "a duty to flagrant trespassers to exercise reasonable care if the trespasser reasonably appears to be imperiled and (1) helpless or (2) unable to protect him- or herself."

π's father prescribed MANY drugs at once. While on them he killed his wife. Now π is left without a parent. Sued Doctor for negligence in the prescription of the medications that caused his father's violent outburst.

• It is foreseeable whether there are circumstances within that category in which a healthcare provider could foresee injury
• Healthcare providers not entitled to an elevated status in tort law that would categorically immunize them from liability when their negligent prescription cause physical injury to non-patients
• Misfeasance because it was an affirmative act of prescribing medications

"arise when one assumes responsibility for another's safety or deprives another of his or her normal opportunities for self-protection."
(Common examples: Common carrier to its passenger, innkeeper and guest, landowner and invitees to his land, and one who takes custody of another)

• First, if a person knows or has reason to know that his conduct, whether tortious or innocent, has caused harm to another person, he then has the duty to render assistance to prevent further harm
• Second, if a person has created a continuing risk of harm, even innocently, a duty arises to employ reasonable care to prevent or minimize that risk from coming to fruition
• Another exception may be found if a statute or ordinance requires a person to act affirmatively for the protection for the protection of another.

2 older boys bet girl to drink bottle of alcohol. She lost consciousness and was vomiting. Boys placed her in basement with a pillow behind her head that caused her to suffocate. Eventually took her to the hospital where she was pronounced dead.

• One who voluntarily undertakes to render services to another is liable for bodily harm caused by his failure to perform such services with due care or with such competence and skill as he possesses.
• Only have to do what is reasonable; can't make her situation worse
• Boys undertook to provide care but didn't use due care so they are liable

the 3rd Restatement § 44(b) imposes liability if the defendant, by acting unreasonably, has left the victim in a "worse position than existed before" the ∆ took charge.

Went to help fellow business person... jumped into water to start pump for trench. Started to drown and property owner did not help him

→No legal liability for the landowner.
→No duty to rescue

Three college students driving back to school after drinking. The car hits and kills a motorcycle driver. Π goes off guardrail and appears to be motionless... shortly after another car runs over him. All three left the scene in hopes of not being detected. They made numerous calls following the accident; none of which were for help. Now looking to see if the car passengers had liability to take action or to not prevent help from being contacted by the driver who was intoxicated.
• Necessary to find definite relation between parties of such character that social policy justifies a duty
• Judicial balancing of factors: opportunity to help, foreseeable risk, bystander vs. involved, overall degree of involvement with imminent peril and ease of helping = relation and duty
• BPL analysis shows that it is costless and almost effortless to summon help
• Driver of the car is guilty of nonfeasance—failure to act
• Passengers have misfeasance in letting the driver drive & in letting driver leave the scene
• Death came at the expense of failing to take simple precautions at little if any cost or inconvenience to ∆s

Social services department took charge of boy being abused by father but released him back to family. Didn't act on evidence of continued abuse and now boy is in a retarded state.

Contract to provide water to city, fire hydrant and insufficient pressure to put out, question of liability to building owner where fire occurs.

•No contract claim, no intention to be liable to every member of town
•Nonfeasance

Mother took 6 year old to school each day for two weeks. During which time the city police stationed a guard at the street crossing to assist. One-day mother sent child alone because she was sick and assumed guard would assist. Child was struck by a car and suffered severe brain damage.

•If conduct has gone forward to such a state that inaction would commonly result in an injury, there exists a relation of which arises a duty to go forward.
•Special relationship between police department and children crossing

2 men saw abduction, told officer who said he will call it in and didn't. Women was raped and hurt.

•No negligence unless special relation to claimant: requires direct contract to claimant which didn't occur in this case

π was in a business deal with Slavin (shooter) and Slavin lost all of his money in the deal after the partnership dissolved. Slavin told ∆ on multiple occasions he wanted to injure the π. ∆ never alerted the π of these threats. Salvin rang π's doorbell, shot him four times, rendering him a paraplegic.
• No special relationship existed between the ∆ and π, therefore they owed him no duty to inform him
• Argument that π was an agent of ∆ fails because acting outside agency at time
• Court rejects overall circumstance test sticks to special relation doctrine

π shopping at Sam's Club when a man hiding under her car grabbed her ankle and stole \$19,000 worth of jewelry. She sued Sam's Club, claiming it was negligent in failing to provide security guards in a parking lot.

• 4 Tests
o Totality of circumstance (Broad Test)
o Balancing test***-balances foreseeability with burden of duty (BPL)
o Immediate harm foreseeable
o Prior similar incidents
In this case the balancing test shows there is not enough need for the expense of a guard
Balancing test is to determine duty not breach (as is case for BPL)

•Sam's Club did not possess the requisite degree of foreseeability for the imposition of a duty to provide security patrols in its parking lot

πs are three women who were students and filed complaints alleging exploitation, harassment, assault and sexual abuse by one or more employees of the school district.

oNew relationship to school but ONLY for those in supervisory positions and limited to period when parental supervision compromised
oPrincipals and Superintendents negligence could be in the form of hiring or retention of an abusive individual

Elementary student riding his bike to school for parent-teacher-student meeting and was struck by car when he rode the bike across the street from the school. A parked car obstructed his view. Sued school because they should have informed city of dangerous parking conditions, supplied a crossing guard, or provided flashing warning lights.

•No duty because no custody, after hours, outside premises, not in process of participating in school event. (Still in custody of parents)

Two neighbors in 329-unit mixed income housing complex were not getting along. One day Sommers stabs Ward. Ward complained to police and management company about Sommers. Ward sued for her injuries, alleging that they failed to protect her from Sommers' purported criminal assault.

•General principle is no duty to protect from criminal attacks unless landlord is responsible for a known risk creating a physical condition or if a landlord provides security must use reasonable care

Convicted felon would not behave in prison and was suggested to not be allowed in halfway house. Regardless, he ended up in halfway house and broke into nearby apartment. He beat, raped and strangled to death the occupant. Π's estate sues halfway house.

• Halfway house had duty to victims that may be identified in advance and to all those who are directly and foreseeably exposed to risk of bodily harm from the ∆'s negligence. Decedent within the area of danger.

•Parents are not vicariously liable for a child's torts merely on the basis of the parental relationship

• Employers are generally vicariously liable for the torts of their employees committed within the scope of employment
o Negligent hiring or retention
o Negligent supervision or training
o Injury caused to others by excessive work demands of employer

π was killed by boy who told his intentions to his psychotherapist. Psychotherapist didn't tell π or anyone to take control before π was killed.

• ∆ must use standard of the profession (malpractice requirement)
• Once reasonably foreseeable danger arises, duty on doctor to protect foreseeable victim
• Duty to protect patient and would be victim
• Risk of unnecessarily warning is reasonable risk - weigh public interest over treatment confidentiality (if at all possible try to keep confidentiality).

∆ served alcohol to a group of minors, including the one that drove the group to the restaurant. Π allege alcohol served by ∆ caused driver to be so intoxicated he caused a one car accident that injured π.

• Liable if you supply chattel to another whom the supplier knows or has reason to know to be likely because of youth/inexperience harm of some sort may result

π (widow and others in the hospital with the decedent who watched the episode) ∆ (hospital, ABC News, Doctor).

*Newsworthiness Privilege: no consent necessary

(1) Extreme and outrageous conduct
(2) Intent to cause, or disregard of a substantial probability of causing, severe emotional distress
(3) A causal connection between the conduct and the injury; and
(4) Severe emotional distress

π working under a supervisor that allegedly engaged in grossly abusive, threatening, and degrading conduct, regularly using the harshest vulgarity, verbally threatening and terrorizing the π over a period of years.

severity and regularity of supervisor's abusive and threatening conduct that brings his behavior into the realm of extreme and outrageous conduct.
→Appropriate instance of OUTRAGE

π American family members of a 15 year old who died in a Hamas terrorist bombing at a Sbarro restaurant in Jerusalem, Israel, filed suit against Islamic Republic of Iran and the Iranian Ministry of Information and Security, which played a role in supporting the terrorists.

Restatement (Second) of Torts: Standard of recovery on a theory of IIED
One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm. An actor may also be liable for IIED to a part against whom the extreme and outrageous conduct was not directed if that part is (1) a member of the victim's immediate family (2) was present at the time of the extreme and outrageous conduct.

Fisherman picked up radar from a large freighter a mile away that was on course for collision with his small vessel. Sick to his stomach and fearing for his life he signaled the danger to the freighter which passed by him very close and struck another vessel killing the captain. Stacy (π) sued for negligent infliction of emotional distress

-a tort is committed by a defendant subjecting a plaintiff to emotional harm within the zone of danger created by the conduct of the defendant. The zone of danger test allows recovery for those πs who are placed in immediate risk of physical harm by ∆'s negligent conduct.

π in the street about to board a street railway car when the ∆ drove a team of horses at her. By the time the horses stopped she was standing between the team, although never touched by them....She suffered shock and a miscarriage as a result.

-Without physical injury the negligence of the defendant would not be a proximate cause

Catron (π) was pulling two of his daughter's friends on two tubes trailing the boat. As he was travelling back to shore he noticed two jet skis coming his way. Feared for his safety when jet skis aimed at his boat. When jet skis turned they hit one of the girls and killed her. Catron jumped into the water and floated the girl back to the boat. After accident Catron diagnosed with major depression, anxiety disorder and PTSD.

In Nebraska where there is no impact or physical injury to the plaintiff, the plaintiff seeking to bring an action for negligent infliction or emotional distress must show either (1) that he or she is a reasonably foreseeable "bystander" victim based upon an intimate familial relationship with a seriously injured victim of the defendant's negligence or (2) that the plaintiff was a "direct victim" of the defendant's negligence because the plaintiff was within the zone of danger of the negligence in question.

Mother and Infant sister saw a vehicle strike and kill young child (daughter/sister) as she crossed the road. Mother and sister sued the driver for negligent infliction of emotional distress.

Only reason for the zone of danger rule is because the person lies within the fact that within the Zone of Danger will feel the danger of the impact

1. Whether plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it
2. Whether the shock resulted from a direct emotional impact upon the plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence
3. Whether the plaintiff and the victim were closely related

Parents of son who underwent surgery for hand ended up in a coma for 10 days and waking up in a paraplegic severely brain-damaged state. Parents were present at the hospital and observed their son's condition before and after he awoke from the coma

Claim damages for (1) negligent infliction of emotional distress and (2) loss of their child's consortium or society, in addition to the claim of Daniel Boucher himself...
No consortium claim upheld either

π given prenatal care by her obstetrician who also delivered her child. Infant went without oxygen for prolonged amount of time resulting in brain damage. Baby and Mother file separate claims. Mother for emotional distress.

plaintiff may recover money damages for a claim of negligently inflicted emotional distress from a defendant physician, who is in a doctor-patient relationship with plaintiff during the delivery, if her child is severely injured during the delivery because plaintiff is directly affected by the physician's negligent acts.

Doctor says π has AIDS. Later retest says she does not. Sues for negligent infliction of emotional distress.

-π has no claim. Never placed in any real physical peril

Boyle secretly videotaped his sexual intercourse with 19-year-old Susan Kerr

-Texas will not recognize a cause of action for emotional distress except where the defendant creates a risk of physical harm.

Camper driving a cement truck. Jennifer Taylor 16 stopped at stop sign but suddenly pulled out in front of plaintiff. Vehicles collided and Ms. Taylor was killed instantly. Π got out and saw body from close range. Π sued estate, claiming negligent infliction of emotional distress in the form of posttraumatic stress syndrome.

(1) The physical manifestation or injury rule will no longer be followed
(2) Negligent infliction of emotional distress claims should be analyzed under the general negligence approach that is no differently from any other negligence case

Mother gets into car accident while 32 weeks pregnant. Child born premature that causes breathing problems. Child sues for damages caused by negligence of her mother.

• No duty owed to unborn baby (otherwise there would be an unlimited amount of circumstances leading to litigation)
• No clear social values or customs would dictate otherwise

"one who tortuously causes harm to an unborn child is subject to liability to the child for harm if the child is born alive." (Against third parties).