Torts Outline V2

(1) D*mn Directness
(2) Sh*tty Substantial Factor
(3) F*ckin Foreseeability

(1) But-for-test / cause in fact
(2) Natural and Continual sequence between cause and effect
(3) Substantial factor
(4) Directness without too many intervening events
(5) Attenuation
(6) Likelihood of injury
(7) Foreseeability
(8) Closeness in time
(9) Closeness in space

• Judge Cardozo Duty,
• Judge Andrews: Proximate Cause

(1) Societal interests involved
(2) Severity of the risk
(3) Burden on the DF
(4) Likelihood of occurrence
(5) The foreseeability of the harm
(6) DF's ability to comply with the proposed duty
(7) Victim's inability to protect himself from the harm
(8) Costs of protection
(9) Was it a business relationship?

(1) The greater the danger, the greater the care which must be exercised.
(2) Care employed by a reasonable person must be proportionate to the danger of the activity.
(3) What a reasonable person would do over the increased danger.

(1) Some have forbid it, because the emergency is built into the reasonable person standard and so little difference in outcome. ("A reasonable person would swerve out of the way")
(2) Some say that the jury will focus on that and affect the case's outcome.
(3) Some are hesitant but say that it is factor to be considered and not an absolute defense.

Held to the standard of a reasonable child of the same maturity, age, training, intelligence, and experience. (MATIE)

(1) Social value the law attaches to the interest to be advanced or protected by the conduct.
(2) Extent of the chance that this interest will be advanced
(3) Extent of the chance that such interest can be advanced by another, less dangerous act.

(1) Social value the law attached to the interests at risk
(2) Extent of the chance the actor's conduct will cause an invasion of any interest of another.
(3) Extent of harm likely to be caused to the interests at risk
(4) Number of persons whose interests are likely to be invaded if the risk occurs

This rule protects both the need of children to be children, but also prevents children from engaging in dangerous activities and putting others at risk of harm.

(1) Determine what the capacity of the particular child in questions is, given his age, intelligence and experience.

(2) Then how a reasonable child of like capacity would've acted under similar circumstances.

The jury should be allowed to interpret the capacity of a like child and whether that child failed to act at that level of care.

Some states hold that a child under the age of 7 is not capable of negligence.

No, the court doesn't need expert testimony to determine the capacity of the child or whether that child failed to act reasonably.

The jury can decide based on its own common experience with children.

If a child is participating in an inherently dangerous activity or a dangerous activity usually performed by adults, then they're held to an adult standard of care.

The existence of superior knowledge, skill, or intelligence will demand conduct consistent with that.

The standard becomes that of a RP with such superior attributes.

(1) Absolves actor of any liability
(2) Allows actor to be judged with a different standard of care
(3) Jury considers it as a factor under the RP test.

(1) Party seeking instruction wasn't negligent prior to the emergency
(2) The emergency was sudden and without warning
(3) The reaction to the emergency was spontaneous, without time for reflection.

(1) Must act as well as a reasonable person with that same physical disability.
(2) A physically disabled person must exercise own safety.
(3) Care being what a person with the same physical disability would do.
(3) A blind person is not expected to see and avoid every risk, but that person is expected to use reasonable care to avoid those risks.

A person with a mental disability must act as well as a reasonable person without that same mental disability.

Some courts have been willing to make a mental impairment into consideration when the DF experiences a sudden and unanticipated onset of mental impairment.

(1) Allocate losses between two parties to the party that caused the loss.
(2) Provides incentive to those responsible for people with disability to prevent harm.
(3) Removes inducement for tortfeasors to fake a mental disability
(4) Avoids problems with a court and jury trying to identify and assess a mental disability
(5) Forces persons with disabilities to pay for damages they do if they "are to live in the world."

It doesn't, the actions of a person who was intoxicated at the time he or she was injured or caused an injury are evaluated with the reasonable person standard.

The fact that he or she was intoxicated does not matter.

(1) Punitive damages may be available.
(2) PL signed a waiver giving up his or her right to sue for negligence.
(3) Sometimes parties are protected from negligence, but not from recklessness.

Unless the DF has a special relationship with the PL.

A doctor would've a special relationship with the PL and therefore a duty is owed by a doctor to an unborn child.

A person is not liable for providing drinks unless that person has a license to do so and provides to someone underage or to someone they knew or should've known was intoxicated.

Unless there is some sort of special relationship, the host is under no duty to control the conduct of another.

(1) Duty

(2) Fact

Cardozo said the PL was not within the zone of danger, so proximate cause is irrelevant.

Andrews said everyone is owed a duty, but proximate cause will separate cases that are unforeseeable.

B<PL then there is negligence

• B = Burden of DF
• P = Probability of loss,
• L = Monetary loss
• Not all jurisdictions use this.

Cardozo's approach to duty as in Palsgraf asks whether the PL was a foreseeable victim of DF conduct.

Duty to the entire world.

Under Palsgraf v. Long Island Railroad Co., Cardozo's majority opinion held that a DF owes a duty only to those who could foreseeably be endangered by the DF' negligent act.

If there's a policy reason to eliminate entire categories then that's okay.

Unless a Special Duty applies.

Algebraic formula suggesting if the cost of not taking a precaution is larger than taking the caution then its unreasonable

• Common Law: Parents aren't vicariously liable for their kids torts.
• A parent can be liable for their own negligence, such as not supervising the child.

Andrews says only owed to foreseeable victims while Cardozo says only to those in the zone of danger.

Parents are liable for all their kid's torts.

• Parents can be vicariously liable for intentional torts.
• Usually with a low upper limit (\$5000).

Assume common law for vicarious liability if the statute is listed.

(1) PL must prove a serious risk.
(2) Risk = balance of high probability of harm, and serious losses.
(3) The DF knows of the risk or has reason to know
(4) Remedy or Prevention is so slight compared to the risk's magnitude that not adopting precautions is "reckless disregard or indifference for the risk".

An intentional or unreasonable disregard of a risk that presents a high probability of substantial harm.

Intentional Torts

Unintentional Torts

Strict Liability

"Willful misconduct": Sometimes refers to conduct involving an intent to cause harm;

"Wanton misconduct": Recklessness.

"reckless disregard for risk" or a "reckless indifference to risk."

(1) Obviousness of the risk.

(2) Imbalance between the magnitude of foreseeable risk and burden of precaution.

Either (a) knew of the risk or (b) knew of facts that made the risk obvious

Ignoring the risk or ignoring the facts count as Knowledge requirement for Recklessness.

Refers to the actor's own experience.

R2Torts:

Recklessness: "reason to know"
Negligence: "should know"

"constituting the conduct that produces liability for what the court has traditionally called willful, wanton, or reckless conduct."

Not wilful, wanton, or reckless misconduct.

See, e.g., Manning v. Nobile, 582 N.E.2d 942 (1991)

Not wilful, wanton, or reckless misconduct.

Hawco v. Massachusetts Bay Transp. Auth., 499 N.E.2d 295 (1986)

Not wilful, wanton, or reckless misconduct.

Mounsey v. Ellard, 297 N.E.2d 43 (1973)

Subjective component meaning we need to look inside the mind of those that are claimed to be reckless and see what they knew.

Prove that the person actually knew or had "reason to know" based on the underlying facts that led to the obvious risk.

Not wilful, wanton, or reckless misconduct.

Sawler v. Boston & Albany R.R., 157 N.E.2d 516 (1959)

Lack of repair not wilful, wanton, or reckless conduct.

Carroll v. Hemenway, 51 N.E.2d 952 (1943) (

Landowner not liable for wilful, wanton, or reckless conduct.

Siver v. Atlantic Union College, 154 N.E.2d 360 (1958)

• Willfulness sometimes carries with it a "sense of an intention to harm"
• Wantonness suggests "arrogance, insolence, or heartlessness that reckless conduct lacks."
• Some courts use "willfulness" to refer to intentional conduct.

A dangerous condition that is "known or reasonably knowable," reflecting the two options R3Torts § 2 (a).

It needs to be reasonably foreseeable.

No, not all jurisdictions follow it.

(1) Some evidence of negligence
(2) Prima facie (juries choice)
(3) Presumptive facie (if DF forbears defense, juries decide duty and breach)
(4) Negligence per se
(5) Prima facie and negligence per se (same treatment, up to jury)
(6) Strict Liability

Because it cuts both ways, as in a PL could evidence that the DF deviating from what is customarily reasonable to prove that DF was negligent or

DF could present evidence that acting with Custom could be negligent.

Most Negligence cases involving a statute, the jury uses common experience and judgment to use their discretion.

Negligence per se removes the discretion.

Custom is admissible, relevant but not conclusive.

That Negligence per se is a vague standard of care such as proceed with caution.

• It doesn't add anything to a reasonable person standard because under those circumstance where it doesn't give you a precise way to conduct yourself then it's no more than some evidence

Objective Standard should look outward to what a reasonable person should do

Subjective: "you thought what reasonable care should be"

Then we know form Cervelli v. Graves then it could be considered.

• Strict Liability has no opportunity to offer an excuse, whereas DF can offer an excuse in regular negligence per se.

• Strict liability you can't say you didn't know.

That the jury does not have the discretion to say that "we know that the legislature said the speed should be this, but we think they got it wrong"

Can only recover the severally liable person's comparative-responsibility share of the injured person's damages.

May sue for and recover the full amount of recoverable damages from any jointly and severally liable person.

• General "non-economic" damages: tangible, pecuniary.

• Special damages

Survival Statutes

Wrongful Death Statutes

Money awarded to return a PL to their "pre-injury" state.

Allow a PL's estate to sue on their behalf, as if the PL had survived, to assert the PL's rights.

Allow people who have suffered losses as a result of another's tortiously caused death to recover damages.

Only under statutes, not because of common law precedents.

• Harms that have occurred up to the time of the verdict.

• Harms that are predicted (by a preponderance of the evidence) to occur after the verdict.

• Consequences of an injury that are real but cannot be evaluated in terms of typical monetary transactions are called general damages.


• Typically result from any injury.

(1) Pain
(2) Inconvenience
(3) Suffering
(4) Emotional Distress
(5) Mental Anguish
(6) Disability
(7) Disfigurement
(8) Destruction of Parental Relationship.
(9) Injury to Reputation and Humiliation
(10) Loss of Society and Companionship
(11) Loss of Consortium

(1) PL's physical condition before and after injury
(2) Past work record
(3) Amount PL probably would've earned absent the injury
(4) Probability that he would've continued to earn wages over lifetime.
(5) Doesn't matter whether the PL would've chosen to work or not. Assumed they would.

(1) Some jurisdictions allow recklessness alone

(2) Others require some sort of express or implied malice.

• Loss of enjoyment of life.

• Some courts treat hedonic damages as part of pain and suffering and others separate them.

Generally an employer/hirer is not responsible for torts of independent contractors.

Indivisible Damages

Divisible Damages

• The burden shifts to the DFs to prove which DF caused which harm.

• If cannot be proven then the jury will decide damages for each party.

(1) A jury shouldn't be given any instruction for joint and several liability, because a question of fact has nothing to do with damages.

(2) A jury can receive instruction because it will make them more conscientious about assigning liability.

• The PL must show which Df caused which harm or the PL cannot recover anything.

• But-for test is used.

Comparative Contribution

Pro Tanto Contribution

• For duty we look at if the conduct creates a foreseeable risk or harm or a zone of danger.

• For proximate cause we look at the factual details of the case rather than the broader zone of risk.

(1) Traditionally (minority).
(2) In between
(3) Modern

All or nothing rule

• PL can only recover if DF's negligence more than likely caused the outcome.

• If below 50% to begin with then the mistake is not a but for cause.
• If 51% chance and DF's actions caused it to drop to 0% then DF was liable for 100% of damages.
• If 49% chance and DF's actions caused it to drop to 0% then DF is liable for 0%.

A PL must submit their cases to the jury and demonstrate that the DF's negligence more than likely increased the harm to the PL or destroyed possibility of receiving a more favorable outcome.

If there is an intervening force that brings about the injuries, as long as the DF's negligence could not have caused the injuries alone, then the DF is not liable.

• Loss of chance is considered an injury by itself.
• Damages are measured by the percentage of probability by which the DF's negligence decreased the likelihood of achieving some more favorable outcomes.

(1) If they manufactured the product, but sold it for a different purpose they can escape liability.

(PL is suing because of a drug that was marketed for arthritis, but one of the DFs only sold it for anti-nausea).

(2) If they didn't manufacture the product at that time or near that time.

The relevant market determines not only whether the PL has sued enough suppliers, but also how much damages each supplier must pay.

(1) Product and geographic dimensions.

(2) Products that are fungible or interchangeable among brands.

The products must be interchangeable with similar risks
(1) Illness or injury due to a design hazard (2) From a fungible product
(3) Inability to identify the specific manufacturer of the product
(4) Joinder of enough of the manufacturers of the identical products to represent a substantial share of the market.

If two or more tortfeasors were acting pursuant to a common plan or design and the acts of one of them caused the PL's harm, then all DFs will be held jointly liable.

e.g. Drag racing, drinking and driving, and beating someone up.

All of the DFs combined to produce the PL's harm, which is different than alternative liability where only one or some of the DFs caused the harm, but it cannot be determined who.

(1) The court says that the PL cannot rely on doctrine because there is only one DF.
(2) In addition, only one of the potential DFs was negligent by stepping on the gas.
(3) This doctrine requires both to be negligent.

(1) Jury must determine the full amount of damages for a wrongful death or the amount that'd normally be compensated.
(2) Jury then must calculate the chance of survival or cure before the negligence.
(3) Jury then calculates the chance of survival or cure after the malpractice.
(4) Percentages are then subtracted.
(5) Jury must then multiply the full amount by the decreased chance to get the full amount of damages.

If an act would or might probably cause damage, the fact that the damage it caused is not the exact kind of damage one would expect is immaterial

So long as the damage is in fact directly traceable to the negligent act

Some states have required that the DF's conduct be substantial factor and it is also foreseeable.

Some states have used different tests in different types of cases.

The DF that paid more can sue for contribution up to the other DF's fault.

The damage award is divided by the number of DFs.

To establish a claim the PL must show that the employer's supervision or hiring standards were worse than a reasonable employer would've done.

An independent contractor relationship will not shield someone from liability for inherently dangerous activities such as dynamite, transporting logs, crop dusting, etc.

• Creates a new cause of action in favor of the survivor and allows the PL to recover for his own damages.

• Many courts allow pecuniary losses,
• Others take loss of consortium into consideration and offset the award by the cost of living if the decedent hadn't died.

(1) Not recoverable at all
(2) Recoverable under pain and suffering
(3) Recoverable as an element of the permanency of the injury
(4) Recoverable as a separate element of damages

The ratio between compensatory and punitive damages should normally be in the single digits and most of the time below 4 to 1.

If the compensatory damage is very low (\$10) then the ratio to punitive damages can be higher.

(1) The difference in fair market value of the property before and after the traumatic event.
(2) Some courts use a cost of repair approach.
(3) Sometimes these methods can be combined if something can be repaired but it won't be as good as the originalefore.

(1) Degree of reprehensibility of the DF's misconduct
(2) Disparity between the actual or potential harm suffered by the PL and the punitive damages
(3) Difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed by comparable cases.

Trespass that is a wrongful exercise of dominion and control over personal property of another sufficient to deprive the owner or possessor of the substantial value of the property

• PL can only recover if their negligence is less than the DF's.

• If PL is 50% at fault then no recovery.

• PL can only recover if their negligence is less than or equal to the DF's.

• If PL is 50% or less at fault then he can still recover.

Battery
Assault
Trespass to Land
Trespass to Chattels
Fraud
False Imprisonment
Intentional Infliction of Mental Distress
Conversion (Civil Theft)

PLs negligence is compared to all of the DFs combined.

If PL is less at fault then all the DFs combined, then he can still recover.

The PL's negligence is compared to each individual DF.
The PL cannot recover from anyone that is less at fault.

(1) Tangible or intangible property
(2) Actual interference
(3) PL need not be the true owner just prior possessor
(4) Wrongful intent is not required

Consent: Permission freely given or reasonably implied. Did the act exceed the permission or consent?

Privilege: A right to engage in certain behavior arising from relationship or circumstance

(1) Statutes
(2) Custom / Industry
(3) Learned Hand
(4) Reasonable Person
(5) Res Ipsa
(6) Product Defect

(TAT)

Time
Amount
Type of conduct

A PL's ordinary negligence can reduce damages.

Split Authority:
(1) Mendenhall Rule: Can reduce damages for PL's ordinary negligence.

(2) Burke Rule: Cannot reduce damages for PL's ordinary negligence .

No, generally the PL's negligence will be ignored and he or she can fully recover.

Unless the PL was the same level of reckless, willful, or wanton as the DF.

(1) 49% Jurisdiction
(2) 50% Jurisdiction
(3) Wisconsin Rule (minority)
(4) Unit Rule (majority)

A PL's ordinary negligence cannot reduce damages.

The Mendenhall Rule allows a PLs to reduce damages for ordinary negligence.

The Burke Rule doesn't allow a PL to reduce damages for ordinary negligence.

Then the PL's recovery will be barred.

• A natural and continuous "direct train of events" with no superseding or intervening causes.

• Foreseeability of intervention crucial, as foreseeable intervening causes don't count.

(1) Whether PL was within the "Scope of the Foreseeable"
(2) Shock resulted from direct emotional impact as contrasted to learning second hand.
(3) Relation to victim

DF liable when the PL's harm was within "the Scope of Foreseeable" risks and results.

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

"To attribute fault to someone" because of the conduct of another with whom one has control of, or whose acts and conduct they're responsible for.

• PL's negligence no matter how slight bars recovery

• Only works for Negligence.
Not intentional torts, recklessness, or strict liability.

(1) PL knew of the danger
(2) Negligent
(2) Cause in fact of manifested danger

DF has to prove by a Preponderance of Evidence.

The PL played a part in causing the injury, so it's only fair to preclude assigning liability to the DF.

A Proximate Cause inquiry is triggered when there is an unexpected type of harm or unexpected victim.

Permits the PL to recover, notwithstanding his own negligence, by showing DF had the last clear chance to avoid the accident.

(1) Helpless negligent PL / DF discovers
(2) Helpless negligent PL / DF inattentive
(3) Inattentive negligent PL / DF knows

The PL is not required to provide expert medical testimony, and instead, the jury may infer the PL's future pain and suffering.

Then the PL must provide expert witnesses to provide medical testimony.

Objective: injury clear enough for jury to infer with no expert testimony.

Subjective: not reasonably certain enough and thus need expert testimony.

Tangible services that a parent may provide.

Intangible and emotional benefits each family member receives such as nurture, attention, guidance, care, protection, companionship, affection, and love.

(1) Life expectancy,
(2) Age,
(3) Condition of health and strength,
(4) Capacity for labor and earning money through skill, any art, trade,
(5) profession and occupation or business,
(6) Probable living expenses and personal habits as to sobriety and industry.

• Liable to Invitees if you should know of risk.
• Reasonable standard of care
• Reasonable inspections expected
• Thus should know risks.

A public invitee or a business visitor.

• Lower duty than to an invitee.
• Licensees take the premises as they find them.
• Must be aware of dangerous conditions
• Must give warning.
• Refrain from injuring "wilfully or wantonly".
• Social guests are licensee

• Some jurisdictions now apply a negligence standard in all cases brought against landowners.

• Some continue to recognize limitations on landowner liability when suits are brought by trespassers or licensees.

No, people generally do not have a duty to warn or protect others from the criminal acts of a third person.

• Risks arising out of the actor's own conduct, or the condition of his land or chattels.
• Risks arising from forces of nature or animals,
• Third party acts, whether they be innocent, negligent, intentional, or even criminal.
• Risks arising from pure accident
• Risks arising from the PL's own negligence

• Natural causes,
• Pure accident,
• Acts of third parties
• PLs own negligence

• PL is barred from recovery only if the PL is 100% responsible.

• Damages reduced by percentage of fault. (60% at fault means 40% recovery)

• That the employee acted negligently within the scope of employment.

• There is not requirement to show the employer's conduct was negligent, just the employer-employee relationship.

(a) Per Diem
(b) Golden Rule
(c) Objective Injuries
(d) Subjective Injuries

Pain and suffering in terms of per unit, such as days or hours.

(1) Always allowed because it helps guide juries.
(2) Never allowed because it's not evidentiary and can be misleading to juries.
(3) It's the discretion of the trial court.

• Place themselves in the PL's shoes and award damages for how much they would charge to undergo similar pain and suffering.

• Banned almost everywhere because it is not based on the PL, but each jurors' pain and suffering. In addition, it tends to give enormous awards.

• Because it's not based on the PL, but each jurors' pain and suffering.

• In addition, it tends to give enormous awards.

The DF isn't liable where he neither knows nor should know of the unreasonable risk, or of the illness or injury.

• Only duty owed to flagrant trespasser is the duty not to act in an intentional, willful, or wanton manner.

• Duty to exercise reasonable care if the trespasser is imperiled, helpless, unable to protect themselves.

Injuries that can be clearly seen and understood by a jury, such as getting a leg chopped off.

Injuries that are not obvious such as constant headaches.

These injuries typically require expert testimony.

Must warn them b/c you know of them using land and new of danger. (

ex: if your yard has a short-cut foot path and knows of its use by neighbors)

A state statute that provides that persons who rescue or provide emergency services to others in peril—unless they do so recklessly, thus causing further harm—cannot be sued for negligence.

(1) Foreseeability of harm
(2) Entrant's purpose for entering
(3) Time, manner, and reason
(4) Use of premise or expected use
(5) Ease of remedy or repair
(6) Balancing Test on owner and/or community

(1) Land possessor's conduct that creates a risk.
(2) Dangerous Artificial Conditions
(3) Known dangerous natural conditions
(4) Other known risks

Must exercise reasonable car if you know someone is on your land and could be put in a dangerous position

Express: if PL expressly agrees to accept a risk of harm, PL cannot recover (unless the agreement is invalid as contrary to public policy)

Implied: if PL fully understands risks and continues anyway

PL expressly agrees to accept a risk of harm, PL cannot recover (unless the agreement is invalid as contrary to public policy)

(1) it covers the of activity for which we will allow waivers
(2) this particular waiver is enforceable . . .

(a) DF define what type of negligence they were not liable for?
(b) Is it something that was freely negotiated?

(1) Voluntary and knowing
(2) Clear and precise about what liabilities are waived;
(3) Must also be fairly and honestly negotiated in good faith and intent.
(4) Compliant with public policy and statutes.

Yes, under comparative negligence, even when a DF is reckless, the jury can take into account the PL own negligence in determining the damages award

(1) Agreement is suitable for public regulation
(2) Engaged in a service of public importance.
(3) Party holds itself out as willing to perform for anyone.
4) Balance in bargaining power
(5) Party with more bargaining power only offers boilerplate agreement, with no provision for liability insurance.
(6) Must be under the control of the services' furnisher, subject to carelessness on the furnisher, its employees or agents.

Negligent DF may be liable to one who is injured in an effort to rescue another put at risk by DF's negligence.

(Ex: hole in bridge, liable to child who falls through as well as to the parent who plunges to its aid)

The Landlord owes a reasonable level of care.

(1) Had actual or constructive knowledge of a dangerous condition;
(2) The condition posed unreasonable ;
(3) Didn't exercise reasonable care to reduce or eliminate risk;
and
(4) Failed to use such care was the proximate cause.

(1) Dangerous condition pose an unreasonable risk of harm;
(2) Owner knew of condition;
(3) Licensee didn't know of condition;
(4) Owner failed to exercise ordinary care to protect the licensee from danger;
and
(5) Owner's failure was proximate cause of licensee's injuries.

Public invitee or a Business visitor

One of two types of Invitees who enters the property for a business purpose.

One of two types of Invitees that entersemains on land as a member of the public for a purpose held open to the public. (ex. fair

(1) Swimming pools.
(2) Trampolines.
(3) Tree houses.
(4) Fountains.
(5) Machinery (lawnmowers, gasoline pumps, etc.)
(6) Wells.
(7) Tunnels.
(8) Dangerous animals.
(9) Paths and stairs
(10) Landscaping and broken safety gates
(11) Scaffolding, ladders and rooftops

(1) It's known that the local children climb onto roofs
(2) Your roof is easily accessible
(3) You've taken no steps to keep the children away

(1) Ponds and lakes
(2) Cliffs and hills
(3) Small things that can be choking hazards (acorns, sticks, etc.)
(4) Carbon monoxide poisoning in a house or shed
(5) Smoke inhalation (unless you do not have a working smoke alarm)

(1) Falling from a great height
(2) Open pits
(3) Touching fire
(4) Sharp objects
(5) Poison
(6) Hot water
(7) Approaching a wild animal on your land
(8) Approaching an angry fenced or leashed animal (i.e., a bucking horse)

(1) Lock it up
(1) Fence it up
(2) Keep it in a shed
(3) Post your property "no trespassing" and warn them to stay away (i.e., saying "my horses are not friendly")
(4) Warn their parents

Common carriers include, a shipowner, railroad, airline, taxi service, etc.

Private carriers is a person or a commercial enterprise that only agrees in particular circumstances to transport passengers or goods.

Shipowner
Railroad
Airline
Taxi

An owner has a duty to reasonably protect children from injury when the premises are likely to attract children because of an inability to appreciate the risk.

(1) Owner knows or should know of dangerous condition.
(2) Failure to use Reasonable Care to eliminate danger or prevent access.
(3) Know or should know kids in area.
(4) Likely to cause injury because of a child's inability to appreciate the risk.
(5) Failed to protect or prevent trespassing child.
(6) Balancing test

Artificial Conditions that are highly dangerous and attractive enough to children to reasonably expect them to trespass.

(1) The child was attracted onto the land by an artificial, rather than natural, condition on the landlord
(2) The possessor of the land failed to use reasonable care to eliminate or prevent access to danger.

(a) R2: Structures
(b) Third Restatement - Those that the possessor has personally constructed or had constructed by an agent and those that the possessor inherited from a former possessor
(c) Generally a landowner is not liable for natural conditions because children are likely to appreciate inherent dangers and it would be expensive to alter them.

PL fully understands risks and voluntarily continues anyway.

Common law: Fencing In, burden on owner of an animal to keep it contained.
• Negated by barbed wire

• Western Common law for Maintaining Custody of Animals: Fencing Out, if you don't want grazing animals on your land, build a fence around your property
• Negated by barbed wire

(1) Undisclosed dangerous conditions known to the lessor and unknown to the lessee
(2) Conditions dangerous to persons outside of the premises
(3) Premises leased for admission to the public
(4) Parts of land retained in lessor's control which lessee is entitled to use
(4) Negligence by lessor in making repair
(5) Where lessor contracts for repair

• To the tenant or others entering the land for defective conditions existing at the time of the lease

• This is because the tenant is said to be the "owner" of the property for the time of the lease—the tenant is in a better position to negate the dangers and harm

Classic example is offices inside a building leased to individual persons, where hallways and stairwells are common areas still retained by lessor.

Where the lessor contracts with the tenant to fix the repairs;
The tenant is responsible for his repairs.

(1) All Persons Who Are Not Trespassers: are owed a duty of reasonable care.

(2) Trespassers: are must only refrain from committing willful injury against the trespasser

(1) Licensee
(2) Invitee
(3) Trespasser

• Court concludes or a statute states that the DF has no duty or didn't breach a duty to the Pl. [the ski lodge case]

• Or, this risk was an inherent risk of the activity the Pl. chose to participate in

(1) Open and Obvious Risks
(2) The risks are beneficial
(3) Can't reduce risks without destroying activity's value.
(4) PL should've known based on a RP
(5) PL voluntarily participated.

Requires a subjective test of where the Pl. knew or created the risk

Contributory and Comparative Negligence

They have "assumed the risk" and cannot bring a claim for any harm encountered because of it.

Yes, in a comparative fault jurisdiction, an injured party has a duty to exercise reasonable care to mitigate damages

If the PL had done some action, then the damages would've been less, and thus the award should be reduced to reflect that.

In some Jxs, failure to mitigate can be a bar to recovery.

In others mitigation evidence merely reduces the award.

To prove loss-of-chance a PL must prove that the physician's negligence caused the injury of diminished likelihood of a more favorable medical outcome.

• Some courts allow a DF to show that its actions weren't a substantial factor in causing the harm.

• Other courts require a DF show that its actions weren't sufficient.

(1) Injury Type is associated with negligence.
(2) DF had exclusive control of cause of injury.
(3) The PL made no causal contribution.
(4) The DFs access to info. about the event was superior to the PL's

Represents a consensus of opinion, but it is not introduced as substantive law.

Most often provides a proper standard of care.

(1) Compliance was impossible
(2) There was an emergency that justified violating the statute.
(3) Anything over which the DF had no control over.
(4) An emergency not of the driver's own making.
(5) An excuse specifically provided by statute.
(6) Statute violation by the PL: could be considered contributory or to be considered in a comparative jurisdiction.
(7) In some jurisdictions a lack of notice or knowledge.

No, most courts do not view driving without a license as evidence of negligence or negligence per se.

But, when compliance with a licensing statute would prevent the occurrence of dangerous conduct, courts are likely to treat the violation as relevant.

Maybe, custom should also be adapting to new technology, but custom is a weighted consideration.

Industry can be negligent or behind on technology.

(1) The type of harm is one that is usually associated with negligence.

(2) The DF had control over the instrumentality.

If there is evidence of what happened or evidence of negligence, then res ipsa cannot be used.

Must perform a breach of duty test.

• Superseding Cause: conduct by an actor other than DF that may be treated as a superseding cause which insulates DF from liability.

• No Duty Owed: If no duty is owed.

50 %

Act as a reasonable person would under the same conditions.

• Whether the concurrence be intentional, actual, or constructive, each wrongdoer adopts the conduct of his co-actor,

• Because it's impossible to apportion the damage or to say that either perpetrated any distinct injury that can be separated from the whole.

Yes.

(1) Breached a duty owed to the PL;

(2) Committed a tortious act;

(3) At least one DF's conduct was a proximate cause.

A PL must first prove that "it has identified enough manufacturers or suppliers so that a substantial share of the relevant market is accounted for.

Damages should be limited to the portion of the PL's survival prospects that the PL's negligence destroyed.

(1) Determine the whole amount of damages.
(2) Determine the chance of survival before and after negligence.
(3) Subtract the two, then multiply by the damages amount.

Some courts do allow nominal damages to serve as a peg for punitive damages.

Awarded when the DF is malicious, oppressive, evil, wicked, wanton, or shows a reckless indifference to the safety of others.

State Common Law

UCC applies if a transaction is a sale or lease of goods

If there is no danger of prescription, no proof of substantial loss or injury, or willful wrongdoing.

Judgment should be rendered for the DF.

Objectively verifiable monetary losses including:

Medical expenses,
Damaged property,
Transportation charges
Loss of earnings,
Loss of business
Loss of employment opportunities

The intentional, unprivileged, unlawful and either harmful or offensive contact with the person of another.

A touching of the mind

Legal harm through cognitive harm, disturbing of mental state

(1) Muscular reaction is always an act unless it is a purely reflexive reaction in which the mind and will have no share
(2) Act must be an external manifestation of the actor's will
(3) An insane person may have an intent to invade the interest of another, even though his reasons and motives for forming that intention may be entirely irrational

(1) Denotes that the actor desires to cause consequences of his act,
(2) or that he believes with substantial certainty that the consequences are substantially certain to result from it.

Disagreeable or nauseating or painful because of outrage to tastes and sensibilities or affronting insultingness

Intent towards one person can be transferred to another;

Intent of assault can be transferred to intent of battery;

1. Consent
2. Self-defense
3. Defense of Others
4. Defense of Property

False, deadly force is never allowed to be used in defense of land or property

When you are in your own home.

(1) Character and reputation of attacker
(2) Belligerence of attacker
(3) Large difference in size and strength
(4) Overt act by the attacker
(5) Threats of serious bodily harm
(6) Impossibility of a peaceful retreat

If the attacking party is not armed, but only commits battery with his fists or some manner not inherently dangerous to life.

It's only necessary that the actor have grounds which would lead a reasonable man to believe that the employment of a dangerous weapon is necessary,.

Only if the DF had a well-grounded belief that an assault was about to be committed by another on the family member

The necessity for the defense must be immediate, and attacks made in the past, or threats for the future, will not justify the privilege

If you can, you are under a duty to retreat from a possible battery that could result in death or serious bodily harm.

Mere words combined with acts or circumstances that put the actor in reasonable apprehension of an imminent harmful or offensive contact.

Puts someone in a reasonable apprehension (expectation) of imminent (almost at once) danger

The apprehension must be one which would normally be aroused in the mind of a reasonable person

The danger is not imminent.

(1) Intent to make contact
(2) Offensiveness of contact
(3) Bodily harm or impairment

Intent to cause actual contact and that the contact will result in offense or harm

Intent only to cause the actual contact