Ch 12 Flashcards
1
Q
Common Carrier S/C
A
HISTORICALLY CC duty stops just short of ENSURING safety of passengers; heightest standard of care: foreseeing and guarding against danger
CURRENT: RP S/C
2
Q
what is a common carrier?
A
one in the business who provides transportation to those who ask; ex: bus companies, airlines, cruise liners
3
Q
WHY a higher standard for CC?
A
human life is imperiled by the hazardous character of the business; passengers surrender their freedom of movement and actions when passively carried or transported
4
Q
Elements of “common carrier” classification
A
- the carrier must provide transportation services to the general public
- the primary purpose of such businesses must be “to transport people or goods”
5
Q
Ch. 12: In what two states is Uber considered to be a common carrier?
A
Massachusettes and California
6
Q
Common carriers owe a heightened duty of care ONLY TO __________
A
passengers; one short of engaging in the act of boarding the vehicle
7
Q
rejection of carrier “heightened” standard
A
many courts have rejected the traditional higher standard of care in favor of the general negligence standard of reasonable care under the circumstances
8
Q
“willful and wanton standard” - used for licensee
A
negligent misconduct + bad state of mind (my) pg. 473
9
Q
most common problems with the guest statute:
A
California guest statute was ruled unconstitutional for discriminating between guest and non-guest w/o reason to do so
10
Q
CATHOLIC DIOCESE OF EL PASO V. PORTER (Tex. 2021)
A
Issue: whether
volunteers working in a third-party vendor’s booth at a festival were invitees of the landowner or only licensees
Rule: Invitee definition and mutual benefit rule/ One who is an invitee cannot be a licensee at the same time…” Since the volunteers “entered the [C]hurch’s premises both with the knowledge and for the benefit of the [Church] at the [Church’s] implied invitation”/ invitee status may be restricted to one part of the premises
Held: NO BREACH - absent unusual circumstances not present in this case, a person on the property to perform volunteer work for a third party benefits the third party rather than the property owner and therefore is not the owner’s invitee
11
Q
Re 3d 52: Land possessor Duty to Flagrant Trespassers
A
LP must refrain from intentional, willful, or wanton harm to a flagrant trespasser
12
Q
Owner/Occupier Duty to Licensee: 2d Sect. 341
A
1) use ordinary care either to
2a) warn a licensee of OR
2b) to make reasonably safe, a dangerous condition of which the owner is aware and the licensee is not
13
Q
Invitee defined:
A
a FORESEEABLE plaintiff;
1) one who enters the property of another
2) held open to the public generally with
3) the owner’s knowledge
14
Q
Invitee Standard of Care:
A
reasonable person
15
Q
Licensee defined:
A
1) An entrant
2) on the property of another
3) with owner’s consent;
4) NO financial benefit
EXCLUDES: the trespasser and public invitee
16
Q
First, we must determine the ______ of the entrant. Then we can determine what ________ __ _____ is owed to said entrant.
A
status, standard of care
17
Q
Mutual Benefit Rule
A
1) the invitee and owner/occupier/possessor of the land
2) share a business or economic interest
18
Q
Minor Rule for licensees in Kentucky:
A
social guests are licensees because they are
1. not on public land and
2. not present for the benefit of the landowner/occupier
19
Q
Willful or wanton-defined
A
where the defendant is
1) aware that
2) their conduct creates a high degree of risk, OR
3) a risk of very serious harm, but
4) proceeds without concern for the safety of others
20
Q
What two things must a plaintiff assert to prove willful or wanton misconduct?
A
- a substantial probability of serious physical harm
- the defendant acted with a culpable mental state
21
Q
Rule for potential customers (Land O/O):
A
customer’s are usually invitees;
1) a prospective customer’s presence represents
2) a pecuniary benefit to the defendant
22
Q
For premises liability rules to apply a _________ condition must exist on the ___________ ______.
A
dangerous; defendant’s land
23
Q
Landowners/occupiers may owe a duty of reasonable care to:
A
1) non-entrants who
2) are put at risk by
3) hazards created by
4) affirmative activity on the LO land
24
Q
Third Restatement LO Liability Standard § 52:
A
1) a land possessor
2) owes a “flagrant trespasser”
3) only the duty NOT to act in an “intentional, willful or wanton manner”
4) MAY USE reasonable force to expel a trespasser
25
Bennett v. Stanley (Ohio 2001) [Child Trespassers]
Facts: No ladder, emptied and slippery, and negligently kept pool/pond
Issue: whether there is a foreseeable, “unreasonable risk of death or serious bodily harm to children for which a landowner is liable
Rule: Attractive nuisance doctrine
Analysis: Children of tender years, and youthful persons generally, are entitled to a degree of care proportioned to their inability to foresee and avoid the perils that they may encounter
Held: reversed and remanded
26
Typically children cannot FORESEE _______.
risks
27
What is the CL rule of 7's?
1. children under 7 cannot foresee risks
2. children 7-14 ...
28
Attractive nuisance doctrine (artificial condition):
1) IF an owner
2) knows a condition exists where
3) children are likely to trespass OR IF
4) the condition risks death or harm to children OR IF
5) because of their youth, children do not understand the risk of intermeddling with the DC OR IF
6) the burden of preventing the DC is < risk to children OR IF
7) the landowner fails to exercise RC to eliminate the risk
THEN LO subject to liability
29
Artificial condition
a man-made condition; NOT naturally occurring
30
Dangerous instrumentality doctrine:
1) IF an owner or occupier
2) actively and negligently
3) operates hazardous machinery or other apparatus AND IF
4) the dangerousness of the instrument is not readily apparent to children
THEN the owner or occupier of a premises has a higher duty of care to a child trespasser
31
The turntable doctrine:
1. if a child entrant
2. suffered injury
3. on unguarded turntables
THEN the RR COULD be held liable
32
Foreseeability and the Attractive Nus. Doctrine
1. on the PLACE where the conditions exist,
2. landowner must know or have reason to know that
3. children (who cannot foresee an appreciate dangers and avoid them) are likely to trespass upon the part of the property
4. that contains the dangerous condition
33
"Tender age" means
grade school age or younger
34
Rowland v. Christian [Cal. 1968] (Modified CL Duties owed to Entrants)
Facts: A kid who was guest of Christian broke his hand and severed tendons on a bathroom faucet that Christian had known to be broken for which she did not warn the child
Issue: Whether to abolish the three categories of entrants and substitute the general duty of care.
Rule: The burden to the defendant and consequences to the community of imposing a duty to exercise (RP S/C) care with resulting liability for breach may often be greater with respect to trespassers, but it by no means follows that this is true in every case.
Held: Reversed
35
What major factors did the Rowland court consider in determining landowner liability immunity?
1. closeness of the connection between the defendant's conduct and the plaintiff's injury
2. moral blame attached to the D conduct
3. policy of preventing future harm
4. the prevalence and availability of insurance
36
Rule for Negligent Entrustment:
1. IF a defendant supplied
2. a potentially dangerous instrumentality AND IF
3. it was supplied to one whom the Def
4. knows or should know is not fit to handle it
THEN they may be found liable
37
Does a business-patron relationship, on its own, establish a duty to protect?
No - requires HIGH degree of foreseeability
38
Landlord-Tenant Duty Rule:
1. IF the landlord has provided heightened security AND IF
2. the parties have an established contractual relationship
THEN a court may find the LL to owe such a duty
39
"Totality of Circumstances" standard of foreseeability:
Accounts for nature, condition, and location of the land + any other relevant factual circumstances bearing on foreseeability of the crim conduct;
court is more likely to examine "dissimilar criminal conduct" as possible notice of a major crime
40
Business Duty Balancing Test:
the foreseeability of third-party criminal conduct v. the burden on the defendant for preventing harm; can usurp the role of a jury; DUTY TO PROVIDE SECURITY
41
Public Duty Doctrine:
government actors performing IMPROPERLY are not usually liable to individuals harmed by the misperformance; any duty owed is limited to the "public @ large"
42
In negligence actions against the government, the element of ____ is used to _____ the scope of governmental liability
DUTY and LIMIT
43
No-duty rule for law enforcement:
police do not generally have a duty to protect individual citizens
44
Foreseeability is a measure of _________.
LIABILITY
45
The "open and obvious doctrine" states:
1. land possessors cannot be held liable to
2. invitees who are
3. injured by
4. open and obvious dangers; UNLESS
a. both the condition and the
b. risk are apparent to and would be recognized by
c. a reasonable man,
d. in the position of the visitor,
e. exercising ordinary perception, intelligence, and judgment
46
Rule for Contributory Negligence:
any negligence on the part of the plaintiff completely bars recovery
47
LO Rule for Comparative Fault:
IF LO duty is not excused by a known or obvious danger, THEN the injured invitee might recover, in a diminished amount, [by virtue of his own comparative fault]
48
General rule for Comparative Fault and the O&O doctrine, which some courts still use:
IF an invitee's encounter with a known or obvious danger excused the landowner's duty, THEN there would be no negligence to compare. Therefore, no recovery for the plaintiff.
49
Re 2d Torts Sect. 343A(1)
IF physical harm befalls a LO invitee caused to them by any activity or condition on the land whose danger is KNOWN or OBVIOUS to them THEN a possessor of land is not liable UNLESS the obvious harm should have been anticipated by the landowner
50
What 3 considerations are noted in Kentucky RMC for labeling a risk open and obvious?
1. whether the danger was known and appreciated by the plaintiff
2. whether the risk was obvi to someone exercising reasonable perception, intell., and judgment
3. whether there was some other reason for the DEF to foresee the harm
51
What two factors determine LO duties?
1. land owner's superior knowledge
2. LO's unique position of being the only one that can fix the dangers
52
Re 3d Torts § 51 cmt. k: LP Duty under Open and Obvious Doctrine
Despite the opportunity of entrants to avoid an open and obvious risk, in some circumstances a residual risk will remain. Land possessors have a duty of reasonable care with regard to those residual risks
53
open and obvious doctrine goes to the _____ element
DUTY; where it is a question for BREACH, it is a question of fact
54
Obvious is:
objective: both the condition and the risk are apparent to and would be recognized by a reasonable person, in the best position to exercise ordinary perception, intelligence and judgment
55
The defendant (hospital) could foresee an EMT rushing into a hospital to save the patient's life. Goes to the _______ element.
Breach
56
status analyses can be quickly narrowed down by identifying _______ or lack thereof
consent
57
what is the purpose of recreational-use statutes?
INCENTIVE; to allow landowners to retain the landowners' special immunities as to any non-paying recreational user
58
What do recreational-use statutes do to the "standard of care"?
LOWER it
59
Michigan Recreational-use Statute §324.73301
IF a landowner is grossly negligent OR IF the owner, tenant, or lessee acts with willful or wanton misconduct ONLY THEN is the landowner liable - applies to a person who is on the land, WITH OR W/OUT permission, of another without paying; also applies to invitees on a farm to pick produce
60
California Recreational-use Statute
An owner of estate in real property owes NO duty of care to keep the premises safe for entry or use by others for any recreational purpose NOR warn of hazardous conditions
61
recreational purpose:
includes viewing or enjoying natural or scientific sights, parachuting, spelunking, hunting, camping, fishing, or hiking *
62
Theory of RU Statutes
to limit landowner liability to encourage them to make land available for recreation "in a world becoming increasingly crowded"
63
Most courts have refused to extend RU protections to governmental entities:
because a public entity needs no incentive to open its lands for recreational use purposes
64
General rule of Landlord nonliability
a landlord is not liable for injuries to his tenants and their visitors resulting from defects in the premise; lease is a conveyance of property
65
Up until Pagelsdorf, tenants incurred a "duty" from their lessor and were considered the _________ ___ ____ ____________.
owners of the property
66
What is a known or reported defect?
a patent defect
67
What is an unknown or invisible defect?
a latent defect
68
The FireFighters Rule:
IF you're a firefighter AND IF you are injured in their line of duty THEN they cannot recover from electrician or candle burnt that caused the fire UNLESS the fire was set intentionally
69
Firefighter standard is
reasonable care standard
70
Rule from WALSKI V. TIESENGA
-TC directed a verdict for Docs and appellate aff.
-"locate the nerve and move it; make a wide cut" - S/C est by expert testimony of the plaintiff + Dr's want of skill or care caused injury to PL ("custom")
-AFFirmed
71
What is the medical standard of care?
CUSTOM; what the average qualified physician would do in a particular situation
72
Elements of medical instruction:
the physician must possess
1) the learning, skill, and ability of other physicians,
2) must exercise reasonable care in the use of this knowledge and skill AND 3) must use his or her best judgment in the care of the patient
73
When is expert testimony required?
1) when the issue presented is beyond the comprehension of a lay jury
2) the testimony will assist the jury in deciding the issue
74
A doctor owes their patient:
the level of care that a reasonably prudent, careful, and skillful practitioner of the physician’s discipline would have provided under the same or similar circumstances and within the same community
75
TJ Hooper - cargo barges rules
Couldn't do what was customary but. could do what was reasonable
76
Modified locality Rule
Whether that degree of care, skill, and proficiency which is commonly exercised by ordinarily careful, skillful, and prudent [physicians], at the time of the operation and in similar localities
77
Duty to Refer:
IF the standard of care requires a physician/patient relationship different than what the present physician can provide based on their knowledge THEN they have a duty to refer
78
Fed Rule of Ev. 702 -Daubert
requires federal trial courts to review expert testimony for reliability
79
standard of care for nurses:
the level of skill, knowledge, and care that a reasonably careful nurse would use in similar circumstances
80
standard of care for hospitals:
hospitals owe a duty of reasonable care under national standards fixed by the Joint Commission on Accreditation of Hospitals
81
Good samaritan statutes come into play in the case of an __________.
emergency
82
Rule for good samaritan statutes:
IF one does not have a doc-patient relationship AND IF a defendant aided in an emergency THEN they are immune from liability UNLESS doc had pre-existing duty to provide care
83
Rule for "Harm" in negligence:
Damages/harm must be any physical impairment of the body or real or tangible property
84
Three categories for the good samaritan statutes:
1) those that expressly exclude hospital care
2) those that expressly include hospital care
3) like New Jersey’s, that contains no explicit provision one way or the other
85
OCGA § 51–1–29.5 (Georgia Good Samaritan)
immunize physicians acting in an emergency UNLESS plaintiff can prove negligence by clear and convincing evidence
86
When does a private land owner owe a duty to a trespasser?
when the trespasser is discovered; because then they're foreseeable
87
Duty refers to:
an obligation enforceable by suit p.g. 345
88
What is the purpose of punitive damages?
To punish the defendant party
89
Physician Duty of (Informed Consent)
to disclose in a reasonable manner all significant medical information that the physician possesses or reasonably should possess that is material to an intelligent decision by the patient whether to undergo a proposed procedure
90
A medical battery exists where:
a plaintiff has not consented at ALL to that procedure
91
HARNISH V. CHILDREN’S HOSPITAL MEDICAL CENTER Rule:
Medical tribunal: held that the plaintiff’s proof was inadequate and on this basis, the trial judge dismissed the action- based on PROFESSIONAL standard
Court declines this and adopts patient standard based on MATERIALITY
92
Patient Standard and Materiality:
1) the significance a reasonable person on the material info.,
2) in what the physician knows or should know is his patient’s position, 3) would attach to the disclosed risk or risks
4) in deciding whether to submit or not to submit to surgery or treatment
93
Materiality is more OBJECTIVE b/c
the extent to which DR must share information with his patient depends upon
1) what information he should reasonably recognize is material to the plaintiff’s decision
94
Causation is different in an informed consent context where Plaintiff must SHOW:
1) the alleged undisclosed risk materialized
2) that had the proper information been provided neither he nor a reasonable person in similar circumstances would have undergone the procedure
95
Causation (b) objective test:
that had the proper information been provided neither he nor a reasonable person in similar circumstances would have undergone the procedure
96
Causation (a) subjective test:
1) unrevelaed risk must
2) materialize AND
3) the plaintiff would not have undergone treatment had been aware of that risk
97
In the absence of statutory directive, most tribunals have taken the ___________ view.
Patient Standard (PL + objective RP)
98
Professional Standard argued in Wooley:
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
99
Areto v. Avedon Rule:
the doctor had no duty to disclose statistical life expectancy information because it was not information about the risks of the procedure
100
CL (obj.) Exigency Exception for Informed Consent:
apply when:
(1) a medical emergency exists;
(2) treatment is required to protect the patient’s health;
(3) it is impossible or impractical to obtain consent from either the patient or someone authorized to consent for the patient; and
(4) there is no reason to believe that the patient would decline the treatment, given the opportunity to consent
101
Truman v. Thomas & Informed Consent:
IF a patient requires a routine, risk-free test or treatment, THEN the doctor has the duty of disclosing of all material risks of which a reasonable person would want to be informed
102
Res Ipsa Loquitur and YBARRA V. SPANGARD:
Appendectomy case, patient lost consciousness when he was laid on a hard surface. Developed pain in his arm and paralysis in his shoulder muscles. TC entered judgment on behalf of DEF. He did not know what happened!
RULE: must prove inference of Res Ipsa Lo
103
EMTALA: mandatory medical treatment
IF someone goes to a hospital for emergency treatment THEN the hospital MUST provide stabilizing med treatment, inform patient of risks of transfer, and satisfy balancing of risk of transfer to benefits of transfer
104
Limited parental immunity rule from Neel v. Sewell:
Permits suits against parents by their children EXCEPT where parents exercised
1) reasonable authority
2) reasonable parental discretion as to necessaries
105
What is the "reasonable parent" standard of care? (rarely used)
what a reasonable and prudent parent would have done in S/S circumstances
106
Parent standard owed in negligent supervision cases:
parents have the right to control the independence and supervision of their children
107
Analogous Private Person Standard:
1) COA against gov't defendant must be comparable to a COA against a private citizen under the state law;
If a private person would be liable, the federal gov't could too be liable
108
28 USC §1346(b)
Federal Torts Claims Act
109
28 USC §1346(b)(1) of the FTCA
the federal government waives immunity only where the government employee’s wrongful act is “within the scope of his office or employment
110
Elements for a Discretionary Function Exception:
1. ID the conduct that caused the harm
2. did Congress intend to shelter this function from tort liability?
2a. Is the conduct ITSELF discretionary? 2b. If yes, is it susceptible to policy-related judgments?
111
What is discretionary?
where an actor chose to engage in their conduct
112
Issue ID'd under the third prong (of Disc. Function) Public Policy Analysis:
whether the exercise or non-exercise of discretion was “actually or potentially” affected by policy-related judgments
113
A judgment is policy-related IF
the conduct that Congress would want to be protected by the discretionary function of the FTCA
114
Ministerial Acts:
not generally immunized; govt conduct that implements or executes policy decisions; suitable for tort liability when they are negligently performed
115
How does proprietary function differ from govt'l function?
proprietary functions are not govt functions, they are private corporate activities engaged in by local govt
116
What is susceptibility as laid out by the Hajdusek court?
whether the decision in question was of the type that policy analysis could inform; focus on the nature of the actions
117
Olson inquiry Rule into FTCA:
1. COA must be comparable to a cause of action against a private citizen that is recognized in the state in which the tort occurred
2. Where there IS private analog, if a private person would not be liable under state law for engaging in the analogous activity, then the federal government is not liable, either.
118
Purpose of discretionary immunity:
1) to prevent judicial ‘second-guessing’ of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort
2) keeping the judiciary out of the business of reviewing policy judgments by government employees
119
Rule adopted in Hajdusek:
reviewing a dismissal for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1), courts construe the complaint liberally and treat all well-pleaded facts as true, according to the plaintiff the benefit of all reasonable inferences
120
Foster Logging v. United States (2020) [discretionary immunity]
courts should look at the nature of a challenged discretionary immunity decision rather than in a fact-based inquiry
121
No-conscious decision:
govt needs only to point to some support in the record that the decisions they made could have been subjected to a policy analysis
122
Courts will examine the nature of the conduct of the actor rather than the _______.
status
123
Mandatory regulations and gov't immunity:
gov't is not immune in matters concerning mandatory regulatory commands
124
The Government Contractor Defense:
when authority to carry out the project was "**validly conferred**” by the government, “there is *no liability on the part of the contractor for executing its will*"
125
The Feres Doctine + Purcell
Navy suicide case; the govt is not liable under the FTCA for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service
126
What is "incident to service?"
tangentially related to one's service; 1. “government negligence occurs
2. when the plaintiff has no active connection with the military,” UNLESS the “courts have usually interpreted ‘incident to service' quite broadly
127
3 rationales for supporting the Feres doctrine:
(1) the need to protect the distinctively federal relationship between the government and the armed forces, which could be adversely affected by applying differing tort laws;
(2) the existence of statutory compensatory schemes; and
(3) the need to avoid interference with military discipline and effectiveness
128
"incident to service" rule
Feres only covers those injuries sustained by servicemembers "incident to service"
129
Rule for Municipal Immunity: De Long (NY)
public entities are not liable for “negligence in the performance of a governmental function, including police and fire protection, UNLESS a special relationship existed between the municipality and the injured party"
130
The Elements of the "Special Relationship" Exception under municipal immunity
(1) **promises or actions** = assumption of an affirmative duty to act on the plaintiff’s behalf;
(2) **knowledge by the municipality’s agents** “that inaction could lead to harm";
(3) some **direct contact** between the municipality’s agents and the injured party; and
(4) that **party’s justifiable reliance** on the municipality’s affirmative undertaking
131
Special relationships in nonfeasance under Re 3d 40:
(1) a common carrier with its passengers;
(2) an innkeeper with its guests;
(3) a business or possessor of land that holds its land open to the public with those lawfully on the land;
(4) an employer with its employees, who while at work are either in imminent danger or are injured or ill and thereby rendered helpless;
(5) a school with its students;
(6) a landlord with its tenants; and
(7) a custodian with those in custody, IF the **custodian** “has **a superior ability to protect**"
132
Discretionary acts get immunity sometimes but ___________ acts do not in some states.
ministerial OR operational; dependant on jurisdiction
133
Rule for the Public Duty Doctrine:
public entities and officers are NOT liable to individuals for failure to carry out a duty, even a statutory duty, owed to the public at large rather than to particular individuals or groups
134
misfeasance:
active misconduct working positive injury to others
135
nonfeasance:
passive inaction; failure to take positive steps to benefit others OR to protect them from harm NOT created by any wrongful act by a defendant
136
Plaintiff's ability to recover damages turns on:
the court's characterization of the conduct: misfeasance = recovery!
137
One may have a duty to protect/rescue under 5 conditions: (plus 1 loose one)
1. creating the peril/prior conduct
2. special relationships
3. undertaking to act + reliance
4. contractual
5. statute
6.*** public policy
138
Foreseeability and take-home exposure:
Boynton case: who could've best prevented the harm? who elected to use asbestos and not an alt? special relationship? public policy?
139
pure bad samaritan statutes:
a person who knows that another is exposed to grave physical harm shall, to the extent that the same can be rendered without danger or peril to himself or without interference with important duties owed to others, give reasonable assistance to the exposed person UNLESS others are providing that assistance or care
140
Public Policy/Relational Exception under Nonfeasance - Podias v. Mairs
1. Were the plaintiff's interests entitled to legal protection?
2. Was harm foreseeable?
3. Was it easy to avoid?
4. What was the NEXUS? (connection to the events)
141
source-of-duty rule (Neg. + Contract)
In order to recover in tort, the duty tortiously or negligently breached must be a common law duty, not one existing between the parties solely by virtue of the contract
142
economic loss doctrine
economic loss is no harm to a person or property; plaintiff must prove:
1. new damage was caused outside of contract OR
2. worsening of a preexisting damage AND
2b. Complete proof of degree of aggravation
143
Justice Cardozo on misfeasance:
[i]f conduct has gone forward to such a state that inaction would commonly result, not negatively merely in withholding a benefit, but positively or actively in working an injury, there exists a relation out of which arises a duty to go forward
144
Disengaged bystander
those society recognizes as falling outside of the scope of any responsibility, and have no material role in creating risk of harm
145
Under our Special Relationship exception - we move to the _________________ of criminal conduct by 3rd parties to Business Invitee.
foreseeability
146
Specific Harm F'ty Rule:
no duty is owed UNLESS the def/LO was aware of a specific imminent threat if harm to the PL
147
Prior Similar Incidents F'ty Rule:
a past history of criminal conduct to put LO on notice of a future risk of harm
148
The totality of Circumstances F'ty Rule (GA test):
test accounts for the nature, condition, and location of land + any other relevant factual circumstances bearing on foreseeability;
does not preclude liability
149
F'ty Balancing Test:
F'ty of harm to plaintiff + balancing burden on a LO to protect the plaintiff
150
Re 3d Sect 27 Cause Test
IF the tortious conduct of tortfeasor A fails the but-for test ONLY bc there is another set of conduct also sufficient to cause the harm, then A's conduct is still a FACTUAL CAUSE of that harm
151
Substantial Factor Causation Test
w/ multiple causes; IF the defendant conduct played a substantial part in causing plaintiff's injury, THEN it passes substantial factor test for actual cause
152
Alternative-Cause Summers v. Tice Test
all tortfeasors are negligent, but only one of them has caused the plaintiff’s harm
153
Factual Cause speaks to:
foreseeability; proximate cause is primarily a policy judgment about the scope of LIABILITY; FC does not entail policy decisions
154
Modified comparative fault test:
IF plaintiff's negligence is > or = to the defendant's negligence, THEN the plaintiff is barred from recovering
155
What is the ultimate goal of Tort Law?
To achieve appropriate deterrence and to adequately compensate victims
156
Informed Consent: Battery
When a Dr 1) performs a substantially different procedure than what Dr/patient agreed or 2) Dr overextends the scope of consent
157
What are the benefits to the PL for bringing a medical battery under IC?
1. Shorter SOL
2. More likely PL can recover punitive damages
3. Renders med mal insurance inapplicable
4. PL may recover w/out proof of actual harm
158
Zone of Danger Test
Foreseeability Test: Whether a plaintiff or group of plaintiffs would foreseeably suffer emotional harm
159
Re. 3d Sect. 47
1. an actor whose negligent conduct
2. placed the PL in danger of immediate bodily harm &
3. the emotional harm must result from the near-miss
160
Survival claim:
a claim the decedent could have brought while alive (no emotional recovery but maybe consortium)
161
Wrongful death claim:
a claim that may be brought by the decedent's survivors (does include emotional pain and suffering)
162
The Privity Rule (CL Strict Liability and Neg. in Products Liability)
Generally: a manufacturer who did not sell a product directly to the injured plaintiff could not be sued for product-related injury because the duty owed to the plaintiff concluded after the exchange of consideration (no RP S/C owed)
163
McPherson v. Buick Motor - modification of the privity rule to negligence
IF the nature of the thing is reasonably certain to place life nd limb in peril AND IF the thing was negligently made THEN danger is foreseeable by the maker AND liability will follow
164
Four Elements to the General Rule of Strict Product Liability:
1. the seller was a commercial seller/manufacturer
2. the product was defective
3. the defect was the factual and proximate cause of harm
4. the product was defective when it left the sellers hands
165
General definition for "defective"
a product is essentially defective when it is unreasonably dangerous to the consumer
166
Purpose of CL Strict Liability w/ products:
to insure that the costs of injuries resulting from defective products are borne by the manufacturers that put such products on the market rather than by the injured persons who are powerless to protect themselves
167
Re 2d. § 402A Rule:
1) DEF must be a seller of the defective product
-Sometimes extended to stream-of-commerce
2) the product must be unreasonably dangerous to the user or consumer
3) or to his property
168
Three common law categories of product "defects"
1. Manufacturing defect
2. Design defect
3. Warning defect
169
Consumer Expectations Test:
In marketing a product for consumer use, a manufacturer implicitly represents that they product they made is safe and healthy for its intended use
170
Enterprise liability/Loss spreading
Manufacturers and
Commercial sellers of goods can more easily spread the costs that result from injuries caused by defective products by raising prices or purchasing insurance.
171
Nonreciprocal Risks to the Consumer
1. Ask whether the defendant imposed a risk so excessive that it should be considered non-reciprocal
2. If so, the manufacturer imposed an unreasonable/foreseeable risk on the consumer that is different from any risks the consumer imposes on the manufacturer, and this fact justifies strict liability
172
Deterrence:
IF strict liability is imposed, THEN manufacturers will tend to
make products safer in order to avoid the increased costs resulting from liability (p. 849)
173
Loomis v. Amazon.com LLC (2021) p.851
Amazon: we can't be held liable because we were not the manufacturer or the seller of the hoverboard + we included a liability waiver clause
Court: in some cases, retailers may be the only member of that enterprise reasonably available to the plaintiff
New Rule: A consumer injured by a defective product may now sue any business entity in the chain of production and marketing, from the original manufacturer down through the distributor and wholesaler to the retailer
CAUSAL RELATIONSHIP between def and product must be shown by plaintiff
174
Stream-of-Commerce Approach to CL Strict Product Liability
Defendant may be strictly liable under the stream-of-commerce approach if: (1) the defendant received a direct financial benefit from its activities and the sale of the product; (2) [causality] the defendant’s role was integral to the business enterprise such that the defendant’s conduct was a necessary factor in bringing the product to the initial consumer market; and (3) the defendant had control over, or a substantial ability to influence, the manufacturing or distribution process
175
respondeat superior
Employers are generally vicariously liable for the torts of their employees committed w/in the scope of employment
176
Riviello v. Waldron/ Kitchen guy flipping knife
Whether the act was done while the servant was doing his master's work; employee is there for the purpose of doing the work; no matter how negligently or w/ disregard
177
Fruit v. Schreiner/ Agency Re. 2d 228(1)(c) and 707(2)
Scope of employment motivation test: whether the conduct was at least motivated in part by the desire to benefit the employer's business
(1) generally doing the thing expected of the employee (proper, customary, useful)
(2) in the time and place that could be expected
178
Whether the employee was acting within the scope of employment is a question of ____ for _________.
fact; the jury
179
Employer Indemnity (rare)
theoretical right of the employer to recoup from the employee the damages paid to the plaintiff
180
Hinman v. Westinghouse Electric
Going-and-coming exception to VL --> ER liable for torts by EE in the scope of EM
181
Questions to determine Employer Vicarious Liability:
Who is the employer? Who was in the best position to control the conduct?
182
Vicarious liability where employee was not held liable:
To determine the case based on its merits, the issue is whether a finder of fact COULD find that the employee acted tortiously within the scope of their employment
UNLESS there is a settlement
183
Going and Coming Exception to ER VL
FORESEEABILITY: When an EE is driving to work, he or she is subjected only to the same risks or hazards that the public faces while driving. The risks therefore, are not causally related to the employment
184
Who is an employee?
who submits themselves to the control of the ER; the ER has the right to dictate the details of the means in which the job gets done (church volunteer)
185
Serving 2 Masters/Borrowed Servants
WHICH ER can be held LIABLE: The employer is in the better position to control/ take measures to prevent the injury suffered
-off-duty cops moonlighting
186
Exceptions to the going-and-coming rule:
1. when EE is "on call" + activities within the scope of employ
2. where ER requires EE to drive personal car so it was used for work-related purposes
3. Em'ER policy or specific direction instructing Em'EE to do job-related errand
4. where commute serves a dual purpose for Em'ER + Em'EE
187
Edgewater Motels, Inc. v. Gatzke
lit cigarette and motel fire, employee claimed to have been filling out expense reports... Whether there was abandonment by EmEE of his master's purpose when the EmEE was smoking/carrying a lit cigarette
Held: Purely personal acts may be w/in the scope of EM'ment bc they incidental to EE performance of work
188
What is the difference between a "frolic" and a "detour"?
Frolic: a purely personal mission
Detour: a minor deviation away from work
189
Montague v. AMN Healthcare (causal nexus)
Medical assistant poisoning her coworkers bottle; employer could not be held liable
RULE: IF the EE conduct is not so unusual or startling AND IF the conduct is incidental to EmEE's duties OR IF it is r'ly f'ble in light of the EmER's business
-"Arising out of"
190
Rule for Independent Contractor VL:
Employers are generally not liable for the tortious conduct of independent contractors UNLESS 1. where they retain control of manner and means of work 2. where EmER engages an incompetent contractor 3. where the work contracted for is inherently dangerous
191
Employer incurs a nondeligable duty when they hire IC for work that is inherently dangerous/ID when:
when it creates a peculiar risk of harm to others OR contractor hired to do an inherently dangerous job UNLESS special precautions were taken
-when poisons are sprayed
-when explosives are used
192
Historical Strict Liability Concept: Writ of Trespass
battery, assault, F.I, trespass to L and Ch.
Rule: The injury must be DIRECT and FORCIBLE (missing INTENT or negligence)
3 Options: Intent = Writ of Trespass, Writ of Case = direct and forcible, Nuisances = sights, smells, etc.
193
SL on owner's of abnormally dangerous animals
Owner liable ONLY IF the owner knows or has reason to know of the animal's abnormally dangerous tendencies AND IF the harm ensues from that dangerous activity (category)
194
SL of keeper of wild animals
SL is usually imposed for injuries from wild animals despite all reasonable care taken by handler/owner
195
Rylands v. Fletcher
Neighboring property owners built a water reservoir that burst and flooded the mineshafts of the neighbor
RULE: material escape from one person's land that causes injury to another
ISSUE: Absolute duty - you contain your stuff to your property AT YOUR PERIL
196
Reciprocal risks (Rylands)
the parties involved pose a reciprocal risk to one another; unlike Rylands whose water hurt Fletcher's land
197
Re. 2d Sect 520 - abnormally dangerous activities
Liable even is you exercised UTMOST care. SL is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous
-Common use in the community
198
Re. 3d Sect. 20 cmt. j - common usage
If an activity is normal in the community—“a matter of common usage”—strict liability does not apply
199
Re. 2d Balancing Approach: 6 factors considered if activity is abnormally dangerous: PL must prove only 1 or 2 of the factors
1. degree of RoH to persons or property
2. magnitude of harm
3. the inevitability of risk despite precautions taken
4. the ordinary nature/or unusualness of the activity in the community
5. how suited the activity is to the place DEF engaged in it
6. balance of value to the community against risk of harm created by its pressence
200
Dyer v. Maine Drilling and Blasting (Neg-SL shift)
Proof of a causal relationship between the blasting and the property damage; Dyers sued for SL and NEG - FF could reasonably find that damage was caused because the home observed before and after the blast, damage reasonably caused by blasting, etc.
201
Nuisances
things that are noxious to the senses; intangible invasions; harm our interest in our ENJOYMENT of the property; must be substantial
202
CL Criteria for abnormally dangerous activity
1. The activity must have been under the DEF control
2. Must have been the type of hazard contemplated (proximate cause)
203
Defense to abnormally dangerous activity:
Assumption of risk; but ONLY IF the plaintiff read warning signs, knew the danger, understood the risk involved, and elected to encounter it voluntarily
204
Re. 3d Sect. 20b - Abnormally dangerous activity
IF an activity creates a forseeable + highly significant risk of harm even when RC is exercised by all actors AND is not of common usage THEN
205
Elements of abnormally dangerous activities:
1. 2nd or 3rd Restatement factor test
2. causation link between conduct and harm that ensues
3. damages
206
Poisons/pesticides abnormally dangerous activities:
apply factor test to the facts to make the determination (2nd or 3rd Re.)
207
Fireworks - and who conducts/who watches
abnormally dangerous if they are not a matter of common usage
208
Workers compensation - type of insurance that functions like SL
EmERs are responsible w/out fault because they worry that premium increases will follow high payouts
209
Blasting defined:
no difference between a blasting which projects rocks in such a way as to injure persons or property and a blasting which, by creating a sudden vacuum, shatters buildings or knocks down people
210
Re. 3d of Torts: Products Liability focuses on:
the nature of the defect that the plaintiff alleged
211
Privity requirement in negligence and warranty liability claims for defective products: PRIVITY REQUIREMENT
Plaintiff had to ID the point in the process of manufacture or sale that the seller's conduct fell below the requisite due care under the circumstances UNLESS the manufac./seller misrepresented the product
212
Re. 2d Sect. 402(A) - Strict Products Liability
SL for anyone who (1) sells any product (2) in a defective condition AND (3) the Defect was unreasonably dangerous - more than what would be expected by an ordinary consumer (4) harm to consumer or their property
213
Consumer expectations test for defect
Whether manufacturer or seller implicitly represented that the product was safe and healthy when it left their hands + reasonable customer justified in relying on that representation
214
Foreign-Natural Test for Food
natural = not defective
215
Enterprise Liability
loss-spreading; maufacturers + commercial sellers can more easily spread the cost that result from injuries caused by defective products
216
Risk/Utility Re. 3rd Test - Design Defect
Balancing test; product is defective as designed or marketed ONLY WHEN the magnitude of the hazards outweighs the individual utility OR broader societal benefits
217
Elements of RAD balancing test
Product is defective in design IF:
1) the seller could have reduced or avoided the product’s “foreseeable risks of harm”
2) by “the adoption of a reasonable alternative design,
3) and the omission of the alternative design renders the product not reasonably safe
Would an alternative design have been better??
218
How "reasonable" must a reasonable alternative?
1) adducing expert testimony
2) that a specific improvement is safer and
3) would not impair the product’s usefulness or impose unreasonable costs
219
Economic and technological "feasibility"
1. Was there a safer design on the market/available to the defendant at the time they produced defectively designed product?
220
McCarthy v. Olin Corp (1997)
Issue(s): Negligent manufacture and advertising to the general public - NO; Defect is related to its condition not product's inherent function- NO; Risk/Utility- NO
Rule: Re. 2d Consumer expectations and Re. 3d Risk/Utility
Analysis: no special relationship to give rise to a duty on part of Olin corp when bullet performed as intended and could not be responsible for criminal conduct of third party or special relationship creating duty to protect plaintiff
221
Liriano v. Hobart Corp. (warning defect and negligence claims)
Procedurally: coming from winning with a jury, court affirmed jury verdict = foreseeability is a Q of Fact
Issue(s): Issue of causation of harm
When a defendant’s negligent act is deemed wrongful precisely because it has a strong propensity to cause the type of injury that ensued, that very causal tendency is evidence enough to establish a prima facie case of cause-in-fact. The burden then shifts to the defendant to come forward with evidence that its negligence was not such a but-for cause.
Rule(s): Liability turns on the reasonable foreseeability of harm by use of or exposure to the product in the absence of warning
Analysis: Warnings can convey two types of messages: warning that a particular product, place, or activity is dangerous AND people need not risk the danger posed to achieve purpose for which they chose to encounter risk
222
Defects of Warning, Instruction, or Marketing (negligence):
Seller may be liable if the product:
1. has such a potential for injury that is not readily apparent to the user
2. AND carries no warnings of the risk OR
3. had no instructions as to how to safely use the product
223
Three questions to ask in considering foreseeability and a manufacturer's duty to perform:
1. What is the likelihood of harm if warnings are not used?
2. What will be the seriousness of that harm?
3. What is the cost or burden of taking appropriate precautions?
-The burden then shifts to the defendant to come forward with evidence that its negligence was not such a but-for cause.
224
Two Causation Tests in Warning Defect:
1. strong propensity inference then burden shift to DEF to prove their negligence was not but-for cause OR
2. Heeding presumption - courts usually “presume” that the plaintiff would have read and heeded the warning, a phenomenon known as the “heeding presumption" - rebuttable by the plaintiff
225
Sufficiency of Warning in Carruth v. Pittway Corp:
Facts: dead air statements and instructions had no express warning and were "confusing at best"
Issue: Whether the Pittway pamphlet provided a legally adequate warning about dead-air-space concerns
Rule: Warnings must be reasonably clear and of sufficient FORCE and INTENSITY
226
Warning placement is a question of ______.
fact for a jury; p. 901 "warnings can be placed in ads or media releases"
227
In NEID, plaintiffs bear the burden of proof that defendant negligence caused some form of physical impact by one of two means:
1. Zone of danger
OR 2. The Impact Rule
3. limited bystander recovery
228
Negligent Infliction of Emotional Distress:
Pre-rec: DEF negligence must have caused some form of physical impact on the plaintiff's person
1.
229
Two defenses to strict product liability: p.910
1. where the plaintiff voluntarily and knowingly assumed the risk occasioned by the defect (complete defense)
2. where a plaintiff misuses a product in an unforeseeable manner
230
Hughes and "unforeseeable misuse"
(a) Unforeseeable misuse means the plaintiff is guilty of contributory negligence. (b) Unforeseeable misuse means the plaintiff assumed the risk. (c) Unforeseeable misuse means that, with respect to harms caused by the misuse and that would not have been caused by a properly used product, the product simply is not defective at all
231
Three kinds of defects:
Manufacturing, warning, or design defect
232
