Deck 1 Flashcards
Thin-skull rul
Have to pay for all damages, regardless of forseeability.
Vosburg v Putney (light kick aggravates prior injury, D had no intention to cause harm, school setting)
Apply think-skull rule. Intent unlawful because act unlawful in school setting and class had been called to attention.
Knight v Jewett (flag football)
Intent to contact necessary element of battery. This is play. Implicit consent of some contact in flag football (can be overcome by expressed statement such as “I’ll stop playing if you keep playing rough.”)
White v University of Idaho (Piano teacher case)
Test: Was it offensive to a reasonable sense of personal dignity? Not enough to think is it offensive.
Is it wrong? How easy would it have been to do something else?
Battery
Intent to contact (or create contact). Offensive to a reasonable person. If not reasonable, ask first.
Dual intent (battery)
Need to intend contact and intend the harm/offense (car bump case).
Polmatier v Russ (insanity defense)
There is intent to act even if insane. No intent to act would be something like a seziure or a reflex.
This rule encourages family members and guardians to deter. People could pretend to be insane. Worse not to compensate then forcing compensation if there is sufficient money to compensate.
Laidlaw v Sage (sage moves clerk in front of person with bomb, clerk injured, sues for battery)
Act not voluntary because it was necessary to self-preserve (pressing danger). First law of nature is to self-preserve.
Keel v Hainline (D at whom eraser thrown appeals for liability for hitting and injuring non-participant)
Still guilty. Transferred transferred intent. Liabiliy is imposed for a secondary role in the events that produced P’s injury.
Three types of transfered intent
1) bad aim, 2) mistaken identity, 3) tort to tort (Manning, trying to commit assault but committing battery will transfer intent from assault to battery).
Can Heckler in Manning be sued (ball hit someone else when aimed at him)?
Depends on wrongfulness. Liable if intent or gave substantial assistance or encouragement (ex. here’s a tire iron, go beat them up).
What if someone unusually sensitive?
You have to know and the act has to be highly offensive. Also, avoiding can’t be unduly burdensome or imposing liability would violate public policy.
2019 version: Primary purpose has to be that it will be highly offensive.
Is serving non-kosher food to someone who keeps kosher battery, where intent is to save time not to be offensive?
Battery under 2017 because it isn’t unduly burdensome, but not battery under 2019 because purpose is to save time, not to offend.
State of mind required for intent
D has to intend to achieve a specific result when D either 1) has a purpose to accomplish that result or 2) lacks such a purpose but knows to a substantial certainty that D’s actions will bring about the result.
Mohr v Williams (thought surgery on right ear only, surgery on left ear, damage. Was consent necessary?)
Consent must be either expressly or impliedly given before a surgeon may have the right to operate. Patient is the final arbiter. Can’t violate bodily integrity.
Grabowski v Quigley (surgery performed by a different doctor than anticipated, battery?)
Yes. But, in some cases where consent is given to the hospital instead of a specific doctor, it is ok for a different doctor than expected to perform the surgery.
Brzoska v Olson (HIV dentist, no patients contract HIV, Battery? Claimed mental anguish)
Not battery. Offensive character is based on a reasonableness standard. No exposure to HIV. Can’t substitute fragile sensibilities of a particular patient for objective norms governing the rendering of medical/dental care.
Who is the reasonable person?
Not normal or average person. They are pretty grate person. For example, they have not of HIV is transferred and don’t fear the doctor. They are not afraid of walking on glass path over the Grand Canyon even if average person would be afraid.
Cohen v Smith (religious belief forbids being seen unclothed by men other than husband. Male nurse saw and touched her with her clothes of durring procedure. Result)?
P won. Individuals have the right to refuse medical treatment even if such a refusal would result in an increased likelihood of the individual’s death.
Consent
Willingness in fact for conduct to occur. If words or conduct are reasonably understood by another to be intended as consent, they constitute apparent consent and are as effective as consent in fact.
Neal v Neal, sued husband for having sex with her while having an affair. Would not have consented otherwise.
Not battery.
Friendly boxing match. Knows other person is unaware that other person has defective heart. Causes heart attack. Liability?
Yes.
Intimate familiarities for $20. Counterfeit. Battery? Same facts, but blood transfusion for counterfeit. Battery?
No. Yes.
Is smoke a contact?
When malicious we’ll say yes. When not malicious we’ll say no (substantial certainty case).
Bumps and jostles
There is some implicit consent to bumps and jostles in life, especially in crowded places.
Battery definition
Actor’s affirmative conduct causes such a contact; and the contact causes bodily harm to the other or is offensive. Anything that causes harm can be battery unless consent. Bumps and jostles are implied consent.
McNeil majority rule
Consent to an unlawful act is no defense to a claim of battery. Person who wins has to pay under this rule.
Minority Hart rule
Consent to unlawful act is a defense to a claim of battery. Detriment to loser because they can’t seek damages. Deters loser. But if both people think they will win, we want the rule that deters the winner.
Battery elements
1) Intent to contact, 2) contact occurs. 3) No consent (this could be a defense and not an element).
What does intent to contact consist of?
Either purpose or substantial certainty. Intent to harm or offend is not required (for a majority of states). Actions must be volitional (not merely reflexes, or the result of pressing danger). Drunkenness and insanity do not nullify intent. Intent can be transferred from intended to actual victim and from one intentional tort to another.
Gray areas of intent
Transferring intent when original intent to contact was not wrongful (police officer bullet proof vest training).
Does contact with a perosn’s clothes count as contact?
Yes.
Does victim need to know they have been contacted for battery?
No.
Indirect contact for battery (ex. causing someone to use a filtyh towel)
Counts.
Gray areas of contact
Laser/smoke contact. Car as an extension of self. In gray cases look to other features of the case, such as the degree of wrongfulness, degree of harm, to perosns or personal dignity, broad policy concerns, etc.
Exceptions to consent
Emergency, you consent to an unspecified substitute.
Does fraud/nondisclosure vitiate consent?
Sometimes. For exmaple, permanent ink (not knowing it is permanent), punch in chest (heart defect case). Others do not: Trait of doctors, fraud as to collateral matter where no harm occurs.
Unsettled cases: STD disclosures sometimes.
In fraud cases whether or not harm is caused matters (ex. blood transfusion vs intimate familiarities).
When should we not use transferred intent?
When it leads to a worse result. It’s a patch doctrime aimed at making the law more just when we don’t like the result.
Consent to trespass and fraud.
Sometimes fraud negates consent and sometimes doesn’t.
Fraud invalidates: Ex. Lying about checking water meter to get into house.
Fraud doesn’t invaldiate: Food critic saying they are ordinary customer to get into restaurant.
Consider: Don’t want to be distrubed, privacy violated, stuff stole, want to control what happens in local, intamacy/privacy, peace.
Examples of substantial certainty and lack of it
Substantially certain: Spiking cafeteria food, throwing a bomb into a crows.
Not substantially certain: High speed car chase.
Peggy v Gray, loos hunting dogs often chase foxes onto P’s property sometimes inciting the cattle to stampede and break down the fences that enclose them
Repeated nature makes it at least close to sbustantial certainty. IF this always happens it becomes a trespass. This is wider than substantial certainty.
Reciprocal vs non-reciprocal risks
MIght treat them differently due to a hypothetical bargain.
Trespass intent
have to intentionally enter land. Don’t need to intend to damage the land.
Intent required is intent to go to the place you go to.
Trespass even if you think land you are on is land you’re allowed to be on. Mistake is not an excuse.
Heigh and trespass?
Usually not trespass if over a certain height and not capable of invading privacy.
What do we care about for trespass
Don’t care about harm, violation of privacy, distrubance, etc when a clear physical invasion on ground level.
Trespass and transferred intent?
No transferred intent from trespass to assault/battery and vice versa.
Katkow, spring gun case.
Preventing trespass is not an excuse for battery. Life and bodily protection of a person is more important than property. Notice is not sufficient.
Kershaw v McKown, dog attacking P’s goat shot.
Liability if dog worth greatly more than goat.
Can consider relative value of animals. Can shoot unless animal you are shooting is far more valuable.
property isn’t about effciency, it’s about protecting property. Actual instructions protect more property even though they are less efficient.
Ploof v Putnam
Danger to life gives privilege to trespass. Even threat to property alone can justify a trespass.
Taxi case. Is $6 substantial enough to trespass in attempt to recover it?
No.
Liable for locked doors when someone wants to trespass to escape danger?
No. We don’t want to deter that.
Vincent v Lake Erie, P’s steamship moored to D’s dock. Bad storm. Not possible to leave. Steamship damages dock.
May use other’s property when necessary, but still ahve to pay for any damages they cause.
Dissent: If lawfully in position at the time of storm, and can’t leave during storm, then damages are result of inevitable accident and shouldn’t be held liable.
What would single owner do test for necessity to avoid harm case?
Efficiency. Unike goat and dog case. Landowner in dog case gets extra leeway becaause dog is trespasser. Vincent is efficiency case. Kershaw isn’t.
Assault element
An actor is subject to liability to another for assault if:
a)
(i) the actor intends to cause the other to anticipate an imminent, and harmful or offensive contact with his or her person, or
(ii) the actor’s intent is sufficient under transferred intent; and
b)
the actor’s affirmative conduct causes the other person to anticipate an imminent, and harmful or offensive, contact with his or her person.
Showing knife on leg and sayig they sharpened it eralier that day. Assault?
No. Not sufficiently imminent.
Imminent definition
Wil happen without delay unless an intervening force prevents it. If inevitable, it’s still an assault even if not immediate.
Dual intent battery
Intent to contact and intent to harm/offend required.
Single intent battery
Intent to contact alone enough
Dual intent assault
Intent to cause imminent anticipation of contact and intent to cause imminent anticipation of harmful/offensive conduct.
Single intent assault
Intent to cause imminent anticipation of contact.
Lanford v Shu, D participates in prank against P, by Ds children. Assault?
Yes. D should have known that unless she took psotive steps to prevent it, they would not let such a wary and apprehensive prospect escape without a demonstration.
There is participant liability for assault.
IIED
1) Extreme and outrageous conduct, 2) causes severe emotional distress, 3) reckless or intention.
Tort law seluction to reluctance to bring emoiton harm claims (hard to measure, fakable)
Set a high bar on conduct. Makes it less likely that someone showing emotional distress will be faking.
Bystander liability for IIED?
Yes. If you do something to A, you can be on hook for damages to their family.
Hand formula
B (burden) < Probability*liability, then you should do it.
Courts usuually use this when appeal chouched in cost-benefit analysis or ignore it completely.
Adams v Bullock. Kid swining a wire. Electrocuted.
Probability is low. Costs high (although no consideration of something like a sign).
According to Hand formula if you can do something cost-effectively then you should.
Bolton v Stone
Lord 1: Consider odds of being struck and degree of expected injury. If risk is to high, stop playing. Also talks about assumption of risk. Not negligent.
Lord 2: A reasonble man, taking account of the chances of an accident happening, would not have felt themselves called on either to abandon the use of the ground for cricket or to increae the height of his surrounding fences.
Eckert v Long Island. Speeding train. Saves kids life. Dies.
Won’t call effort to save life if negligent unless rash. Rash if what you are trying to save is worth less than what you are risking. Rash if you’re risking life to save property. Might fail B < PL for mother to run into fire to save child, but not rash. We don’t BPL human life.
Landers v Ghosh. GED. Unemployed. Trained as carpenter. Gets 400k, why?
Damages covering loss of support and loss of consortium aka loss of society.
Jury free to ignore expert testimony regarding estimated lost wages.
Pescatore v Pan American World Airways. Undergrad from Harvard. MBA from UChicago. Fast rising executive. Receives $9 million. Why?
CEO of similar companies makes $9 million+ over 3-5 year period. Was considered great companion and husband.
Haddigan v Harkins. Wife dies. $64,000.
Can consider economic value of services rendered by a wife and mother based on how much someone would be paid to do the work. Doesn’t matter that little evidence of cost to maintain her. There was ample proof in the record from which the jury could make a fair determination.
Oline v Smith. Shot leg on accident. 6 million including 5.5 million for physical pain and mental anguish, disfigurement, and physical disbaility.
- 55.8 years life expectancy. Months of extreme pain before leg eventually amputated.
Williams v United States. Formed inmate. Misdiagnosed. Hospital not informed. Mistreatment continues. Gangrene. Amputation. 500K
48 with LE of 24. Former inmate.
Vaughan v Menlove. Haystack. Firehazard. Chimney through it. Fire. Destroy’s neighbor’s barn and stables and P’s cottages.
Having low intelligence is not a valid defense.
D acting honestly and bona fide to best of their own judgment would be no rule at all because degree of judgment belongingn to each individual varies infinately.
Adhere to rule requiring regard to caution as a man of ordinary prudence would observe.
Could ask for advice.
Lynch v Rosenthal, IQ of 65 (equivalent of child less than 10). Stumbles into corn picker. Seriously injured. Claims D negligent for failing to warn him to not come close to picker. Couldn’t recognize dnager, but could have comprehended a warning.
Liability affirmed. Custodial difference from Vaughan. Observable in a way maybe not possible in Vaughan.
Blind man required to see at his peril?
No. When a man has a distinct defunct of such a nature that all can recognize it ask making certain precautions impossible, he will not be held answereable for not taking them.
Children, disabled and ill and standard of reasonble care (restatement)?
Allowances made for children, disabled, and ill. Otherwise held to standard of a reasonable man as to attention, preception, memory, knowledge of other pertinent matters, intelligence, and judgment, even though he does not in fact have the quality of a reasonable man.
weirs v Jones county. Bridge unsafe sign. Can’t read english. Drives onto bridge and is harmed.
P shouldn’t be required to put up an impassable and immovable barriers nor to post warnings in all languages. P can’t be allowed to claim some standard of care shall be applied to them which is not applicable to persons in general.
Comparative negligence
REducing recoveries by negligent P’s in proportion to their fault but does not prevent them from recovering altogether.
Fredericks v Castora. Hit by two trucks. Negligence?
No. There is only one degree of care in the law, and that is the standard of care wich may reasonably be required or expected under all the circumstances of a given situation. Ordinary standard already hard enough for drivers. Shouldn’t vary standard based on driving experience.
Supernormal strenght, X-ray vision, etc and reasonable care?
Utilize reasonable attention and caution based on qualities superior to a reaosnable man. No floating up for truck drivers. But you do float up for super strong and doctors.
Kerr v Connecticut Co. Deaf man walking near trolley track. Not paying attention. P liable?
No. The law required D to exercise care for his own safety as a reasonably prudent man would exercise under the same circumstances. Reasonable deaf person would take precautions.
Davis v Feinsten. Blind man usuing cane to touch walls of buildings and to tap ground. Falls into cellar door. Liability for P?
No. Did everything a reasonble perosn would have done.
Physical impairments vs intellectual ones and verifiability and recognizability?
Physical impairments are more easily verified and recognized by third parties.
Standard of care for kids?
Customized standard of care for kids in most cases. We expect them to exercise degree of care that child of same age, intelligence, experience, and capacity would have.
Age is verifiabile. Observable. Kids less deferable. Less likely to listen. Reciporicty (we’ve all been kids or are kids). We think kids are not as morally responsible for actions.
Roberts v Ring. 77 year old with defective powers of sight and hearing. Standard for old age?
Old age gets normal standard. Have seen people grow up, should know that they need to restrict their actions due to diminishing capacities. Verifiable but not necessarily observable.
Cars and speedboats and kids.
No special treatment here.
1) dangerous to others, and 2) normally engaged in only by adults.
Hard for other drivers to tell age. Not foresseable. Difficult for kids to do. Easy to resfrain. Lack of benefit from experience.
Purtle v Shelton, guns and kids.
Special rule for kids. This is more normally done by kids. Valuable activity according to many.
But, gun cases are hard to generalize.
The TJ Hooper. No radio on boat. Liability?
Yes. Burden of getting a radio is very low. Custom is often reasonable but sometimes lags behind. When custom conflicts with BPL, BPL wins.
Are courts better than profitable companies at BPLing? Two sophisticated businesses with a contract might already be doing this.
If custom creates safe harbor, new methods might make you negligent.
Custom, like BPL is not dispositive. It is something that juries can consider.
When is custom dispositive?
Doctors and lawyers. If we need experts to create custom then we should trust them. Plus, already regulated. Licensing boards.
Rules vs standards
Rules: Strict, not flexible (65 MPH).
Standards: Triggers and responses that are more fuzzy (ex. Excessive speeds punished accordingly).
Rules clearer, but might rope in and let escape people who shouldn’t be roped in or let to escape.
Pokora, You have to stop before crossing train track. Rule not followed.
Doesn’t matter. Clear cut rule might make it more dangerous in certain circumstances. Multiple tracks. View blocked. Dangerous to stop on track.
Rule is thrown out here (although they could have just made an exception).
Theisen, falling asleep in car negligent as matter of law. Valid rule?
Yes. Could/should have predicted you would fall asleep. Rule easier here than railroads. Breaking railroad rule could be safest option. Falling asleep while driving is never the safest option.
Rules for rear-ending?
Insurance has bright line rule. Lots of injustice but super efficient. No need to spend 10K to find out who caused a 2K accident. Would cause rates to go up.
Requiring seatbelt rule?
BPL says wear a seatbelt, but freedom.
Negligence per se
Decided by judge not jury.
Negligence per se is about breach. You still have to prove causation and harm.
An actor is negligent if, 1) without an excuse, 2) the actor violates a statute 3) that is designed to protect against the type fo accident the actor’s conduct causes, 4) and if the accident victim is within the class of persons the stattue is desinged to protect.
Tingerl v Chicago. Don’t run train on Sunday. Train hits cow on Sunday. Negligence per se?
No negligence per se in spite of law because not designed to protect against the type of accident caused.
Statute: Fence around landfill. No fence. Kids sneak in and harmed. NpS?
Yes, even though not clear purpose was to protect safety.
Statute: To protect safety of construction workers you need fence. Pizza delvery peson harmed because no fence. NpS?
Probably. Law probably meant to protect others too. Can be even broaded than what we think legislature intended.
Statute: Fence around train track. 1) Cow hit by train. 2) Posined by grass near track. NpS?
Yes for (1) no for (2).
Statute: No rat poison in commercial kitchen. Causes explotion. NpS?
No. Not type of accident.
Can you be found negligent if not negligent per se?
yes.
Selger v Steven Bros, slip on dog poop case. Legislation saying you have to clean it up. NpS?
No. Wrong type of accident. Statute aimed at cleanlinss.
Tesla v Ellman. Vioated statute (which side of road to walk down). NpS?
No. Excused. Purpose of statute is to make people safer. In this case, following the statute would make them less safe. Shouldn’t be negligence per se when you’re doing the safer thing.
Res Ipsa
The fact that the accident took place, in some cases, is evidence of negligence. Just evidence. Not the end of the story.
Byrne v Boadle, barrell fals out of window. Res ipsa?
Yes. Barrells don’t normally fall out of windows.
Two res ipsa theories
1) The accident very likely resulted from negligence. 2) The parties did not have the same access to evidence bearing on how the accident ocurred (information forcing rationale).
Barrels vs wedges/hammers for res ipsa
Tools more likely to fall when people act non-negligently so not as good a case for res ipsa.
Two cows. One falls, one wanders. Res ipsa.
Yes, no. Cows almost never all through ceilings. Meanwhile, easy for a small bit of fence to non-negligently get destoyed without being monitored constantly.
Judson v Giant Powder Co. Factory blows up.
Explosion wouldn’t have taken place if there was no negligence. Res ipsa. No info sharing because everyone dead.
Disappearing airplane.
Good res ipsa case. You can’t force information sharing because neither side has access to any info. but, planes don’t just disappear. Makes sense here for deterence reasons.
Crab boat sinking res ipsa?
No. Can sink for many non-negligent reasons. Airplanes are far harder to screw up because they have more safety features.
Requirements for res ipsa
1) Accident must be of a kind which does not occur in the anbsence of someone’s negligence, 2) it must be caused by an agency or instrumentality within the exlsuvie control of D (this turns out to be false, ex. wheels fall of car 100 ft after leaving dealership), and 3) it must not have been due to any voluntary action or contribution on the part of P (replaced wsith comparative fault).
Ybarra v Spangard. Appendix case causing shoulder injury.
REs ipsa. A lot of witnesses to force info sharing Also, even though everyone says there was no negligence the likely cause of this is that they all missed something. We should incentivize them to keep better track of each other (deterrence). Also worried about collusion when people have close social ties.
This a minority rule, relying on information sharing.
Wolf v America Tract Society, Brick falling from construction site. Probably result of negligence. Res ipsa?
No. Lots of people involved and no way to determine who caused it to fall.
This is the majority rule.
NY Central Railroad v Grimstad. Theory: Wouldn’t have drowned if there was a life buoy on board.
Causation problem: Might have happened even if buoy was on board.
But for causation is either on or off. You either have it or you don’t. Not a matter of degree.
But for causation
Wouldn’t have happened, but for…
If you do what you should have done and then rerun the scene and it still happens, then you are not the but for cause.
Summers v Tice. Hunters in triangle. One hit. Can’t prove which of other two did it. 50% chance it was each.
Compares to Ybarra, both are liable. One D can get out of it if they can prove it was at least more likely that it was the other (50.1% preponderance of the evidence).
Two negligent cars cause third car to crash. What do negligent cars ahve to do?
Like Summers. D’s have to show that they didn’t cause the injury.
Two stores, one of them causes dent (presumably negligently). Who has to prove who caused it?
P has to show which caused dent because it is possible that only one acted negligently.
Litzman, two firework companies. One firework negligently left behind. Both liable?
Yes. Bad case for tracking but good deterrence because it forces you to do a good job of keeping track of your own fireworks if you will potentially be held liable for the fireworks ofthers.
