Negligence & Negligence Defenses

Question 1

Elements of a cause of action

Answer 1

ii. A duty to use reasonable care.
1. This is an obligation recognized by the law, requiring the actor to conform to a certain standard of conduct, for the protection of others against unreasonable risks of harm.
iii. A failure to conform to the required standard. This is commonly called breach of the duty.
1. These two elements make up what the courts refer to as negligent behavior; but the term frequently is applied to the second alone. Thus, it may be said that the defendant was negligent (acted unreasonably), but is not liable because he was under no duty to the plaintiff to use reasonable care. Whether a duty is owed is a question of law for the court to decide. Whether the duty was breached is usually a question for the jury.
iv. A reasonably close causal connection between the conduct and the resulting injury. This is commonly called causation.
1. Causation involves a combination of two elements—causation in fact and legal or “proximate” causation.
v. Actual loss or damage resulting to the interests of another.
1. The action for negligence developed chiefly out of the old form of action on the case; and it retained the rule of that action that pleading and proof of damage was an essential part of the plaintiff’s case. Nominal damages to vindicate a technical right cannot be recovered in a negligence action if no actual damage has occurred.
c. Another commonly used rubric for negligence is conduct that falls below the standard of care established by law for the protection of others against the unreasonable risk of harm. This is the wording of jury instructions in many jurisdictions.

Question 2

Negligence Elements - short list

Answer 2

Duty - D owed P a duty to exercise some standard of care for P’s safety.
Breach - D breached that duty (standard of care) by his unreasonably risky conduct
Causation - both Actual & Proximate: Actual - D’s conduct, in fact, cause harm to P - think about but for test
Proximate - harm that occurred was the general kind of harm that D risked - directness and foreseeability tests.
Damages - Actual harm of a legally recognized kind occurred (such as physical injury to a person or property).

Question 3

Negligence Formulas: First Principles

Answer 3

(Lubitz v. Wells)
Rule: Without more a party is not liable for negligence merely for leaving an object that is not inherently dangerous lying on the ground available for others to use.

Question 4

Negligence Formulas: Beginings of a reasonable person

Answer 4

(Blyth v. Birmingham Waterworks Co.)
Rule: A defendant may not be liable for negligence if the defendant does what a person taking reasonable precautions would do under the circumstances.

Question 5

Negligence Formulas: Past Events

Answer 5

(Pipher v. Parsell)
Rule: A “driver owes a duty of care to her [or his] passengers because it is foreseeable that they may be injured if, through inattention or otherwise, the driver involves the car she [or he] is operating in a collision.”

Question 6

Reasonable care under all the circumstances (three factors to consider) Rest. Ch. 12 §3

Answer 6

i. Likelihood that harm will result (probability of injury)
ii. The foreseeable severity of harm
iii. The burden of precaution needed to avoid the harm

Question 7

Rest. Ch. 12 § 303

Answer 7

An act is negligent if the actor intends it to affect, or realized or should realize that it is likely to affect, the conduct of another, a third person, or an animal in such a manner as to create an unreasonable risk of harm to the other

Question 8

Negligence Formulas: Context - Jury reasonable Standard of Care

Answer 8

(Chicago, B & Q. Ry v. Krayenbuhl)
Rule: An owner of dangerous property faces negligence liability if the owner is aware young children will likely access the property and fails to take precautions that a person of ordinary care would take to prevent access or mitigate the risk of injury.

Factors that jury should consider when determining whether conduct meets the reasonable care standard under circumstances
1. Character and location of premises
2. Public utility of the action
3. Relations such precautions bear to the beneficial use of the premises
4. Whether there are policies in place to avoid such harm.

Question 9

Negligence Formulas: Alternatives

Answer 9

(Davison v. Snohomish County)
Rule: A municipality’s duty to provide reasonably safe travel conditions on thoroughfares does not require the municipality to guarantee the personal safety of thoroughfare users.

Question 10

Negligence Formulas: Classic Hand Formula

Answer 10

(United States v. Carroll Towing Co)
Rule: Liability for negligence due to failure to take safety precautions exists if the burden of taking such precautions is less than the probability of injury multiplied by the gravity of any resulting injury, symbolized by B < PL = negligence liability.

Question 11

Negligence Formulas: Learned Hand Forumula

Answer 11

Learned Hand’s Formula
1. P = probability of injury
2. L = the injury (loss)
3. B = cost (burden) of taking precautions
iii. If B< P*L then we should expect defendant to have taken then precautions; liability for failing to do so (defendant is liable)
iv. Test is the same for Plaintiffs and Defendants

Question 12

Critique of the Learned Hand Formula

Answer 12

Ethical critique - disregard of human life.

Question 13

Reasonable Person

Answer 13

A reasonable person acts with reference to the average circumstance and is not liable for accidental happenings outside those average circumstances.

Question 14

Past Events

Answer 14

Past events make the damage foreseeable; it is negligent (a breach of duty) not to take precaution

Question 15

Unreasonable case example

Answer 15

crossing a railroad track
Driving around a sharp corner with an obstructed view
sending a text message knowing someone is driving

Question 16

Whether the D used reasonable care under the circumstances

Answer 16

This is a flexible standard. Under the circumstances, circumstances can change at the right times.

The circumstances included the cost of whatever additional safety precautions P is advocating.

Question 17

Rest. Ch. 5 § 3 – Negligence

Answer 17

i. A person acts negligently if the person does not exercise reasonable care under all the circumstances. Primary factors to consider in ascertaining whether the person’s conduct lacks reasonable care are the foreseeable likelihood that the person’s conduct will result in harm, the foreseeable severity of any harm that may ensue, and the burden of precautions to eliminate or reduce the risk of harm.
ii. A person acts negligently if the person does not exercise reasonable care under all the circumstances. Primary factors to consider in ascertaining whether
1. The foreseeable likelihood that the person’s conduct will result in harm
2. The foreseeable Severity of the harm that may ensue, and
3. Burden of precautions to eliminate or reduce the risk of harm.

Question 18

Rest. Ch. 5 §§ 7 - Duty

Answer 18

a. (a) An actor ordinarily has a duty to exercise reasonable care when the actor’s conduct creates a risk of physical harm.
b. (b) In exceptional cases, when an articulated countervailing principle or policy warrants denying or limiting liability in a particular class of cases, a court may decide that the defendant has no duty or that the ordinary duty of reasonable care requires modification.

Question 19

Rest. Ch. 5 §§ 6 - Liability for Negligence Causing Physical Harm

Answer 19

a. An actor whose negligence is a factual cause of physical harm is subject to liability for any such harm within the scope of liability, unless the court determines that the ordinary duty of reasonable care is inapplicable.

Question 20

Standard of Care (Duty) - How does the P prove “due care”/ “standard of care” requirements

Answer 20

1. What would the Reasonable Prudent Person do under the circumstances
2. Cost-benefit analysis (Hand Forumula)
3. Custom
4. Statutes (Negligence Per Se/ Evidence for failing to conform to the common law’s ordinary care standard)

Question 21

Reasonable Prudent Person: First Principles

Answer 21

(Vaughan v. Menlove)
1. A person has a legal duty to use his or her property with the same level of ordinary care that would be exercised by a reasonable person.
2. The “reasonably prudent person Is based on what an ordinary prudent person would have done under the circumstances, NOT what the defendant, in good faith, believed was reasonable.

Assumed to be of average intelligence
ordinary: not require the conduct of an extraordinarily careful person.

Question 22

Reasonable Prudent Person: Questions of Knowledge

Answer 22

the person whose conduct is being evaluated is deemed to have the knowledge that the ordinary, reasonable person would have.

Common knowledge:
We don’t require expert testimony for a jury to determine if a person applied ordinary prudence without knowing common knowledge.
common knowledge from a reasonable person, no matter the age.
If you’re a newcomer to a community, you’re expected to possess the knowledge that is common to the community.

Question 23

Reasonable Prudent Person: Questions of Knowledge (Delair v. McAdoo)

Answer 23

(Delair v. McAdoo)
1. Drivers and owners of motor vehicles are required to know the condition of parts of their vehicles likely to become dangerous, where the dangerous condition would be discovered during a reasonable inspection.
2. Forgetting is not an excuse, they are assumed to remember as a reasonable person
a. Forgetting to apply is not a defense to negligence

Question 24

Rest. Ch. 6 §§ 13 - Custom

Answer 24

a. (a) An actor’s compliance with the custom of the community, or of others in like circumstances, is evidence that the actor’s conduct is not negligent but does not preclude a finding of negligence.
b. (b) An actor’s departure from the custom of the community, or of others in like circumstances, in a way that increases risk is evidence of the actor’s negligence but does not require a finding of negligence.

Question 25

Reasonable Prudent Person: Custom (Trimarco v. Klein)

Answer 25

(Trimarco v. Klein)

Weird shower glass case

1. A party is liable for negligence when a custom or accepted practice is coupled with proof that such custom or accepted practice was ignored and that this departure was the proximate cause of one’s injuries.
2. custom is not conclusive but it still has a role; suggests it may not be too costly.

Question 26

Rest. Ch. 5 §§ 9 - Emergency

Answer 26

a. If an actor is confronted with an unexpected emergency requiring rapid response, this is a circumstance to be taken into account in determining whether the actor’s resulting conduct is that of the reasonably careful person.

The standard of care applicable to a person acting in the fact of unforeseen, sudden, and unexpected peril, not of his own making, is the “reasonable person” in an emergency

Question 27

Reasonable Prudent Person: Emergencies (Cordas v. Peerless Transportation Co.)

Answer 27

1. An act by a reasonable person that is considered negligent when done under normal circumstances is not per se negligent if performed by a reasonable person during an emergency in which he is suddenly faced with certain danger.
2. The standard of care applicable to a person acting tin the face of unforeseen, sudden, and unexpected peril, not of his own making, is the “reasonable person in an emergency.”
3. Not a necessity defense; it’s whether he violated the reasonable person standard and if no then he does not have to pay for damages.

Note: there is a general agreement that if the actor’s negligence creates an emergency, the emergency doctrine does not apply.

Question 28

Rest. Ch. 5 §§ 11 - Disability

Answer 28

(a) The conduct of an actor with a physical disability is negligent only if the conduct does not conform to that of a reasonably careful person with the same disability.
(b) The conduct of an actor during a period of sudden incapacitation or loss of consciousness resulting from physical illness is negligent only if the sudden incapacitation or loss of consciousness was reasonably foreseeable to the actor.
(c) An actor’s mental or emotional disability is not considered in determining whether conduct is negligent, unless the actor is a child.

Question 29

Mental Illness

Answer 29

The mental illness of the actor is usually not taken into account when evaluating the reasonableness of the conduct.
In certain states, unless it is a sudden strike of insanity, which the individual could not have predicted.
Not all types of insanity vitiate responsibility for a negligent tort. The question of liability in every case must depend upon the kind and nature of the insanity.

Question 30

Mental Illness Pt. 2

Answer 30

the effect of the mental illness or mental hallucination must be such as to:
1. affect the person’s ability to understand and appreciate the duty which rests upon him to drive his car with ordinary care, or
2. It must affect his ability to control his act in an ordinarily prudent manner
3. there must be an absence of notice or forewarning.

Question 31

Duty - People with Disabilities & Children: Physical Disabilities (Roberts v. Louisiana)

Answer 31

1. A disabled individual is not negligent if he takes the same precautions an ordinary reasonable person afflicted with the same disability would take under the same circumstances.
2. Duty of Care is a question is for the judge NOT the Jury.

Question 32

Duty - People with Disabilities & Children: Mental Illness

Answer 32

(Breunig v. American Family Ins. Co.)
1. Insanity may be a defense to liability for negligence if an individual is suddenly overcome without forewarning by a mental disability or disorder that makes him incapable of conforming his conduct to the standards of a reasonable man under like circumstances.
2. Big difference between physical and mental disabilities. The policy basis of holding a permanently insane person liable for his tort is:
a. Where one of two innocent persons must suffer a loss it should be borne by the one who occasioned it;
b. to induce those interested in the estate of the insane person (if he has one) to restrain and control him; and
c. the fear an insanity defense would lead to false claims of insanity to avoid liability

Question 33

Duty - People with Disabilities & Children: Second Mental Illness case

Answer 33

Summer v. Steinman

If one consents to work with a mentally incapacitated person and knowns they have violent tendencies, when injured they cannot bring forth a negligence claim as no duty was breached.

Question 34

Rest. Ch. 5 §§ 10 - Children

Answer 34

a. (a) A child’s conduct is negligent if it does not conform to that of a reasonably careful person of |
b. the same age, intelligence, and experience, except as provided in Subsection (b) or (c).
c. (b) A child less than five years of age is incapable of negligence.
d. (c) The special rule in Subsection (a) does not apply when the child is engaging in a dangerous activity that is characteristically undertaken by adults.

Question 35

Notes on Duty

Answer 35

Forgetfulness does not negate negligence - when distracted attention makes it reasonable to forget, it is not negligence.

Judges decide the duty, and juries decide the breach

Voluntary intoxication cannot take into account

Question 36

Duty - People with Disabilities & Children: Children (Robinson v. Lindsay)

Answer 36

1. An adult standard of care should be applied to a minor engaging in an inherently dangerous activity, such as the operation of a powerful motorized vehicle.

Snowmobile accident case

Question 37

Duty of Professionals (General Standards)

Answer 37

The reasonable person standard within a particular profession is an objective standard and does not vary based on an individual’s personal training and experience within that profession. See Heath v. Swift Wings, Inc

Question 38

Who are Professionals?

Answer 38

Accountants, Architects, Engineers, Attorneys, designers of group health insurance, doctors, dentists, and veterinarians.
Pharmacists (minority view)
Not professional: Clergy, teachers, pharmacists (majority view).

Question 39

Duty of Professionals (Knowledge and Skills) - Rest. Ch. 5 § 12 – Knowledge and Skills

Answer 39

1. If an actor has skills or knowledge that exceed those possessed by most others, these skills or knowledge are circumstances to be taken into account in determining whether the actor has behaved as a reasonably careful person.

Question 40

Duty of Professionals (Attorneys) (Hodges v. Carter)

Answer 40

1. Individuals within a particular profession are under a duty to act with the same standard of care as would an ordinary, rational member of that profession.

Question 41

Duty of Professionals (Attorneys)

Answer 41

Ordinarily when an attorney engages in the practice of the law and contracts to prosecute an action on behalf of her client, she impliedly represents that:
1. she posses the requisite degree of learning, skill, and ability necessary to the practice of his profession and which others similarly situated ordinarily possess;
2. She will exert her best judgement in the protection of the litigation entrusted to her; and
3. She will exercise reasonable and ordinary care and diligence in the use of her skill and in the application of her knowledge to her client’s cause.

Question 42

Duty of Professionals (Custom)

Answer 42

1. General Rule
   a. Custom is relevant to determining the standard of car but not dispositive
   i. In the majority of states, the reasonable person standard applies. Custom is relevant to that determination but not dispositive.
   b. Malpractice - custom is dispositive as a shield
   i. In majority of states, compliance with custom = no breach of duty in the context of malpractice.
   c. Juries put more weight on custom - pro industry
   d. If a doctor can convince them that they did what an ordinary doctor would do, then it should work

Note: Custom is not treated as conclusive but it still has a role.

Question 43

Medical Malpractice - General Standards (Boyce v. Brown)

Answer 43

1. Before a doctor can be held liable for malpractice, he must have done something in his treatment of the patient that the recognized standard of good medical practice in the community in which he is practicing forbids in such cases, or he must have neglected to do something that such a standard requires.
2. The standard care in a professional malpractice case must be established by expert testimony unless it is something within the knowledge and experience of lay jurors.

Question 44

Medical Malpractice - Informed Consent (Moore v. Regents of the Univ. of Calif.)

Answer 44

1. (1) A physician has a fiduciary duty to disclose all material personal interests that may influence her professional judgment before securing a patient’s informed consent to medical treatment.
2. (2) Once cells leave a patient’s body, they are no longer that patient’s property.

Question 45

Cause of Action in Medical Malpractice Cases

Answer 45

1. Failure to provide appropriate standard of care
   a. injury result because of negligent care
   b. client would have recovered/been successful BUT FOR negligent care
2. Lack of informed consent
   a. failure to disclose material risk
   b. P would have made different decisions if properly informed.
   c. that other decision would have avoided injury that resulted.
3. Battery
   a. Failure to consent at all

Question 46

Reasonable Person

Answer 46

A reasonable person acts with reference to the average circumstance and is not liable for accidental happenings outside those average circumstances.

Question 47

Notes on Duty of Professionals

Answer 47

The person with Superior qualities or superior knowledge and experience would be liable for not using them to avert an accident.

This differs from specialized training and personal experience
Substandard judgment, knowledge ,and skills: below average,e usually ignored - learners or beginners

Tort does not guarantee outcome: the professional is only liable for negligence.

Professionals who meet the standard of care are not liable for errors in judgment that result in bad results for their clients.

Question 48

Negligence Per Se (Summing up Negligence Per Se)

Answer 48

1. Is plaintiff a member of the statute’s “protected class?”
2. Was the incident among those that the statute was intended to prevent?
3. Is it appropriate to impose liability on the Defendant? / Did defendant violate the statute without any excuse?
   a. IF YES to ALL then:
   i. P makes out prima facie case for duty and breach without having to establish that D’s conduct flunks the reasonable person/ ordinary care test.
   b. IF NO to ANY then:
   i. P cannot rely on negligence per se, but might still be able to introduce the violation as evidence suggesting that D failed to conform to the common law’s ordinary care standard (Ordinary reasonable prudent person)

Question 49

Negligence Per Se

Answer 49

Violations of a statute

Question 50

Statute

Answer 50

Similar to custom, they are relevant evidence but not conclusive.

Compliance with the statute = statute as a shield - often admissible, not conclusive, due care may require more

Noncompliance with the statute = statute as a sword to establish duty = admissible, conclusive under certain conditions (“Negligence Per Se”)

Question 51

Negligence Per Se - General Principals (Martin v. Herzog)

Answer 51

1. An omission, or failure to perform an act required by statute, constitutes negligence per se.
2. Once the conditions of negligence per se are met, State courts take 3 approaches
   a. Majority approach - conclusive of breach
   b. Minority 1 - rebuttable presumption of breach
   c. Minority 2: relevant, but no presumption.
   d. Even less weight; like noncompliance with custom
3. Regardless of the approach, the statutory violation will not always equal breach or negligence per se. Only if conditions of negligence per se are met.

Question 52

Negligence Per Se ( Excuses) - Zeni v. Anderson

Answer 52

a. The presumption that a violation of a statute constitutes a prima facie case of negligence may be rebutted by offering an adequate excuse under the circumstances of the case.
b. The above is an example of First minority approach where there is a rebuttable presumption of breach - yes they violated the statue but acting reasonably despite the statute.

Question 53

Negligence Per Se ( Excuses) - Pokora v. Wabash Ry.

Answer 53

a. An individual approaching a railroad track in a private car is not required to stop, get out of the car, and look for oncoming trains before crossing the track if doing so is not customary and may ultimately be more dangerous.

Question 54

Rest. Ch. 6 §14 - Statutory Violations as Negligence Per Se

Answer 54

a. An actor is negligent if, without excuse, the actor violates a statute that is designed to protect against the type of accident the actor’s conduct causes, and if the accident victim is within the class of persons the statute is designed to protect.
i. Protect against the type of accident the actor’s conduct causes
ii. Victim within the class of persons the statute is designed to protect
iii. Appropriate to impose tort liability on the defendant/ defendant has no excuse.

Question 55

Rest. Ch. 6 § 15 - Excused Violations

Answer 55

a. An actor’s violation of a statute is excused and not negligence if:
i. (a) the violation is reasonable in light of the actor’s childhood, physical disability, or physical incapacitation;
ii. (b)the actor exercises reasonable care in attempting to comply with the statute;
iii. (c) the actor neither knows nor should know of the factual circumstances that render the statute applicable;
iv. (d) the actor’s violation of the statute is due to the confusing way in which the requirements of the statute are presented to the public; or
v. (e) the actor’s compliance with the statute would involve a greater risk of physical harm to the actor or to others than noncompliance.

Question 56

Rest. Ch. 6 §16 - Statutory Compliance

Answer 56

a. (a) An actor’s compliance with a pertinent statute, while evidence of non-negligence, does not preclude a finding that the actor is negligent under § 3 for failing to adopt precautions in addition to those mandated by the statute.
b. (b) If an actor’s adoption of a precaution would require the actor to violate a statute, the actor cannot be found negligent for failing to adopt that precaution.

Question 57

Judicial Discretion - is it negligence per se for people to fail to report abuse they have a cause to believed occurred?

Answer 57

Does criminal statute automatically impose a common law duty?
Is there sufficient notice for everyone covered by statute?
Would the creation of a tort create “ruinous liability” without fault?/ Is liability disproportionate to the offense?
Did violation of statute cause injury?

Question 58

Notes on Negligence Per Se

Answer 58

It allows the P to take a shortcut to prove what the reasonable person would have done by reference to the statute that proves duty. When you violate the statute, that’s the breach.

Judge decide what is the purpose of the law to protect.

Mandatory report laws are not tort law.

Question 59

Rest. Ch. 11 § 37 - No Duty of Care with Respect to Risks Not Created by Actor

Answer 59

a. An actor whose conduct has not created a risk of physical or emotional harm to another has no duty of care to the other unless a court determines that one of the affirmative duties provided in §§ 38-44 is applicable.
b. Default Rule: one person owes no duty to control the conduct of another, nor to warn those endangered by such conduct. Need a special relationship to impose any kind of duty. Why?
i. Extension of the rescue doctrine
ii. Assumes people could make things worse.
iii. Invites only those who have the necessary skills to get involved.
iv. Prevents a lot of false positives - getting involved when they don’t need to.
v. Law disfavors meddlers/busybody

Question 60

Failure to Act and Special Relationships - General Standards (Hegel v. Langsam)

Answer 60

Universities do not have a duty to regulate the private lives of their students.

Question 61

Rest. Ch. 11. § 38 - Affirmative Duty Based on Statutory Provisions Imposing Obligations to a Protest Another

Answer 61

a. When a statute requires an actor to act for the protection of another, the court may rely on the statute to decide that an affirmative duty exists and to determine the scope of the duty.
b. Example: Municipal ordinance requires landlords to provide and maintain locks on all rental properties. Tenant is robbed when there is no lock.
c. Similar to negligence per se, but used to create affirmative duty

Question 62

Failure to Act and Special Relationships - Countermoves (L.S. Ayres & Co. v. Hicks

Answer 62

1. A party may be under a legal duty to rescue a person who is helpless or in a situation of peril when the party is an invitor of the person, or when an injury results from use of an instrumentality under the control of the party.
2. A duty to rescue may be owed - i.e., a duty to take positive or affirmative steps – where defendant controls the instrumentality causing the injury.
3. Affirmative duty when someone is owned by a machine under strict control of the defendant. Store was in the best place to stop the aggravation of the injury.

Question 63

Rest. Ch. 11. § 39 - Duty Based on Prior Conduct Creating a Risk of Physical Harm

Answer 63

a. When an actor’s prior conduct, even though not tortious, creates a continuing risk of physical harm of a type characteristic of the conduct, the actor has a duty to exercise reasonable care to prevent or minimize the harm.
b. Example: Actor non-negligently causes injury to another person. Person who has been harmed asks the actor to use his cell phone to call 911. He refuses.
c. There is a continuing risk of harm; actor has duty to exercise reasonable care to prevent or minimize harm.

Question 64

Failure to Act and Special Relationships - 3rd Person Cases (J.S. and M.S. v. R.T.H.)

Answer 64

1. In determining whether a duty is to be imposed, courts must engage in a rather complex analysis that weighs and balances several, related factors, including the nature of the underlying risk of harm, that is, its foreseeability and severity, the opportunity and ability to exercise care to prevent the harm, the comparative interests of, and the relationships between or among, the parties, and, ultimately, based on considerations of public policy and fairness, the societal interest in the proposed solution.
2. If a spouse has actual knowledge or a special reason to know of the likelihood of his or her spouse engaging in sexual abuse against a particular person, the spouse has a duty to prevent or warn of the abuse.

Question 65

Rest. Ch. 11 § 40 - Duty Based on Special Relationship with Another

Answer 65

a. (a) An actor in a special relationship with another owes the other a duty of reasonable care with regard to risks that arise within the scope of the relationship.
b. (b) Special relationships giving rise to the duty provided in Subsection (a) include:
i. (1) a common carrier with its passengers,
ii. (2) an innkeeper with its guests,
iii. (3) a business or other possessor of land that holds its premises open to the public with those who are lawfully on the premises,
iv. (4) an employer with its employees who, while at work, are:
1. (a) in imminent danger; or
2. (b) injured or ill and thereby rendered helpless,
v. (5) a school with its students,
vi. (6) a landlord with its tenants, and
vii. (7) a custodian with those in its custody, if:
1. (a) the custodian is required by law to take custody or voluntarily takes custody of the other; and
2. (b) the custodian has a superior ability to protect the other.

Question 66

Failure to Act and Special Relationships - Hard Modern Case (Tarasoff v. Regents of Univ. of Ca.)

Answer 66

1. When a therapist learns from his patient about intent to do harm to a third party, the therapist has a duty to take reasonable precautions given the circumstances to warn the potential victim of danger.

Question 67

Rest. Ch. 11. § 41 - Duty to Third Parties Based on Special Relationship with Person Posing Risks

Answer 67

a. (a) An actor in a special relationship with another owes a duty of reasonable care to third parties with regard to risks posed by the other that arise within the scope of the relationship.
b. (b) Special relationships giving rise to the duty provided in Subsection (a) include:
i. (1) a parent with dependent children,
ii. (2) a custodian with those in its custody,
iii. (3) an employer with employees when the employment facilitates the employee’s causing harm to third parties, and
iv. (4) a mental-health professional with patients.

Question 68

Limited and Special Duties - Notes

Answer 68

A duty to rescue may be owed - i.e., a duty to take positive or affirmative steps - where the defendant controls the instrumentality causing the injury.

Duty to warn:
Public policy considerations
Foreseeability of harm
The spouse of a child Molester may have a duty to take reasonable steps to prevent or warn of the molestation.
When a therapist learns form his patient about intent to do harm to a third party, the therapist has a duty to take reasonable precautions given the circumstances to warn the potential victim of danger.

Affirmative duty based on statutory provisions imposing obligations to protect another is similar to negligence per se, but it is used to create an affirmative duty.

Reasonable duty within the scope of the relationship

Question 69

Privity of Contracts - Background

Answer 69

1. The areas of the law in which duty is of vital concern lie beyond the core of wrongful acts causing physical harm. There are three areas, the subject matter of this chapter, in which a duty of care is central in establishing liability.
   a. (1)The, often wrongful, act of a third party or a natural event has caused physical harm to plaintiff that defendant has failed to take affirmative steps to prevent or ameliorate;
   b. (2)The negligent act causes non-physical harm, i.e., emotional distress or pure economic loss; and
   c. (3)The negligent act causes losses in birth or conception where the traditional categorizations of personhood are incapable of bestowing a cause of action. This third area demonstrates that technological advances and social change may give rise to new interests that may be protected by negligence.

Question 70

Nonfeasance

Answer 70

In general, promise alone and its breach, will only sustain a breach of contract action; no tort action can be maintained.

Question 71

Exceptions to the rule of nonfeasance

Answer 71

i. One is that a public utility or common carrier that has undertaken the duty of serving the public becomes liable in tort when it fails to do so, whether or not it has made a contract.
ii. Another is that a defendant who makes a contract without the intention to perform is regarded as committing a form of misrepresentation or fraud for which a tort action of deceit will lie.
iii. Promises or undertakings may form the foundation of a special relationship sufficient to impose a duty of care in negligence to take affirmative action to protect a person from harm.

Question 72

Misfeasance

Answer 72

When the defendant misperforms the contract, the possibility of recovery in tort is greatly augmented
a. In the US extended to any type of contract
b. the question may arise whether the defendant has gone so far in his performance, as distinguished from mere preparation for it, as to have undertaken a tort duty.

Question 73

Classic Early Case (Winterbottom v. Wright)

Answer 73

A plaintiff who lacks privity of contract with a defendant may not sue the defendant based on negligent performance of a contract made between the defendant and a third party.

Question 74

Classic Case (MacPherson v. Buick Motor Co.

Answer 74

1. A manufacturer of articles that are not inherently dangerous but that may become dangerous when improperly constructed owes a duty of care to anyone beyond the purchaser who might foreseeably use the articles, when it is reasonable to expect no further tests will be performed.
2. A manufacturer owes a duty of care to users beyond the original purchaser if the manufacturer knowns the product:
   a. Is reasonably likely to create a danger if it’s negligently manufactured
   b. Will be used by people other than the original purchaser and without additional testing

Question 75

Contract and Tort (H.R. Moch Co. v. Rensselaer Water)

Answer 75

1. (1) A contract to supply services to a city is generally not for the benefit of individual residents such that a resident may sue for the contract’s breach.
2. (2) An individual may not be liable for negligence based on an omission if the failure to act itself does not constitute the commission of a wrong or advance harm.

Generally there’s no liability for utility companies
Some courts have found utility companies liable. If the P can prove either that they specifically were a thrid party beneficiary to the contract between the utility company and the government organization they have contracted with or some courts have interpreted the role of utility of companies as having public duty right.

Question 76

Notes on Limited Duty privity of contract

Answer 76

Liability rested soley in contract and which could not extend beyond those in privity.

The privitiy limitation lasts longer with regard to those who preform services.

Question 77

Owners & Occupiers of Land - Outside of the premises

Answer 77

Conditions:
1. How to gague reasonableness of the duty of care?
a. Location: Urban v. rural
b. Use: commercial and non-commercial
c. Customary Practice
d. Artificial v. natural conditions

Question 78

Outside the Premises - Conditions (Taylor v. Olsen)

Answer 78

1. In terms of attention to his roadside trees, a landowner must take reasonable care to prevent an unreasonable risk of harm.

Question 79

Owners & Occupiers of Land - Outside of the premises

Answer 79

Activities
1. Old common rules distinguish between Static and Active Conditions (more liability for static)
a. Exception of knowledge of the risk (notice)

Question 80

Outside the Premises - Activities (Salevan v. Wilmington Park, Inc.)

Answer 80

1. An owner of a ballpark must take reasonable precautions for the protection of the public outside the park.

Question 81

Rest. Ch. 12 § 54 - Duty of Land Possessor To Those Not On The Land

Answer 81

a. (a) The possessor of land has a duty of reasonable care for artificial conditions or conduct on the land that poses a risk of physical harm to persons or property not on the land. Pe
b. (b) For natural conditions on land that pose a risk of physical harm to persons or property not on the land, the possessor of the land
i. (1) has a duty of reasonable care if the land is commercial; otherwise
ii. (2) has a duty of reasonable care only if the possessor knows of the risk or if the risk is obvious.
c. (c) Unless Subsection (b) applies, a possessor of land adjacent to a public walkway has no duty under this Chapter with regard to a risk posed by the condition of the walkway to pedestrians or others if the land possessor did not create the risk.

Question 82

What is a Trespasser

Answer 82

What: Someone who enters your land without consent or privilege (ask if flagrant or not)
Who: Customer who refuses to leave after closing time or anyone who intentionally, physically invades your property
Duty: No duty unless aware of presence; minimal warning on latent dangers. (If flagrant, no willful or wanton actions).

Question 83

Trespassers

Answer 83

To trespassers, the duty is not one generally to exercise reasonable care.
A duty does arise but it is limited - it is based on “common human conduct to avert injury to others from means which can be controlled.” This required some knowledge of the trespassers presence.
This did not encompass any duty to take measures to make the track safe against the arrival of trespassers.

Question 84

Trespassers (Sheehan v. St. Paul & Duluth Ry.)

Answer 84

1. A railroad company owes a duty to a trespasser on its tracks only after the company has actual notice of the trespasser’s presence on the tracks.

Question 85

Rest. Ch. 12 §52 - Duty of Land Possessors to Flagrant Trespassers

Answer 85

a. (a) The only duty a land possessor owes to flagrant trespassers is the duty not to act in an intentional, willful, or wanton manner to cause physical harm.
b. (b) Notwithstanding Subsection (a), a land possessor has a duty to flagrant trespassers to exercise reasonable care if the trespasser reasonably appears to be imperiled and
i. (1) helpless; or
ii. (2) unable to protect him- or herself.

Question 86

Factors that make someone Flagrant

Answer 86

a. (1) entry that results in the commission of a crime directed at the land possessor or the land possessor’s family, guests, or property;
b. (2) entry for the purpose of committing such a crime, even if it is not accomplished;
c. (3) entry for another illegal or improper purpose;
d. (4) entry despite efforts by the land possessor to prevent trespass and specifically to prevent entrance by the plaintiff;
e. (5) the extent of effort by the plaintiff to defeat the exclusion efforts of the land possessor, including such acts as ignoring no-trespassing signs and defeating gates, fences, or locks;
f. (6) repeated trespasses by the plaintiff, especially in defiance of communication by the land possessor seeking to bar such entries; and
g. (7) entry that results in damage to the land possessor’s person, family, or property.

Question 87

Children & Attractive Nuisance Doctrine

Answer 87

1. A principal reason for this is society’s interest in protecting children from serious injury.
   Restatement of Torts § 339 - Attractive Nuisance - “Artificial Conditions Highly Dangerous to Trespassing Children.”
2. A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if
   a. (a)the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and
   b. (b)the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and
   c. (c)the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and
   d. (d)the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and
   e. (e)the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.

Question 88

Notes on Children & Attractive Nuisance Doctrine

Answer 88

Most of legal devices have imposed on landowners the duty to exercise a higher standards of care towards children.
Attractive nuisance is a dangerous condition on a landowner’s property that may particularly attract children onto the land and pose a risk to their safety.

Treat trespassing children the same as an invitee, must exercise reasonable care to eliminate potential dangers or provide adequate warning.

Question 89

What is a Licensee

Answer 89

Who: Someone who enters with permission but who goes for their own purpose
What: Social guest; friends; family; neighbors dropping by; unsolicited door-to-door salesman, first responders
Duty: Avoiding willful/reckless harm; warning of dangerous conditions (esp. latent ones)

Licensees don’t get the full duty of care, but the landowner still have a duty to give a warning.

Question 90

Licensees (Barmore v. Elmore)

Answer 90

1. Towards an invitee, the owner of the premises has a duty to exercise reasonable care in keeping the premises reasonably safe for use by the invitee. [C] There may be circumstances by which this duty is extended to include the responsibility to protect the invitee from criminal attacks by third parties.
2. To be an invitee, a person must enter someone else’s premises for an activity or business purpose that benefits the premises owner.

Question 91

What is an Invitee

Answer 91

Who: Someone who enters with permission in furtherance of land possessor’s business
What: Customers, contractors, Service personnel, employees, mail delivery
Duty: Full duty of care to keep premises reasonably safe

The rule is generally that the landowner need to protect an invitee.

Question 92

Invitees (Campbell v. Weathers)

Answer 92

1. The writer cannot subscribe to the theory that a regular customer of long standing is not an invitee to use toilet facilities required by law to be provided by the owner of a restaurant, simply because the customer had not actually made a purchase on the particular occasion of his injury, prior to his injury.
2. An invitee is an individual who is invited onto the premises as a member of the general public in furtherance of the premises owner’s business.

Question 93

Change of Status (Whelan v. Van Natta)

Answer 93

1. A landowner is subject to liability to another as an invitee only for injury the invitee sustained while on the land in the scope of the invitation.

If the invitee goes outside of the area of his invitation, they become a trespasser or licensee, depending on whether he goes there without consent of the possessor or with such consent. If they have consent they are a licensee, not a trespasser.

Question 94

Rest. Ch. 12 § 51 - Liability for Physical and Emotional Harm (2012)

Answer 94

a. which provides that a possessor of land owes a duty of reasonable care to entrants on the land with regard to natural and artificial conditions, among other things.

Question 95

Firefighter Rule

Answer 95

1. On the other hand, both fire and police officers have generally been held to enter under a bare license conferred by the law, and so to be no more than licensees. This means, however, that if defendant knows they are present, he must warn them of known dangers which they are unlikely to discover.
2. provides for a unified duty owed to entrants, it eliminates the need to classify separately the status of firefighters, police officers, and other professional rescuers. Most jurisdictions that limit the possessor’s liability to rescuers do so on grounds other than the rescuer’s status on the land. One approach is that, since professional rescuers, and their workers compensation payments are paid by the tax payers, it would be inappropriate to hold tax payers liable for injuries suffered by the rescuers, thereby charging the tax payer twice.

Persons privileged to enter irrespective of landowner’s consent.

There’s no liability to first responders for dangers that are inherent and foreseeable on the job.

Question 96

Off-Premises Claimant

Answer 96

Who: Someone who hasn’t entered your property, but is affected by activities conducted on it.
What: Anyone who is affected by activities
Duty: Varies; some states don’t recognize a duty to “take home” exposure claimants.
Artificial condition, urban areas

Question 97

Rejection & Merger of Categories (Rowland v. Christian)

Answer 97

1. The proper test to be applied for determining the liability of a landowner is whether in the management of his property he has acted as a reasonable man given the probability of injury to others, and, although the plaintiff’s status as a trespasser, licensee, or invitee may have some bearing on the question of the landowner’s liability, this status alone is not determinative

Question 98

Lessor and Leasee - General Standards (Borders v. Roseberry)

Answer 98

1. A landlord is under no obligation to repair or remedy a defective condition on the leased premises known to both the landlord and the tenant.
2. No liability upon the landlord, either to the tenant or to others entering the land, Except in the six grounds set forth:
   a. (1) the dangerous condition is known to the landlord and the lessee does not know or has no reason to know of it;
   b. (2) the condition is dangerous to others outside the property;
   c. (3) the property is leased for admission of the public;
   d. (4) the landlord retains control over parts of the property and the lessee is entitled to use those areas;
   e. (5) the landlord contracts to make repairs; or
   f. (6) the landlord is negligent in making repairs. The first four exceptions are inapplicable to this case.

Question 99

Lessor and Leasee - General Standards (Borders v. Roseberry) Pt. 2

Answer 99

General rule: no obligation to repair a damaged property if it was previously known
Assumption: temporary transfer or ownership and with that goes liability

Question 100

Moving to Negligence (Pagelsdorf v. Safeco Ins. Co.)

Answer 100

1. A landlord must exercise ordinary care toward his tenant and others on the leased premises with the tenant’s permission.
2. Public policy - no liability rule should be replaced with negligence?
   a. Growing recognition of implied warranty of liability - landlord owes you certain duties and you have the right to a livable, safe place to live. It’s implied even if not explicitly stated.
   b. Lease is really an ordinary contract.
3. New Rule:
   a. Landlord owes his tenant or anyone on the premises with the tenant’s consent a duty to exercise ordinary care. This duty is based on the “implied warranty of habitability.”
   b. A person lawfully on the premises who is injured as a result of landlord’s negligence in maintaining the premises is entitled to recover under general negligence principles.

Question 101

Special Rules Regarding Dangerous Activities on your land

Answer 101

For obviously dangerous activities, you don’t actually have to have a warning.
For non-obvious dangers, or what the law calls a latent danger/ hidden danger, that presents non-obvious risks. You have to have at least minimal warning.

Question 102

If you were on the property to directly or indirectly conduct business to shop or for other purposes that might results in financial advantage for the owner

Answer 102

You are going to be the invitee.

Question 103

Breach (Proof of Negligence): How does the plaintiff prove “due care”/ Standard of care requires:

Answer 103

i. What a reasonable person would do under the circumstances
ii. Cost-benefit analysis (“the Hand formula”)
iii. Custom - relative not determinative factor
iv. Statutes (Negligence Per Se/ evidence for failing to conform to the common law’s ordinary care standard)
1. Actual evidence of a breach depends on 3 factors

Question 104

How do you prove breach?

Answer 104

i. Showing of evidence/ proof
ii. Plaintiffs use two steps
1. Identify a particular precaution that could have been taken and prove they did not take it.
a. Demonstrating they should have made a different decision altogether.
b. i.e. making enough pressure on an incision
2. Prove that a reasonable person would have taken the precaution/ wouldn’t have acted like the Defendant. Establish the precaution means a reasonable person would have done it and prove it by the preponderance of the evidence
a. preponderance of the evidence
i. More likely than not that there was a breach of duty (51%)

Question 105

Types of proof of Negligence (breach)

Answer 105

i. Direct evidence (Rare)
1. Witness saw someone drop a banana told the store about the banana, no one did anything, Plaintiff slipped an hour later.
ii. Circumstantial Evidence (typical)
1. Plaintiff offers indirect evidence form which jury can infer negligence
iii. Res Ipsa Loquitur (“the thing speaks for itself”)
1. Under Defendant’s control and no other plausible explanation for injury

Question 106

Circumstantial Evidence (typical)

Answer 106

Plaintiff offers indirect evidence form which jury can infer negligence

Question 107

Circumstantial Evidence Examples

Answer 107

Slip and Fall Cases:

i. Goddard v. Boston & Maine R.R.
1. To maintain a claim of negligence for breach of a duty of care, the plaintiff must prove that the defendant was actually negligent.
2. needs stronger evidence to prove the railroad company breached their duty
ii. Anjou v. Boston Elevated Ry.
1. A railroad company negligently breaches its duty of care by not keeping its platforms free of debris.
2. had a blackened banana peel - no testimony or direct evidence but there was testimony about the banana peel. Had been there long enough to remove it.
iii. Joye v. Great Atlantic & Pacific Tea Co.
1. A store owner owes its customers a duty of care in keeping the store reasonably safe and the burden is on the customer to show that that duty is breached.
2. Can’t tell how long it was there - somewhere in between.
3. Circumstantial evidence that the floor had been swept and no evidence to tell when the peel was there.
4. Claimed they should have ruled for the defendant due to lack of sufficient evidence. Issue is getting to the jury - needs to prove duty and sufficient evidence to move forward.
5. Constructive notice is a legal decision that person should have known as a reasonable ordinary person.
a. The plaintiff need not show actual knowledge where evidence suggests that the dangerous condition was present for a sufficient period of time to charge the owner with constructive knowledge of its existence. Knowledge may be shown by circumstantial evidence “which is nothing more than one or more inferences which may be said to arise reasonably from a series of proven facts.” [C] Whether a dangerous condition has existed long enough for a reasonably prudent person to have discovered it is a question of fact for the jury, and the cases do not impose exact time limitations.
iv. Ortega v. Kmart Corp.
1. In a slip and fall case, the plaintiff may demonstrate that the storekeeper had constructive notice of the dangerous condition in question if he can show that the area had not been inspected within a reasonable period of time such that an employee exercising due care would have discovered and corrected the condition.
2. No evidence
a. Allows them to rely solely on the owner’s failure to inspect the premise - Cali law
b. Plaintiff has the burden of producing evidence - needs to last for a sufficient amount of time.
c. Can meet it through constructive notice if the area has not been inspected in a reasonable amount of time.
d. Good example how the burden of proof and evidence work together.
v. Jasko v. F.W. Woolworth Co.
1. A storeowner’s notice of a dangerous condition causing a slip and fall injury need not be proved if the dangerous condition is inherent in the storeowner’s business.
2. Unable to show food had been dropped long enough, was able to show the condition created a dangerous condition in the first place.
3. Selling pizza on wax paper while standing proves they will drop it on the floor. No matter how much they clean the floor they still fall.
vi. H.E. Butt Grocery Co. v. Resendez
1. A display of produce for customer sampling does not, by itself, constitute an unreasonable risk of harm to customers supporting negligence liability.
2. How fact sensitive they are - that’s what makes the case

Question 108

Circumstantial Evidence - how to prove it.

Answer 108

i. What can plaintiff prove using circumstantial evidence?
1. Prove somebody dropped something
2. Long time has passes without cleaning
3. Infer constructive knowledge (when no inspection made)
4. Defendant failed to remove dangerous condition

Question 109

Constructive notice

Answer 109

is a legal decision that person should have known as a reasonable ordinary person.
a. The plaintiff need not show actual knowledge where evidence suggests that the dangerous condition was present for a sufficient period of time to charge the owner with constructive knowledge of its existence. Knowledge may be shown by circumstantial evidence “which is nothing more than one or more inferences which may be said to arise reasonably from a series of proven facts.” [C] Whether a dangerous condition has existed long enough for a reasonably prudent person to have discovered it is a question of fact for the jury, and the cases do not impose exact time limitations.

Question 110

Circumstantial Evidence Notes:

Answer 110

Future business owner could take advanced notice to avoid liability and satisfy the standard of care.

Question 111

Res Ipse Loquitor

Answer 111

meet conditions allows you to go to a jury without evidence - speaks to breach

Question 112

Rest. Ch. 6 § 17 - Res Ipsa Loquitor

Answer 112

1. The fact finder may infer that the defendant has been negligent when the accident causing the plaintiff’s harm is the type of accident that ordinarily happens as a result of negligence by a class of actors which the defendant is the relevant member

Question 113

Indications res ipsa might apply:

Answer 113

The instrumentality inflicting the harm is under the exclusive control of the defendant.
b. Only in certain jurisdictions whether the defendant has exclusive or superior access to information about the incident (see note 6 pg 271 for these jurisdictions).

Question 114

Defendant’s Superior Knowledge

Answer 114

It has sometimes been said that the basis of res ipsa loquitur is the defendant’s superior knowledge, or ability to obtain evidence, as to just what has occurred; or in other words, that the purpose of the rule is to “smoke out” evidence that the defendant has or can get, and the plaintiff cannot.

Question 115

3. Two elements of Res Ipsa Loquitor (not from restatement):

Answer 115

a. Kind of accident that only occurs if someone in D’s position breaches a duty of care to someone in P’s position.
b. Any potential cause of the injury other than the defendant’s negligence can be eliminated by the evidence.
i. Done by showing the thing that caused the injury was in the exclusive control of the D or it’s agents.
ii. Cannot show this, P should be able to show that control was so great that it was more likely than not to cause the injury.

Question 116

Effects of Res Ipsa Loquitor Instruction

Answer 116

Varries by jurisdiction (Trial Practice)
1. It permits an inference of negligence but does not demand one
2. Raises a presumption of negligence that the defendant must rebut (otherwise defendant found liable)
3. Raises a presumption of negligence and shifts the burden of proof to the defendant to prove his negligence did not cause the injury (someone else caused the injury. If not successful, loses).

Question 117

Res Ipsa Loquitur Information Source

Answer 117

General experience, common knowledge, common sense of community, expert testimony.

Question 118

Res Ipsa: Classic Case (Byrne v. Boadle)

Answer 118

1. If injury of a type that does not typically occur without negligence does occur, negligence is presumed from the mere fact of the occurrence.

Question 119

Res Ipsa: Exclusive control (Larson v. St. Francis Hotel)

Answer 119

a. For a defendant to be liable under res ipsa loquitur, the plaintiff must prove that the instrument that caused the accident was under exclusive control of the defendant and that if the defendant was using ordinary care, the accident would not have occurred.

Question 120

Res Ipsa: Exclusive control (Cruz v. DaimlerChrysler Motors Corp.)

Answer 120

a. An inference of negligence is permitted only when (1) the event is of a kind that ordinarily does not occur in the absence of negligence, (2) other responsible causes are sufficiently eliminated by the evidence, and (3) the inferred negligence is within the scope of the defendant’s duty to the plaintiff.

Question 121

Res Ipsa: Medical Malpractice (James v. Wormuth)

Answer 121

1. In the context of a medical malpractice lawsuit based upon a foreign object being left inside the body, res ipsa loquitur is applicable only if the object is unintentionally left in a patient following an operative procedure.

Without Res Ipsa Loquitor, a patient who received permanent injuries of serious character, obviously the result of someone’s negligence would be entirely unable to revoer unless the doctors and nurses and attendants voluntarily chose to disclose the identity of the negligent person and the facts establishing liability.

Question 122

Res Ipsa: Procedural Effect (Sullivan v. Crabtree)

Answer 122

1. Although the mere fact of an occurrence of an accident is an inference of negligence, it is not conclusive and a jury still must make a determination on the most probable evidence.

Just bc jury could infer negligence doesn’t mean they’re gonna get all the way there.

Question 123

Rest. Ch. 8 § 26 - Factual Cause

Answer 123

1. Tortious conduct must be a factual cause of harm for liability to be imposed. Conduct is a factual cause of harm when the harm would not have occurred absent the conduct. Tortious conduct may also be a factual cause of harm under § 27.
2. Ask the counterfactual: Would injury have occurred if defendant had taken the appropriate precaution?

Question 124

Factual Causation: Standard Test

Answer 124

i. “but for” Defendant’s breach. Would plaintiff have been injured?
ii. If but for Defendant’s breach, plaintiff would not have been injured –> Causation
1. If D’s breach needs to happen for P to be injured, it is a cause of P’s injury
iii. If but for Defendant’s breach. Plaintiff would have been injured –> no causation
1. If P’s injury was going to happen anyway, regardless of whether D was careless, D’s breach is not a cause of the injury

Note: P must prove D’s breach probably (more likely than not) needed to happen for P to be injured.

Question 125

But For Cause (Perkins v. Texas…Ry.)

Answer 125

i. It is fundamental that negligence is not actionable unless it is a cause in fact of the harm for which recovery is sought. It need not, of course, be the sole cause. Negligence is a cause in fact of the harm to another if it was a substantial factor in bringing about that harm.

Question 126

Proof of Causation - General Standards (Reynolds v. Texas & Pac Ry.)

Answer 126

1. Where the negligence of the defendant greatly increases the chance of an accident, the mere possibility that the accident might have happened absent the negligence is not sufficient to break the chain of cause and effect between the negligence and the injury.

When a defendant’s negligent conduct increases the likelihood of harm (“greatly multiples the chances of the accident”), the fact that it might have happened even in the absence of negligent conduct is not enough to breach the cause-and-effect sequence.

Question 127

Proof of Causation: Standard of Proof (Gentry v. Douglas Hereford Ranch…)

Answer 127

1. A negligence action requires proof of four elements: (1) existence of a duty; (2) breach of the duty; (3) causation; and (4) damages. If the plaintiff fails to offer proof of one of these elements, the action in negligence fails and summary judgment in favor of the defendant is proper. [C] The causation element requires proof of both cause in fact and proximate cause.
2. Where cause in fact of an accident cannot be proven, speculation is not sufficient to defeat a motion for summary judgment.
3. Causation requires that link must be made, through the evidence and the inferences that can be drawn from the evidence, between the negligent conduct and the injury. Mere speculation is not enough.

The link must be made, through the evidence and the inferences that can be drawn from the evidence, between the negligent conduct and the injury. Mere speculation is not enough. Possibility, not actual evidence.

Question 128

Proof of Causation: Standard of Proof (Kramer Service, Inc. v. Wilkins)

Answer 128

1. It is not enough that negligence of one person and injury to another coexisted, but the injury must have been caused by the negligence.
   it is not enough for P to prove that the negligent conduct might have caused the harm. P must prove that the neligent conduct more likely than not was the cause of the harm.

Question 129

Concurrent Causes - Separate Acts (Hill v. Edmonds)

Answer 129

1. Where separate acts of negligence combine to produce directly a single injury each tortfeasor is responsible for the entire result, even though his act alone might not have caused it.

Question 130

Concurrent Causes - Substantial Factor (Anderson v. Minneapolis, St. P & S. St. M. R.R.)

Answer 130

1. Someone who negligently starts a fire may be liable if the fire damages a property in combination with a fire of unknown origin, and either fire would have damaged the property independently of the other, if the negligently started fire was a material factor in the destruction.

Question 131

Alternative to “but for” test - Concurrent Conduct

Answer 131

Neither act alone would cause the injury - each of the tortfeasors is liable for the full amount.

Either act could have alone caused the injury (each act alone is a sufficient actor) - each of the tortfeasors is liable for the full amount.

Question 132

Alternative to “but for” test - Unrecognized tortfeasors

Answer 132

Shifting the burden of proof to Defendant, if three conditions are met:
1. there are two (or more) defendants, acting independently;
2. Both (or all) possible tortfeasors before the courts;
3. Fault of only one defendant was necessary for P’s injury, but which one is unknown.

each defendant must disprove that their carelessness was a cause of P’s injury or actual causation is preseummed.

Question 133

Problems in Determining Who Caused Harm - Classic Case (Summers v. Tice)

Answer 133

1. It has been held that where a group of persons are on a hunting party, or otherwise engaged in the use of firearms, and two of them are negligent in firing in the direction of a third person who is injured thereby, both of those so firing are liable for the injury suffered by the third person, although the negligence of only one of them could have caused the injury.
2. Under the doctrine of alternative liability, two independent tortfeasors may be held jointly liable if it is impossible to tell which one caused the plaintiff’s injuries, and the burden of proof will shift to the defendants to either absolve themselves of liability or apportion the damages between them.

Question 134

Problems in Determining Who Caused Harm - Market Share (Sindell v. Abbott Laboratories)

Answer 134

1. If multiple manufacturers of fungible goods are named as defendants in a negligence action and it cannot be determined which manufacturer caused the precise harm complained of, the manufacturers will be held proportionately liable in accordance with their market share in the market of the good that caused the injury.
2. Not all states adopted this approach - Cali and 5 other states adopted this.
   a. New York
   b. Washington
   c. Florida
   d. Wisconsin
   e. Michigan

Question 135

Large-scale tortfeasors identification problem - substantial market share test

Answer 135

The burden will shift to each D to prove that it did not manufacture the design to which the P was exposed.
D who cannot do that are going to be held liable
Damages are going to be apportioned to the market share of Ds.

Question 136

Rest. Ch. 8 § 27 - Multiple Sufficient Causes

Answer 136

1. If multiple acts occur, each of which under § 26 alone would have been a factual cause of the physical harm at the same time in the absence of the other act(s), each act is regarded as a factual cause of the harm.

Question 137

Rest. Ch. 8 § 28 - Burden of Proof

Answer 137

1. (a) Subject to Subsection (b), the plaintiff has the burden to prove that the defendant’s tortious conduct was a factual cause of the plaintiff’s harm.
2. (b) When the plaintiff sues all of multiple actors and proves that each engaged in tortious conduct that exposed the plaintiff to a risk of harm and that the tortious conduct of one or more of them caused the plaintiff’s harm, but the plaintiff cannot reasonably be expected to prove which. actor or actors caused the harm, the burden of proof, including both production and persuasion, on factual causation is shifted to the defendants.

Question 138

Directness test

Answer 138

Was P’s injury directly caused by D’s breach?
Directly means no intervening events/remote in time or space.

Question 139

Proximate Cause - Directness test
(Polemis )

Answer 139

a. A negligent actor can be held liable for all damages his negligent act caused, even if not reasonably foreseeable.

Question 140

Proximate Cause - Directness test
(Ryan v. New York Central R.R. )

Answer 140

a. It is a general principle that every person is liable for the consequences of his own acts.
He is thus liable in damages for the proximate results of his own acts, but not for remote damages.

Question 141

Foreseeability

Answer 141

Was P’s injury a reasonably foreseeable consequence of D’s breach?

Question 142

Proximate Cause - Foreseeability Test (Wagon Mound No. 1)

Answer 142

a. A defendant is only liable for the consequences flowing from his negligent act that are foreseeable to a reasonable person at the time of the negligent act.

Question 143

Proximate Cause - Foreseeability Test (Wagon Mound 2)

Answer 143

a. If a real risk is one which would occur to the mind of a reasonable man in the position of the defendant’s servant and which he would not brush aside as far-fetched, and if the criterion is to be what that reasonable man would have done in the circumstances, then surely he would not neglect such a risk if action to eliminate it presented no difficulty, involved no disadvantage, and required no expense.
b. In a negligence action, a defendant may be liable for disregarding a small risk if that risk has potentially massive consequences.

Question 144

Proximate Cause - Foreseeability Test (Palsgraf v. Long Island R.R.)

Answer 144

a. Negligence is not a tort unless it results in the commission of a wrong, and the commission of a wrong imports the violation of a right, in this case, we are told, the right to be protected against interference with one’s bodily security. But bodily security is protected, not against all forms of interference or aggression, but only against some. One who seeks redress at law does not make out a cause of action by showing without more that there has been damage to his person. If the harm was not willful, he must show that the act as to him had possibilities of danger so many and apparent as to entitle him to be protected against the doing of it though the harm was unintended. Affront to personality is still the keynote of the wrong.
b. The case established the principle that negligence is only actionable if it directly involves a foreseeable risk of harm to the person claiming injury.
c. Cardoza = question of duty
d. Andrew = a question of proximate cause

Question 145

3rd Restatements Ch. 9 § 29 - Limitations on liability for Tortious conduct

Answer 145

1. An actor’s liability is limited to those harms that result from the risks that made the actor’s conduct tortious.
2. Third restatement uses a scope of liability terminology, but courts tend to use phrase “proximate cause.”

to determine proximate cause, the question is whether P’s injury is among those that render d’s conduct careless.

Question 146

3rd Restatement: Ch. 9 § 31 - Preexisting conditions and unforeseeable Harm

Answer 146

1. When an actor’s tortious conduct causes harm to a person that, because of a preexisting physical or mental condition or other characteristics of the person, is of a greater magnitude or different type than might reasonably be expected, the actor is nevertheless subject to liability for all such harm to the person.

Eggshell Plaintiff
Not all jurisdiction agree with the coverage of mental conditions

Question 147

Unforeseeable damages (eggshell plaintiff) (Bartolone v. Jeckovich)

Answer 147

1. A defendant takes the plaintiff as he finds him, including the weakness and susceptibility to injury that he already had.
2. Type of harm is unexceptional
3. 3rd restatement applies rule to both physical or mental conditions
4. Not all jurisdictions agree with coverage of mental conditions.
5. Sequence of the analysis:
   a. Must show it caused the condition - but for test
   b. Then proximate cause, should the D be liable for the occurrence (all harm)
   c. You take a P as you find them

Question 148

Rest. Ch. 9, § 34 - Intervening Acts and Superseding Causes

Answer 148

1. When a force of nature or an independent act is also a factual cause of harm, an actor’s liability is limited to those harms that result from the risks that made the actor’s conduct tortious.
   a. These issues are general for the fact finder (jury) to resolve.

Question 149

Intervening causes Notes

Answer 149

The acts of a third person that intervenes between the defendant’s negligent conduct and P’s injury will interrupt the causal link if the conduct is extraordinary, foreseeable, and independent ( in this case, D will NOT be liable), but not if it is a foreseeable consequence, flowing naturally from the situation created by the conduct (then D will be liable)

Question 150

Acts of Third Persons (Derdiarian v. Felix Contracting)

Answer 150

1. An intervening act between the defendant’s negligence and the plaintiff’s injuries will not break the causal connection and cut off liability if the intervening act was reasonably foreseeable.

Question 151

Criminal Acts of Third Persons (Watson v. Kentucky & Indiana Bridge & R.R.)

Answer 151

1. A criminal act of a third party that causes harm in concurrence with a negligent act is generally not a reasonably foreseeable consequence of the negligent act.

Question 152

Notes on Inteveneing Cause Pt. 2

Answer 152

Proximate cause: it’s a lot more focused on logic, fairness, policy, and practicality
proximate in space or time.
modern law is based on foreseeability for proximate cause but need to know both.

Fire Cases: Courts vary in where they draw the line. No uniformity in applying “first building” test. But do draw a line.

Multiple Tortfeasors –> Jury split liability

Question 153

What does a superseeding cause do?

Answer 153

Cut off causal chain

Question 154

Act of God/ Force Majure

Answer 154

the actor is liable, even for the result of an extraordinary force of nature, if the risks of that force of nature were risks against which the actor should have taken adequate caution.

Question 155

Courts sometimes describe a particular antecedent occurrence as “sufficient” to have caused harm, but not necessary. Does such an antecedent occurrence fulfill the “but for” test of causation?

Answer 155

No it doesn’t. The “but for” test requires that the occurrence be “necessary” in order for the harm to take place. If it is merely “sufficient,” then the occurrence is usually held not to have been a “but for” cause of the harm.
For example, suppose X shoots Q in the heart. X intends to kill Q, but unknown to X, Q died of a stroke a half hour earlier. X’s conduct is then “sufficent” but not “necessary” to kill is not a but for cause of Q’s death. Of course, the “but for” test is not always used. Other approaches can be more inclusive.

Question 156

What is the last clear chance of survival?

Answer 156

is when somebody was going to die anyways but D’s negligence speeds it up.

Question 157

View on last clear chance of survival?

Answer 157

The traditional view of causation holds that a negligent party is only responsible if a jury concluded that is more likely than not that a negligent party caused the harm suffered by the plaintiff. In this case, Thomas had only a 40% chance of survival even if diagnosed and treated properly. Thus, under the traditional rule, it cannot be said that “but for” Dr. Dennis’s negligence, it is more likely than not that Thomas would have died.

Question 158

Negligent Infliction of Emotional Distress/ Mental Disturbance (NIED)

Answer 158

Damages can be awarded for a definite physical injury stemming from emotional distress, even though there was no physical impact from the negligence act.

Question 159

Plaintiff needs to prove the following for NEID:

Answer 159

1. An ordinary person would have suffered such a reaction
2. proximate cause between the physical reaction and D’s negligence.

Question 160

Bystander Liability (Dilon v. Legg)

Answer 160

a. A defendant’s liability for emotional distress caused to a plaintiff largely depends upon whether the harm was reasonably foreseeable, and foreseeability can be evaluated by considering factors such as whether a plaintiff was located near the scene of an accident as opposed to some distance from it, whether the shock alleged by the plaintiff resulted from his sensory and contemporaneous observance of the accident, and whether the plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship.
b. We determine the reasonable foreseeability of harm (and hence duty) to a bystander based on the following three factors:
i. Proximity to the scene
ii. Contemporaneous observance caused the emotional harm; and
iii. Relationship between the victim and the bystander
1. Need to have a close relationship if you are the bystander

Question 161

Bystander Liability (Thing v. La Chusa)

Answer 161

a. A plaintiff may not recover damages for emotional distress caused by observing the negligently inflicted injury of a third person if she was not an eyewitness to the act that caused the injury.

Question 162

Common Approaches to direct victim liability

Answer 162

1. Impact Rule
   a. Recovery for emotional distress only if there was physical contact/harm from D’s Negligence
2. Zone of Danger Rule
   a. Recovery if in the “zone of danger” – emotional distress due to personal fear of impact.

Question 163

Common Approaches to Bystander Liability

Answer 163

1. Dillion Standard
   a. Guidelines for determining if emotional distress to bystander was “foreseeable”:
   i. Proximity to scene
   ii. Shock caused by contemporaneous observance
   iii. Close relationship between victim and bystander
2. Thing Rule
   a. Strict rule for bystander liability Requires:
   i. Presence at scene
   ii. Emotional distress greater than stanger would have
   iii. Family/marital relationship

Question 164

Separate evidentiary Q

Answer 164

1. Physical manifestation of fright required?

See Daley v. LaCroix

Question 165

Rest. Ch. 4, § 48 - Negligent Infliction of Emotional Harm Resulting from Bodily Harm to a Third Person:

Answer 165

i. An actor who negligently causes sudden serious bodily injury to a third person is subject to liability for serious emotional harm caused thereby to a person who:
1. (a) perceives the event contemporaneously, and
2. (b) is a close family member of the person suffering the bodily injury.

Question 166

Pure Economic Loss

Answer 166

General Rule: cannot be recovered under negligence
could be recovered through “economic torts” which are intentional tort:
1. deceit
2. injurious falsehood
3. Inference with contract and interference with economic opportunity.

Question 167

Damages

Answer 167

If Plaintiff establishes a prima facie case and Defendant has no complete defenses, Plaintiff is usually entitled to money damages from Defendant.
Injunctions sometimes available (e.g., nuisances)

Question 168

Sample Jury Instruction on Compensatory Damages

Answer 168

if you find that D’s negligence caused P’s injury, you must then determine an amount of money damages you find will fairly and adequately compensate P for all the physical and financial harm she sustained as a result.

The amount you award today must compensate P completely for damages sustained from the time of the harm up to today, as well as damages P will sustain in the future.

Question 169

Three Types of Damages

Answer 169

Nominal
Compensatory
Punitive

Question 170

Nominal Damages (Kenton v. Hyett)

Answer 170

Definition: Token amount ($1) for a tort without any loss

Rule for Case: An award of compensatory damages for permanent personal injury is not excessive where it reasonably relates to the nature and extent of the injuries, the victim’s age, present and future economic losses and costs, and awards made in comparable cases.

Question 171

Losses

Answer 171

Economic Losses:
future lost - counterfactual based, in part, on expert evidence, discount to present value
past expenses - collateral source rule: D not entitled to present evidence that P will recieve compensation from another source, including insurance. (Many states have modified)

Non-economic losses: e.g., pain and suffering

Question 172

Compensatory Damages

Answer 172

Money paid as compensation for the harm Plaintiff has suffered at the hands of Defendant

Question 173

Punitive Damages

Answer 173

Money paid as punishment for egregious mistreatment, or to deter further wrongdoing

Question 174

Punitive Damages: National By-Products v. Searcy House Moving

Answer 174

a. An award of punitive damages requires evidence that the defendant proceeded intentionally after knowing that the act was naturally and likely to cause injury.

Question 175

Punitive Damages: Mathias v. Accor Economy Lodging

Answer 175

A punitive-damages award is not impermissibly excessive merely because the ratio between compensatory and punitive damages exceeds single digits.

Question 176

Punitive Damages Notes Pt. 1

Answer 176

1. Punitive Damages are Rare - awarded in ~ 5% of all verdicts.
   Factfinder doesn’t have to award, even in conduct meets standards

Question 177

Punitive Damages Notes Pt. 2

Answer 177

Availability:
1. Intentional Torts
a. often, but not always, available (probably no in Vosberg)
b. Probably most often awarded for “business torts” (e.g. fraud) rather than personal injury
2. Negligence
a. P who proves only carelessness is ineligible for punitive damages (no willfulness or wantonness)
b. But eligible if P can prove carelessness that rises to the level of wantonness

Question 178

Punitive Damages - Common Law Threshold

Answer 178

Acted with intent to harm, wantonness, or such conscious indifference to teh consequences of his actions that malice may be inferred.
Many states: punitive damages against employers for employee conduct only if ratified by management.

Question 179

What do punitive damages accomplish?

Answer 179

Usual view: Punishment and deterrence.
Law & Econ View: Prevent Deterrence acts that:
1. are not likely to warrant criminal prosecution, despite criminal dimension,
2. are difficult to detect (e.g., fraud)
3. Cause minor injuries, so no individual P has incentive to sue otherwise; violence is cheaper, and/or
4. Call for low compensatory damages, so Ds can treat damages like price where they pay and offend again.

Question 180

Constitutional Limits

Answer 180

“grossly excessive” punitive damages violate Defendant’s Due Process rights; assessed by
1. Reprehensibility of D’s acts
2. Ratio of punitive damages to compensatory
3. Civil, criminal penalties for similar acts .
a. State Farm v. Campbell: “Few awards exceeding a single digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process.”

Jury may not punish the defendant for harms to non-parties (Due process - violation), but the P can introduce evidence of harm to nonparties to show risk to the general public and, therefore, reprehensibility of the D’s conduct.

Question 181

Contributory Negligence (Minority of States) - Definition

Answer 181

1. If Plaintiff’s conduct contributes to the proximate/legal cause of their injury then there is a total bar on recovery for the Plaintiff.
2. Exception: Last Clear Chance Doctrine

Question 182

Contributory Negligence - Classic First Case (Butterfield v. Forrester)

Answer 182

When a plaintiff fails to use ordinary care in avoiding an obstruction caused by a defendant, the plaintiff may not recover damages from the defendant.

Answer 183

1. First, the law could completely bar plaintiff’s claim. This approach, called contributory negligence, was taken by the court in Butterfield.
2. Second, the law could completely ignore plaintiff’s culpable conduct. This is the approach taken under most Worker Compensation Acts and No-Fault Automobile Accident Reparation Systems.
3. Third, the law could adopt one of the first two options as a general rule and then set up other rules making exceptions for designated situations. This is what the common law later did—generally adopting option 1, but allowing exceptions to it.
4. Fourth, the law could compare plaintiff’s fault with that of defendant and reduce plaintiff’s damages according to the measure of fault. This approach, usually called comparative negligence or comparative fault, has been expressly adopted in one form or another for some actions in 46 states, by statute or judicial decision. (Comparative negligence is treated in more detail after the next principal case.) Contributory negligence continues to be a complete bar to recovery in only four states (Alabama, Maryland, Virginia, North Carolina) and the District of Columbia.

Question 184

Comparative Negligence (Majority of States)

Answer 184

i. Definition: Apportionment of damages based on fault of parties.

Question 185

Comparative Negligence - General Principles (McIntyre v. Balentine)

Answer 185

Even if contributorily negligent, a plaintiff may recover, but only if the plaintiff’s negligence is less than the defendant’s negligence.

Question 186

Comparative Negligence (Majority of States) - Modern Variations (Notes)

Answer 186

1. Contributory Negligence
   a. Alabama, Maryland, North Carolina, Virginia, and District of Columbia continue to apply the common law doctrine that contributory negligence is a complete bar to recovery.
2. Most have adopted Comparative Negligence

Question 187

What’s being compared in comparative negligence?

Answer 187

1. Mechanics of Apportionment
2. Burden of Proof
3. Multiple Parties
4. Immunity
5. Relationship to Contribution

Question 188

Types of Comparative Negligence. After deciding against the “all or nothing” approach of contributory negligence, the court or legislature must decide the effect of the plaintiff’s contributory negligence on plaintiff’s recovery.

Answer 188

1. Pure Apportionment
2. Modified Apportionment (Plaintiff “Not as Great as 49%”).
3. Modified Apportionment (Plaintiff “Not Greater than 49%”).

No matter how responsible P is, even if they’re 99% responsible, they’re going to be able to recover even that small amount from defendnat.

Question 189

Pure Apportionment

Answer 189

About ten jurisdictions (e.g., Arizona, California, New York, and Washington) and several federal statutes (e.g., FELA, Jones Act) have adopted the pure comparative negligence approach. In those jurisdictions, the plaintiff’s recovery is reduced by the percentage fault attributable to the plaintiff.

Recovery in ration to fault (no matter the ratio)

Question 190

Modified Apportionment (Plaintiff “Not as Great as 49%”).

Answer 190

a. About a dozen jurisdictions (e.g., Arkansas, Colorado, Nebraska, and Tennessee) have adopted a modified form of comparative negligence in which the plaintiff’s recovery is reduced by the percentage of fault attributable to the plaintiff as long as the plaintiff’s fault is “not as great as” the defendant’s.
b. If the plaintiff’s fault is equal to or greater than the defendant’s, the plaintiff is completely barred from recovery.
i. Maine’s statute authorizes the jury to reduce the damages to “such extent as the jury thinks just and equitable having regard to the claimant’s share in the responsibility for the damage,” without actually requiring that it be proportional. Thus, the jury may reduce the amount of damages by more than the percentage of fault attributable to the plaintiff.

No recovery unless P’s fault is “not as great as the defendants” - I.e. the defendant’s fault is greater - P is responsible for 49% or less of the total damages.

Question 191

Modified Apportionment (Plaintiff “Not Greater than 49%”)

Answer 191

a. About twenty jurisdictions (e.g., Connecticut, New Jersey, Texas, and Wisconsin) have adopted a modified form of comparative negligence in which the plaintiff’s recovery is reduced by the percentage of fault attributable to the plaintiff as long as the plaintiff’s fault is “not greater than” the fault of the defendant’s.
b. If the plaintiff’s fault is greater than the defendant’s, the plaintiff is completely barred from recovery.
i. The two modified forms of comparative negligence produce a different result only in the 50/50 case.
c. No recovery unless plaintiff’s fault is “not as great as the defendants” - I.e., the defendant’s fault is greater – the Plaintiff is responsible for 49% or less of the total damages. OR
d. No recovery unless plaintiff’s fault is “not greater than defendants” - plaintiff is responsible for 50% or less of the total damages.

No recovery unless P’s fault is “not greater than defendants” - P is responsible for 50% or less of the total damages.

Question 192

Court developed method of limiting harness of contributory negligence

Answer 192

Burden of proof - the D needs to prove P’s conduct was negligent;
the application of contributory negligence is a question of negligence (breach of duty) and thus the Jury determines if there is indeed negligence on behalf of P.

Factual Causation - concurrent conduct situation - was P’s conduct the substantial factor that brought upon the injury/ damages?
Using proximate causation to assess when a complete bar on recovery is appropriate - finding bar to recovery only for injuries/damages that were foreseeable from the P’s negligence.

Question 193

Last Clear Chance

Answer 193

only applies to state with contributory negligence

saves P from the bar of the P’s contributory negligence if P can show that the negligent D had the last clear chance to avoid the accident. The P became helpless at that point, despite their own negligence.

Question 194

Multiple Defendants/ Joint Tortfeasors

Answer 194

P needs to be less at fault than all the Ds combined. Not less at fault than each D.

Different jurisdictions have different theory (against each or against all)

Question 195

Burden of proof for comparative negligence

Answer 195

it’s on D.

P was negligent and it was the proximate cause of the injuries.

Question 196

Duty to take precautions

Answer 196

The P’s duty to take precautions to avoid harms
it is failure to take precautions. Going to be considered negligence

Question 197

Duty to Mitigate

Answer 197

Doctrine of avoidable consequences.

P does have a duty to avoid further harm, if they could have, by reasonable conduct.

Question 198

Assumption of the Risk

Answer 198

1. Express
2. Implied

Question 199

Express Assumption of the Risk

Answer 199

1. Express: complete waiver of liability
   (Seigneur v. National Fitness Institute, Inc.)
   a. An exculpatory clause is unenforceable as against public policy when the bargaining powers of the parties are substantially unequal or where the contract involves an essential public service.

Terms of contract must unabiguous; exculpatory clauses can’t be against public policy:
a. usually arises in circumstances involving essential public services.
b. Courts will look at the totality of the circumstances, including whether the conduct at issues subject to public regulation or a matter of practiced necessity; whether D holds itself out to the public (at least those who meet certain requirement); whether P has no ability to protect self against negligence (e.g., paying more); whethere P is under control of D.

Question 200

Implied Assumption of the Risk

Answer 200

1. Implied: diminished recovery to Plaintiff.
2. General Standards (Rush v. Commercial Rlty Co.)
   a. Assumption of risk will not be implied and will not bar recovery where the plaintiff did not voluntarily assume the risk.

For risks P had actual knowledge of/were self-evident; P voluntarily assumed risks; and conduct causing injury was within scope of risk assumed.

Question 201

When the defense for implied assumption of the risk would be available:

Answer 201

i. Plaintiff voluntarily enters into a relation with defendant, which he knows to involve some risk.
ii. Plaintiff knows that defendant’s activity, or a condition created by him, involves some danger, but quite reasonably concludes that he can safely encounter it and proceeds.
iii. Plaintiff, fully aware of an unreasonable risk, voluntarily proceeds to encounter it.
iv. Plaintiff, appreciated the magnitude of the risk.
1. Ex: having spent half an hour in an above ground swimming pool, knows that the water is only three feet deep, dives into it, and is injured when her head strikes the bottom.

Question 202

Rest. Ch. 10, § 2

Answer 202

1. When permitted by contract law, substantive law governing the claim, and applicable rules of construction, a contract between the plaintiff and another person absolving the person from liability for future harm bars the plaintiff’s recovery from that person for the harm. Unlike a plaintiffs negligence, a valid contractual limitation on liability does not provide an occasion for the factfinder to assign a percentage of responsibility to any party or other person

Question 203

Assessing an Exulpatory Clause Based on Public Policy

Answer 203

Use Tunkl Factors:
1. It concerns a business of a type generally thought suitable for public regulation
2. The party seeking exculpation is engagede in preforming a service of great importance to the public, which is often a matter of practical necessity for some member of the public;
3. The party holds himself out as willing to preform this service for any member of the public who seeks it, or at least any member coming within certain established standards;
4. As a result of the essential nature of the services, in the economic setting of the transaction, the party invoking exculpation possess a decisive advantage of bargaining strength against any member of the public who seeks his services.
5. In exercising a superior bargaining power, the party confront the public with a standardized adhesion contract or exculpation, and makes no provision whereby a purchaser may pay additional fees and obtain protection against negligence;
6. As a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents.

Question 204

Notes on Assumption of the Risk

Answer 204

Whenever we talk about public policy, that is the way of specific cultures with a unique sense of societal expectations are going to end up treating these different topic differently.

Whether the risk that injured P fell within the unambiguous scope of the terms of the agreement.

Prove voluntary: direct evidence, circumstantial evidence; witnesses.

Question 205

Statute of Limitations

Answer 205

Procedural time limit that bars claims (non substantive bar on claim)

Question 206

Cause of action accrues

Answer 206

Generally at onset of injury

Question 207

Discovery Doctrine

Answer 207

An exception to the general rule, finding that claims accrue when injury is or should have been discovered (for claims like foreign objects in the body, medical malpractice cases)

Question 208

Tolling

Answer 208

Period (during minority, insanity, incompetence) when statue of repose are barred.

Limits time period during which cause of action can accrue
1. protect the defendant
2. substantive

Question 209

Immunity

Answer 209

avoids liability in tort under all circumstances

Question 210

Immunity - Employers (Workers Compensation System)

Answer 210

An employee who is injured on the job cannot file a poor claim against the employer or company employees, even if they were negligent.

Question 211

Immunity - Families

Answer 211

Spousal immunity - largely abolished - created bc women could not sue on their own.
Parental Immunity - Generally exists for negligent parental supervision not for intentional, willful, wanton acts or acts outside scope of parenting duties.

Question 212

Immunity - Charities

Answer 212

largely abrogated entirely; minority have limited it

Fill in the gaps of the welfare state and provide services that the government won’t

Question 213

Immunity - State Governments

Answer 213

Abrogated through state tort claims acts with limits

Question 214

Immunity - Federal Government (Federal Tort Claim Act, FTCA)

Answer 214

Immune from suit except for waiver; waiver in FCTA - with 13 excerptions including:
1. Discretionary functions (Discretionary and based on public policy considerations to further social, economic, or political goals)
2. Many intentional torts
3. Military combat activities or incident to military service

Question 215

Immunity - Public Officers (Qualified Immunity, Section 1983 suits, Bivens and Harlow based litigation)

Answer 215

Immunity for certain public officers acting within scope of employment (except, e.g., 1983 claims)
ppl can sue any public officers violate the constitution rights or state law.