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REMEMBER TO ALWAYS MENTION

INTENTIONAL TORTS (harm substantially certain)

W

what if…

ITH CAUSATION ANALYSIS,

PLAIN OLD NEGLIGENCE!!!

offense against

offense against

T

mean joke, gas man, Dr./people outside in rain, debt collectors, sexual harrasment, not for parodies of political figures

Outrageous!!

URN OVER EVERY LEAF!!!

1

1

possession

1

ownership

2

2

Battery

Trespass

Conversion

Offensive Battery

Assault

intentional entry/substantial certainty Conversion requires attempt by 3rd party to claim ownership

c

ear, phlebitis, 2nd vaccine, kidney transplants, herpes, Dr. assisted suicide/life support

onversion: converting real P into personal P / treating someone else's P as your own

DEFENSES TO INTENTIONAL TORTS

trespass to chattels: vandalism (lesser offense) no intent to harm/claim owner req'd

no changing locks, breach

3

5

5

6

6

of peace

7

7

8

implied consent (medicine & sports)

insanity (not a defense)

self-defense (even w/ 3rd party)

defense of property (only force necessary)

recapture of chattels (only if no claim of right)

necessity (servant cuts rope loose)

false imprison-ment
(awareness?)

intentional infliction of emotional distress

illegal boxing, rule infractions

Jewelry store

no spring guns

OK if force/fraud

privileged, but Ds

shoplifting, missed train

STRICT LIABILITY VS. NEGLIGENCE: HISTORY / ANALYTICAL IMPORTANCE

R

all of the facts

EAD CAREFULLY!!!

escape of dangerous substance

10

11

12

13

Early Cases (e.g. Thorns, inevitable accident, lighted squib)


Modern Approach (e.g. dogs and stick, Rylands) ultrahazardous activities

American Cases Rylands/Cairns as reasonable/unreasonable

Recent Hard Cases Bolton v. Stone (low risk events), epileptic driver

parents not vicariously liable, but special duty? negl.?

is (1) intention unlawful (2) at fault

Bramwell right to be free of foreign water Blackburn likelihood of mischief

THE CONCEPT OF NEGLIGENCE

if it escapes Cairns natural vs. unnatural

adults, elderly, children, disabled, mentally ill Batman (foreseeable)

Osborne: 1) purpose of statute 2) protected class 3) w/in type of accident

14

15

15

17

18

19

21

23

23

flour barrel, hotel guests, drunk pilot, cigarette fire, rolling logs, tonsil, escalator, cortisone shots, muscle atrophy, rongeur break (generally all potential s must be joined, but not w/rongeur)


reasona-bleness standard (haystack)

sudden emer-gency doctrine

calculus of risk (B<PL) (bargee)

customary care (TJ Hooper)

custom in medical cases

informed consent (AIDS blood)

violation of criminal statutes

dram statute liability

Res ipsa loquitur (nondele-gable duty)

also weed burning near

disfavored    

including kid saved on train tracks, man dies; powerline/Tel.

+ conditional

PLAINTIFF'S CONDUCT (things you can do to screw up chances of recovery)

res ipsa

P boundary

res ipsa (1) usu. negl. (2) exclusive control (3) no contribution

27

29

29

Bernina

30

fellow servant

31

31

contributory negl. (speeding horse, pole)

last clear chance (wagon on tracks, man ran over 3x)

imputed contrib. negl. (but not even fellow empl.)

assumption of risk (primary, secondary)

arbitration clauses

comparative negligence (e.g., pure, modified)

not empl. dangers fishmeal platform collapse no causation

"community of interest"

vibrating hatchet rack, fellow servant, flopper, ice rink

MULTIPLE DEFENDANTS (plus vicarious liability)

also not wearing seatbelts

d

2 fires converge; coat on fire, Summers v. Tice (alternative liability);

apportionment can be similar to market share liability but definite known contribution e.g. quantity of pollution

market share liab. is when actual cause unknown

irect negl. theory, hostile work environ. e.g. goosing

32

only when both definitely contributed

34

Joint and Several Liability (differs by state)

Vicarious Liability ("Respondeat Superior") (joint enterprise)

CA – J&S with contribution – each still 100% liable

incl. negl. indep. K doing dangerous work

CAUSE IN FACT

HMO – apparent/implied authority

court as expert witness

also ER Dr. / newspaper boy

37

38

38

38

"gatekeeper"

39

40

41

Rescue at Sea (no life buoys, butcausation?)

Statutory Violations
Negl. per se

Slip and Fall (but no Ds for lesser precaution, tub)

Products Liability seat belt 2 theories, drugs, asbestos


Lost Chance Doctrine (Herskovits)

Multiple Causes, Apportionment market share liab

42

Osborne (poison, p. 21); pharmacy overdose

Bendectin, exposure?, weird mice studies

concert of action 41/42(Sykes)

jumping to avoid accident

PROXIMATE CAUSE AND THE SCOPE OF DUTY

Cardozo: danger invites rescue

3 theories (1) directness (2) foreseeability (3) harm w/in risk

42

43

43

44

45

43

46

46

oil fire, molten metal on lip (cancer) thin skull  OK

customer?
parent?
reasonable care to protect business visitors from 3rd persons/ animals §344


fire cases (usually only 1st house it spreads to)

coincidence tree falls on speeding train

foreseeable intervention train past stop, rape; dynamite caps; match gas spill; things stolen from train

Polemis (plank hits boat) directness

Palsgraf – explosives no duty to party harmed

until situation stabilized (e.g. wreck)

Wagon Mound (foresee-able Ds)

even intentional tort doesn't necessarily break causal chain

see also rescue

US standard:

no duty to rescue unless you create the situation, e.g. wreck, stalled cars (even if not negl.) or if you begin to help someone e.g. sick customer


ATTRACTIVE NUISANCE?

SPECIAL DUTIES OF CARE

    RR

harm w/in risk: negl. foreseeable

Ds w/in foreseeable type not degree

Important anytime someone is hurt

on someone else's P

implied licensee?

watchman

47

49

foreseeable?

51

e.g. Moch, hydrant

54


(boat loose)

Rescue situations

Possessors of Land

"Gratuitous" Promises

Special Relationships

(1) invitee (2) licensee (3) trespasser

increased harm or reliance

psych. Tarasoff; disk jockey; college, business, landlord

Note: DO NOT apply comparative negligence analysis to strict liability!!!

POCKETS OF STRICT LIABILITY

assumption of risk

h

"ancient lights"; fishermen, no public nuisance (econ losses) but duty;
not for natural occurrences e.g. bugs, wind blowing dust from cleared land;

no liability for natural conditions of land §363

arm w/in risk, mink Cyanamid Ds, lessor or lessee?

56

57

59

judges decide

62/67

Trespass/Conversion (spleen, wine barrels)

Dangerous Animals dogs, cattle fence range


Abnormally Dangerous Activities (explosives)

? of law

Nuisance (Private and Public) (unreasonable?)

requires actual Ds (can be caused by 3d parties, thieves)

exception to eggshell skull rule

Design defects/warnings negl. analysis (some juris. allow comparative negl.)

PRODUCTS LIABILITY (see also causation)

usually any substantial harm

components e.g. concrete

unreasonable

68/71

cannot sue sub

73

no suit against sub

76

Restatements §402A consumer contemplation; 3d Rest. negl. analysis

Manufacturing and Design Defects, e.g. used, second collision, obvious danger

Inadequate Warnings (birth control & vaccines, sufficiency of warnings)

Casa Clara – no Ds for pure econ. losses, e.g. D to product itself (salty concrete) – only for D to other P/injury

fan in car, VW seat, bulletproof vest, printing press

baby oil, do not breathe

Prospective Economic Advantage Rule: economic losses must be tied to actual physical injury/Ds or no recovery


DAMAGES

DUTY TO MITIGATE

BE SPECIFIC IN

DISCUSSING Ds!!!

also % likelihood not working

78

cook injured: adjust

for inflation (discount rate/wages)

79

wanton, reckless

apply accurately to facts

Compensatory (loss of enjoyment, per diem, taxes)

Punitive (1) actual knowledge (2) disregard; BMW paint case



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