Bauman Torts I Fall 2004
Outline
I.
Intentional
torts: FITTED CAB
a.
Why are most
cases brought? Liability insurance
b. To establish prima
facie case for intentional tort liability - prove 3 elements:
i.
Act by D
ii.
Intent and
iii.
Causation
c.
Intent:
i.
Act with the
purpose of causing contact
ii.
Knowledge
substantially certain to occur -Garrett v. Daily
1.) false imprisonment
a.
intent to confine
someone against their will and the other is conscious or harmed by it.
Elements:
i.
Intent to confine
п, п in fact completely confined
ii.
Action
iii.
Causation- P is
aware of the confinement or suffers actual injury from the confinement
b. confinement - direct restraint of P or his physical liberty w/o
adequate legal justification
c.
Problem: were
they confined? That is the issue…
d. Teich Miller- you must ASK to leave. Can’t assume, but
ask or else there is no FI.
e.
П has burden
of proving the Δ confined her
2.) trespass to land
a.
intent to enter
land owned by someone else or cause a third person or thing to enter the land
and fails to remove it
b. actual damages are not necessary because enforces
boundary policies…theory is so that ppl aren’t intruding into other land
c.
Amphitheater:
smoke isn’t a trespass to land because it’s not a tangible invasion. Ownership
is from anything below or above it
d. Traditional view: an actor commits trespass to land
when he intentionally enters or causes an entry onto the land of another.
i.
Entry can be made
above or below through the surface of the land
ii.
Ex. shooting a
gun over your land to duck hunt
iii.
Actual harm to
the land is not required
1.
vindicates owners
exclusive possession- that’s what trespass is supposed to protect: there is
injury in right of exclusive possession when ppl come onto your land
e.
Modern New rule:
intangible forces can be evasive but must violate legally interest of the
п. More than a ray of light.
i.
Trespass
interferes with the owner’s right to exclusive possession
ii.
Trespass can
occur by means of a physical invasion of microscopic particles if the result is
in interference with the right of exclusive possession.
iii.
When invasion
involves microscopic particles, the п must show actual damage to the
property.
f.
Bradley: intent
isn’t hostile intent; it is enough to bring about a result: bringing foot over
property line. A good nature practical joke can be trespass. Enter to land can
be indirect or direct, damages must be actual and substantial.
g. Can’t use “mistake/good faith” as a defense to
trespass
3.) trespass to chattels
a.
intentional act
b. Prima facie case:
i.
Δ interferes with п right of possession
ii.
Intent to perform
the act- mistake is no defense, but intending to do the act of interference is
sufficient
iii.
Causation, and
iv.
Damages
c.
using or
intermeddling with another person’s chattel
i.
dispossess (I
don’t have it anymore) the other of his chattel
ii.
chattel is impaired
iii.
possessor is
deprive of use of substantial time
iv.
bodily harm is
thereby caused to a person in which S has a legally protected interest
d. CompuServe: intermeddling: intentional bring physical
contact with the chattel; п can get cause of action without showing substantial interference with its right to
possession of that chattel.
e.
Taking away of or
damage to tangible personal property
f.
Usually used when
the interference or damage is not serious enough to amount to conversion
g. Actual damage to or loss of use chattel required
h. Damages: value of loss of use or cost of damages to
the chattel
4.) emotional distress
a.
extreme and
outrageous conduct,
i.
Intent: Conduct must be intentional to cause severe
emotional harm: intentional or reckless.
ii.
causation
iii.
damages- severe
emotional distress
b. Intentionally causes severe emotional distress or with
recklessness regarding the infliction of such distress and severe emotional
distress results.
c.
causal connection
btw wrongful conduct and emotional distress
d. Transferred intent doesn’t work here: Caldor v. Bowen-
severity is measured by intensity and duration. Need more than cursing or
insult. Court will be harder if you take advantage of someone’s vulnerability
e.
Nickel: you just
have to have severe emotional distress- court wont take it easy if it’s the
boss
f.
Damages - how to
prove severe emotional distress? Physical symptoms - something not seen before:
Relationship. Missing work, inability to sleep, weight fluctuation. etc. severe
enough to make client see Dr. (may note symptoms non—pro missed/ if not. D might say P didn’t care enough
to see Dr.. or ran up damages by failing to see Dr. One shot at getting
compensation)
g. The “mere insult” is NOT outrageous conduct
5.) Conversion
a.
Conversion is
where you borrow and steal- wrongful exercise of dominion over the personal
property of another (taking, substantial use, altering, destroying, selling and
buying)…must be tangible
b. Prima facie case:
i.
Δ interfering with п right of possession in
the chattel that is serious enough in nature or consequence to warrant that the
Δ pay full value of chattel
ii.
Intent to perform
the act bringing about the interference with п right of possession
iii.
Causation
c.
Damages: Δ
must pay п the full value of the property at the time of conversion.
d. Wiseman- tow truck case- conversion: is where you
borrow and steal- exercise the dominion- you don’t have to intent to own it.
e.
What act
constitutes so serious to make actor pay full value? P.56
i.
Wrongful
acquisition (theft)
ii.
Wrongful transfer
(misdelivering)
iii.
Wrongful
detention (refusing to return to owner)
iv.
Substantially
changing
v.
Severely damaging
or destroying
vi.
Misusing the
chattel
f.
How to satisfy
the element of conversion:
i.
Took something that
belonged to someone else. What act constituted the conversion? Towing the truck
(Wiseman v. Schaffer- stolen truck, towed)
ii.
This act of
dominion of truck leads to loss of truck.
iii.
Δ isn’t
excused- he intentionally meddled with the truck- real owner didn’t give him
permission to do so.
g. Multiple factor test: different from notion of
elements of a cause of action- in order to have
6.) Assault
a.
Elements of
assault:
i.
An actor commits
assault if he acts intending
1.
to cause a
harmful or offensive contact OR
2.
to cause imminent
apprehension of such contact
3.
the actor has the
apparent present ability to inflict the contact
4.
apprehension of
harmful or offensive contact actually results
b. Use the reasonable person test:
i.
Apprehension of
immediate offensive touching
ii.
No way to have
actual damages because you are just afraid- must be aware of Δ acts
c.
Holloway: actual
damages not necessary and transferred intent is appropriate in assault
d. Words only are not enough- must be coupled with acts
e.
Must be a
reasonable apprehension
7.) battery
a.
Elements
i.
Intent
ii.
Contact
iii.
Harmful or
offensive
b. An actor commits a battery if he acts intending
i.
To cause a
harmful or offensive contact OR
ii.
To cause imminent
apprehension of such contact AN D
iii.
Harmful and
offensive contact actually results
c.
In order to
recover, you must have damages→tortfeasor is liable for all
damages resulting from harmful contact.
d. INTENT
i.
Garrett v. Daily-
substantially certain that a 6 year old will hurt this woman? S have purpose of
producing the circumstances. Mental retardation can be liable for intentional torts.
ii.
Shaw- smoking
case: 2nd hand smoke is not a battery
iii.
Transferred
intent (TI)- A meant to hit B but hit C. A still liable for C damages
e.
HARMFUL OR
OFFENSIVE CONTACT
i.
Can be intimately
connected to body- vicarious liability: Fisher v. Carrousell (plate)
ii.
Compensatory
damages- I lost my lunch because you knocked trey out of my hand
iii.
Punitive damages-
punishment: you were a jerk so we are going to teach you a lesson. Only when we
have wanton, malicious behavior (egregious)
iv.
v.
Objective
standard: reasonable person
vi.
Passing by in a
narrow space and gently touching them is not a battery
II.
Defense to
intentional torts:
a.
Consent:
nonverbal consent counts
i.
An objective
manifestation of consent forcloses a claim that might otherwise exist
ii.
Consent may be
shown by conduct ex vaccination
iii.
Consent bars
recovery if there is consent to the act done, even though there is no consent
to the resulting injury
iv.
The consent
obtained by fraud or concealment of important info is not effective
v.
Peterson: п
must have sufficient mental capacity to consent- minor, drunkards, incapacity
can’t consent to intentional tort. Patients must sign consent forms with
doctors.
vi.
Hackvard v.
vii.
Determine if P had capacity to consent (intoxicated,
mentally incompetent. children, class protected by law incapable of consent to
tortuous conduct: majority no person can consent to criminal act, modern trend
cannot consent to breach of peace, but can to other, tight v. prostitution)
viii.
Expressed- words
used negated by fraud
ix.
Implied- playing
football
x.
Consent to
contact in sports:
1.
by participating
in a sporting contest, one consents to the contacts normally a part of the game
2.
the limits of this
consent are important: does every contact that is outside the rules result in
battery?
3.
on the other
hand, is consent to “normal” illegal contact also presumed?
xi.
Consent to a
criminal act
1.
is effective and
bars recovery for injuries received from the act:
a.
the important
exception is where the criminal statute is designed to protect the class of
persons to which the п belongs
b. allowing consent as a defense would tend to frustrate
the purpose of the criminal statute
c.
three important
examples:
i.
statutory rape-
if 14 consents to sex with 25, it’s still a crime even though she consents-
bars her from bringing civil action for battery
ii.
illegal prize
fighting
iii.
voluntary
euthanasia
b. Self-defense:
i.
Use reasonable
force against someone else
ii.
if you reasonably
believe that you are under attack
iii.
Roberts: ct will
consider if he’s an aggressor
iv.
Self-defense is
based on the reasonable appearance of need for defense
v.
Excessive force
results in the loss of the privilege
c.
Defense of others
i.
If you have
others, you have both defense… talk about both
ii.
majority rule/
officious intermeddler may use reasonably necessary force to defend another
only when the other could have used force to protect himself- no defense if
mistaken. Modern trend - allows force when actor reasonably believes the aided person
had right to self -defense.
d. Defense of property
i.
Katco v.
Browning: booby trap- can’t use deadly force to repel the threat to land
ii.
Cannot do by
mechanical means if you cant do it by person
iii.
Doctrine:
recapturing chattel (hot pursuit)→ a Δ can peaceably enter another’s
property to take back his chattel
iv.
Shopkeeper’s
privilege: reasonable person standard. Can detain for a reasonable time to
investigate for a suspicion of a wrongdoing. Merchant’s privilege to detain
individuals for reasonable investigation they reasonably believe to have taken
chattel unlawfully/shoplifted goods. Policy: privilege is necessary for the
protection of a shopkeeper against the dilemma in which he would otherwise find
himself in when lie reasonably believes that a shoplifter has taken his goods.
v.
3 elements:
1.
timing (happening
right now)
2.
reasonable belief
3.
boundaries of
defense privileges
vi.
Reasonable
mistake is allowed as to property owner’s right to use force in defense of
property
e.
Necessity:
i.
Public- absolute
privilege: usually involved pro-government. Act for the public good. If
interference w/land or chattels of another is necessary to prevent disaster to community, no compensation to be paid
by person doing damage. (ex. shoot rabid dog; Mayor orders house torn down for
fire break)
ii.
Private-
qualified privilege: Δ still has to pay for damages to the land. Doesn’t
matter if Δ is cautious or prudent. Act solely to benefit any person or
protect any property from destruction or serious injury. Owner of property may
not resist exercise of privilege of private necessity. (ex. tie boat to dock in
storm)
III.
Negligence
·
fault based
·
Once you move
from substantial certainty to
extremely high risk that something will occur…you are moving towards negligence
(reckless conduct, gross negligence)
·
Risk that
something will occur that isn’t extreme but its serious enough that it’s
regarded as unreasonable risk of conduct/harm. It’s the realm of negligence
law.
·
Individuals
conduct is creating risk but the risks are ones that are considered in society
as “reasonable risks”
o
ex: driving
automobile- for the most part it’s reasonable if you are obey the rules but
there are risks (like a child stepping in front of your car). It’s a risk but
not an unreasonable risk.
a.
4 elements:
i.
duty of care
ii.
breach of duty
iii.
Causation: cause
in fact, proximate cause
iv.
Harm/damages
results
b. The Duty of Due Care:
1.
Tort duties arise
out of a relationship between Π and Δ that imposes on the latter a
duty of due care
2.
This duty
requires Δ to recognize and avoid unreasonable risks of harm to Π
3.
The risks in
question are those that a reasonably prudent person (
4.
Once recognized, Δ must exercise the care that the
c.
Breach of duty
i.
The Standard of
Care:
1.
Δ is held to
the standard of the reasonably prudent person under all the circumstances
2.
The amount of
care that Δ is expected to exercise varies depending on the circumstances
3.
Applying the reasonable person standard
a.
The general duty
is to act as a reasonable person. Jury is asked to make an objective, rather
than subjective, determination.
b. 3 parts to the jury’s finding of “negligence”:
i.
Does the duty
exist at all?
ii.
the existence of
duty and focuses on how the judge describes the duty to the jury
iii.
Once the jury is
told what the duty is, the jury must apply the law to the facts to determine
whether the Δ has breached that duty.
ii.
“Under all the
Circumstances”
1.
Some
circumstances are external to the Actor:
a.
The extend to
which the risk is reasonably foreseeable
b. The existence of an emergency
c.
The standard is
always the same…but counsel for Δ may argue the circumstances in an
emergency situation that causes you to change some things
2.
Some
circumstances are found in the actor’s own characteristics:
a.
Physical
limitations of the actor
b. Mental limitations of the actor
c.
How to apply
standard of care to a child?
i.
Children change
enormously in their judgment and abilities over their childhood. So gradually
the child grows up to be an adult, but it’s hard to have the same standard for
a child from infancy to adulthood.
ii.
Also, child was
Π (victim) suing someone for damages. Δ said you cant recover because
you contributed to the negligence
iii.
So courts came up
to “child standard of care”
1.
Did child live up
to standard that is reasonable to expect?
iii.
The Circumstances
of the Actor
1.
Age: In most
cases, children are not held to the standard of care of an adult. Children
under 4 are incapable of negligent act/not liable
2.
The standard is
that of a child of the same age, intelligence and experience
3.
The child
standard usually applies to both child victims and child tortfeasors
4.
Exception: The
adult standard applies when the child is engaged in an “adult activity.” Adult
activities almost always involves an internal combustion engine (ex. Gasoline
engine)
5.
Age: It is not
presumed that the elderly are unable to conform to the standard of care (most
ppl should be able to live up to, not to perfection, ordinary prudence/ability)
6.
It may be proved,
however, than an elderly person was physically incapable of exercising due
care, due to the infirmities of age
iv.
The reasonable
prudent woman
1.
In a sexual
harassment case involving a male supervisor’s harassment of a female
subordinate, it seems only reasonable that the person standing in the shoes of
the employee should be ‘the reasonable woman’ since the Π in this type of
case is required to be a member of a protected class and is by definition
female.
2.
Π gender should be an important consideration in
determining whether a hostile work enviornment exists.
3.
Look at standard
of if women is being harassed that it is from the standpoint of the women that
we should judge the question of sexual harassment
4.
What would a
woman find as harassing since they are the target of the conduct
5.
The standard is a
hypothetical genderless reasonable prudent person
v.
Physical Disabilities
1.
If someone is
‘hasty’ and accident prone and doing best to live to standard of care but can’t
do it, then maybe there is no fault there but there will be legal liability
2.
Physical
disabilities are usually taken into account as part of the circumstances faced
by the actor
3.
The actor must
take the disability into account
4.
Protected in once
sense…we don’t expect you to live to the normal standard of care if you cannot
do it (ex. Blind) but you do need to act like reasonable prudent person with
this disability. (ex. It would be negligence to walk on street without cane to
help you navigate). You could be negligence if you fail to take precautions
that a normal person with this disability would take
5.
Where disability
or illness strikes without warning, the actor is not negligence for failing to
take precautions against it
6.
Intoxication
a.
An individual who voluntarily becomes intoxicated is
still held to the standard of the reasonable sober person
b. Thus, the actor can be held liable even if incapable
to conforming to the standard because of intoxication
c.
On the other hand,
the actor is not negligent simply because intoxicated: the actor’s conduct must
actually breach the standard.
7.
Insanity
a.
General Rule:
insane persons are liable for their torts, unless incapable of a particular
state of mind, such as malice, required by some torts.
b. Limited exceptions exist:
i.
Sudden onset of
mental disability
ii.
Where the Π has accepted the
risk
vi.
Custom and
Malpractice:
a.
The standard of
care imposed on professionals (doctors, lawyers, engineers) is a special
example of the use of custom to establish the standard of care
b. The standard
is the degree of care and skill ordinarily possessed by members of the
profession.
c.
If the
professional claims special skill or knowledge, the higher standard of the
specialist will apply
d. 2 ways to look at standard of care:
i.
it’s demanding-
must keep up with standard in the profession
ii.
protected aspect
of the profession-allows professional to be wrong without being negligent.
Professional is entitled to be wrong as long as the error of judgment could
have been made by anyone in that same field of profession under like
circumstances
e.
The “locality
rule” is no longer applied in most jx
f.
How does the
п establish the standard of care?
g. What affect did the Locality Rule have on the ability
of the п
to prove the standard of care
vii.
The General
Practitioner:
a.
Is any
accommodation made for the small rural practitioner with limited resources? How
does the standard take these circumstances into account?
b. What is the obligation of the general practitioner
when faced with a particularly difficult case?
c.
Cts rarely
substitute their own judgment of what the standard of care should be.
2.
a.
In the Evaluation of Conduct as Negligence:
i.
Is there an unreasonable risk of harm?
ii.
What are the foreseeable risks?
iii.
Are the risks reasonable?
iv.
Or unreasonable?
v.
How can we
determine when the risk is reasonable?
b. Reasonable Risks
i.
Risk of harm low, benefits significant.
ii.
Risk of harm low because danger is obvious (P can easily avoid the
danger).
iii.
Risk of harm
high, but benefits outweigh the danger.
c.
Unreasonable
Risks
i.
Risks are unreasonable when risk of harm is high and benefits from
activity are low.
3.
Carroll
Towing: The Hand Formula: The Hand
Formula states that a party is negligent when B<PL
a.
B is the Burden
of taking precautions
b. P is the probability of harm occurring- may be high or
low
c.
L is the severity
of harm if it occurs- may be high or low
d. If P is low, and L is too high, that justifies taking
precautions- ex. nuclear power plant. Many precautions are justified to make
sure there are no nuclear accidents.
e.
Formula
recognized as an interesting idea but then judge Posner said this formula is
economically meaning of negligence. We live in world of limited resources so when
it comes to taking safety precautions law should promote safety…invest enough
in safety to achieve reasonable safety.
f.
The formula is
applied “at the margin” to determine whether the next dollar spent on accident
avoidance will yield at least one dollar in accident cost savings- at some
point you don’t get the bang for your buck, we spend more money but avoid less
cost, so at some point it is better to just let accident happen and pay off
victims. (saves money). Only when Δ failed to use duty of care. Think
about negligence in terms of cost of precautions v cost of accidents. Can
reduce accidents for not that much and you’re not doing it.
4.
Informed Consent:
a.
A physician
seeking a patient’s consent to treatment has a duty to inform the patient of
the risks and benefits of the procedure. Give patient the full story of the
surgery.
b. The physician
must disclose material risks: Risks
that a reasonable person in the п’s position would want to know before
deciding whether or not to undergo the procedure.
c.
The physician’s failure to inform the patient of a material
risk is a breach of duty.
d. Liability also requires that п to prove causation
by showing that if properly informed, the п would have refused to undergo
the procedure.
e.
Liability also
requires that the risk not disclosed be the cause of harm to the patient.
Exceptions: The Δ bears the burden of proving exceptions to the requirement
of disclosure.
i.
The first
exception is the emergency where the patient is unable to give consent and
life-saving treatment must be given at once
ii.
The second
exception is where the disclosure itself would be harmful to the patient
*Specifying the Standard of
Care: Criminal Statutes, Civil Statutes, and Negligence Per Se
Why do we look at custom? To
get a more specific statement of what the standard of care requires in that
situation. You do whatever because that is the custom.
5.
Negligence per
se:
a.
Sometimes courts
find that it is necessary to specify a particular duty, rather than simply
leaving the question open ended.
b. One source of specific duties is a statute enacted by
the legislature, which specifies what the Δ must do in particular
situations.
c.
When a statute is used to specify a duty to the п it is known as negligence
per se.
6.
When to use the
Statute:
a.
The statute must:
a.
Impose on the
Δ a specific duty for the protection and benefits of others.
b. Δ will be liable for
harm caused by a breach of that duty:
i.
If the п is
member of the class of persons that the statute was intended to protect, and
ii.
The п
suffered the type of injury the statute was intended to prevent.
iii.
Similar to risk
rule regarding proximate cause
iv.
Important how to
interpret the statute…what kind of harms it was intended to prevent, who does
it protect…?
7.
Avoiding the
Statutory Standard:
a.
Legislative
specification of duty may be avoided:
i.
By finding the
violation excused
ii.
By interpretation
of the statute→ customary exception ex. if walking towards traffic is
dangerous but walking on opposite side isn’t then do what is safer (Tedla case)
iii.
By the existence
of other policies that render the legislative standard inappropriate.
8.
Licensing
Statutes:
a.
Licensing
statutes are a special case
b.
Violation of a licensing statute is not usually
considered negligence per se.
c.
Ex. person’s DL
is expired. Someone rears end them. The victim sues and the Δ who rear
ended them says you are driving w/out a license and you are contributing
negligence. You shouldn’t be able to recover, says the Δ. Ct says that by
doing something w/out a license isn’t proof that it is done with negligence. Doesn’t
mean he was acting w/out due care.
d. The п must prove that the Δ in fact caused the injury by
failing to meet the standard of care.
9.
Other types of
statutes:
a.
Statutes that forbid leaving the key in the ignition
of an automobile
i.
What was the
statute’s purpose?
ii.
Who was the
statute designed to protect?
iii.
That’s how you
can tell who can recover…if liability, interprets these statutes as safety
statutes-- to prevent this type of situation.
b.
Statutes that forbid giving alcoholic beverages to an
obviously intoxicated person
IV.
Cause in fact: would the accident occur but for the
Δ negligent conduct?
a.
Proving but-for:
slip and fall- difficult to prove that the banana peel caused the fall
1.
Two part test of
Causation:
i.
Actual cause:
as a matter or ordinary reasoning, did the Δ negligent conduct cause the
injury to п?
ii.
Proximate or Legal Cause: If Δ conduct was a cause in fact of п's injury, was it
a sufficiently important cause that the Δ should have to pay damages in
compensation.
iii.
If you don’t have
actual cause, you can’t have proximate cause. No way to have proximate cause
without actual, but can have actual without proximate (it’s just not causation)
b. But For Test of Causation
i.
The “but-for
test” is the basic test for actual cause.
ii.
It asks: “but for the Δ negligent conduct, would
the injury to the п have occurred?”
iii.
This requires the
trier of fact to consider what would have happened if the Δ had not been
negligent.
c.
Proof of
Causation:
i.
Even in simple
cases, it is often hard to obtain evidence of causation.
ii.
Sometimes the
п, for example, is unable to testify as to how the accident occurred
iii.
The lawyer must
then look to other eye witnesses, expert witnesses, or the Δ’s own
testimony to try to establish this element.
d. The “Substantial
Factor” Test
i.
The “but for”
test does not work well when multiple causes are operating, any one of which
would be sufficient to cause the injury to the п.
ii.
In these situations, the courts apply the substantial
factor test, asking whether the Δ’s negligent conduct was a substantial
factor in bringing about the injury to the п.
e.
Joint Causation:
i.
When two Δ
are both negligent, and their negligence combines to injure the п, two
approaches can be taken:
i.
Require the
п to prove how much of the harm was caused by each Δ (called apportioning the harm).
ii.
If the harm
cannot be apportioned because the injury is indivisible, hold the Δ
jointly liable.
f.
Loss of
Chance:
i.
Loss of chance involves situations in which the
negligence of the Δ deprived the п of a chance of avoiding harm,
even though it was still more likely than not that the injury would have
occurred even if the Δ had not ben
negligent.
ii.
If this doctrine
is recognized, how should damages be calculated?
g. Pure Last Chance:
i.
Pure last chance
equates the loss of chance with causation of harm
ii.
Under this
doctrine, п recovers in full even though it is more likely than not that the
injury would have occurred anyway. →not really fair if the Δ did
something really insignificant but would be held responsible for the entire
thing.
h. Proportional Lost Chance:
i.
Under this
variation, the п does not recover the total damages caused by the injury
ii.
Instead, the total damages are multiplied by the
percentage of chance lost as the result of the Δ negligence.→what
if chance of recovery was 51%?
iii.
Under this scheme, should п recover in full if the lost chance
exceeds 51%?
i.
Under traditional approach: you would recover
ii.
Below that you don’t recover in full, but just a percentage of that
i.
Substantial Possibility:
i.
Substantial possibility allows
full recovery only if the lost chance of recovery is considered sufficiently
significant
ii.
It is not clear how substantial the lost chance must be to allow full
recovery
iii.
Proximate Cause:
Should the Δ be liable to pay damages?
V.
Proximate Cause
a.
Proximate Cause:
Rule Choice
i.
Direct Cause: no independent (independent of Δ negligence) or
intervening forces interrupt the path of causation from the Δ negligence
to the п harm
ii.
Risk rule: The Δ is liable for the type of harm, the risk
of which made the Δ conduct negligent in the first place. (Also known as
the Foreseeability Rule).
a.
What exactly do
you have to foresee? Ex: if you drive negligently and have an accident, it is
foreseeable that another accident could occur from that accident. Where do you
draw the line?
iii.
Direct Cause:
1.
Focuses on the
sequence of events, looking for intervening forces that might interrupt the
chain of causation
b.
Does not consider whether the injury that occurs was
foreseeable or not, so long as the Δ was negligent and that negligence
“directly” caused the harm
c.
Two problems:
i.
Liability is
imposed even for unforeseeable results of the Δ negligence
ii.
Liability is not
imposed for foreseeable results that are not “direct”
2.
Foreseeability
and Duty:
a.
One way to deal
with the problems of the Direct Cause test is to impose a foreseeability
requirement on the duty element
b. Thus, unless harm to the п is foreseeable as the
result of the Δ conduct, no duty or care arises and therefore no
negligence exists.
3.
Rescuers
Doctrine:
a.
The rescuer
doctrine says that a Δ is liable to one who attempts to assist a person
placed in peril as the result of the Δ negligent conduct.
i.
Example: 3rd
party goes to help the victim that the Δ put in danger, and that 3rd
party gets hurt as a result of this, then the Δ is liable for both the
first victim and now the 3rd party
b.
In other words, the Δ owes a duty to the rescuer,
foreseen or not, based on the status of the rescuer.
4.
Risk Rule:
a.
A related
approach to the issue is to consider what sorts of risks of injuries made the
Δ conduct negligent in the first place
b. One then asks whether the injury that the п
suffered is of the type that made the Δ conduct negligent
c.
If so, the harm
is “within the risk” and the Δ is liable
d. Requires all the elements of the negligence tort to
fit all together- was the conduct the cause in fact and were the injuries that
occurred the type to result in the injury in the first place.
5.
Characterization
of the risk:
a.
How the risk rule
works in any given case will depend on how the parties succeed in
characterizing:
i.
The risks created
by the Δ conduct, and
ii.
The nature of the
harm suffered by the п
iv.
Foreseeability of
the extent of harm
1.
The Thin-Skulled
Plaintiff:
a.
“You take your
victim as you find him or her”
b. Won’t let Δ argue that the harm was unexpected-
too bad if п had a thin skull
c.
This means that
the Δ cannot limit liability by arguing that the harm that the п
suffered was unexpectedly severe
d. However, this rule is tempered by a related rule which
requires the trier of fact to consider whether the п condition was such that
some such injury was likely to occur eventually anyway.
e.
This is
inconsistent with the risk rule. The risk rule doesn’t require you to foresee
exactly what will happen, just the sort of harm that makes Δ conduct
negligent in the first place
2.
Intervening
Causes:
a.
The direct cause
test tells us to look for independent and intervening causes, and suggests that
they may excuse the Δ from liability
b. The risk rule tells us to ask whether the intervening
cause was foreseeable
c.
The possibility
of the intervening cause coming along to trigger the harm to the п may
have been one of the factors suggesting Δ was negligent.
d. Ex: Herman v Air
Rifle:
i.
Manufactured air
rifles and it was loaded. Customer looking at it and shot saleswoman in store
ii.
What was Δ
negligent conduct? Why? Shipping the rifle loaded with shots. Unreasonable risk
of harm: people would assume it is not loaded and someone can get hurt from it
iii.
2nd
argument Δ makes: that they didn’t pull the trigger (a customer did). The
customer is the intervening customer. D said the customer is responsible
because he pointed the gun to someone and pulled the trigger. D blames the
intervening cause (the customer).
iv.
Under risk rule,
would customer’s conduct cut off Δ liability? What made d conduct
negligent to begin with? Because someone can get hurt (there is a risk that
someone will handle gun carelessly). Ct said there is a foreseeable risk that
someone will miss-handle the gun and that happened. The existence of the
customers conduct is foreseeable. Therefore, the harm to п is
foreseeable. They could have also sued customer (joint tortfeasor).
v.
The result is
precisely what you would expect would happen
e.
Ex: Derdianrian v. Felix Contracting Corp.
i.
What should they
have done (precaution) could they have taken to prevent the injury?
1.
The barricade was
not in a good location
They
should have set up a better barricade, such as something that will keep a car
out so that if they lose control, it would stop the car and prevent them from
entering the work site.
2.
The intervening
act was the guy that had a seizure while driving. He failed to take his
medicine. He lost control of his car and hit п. The Δ said it was a
freakish accident and not forseen
3.
This is the “risk
rule:” what was the negligent conduct? Failing to barricade the job site
properly, because of the risk that is foreseeable. Our foreseeable risk of harm
is a car a negligently entering a site (this intervening act is the sort of
thing you see to make you take precautions from blocking a car to entering the
job site at all).
4.
This is the
result of the risk- Intervening negligent act by 3rd party that
triggers the harm, but that harm is foreseeable…it made their conduct negligent
in the first place…that is why they had the duty to take precaution against
that
5.
Odd ball reason
for the accident occurring- the negligence isn’t the ordinary thing you would
think, but that doesn’t matter (it was still negligent driving).
3.
Intervening
Negligent Act
a.
Some intervening
negligence is foreseeable
b. The possibility of negligent conduct by others may
create a duty of care, which Δ breached (eg Derdiarian)
c.
Some types of
negligence are considered a foreseeable additional risk created by the Δ
negligence (e.g. medical malpractice in treating the п injuries)…if
п is hurt and has to go to the hospital…and then the doctor injures the
п more (malpractice), then the original tortfeasor is responsible for the
original injury and for the malpractice. The Doctor is responsible for just the
malpractice. You never recover twice for the same injury.
4.
Coping
a.
One type of
situation involving intervening forces is when they involve the efforts of
individuals to try to cope with the dangers created by the d negligence
b. In such situations, the intervening forces are often
found to be foreseeable, on the ground that one could expect some reaction to
the dangerous situation.
5.
Superseding
Negligent Acts
a.
Sometimes
intervening negligent actions are held to supersede the negligent conduct of
the Δ. This means that the Δ negligence is not the proximate cause of
п injury.
b. To supersede, the negligence must be unforeseeable,
such as conduct that is bizarre or grossly careless.
6.
Intervening
Criminal Misconduct
a.
Deliberate
criminal misconduct may be superseding
b. It is not superseding if the Δ is found to have a
duty to protect the п from the risks of criminal misconduct. Examples:
i.
Landlord’s duty
to tenant
ii.
Store owner’s
duty to customer
iii.
Where Δ
conduct defeats the п own precautions
7.
Requirements of
negligence per se (be in class of person and suffered harm that statutes was
meant to prevent)= Statutes that require owners of vacant buildings-- so no one
can enter that is unauthorized. Now the п has a better chance of
prevailing because of this statute. Now the п is within the risks. She is
in the type of person that the statute was designed to protect.
VI.
Multiple Tortfeasors
a.
Indivisible
Injury:
i.
Where the
misconduct of two (or more) Δ combines to inflict an “indivisible injury,”
the two tortfeasors will be “jointly and severally” liable.
ii.
Injury is
“indivisible” when you cannot separate the harm done by each wrongdoer.
iii.
“Joint and
several liability” means that the п can sue any or all of the tortfeasors
and collect the full amount of damages from any one of them who if found
liable.
iv.
Comparative
negligence (%) v. contributory negligence (п can’t collect anything if contributory)
1.
Comparative- can
compare negligence of Δ to each other and assign % of fault to each Δ
2.
Should we keep
this and abolish the jointly and severally liable rule?
3.
Basic Issue: who
bears the risk? If one of the d cannot pay its share of the judgment. In joint
and several liabilities, the other d bears the risk if one of the d’s can’t pay
his part. When you get rid of joint and several, the risk shifts to the P…
b. Concert of Action
i.
If two or more wrongdoers are acting “in concert” and one of them causes an
injury, all the actors are liable for harm inflicted by any one of them
ii.
Acting “in concert” means acting together, with at least a tacit
understanding of a common goal or purpose.
iii.
No formal agreement is required in order to act in concert.
c.
i.
Sometimes the п cannot identify which one of a
number of possible Δ was the cause of her harm
ii.
iii.
П must prove:
1.
Joint awareness of the risk
2.
Joint capacity to control the risk
d. Alternative Liability
i.
Again, the п cannot identify which of the two or more negligent
Δ in fact caused the harm
ii.
Alternative
liability holds both negligent Δ liable unless one or the other can
exonerate himself
iii.
In effect, the
burder of proof is shifted on the issue of causation, rather than exonerate
both negligent Δ
e.
Market Share Liability: the
i.
П must join manufacturers
representing a substantial share of the market for the product.
ii.
П must be unable to identify the
manufacturer of the particular product that caused the harm.
iii.
The burden shifts to the Δ
iv.
If unable to show it did not make the product that caused the injury,
Δ is liable for the percentage share of п damages represented by its
market share of the product
v.
NOTE: this approach does NOT
result in joint and several responsibility
vi.
If we had perfect info in each case and know which mother took the pill
from each company, we would have a situation where company A (10% of market) is
100% responsible in 10% of the cases. But we can’t do that…the info is gone.
Instead, say company A pays 10% of damages of all of the cases.
vii.
Sindell v Abbott Lab
1.
Daughters of
mothers who took
2.
Who do you sue?
The difficulty: there were tons of companies that produced this drug! So there
was vastly more potential Δ→the odds of one of them
producing the drug is small.
3.
Can sue and recover? Ct goes through various forms of joint liability:
concert of action, enterprise, and alternative. In each case, none fits this
situation.
4.
These companies didn’t get together- no common plan, no concert of action
5.
Ct rejects enterprise: we don’t just have 6 companies here like in Hall.
There are hundreds of companies. No joint awareness of the risk. No way to
control the risk.
6.
So Ct rejected all of the theories: so they come up with market share
liability:
viii.
After Sindell:
1.
2.
Some courts eliminated the requirement that п sue manufacturers
representing a substantial share of the market
3.
Other courts eliminate a Δ liability to exonerate itself and escape
liability.
4.
NY takes the market- the theory is market share- no exoneration-
5.
One court extended market share liability to products other than
6.
Reasons why п didn’t recover under
a.
If п doesn’t sue a substantial share of the market.
b. Each manufacturer wasn’t
making a fungible product→weren’t interchangeable
c.
Not all car batteries are made the same way and have the same risks- not
all car batteries are defective-
d. Products containing asbestos
(doesn’t work either)
f.
Indemnity and
Contribution
i.
Indemnity is a
rule that requires one tortfeasor to fully reimburse
another tortfeasor who has paid the п judgment.
ii.
Where the rule
applies, it usually requires full reimbursement
regardless of rules such as comparative negligence. When is it required?
1.
Indemnity may be
required by a K between the two parties
2.
A Δ who is
only vicariously liable may seek indemnity from the party who was actively at
fault (ex: employee driving negligently and employer is responsible)
3.
A retailer held
liable because of a defective product may seek indemnity from the manufacturer
iii.
An obligation to
indemnify arises out of the relationship between the two tortfeasors
g. Contribution
i.
Contribution
refers to a sharing of responsibility between 2 tortfeasors
ii.
Contribution
usually requires that the two (or more) tortfeasors be jointly and severally
liable for an indivisible injury
iii.
Before
comparative responsibility, the tortfeasors usually shared pro rata
iv.
With comparative
responsibility, shares are based on the relative percentages of fault
1.
We are trying to
figure out responsibility among all the Δ that they caused to the п
2.
Old common law:
п could enforce judgment against any jointly Δ. No contribution
under common law. A few states modified that- many created rights by
contribution by statutes.
3.
Indemnity is a
full reimbursement, comparative is partial reimbursement
4.
Examples: Problem
1 pg. 331
П ($1000 damages) v Δ 1 (pays $300 to settle)
Δ 2 (held liable at
trial)
So
п can go to trial against Δ 2. Jury finds Δ 2 liable. How much
does Δ2 have to pay? There are 2 ways ct used to deal with this:
i.
Δ2 should
get some type of credit for the partial settlement that Δ1 gave. “Dollar
for dollar credit” (so they pay $700). Can Δ 2 seek contribution from
Δ 1 for $200 to make it even? If you allow that contribution, it
discourages settlements, like the one Δ 1 made. As long as settlement was
in good faith, there would be no right of contribution.
ii.
Pro rata credit-
when п settles with one of two Δ, the settled half of the case. So
if there is $1000 of damages, he settled half of the damages by getting the
$300 from Δ1. Δ2 would then have to pay $500. п ends up with
only $800, but cannot go back and get more money from Δ1.
iii.
Most jx favor the
“dollar for the dollar credit.”
What
if Δ1 pays $700 to settle? П still has $1000 damages. How much
should Δ2 pay? They only pay $300- not fair to Δ1. P is satisfied.
Does Δ1 have contribution to Δ2? No, once he paid the $700, that is
it. The only way he would be allowed to collect from Δ2 is if he paid for
the whole case in full and then he could seek contribution from Δ2.
What
if п has $10,000 damages? Δ1 pays $x to settle (he is 50%
responsible), Δ2 is 30% responsible, and Δ3 is 20% responsible. If
Δ1 pays everything, but only 50% responsible, he should get $3k from
Δ2 and $2K from Δ3.
VII.
Damages for
personal injury
a.
Past Economic
Loss:
i.
Wages lost up to
date of trial
ii.
Medical expenses
incurred up to date of trial
b. Future economic loss: total and reduce to present
value:
i.
Wages to be lost
in the future
ii.
Medical expenses
to be incurred in the future
c.
Past and future
pain and suffering
i.
No market to
value it
ii.
Humiliation
iii.
Embarrassment
iv.
No longer able to
do things
d. Past economic loss:
i.
Lost wages and
medical expenses up to the date of trial
ii.
These losses are
capable of precise calculation and proof, but you have to actually take the
time to prove it
e.
Future
i.
These losses are
more speculative, as it is necessary to predict that п would have earned
but for the accident, and what п will have to pay for treatment, because
of the accident
ii.
One must predict
not only what the losses would be, but how long they can be expected to
continue
1.
Will п ever
fully recover and return to work?
2.
How long will
п likely live?
3.
How long would
п have worked but for the accident?
iii.
These totals are
usually reduced to present value
iv.
The lump sum
satisfies п for up to the trial and beyond the trial into the future: we count
around 20 years from now and see how п is doing…you have to predict how
they are going to do 20 years from now.
f.
Structured
settlement: annuity- pay out instead of in one lump sum, it will pay out every
year a certain amount of money. Tell insurance company how much you want every
year
i.
Adv for п:
automatic financial mgmt
ii.
Adv for Δ:
although you are paying a lot of money over time, you might end up spending
less- a little bit at a time
iii.
Adv: provides tax
benefit- money for personal injury is not taxable- but if you put it in an
interest bearing account, it is taxable.
g. Pain and Suffering
i.
There is no
mathematical formula that can precisely calculate the award for P&S
ii.
P&S
compensates for the pain of the injury itself, the psychological effects of the
pain, and also usually for the ongoing suffering experienced because of lasting
effects of the injury (also known as loss of enjoyment of life).
iii.
This element also
has past and future components
h. Loss of consortium:
i.
Loss of
consortium is compensation for the loss of society and services of another
ii.
Originally it was
compensation to the husband for loss of services of his wife resulting from
tortiously inflicted injury
iii.
All jx now allow
the wife a similar action
iv.
More
controversial are actions by parents for injuries to children, and vice versa
i.
Avoidable
consequences
i.
П will not
recover for losses that the п could have avoided by taking reasonable
precautions after the accident
occurred. This is a general rule of damages
ii.
In the case of
personal injuries, this may require the п to obtain medical care to treat
and cure the injuries suffered in the accident
iii.
Whether the
п must undergo a major operation depends on the danger from the operation
and the chances of a cure
iv.
What about
religious groups? What if they don’t allow you to do things to mitigate damages
(ie: going to the doctor)? They can go either way
VIII.
Limited Duty
a.
Non-feasance and
Special Relationships
i.
“Limited Duty”
means that the court, usually for some reason of policy, adopts as a legal rule
that no duty of care is owed by the Δ
ii.
If no duty of
care exists, then the п negligent action fails at the first element.
b. Nonfeasance
i.
Nonfeasance means
non-action, and usually refers to the
conclusion that the Δ conduct amount to a failure to act, as opposed to an
action that may have been performed without due care
ii.
In some situations
this will mean that the Δ is not liable because Δ had no duty to act
iii.
If you do act (or
do something) that is no longer nonfeasance- it might be misfeasance though
iv.
This is a rule of non-feasance- it can’t lead to
liability if you had no duty to do it- there
is no duty to help another
c.
Misfeasance
i.
Misfeasance
usually expresses the conclusion that the Δ acted and acted badly (without
due care)
ii.
It is often
possible to argue that what appears to be “mere” nonfeasance is actually
misfeasance: Acting and acting badly (ex: urging someone to jump in water and
when they do, they begin to drown but you don’t help them and they die).
d. Creating a duty to act
i.
Another way of
attacking a nonfeasance claim is to argue that Δ in fact did have a duty
to act and was negligent in breaching that duty
ii.
One situation in
which a duty is created is when the Δ, although under no duty to act, in
fact undertakes to do something and does so badly
e.
Duty Creation:
Examples
i.
One’s negligence
(or even non-negligent) conduct injures another. One may have a duty to aid,
and a duty to rescuers.
ii.
One’s voluntary
assumption of a duty may create a duty to continue to perform, or at least to
warn that it will be discontinued, where one knows that others have come to
rely on the performance of the duty
iii.
Ex:
f.
Special
Relationships:
i.
Special
relationships create a duty to act
ii.
Ct find special
relationships in certain traditional categories, such as the common
carrier-passenger relationship, which creates a duty to protect the passenger from others
iii.
Ct also recognize
special relationships where the actor has a duty to control another to prevent harm
g. NIED: (negligent infliction of emotional distress)
i.
In the beginning:
1.
Originally the
common law did not recognize a cause of action for conduct that caused only
emotional injury, unless it could be fit within an existing coa such as
offensive battery (remember the Fisher case?) Negligence tort requires there to
be damage
2.
On the other
hand, the law did allow damages for mental suffering if it was the result of a
physical injury
3.
Searching for
limits:
a.
The continuing
concern has been how to set reasonable and reliable limits on an action for
purely emotional harm.
b. First, what sort of conduct by a D that causes
emotional distress should result in liability?
c.
Second, what
guarantees of the genuiness of the P’s injury should we require?
ii.
The Impact Rule:
1.
An early attempt
at setting limits was the impact rule
2.
The D’s negligent
conduct would not lead to liability for emotional harm unless the P suffered
some physical “impact” on his or her person
3.
The impact itself
did not have to cause physical injury
4.
Negligence was
judged in the usual sense of creating unreasonable risk of physical harm
5.
Ex: woman at
circus- horse took a dump and it landed on her- she had a coa
iii.
Zone of Danger
1.
Courts then began
to allow recovery if the P, although not physically touched, was placed in
danger by the D
2.
Under this test,
the cts bean to allow recovery for persons who suffered fright at the threat to
their own personal safety
3.
Recovery for
persons placed in serious jeopardy by D’s conduct and suffered injuries
iv.
The Physical Injury requirement
1.
Some cts also
adopted a requirement that the P’s emotional distress must result physical
injury to the P (like a heart attack, or stroke)
2.
This often gets
watered down to a requirement that the P show objective physical symptoms
caused by the emotional distress
v.
Bystander
Recovery
1.
The next
extension allowed recovery by “bystanders” to an accident
2.
Bystanders are
close relatives of an accident victim who suffer emotional distress at
witnessing the injury to the victim
3.
Recovery is
allowed even though the bystander was not in the zone of danger
vi.
Dillon
Factors:
1.
Dillion case: mom
saw D kill her son- mom and sister sued for NIED. Sister has good coa because
she was right next to him (she satisfied the zod test and could recover), but
the mom was not in the zod (she was across the street) so she couldn’t
recovery. Mom was not in any danger. Mom said she suffered watching her son get
killed. Calf SCt said the zod test causes different results when there really
are the same situations. The mom and sister suffered the same. It was
foreseeable that if you injure a child like this a parent who sees this will
suffer emotional distress- so they got rid of the old case and in with this new
case.
2.
You can recover
(MOM-in place of safety) if you meet these 3 requirements:
3.
Was the
bystander at the scene of the accident? Yes
4.
Did the
bystander witness the accident and the injury to the victim? Yes
5.
Were the
bystander and the victim closely related? Yes
vii.
Dziokonski
case:
1.
Ct recognizes
Dillion precedent- and the foreseeability issues here
2.
P didn’t witness
the accident
3.
Ct allowed
recovery
viii.
Thing v. LaChusa
1.
Ochoa case:
parents visiting son in juvenile home: he was ill- he was getting worse
a.
SCT said he had
bystander recovery- there were at the scene (seen son day by day getting worse)
b. Ct stretched Dillion case more
2.
Problem: gone
from having an arbitrary bright line to no law at all (no one can predict if
there is liability)
3.
Ochoa case might
still be good law- you still have the 3 elements in Dillion (they are just
taking place over a longer period of time)
4.
This case took
elements of Dillion and said they are required, not suggestions
ix.
The Molien Case
1.
In the previous
situation, the d’s conduct was negligent in the usual sense of creating an
unreasonable risk of physical injury.
2.
The present
frontier of emotional distress litigation involves whether there should be
liability for conduct that creates only an unreasonable risk of emotional harm
a.
D sued over
syphilis: married women went to doctor and he negligently diagnosed her as
having syphilis (but she didn’t have it). Her reaction is that her husband has
been sleeping around and he gave it to her (same was true for him). Their
marriage destroyed and suffered NIED.
b. Problem: could husband sue for NIED?
c.
Doc owed a duty
to husband.
h. Limited Duties- Premise Liability: Duties of Owners
and Occupiers of Land
i.
The rules about
the duties owed by owners and occupiers of land to those entering onto the land
can be thought of as a highly developed variation of “limited duty.”
ii.
In this case, the
scope of the landowner’s duty depended on the status of the P who comes on the
property.
iii.
Holzheimer v Johannesen
1.
P wants the jury
to determine that he was an invitee-
2.
Trial left it to
the jury to determine if he was an invitee or licensee- can’t be a trespasser
because he was invited on to the premises.
3.
He is a licensee-
it was customary to do this business practice in this town- D was not
benefiting anything (more of just a courtesy to a person)
4.
Don’t categorize
the P and then think you are done- the duty is another step!
iv.
The Categories:
1.
Trespasser:
one on the land without permission: owned only a duty not to willfully and
wantonly injure. Makes a difference: unknown trespassers are owed minimal duty
because you don’t know they are there. If you know of the presence of a
trespasser, and you know that they are about to confront some sort of harm, you
have to warn them.
2.
Licensee: One
on the land with permission but not for the benefit of the owner: owed only a
duty to warn of known dangerous conditions.
3.
Invitee: One
on the land for the benefit of the owner: owed a duty of due care. You may have
the responsibility to make the area safe.
4.
Why do it like
this? Why not just use a reasonable objective standard? If you are doing
business purpose, it is different from a social event.
v.
The Prima Facie
Case- steps to take!
1.
Categorizing the
P establishes the duty of care, if
any.
2.
P must still
prove that the duty was breached
3.
P must still
prove that the breach of the duty was the actual
and proximate cause of the harm to
the P
vi.
Palmtag v Gartner Construction
1.
This was the P
own house- how can P be licensee? Because D had control over the house while
they were remodeling it. P says she was an invitee.
2.
Determine was
there a duty? Determine which category P is.
3.
Ct said she was
an invitee as a matter of law- there for the benefit of herself and D- P was on
the premises to check on the house that she paid D to remodel- so part of
business relationship between owners of house and contractors. So there was an
economic benefit to the contractor.
vii.
Ex: if have a
business held open to the public, and if you go in there you are an invitee
(even if you are just browsing, going along with a friend, etc). Since it is
open to the public, you are an invitee.
viii.
With regard to
business, not every part of the premises is open to the public. What if you go
to the store and employee tells you that you can go to the back to get some
empty boxes. Sign on door says Employee only, but you still go in. What if she
falls back there? Well, she is not a trespasser because she had permission. She
was back there for her own purposes- so she will be classified as a licensee.
If she falls while in the produce section, she is an invitee look at (vii).
ix.
Exceptions to the
3 categories
1.
Trespassing Children (“Attractive Nuisance”)
(“Turntable”)- it is a beautiful illustration of the Hand Formula- it is an
industrial equipment used in RR. It looks like a merry-go-round and kids’ feet
would get stuck in it and severed off. It would be too much of a burder to get
rid of the turntable though. So how can we have it and still protect kids? Put
a lock on it when no one is using it. Burden=minimum. Probability of harm/severity
of harm=significant. It is negligent not to take that precaution.
a.
A duty of care is
owed to children even if they are trespassers if:
i.
The D has reason
to know of the children’s presence;
ii.
The D has reason
to know of the existence of a dangerous condition
iii.
The D should
realize that the children will not recognize the danger
iv.
The D then fails
to use due care
b. According to the R2K, this applies to artificial
conditions to the property. Doesn’t state a position to natural conditions.
c.
What about
swimming pool? Put up a fence, gate, lock…
d.
2.
Attractive
nuisance= both parts are inaccurate because the condition of the property that
causes the accident doesn’t have to be a nuisance. It’s not really a nuisance
at all.
3.
Mozier v Parsons
a.
Whatever it is on
the premises must entice the child to trespass
b. But now the R2K does not require that the premise
entice the child
i.
Landowner Duties
i.
Firefighter’s
Rule
1.
A landowner owes
no duty of due care to a firefighter with respect to the condition that made
the firefighter’s presence necessary. (Licensee)
2.
However, a
landowner does owe a duty to the firefighter with regard to other distinct
hazards that may be present on the property.
a.
Chapman v. Craig
i.
Drunk man-police
came to arrest him, and in the process of arresting drunk man, police man was
injured
ii.
Trial Ct: granted
summary judgment to D because of firefighter’s rule- P appeals
iii.
The Rule: Police
is a licensee, not an invitee; why is the duty limited? So people won’t feel
hesitant to call the police if they need them
iv.
Most cts abide by
this rule
v.
Equal protection
argument: you are treating parties
differently under the law for no good reason-kicks in when classifications are
being draw on particular suspects of race
j.
Social Guests
i.
A social guest
receives an invitation, and so is classified as:
1.
Licensee:
ii.
The rationale is
that social guests are on the premises with permission but not for a business
purpose, and so must be licensees
iii.
Some courts are
willing to classify guests as invitees if some incidental business purpose or
benefit to the landowner can be shown
a.
Hambright v.
i.
P sues that she
is an invitee to church- she fell- claims says she is licensee
ii.
Lower ct: granted
summary judgment to D. On what basis could they enter summary judgment? Was
there a duty and if so was it breached? The duty owed depends on if she is a
licensee or invitee.