TORTS I OUTLINE -

Professor Bauman

Tort Law - definition: Civil law of reparation for harms done by wrongful acts.

Torts are Civil laws as opposed to criminal laws. Some things in tort law look similar to criminal law (i.e. assault & battery), but just because a person is successfully sued for assault & battery, doesn’t necessarily mean they are liable for committing the crime of assault & battery.

harm - fairly elastic term

1. Intentional Torts - Intentional Interference With Person or Property

Why most tort cases are brought - liability insurance!

(prima facie — at first view: on its lace; not requiring further support to establish existence, validity, credibility. etc.)

Act — volitional act.

Intent I ) act with the purpose of causing contact

-Intentional — some sort of action where D desires to bring about a particular result (such as harmful bodily contact) or believes consequences of act substantially certain to result from it. Conduct and actions ‘show" an actor’s "thoughts". i.e. intent.

-Transferred intent – generally, intent to commit a tort against one person is transferred to the actual injured person. Transferred intent invoked only w/assault, battery, false imprisonment, trespass to land. and trespass to chattels.

— Malice vs. intent — Intent to harm vs. intent to inflict harmful contact. Malice = evil motive/purpose. Not essential element of’ most torts, but malice or ulterior purpose is essential element of some (ex. malicious prosecution, abuse of process). Further, malice may negate a privilege that D might have and it may permit recovery of punitive damages. Malice is worse.

1. Battery:

Liability — I) is liable for all damages resulting from harmful/offensive contact: 1) doesn’t have to intend specific harm to occur.

Transferred intent applies in battery cases (Talmage v. Smith). Intent to hit one child w/stick (or any of 5 torts), and another child hit (accomplishes any of 5). Transferred intent suffices to hold D liable for tort.

Capacty - D must he capable of forming intent to invade interests of another, even though D’s reason for forming intention may he entirely "irrational". Children & insane people are liable for intentional torts. McQuire v. Almay

Touching another in anger is battery.

Passing by in narrow space and gently hrushing them is not battery.

Forcing by someone in narrow space, rudely, violently, or struggling to degree as may do hurt, inordinate manner is battery. Cole v. Turner

2. Assault

1. Act which causes a) Apprehension of h) immediate battery (apparentability)
2. Intent by D to cause battery or apprehension of battery (intent or substantially certain)
3. Causation/Result – did cause apprehension.

Requires apprehension, but must he reasonable — requires motion of threat: apprehension not same as fear or intimidation: Words alone are not enough. Need words w/conduct. Words can undo conduct & reasonable apprehension.

Example - unloaded gun pointed at D who doesn’t know it is unloaded, has apprehension = assault

Intending apprehension, result is apprehension = no contact, no battery, but it is assault

Intended apprehension, result is harmful contact – battery

Hit from behind - never had apprehension - therefore, battery, but not assault. P must he aware of act to have assault.

TORTS I OUTLINE

Professor Bauman

Fall 1999

4. False Imprisonment

Result - confinement (sometimes awareness of confinement)

- NY requires awareness of confinement. Parvi v. City of Kingston. Parvi aware he wanted to go somewhere else, from police testimony.)

-Hardy v. LaBelle Moral persuasion cases if D persuaded P to "clear up" issue, as long as P willing is not FL. Force or other threats = FL

confinement - direct restraint of P or his physical liberty w/o adequate legal justification

1. Intent - Conduct must he intentional to cause emotional harm: intentional or reckless.
2. Causation
3. Damages - Clear showing of substantial emotional damages/severe emotional distress

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)

1 Test: Extreme — Continuous, certain P (child, old, pregnant or supersensitive adult)

ONLY WHEN D knew of supersensitivity. outrageousness of D s conduct. If D

common carrier/innkeeper has higher duty, but only to P passengers/guests. Balance

damages w/outrageousness of conduct — worse conduct, less required showing of damages.

common theme/factors:

1. imbalance of power & abuse of power – coercion
2. P vulnerable — threatened by serious consequences or sensitive personal issue consistently, constantly irritated.
3. harassment - ie collection agency.

distress because of the person’s relationship to injured party harder to prove. Must be

present, close relative and D knew P was present and close relative. No transferred

intent.

- broke the close)- D himself or something thrown, pushed. etc. - some physical object

has to go onto or over land (ex. baseball thrown over land trespass).

which results in invasion

interest Causation

Land - not just surface: reasonable distance up & down from surface. MISTAKE/GOOD

FAITH - NO DEFENSE. Could also be trespass when D remains on P’s land after

otherwise lawful right of entry expired. Trespass different than nuisance- temporary.

intermeddling - directly damages P’s chattels (scratch briefcase)

dispossession - D’s act dispossesses P of lawful right to possession (take briefcase for own use)

2. Intent — mistake no defense

(A.) Nature of the Tort — only of personal property — not real property or intangibles)

Act — interfering w/P’s right of possession serious enough to Warrant D pay for full value of chattel (wrongful acquisition/theft/embezzlement):

Transfer/selling/misdelivering/pledging: detention/refusal to return; substantially changing; severe damage or destroying; misuse)

innocent/bona fide purchaser: accidentally causing damage or loss not conversion unless

actor using w/o permission when occurred. Claim of dominion and control

(B) Effect of Good Faith – bailee receiving and returning goods from/.to thief w/o notice not liable to real owner unless owner makes demand for his goods.

(C) Necessity of Demand: Return of Chattel

(D) Damages - P entitled to fair market value of chattel, generally computed at time and place of conversion. After satisfaction, title to D = forced sale of chattel. P not obligated to take chattel back after conversion. Replevin, If P wants chattel returned.

(F) What May Be Converted - personal property and intangibles that have been reduced to physical form (i.e. promissory note). documents of title (i.e. bill of lading, warehouse receipt)

(F) Who May Maintain the Action - anyone w/possession or immediate right to possession. Possession is sufficient title against wrongdoer. If possessor is not true owner, accountable to owner for recovery to extent of owner s interest.

The longer the withholding or more extensive the use of chattel. more likely is conversion v. trespass to chattel.

converting keys = conversion of car.

2. Self—Defense - I) has reasonable grounds to use reasonably necessary force for protection against potential injury. timing requirement satisfied — show tort defended against happening now or in any second (not retaliation) or in hot pursuit

2. D reasonably believed tort being committed - majority rule - no duty to retreat; modern trend, duty to retreat to walls before using deadly force UNLESS in own home

3. boundaries

3. Defense of Others 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.

same rules as self defense. I. timing (happening now); 2. reasonable belief not enough; 3. boundaries of defense privilege

4. Defense of Property - 1. timing (happening now); 2. reasonable belief 3. boundaries of defense privilege. Request to desist usually required - unless clear that request will be futile or dangerous. Limited to preventing tort - Reasonable force - may not use force causing death or serious bodily harm to protect property alone. No indirect deadly force (trap/spring gun): may not use force if D has permanently dispossessed property (unless in hot pursuit).

Shopkeeper’s privilege. 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.

5. Recovery of Property - Can use reasonable, non-deadly force to recover property as long as you’re in fresh pursuit (prompt discovery of dispossession. & prompt & persistent efforts to recover chattel. Undue lapse of time, or pursuit comes to a halt means owner no longer privileged to fight himself back into possession, but must resort to the law). May enter to reclaim chattel at a reasonable time and in a reasonable/peaceful manner, except may use force in fresh pursuit - Deadly force never used. Privilege exists only if property wrongfully taken from owner.

6. Necessity — only w/property tort

a) Public Necessity - 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)

b) Private Necessity — 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) Qualified defense - actor liable for actual damage caused.

7. Authority of Law - arrest by official government peacekeeper - If D is duly

I . discretionary or quasi judicial. Call for administrative judgment, ie prosecuting

2. ministerial - requiring less personal judgment (ex. Remitting a prisoner to jail or dipping sheep.

8. Discipline - may use reasonable force & restraint

b) Military officers/Subordinates

c) Captain of ship/crew & passengers - limited to reasonable force under circumstances

9. Justification - A defense to false imprisonment. I) has burden of proof.

—restraint or detention

Strict Liability - liability w/o fault; this allows for elements of wrongfulness to be

explored; Rest 2d liability arises out of "abnormal danger" of activity itself, & risk it

creates of harm to those in vicinity. One engaged in risk is responsible for relieving harm when it occurs on those it harms.

Negligence — omission to do something that a reasonable man under like circumstances would have done.

1. Duty — to use reasonable care
2. Breach of Duty — A failure to conform to required standard

 

TORTS I OUTLINE

Professor Bauman

FaIl 1999

3. Causation
4. resulting Damage

Negligent conduct = duty + breach

Negligence liability = negligent conduct that caused damage

Duty clement –

I) foreseeable P (ex. Ped x street. Unforeseeable. Palsgraf)

2) standard of care (reasonable person, professional. owner/occ land. etc.). Required to act w/such reasonable caution as a person of ordinary prudence would have exercised under thc same circumstances.

Cardozo - test for foreseeability: Is P in foreseeable Zone of Danger if negligent conduct? Most courts follow Cardozo.

Andrews - If negligence to P1 injures P2, P2’s injuries were foreseeable (D owes duty of care to anyone who suffers injuries as proximate result of D’s breach of duty to someone)

Breach - 1) Omission to do what a reasonable person would do or 2) an act which a reasonable person would not do.

(A) The Reasonable Person - objective test standard. Compare D’s conduct under all the circumstances to "invented hypothetical" reasonable person who considers: foreseeable risk of injury, extent of risks, likelihood of risk actually resulting in harm, alternatives to the conduct which would achieve same goal, costs of alternatives in determining what is reasonable. Exceptions: D’s physical disabilities - subjective. If D is aware of his disability, should act as a reasonable person w/that disability (ex. may be negligent for epileptic to drive). Individual w/mental handicaps not considered/stupidity no excuse. Everyone held to average standard. D w/superior knowledge required to use it.

Children - under 4 - incapable of negligent act/not liable (but is liable for intentional torts).

reasonable child - like age, intelligence & experience- subjective test.

child engaged in adult activity - hold to adult standard – objective

The Professional — reasonable professional in same or similar communities (location

standard eroded some, held in most).

Specialist – expertise taken into account - more expected.

Common carriers/innkeepers — much higher standard of care – liable for even slight negligence to P that must be a passenger or guest – does not apply to other non-guests/passengers.

Owners/Occupiers of land - see separate section

C) Aggravated Negligence

Calculus of risk — reasonable conduct — even causing injury, is not necessarily negligent.

Hand Theory: A duty to provide against resulting injuries is a function of the probability of injury (P), the severity of the resulting injury (L), and the burden of taking adequate precautions (B). If B is < PL, then there is a duty to provide against the harm. Many times it is difficult to measure P. F & B. as result movement to provide more clear cut rule as alternative to Hand Formula. (Carrol Towing).

Custom: D not necessarily relieved from liability for negligence even where he acts in according to established custom. Custom is persuasive, not decisive. Disclosure Rule: All material risks potentially affecting patient’s decision must be disclosed to patient. P must show that if informed of risk, reasonable prudent person would hot have undergone procedure. 2 exceptions to rule of disclosure: I) patient is unconscious/otherwise incapable of consenting 2) physician determines disclosure would present threat to patient’s emotional well-being

(A) Applicability of Statute - D liable when there is specific duty established by statute.

P must fall w/in protected class; statute must be designed to prevent this kind of harm;

Negligent conduct caused the damage.

(B) Effect of Statute - violation of statute usually means negligence per se. Statutorily required standard of care - prevails over other standards. 2 exceptions/excuse I. when compliance would be more dangerous (ex. drive on wrong side of road to avoid child) 2.where compliance beyond D’s control (ex. blind ped x against light). No knowledge of law - no excuse.

Standards of conduct, when clear, are defined by the Courts, and it is jury’s determination whether parties to lawsuit have exercised due care. Advantages of fixed rules/standards of conduct: Predictability, Deterrence, cheap.

(B) Res Ipsa Loquitur - "Ihe thing speaks for itself".

Byrne v Boadle, Court of Exchequer (1863).

On facts — it is not clear it was negligent conduct -probability test:

injury would not have happened unless somebody was negligent

somebody was this D

P must be free from contributory negligence

Ex. Plane crash – 2 separate investigators cannot find cause

Res ipsa does not win case – allows case to go to jury w/inference of negligence.

Hand Theory: A duty to provide against resulting injuries is a function of the probability of injury (P), the severity of the resulting injury (L), and the burden of taking adequate precautions (B). If B is < PL, then there is a duty to provide against the harm. Many times it is difficult to measure P. F & B. as result movement to provide more clear cut rule as alternative to Hand Formula. (Carrol Towing).

Custom: D not necessarily relieved from liability for negligence even where he acts in according to established custom. Custom is persuasive, not decisive. Disclosure Rule: All material risks potentially affecting patient’s decision must be disclosed to patient. P must show that if informed of risk, reasonable prudent person would hot have undergone procedure. 2 exceptions to rule of disclosure: I) patient is unconscious/otherwise incapable of consenting 2) physician determines disclosure would present threat to patient’s emotional well-being

(A) Applicability of Statute - D liable when there is specific duty established by statute.

P must fall w/in protected class; statute must be designed to prevent this kind of harm;

Negligent conduct caused the damage.

(B) Effect of Statute - violation of statute usually means negligence per se. Statutorily required standard of care - prevails over other standards. 2 exceptions/excuse I. when compliance would be more dangerous (ex. drive on wrong side of road to avoid child) 2.where compliance beyond D’s control (ex. blind ped x against light). No knowledge of law - no excuse.

Standards of conduct, when clear, are defined by the Courts, and it is jury’s determination whether parties to lawsuit have exercised due care. Advantages of fixed rules/standards of conduct: Predictability, Deterrence, cheap.

(B) Res Ipsa Loquitur - "Ihe thing speaks for itself".

Byrne v Boadle, Court of Exchequer (1863).

On facts — it is not clear it was negligent conduct -probability test:

injury would not have happened unless somebody was negligent

somebody was this D

P must be free from contributory negligence

Ex. Plane crash – 2 separate investigators cannot find cause

Res ipsa does not win case – allows case to go to jury w/inference of negligence.

Proof of Causation - Causation - 2 types

I. Actual Cause/Causation in Fact MUST be handled first. If actual causation does not exist - lawsuit is over. Did D’s negligent conduct cause injury?

But for test: Injury would not have occurred but for the negligent act. If harm would have occurred anyway, D’s negligence is not the cause in fact & ifs over for P. P does not have to exclude all other possible causes, however P must show that D’s negligence was not only capable of causing harm, but that negligence actually caused the harm

Do but-for first, if not but for - do following 2 exceptions:

Substantial factor alternatives – ex. 2 drag racers scare horse, causes injury. Conduct of each was substantial factor in causing injury of P.

Alternative causes test - Summers v. Tice. 2 Ds fire guns negligently, P hit by pellet. One D was responsible/other D not - we don’t know which. Shift BOP to Ds or both held liable. P is innocent and injured - should not be left uncompensated.

3. Concurrent Causes - several acts combine to cause injury, but none of the acts standing alone w/b sufficient (ex, two neg. driven cars collide, injuring passenger. But for either act, injury would not have occurred.)

P already shown there was breach/negligent conduct. P also shown negligent conduct caused injury. Doctrine of proximate causation - limitation of liability/way for jury to let negligent D who actually caused injury off for lack of foreseeability. General rule - D

liable for harmful results that are normal incidents of and within the increased risk caused by his acts - foreseeable.

Direct Cause & Risk Rule (do both analysis - direct cause 1st)

Direct cause case/ Causal Chain Test - uninterrupted chain of events breach + negligent act & injury. Test: Look at cause in fact - how many links between D‘s negligent conduct & P’s injury? Very short chain direct cause test - likely proximate cause (unless bizarre foreseeability problems). Ex. D’s negligent conduct -à O (cause in fact) () -à Ps injury

Risk Rule - Were unreasonable risks ("UR") created by D? Link up w/P’s damages. If significantly different - spotted an issue.

Foreseeable harmful results regardless of unusual manner which it was brought about. Unforeseeable harmful results – D usually not liable.

Indirect cause case - after D’s negligent act - but before P’s injury - an intervening force/affirmative act of 3rd person or Act of God occurred.

Rule # I - if result is unforeseeable — let D go.

Rule #2 - if result is foreseeable, hold D liable, w/1 exception. In indirect cause case, if intervening act was unforeseeable intentional tort or crime – let 1^st D go even though result was foreseeable. Direct cause cases - result foreseeable 98% of time.

Thin skull rule - take victim as you find them - D liable for actual injuries caused even if unforeseen extended injuries due to P’s "thin skull". Not an unforeseeable result case - all you have to foresee is an injury- not extent of injury.

Atlantic Coast Line R. v. Daniels (1911)

When D’s negligence has caused P to act, P acts negligently in emergency situation. Ps negligence will not sever causal liability.

Bartolone v. Jeckovich (1984) P lonely body builder predisposed to psychosis. Auto injury with fairly minor injuries caused mental condition to kick in: P no longer able to cope. Variation on the thin skull rule.

Onto her from explosion. Holding: D-RR not liable to Palsgraf, even though negligence of pushing passenger could have caused injury to passenger, Palsgraf’s injuries unforeseeable – too remote.

Derdiarianv.Felix Contracting (1980) D Felix (did not secure excavated road worksite. D Dickens suffered epileptic seizure while driving, drove car into worksite. hit P Derdiarian who landed and was splashed with boiling hot enamel. Was expected risk D Felix should have guarded against that a car would enter the worksite. this is what happened. DFelix liable.

Kelly v. Gwinnell (1984) Issue: Whether social host who enables adult guest at his home to become drunk is liable to victim of an auto accident caused by the drunk driving of the

guest. holding: Yes. Reasonable person would foresee drunk that has to drive would likely become involved in accident. and Public policy reasons

Wager v. International Ry (1921) P1 D-RR’s conductor did not shut doors of train and as it crossed elevated bridge cousin of P fell out. After train stopped, P went up on bridge with conductor following w/light, slipped, fell off bridge (D’s negligent act creates situation of danger for another). Holding: D liable for any injuries suffered by rescuer (‘danger invites rescue").

Fuller i’. Pries (1974) suicide

By way of synthesis:

P can recover damages in full from any of jointly & severally ("j&s") liable D. When judgment pd. in full - terminates P’s rights. If all pd. by 1 D, may have contribution right from other Ds. Great for P. if 1 D is solvent, and other not, P will still be able to collect judgment granted by Ct. Both D’s are wrongdoers & P is innocent victim - Ds should bear risk of D being insolvent - P innocent & injured.

j&s liability occurs:

a) acting in concert (ex. Bierczyski v. Rogers (1968) 2 car racers, 1 lost control, ran into P. other did not. Both D racers created dangerous condition (race) acting in concert, both j&s.

b) common duty - employer/employee. Employee injures 3d party. together owe. Employer vicariously liable for employee’s acts.

c) indivisible injury - most important today. Independent torts of 2 Ds cause indivisible injury – can’t apportion part of injury Ds. (cx. P hit on head twice in two concurrent collisions - brain injury. Can’t find basis for separating. ex. 2 - death) Connect w/proximate cause/intervening cause. 2 Ds. D1 sets up. D2 triggers injury indivisible injury, both parties negligent & both proximate cause j&s liable. Problem horror story. D1 only 1% negligent, other Ds insolvent - Dl deep pocket - stuck w/entire judgment. Coney v._J.L.G. Industries (1983) — retains j&s in pure comparative negligence scheme. Reduce P’s recovery by P’s contributory negligence then co-D’s j&s for all balance. Bartlett v. N.M. Welding Supply (1982) — several rule- D only liable for his proportionate share of judgment.

Settlement = most lawsuits settle — <10% go to trial. CL viewed joint tortfeasers as one unit; if P released 1 joint D, released all Ds. Release meant P gave up claim completely. More complicated w/multiple Ds. Now P can release D2, but keep rights against D1. Options: Dismissal w/o prejudice – D1 out, but P retains right to sue D2 – not satisfactory to D2.

Bundt v. Embro (1965)

Cox v. Pearl Investment Co. (1 969) Covenant not to sue got around CL rule of release. Cts. accepted this - now able to effect partial release. Now many jurisdictions allow release I D. TX - release only releases named parties. unless total release of all claims. Improvident settlement problem - (ex. early settlement for bump on head $500 turns out to be an organic brain injury). General law of avoiding Ks for fraud, mistake or duress. Requires very strong showing of mistake - may not be enough that P wasn’t aware of extent of injury (why P1 lawyers send clients to be evaluated by Dr. before release/settlement.

Mary Carter Agreements - partial settlement in case w/multiple Ds where Dl guarantees $ tp P, & any payment/judgment for other D’s reduces amount of S D1 has to pay; D1 has incentive/reward to stay in the suit and help P hit other Ds big. This idea was intended to protect P from the "empty chair phenomenon" in which non settling Ds blame everything on settling D and point at the empty chair. This plan very collusive. So that the party most responsible could get off by shafting other Ds. therefore many states began to require settling D to tell both the other Ds and jury about agreement.

Elbaor v. Smith (1992) TX does not allow this scheme, saying against public policy; secret agreements between parties grounds for reversal. Previously allowed when agreements are 1) discoverable 2) fully disclosed to Ct. before trial or immediately after made 3) considered by Ct. in allowing jury strikes & ruling on witness exams 4) s/b fully disclosed to jury. Some jurisdictions say "smell too bad", potential to mislead jury. improper and void.

Knell v. Feltman (1949) Knell, own/operate car: M/M Langsland, passengers. Both D1 & 3d party D2 negligent. P didn’t sue - so can’t enter judgment for P against D2. P can recover full damages from D1 . Contribution judgment for Dl against D2 for 1/2. D2 argues he was not found j&s liable to P — Ct. says no — D1’s rights would then turn on P’s actions. (case pre-comparative negligence).

Indemnity - term has gotten muddled) used to mean for some reason D who paid judgment was entitled to be repaid l00% from another party - Why? Express indemnity agreement; insurance; D only vicariously liable (employer’s behavior not wrongful -employee was - employer’s rights against employee) Tolbert v/ Berber Indus. (1977) D was passively at fault (not 100%) j&s allow contribution from other D actively negligent (now folded into comparative negligence/proportionate responsibility).

Druckman v. Pena (1 971)

Michie v. Great Lakes Steel Div. Nat ‘1 Steel Corp (1 974)

Dillon v. Twin State Gas & Elec. (1932)

There are some Ds & some situations where duty of care to a reasonable person standard does not arise.

i.e. - gratuitous bailee liable only for gross negligence in looking after goods.

i.e. - statutes make car driver liable for only aggravated misconduct to gratuitous car guest.

Duty a relative concept - negligence cannot be "committed in the air" Palsgraf - P must build case of duty owned to her - not to another.

P has BOP of physical harm/illness is a natural result of fright/mental shock proximately caused by D’s negligent conduct. Abnormal result causes concerns that it’s genuine. New rule allows jury to reasonably find/infer causal relationship between D’s alleged negligence and P’s injuries. Brennan’s dissent: "no impact" cases s/b limited to ones where definite & objective physical injury occurs. Physical symptoms: loss of weight; rashes, lack of sleep, ulcers.

Statutes for some "no impact’ — ie. sexual harassment

Target Zone/Zone of Danger – Only foreseeable P w/in zone of danger can recover.

Majority - no recovery for mother not herself in zone of danger when child was run over. Dillon v. Legg open-ended foreseeability of harm (bright line Thing v. LaChusa) test: 1) P closely related to victim 2) mental/emotional distress caused by actually SEEING the accident occur. In Thing v. LaChusa mother didn’t actually see accident - saw child in street afterwards bleeding and thought child dead - no recovery allowed.

Modern trend - recovery allowed for close relative who perceived injury - present or close by. Also, sometimes: D must pay costs for medical monitoring to catch early disease - P exposed to toxic substance, develops fear of disease (asbestos, cancer).

Molien - Special relationship gives rise to duty and 3d party becomes a "direct victim". Dr. owed husband duty too when misdiagnosed wife’s v.d. D’s undertaking - taking on a duty under a special relationship (treating married woman). Main risk was of emotional injury - not physical malpractice: but not every risk of emotional injury falls under here. Ex 2. Marlene F relationship between therapist & mother, duty not only to children, also to mother when Dr. molested children.

TX Boy/es v. Kerr - (1993) D settled w/P after winning reversal of jury verdict by TX S. Ct. P sued for negligent v. intentional infliction because liability insurance will not cover intended acts. Still good argument was reckless. This case drew line in ‘TX: Risk of only emotional injury (not physical) is not liable negligent infliction of emotional distress.

2 exceptions to no physical injury for negligent infliction of emotional distress (majority): 1. "death telegrams" other false death notice

2. mishandling of dead bodies.

2. Failure to Act - Traditional rule: Yania v. Bigan (1959) Generally no affirmative duty to act for benefit of others. (ex. B induced Y to jump into ditch. Y drowned. B took no action to rescue. B not liable to Y’s widow - no duty to act.) Reasons: 1. Policy of personal autonomy. 2. Line drawing problem - where does duty end?

relationship - duty created by some relationship between the parties - immediate family members: employer/employee: common carriers/passengers: innkeepers/guests:

invitor/invitee (L.S. Ayers v. Hicks (1942) child injured by own negligence on escalator, store had duty to turn it off so as not to aggravate injury — duty to limit amount of harm because of relationship: landlord/tenant (Duarte v. State - university liable for dorm rape because misfeasance, not nonfeasance)

duty to contrl conduct of 3d persons - must show 1) Right & ability to control 3d person. and 2) knew or should have known of facts that would have got you to do something. (ex. Linder v. Bidner: child injured guest: Tarasoff mental patient killed victim after telling Dr. he would. Dr.’s duty to warn trigger - particular named target victim. Drs. concerned re: confidentiality obligations to patients. Attorney’s confidentiality obligations fundamental to relationship — Cts. more understanding here.

By acting – D having started acting must then use due care — avoid leaving P in worse position/unable to seek other medical attention, or actions prevented help. etc.

‘4

Ex. Siegrist in Farwell v. Keaton (1976). S put F in back of car after F injured in a fight. cruised around, left F in car all night. F died from injuries. Not non-action (leaving S on ground) instead, took action - isolated/made sure couldn’t get other medical attention -actually was misfeasance). Tendency of law to say once you begin rendering aid. incurred duty. Common law has always distinguished between misfeasance & nonfeasance. Misfeasance = action - duty to use due care (ex. driving car) actively doing something wrong, liability. Nonfeasance = non-action. Not doing anything. Not liable when non-action - no duty to act.

hit & run - D caused injury, statutory duty to stop and render aid; duty to protect injured party from further injury.

failure to continue - If by doing so, D leaves other in worse position than when actor took charge of him. Duty to continue to render aid.(ex. RR intersection has flagman, motorists begin to rely on flag warning. Dangerous to take it away; but 1st time visitor to + = no duty b/c no reliance)

Good Samaritan Statutes - try to provide safe haven for those who try to render assistance to victim using best efforts but cause/aggravate injury anyway. When person aid another in emergency, rescuer is not liable for damages to the rescued party unless rescuer grossly negligent, or willfully/wantonly injures rescued party.

Promise + reliance (not under K) (ex. Throne v. Deas (1809) classic. P&D co-owners of ship. D promised to get insurance, didn’t, ship lost. P injured - but held no K/no consideration: no tort/no undertaking - nonfeasance. Today w/b prom. estoppel & detrimental reliance. ex. Marsalis v. LaSalle (1957) D liable to P for damages from failure to do duty (undertaking of keeping cat inside to determine rabies). P relied. because of D’s negligence. P was injured (underwent painful rabies treatment).

3. Unborn Children - remember DES injuries to children whose mother took drug resulting later in various cancers in female children. When drug was made to prevent miscarriage, manufacturer KNEW P was pregnant woman. obviousIy dealing w/2 people. mother and unborn child - injury was foreseeable. But in Endres v Friedberg (1969) Auto accident injures pregnant mother, also kills unborn twins. Majority view - no liability for wrongful death of unborn child. Child must be born alive to have cause of action ("c/a") Largest most populated jurisdictions do not recognize unborn child has c/a (NY. CA. TX. NJ, FL). But if child born alive w/injuries lives or dies, has c/a. Important to remember mother has c/a for own injuries including emotional distress. Cts. not yet recognized case where pregnant mother drinks alcohol & causes injuries to child - no c/a for child.

Earlier cases were unwanted child - bad sterilization, seeking to recover cost of raising child. Cs. have allowed only certain amount $ (pregnancy & delivery expenses). Cts. also see some benefits of child to parents - hard to determine. Most Cts. won’t allow ordinary costs of raising child as damages. D have argued failure to mitigate damages -could have terminated pregnancy or put child up for adoption - most Cts. reject these arguments - not reasonable to force these choices. If D actually inflicted injury to child, or negligently diagnosed & child born w/injuries or health problems which require lots $ to deal w/. most Cts. recognize extra $ of dealing w/symptoms. disease, syndrome, etc. not diagnosed. Now that abortion is legal, P/parents MUST testify had they known of potential problems they would have terminated pregnancy to recover.

B. Wrongful life - child’s c/a. Usually occurs in the failure to (diagnose disease/defect cases. P/child says should be compensated for injuries/impaired life/problems. P child argues he would be better off never to have been born. Cts. have problem w/this -non-existence v. existence w/all the problems. nor "diminished childhood" - Cts. can’t go there. Compensation for pain of existence, normal life expectancy - parents only raise child for x time, child must take care of himself/pay for care eventually. Advances in technology & law (abortion) look for someone to blame for tragic births. Propanic -child or his parent may recover special damages for extraordinary med. expenses incurred during infancy, and infant may recover expenses during majority.

Statute of Limitations/birth defects or manifestations of disease - Many jurisdictions (IX) allow discovery rule - can’t be banned from c/a before problems surface, some problems not until many years later. SOL starts w/discovery. Also, child has own c/a, when child did not have capacity to sue, allowed at age of majority - shouldn’t be barred if parents did not bring suit on child’s behalf.

4. Privity of Contract - by making a promise, incurred a duty. K creates duties to anyone other than person you are contracting w/? No. Winterbottom v. Wright (1842) P injured driving mailcart D contracted w/postal svc to keep in repair and didn’t. No Privity of K between P &D. no recovery. Prospect troubled Cts. greatly, D c/b liable to unspecified parties due to K - concern what it would do to regime of K relationships. S/b able to decide who you contract w/ & can decide liability in K. (½n limit/assign damages between K parties.

Attorney’s owe ONLY their client duty of care - strict rule of privity Clagett v. Dacy..

3d party beneficiaries (ex. will made for known beneficiary done negligently in some jurisdictions (not TX) - P/beneficiary very high BOP to show client/deceased’s wishes not carried out. Or if K specifically aimed at 3d party) - very limited.

Negligent representation attorney giving advice to 3d party on behalf of client - know 3d party will rely upon it. Duty to be accurate.

Nonfeasance - not performing k at all may breach duty to 3d parties; (ex. car in shop for repair of brakes. D does not repair at all. Accident due to brakes. 3d party injured. D liable to 3d party P.

Professional Svc K- (some) architect negligently designs bridge which collapses, killing many people. D/architect liable to people, not just city who owns bridge. Not for breaching K, for breaching tort.

unlabeled poison/by statute- unlabeled poison. Duty of care owed to everyone who might come across poison. Duty not from sale k, it is a tort duty by law (so dangerous) regardless of law.

5. Pure Economic Loss unaccompanied by physical damage to property/person, but consequence of D’s negligence. (ex. 1. Hotel corp hired engineer to design fire control system, professional negligence - fire system does not work at all; fire - employees injured, sue engineer. Employees w/PI from fire: privity rule hotel/engineer not applied (pro exception) can recover med. expenses. pain & suffering & lost income. Employees w/o P1 have no job (pure economic loss) no recovery allowed. Hotel owner - lost income w/property loss - can recover from engineer. ex. 2. Bridge damaged, only road to hotel. Pure economic loss to hotel, but no recovery allowed from D who negligently damaged bridge. ex 3. M/V Testbank. Majority allows no recovery to business economically damaged from port shutdown due to toxic spill except professional oystermen. fishermen. etc. Other claims (boat rentals. watersports, motels, restaurants, etc.) too remote, uncertain. enorrnoLIs. to allow recovery. Bright line test drawn here. Dissent says foreseeability s/b limit for recovery. ex 4. Robins Dry Dock - damages ship’s propeller -2 wks to fix. Charterer cannot charter. economic loss to shipowner & economic loss to charterer. Charterer cannot recover.)

Sometimes recovery allowed in tightly bounded 3 cornered relationship w/interwound Ks

- creates nexus. (ex. A/C repair Co. damages property it was hired to repair for building owner leasing to restraurateur. delay’s opening restaurant several months. A/C Co. knew about restaurant. was directed by r owner - restaurateur can recover from A/C Co.

1. Outside the Premises Taylor v. Olsen (1978) In misfeasance. duty owed from doing some act. (ex. chopping branches from tree, falls outside property and hits P). Nonfeasance, doing nothing (ex. tree just rotten. Falls over) depends where you are if duty owed. Historically, rule different for urban and rural areas. Urban: If posing threat to peds or motorists, O/O has duty of reasonable care to inspect, remove if threat. Rural: w/b too high burden on landowner – too many trees, occasional travelers, very little risk. Perhaps if very busy rural highway. Duty of due care – not to eliminate all possible risks (ex. Tree appears sound; visual inspection would not disclose tree was damaged. Ct. would not require O/O to drill into tree to see if live. No liability)

Trees, land moves/unstable. But when 0/0 actively doing something to land/trees, converts from nonfeasance to misfeasance.

Active operation carry duty of due care. (ex. Salevan v. Wilmington Park Inc. (1950) baseball park = active operation. 16-18 foul balls hit into street in average game creates significant risk. Duty to put up fence or screen to keep balls in. Stone v. Boton. same premise. but foul ball once every 10 years or so. Ball hits someone on road. Ct. said no duty - so unusual an occurrence (B<P L). No question 0/0 club had duty – of what duty was in relation to risk?

2. On the Premises - threshold question - class of person on land-. is P: ?

(I) undiscovered trespasser - No duty owed/no standard of care (but 0/0 cannot willfully or wantonly injure). Was injury caused by activity or dangerous condition’? (anything done on the property - playing baseball, running machinery or hole in ground). If activity caused injury - P’s status does not matter. If dangerous condition caused injury - - different standards for class of P.

Exception: Once 0/0 changes natural land w/artificial condition w/risk of serious injury (classic ex. - swimming pool) may be some obligation to protect trespassers from danger (esp. children)).

(B) Licensee - (his or her own reason to be on property including social guests who were invited over - do not confuse) - D 0/0 is liable for dangerous conditions O/O knows of duty to warn. No obligation to make premises safe. Licensees take premises in condition o/o wants property to be.

(C) Invitees (now called business visitors) - (on land for purpose of 0/0) - Duty of ordinary/reasonable due care 0/0 responsible/liable for dangerous conditions O/O should have known about. Requires reasonable inspection of premises by 0/0. Includes stores. businesses. etc. who invite public in. Even if P goes in as invitee. status can change when customer went into storeroom to get a free box. Whelan v. Van Natta. Modern view:

Includes people who come in to use toilet, get out of rain, read magazines w/o buying. children accompanying parents, friends tagging along w/shopper. 0/0 may have duty to protect P from 3d party criminal conduct if some element of foreseeable harm: previous attack on customers, in high crime neighborhood: may need security guard in parking lot. lighting etc. to minimize risk. Duty because of invitor/invitee relationship. Many jurisdictions difference between invitees & licensee determined by type of premises (whether open to the public) not private motives of visitor.

Also, recreational use statutes for those who open land for recreational use have not assumed a duty, and do not have to make premises safe

If duty owing. 0/0 can discharge duty by:

(1) Making condition safe (injury would not occur)

(2) Adequate warnings (Wilk v. Georges) - Plant nursery. Invitee slips; sometimes warning not enough). Most states, no 0/0 liability for very obvious dangerous conditions.

(1)) Persons Outside the Established Categories

(1) Children - higher duty of care owed. Attractive nuisance doctrine/turntable doctrine Children must be attracted onto land by the danger (later rejected). Prevailing modern rule Rest. 2d ss 339 - artificial conditions highly dangerous to trespassing children - foreseeability to children. 1. 0/0 must be aware of children likely to trespass 2. aware of condition/something on land children would not recognize as a danger. but is a danger to them. Unwillingness to make 0/0 responsible for making natural conditions (ponds, trees. etc.) safe - artificial conditions yes.

(2) Persons Privileged to Enter Irrespective of Landowner’s Consent - not subject to categories. Gov’t inspector. etc. hard to put in categories - invitee’? or persons to whom some duty owed? Emergency - firemen/policemen. Fireman’s rule - No duty owed by 0/0 to fireman - it’s their job/compensation built in for injuries on job - cannot give tort action too. Limitation to rule: If dangers on land and 0/0 can warn and fails -will be liable. (ex. fire in warehouse where flammable chemicals stored. 0/0 told fireman no danger so they would save warehouse/$ chemicals, firefighter injured, argues 0/0 negligent - fire cause in fact (but for cause) and probably proximate cause too (foresee firefighter w/i risk of fire) normally 0/0 w/b liable - v. assumption of risk (fireman’s job).

(F) Rejection or Merging of Categories -Categories quick & dirty way to determine duty owed. broadly applicable. Criticism of bright line test, particular cases may seem unfair. but 99% of cases outcome is better than case by case analysis better justice overall. TX retains

3. Lessor and Lessee - Tenant/lessee is treated as occupier of land – regular analysis between tenant/lessee and guest. Problem is landlord relinquished some control? Retain duty to keep property safe? If so. does it run to guest of tenant. or only to tenant (via lease k). Traditional rule: No liability. Lease is conveyance - lease equivalent to sale for the term — landlord out of picture. No duty to warn.

1. undisclosed dangerous conditions known at time conveyance made
2. opening for business by lessor/ie space in shopping center — modern rule
3. apartments in large apt. complex — lessor is still there — more hands on relationship w property even after lease — general duty of cure. (ex. Duty to continue to provide security when security was provided at time apt was leased – landlord in best position to provide security, maintenance – only party who can control outside doors, in a position to patrol/repair common areas, to watch doors – tenant cannot do on own).

Effect: Cts. won’t allow landlord to evade landlord’s duty claiming no k relationship - Cts. impose duty to secure (may increase rent) private k supplemented by tort liabilities. Not every jurisdiction agrees.

-Differing results from contributory negligence. Here offsets contributory amount in comparative negligence most jurisdictions. Even negligent party can recover. Usually no award for party more than 50% negligent (P’s 5100 complete bar to recovery), but in pure comparative negligence jurisdictions. P will recover something unless jury assigns P 100% of negligence.

- Typically, jury first assigns %s to all parties = 100%. Then jury determines separately total amount of damages suffered. No set off- each party claiming/allowed to recover damages does (b/c may have outside payer (insurance. etc.) and each will get something. Ct. will enter judgment for both.

-Last clear chance doctrine is gone in comparative - factored in when assigning negligence %s to parties.

-Remember under joint & several liability, if P could demonstrate D1 & D2 were negligent and negligence was cause in fact and proximate cause of P’s injury, P could recover in full from either one (may be contribution between them) - McIntyre abolishes J&S under comparative negligence in Tenn.

-New problem - comparative negligence - how do you compare negligence w/strict liability? by definition only one D negligent. Most jurisdictions say go ahead and compare. assign % to parties - defective product, act of negligence. etc. Now? is what main causal contribution - not who negligent?

Contributory Negligence Comparative Negligence
P = 20% responsible P 20% responsible
$10,000 damages $10,000 damages
D 80% responsible D 80% responsible

P recovers $0 P recovers $8,000

1. D is liable only for % of responsibility found by trier of fact ss 33.01 3(a).
2. D is j&s liable only if his % of responsibility is greater than 50%; 51% bar for claimants. (except toxic torts)
3. If D is j&s liable and pays more than his %. or if a 3d party liable to D, but who P did not seek against. ID then has claim against corittibution D ss 33.016. Trier of fact determines % of responsibility attributable so each contribution D in a separate issue, not part of % of responsibilities between P/D (D cannot dilute his % responsibility by bringing in 3d party Ds) More than just negligence — also product liability. etc.