The Law of Torts Outline

Assault:

• Definition:

• Intent:

• To cause offensive or harmful contact, or

• To cause apprehension of such contact.

• Another person is put in apprehension that such contact will occur imminently.

• Special Rules:

• Doctrine of Transferred Intent: intent need not be directed at P (P must feel apprehension for himself).

• Nature of Threat:

• Must be imminent

• Must be aware of threat

• Threat that can be avoided by agreeing to an unlawful act is assault.

• Fear not required! Only apprehension. (May not be afraid but contact still offensive.)

• Apprehension need not be of contact caused by D. (“a snake is behind you!”)

• Words alone usually not sufficient, unless put P in apprehension of imminent contact.

• D need not be able to carry out act as long as apprehension exists.

Battery:

• Definition:

• Intent:

• To cause offensive or harmful contact, or

• To cause apprehension of such contact.

• Intended person or another person suffers such a contact as a result.

• Special Rules:

• Doctrine of Transferred Intent: intent need not be directed at P (P must suffer the resultant contact).

• Intent:

• Can be had by mentally incompetent person or a child.

• Cannot be reflexive or involuntary.

• Good intentions, lack of actual harm, and beneficial results are not a defense if a reasonable sense of personal dignity would be offended. (i.e.: motives are irrelevant)

• ? if contact that was known to be offensive to a person with an abnormally heightened sensitivity would qualify as battery.

• Nature of Act:

• Must be affirmative rather than an omissions (blocking door).

• May be indirect.

• Nature of the Contact:

• Criteria is that of an act that would be offensive to a reasonable sense of personal dignity.

• P need not be aware of contact (unlike assault!)

• Need not be with person of P but simply with something intimately, closely or customarily is associated w/ P’s person. (vague rule)

False Imprisonment:

• Definition:

• Intent:

• To directly or indirectly confine another

• Within boundaries defined by confiner

• Without privilege to do so.

• Special Rules:

• It is unclear if a reckless act would meet Restatement criteria.

• Motives are immaterial (desire or hostility not required)

• Doctrine of Transferred Intent: applies but is normally limited to transfer from person to person and only limited to intent to falsely imprison. (exceptions exist).

• With transferred intent, knowledge regarding risk to transferee is irrelevant.

• With foreseeability, such mens rea is required.

• P’s knowledge:

• In most jurisdictions and under the Restatements, the P must know of the confinement or be harmed by it. (Harm must be more than simply dignitary if no awareness.) However, Restatement does provide for post-confinement awareness recovery if P suffered great emotional distress, humiliation and “resulted in serious illness”.

• Nature of Confinement:

• Must reasonably appear to P to be complete.

• Need not be in a single location.

• If area of confinement is extremely large, may not be imprisonment but rather exclusion.

• Confinement may be caused by duress other than physical force or threat of such force towards P. May be targeted at others.

• Words may be sufficient.

• Threat should be immediate, but this is not a strict standard.

• Exceptions:

• Right of shopkeeper to detain: on reasonable suspicion of tortious theft, may use reasonable force to detain, for reasonable investigation.

• False arrest: (suspected criminal offenders)

• By police officer:

• Reasonable arrest under:

• Warrant

• Reasonable suspicion that a felony was committed.

• Offense occurred in front of officer, reasonably suspected actor, occurred immediately or in hot pursuit.

• Permitted to use deadly force to prevent escape if reasonably believes suspect poses threat of death or sig. injury to others or to officer.

• 3^rd person may assist officer.

• By Private Person or Police Officer:

• Arrest for criminal offense w/o warrant:

• Committed a felony

• Felony committed & arrestor reasonably believes she committed it.

• Arrestee committed felony in front of arrestor, and arrest is immediate or on hot pursuit.

• Committing a breach of peace

• Knowingly causes arrestor to believe she is privileged to arrest.

• Private party is privileged to assist arrest only if primary party is privileged.

Intentional Infliction of Emotional Distress:

• Definition:

• Intentionally or Recklessly

• Causes severe emotional distress to another

• By extreme and outrageous behavior.

• Special Rules:

• Physical injury is not required. (compare with negligent IED)

• Punitive damages may be recovered.

• Words alone are sufficient.

• Intent to cause harm not required. Recklessness sufficient.

• Fine line between mere insults and outrageous behavior. (Non-tort V. Tort). Depends on context.

• Racial slurs considered outrageous. Consider sensitivity of issue vs. Free Speech Violation.

• Insults by employees of utilities and common carriers are actionable.

• Negligent + standard for interference w/ disposal of human remains.

• Otherwise non-tortuous insults may be actionable when directed at especially susceptible groups such as children.

• Actual harm need not be intended.

• Doctrine of Transferred Intent: does not apply! 3^rd person must either have been intentionally targeted or distress was substantially likely to occur.

• Nature of Damage:

• Distress must be severe.

• Severe distress not necessary in cases against utility and common carrier employees.

• Presence at time of conduct may not be necessary if intent or knowledge, but a great time delay may be a block.

• Defenses:

• May be a freedom of speech defense

• May be a freedom of religion defense

Trespass to Land:

• Definition:

• Intentionally, voluntarily & w/o privilege

• Enters or remains on or causes another to do so

• On the land of a person entitled to actual or immediate possession.

• Intent:

• Intent need not be to hurt or offend.

• Good will is not a defense.

• Act of entry must be voluntary.

• Need not be direct: Cause another to do so.

• Can also be refusing to leave once permission is withdrawn.

• Damages:

• Nominal damages care be granted w/o harm (prevent prescriptive taking).

• Typically risk/ benefit analysis not considered when determining damages.

• Foreseeability: need not foresee damage caused, but risk of trespass must be!

Trespass to Chattel:

• Definition:

• Intentionally

• Dispossessing another of chattel, or

• Using or intermeddling w/ such chattel.

• Action on behalf of:

• Person in possession or one entitled to immediate or future possession,

• For harm caused by actions.

• Intent:

• Purpose or knowledge re. use or intermeddling

• Reasonable mistake not a defense (as to possession), unless induced by owner.

• Reasonable mistake is permissible defense if belief is that it is necessary for self-defense or public necessity.

• Damages:

• Must show actual damage. (harmless interference non-actionable)

• Depends on degree of interference.

Conversion:

• Definition:

• Intentional and unauthorized

• Dominion or control over the chattel of another

• That so seriously interferes w/ their use as to deserve payment of full value of chattel.

• Evaluating degree:

• Extent and duration of control

• Extent and duration of interference, incl. harm done, inconvenience and expense.

• Good faith.

• Intent:

• Intent to exercise control over chattel.

• Need not wish to interfere w/ other.

• May reasonably believe chattel is her own and still cause conversion.

• Negligence is insufficient.

• Stolen goods:

• Cannot take good title of stolen goods. Thus, taker commits conversion regardless of good faith.

• But if conveyor obtained goods by fraud or deceit, if purchased in good-faith then title is good.

• Conversion occurs when a negotiable instrument is paid on forged endorsement. (Receiver beware)

• Money or negotiable instrument paid to bearer is not subject to 3^rd party conversion.

• Bailment:

• The act of placing property in the custody and control of another, usually by agreement in which the holder (bailee) is responsible for the safekeeping and return of the property.

• Responsible for conversion only if refuses transfer when he knows or should know who possessor is.

• Damages:

• Typically is market value of goods at conversion plus interest.

• If converted good is returned and accepted, then damages are dec. by value of returned good.

• Prompt return after good faith conversion, court may reduce damages or force acceptance of return.

Insanity:

• Not a defense, but does affect proof of intent.

Consent:

• Definition:

• Willingness for conduct to occur

• Expressed by words, action or inaction.

• Can be implied by law or custom (touching arm to get attention, normal sport-related contact, emergencies)

• Legal Implication:

• Absolute bar to recovery.

• Relative fault is irrelevant.

• Scope:

• Requires capacity to consent

• Applies to particular conduct under specific conditions when given.

• Mistaken consent does not invalidate defense unless caused by fraud, duress or misrepresentation.

• If fraud not substantial, consent may still be valid. (counterfeit currency for sex)

• Consent to a crime is defense to tort claim, unless such consent was given by one w/o capacity.

• Informed Consent: party must know what they are consenting to and the attendant risks.

Self-Defense:

• Definition:

• Privilege to defend oneself against unprivileged harmful or offensive conduct

• Reasonably believes another is about to intentionally inflict.

• Use of force not threatening death or serious bodily injury:

• No duty to retreat or comply with unprivileged demand.

• Mistaken but reasonable belief is sufficient.

• “Serious bodily harm” involves mayhem or permanent or prolonged loss of a body part or organ.

• If threatened conduct is negligent, then must reasonably retreat.

• Use of deadly force: :

• Must reasonably believe threat to his life or serious injury.

• Most courts require reasonable retreat (safe), unless at home or making arrest.

• Force may not be excessive, or liable for harm

• No privilege to use force once threat terminated.

Defense of Others:

• Definition:

• Privilege to defend others against unprivileged harmful or offensive conduct

• Reasonably believes another is about to intentionally inflict.

• Regardless of relationship

• Same standard as self-defense.

• Usually a reasonable mistake is a defense.

Defense of Land and Chattel:

• Definition:

• Privilege to use reasonable force not intended to cause serious bodily harm.

• Prevent entry into one’s land a or taking of chattels, provided:

• Reasonably believes entry can be prevented

• Requests desist unless believes useless or substantial harm will be done.

• Entry unprivileged

• Special Issues:

• Despite intruders reasonable belief, defender has right to use force

• Can only use mechanical device if:

• Reasonably necessary

• Use is reasonable

• Customarily used for such purpose, or reasonable care is then to make such device known.

• If intruder has privilege to intrude, may not use force unless reasonably led to believe by intruder that he has no privilege.

• Necessity, civil rights, public need, private necessity (may need to pay damages for any harm to property)

Recapture of Land and Chattel:

• Definition:

• Privilege to immediately repossess land or chattel by use of reasonable force

• If dispossession occurred w/o claim of right or through fraud, duress or B & E.

• Must be made fairly soon after dispossession

• Must request other give up possession unless reasonably believes such request is futile, dangerous or substantial harm will occur.

• Force may not risk death or serious injury.

• Special Issues:

• 3^rd party privilege to assist:

• If primary person is privileged, and

• That person requests assistance or is immediate family or household member.

Discipline: Permitted to use reasonable force to maintain discipline if in position of authority.

Justification: Permitted to use reasonable force to maintain order, safety or the preservation of property.

Negligence:

• Three requirements for prima faciae case:

• Breach of duty (Is there a duty? and Was it breached?)

• Causation

• Damage to P

• Standard of Care:

• Objective standard based on the reasonable person in like circumstances model.

• Special standard for those w/ special skills.

• Some facts assumed known or “duty to find out.”

• Children usually held to standard of like age, intelligence or experience.

• Minors engaged in adult activities (driving) are treated under adult standard.

• Mentally deficient adult held to standard of an adult for negligence.

• Lower standard for emergency

• Lower standard for physically handicapped, but must be aware of own limitations when engaging in activity.

• “Calculus of Risk”: defendant’s burden to exercise care compared with loss incurred times probability of loss. (Learned Hand)

• Social utility of conduct

• Inconvenience to D

• Opportunity to avoid risk

• Decided usually by jury though occasionally overruled by judge. (mixed ? of law and fact)

• Statutory Violations:

• Standard of care set by legislature

• May have built in civil cause of action.

• State courts usually read-in civil cause. Federal courts do not.

• Violation of statute usually is considered per se negligence, but P must be: (1) in class protected by legislation and (2) must be relevant to injury.

• 3 standards:

• Per se negligence w/ excuse (ignorance of the facts, not of law) – decision of law

• Presumption of negligence (rebuttable) – decision of fact

• Evidence of negligence (can only serve as evidence to convince jury)

• Some absolute criminal liability violations have absolute civil liability as well. (Serving alcohol to minors)

• Role of custom:

• Ordinary person can usually only testify to things they saw (except: “drunk” or “speeding”)

• Experts can testify to custom/ standard practice.

• Evidence of custom may not be conclusive.

• Physicians: currently national or same–or-similar community standard.

• Informed Consent:

• Complete lack of consent is intentional battery.

• Inadequate consent now treated under negligence standard.

• Must show that a reasonable person in Ps position would have refused treatment.

• Must show that as a result was injured.

• Adequacy currently judged by reasonable person standard.

• Exception may exist for necessary procedures in pts. w/ high anxiety.

• Res Ipsa Loquitur:

• Instruction to jury that proof of a certain fact can be treated as proof of another fact. (Coca-Cola bottle exploding).

• Requirements:

• Action normally does not occur in the absence of someone’s negligence.

• D has sufficiently close connection to instrumentality that caused injury to make it more likely that D was negligent.

• Does not compel jury to decide in Ps favor, but specifically allows such conclusion.

• Policy purpose is to force D to show true cause of injury.

Special Situations:

• Negligent infliction of emotional distress:

• Recognized by most jurisdictions even in absence of physical injury to P.

• “Zone of Danger” test:

• P is in place where reasonable person would feel in danger of physical injury as a result of D’s negligence.

• P may recover for any injury or emotional distress despite lack of actual impact.

• “Beyond the Danger Zone” test:

• P located near scene of accident

• Injury resulted from emotional impact of observing accident

• P and victim closely related.

• Some states limit to:

• Close relatives

• Aware injury was occurring

• Suffer “severe emotional distress” +/- illness

• Actual injury occurred

• Some states allow recovery by P for emotional distress w/o any physical injury if conduct was directed at him.

• Liability of Possessors of Land:

• Common Law:

• Divides into categories of P‘s.

• Trespassers

• Licensees: permitted persons on land who are not invitees. Also those with privilege.

• Invitees: persons invited in land for purpose of conducting business with owner.

• Trespassers:

• Refrain from intentional or negligent injury due to activity occurring on lend

• Warn of highly dangerous artificial conditions

• No responsibility for natural conditions.

• Children: liable for harm to trespassing children from highly dangerous artificial conditions if possessor knows or reasonably should know children may trespass and reasonable care was not taken to prevent harm.

• Licensees:

• As for trespassers plus

• Warn of any highly dangerous artificial conditions, dangerous activities on land, and natural conditions that are dangerous aid licensees may not be aware of.

• No duty if owner not aware and not reasonably expected to be aware of.

• No duty to warn if danger is obvious.

• Invitees:

• All duties to licensees plus

• Use reasonable care to discover any dangerous conditions and protect invitees from them.

• Liability for acts of 3^rd parties

• Modern Law:

• One standard for all

• Reasonable person standard.

• Many states limit liability for all but malicious acts for owner’s of recreational property not charging entry fee.

• 3^rd party liability at reasonable person standard.

• Implied warranty of habitability for lessors.

• Failure to Aid – Affirmative duties

• At common law no duty except w/ special relationship

• Teachers and custodians of young children

• Employers on the job

• One who injures another

• Aid business invitees

• Not interfere w/ rescue efforts

• ? duty of psychiatrists to make potential victims of mental patients or inmates aware

• Once assisting, bound by reasonable care liability.

• Modern change:

• “good Samaritan laws” and no duty of continued are unless causes further harm.

• Common carriers have duty to passengers:

• To protect from unreasonable harm

• Provide first aid

• Innkeepers to guests like invitees

• People in one’s custody

• No duty to control actions of another, unless:

• Special relationship b/w actor and 3^rd party, or

• Special relationship b/w actor and person affected who has right of protection.

• 
  Contributory Negligence:

• Common law:

• Absolute bar to recovery

• Burden of Proof: currently on D

• Must be causally related to P’s injury.

• Exceptions to absolute bar:

• D’s Aggravated Fault:

• If Ds level of culpability is higher than P’s then recovery could occur. (eg. Reckless to negligent).

• Last Clear Chance:

• D had last clear chance to avoid accident

• If D knew, or should have known, of P’s condition and failed to use reasonable care to avoid the accident, recovery could still be had.

• If D could have disarmed P’s situation had he not been negligent, recovery also possible.

• Assumption of Risk:

• Common law:

• Complete defense

• Consciously subjected self to risk

• Express or Implied

• Express:

• P signs release of liability

• Sometimes struck down for public policy (D provides necessary public service & there is a disparity of bargaining power)

• Implied:

• P consciously accepted a risk and is barred from recovery.

• Option I: D had no duty to P and thus there can be no breach. (spectator at baseball game)

• Option II: D was dearly negligent, but P was aware of risk. (some states have merged this with comparative negligence).

• Comparative Fault:

• Three schemes:

• “pure” type: even 99% fault by P does not her recovery of 1% from D.

• “modified” scheme: if P‘s negligence was less than D’s, recovery possible.

• “modified “scheme #2: if Ps negligence is less than or equal to D’s, recovery is possible.

• In past judgments were set-off against each other. Now only w/ agreement of parties.

• So-Called Seatbelt Defense: some states decrease recovery if P was not wearing seatbelts.

• 
  Joint Liability:

• Can occur due to:

• Vicarious liability

• Concert of activity

• Concurrent activity

• Injury would not have occurred but for activity of each D, or

• Action of each D is a substantial contributing cause of injury, even though it may have occurred as result of act of any one of the D’s.

• Summary Rule: joint liability appropriate when damages are indivisible.

• Several liability:

• D’s liable only for damages caused by their fault.

• Contribution:

• Available only under joint liability.

• Occurs when one tortfeasor pays more then his fair share of the liability.

• May seek to recover from other tortfeasors. (Right of Contribution)

• Exceptions and special rules:

• Not available when person seeking contribution was guilty of intentional misconduct.

• Apportionment made based on relative degrees of fault or causation, or

• Liability apportioned equally.

• Many states do not allow contribution against tortfeasor who is immune to original claim.

• Settlements:

• Traditional: release of one tortfeasor releases others.

• Current: release of one does not release others from their share of liability.

• But if settlement equals full judgment, then further claim is barred except under contribution.

• Settlements under full value:

• Settler liable to co-tortfeasor for overpayment, or

• More recently, grant settler immunity, and grant co-tortfeasor credit for amount of settlement. (either for amount paid or amount of settlers liability).

• Indemnity:

• When one tortfeasor has vicarious liability for another, he may be liable for full damages.

• Buyer versus seller for product liability

• Some courts allow indemnity b/w two tortfeasors if one is passively responsible and the other actively. (Current trend to abolish this for consideration).

• Some courts allow immunity for indemnitee once indemnitor has settled.

Actual Cause:

1. Most of the time, if an act is the “but for” cause, then it is the actual cause. (The act is both necessary AND sufficient to result in the injury).

2. However, when there are two competing causes, either of which is sufficient to result in the injury but neither of which is necessary for it, the fact that the act was a “substantial” or “contributing” cause is enough to merit liability.

• See Kingston v. Chicago & Northwest Railway (one fire set by sparks from steam engine merges with another fire “of equal rank” that sprang from an unknown origin, and the combined conflagration destroys Π’s property. Δ is liable b/c the steam engine fire was a “substantial cause,” even if it was not necessary for the harm).

• Courts occasionally fall back on this “substantial cause” approach even apart from the necessary / sufficient problem above when the “but for” test would lead to unjust results

3. Series of Events & post hoc fallacy:

• Actual cause can be found when a series of events gives rise to the rational inference of causation.

• See Daly v. Bergstedt (jury permitted to find actual cause where woman slipped on floor of supermarket, was hit in breast with a can, developed a lingering bruise that never went away, and eventually died from breast cancer that formed in the very spot of the bruise.)

• But see, Kramer Service v. Wilkins (mere fact that development of cancer came after Π suffered a cut on his head negligently inflicted by Δ’s broken window does not mean that the cut was an actual cause of the cancer. Even the most favorable medical testimony suggested that the chances of causation were 1 in 100, and that’s insufficient.)

4. Shifting the burden on causation:

• Where two defendants are have both committed identical acts, either of which might constitute the negligence element but it’s impossible to determine who is responsible, the burden of proof on actual cause is shifted to the Δs, and each must attempt to exonerate himself.

• Ybarra v. Spanguard for causation.

• Summers v. Tice (two Δs shoot at bird at same time; birdshot hits Π in the eye. Impossible for Π to determine which was the cause but unfair to let both off, so burden shifted instead).

• This differs from the fire case above. There, either cause was sufficient but neither was necessary. Here, one act alone is necessary, but it’s impossible for Π to prove whose act it was.

• Problems with this idea quickly arise when the number of defendants increases. How low a probability are we willing to deal with?

• Compare Hall v. DuPont (shift allowed where Π can determine which of 6 blasting cap manufacturers made the cap that injured her)

• With Burton v. Waller (shift disallowed where Π sued 7 highway patrolmen for injuries resulting from shootout in which at least 31 policemen were firing weapons).

• Sometimes the burden of persuasion on causation is shifted to a single Δ due to violation of a safety statute. [Causation presumed and Δ must rebut!]

• Haft v. Lone Palm Hotel (where dad and son drowned in swimming pool that violated all sorts of CA law safety standards like having no lifeguard and not posting a sign about not having a lifeguard, burden of persuasion shifted to Δ to prove that the accident would have happened anyway).

1. Loss of chance as causation?

• Not clear whether a reduction in chance of health can be causation. A slight majority of American states allow recovery. Two approaches:

• Throw up your hands in desperation and fall back on “substantial cause.”

• See Herskovitis v. Group Health of Puget Sound (representatives of decedent Π said that his death was caused when Δ’s negligent acts reduced chances of survival from 39% to 25%. Court allowed issue of cause to go to the jury as a question of “substantial cause.”)

• Avoid the question by labeling it one of fact.

• See Hotson v. East Berkshire Health Authority (refusing to decide whether loss of chance can be a cause in case where boy’s broken leg was misdiagnosed and chance of leg healing properly when from 25% to 0%; court instead said that whether there was interest to be harmed was a question of fact that can only be resolved in “yes or no” fashion, and since healing was less than 50% likely before Δ’s negligent act, it must be answered “no.”)

• If loss of chance allowed and jury finds it to be the cause, what damages? Two approaches:

• Treat the injury as pled and allow full recovery. Christie says: Where the Π had chance of recovery above 50% and Δ reduced it to below 50%, it seems fair to call Δ’s acts a substantial cause of Π’s injury and allow full recovery.

• Treat the injury as a loss of chance and allow partial recovery. If Π had a 40% chance of survival and Δ reduced it to 20%, give Π 20% of what he would get normally.

Proximate Cause:

1. Early history “Foreseeable Plaintiff”

• The first rule was “direct cause,” and foreseeability was irrelevant.

• See In re Polemis Arbitration (wooden plank negligently knocked into ship’s cargo hold somehow caused spark that ignited lingering gasoline fumes and burned ship down. Liability attaches despite the fact that it was entirely unforeseeable b/c the negligent act was a “direct” cause of the fire.)

• This obviously made no sense, and courts were dying to find a way to get foreseeability into the analysis to prevent such injustice. Hence, they turned to the only place in the law you could find it then—the duty question!

• See Palsgraf v. Long Island Railroad (Δ railroad negligently pulled a passenger onto a moving train; he dropped a box carrying fireworks, which exploded and caused a shock wave that knocked luggage scales into Π. Δ not liable b/c Π was not a reasonably foreseeable victim within the “area of apparent hazard,” and Δ thus owed no duty to her.)

2. Foreseeability / “scope of the risk” rule

• Today, foreseeability is part of the causal analysis as well as the duty analysis. Now you are only liable for injuries that result from forces you improperly risked. However, once you take the improper risk, the fact that you didn’t foresee the extent of the damages is irrelevant [eggshell skull Π].

• Somewhere the causal link always gets too tenuous, and it’s no longer fair to hold Δ liable.

• Imagine that “the Reasonable Person” is standing next to Δ when Δ does the stupid act. Reasonable Person would say, “You better not do that; X might happen.” What could X be? If the Reasonable Person wouldn’t fear it, then no proximate cause. (E&E)

• Always ask: What did Δ improperly risk?

• The damages must be of the same kind that Δ improperly risked. [Remember, extent of damage is irrelevant. Eggshell skull]:

• Compare Wagon Mound I (although it was reasonably foreseeable that oil spill in Sydney harbor would foul slips on a dock, it was NOT reasonably foreseeable that the oil would somehow catch on fire and burn the dock down. Recovery for the burning dock therefore denied) with Wagon Mound II (facts of same accident, but this time suit was for nuisance and trial judge found that it Δs foresaw the risk of a fire burning up the ships in the harbor, but considered it such a low possibility that they could disregard it. But that means it was reasonably foreseeable, so liability should attach!)

• Compare Kinsman Transit I (Δ shipowner liable for flooding downtown Buffalo b/c he improperly risked the breaking loose of his ship. Ship was moored sideways during semi-flood with ice jams floating downriver; ice jams broke ship loose; ship ran into another ship and broke it loose; two ships combined ran into bridge and collapsed it; two ships combined with rubble of collapsed bridge to flood downtown Buffalo! Even given the strange facts, damming and flooding were still foreseeable b/c a 500 foot ship can easily dam a 200 foot wide river) with Kinsman Transit II (given same facts as above, Δ not liable for interference with contract after grain elevator could not operate until cleanup finished and river traffic resumed. Δ never risked interfering with contracts, and this reaches the point where the causal link is too tenuous to fairly impose liability.)

• The problem of “foreseeable injuries but unforeseeable manner.” [Key is defining “what did Δ improperly risk?”]

• Compare Hughes v. Lord Advocate (where Δs left a kerosene lantern outside to mark an open manhole, Δs liable when Π child gets burned in bizarre manner by dropping the lantern into the manhole and causing a freak explosion. The Δ risked a burn injury and is liable for it, even though precise manner of injury was bizarre).

• With Doughty v. Turner Manufacturing (Δs not liable for chemical burn after negligently knocking a ceramic lid into a vat of molten cyanide, which exploded five minutes later and burned Π. The Δs risked injury by splashing, NOT by explosion.)

• Christie says there are two ways of cutting off liability using proximate cause:

• Proximitiy in time and space (or lack thereof).

• Moral culpability (or lack thereof).

• Intervening Cause:

• Superseding intervening cause may rid D of liability.

• Acts of god, innocent or negligent 3^rd parties are considered foreseeable and thus are not a defense.

• Aggravation of injury by negligent treatment is foreseeable.

• Intentional or reckless act of 3^rd party:

• Used to be a defense

• Now, may still be liable if P would not have been injured but for the negligent act.

• Considerations include culpability of 3^rd party act and foreseeability of such act.

• Liability to Rescuers:

• Liable to reasonable rescuers for harm suffered 2ndary to rescue efforts

• Does not apply to professional rescuers.

Vicarious Liability:

• Definition:

• Imposes liability on one person for the tortious actions of another who is that person’s agent (respondeat superior)

• Can be used to impute tortious act on agent’s principal if such tort is intentional misconduct, negligence or strict liability.

• Despite agent’s immunity, principal may be liable.

• Agent must be guilty of tortuous activity. Vicarious liability of principal is strict. No fault on part of principal need be shown.

• Distinguished from primary liability of principal.

• Rationale:

• Agent acts on authority of principal

• Liability for acts related to principal’s business.

• Examples:

• Employment:

• Committed w/in scope of employment

• Exceptions include driving to & from work, willful or intentional misconduct

• Rules set down by employer do not prevent vicarious liability

• Partners/ Joint Ventures:

• Liable for partnership/ venture related torts

• Must be a business relationship.

• Independent Contractor:

• Usually no vicarious liability

• Except when duty is nondelegable, such as safety and abnormally dangerous conduct.

• Except when agent acts w/ apparent authority of principal (hospital ER MDs)

• Contractual labels irrelevant.

• May indemnify principal in contract, however.

• Bailors:

• Gratuitous bailer not liable for acts of bailee.

• Except if negligently trusting chattel to incompetent bailee.

• Automobiles:

• Except if person is immediate family and was granted permission (family-purpose doctrine)

• Some states provide vicarious liability for torts committed by anyone using car w/ bailor‘s permission. (presumption of consent by owner)

• Parents and children:

• Common law:

• no vicarious responsibility

• some states have created limited liability for intentional torts of children.

• May however still be liable for negligence in supervising children.

• Both-Ways Rule:

• Principal can impute agent’s negligence as D and as P. (in terms of contributory negligence)

• Courts impute negligence of person deceased on P in actions for wrongful death or survival claims. (also in loss of consortium)

• Principal can sue agent in indemnity for damages paid to 3^rd party under vicarious liability.

Strict liability:

• Animals:

• Trespassing livestock:

• Strict liability for foreseeable consequences of trespass, except:

• Harm done while straying on abutting land while driven down highway. (negligence standard on abutment & strict liability if stray farther)

• Harm done when statute requires P to have a fence to protect from entry. (still liable if livestock break through adequately maintained fence)

• Livestock denotes those domestic animals and fowl normally confineable by fence.

• Does not include dogs or cats.

• Restatement bars liability for damage if trespass caused by nature, action of another animal or intentional, reckless or negligent act of 3^rd party.

• Domestic animals:

• No strict liability, except:

• Knows or should know that animal is “abnormally dangerous” and harm results from this characteristic.

• Vicious or has tendency to attack humans or animals that is abnormal in its class.

• Animal by custom devoted to the service of mankind at time and in the place it is kept. (bees are not wild animals nor can they trespass)

• Wild animals:

• Strict liability of owner or harborer of such animal for damage related to its dangerous nature or to a characteristic owner knew or should have known about.

• Animal not customarily devoted to the service of mankind.

• Liability for harm continuous after animal escapes unless someone else this possession or it returns to its natural habitat.

• Strict liability even if liability caused by nature, action of another animal or intentional, reckless or negligent act of 3^rd party.

• Trespassers:

• Restatement: no strict liability for negligent or intentional trespassers. (negligence standard still as normal)

• Licensees and invitees: strict liability available.

• Defenses:

• Ordinary contributory negligence not defense.

• But, contributory negligence in “knowingly and unreasonably subjecting himself to risk” is a defense.

• Knowing and reasonable assumption of risk also a defense.

• True consent may be a complete bar to recovery.

• May not apply when possession is in course of official duty.

• Abnormally Dangerous Activity:

• Definition: (Restatement): “abnormal danger” as defined by:

• Degree and likelihood of risk

• Inability to eliminate risk

• Whether is common usage

• Inappropriateness to location

• Value to community

• Example: blasting & storage of explosives; but not manufacture/sale of handguns.

• Unclear if acts of 3^rd parties or nature affect liability; Restatement maintains strict liability.

• But Restatement w/draws strict liability if P is unnaturally sensitive.

• Also Restatement w/ draws strict liability for trespassers harmed. (i.e.; strict liability depends on egress of activity off owner’s property).

• Contributory negligence/assumption of risk same as with wild animals.

Product Liability:

• General:

• Applies to sale, lease or supply of defective products, or those that do not match Ds representation, and cause damage.

• If in business of providing the product can be sued under strict liability (tort or warranty) or for fault (negligent or intentional misconduct)

• If a casual seller, strict liability does not apply unless P suffers injury or damage as a result of breach of express or implied warranty of fitness.

• Theories of Recovery:

• Tort and Warranty:

• Suit can be both in negligence and strict liability.

• Strict liability claim can be made in tort or warranty (breech of contract)

• Punitive damages: Wanton, willful or reckless conduct

• Negligence: failed to use reasonable care.

• Breach of warranty:

• Requires privity of contract, notice of breach, warranty statute of limitations, and enforceability of disclaimers & limitations of remedy.

• Three types:

• Implied warranty of merchantability, fitness if ordinary purpose, made by seller.

• Implied warranty of fitness for particular purpose, where seller has reason to know that buyer is relying on his expertise.

• Express warranty, affirmative promise about goods.

• Strict Tort:

• Based on implied or express representation of safety.

• Implied: Restatement 402 A makes seller strictly liable for harm to person or property resulting from sale of a product that was unreasonably dangerous or defective.

• Express: Restatement 402 B makes seller strictly liable for personal harm resulting from justifiable reliance on a public misrepresentation made by seller concerning quality or character of product.

• Restatement (3^rd) 9: seller can be responsible for harm to person or property resulting from misrepresentation, regardless if it was public.

• Bases of Recovery:

• Types of Defect:

• Manufacturing defect where product randomly fails to meet standard

• Can be result of negligence (Coca-Cola bottling)

• Can be strict liability, in tort or warranty. (Chickens sold w/ scientifically undetectable avian leukosis)

• Defense for Strict liability: product manufactured to comply with state of art or unavoidably unsafe. (unavoidably unsafe: at present state of human knowledge, cannot be made safe, but is useful in its intended & ordinary use, and is properly made and accompanied by directions and warnings. (e.g.: drugs)

• Design defect

• Occurs when a whole line of product is unacceptably unsafe.

• Standard #1: can a safer product be made, so as to avoid accident, w/o excessive cost or sacrifice of utility.

• Standard #2: risk to utility ratio

• Most courts hold this to be a suit in negligence, not strict liability.

• Failure to warn or inadequate warning:

• Maybe safely designed and have no defect but far for lack of warning of dangers assoc. w/ product.

• Whole product line affected

• Usually treated as negligence claim

• Adequate warning does not block claim for faulty dengue.

• Post-sale duty to warn of dangers which it discovered of should have discovered, and/or recall or repair product. (negligence standard)

• Misrepresentation regarding character or quality of product.

• Can be based on deceit, negligence, express warranty or tort.

• D‘s knowledge or reason to know of danger is irrelevant.

• Strict liability w/o defense of due care or compliance w/ standard.

• No defect required.

• P’s reliance:

• Disagreement whether misrepresentation must cause to buy or cause to use item; Restatement further states that the injury need not be to the purchaser.

• Definitions of Defectiveness:

• Does not meet ordinary consumer expectations, or

• Ordinary seller standard

• Risk –Utility model

• Representation by manufacturer sets standard.

• The Parties:

• Except in cases involving pure economic loss (usually treated under Contract law), privity of contract is not required.

• Instead any reasonably foreseeable P can sue.

• Any supplier of a defective product or part thereof, whose product was defective when left suppliers’ hands and was not unforeseeably altered before injury can be the D.

• Retailers and distributors may not be subject to strict liability.

• Transactions Covered:

• Tangible personal property

• Sale of defective residential real estate

• Intangible property such as gas

• Pure Economic loss: usually covered under contract or warranty law.

• Successor Corporation Liability: more common now if same stockholders, officers, directors or key personnel.

• Defenses:

• General: statute of limitations, contributory negligence, assumption of risk, misuse, comparative fault, lack of foreseeability, lack of proximate cause or cause in fact, etc.

• Special:

• Government specifications for government contracts.

• Compliance with federal-safety regulations.

• No need to warn of obvious danger.

Misrepresentation & Pure Economic Loss:

• Nondisclosure:

• Traditional Rule: no duty to disclose unless in fiduciary or confidential relationship.

• Modern Rule:

• Duty to disclose known adverse matters.

• “business transactions”

• Disclose “facts basic to transaction” if

• Knows that other party will enter into transaction under mistake of such facts, and

• Other party would reasonably expect such disclosure based on relationship, custom or trade practice.

• Duty is limited to disclose facts which one knows (as opposed to should know).

• Deceit or Fraudulent Misrepresentation:

• Definition: false statement made recklessly, knowingly or w/o belief in the truth of the statement; also if a party represents a fact to be true of her personal knowledge, but has no such knowledge.

• Liable to foreseeable Ps for pecuniary loss

• Foreseeable P: persons whom maker of misstatement “intends or has reason to expect” will be influenced in the type of transaction.

• Typically can recover in product liability for pure economic loss.

• Negligent Misrepresentation:

• Traditionally no liability for pecuniary losses w/ only recourse being recission of K.

• Now widely accepted:

• Permissible P’s:

• Rule I: Privity or 3^rd party beneficiaries: must be aware of purpose for which statement will be used and of the party who will rely on it. Also, must be some conduct linking party making statement with relying party.

• Restatement Approach:

• Must intend or know the person for whose benefit statement is made

• Must intend or know type of transaction in which statement will be used.

• Need not know exact person, but must be a distinct subclass smaller than all those who may have access to the information.

• Applies only to one’s business, employment, profession or pecuniary transaction.

• Rule 3: liable for reasonably foreseeable consequences

• Generally courts deny recovery for pure economic loss in product liability.

• Innocent Misrepresentation:

• Liability only if one has “special knowledge” or reasonably appears to have such knowledge on the subject and P reasonably & justifiably relied on it

• Applies currently only to “sale, rental or exchange transactions with another” and only direct party has standing.

• Usually not available as product liability cause of action for economic damages only.

• Defenses:

• Reliance:

• Must have relied on misrepresentation

• Misrepresentation must be material

• Must not be known to be obviously false.

• Reliance need not be only factor in decision, but rather a substantial factor.

• Promises:

• No liability unless promise fraudulently or deceitfully made.

• May be liable under K law.

• However, misrepresentation of current fact or opinion is liable.

• Constitutional Free Speech:

• Malice required to recover by public figure for economic loss.

• May not apply to private.

• Damages:

• Fraud: difference b/w price paid and what was received plus consequential damages. Also, can recover for benefit of contract. (misrepresented value)

• Negligent and Innocent Misrepresentation: difference b/w price paid and what was received plus consequential damages. No benefit of contract.

Product Damages:

• Property Damage

• Deciding loss of value is difficult. Might not be a market value for your car anymore b/c it is damaged. Can't measure the loss this way

• Take into consideration repair costs to determine value

• Special Damages: out of pocket expenses which P receives for which have occurred since the accident (ex: medical expenses)

• Parking fees at hospitals; caretakers

• Tendency to draw analogy to treat other aspect of special damages: lost earning up until the time in question

• Collateral source rule: you can recover for your medical expenses even though they're being paid for by insurance or you can continue to get salary from employer and get damages for lost earnings from D

• Movements under no fault schemes (insurance) to deduct from recovery amount that you've gotten from insurance carriers

• General Damages

• Earning capacity: loss of expected future earnings; establishing this is difficult especially when person injured has been out of the work force for a while

• How long is person going to work for?

• What his earning would be over that period of time

• Once you've had the accident and have been injured, in deciding what your future earnings are going to be, take into account how long you are going to live (which is often affected by a serious accident)

• Tort recovery is NOT taxable; not included in your adjusted gross income b/c congress has provided as such

• Punitive Damages

• Your income would have been taxed so should this be taken into account in taxes?

• Almost never given in medical malpractice

• Enormous punitive damages are knocked down by state court of appeals before they even get to the supreme court

• Pain and Suffering

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