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Bases of Liability (INTENT (BATTERY (DEFENSES (consent O'Brien v.…

- - - - a) purpose Vosberg v. Potney (INTENT to kick, though no intent to cause the ensuing fatal injury), or
      - b) KNOWLEDGE, or "substantial certainty" that the offensive/harmful contact will be a consequence of the action Garratt v. Dailey (intent of injury was not required, just SUBSTANTIAL CERTAINTY of offensive contact)
      - products liability exception -- we don't hold corporations accountable for long-term consequences that they're "substantially certain" will occur under the tort of intentional battery see Grimshaw v. Ford (pinto case)
    - - a) directly touching the body of the plaintiff, or
      - b) directly touching something closely connected to plaintiff's body (indirect touching) Picard v. Barry Pontiac-Buick (camera)
    - - a) offensive to a reasonable sense of personal dignity Wishnatsky v. Huey, or
      - b) offensive to a sensitive sense of personal dignity of which the actor is aware
    - - consent O'Brien v. Cunard (vaccination)
        
        Hackbart v. Bengals (consent to some contact doesn't mean consent to ANY contact)
        
        Mohr v. Williams (ear operation / switching ears)
        
        BATTERY (rather than medical malpractice negligence case) because there was a TOTAL lack of consent for the surgery that took place (compare to Matthies v. Mastromonaco)
        
        EXCEPTIONS:
        
        Hart v. Geysel consenting participation in illegal conduct bars recovery (illegal fighting)
      - self-defense
      - defense of others
      - defense of property
  - - - "anticipation of," more so than fear
    - - conditional threats are generally not considered "imminent"
- - - - Cost-Benefit Analysis: B < PL (burden of care ought to be less than the product of possibility of injury and cost of injury) U.S. v. Carroll Towing
      - "Reasonable Person"
        
        physical disability Roberts v. Louisiana
        
        but not mental disability, unless an automaton Vaughan v. Menlove & Bashi v. Wodarz
        
        distinction exists b/c: (1) line-drawing problem, (2)fake-ability, (3) pay as you go, (4) encourage caretakers to ensure the mentally ill do no harm
        
        children
        
        must exercise care that a reasonable child of their same age, intelligence, and experience would exercise
        
        does not apply unless engaging in an adult activity Dellwo v. Pearson
        
        mostly in the context of children as plaintiffs
        
        degree of experience is irrelevant
        
        emergency doctrine (see Cordas v. Peerless Transportation)
        
        superior attributes?
        
        not really, except in cases of SUPERIOR TRAINING
        
        common carriers
        
        generally held to the "reasonable person" standard after Bethel as opposed to "extraordinary care"
        
        what may be "reasonable" in some cases IS extraordinary
        
        gender?
        
        plaintiff vs. defendant?
        
        professional malpractice (legal & medical standards for reasonableness)
      - FORSEEABILITY see Adams v. Bullock & Lubitz v. Wells (trolley wire / golf club, respectively)
        
        Actual Notice
        
        Constructive Notice (Cf. Negri v. Stop-and-Shop & Gordon v. Am. Museum of Nat. Hist.) must be visual, apparent, and present for a sufficient length of time
        
        Business-practice or mode-of-operation rule Kelly v. Stop & Shop from note 5, p. 90
      - Judge-made law (see Goodman v. B&O Railroad and compare to Pokora v. Wabash Railway)
      - Custom Trimarco v. Klein (glass shower door)
        
        reflects judgment & experience of many
        
        has bearing on feasibility
        
        may provide an example of the "safe way"
        
        medical malpractice: custom is controlling
        [THE PROFESSION ITSELF SETS THE STANDARD OF CARE]
        
        understood by?
        
        lack of, incomplete, or improper INFORMED CONSENT = NEGLIGENCE (not usually a case for battery -- compare to Mohr v. Williams)
        
        Matthies v. Mastromonaco physician should explain medically reasonable invasive & noninvasive alternatives, including the material risks and likely outcomes of those alternatives, even when the chosen course is noninvasive
        
        used to be judged against what a REASONABLE DOCTOR would do (profession itself set the standard of care), but changed to a patient-centered standard (what would a REASONABLE PATIENT want to know)
        
        statutes can provide exceptions for emergencies, incapacitation, etc.
        
        CAUSATION issue may remain -- Would proper informed consent have changed the outcome / patient's decision?
        
        MINORITY VIEW: there can be breach of duty (by failure to get full & proper informed consent) without negligence IF the causation element can't be satisfied, but this brings up a second issue (accounting for the benefit of hindsight)
        
        MAJORITY VIEW: don't ask about what that INDIVIDUAL patient would have done, but what the REASONABLE patient would have done to satisfy the causation issue
      - Statute Violations
        
        APPLICABILITY ?
        
        statuary purpose
        
        CLASS OF PERSONS meant to be protected
        
        TYPE OF RISK Gorris v. Scott (sheep overboard -- fence)
        
        Cardozo asserts that you should ask the same questions you would in establishing PROXIMATE CAUSE -- what type of harm are we trying to prevent? and what class of persons / plaintiffs are we trying to protect?
        
        EFFECT (dependent on jurisdiction)
        
        PRIMA FACIE (rebuttable presumption) Tedla v. Ellman (reasonable to violate statute)
        
        you can discuss how you were reasonable, but the burden of persuasion on this SUB-ISSUE is on the defendant
        
        NEGLIGENCE PER SE (irrebbuttable presumption) Martin v. Herzog
        
        the only acceptable excuses -- to say D did not breach a duty -- would be the five considerations in Section 15 of the Restatement Third (p. 82)
        
        (d) violation is due to the confusing way in which the requirements of the statute are presented to the public
        
        (e) compliance would involve a greater risk of physical harm to the actor or to others than noncompliance
        
        (c) actor neither knows nor should know of the factual circumstances that make the statute apply
        
        (a) violation is reasonable in light of actor's childhood, disability, or physical incapacitation
        
        (b) exercises reasonable care in attempting to comply w/the statute / UNABLE TO COMPLY
        
        satisfies BoP just by showing the statutory violation
        
        SOME EVIDENCE (reasonable inference -- compliance is an indicator of non-negligence but not an insulator)
        
        generally used in terms of custom or local / municipal laws
        
        CF. COMPLIANCE (some evidence standard)
        
        federal law "preemption" as constitutional defense compliance w/a federal law at times preempts compliance w/state law
    - - RES IPSA LOQUITUR
        
        "the thing speaks for itself" in Byrne v. Boadle the accident itself creates a presumption of negligence (= prima facie)
        
        BUT many states say it only allows plaintiff to raise an INFERENCE of negligence (not a PRESUMPTION of negligence)
        
        could be considered a branch of circumstantial evidence
        
        ELEMENTS of RIL
        
        (2) defendant's exclusive control (probability of such) Ybarra v. Spanguard
        
        (3) no contribution by plaintiff (though P may still be a causal part of the chain of events)
        
        (1) ordinarily must have negligence for accidents of this sort McDougald v. Perry
      - CIRCUMSTANTIAL EVIDENCE
        
        based on reasonable inference and not on direct knowledge / observation (but "mere speculation" is insufficient)
      - DIRECT / REAL EVIDENCE
        
        proves a fact w/o inference or presumption
      - NOTE: direct evidence isn't necessarily stronger than circumstantial
      - medical malpractice: expert witness usually required to testify as to custom / standard of care (unless issue is accessible to jurors)
        
        "same or similar locality" requirement still applies in some jurisdictions
        
        ntn'l board certification generally sufficient today (see Sheeley v. Memorial or Robbins v. Footer)
  - - - special relationships (Farwell v. Keaton) duty may only apply in one direction
        
        considerations in determining existence of special relationships include degree of:
        
        isolation,
        
        vulnerability,
        
        and control.
      - contractual relationships
      - starting & stopping -- voluntary assumption of duty of care cannot then be shrugged off Farwell v. Keaton
      - creating the risk / hurting the plaintiff in the first place
      - preventing others' help by secluding the victim
      - statutorily imposed duties
      - EXCEPTIONS:
    - - therapists & doctors Tarasoff v. UC Regents: "protective privilege ends where peril begins" in situations of PARTICULARIZED threats
      - providing alcohol / drunk driving (treated differently than negligent entrustment)
        
        there is a protection of social hosts providing alcohol to ADULTS Reynolds v. Hicks
        
        generally, a statutory duty exists for commercial hosts (see dram shop acts)
      - enabling crime
      - negligent entrustment Vince v. Wilson
      - crime on the premises by third parties
    - - COMMON LAW APPROACH [R2d] -- NOT a reasonableness approach
        
        licensee
        
        duty to repair (or warn of) known dangers
        
        no affirmative negligence
        
        [public or business] invitee
        
        REASONABLE CARE: duty to repair (or warn of) even unknown dangers if a reasonable person would have known -- can be considered a duty to "inspect" / reasonable care
        
        trespasser
        
        landowner has a duty not to engage in willful or wanton misconduct; no "traps"
        
        liability exists for child trespassers if:
        
        (b) possessor knows or should know that there is a condition that will involve a reasonable risk of death or serious bodily harm to such children, AND
        
        (c) b/c of their youth, the kids do not realize the risk involved in trespassing, AND
        
        (a) possessor knows or should know kids are likely to trespass, AND
        
        (d) B < PL, AND
        
        (e) possessor fails to exercise reasonable care to eliminate the danger / protect the children
      - Rowland v. Christian [R3d] duty of care to ANYONE on the land -- [CA courts emphasize foreseeability]
        
        determine the foreseeability of the plaintiff's presence and then determine breach of duty / reasonable care
        
        Heins v. Webster County (and some other states) still limit duties to unlawful trespassers
        
        B > PL approach = "balancing approach" to determine what's reasonable Posecai v. Wal-Mart Stores, Inc. LANDOWNERS & THIRD-PARTIES
        
        R3d: duty of reasonable care to all but FLAGRANT trespasser (only owe them a duty of no wanton or willful misconduct)
        
        possible DEFENSES include comparative fault, or violation of a statute that limits liability for injuries to trespassers who are committing a certain felony
  - - - TEST
        
        substantial factor (when there are two or more but-for causes)
        
        but-for test
        
        loss of chance
      - PROOF
        
        sufficient direct or circumstantial evidence?
        
        Summers v. Tice alternative liability = imposes joint & several liability
        
        Haft v. Lone Palm shifts burden of proving cause to the defendant (b/c difficulties in proving cause are D's fault)
        
        Sindell liability = MARKET SHARE / ENTERPRISE LIABILITY; BoP is still on P, but P satisfies BoP by showing industry-wide liability
        
        Stubbs reasonable certainty that the D was the direct cause of injury means that this can be a question for the jury
    - - UNFORESEEABLE RESULTS
        
        EXTENT or AMOUNT of damage -- doesn't absolve liability
        
        D is responsible for the full EXTENT of the injuries, even they are not totally foreseeable (eggshell plaintiff/skull rule)
        
        unforeseeable PLAINTIFF or class of persons -- Polemis & Overseas Tankship & Palsgraf -- may absolve liability [STRONGEST ARGUMENT FOR UNFORESEEABLE RESULTS]
        
        TYPE of harm or damage (the legal interest that is invaded) -- not HOW it happened, but WHAT was injured (emotional v. physical harm)
        
        MANNER of harm
        
        similar to the statutory purpose test -- why is the conduct considered negligent or tortious? what type of risk makes it negligent?
      - INTERVENING CAUSE any event that breaks the causal change
        
        sets up the question of a SUPERSEDING cause that absorbs liability -- does the action supersede, or was it is a HARM WITHIN THE RISK?
        
        generally NOT superseding
        
        (1) medical aggravation
        
        (3) negligent rescuers -- "danger invites rescue"
        
        (2) incapacitation leading to further injury
        
        (7) acts of God unless extraordinarily unforeseeable
        
        (8) war?
        
        generally superseding
        
        (4) deliberate, intentional, criminal acts, inc. terrorism? (unless foreseeable) see Doe v. Manheimer
        
        (5) reckless acts by a 3rd party see McLaughlin v. Mine Safety Appliances Co.
        
        (6) plaintiff's suicide (again, unless not UNforeseeable, esp. in cases of intentional torts)
  - - - maybe inc. loss of chance?
    - - Is there an INJURY in addition to the emotional harm? Metro-North v. Buckley If not, use one of these three (two?) approaches:
        
        "Zone of Danger" test Portee v. Jaffee proximate cause question? -- deals w/foreseeability
        
        FORESEEABILITY w/a four-part test Dillon v. Legg factors / guidelines in determining foreseeability
        
        (4) resulting severe emotional distress
        
        (2) sensory & contemporaneous observation of the accident
        
        (3) close relationship
        
        (1) nearness to the scene
        
        THING modifications to the Dillon test turned factors into rules (elements?)
        
        (2) viewing immediate consequences = insufficient
        
        (4) reaction must beyond that of a disinterested witness
        
        (3) relative needs to reside in the same household as the victim
    - - Survival Action = survivors can bring a lawsuit on behalf of the decedent's estate for injuries / damages incurred by the decedent immediately before dying (the claim that the decedent would have if he had survived)
      - Wrongful Death Action = survivors bring a lawsuit on their OWN behalf for damages resulting from a tortious injury that caused the decedent's death
        
        loss of wages
        
        loss of consortium
  - - - EXPRESS
        
        near-contractual agreement to assign risk to oneself (like signing a form at the gym) -- aren't always enforced in contracts of adhesion, contracts re: illegal behavior, or contracts of necessity; generally enforced in case of recreational activities Hanks v. Powder Ridge
        
        Tunkl factors
        
        ratio of bargaining strength?
        
        the PUBLIC public?
        
        important or necessary service?
        
        contract of adhesion?
        
        type of business & suitability for public reg.?
        
        did P place their person or property under D's control?
      - IMPLIED [?] not enforced in most jurisdictions
        
        knowing of the risk and agreeing to it by explicit BEHAVIOR that evidences consent Murphy v. Steeplechase Amusement or Davenport v. Cotton Hope
        
        PRIMARY -- not a true defense but part of the duty analysis; implied acceptance of risks inherent in the activity -- not relevant for exam; it's instead a duty or breach of duty issue
        
        SECONDARY -- true defense when P knowingly encounters a risk created by D's negligence
    - - MODIFIED
        
        if P is more at fault than D, then P cannot recover
        
        if P is less at fault than D, then P can recover, less the % they are at fault
      - PURE
        
        P has a reduction of damages but is still able to recover, less the % they are at fault
    - - knowing and unreasonable assumption of the risk by P is a defense (Loop v. Litchfield manufacturer pointed out defect in the saw to buyer / lessee)
      - comparative negligence is a partial defense in some jurisdictions
      - contributory negligence generally not a defense
      - state-of-the-art is sometimes a defense if a product used the best tech. reasonably available at the time the product was sold
- - - - potentially subject to all the defenses we've learned, though some jurisdictions don't accept all of them (i.e. assumption of the risk); misuse = comparative fault
      - Application
        
        retailers and distributors
        
        bystanders, when injury to bystander from defect is reasonably foreseeable
        
        implied warranty of merchantability to ultimate customer
        
        NOT used-good sellers but they are still subject to negligence liability
        
        successors? recently, not as much
        
        commercial lessors
        
        franchisors who impose quality control on franchisees? some courts
        
        product give-aways
        
        NOT irregular sellers but the product can be broadly defined
        
        NOT companies who finance purchases by others
        
        emotional distress for bystanders by Dillon test most courts
      - R2d: Strict products liability to ultimate consumer if:
        
        the seller is engaged in selling the product, and
        
        the product is expected to reach the user or consumer w/o substantial change in condition
      - R3d: Strict Products Liability
        
        Defective in one of 3 [4] ways:
        
        mfg. defect (a limited # of the product are defective)
        
        design defect (all products w/this design are defective; EX: old VWs; Ford Pinto case); according to R2d: use a B < PL reasonableness analysis to evaluate defectiveness
        
        D has the burden of proving the design defect =/= excessive preventable danger (B > PL)
        
        mechanical feasibility of safer alternative design
        
        financial cost of improved design
        
        likelihood that danger would occur
        
        adverse consequences of an alternative design
        
        gravity of danger posed
        
        P demonstrates that product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner, OR
        
        lack of adequate warning / instructions (products that are only safe w/adequate warning or directions; EXAMPLE: McD's coffee)
        
        failure [breach?] of warranty
        
        MALFUNCTION THEORY OF DEFECT = Inference w/o direct evidence that harm resulted from a product defect when the injuring-producing incident:
        
        was of a kind that ordinarily occurs as a result of a product defect, AND
        
        was NOT, in the particular case, solely the result of causes other than product defect existing at the time of sale or distribution
        
        does NOT reduce P's evidentiary burden to prove that product was NOT MISUSED and to DISPROVE all reasonable OTHER EXPLANATIONS for the occurrence
    - - rule of proximate cause may have limited liability in the past
    - - [R2d 520] engaging in an abnormally dangerous activity = LIABILITY even if you exercise the utmost care
        
        HIGH DEGREE OF RISK of some harm
        
        likelihood of GREAT harm
        
        inability to eliminate risk w/reasonable care (non-negligence)
        
        extent to which activity is not a matter of common usage
        
        inappropriateness of location
        
        extent to which activity's value to community outweighs its dangerous attributes
      - [R1d 520] engaging in an abnormally dangerous activity = LIABILITY even if you exercise the utmost care
        
        activity necessarily involves risk of serious harm that cannot be eliminated by reasonable care (non-negligence), AND
        
        is not a matter of common usage
      - [R3d 20] engaging in an abnormally dangerous activity = LIABILITY for resulting physical harm
        
        R3d generally says that AVIATION does not fit the criteria for an abnormally dangerous activity
        
        activity creates a foreseeable & highly significant risk of physical harm even if all actors exercise reasonable care, AND
        
        the activity is not one of common usage