ÿWPC‹ ûÿ22ÿÿBQÿÿZ§ÿÿ1Prestige 12cpi#|i¨Âdpðø@JhåX@þþþþþþþÿþÿÿÿÿÿÿþÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿPanasonic KX-P1123PAKXP112.PRSÂdpðø@JhåÓ¢VX@Ñ#Âdpðø@Jhå¨X@#ÑÐÐûÿ2Wÿÿd1t Z¥Xÿ#|iCourier 10cpiCourier 12cpi ItalicCourier 12cpiPanasonic KX-P1123PAKXP112.PRSÛx Œ @ɇÏÓ¢VX@Î ÿÿ‰?xxxh7Âxþ6X@É“8åX@þþþþþþþÿþÿÿÿÿÿÿþÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿ€ÿÿ‰?dddhe‡Âdô6NßhÉõEåXHþþþþþþþÿÿÿÿÿÿÿÿþÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿ‰?dddh#ÀÂdþ6X@Ƀ8åX@þþþþþþþÿþÿÿÿÿÿÿþÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿûÿ2‰Ô ‰? ÔÕ@È=¡Outline prepared by J. William Snyder, Jr.@ÕOUTLINE FOR TORTS I/ PREPARED BY: J. William Snyder, Jr.ÕŠÈ9ƒn This page was printed: ØD3 1, 4DØŠÕÑ#Âdþ6X@Ƀ8åÀX@#Ñ Term: Fall 1992 Text: Dobbs, ÃÃTorts and Compensation: Personal Accountability and Social ResponsibilityÄÄ (1985 & Supp. 1990). Instructor: Professor Zelenak NOTE: This outline was originally prepared for my own private study, and it is based primarily on my own class notes, handouts, and excerpts from the textbook, either in paraphrase or direct quote. When possible, I tried to indicate material that has been directly quoted, but it is possible that some material from the textbook has been directly quoted without indication. 3 areas of torts 1. intentional torts ©ÂXÂintentional tortfeasor is liable for all harm proximately caused by his tort, even if the harm is not foreseen or intended.Æ(#Æ 2. negligent torts 3. strict liability Damages 1. lost wages 2. medical expenses 3. pain and suffering (P&S) 4. punitive damages in extraordinary cases 3 classic torts to the person I. Battery A.ÂXÂDefinition: an intentional infliction of an offensive body contact causing harmÆ(#Æ B. Elements 1. Intent© battery is an intentional tort© it requires fault ÃÃVan Camp v. McAfoosÄÄ a. ¸ ¸ Âactual intent© "purpose, intent or design"Æ(#¸ Æ Â¸ ¸ ÂÂX"Â(1) intent to harmÆ(#Æ Â¸ ¸ ÂÂX"Â(2) intent to offendÆ(#Æ b. ¸ ¸ ÂSubstantial certainty (SC) [constructive intent] may serve as intent when a reasonable person in the same circumstances would know with SC that a harm could occur if the contact is made (ÃÃGarratt v. DaileyÄÄ).Æ(#¸ Æ c. ¸ ¸ ÂCrazy people: if a crazy person manifests the same intent that a sane person could manifest, then a crazy person may be held liable for his intentional torts (ÃÃMcGuire v. AlmyÄÄ).Æ(#¸ Æ d.°` ` ÂChildren may be held liable for their intentional torts (ÃÃWalker v. KellyÄÄ).Æ(#` Æ ÂXÂ2.ÂX` ` ÂContact: there must be some sort of physical contact (or something sufficiently analogous to physical contact) for a battery to take place.Æ(#` Æ ÂXÂ3. HarmÆ(#Æ a. Physical Harm b. Emotional/mental harm (ÃÃWhitley v. AndersonÄÄ) C. Doctrine of transferred intent © °` ` Âif you intend a battery to A but "screw up" and commit a batteryÔØ'0* ( (°°Ô upon B, you are liable to B for the battery and any harm suffered by B proximate to the battery (ÃÃWhite v. DavisÄÄ). Intent also transfers when you intend an assault on A but batter B instead (ÃÃAlteri v. ColossoÄÄ). Æ(#` Æ D. Strict liability for battery 1.°` ` Âstatutory, like CT statute making parents liable for their childrens' non©SC intentional torts (ÃÃWalker v. KellyÄÄ).Æ(#` Æ 2. Workers' Compensation a. ¸ ¸ ÂEmployers are strictly liable for injuries on the jobÆ(#¸ Æ b.¸ ¸ ÂInjured employees get lost wages and medical expenses, but they cannot get P&S nor can they sue in tort.Æ(#¸ Æ c.¸ ¸ ÂEXCEPTION: Employer still liable in tort for intentional injuries inflicted upon an employee.Æ(#¸ Æ II. Assault A.°` ` ÂDefinition© an offer to inflict imminent/immediate offensive body contact intended to cause apprehension and that results in apprehension. ("Uh oh, here comes a battery!)Æ(#` Æ B. Elements 1.°` ` ÂÂX¸ ¸ ÂDefendant must have à ÃintendedÄ Ä to create an apprehension of imminent bodily harm (ÃÃDickens v. PuryearÄÄ).Æ(#¸ Æ 2.°` ` ÂÂX¸ ¸ ÂPlaintiff was fearful of the impending/promised offensive bodily contact (ÃÃMcCraney v. FlanaganÄÄ, ÃÃHolcombe v. WhitakerÄÄ).Æ(#¸ Æ ÂXÂC.ÂX` ` ÂTransferred intent and SC may also be invoked in cases of assault.Æ(#` Æ III. False imprisonment A.°` ` ÂDefinition© imprisonment or detainment not authorized by law/ a trespassory tort: liability is imposed even if no harm is caused.Æ(#` Æ B. °` ` ÂElementsÆ(#` Æ Â°` ` ÂÂX¸ ¸ Â1. Intent to confineÆ(#¸ Æ Â°` ` ÂÂX¸ ¸ Â2. Actual confinement (Restatement (Second) of tortsÆ(#¸ Æ Â°` ` ÂÂX¸ ¸ Â3. Plaintiff aware of confinementÆ(#¸ Æ C. °` ` ÂTransferred intent analysis permissible.Æ(#` Æ D. °` ` ÂCasesÆ(#` Æ Â°` ` Âa. ÃÃHardy v. Labelle's Distributing Co.ÄÄ (elements not satisfied [especially the last two])Æ(#` Æ Â°` ` Âb. ÃÃGreat Atlantic & Pacific Tea Co. v. PaulÄÄ) (shopkeeper's privilege affirmative defense fails in this case).Æ(#` Æ IV.ÂXÂIntentional infliction of emotional distress© a new tort/ only about 40©50 years old. (aka. the tort of outrage)Æ(#Æ ÂXÂA. Definition: Acting in such an outrageous an extreme manner as to intentionally cause a person emotional distress.Æ(#Æ ÂXÂB. ElementsÆ(#Æ Â°` ` Â1. Outrageous conduct (where the average person would look at the conduct and exclaim "Outrageous!" ÃÃLabrier v. Anheuser FordÄÄ).Æ(#` Æ Â°` ` Â2. Tortfeasor intentionally or recklessly acts to cause emotional distress.Æ(#` Æ Â°` ` Â3. Emotional distress, and perhaps bodily harm, actually resultsÆ(#` Æ C. LiabilityÔH&0*''@@ÔŒ 1. to target of conduct °` ` ÂÂX¸ ¸ Âa. for resulting emotional distressÆ(#¸ Æ Â°` ` ÂÂX¸ ¸ Âb. for any resulting physical harmÆ(#¸ Æ 2. to third persons °` ` ÂÂX¸ ¸ Âa. to member of immediate family who is present for any ED or physical harmÆ(#¸ Æ Â°` ` ÂÂX¸ ¸ Âb. to any other person present where bodily harm results.Æ(#¸ Æ D. Cases 1. ÃÃLabrier v. Anheuser FordÄÄ V. ÂXÂTorts to property: the last 2 of the 5 classic torts (battery, assault, false imprisonment, trespass to property, trespass to chattels)Æ(#Æ ÂXÂA. Trespass to propertyÆ(#Æ ÂXÂÂX` ` Â1.ÂX¸ ¸ ÂDefinition: Unauthorized entry into the land of another. Trespass interferes with one's property rights, and not to ownership per se.Æ(#¸ Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âa.ÂX"ÂPhysical entry with your personÆ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âb.ÂX"ÂEntry with a projectile, object, etc.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âc.ÂX"ÂFlying too close, subject to the Federal power to regulate the airspace (Congress may set a air space floor, flying below which makes aircraft operators liable for trespass, but above which trespass claims are à ÃpreemptedÄ Ä by the Federal government.) [à ÃDoctrine of preemptionÄ Ä]Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âd.ÂX"ÂDigging too far up under property.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âe.ÂX"ÂRefusal to leave when one unintentionally enters property.Æ(#Æ ÂXÂÂX` ` Â2.ÂX¸ ¸ ÂIntentÆ(#¸ Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âa.ÂX"ÂPurpose, intent, or design.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âb.ÂX"ÂSubstantial certainty that entry will take place, even if the intent is not to trespass.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âc.ÂX"ÂMistake as to whether or not you own the land or have a right to be there is no defense. Intent à Ãto be on the landÄ Ä is enough.Æ(#Æ ÂXÂÂX` ` Â3.ÂX¸ ¸ ÂDamagesÆ(#¸ Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âa.ÂX"ÂTrespass to land is a trespassory/dignitary tort, which means tortfeasors are liable for even nominal damages even if they cause no harm.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âb.ÂX"ÂTrespassers are liable for any damage they cause.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â(1) cost of repairÆ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â(2) amount of diminished valueÆ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âc.ÂX"ÂParasitic damages are also recoverableÆ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âd.ÂX"ÂPunitive damages may be recovered if the trespass is malicious or deliberate.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âe.ÂX"ÂIf owner is not the possessor, but the trespasser inflicts permanent damage, the owner may have a cause of action against the trespasser.Æ(#Æ ÂXÂB.ÂX` ` ÂTrover: Conversion of chattelsÆ(#` Æ ÂXÂÂX` ` Â1.ÂX¸ ¸ ÂDefinition: The exercise of substantial dominion over anÔH&0*''@@Ô article of personal property that it is effectively converted to the tortfeaser's sole use. Trover is essentially a forced sale to the converter.Æ(#¸ Æ ÂXÂÂX` ` Â2.ÂX¸ ¸ ÂIntentÆ(#¸ Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âa.ÂX"ÂAs an intentional tort, intent to exercise substantial dominion over the article is required.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â(1)ÂXhh(Âpurpose, intent, or designÆ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â(2) ÂXhh(ÂSubstantial certainty that conversion will take placeÆ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ Âb.ÂX"ÂLarcenous intent is not required: Intent to convert the article is sufficient, and it is no defense that one was mistaken as to the ownership of the article.Æ(#Æ ÂXÂÂX` ` Â3.ÂX¸ ¸ ÂThe nature of the conversionÆ(#¸ Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âa. ÂX"ÂDestructionÆ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âb. ÂX"ÂMisdelivery in cases of bailmentÆ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âc. ÂX"ÂPurchasing stolen propertyÆ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âd. ÂX"ÂModification or alteration of the property to the degree that replevin is not feasibleÆ(#Æ ÂXÂÂX` ` Â4.ÂX¸ ¸ ÂDominion over the property: Factors to consider (according to the ALI)Æ(#¸ Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âa.ÂX"ÂExtent and duration of the controlÆ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âb.ÂX"ÂThe tortfeasor's intent to assert a right to the propertyÆ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âc.ÂX"ÂThe tortfeasor's good faith (or lack thereof)Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âd.ÂX"ÂAny harm doneÆ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âe.ÂX"ÂExpense or incurred inconvenienceÆ(#Æ ÂXÂÂX` ` Â5.ÂX¸ ¸ ÂType of property that may be convertedÆ(#¸ Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âa.ÂX"ÂOld common law rule: à Ãtangible personal propertyÄ Ä ÃÃonlyÄÄÆ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âb.ÂX"ÂModern rule: intangible personal property (stocks, bonds, money, etc) may be converted.Æ(#Æ ÂXÂÂX` ` Â6.ÂX¸ ¸ ÂSerial conversionsÆ(#¸ Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂOwner ©> Thief ©> BuyerÆ(#¸ Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂOwner may sue either or both, since both have intended to exercise substantial dominion over the item, even if the Buyer/Thief transaction is in good faith.Æ(#¸ Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂEXCEPTION: If Thief tricks Owner into selling her the item, then Thief gets à ÃtitleÄ Ä to the property, and thus is not a converter, though Owner may go to court and get the sale annulled on the grounds of fraud. Buyer would not then be a converter, unless he knew of the fraud perpetrated by Thief.Æ(#¸ Æ ÂXÂÂX` ` Â7.ÂX¸ ¸ ÂRemediesÆ(#¸ Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âa.ÂX"ÂIn trover, the damages are usually measured by the value of the item at the time of the loss.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âb.ÂX"ÂHowever, in cases where the item is subject to market fluctuations, like stocks or other valuable commodities, some courts have allowed owners to recover the cost of replacement within the period of time a prudent person would have replaced the converted goods.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âc.ÂX"ÂReplevin, or actual return of the converted article, may be available under certain circumstances, like those inÔH&0*''@@Ô b.Æ(#Æ ÂXÂC.ÂX` ` ÂTrespass to chattelsÆ(#` Æ ÂXÂÂX` ` Â1.ÂX¸ ¸ ÂDefinition: An intermeddling with the chattel of another that is short of a full conversion.Æ(#¸ Æ ÂXÂÂX` ` Â2.ÂX¸ ¸ ÂIntentÆ(#¸ Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âa.ÂX"ÂAs an intentional tort, intent to intermeddle with the property rights of another over the article is required.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â(1)ÂXhh(Âpurpose, intent, or designÆ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â(2) ÂXhh(ÂSubstantial certainty that trespass will take placeÆ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ Âb.ÂX"ÂLarcenous intent is not required: Intent to trespass against the article is sufficient, and it is no defense that one was mistaken as to the ownership of the article.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âc.ÂX"ÂNot a dignitary tort: cannot recover nominal damages.Æ(#Æ ÂXÂÂX` ` Â3.ÂX¸ ¸ ÂRemediesÆ(#¸ Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âa.ÂX"ÂLiability is imposed according to the extent of the harm caused.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âb.ÂX"ÂActual damages, not the market value of the article. Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â(1) Loss of rental valueÆ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â(2) Cost of repairsÆ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â(3) Any other damages short of a forced saleÆ(#Æ [Work backwards from the remedy to find the proper legal theory on which to proceed.] VI.ÂXÂDefenses to intentional torts: All are affirmative defenses and must be pleaded by the defendantÆ(#Æ ÂXÂA. Misbehavior on the part of the defendantÆ(#Æ ÂXÂÂX` ` Â1. Self©defenseÆ(#` Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âa.ÂX"ÂDefinition: One is privileged to use reasonable force to defend herself from a perceived offensive body contact or false imprisonment.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âb.ÂX"ÂReasonably mistaken belief is permissible, but unreasonably mistakened belief is not permissible.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âc.ÂX"ÂReasonable force: One may use only such force as is necessary to repel or deter the harm in question.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â(1)ÂXhh(ÂAs far as deadly force, one is not privileged to use deadly force when one is not threatened with loss of life or serious bodily harm. Otherwise, deadly force is permissible.Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â(2)ÂXhh(ÂRetreat before use of force in self defense may be required before force may be used, unless the attack occurs in one's dwelling.Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â(3)ÂXhh(ÂExcessive force is unreasonable, and one may be liable for inflicting it.Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ Âd.ÂX"ÂProvocation does not invoke the privilege, especially that only of a verbal nature.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âe.ÂX"ÂUnlawful arrest may invoke the privilege.Æ(#ÆÔH&0*''@@ÔŒÂXÂÂX` ` ÂÂX¸ ¸ Âf.ÂX"ÂOne may use what otherwise might be considered false imprisonment or assault as a self©defense under certain circumstances.Æ(#Æ ÂXÂÂX` ` Â2.ÂX¸ ¸ ÂDefense of third personsÆ(#¸ Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âa.ÂX"ÂOld common law rule: Defense limited to protect members of one's family or servants.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âb.ÂX"ÂModern rule: One may use such force to defend a third person as he could to defend himself under the rules of self©defense.Æ(#Æ ÂXÂÂX` ` Â3.ÂX¸ ¸ ÂArrest and detention (See ÃÃGA&P v. PaulÄÄ)Æ(#¸ Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âa.ÂX"ÂShopkeeper's defense of privilegeÆ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â(1)ÂXhh(ÂOld common law rule: A shopkeeper is permitted to inflict what otherwise might be a false imprisonment in order to conduct a reasonable investigation into a suspected shoplifting. However, a shopkeeper does so at his own peril should he be mistaken about the shoplifting.Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â(2)ÂXhh(ÂRestatement (Second) rule ÀÀ120A: Same as above, but reasonable mistakes are protected.Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ Âb.ÂX"ÂA person may detain another person under the doctrine of citizens' arrest if (MD rule):Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â(1)ÂXhh(ÂIf the detainee has committed a felony, in the presence of the detainer or not, and the detainer has probable cause to believe that the detainee committed it, orÆ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â(2)ÂXhh(ÂThe detainee committed a misdemeanor à Ãamounting to a breach of the peaceÄ Ä in the presence of the detainer.Æ(#hÆ ÂXÂÂX` ` Â4.ÂX¸ ¸ ÂDefense of property or recapture of chattelsÆ(#¸ Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âa.ÂX"ÂA possessor of property is privileged to use reasonable force to repel or expel an intruder to his real or personal property. One is privileged to commit what otherwise would be an intentional tort if the action is reasonable under the circumstances and is necessary to expel the intruder. Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âb.ÂX"ÂThe possessor must first warn the intruder to desist before taking any action to repel the intruder unless such a warning would clearly do no good or there is no time to give the warning.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âc.ÂX"ÂOne may not use deadly force to defend property unless a person's life is in danger.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂEXCEPTION: Entry into an occupied dwelling may justify the use of deadly force to repel the intrusion.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âd.ÂX"ÂThough one may post a sign warning a potential trespasser of infliction of bodily harm should he choose to trespass, à Ãsuch a sign does nor release the owner from liability if he uses deadly force against a trespasserÄ Ä.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âe.ÂX"ÂOne may threaten to use deadly force to defend property, though one may not be privileged to use such deadly force.Æ(#ÆÔH&0*''@@ÔŒÂXÂÂX` ` ÂÂX¸ ¸ Âf.ÂX"ÂOne may not indirectly do in one's absence what one could not do in person to repel an intrusion to property. See ÃÃKatko v. BrineyÄÄ (spring gun case) and ÃÃBrown v. MartinezÄÄ (use of gun to scare trespassers that ends up injuring one of them)Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âg.ÂX"ÂOnce property is stolen, you may not use à ÃanyÄ Ä force to reclaim it.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂEXCEPTION: Hot pursuit to recover goods is permissible.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âh.ÂX"ÂThose who use unwarranted deadly force may be liable for punitive damages as well as compensatory damages.Æ(#Æ ÂXÂÂX` ` Â5.ÂX¸ ¸ ÂTeachers' privilegeÆ(#¸ Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âa.ÂX"ÂTeachers and other school officials are empowered to use corporal punishment to enforce classroom discipline (ÃÃThomas v. BedfordÄÄ). The privilege arises out of the teachers' status as à Ãin loco parentisÄ Ä, but it is not parasitic upon a parent's right to inflict corporal punishment; in other words, a parent cannot object to or bar corporal punishment of her children in school under this rule.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â(1)ÂXhh(ÂThis avoids a possible split in the classroom between those kids subject to corporal punishment and those who are not so subjectÆ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â(2)ÂXhh(ÂIt also focuses on the state's interest in maintaining classroom discipline.Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ Âb.ÂX"ÂThis privilege is a defense to a claim of battery, unlessÆ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â(1)ÂXhh(ÂThe punishment inflicted was excessive or caused permanent injury, orÆ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â(2)ÂXhh(ÂThe teacher used his privilege as a cover for satisfying his own bad passions, whatever the severity of the punishment.Æ(#hÆ ÂXÂÂX` ` Â6.ÂX¸ ¸ ÂConsentÆ(#¸ Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âa.ÂX"ÂUnder certain circumstances, consent to a contact is a defense to what otherwise might be deemed a tort.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âb.ÂX"ÂConsent is normally treated as an affirmative defense, though it tends to negate a critical element of the offense. If invoked by the defendant, the plaintiff has the BOP to show that the contact was not consented to.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âc.ÂX"ÂÃÃBailey v. BelinfanteÄÄ (a plaintiff who consented to only having a set number of teeth extracted wins a battery claim against his doctor after the doctor removed all of his teeth instead. Possible manifestations of consent are rejected by the court.)Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âd.ÂX"ÂConsent to contact in contact sportsÆ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â(1)ÂXhh(ÂParticipation in a contact sport is usually regarded as consent to contacts within the rulesÆ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â(2)ÂXhh(ÂHowever, contacts that are outside the rules, even those considered part of the game, are intentional torts and are actionable, though it is usually not considered "macho" to sue forÔH&0*''@@Ô those contacts. (Alternative penalties)Æ(#hÆ ÂXÂB.ÂX` ` ÂDefense based on a rightÆ(#` Æ ÂXÂÂX` ` Â1. Right of entryÆ(#` Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âa.ÂX"ÂRight to enter public business establishments for the purpose of conducting business therein.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âb.ÂX"ÂRight of utilities to enter land pursuant to an easement.Æ(#Æ ÂXÂÂX` ` Â2.ÂX¸ ¸ ÂRight of necessityÆ(#¸ Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âa.ÂX"ÂRelease from liability from entering or damaging the property of others based on necessity.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âb.ÂX"ÂÀÀ196 Doctrine of Public Necessity: A person may commit what otherwise be a tort if the immediate public good requires it. (ÃÃSurroco v. GearyÄÄ)Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âc.ÂX"ÂThe government may have the right to do the same thing, but it also may have to compensate the owner for taking the property.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âd.ÂX"ÂÃÃPloof v. PutnamÄÄ and ÃÃVincent v. Lake ErieÄÄ: Economic efficiency and fairness through the imposition of liabilityÆ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â(1)ÂXhh(ÂDepending on the costs of each possible choice, by imposing or not imposing liability you can force the parties to choose the economically efficient result and the fair result.Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â(2)ÂXhh(ÂIn ÃÃVincentÄÄ, the efficient result is for the shipowner to tie up, for he stands to lose more by tying up than by not tying up. However, fairness requires that he be held liable for the damages his ship causes to the dock, though he is perfectly justified in keeping his ship tied up.Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â(3)ÂXhh(ÂIn ÃÃPloofÄÄ, we want to encourage the owner of the dock to permit the boat to stay tied up during the storm, so we impose liability on him for cutting the ship loose during the storm. However, like in ÃÃVincentÄÄ, we would want to hold the boat owner liable for the damages to the dock.Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â(4)ÂXhh(ÂCost internalization: force those who create the costs to bear them (internalizing otherwise external costs). By doing so, we encourage the choosing of the efficient result, and sometimes the fair result.Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â(5)ÂXhh(ÂBargaining (and bribery) can be used to overcome wasteful legal rules, but bargaining is not always possible because of the immediacy of many situations.Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â(6)ÂXhh(ÂWhen efficiency does not dictate, then fairness can take over to point us to the correct result.Æ(#hÆ VII.ÂXÂNegligent tortsÆ(#ÆÔH&0*''@@ÔŒÂXÂA.ÂX` ` ÂDefinition of negligence: Failure to exercise the level of care that would have been exercised by a reasonable person under the same circumstances.Æ(#` Æ ÂXÂB.ÂX` ` ÂÃÃWilson v. SibertÄÄ and the sudden emergency doctrine: failure to look in the rear view mirror before backing up may have been reasonable under the circumstances. Æ(#` Æ ÂXÂC.ÂX` ` ÂThe reasonable person standardÆ(#` Æ ÂXÂÂX` ` Â1.ÂX¸ ¸ ÂThe "reasonable person" is an à Ãabstract paradigmÄ Ä individual who does not exist in reality, but rather is an idealized standard against we measure the conduct of alleged negligent tortfeasors. [We could conceivably use a different standard, like Judge Foster's "moron in a hurry".] Such abstractions have the tendency to move us away from the fault principle.Æ(#¸ Æ ÂXÂÂX` ` ÂÂX¸ ¸ ©ÂX"ÂThe standard is NOT what a reasonable juror would have done in the same situation, for even they must recognize that they may be negligent on some occasions.Æ(#Æ ÂXÂÂX` ` Â2.ÂX¸ ¸ ÂPhysical handicaps are generally treated just like any other attendant circumstance. Deaf people are held to the standard of the reasonable deaf person.Æ(#¸ Æ ÂXÂÂX` ` Â3.ÂX¸ ¸ ÂNon©physical handicaps, like nervousness, are not factors in the reasonable person standard.Æ(#¸ Æ ÂXÂÂX` ` Â4.ÂX¸ ¸ ÂIntoxicationÆ(#¸ Æ ÂXÂÂX` ` ÂÂX¸ ¸ Â(a)ÂX"ÂBeing drunk is usually not a defense to a tort claim. It is not regarded as a circumstance.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ Â(b)ÂX"ÂIn drunk driving situations, you are generally regarded to have gotten yourself into the situation. The reasonable person standard applied even though you were not expecting to drive when you started to consume alcohol (unfair, but that is how the rule is applied).Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ Â(c)ÂX"ÂMaking yourself functionally deaf, blind, etc. is treated just like intoxication: you brought it on yourself.Æ(#Æ ÂXÂÂX` ` Â5.ÂX¸ ¸ ÂInsanityÆ(#¸ Æ ÂXÂÂX` ` ÂÂX¸ ¸ ©ÂX"ÂUnder ÀÀ283B, insanity does not count: it is not an attendant circumstance which can be factored into the reasonable person standard. Insane people are held to the standard of the reasonable person, however oxymoronic it sounds. [This reflects more of the compensations perspective (let the causer bear the costs) rather than the fault perspective (unjust to hold someone liable for something they can't help, but if you have foreknowledge of the condition, you may be held liable)]. (ÃÃBreunig v. AFI Co.ÄÄ)Æ(#Æ ÂXÂÂX` ` Â6.ÂX¸ ¸ ÂChildren and the reasonable persons standardÆ(#¸ Æ ÂXÂÂX` ` ÂÂX¸ ¸ Â(a)ÂX"ÂWhen children are engaged in childlike activities, they are held to the standard of a reasonable child. Being a child is treated like any other circumstance, though age and maturity is irrelevant with regard to adults who are held to the adult standard once they reach majority.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ Â(b)ÂX"ÂWhen they are engaged in adult activities à ÃorÄ Ä inherentlyÔH& 0*''@@Ô dangerous activities (ÃÃRobinson v. LindsayÄÄ for the latter) (50/50 split), they are held to the standard of the reasonable adult. Goal: protect the public© we don't care how old you are.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ Â(c)ÂX"ÂMost child negligence cases arose out of allegations of contributory negligence where the courts were unwilling to hold visibly injured children to the reasonable adult standard. This analysis eventually found its way into ordinary negligence cases. Æ(#Æ ÂXÂÂX` ` Â7.ÂX¸ ¸ ÂExtra ability or skillÆ(#¸ Æ ÂXÂÂX` ` ÂÂX¸ ¸ ©ÂX"ÂSpecial knowledge is treated just like any other circumstance, but it does not increase the standard of care: the reasonable person standard still applied. Superman is held to the reasonable Superman standard. (ÃÃHills v. SparksÄÄ and ÃÃFredericks v. CastoraÄÄ) Æ(#Æ ÂXÂD.ÂX` ` ÂNegligence per seÆ(#` Æ ÂXÂÂX` ` Â1.ÂX¸ ¸ ÂViolation of a legislatively (or judicially) declared rule prescribing what constitutes reasonable care constitutes negligence per se. Such rules are usually kidnapped from criminal law and applied to tort law. Though the courts are not obligated to press these rules into service in tort law, they do so based on deference to the legislature, for the courts consider the legislature to be in the better position to evaluate what the proper standard of care should be.Æ(#¸ Æ ÂXÂÂX` ` ÂÂX¸ ¸ Â2 limitations Æ(#¸ Æ ÂXÂÂX` ` ÂÂX¸ ¸ Â(a)ÂX"ÂIs the person injured within the class of persons intended to be protected by the rule? (ÃÃHaver v. HinsonÄÄ)Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ Â(b)ÂX"ÂIs the harm the type the statute aims at preventing? (ÃÃWright v. BrownÄÄ)Æ(#Æ ÂXÂÂX` ` Â2.ÂX¸ ¸ ÂÃÃMarshall v. Southern Railroad Co.ÄÄ: Rule© Do not drive so fast so that you cannot see within the range of your headlights to avoid collision. Because the plaintiff rammed into the supports, he violated the rule and is accordingly negligent per se. (Very little weight was given to the fact that the plaintiff was blinded by oncoming high beams.) (Also, it is treated like a rule proper by the court)Æ(#¸ Æ ÂXÂÂX` ` Â3.ÂX¸ ¸ ÂÃÃChaffin v. BrameÄÄ: Defendant admits negligence, but also alleges contributory negligence by holding up ÃÃMarshallÄÄ and arguing that the only prudent thing to do is to slam on the brakes. However, the court regards that result as too harsh and turn the ÃÃMarshallÄÄ headlight rule into a ROTÆ(#¸ Æ ÂXÂÂX` ` Â4.ÂX¸ ¸ ÂÃÃMartin v. HerzogÄÄ: Cardozo holds that failure to carry a lantern on the vehicle at night in violation of a state statute was negligent per se. The legislature has prescribed what constitutes reasonable care, thus pre©empting the reasonable person standard.Æ(#¸ Æ ÂXÂÂX` ` Â5.ÂX¸ ¸ Â3 ways courts have found ways out of applying negligence per se.Æ(#¸ Æ ÂXÂÂX` ` ÂÂX¸ ¸ Â(a)ÂX"ÂBy construction: ÃÃTedla v. EllmanÄÄ© Defendants try to argue contributory negligence per se based on Anna andÔH& 0*''@@Ô her brother's violation of a state statute requiring pedestrians to walk on the left side of the road (they were walking on the right side of the road). However, the court argued that not in all situations would following the statute be safe, and that one should not have to subrogate common sense to the statute when following the statute stands to put a person at greater risk. The court accordingly construes the statute as an ROT and refuses to apply negligence per se analysis.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ Â(b)ÂX"ÂBy excuse: ÃÃImpson v. SM Inc.ÄÄ© Truck attempts to pass within 100 feet of an intersection in violation of a statute. Plaintiff argues negligence per se, but the Defendant argues that if he has an excuse, he should not be held guilty of negligence per se. The court buys the argument, but it finds he had no valid excuse. The Restatement lists 5 non©exclusive categories of excuses:Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â(1)ÂXhh(ÂIncapacity to complyÆ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â(2)ÂXhh(ÂIgnorance of the occasion for complianceÆ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â(3)ÂXhh(ÂInability to comply after a reasonable attempt to do so (based on a reasonable person trying to comply with the statute)Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â(4)ÂXhh(ÂEmergency not caused by the person accused of misconductÆ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â(5)ÂXhh(ÂCompliance put the person at greater risk of harmÆ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ Â(c)ÂX"ÂBy explicit decision: ÃÃRudes v. GottschalkÄÄ© Kid crosses an expressway and gets hit. Defendant argues contributory negligence per se. The court concludes that it does not believe negligence per se is appropriate in this case. The adult standard does not automatically apply when negligence per se is invoked. The plaintiff could be held to the standard of a reasonable child, and that will be a question for the jury.Æ(#Æ ÂXÂÂX` ` Â6.ÂX¸ ¸ ÂOther possible testsÆ(#¸ Æ ÂXÂÂX` ` ÂÂX¸ ¸ Â(1)ÂX"ÂStupid laws, like a 3 mph speed limitÆ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ Â(2)ÂX"ÂIgnored lawsÆ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ Â(3)ÂX"ÂChildrenÆ(#Æ ÂXÂÂX` ` Â7.ÂX¸ ¸ ÂÃÃMundy v. Pirie©Slaughterhouse Motor Co.ÄÄ: Permitting an unlicensed minor to operate a vehicle was negligent per se.Æ(#¸ Æ ÂXÂÂX` ` Â8.ÂX¸ ¸ ÂÃÃCarter v. Sommerville & Son.ÄÄ: Not having a certificate of conveyance was not sufficient to be negligent per se.Æ(#¸ Æ ÂXÂÂX` ` Â9.ÂX¸ ¸ ÂÃÃWright v. BrownÄÄ: Dog released prematurely from quarantine in violation of statute. It bit the plaintiff and she sued the dog catcher.Æ(#¸ Æ ÂXÂÂX` ` ÂÂX¸ ¸ Â(a)ÂX"ÂMust be within the class of persons intended to be protected (members of the community)Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ Â(b)ÂX"ÂThe resulting harm must be part of the class of harms intended to be prevented (diseased dogs biting people© a different kind of injury than that which the plaintiff suffered, so no negligence per se).Æ(#Æ ÂXÂÂX` ` Â10.ÂX¸ ¸ ÂÃÃHaver v. HinsonÄÄ: Parallel parking statute has nothing to doÔH& 0*''@@Ô with protecting kids who play under cars, so no negligence per se.Æ(#¸ Æ ÂXÂÂX` ` Â11.ÂX¸ ¸ ÂÃÃWendland v. Ridgefield ConstructionÄÄ: Though OSHA regulations might seem to provide a fertile ground for negligence per se rules, statutory law prevents OSHA regulations from expanding or limiting tort rights (legislature explicitly removes possibility of negligence per se). However, violation of OSHA rules may be deemed à ÃevidenceÄ Ä of negligence, though not negligence per se (might that still run afoul of the proviso?). (Employer is in the predicament that the person injured is not an employee within the meaning of the workers comp statutes, but he is an employee within in the meaning of the OSHA regulations). Æ(#¸ Æ ÂXÂE.ÂX` ` ÂConcept of negligence: RiskÆ(#` Æ ÂXÂÂX` ` Â1.ÂX¸ ¸ ÂNegligence isÆ(#¸ Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âa.ÂX"ÂConductÆ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âb.ÂX"ÂInvolving risks and dangersÆ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âc.ÂX"ÂThat a reasonable person would not take because of the foreseeable harm.Æ(#Æ ÂXÂÂX` ` Â2.ÂX¸ ¸ ÂUsually, courts are unwilling to balance the value of life against the value of property, especially where such a risk is patently unnecessary (ÃÃIndiana Cons. Ins. v. MathewÄÄ: court allowed Mathew to choose saving his own life over saving his brother's garage from burning down by not pushing the flaming lawn mower out of the garage [see brief and notes].)Æ(#¸ Æ ÂXÂÂX` ` Â3.ÂX¸ ¸ ÂÃÃBrown v. SteilÄÄ hypotheticalÆ(#¸ Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âa.ÂX"ÂCompany makes a conscious decision to use steel construction in lieu of concrete construction even though they know it will result in 3 injuries rather than 1 injury by using concrete. Sure enough, after construction begins, a worker is injured and a deli delivery boy making a delivery on the premises is also injured.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âb.ÂX"ÂShould they be liable for an intentional tort under some sort of substantial certainty analysis?Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â(1)ÂXhh(ÂStatistical certainty: Statistically speaking, 3 injuries will occur if we use steel whereas only one injury will occur if we use concrete, though we have no idea under what circumstances the accidents will happen. (not enough mechanical certainty to raise an intentional tort)Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â(2)ÂXhh(ÂMechanical certainty: i.e. throwing a brick off of a building. You can be substantially certain that action will likely cause someone immediate ascertainable harm.Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ Âc.ÂX"ÂWas it negligent for Steil to use steel construction instead of concrete knowing the increased probability of on©site accidents?Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â(1)ÂXhh(ÂCan we ever impose additional risks on human life in the name of controlling costs? Yes, that isÔH& 0*''@@Ô permissible and the reasonable persons standard reflects this. At some points, safety considerations do not outweigh cost considerations. We can balance the value of human life against the value of property, though courts do it rarely.Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(Â(a)ÂXÀÀ-ÂTo our own livesÆ(#ÀÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(Â(b)ÂXÀÀ-ÂTo the lives of othersÆ(#ÀÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(Â(c)ÂXÀÀ-ÂWhen the analysis gets generalized away from particular situations, it may become reasonable to balance property against human life, but the more particularized the situation, the more unwilling we are to do that.Æ(#ÀÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â(2)ÂXhh(ÂDifficult to trace negligence back to basic decisions. You would have a better argument by tracing the cause to some specific circumstance of the accident. [Under the Federal Tort Claims Act, the government cannot be held liable for discretionary policy actions, but it can be held liable for operational actions putting those policies into practice.] (ÃÃDorset Yacht v. Home OfficeÄÄ)Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ Âd.ÂX"ÂLiability w/o faultÆ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â2 goalsÆ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â(1)ÂXhh(ÂRisk spreading (with insurance)Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(Â(a)ÂXÀÀ-ÂWorkers get slightly reduced wages to cover workers comp expenses, but in return they get protection against serious injuries. This has the effect of spreading out the risk among all employees.Æ(#ÀÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(Â(b)ÂXÀÀ-ÂIs this paternalistic? Well, people can be short sighted, and because there are inevitably differences in the bargaining power between employers and employees.Æ(#ÀÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â(2)ÂXhh(ÂCost internalization/efficiency and externalitiesÆ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(Â(a)ÂXÀÀ-ÂAdam Smith's invisible hand strives for the efficient result squeezes out inefficiency. When costs exceed potential benefits, a project should not be performed, and vice versa.Æ(#ÀÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(Â(b)ÂXÀÀ-ÂGenerally speaking, projects that yield more benefit than they cost should be performed, while projects where the costs exceed the benefits should not be performed.Æ(#ÀÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(Â(c)ÂXÀÀ-ÂBy imposing liability on employers for employee accidents, we can make them take injury costs into consideration (internalize those costs) when they decideÔH& 0*''@@Ô whether or not to work on a given project and to choose the efficient option. Otherwise, employers are not likely to take injury costs into account since they will not have to incur those costs, and accordingly, projects where the real costs exceed the benefits would be performed.Æ(#ÀÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(Â(d)ÂXÀÀ-ÂIn workers comp, the amount of employer liability is limited, so there is not a full internalization of costs.Æ(#ÀÆ ÂXÂÂX` ` ÂÂX¸ ¸ Âe.ÂX"ÂShould Steil be made to pay for the injuries to the deli delivery boy? Maybe, but their workers comp does not cover them (If the deli is required to carry workers comp, they might be able to pay, but more than likely that business is too small to be required to carry workers comp.Æ(#Æ ÂXÂÂX` ` Â4.ÂX¸ ¸ ÂExceptions to Workers comp (ÃÃStinnett v. BucheleÄÄ : See brief for short discussion)Æ(#¸ Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âa.ÂX"ÂAgriculture workersÆ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âb.ÂX"ÂIntentional tortsÆ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âc.ÂX"ÂCasual workersÆ(#Æ ÂXÂÂX` ` Â5.ÂX¸ ¸ ÂÃÃBernier v. Boston EdisonÄÄÆ(#¸ Æ ÂXÂÂX` ` ÂÂX¸ ¸ Â(1)ÂX"ÂPedestrian©plaintiffs argue that BE was negligent in the design of their utility poles. They presented expert testimony that for $17.50 more per pole they could have considerably increased the strength of their poles, thus protecting pedestrians from falling poles when vehicles collided with the poles. This pole was shown when hit with vehicles going only 6 mph. The improvements would have made the pole withstand a crash of at least double that speed.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ Â(2)ÂX"ÂDefendants argue that it would have been too expensive to design a better pole. Additionally, sturdier poles increase the possibility of harm to vehicle occupants whose vehicles collide with poles.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ Â(3)ÂX"ÂThe court subtly shifts the BOP to the defendants to show that they did not act negligently in designing this pole. They were in a better position to know about pole safety. Additionally, they seem to have given no thought to pedestrian safety when they designed this pole. They conclude that a jury could find that BE was negligent in the design of their utility poles that created an "unjustifiable risk" to pedestrians.Æ(#Æ ÂXÂÂX` ` Â6.ÂX¸ ¸ ÂÃÃDorset Yacht v. Home OfficeÄÄÆ(#¸ Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âa.ÂX"ÂThere is nothing inherently negligent about operating a Borstal (reform school for boys where the boys are given a large degree of freedom as part of their rehabilitation). [The decision to run one is basically a policy decision for which the govt. should not be held negligent.]Æ(#ÆÔH&0*''@@ÔŒÂXÂÂX` ` ÂÂX¸ ¸ Âb.ÂX"ÂHowever, they may have been negligent with respect to the handling of the particular group of boys that stole the plaintiff's Æ(#Æ ÂXÂÂX` ` Â7.ÂX¸ ¸ ÂThe Hand Formula: ÃÃUS. v Carroll TowingÄÄÆ(#¸ Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âa.ÂX"ÂThe formulaÆ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂB < PLÆ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â(1)ÂXhh(ÂB: The cost of prevention of the harmÆ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â(2)ÂXhh(ÂP: The probability of the harm occurringÆ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â(3)ÂXhh(ÂL: The seriousness of the harmÆ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ Âb.ÂX"ÂIf B < PL, then liability should be imposed, for the cost of preventing the harm is less than the severity of the harm discounted by the probability that it will occur.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âc.ÂX"ÂIf B > PL, then liability should not be imposed because then the cost of prevention of the harm exceeds the severity of the harm discounted by the probability that it will occur. Requiring the preventive measures would amount to economic waste.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âd.ÂX"ÂThe Hand formula, as an economic analysis of tort liability, works wonderfully in business situations (ÃÃStinnettÄÄ and ÃÃBEÄÄ), though it may not work as well in non©business situationsÆ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âe.ÂX"ÂOn the other hand, the numbers necessary for the calculation may not be readily apparent. Additionally, you can run into problems where both sides of the equation are roughly equal in value. For example, it might cost $50 to prevent a given harm, though the harm discounted by its probability is only $49. Strictly speaking, the Hand formula absolves liability, but somehow we might be willing to impose liability in this situation.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âf.ÂX"ÂIt's not perfect (It doesn't play the piano!), but it is a framework with which you can work. The basic concepts involved may be helpful to a jury trying to decide whether or not to impose liability.Æ(#Æ ÂXÂÂX` ` Â8.ÂX¸ ¸ ÂThe existence of an accident is not automatically evidence of negligent conduct: ÃÃGift v. PalmerÄÄÆ(#¸ Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âa.ÂX"ÂThe plaintiff entered no evidence relating to a breach of care. She tried to argue that on balance, he had to have done something wrong in running over her kid. Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âb.ÂX"ÂTwo tensions are apparent from this case:Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â(1)ÂXhh(ÂRes ipsa loquitur: the action speaks for itself (deal with later)Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â(2)ÂXhh(ÂWe want something more than just bare probabilities in order to find someone guilty of negligence. We want to detailed evidence that will point out to us a negligent act or omission. (ÃÃSmith v. Rapid TransitÄÄ: plaintiff attempted to have a bus schedule entered into evidence showing a high probability that a bus was at a givenÔH&0*''@@Ô location at a given time. This evidence was not admitted.)Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ Âc.ÂX"ÂCases like this are usually decided against the plaintiff since the plaintiff has the BOP. This is essentially a value judgment that in a close case, the party with the BOP ought to lose.Æ(#Æ ÂXÂÂX` ` Â9.ÂX¸ ¸ ÂWitnesses, conflicting testimony, expert testimony, and custom evidenceÆ(#¸ Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âa.ÂX"ÂAs an advocate, you must give reasons to the juryÆ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â(1)ÂXhh(ÂTo believe your witnessesÆ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â(2)ÂXhh(ÂNot to believe your opponent's witnessesÆ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ Âb.ÂX"ÂReasons to believe/disbelieve a witnessÆ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â(1)ÂXhh(ÂHonestyÆ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(Â(a)ÂXÀÀ-ÂBias or stake in the caseÆ(#ÀÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(Â(b)ÂXÀÀ-ÂStronger testimony comes from those with no interest in the caseÆ(#ÀÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(Â(c)ÂXÀÀ-ÂStrongest testimony is testimony given against the interest of the witnessÆ(#ÀÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â(2)ÂXhh(ÂPerception of the eventsÆ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(Â(a)ÂXÀÀ-ÂEye sight/hearing/sharpness of sense of the witnessÆ(#ÀÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(Â(b)ÂXÀÀ-ÂAngle the witness had at the time of the accident (obstructed view?)Æ(#ÀÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(Â(c)ÂXÀÀ-ÂWas there enough light for the witness to see clearly?Æ(#ÀÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â(3)ÂXhh(ÂMemoryÆ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(Â(a)ÂXÀÀ-ÂProbe the quality of the witnesses's memoryÆ(#ÀÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(Â(b)ÂXÀÀ-ÂDoes the story remain consistent over timeÆ(#ÀÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(Â(c)ÂXÀÀ-ÂTestimony tends to get more detailed each time the person tells the story. They might have incorporated other things they have been told about the events into their own recollection of what happened.Æ(#ÀÆ ÂXÂÂX` ` Â10.ÂX¸ ¸ ÂÆ(#¸ Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âc.ÂX"ÂMore cases than not will come down to witness credibility. (ÃÃLode v. MercanioÄÄ and the mishmash of conflicting testimony: its the jury's job to sift through it to make findings of fact.)Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"©ÂXhh(ÂIt is not considered unethical for counsel to coach a friendly witness on delivery of the testimony, for example, to use "power talk", to use a particular voice inflection, to be articulate, etc.Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"©ÂXhh(ÂÃÃKibler v. MadduxÄÄ hypothetical: Showing negligence may be as much a matter of persuasion as proof, and sometime maybe even more so. (See 19©OCT©92 notes for more details)Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ Âd.ÂX"ÂBe careful what you say at trial and how you say it. Leave no ambiguities in the testimony. If you misspeak,ÔH&0*''@@Ô that misstatement can be used against you later. (ÃÃForsyth v. JohnsonÄÄ: Defendant testified that his speed was 55 "at the time of the impact". What he probably meant to say was he was going 55 before he hit the brakes. That testimony was used against him to find him negligent.)Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âe.ÂX"ÂThe role and limitations of opinion and expert testimonyÆ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â(1)ÂXhh(ÂOpinion testimony on ultimate issues is usually not permitted from non©expert witnesses. They must instead state the facts to the best of their ability.Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(ÂHowever, limited expressions of opinion are permissible (estimates of speed based from eyewitnesses, as well as distance, intoxication, etc. Things most people are "experts" on). This forces lawyers to investigate and present the FACTS.Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(©ÂXÀÀ-ÂIn such situations, expert testimony is not needed. For example, we all know the dangers of a banana on the floor of a supermarket.Æ(#ÀÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â(2)ÂXhh(ÂRule against opinion testimony is usually waived for expert testimony. Experts may draw inferences from large bodies of facts upon which they are experts at interpreting (doctors, engineers, physicists, etc). However, experts can and do differ, and juries usually are ill equipped to sift through expert testimony to find which expert to believe. Also, there is the risk that the expert witnesses will simply awe the jury into finding for the side for which they testify.Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â(3)ÂXhh(ÂExpert testimony has the tendency to take the case from the jury if you allow the expert to testify on an ultimate issue in a case. Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(©ÂXÀÀ-ÂA way around the problem of expert testimony is to give the jury enough information on a subject so that they may become "quasi©experts" and be able to make informed inferences. (ÃÃHall v. OregonÄÄ: sand on onramp case© The state tried to argue that the plaintiff needed to enter expert testimony about the logistics of sand removal in order to make out her prima facie case. The OR S.Ct disagreed with the state and the trial court that the plaintiff needed to introduce expert testimony. The jury was given sufficient information about the logistics of sand removal, the locus in quo (curbed and contained so sand could not blow away) andÔH&0*''@@Ô the other tasks that maintenance crews were working on at the time.Æ(#ÀÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â(4)ÂXhh(ÂIn ÃÃJohnson v. YatesÄÄ, a highway patrol officer's estimation of the speed of a vehicle based on the skid marks was disallowed because the officer was not an expert witness no was he an eyewitness to the accident, and thus, the evidence was deemed prejudicial to the defendant. Besides, the opinion testimony probably was not needed, as the jury could find on its own from 400+ ft. skid marks and a split tree that the defendant was probably going too fast. (The jury also may have been awed by the officer's uniform). In essence, the officer was drawing conclusion the jury could have drawn itself. Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(©ÂXÀÀ-ÂWhen a jury is capable of drawing an inference on its own, expert testimony is usually not needed. However, if the jury may need help, expert testimony may be allowable (for example, suppose the skid marks were only 137 ft long© there the jury may have a harder time drawing an inference as to speed. Procuring an expert witness that will testify that based on the skid marks the defendant was traveling at over 50 mph (too fast) might be helpful and permissible.) Æ(#ÀÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â(5)ÂXhh(ÂCustom evidence and its admissibilityÆ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(Â(a)ÂXÀÀ-ÂÃÃBeals v. WalkerÄÄ: victim was a grain elevator repairman who slipped on a patch of ice while trying to climb the outside ladder of the defendant's grain elevator. The plaintiff tried to have evidence that the custom of the area was to have a ladder on the inside grain elevators, and because the defendant did not have a ladder on the inside of his grain elevator, he should be found negligent. The court found that the plaintiff failed to prove either that the defendant knew of the custom or should have known about the custom. Additionally, in order for the custom to be relevant, it has to be à Ãwidely usedÄ Ä in the local area and à Ãits use must be so widespread that the plaintiff either did or should have known about itÄ Ä. Plaintiff did not show that, so he lost for failure to show a breach of duty to keep a safe premises. Æ(#ÀÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(Â(b)ÂXÀÀ-ÂCustom evidence is à ÃirrelevantÄ Ä, unless the customÆ(#ÀÆÔH&0*''@@ÔŒÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(ÂÂXÀÀ-Â(1)ÂX3ÂConcerns à ÃsafetyÄ ÄÆ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(ÂÂXÀÀ-Â(2)ÂX3ÂThe harm done was of the type the custom is designed to prevent.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(ÂÂXÀÀ-Â(3)ÂX3ÂThe person injured was of the class of persons contemplated to be protected.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(Â(c)ÂXÀÀ-ÂJust because everyone else does something that is unsafe does not make it admissible "custom" evidence. (ÃÃDePaola v. SeamourÄÄ and crossing 40©50 feet from an intersection because a bus stop is nearby).Æ(#ÀÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(Â(d)ÂXÀÀ-ÂIndustry wide safety manuals are usually deemed hearsay evidence because the validity of that evidence cannot be tested by cross©examination. (ÃÃMcComish v. DeSoiÄÄ: The appeals court held the manuals inadmissible as hearsay, but the S. Ct. reversed and held them to be admissible as evidence of negligence). However, if they are à Ãenacted into lawÄ Ä, then they are admissible and may be regarded as the standard of care (a la negligence per se).Æ(#ÀÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(Â(e)ÂXÀÀ-ÂÃÃThe T.J. HooperÄÄ: [another Learned Hand special] Plaintiff argued that the owners of the tug were negligent in not having a radio on board. Had there been a working radio on board, they would have heard a severe weather forecast and could have made the decision to put in to avoid the weather. Defendants tried to argue that having a radio on board was not customary at the time (Is evidence of à Ãno industry customÄ Ä conclusive for a finding for the defendant?) LH: NO, the evidence was not conclusive in the defendants' favor. There was a proper jury question. He insinuated in dicta that an entire industry can be negligent by not having a particular custom.Æ(#ÀÆ ÂXÂÂX` ` Â10.ÂX¸ ¸ ÂWhy not allow people to bargain for additional safety (ie. why should not the plaintiffs in ÃÃThe T.J. HooperÄÄ have been required to bargain to have the defendants have a radio on board?Æ(#¸ Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âa.ÂX"ÂContracts have transaction costs associated with themÆ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â(1)ÂXhh(ÂTimeÆ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â(2)ÂXhh(ÂPower to bargain (contracts of adhesion)Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â(3)ÂXhh(ÂExpertiseÆ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â(4)ÂXhh(ÂIdentification of the parties to a potential contractÆ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â(5)ÂXhh(ÂEstablishing the required "meeting of the minds".Æ(#hÆÔH&0*''@@ÔŒÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â(6)ÂXhh(ÂNature of what is contemplated to be contracted forÆ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ Âb.ÂX"ÂWhere transaction costs are high and bargaining is difficult or impossible, we are inclined to assume people will act as à Ãreasonable personsÄ Ä and allow people to seek remedies in tort.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âc.ÂX"ÂWhere transaction costs are low and bargaining is both feasible and easy to accomplish, we limit remedies to contract.Æ(#Æ ÂXÂF.ÂX` ` ÂRes Ipsa Loquitur: The act speaks for itselfÆ(#` Æ ÂXÂÂX` ` Â1.ÂX¸ ¸ ÂIn some situations, the way an accident happened strongly suggests negligence, and the case should get to a jury.Æ(#¸ Æ ÂXÂÂX` ` Â2.ÂX¸ ¸ ÂWhereas in a standard negligence case the plaintiff includes facts demonstrating negligence, in a res ipsa case the plaintiff excludes all other possible causes and asks the jury to find that there is no way that the defendant could not have been negligent given that the accident occurred the way it did.Æ(#¸ Æ ÂXÂÂX` ` Â3.ÂX¸ ¸ ÂWhy was ÃÃGift v. PalmerÄÄ not a res ipsa case? There were other possible causes that were ruled out as possibilities.Æ(#¸ Æ ÂXÂÂX` ` Â4.ÂX¸ ¸ ÂRes ipsa is often used as a "smoking out device" to get a tight lipped defendant to talk when he may be withholding information about an accident. The defendant if ÃÃGiftÄÄ told all he knew. However, in a majority of jurisdictions, res ipsa applies even when it is not needed as a smoking out device.Æ(#¸ Æ ÂXÂÂX` ` Â5.ÂX¸ ¸ ÂRes ipsa gives the plaintiff a prima facie case and avoids the defendant's motion for a directed verdict. In some instances, the inference of negligence can be so strong that a plaintiff's directed verdict is warranted (x©ray shot of abdomen showing scissors left in someone after an operation). The procedural rules for res ipsa are much more favorable to the plaintiff.Æ(#¸ Æ ÂXÂÂX` ` Â6.ÂX¸ ¸ ÂInterpretations of res ipsaÆ(#¸ Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âa.ÂX"ÂMajority view: Res ipsa allows the jury to infer negligence on the part of the defendant, but it still does not necessitate a finding of negligence in most cases.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âb.ÂX"ÂMinority view: Once res ipsa is shown, the BOP shifts to the defendant to prove himself non©negligent by preponderance of the evidence.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âc.ÂX"ÂMinority view: Res ipsa calls for a presumption of negligence on the part of the defendant. (Essentially a directed verdict for the plaintiff)Æ(#Æ ÂXÂÂX` ` Â8.ÂX¸ ¸ ÂSuppose defendant comes back with a reasonable explanation of what happened.Æ(#¸ Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âa.ÂX"ÂIf the jury believes it, res ipsa is out the window.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âb.ÂX"ÂIf it does not believe the explanation, then res ipsa still applies.Æ(#Æ ÂXÂÂX` ` Â9.ÂX¸ ¸ ÂÃÃByrne v. BoadleÄÄ: Plaintiff was walking by the defendant's mill when he was hit by a barrel from the mill. He sues under a resÔH&0*''@@Ô ipsa loquitur theory of negligence. The court found that the plaintiff was permitted to employ a res ipsa theory. They held that it was wrong to say that a presumption of negligence was never allowed, and the fact that the barrel from the defendant's mill crashed on the plaintiff could be used as the prima facie case of evidence.Æ(#¸ Æ ÂXÂÂX` ` Â10.ÂX¸ ¸ ÂRestatement view: ÀÀ328Æ(#¸ Æ ÂXÂÂX` ` ÂÂX¸ ¸ Â(1)ÂX"ÂIt may be inferred that harm suffered by the plaintiff is caused by negligence of the defendant whenÆ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â(a)ÂXhh(Âthe event is of a kind which ordinarily does not occur in the absence of negligenceÆ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â(b)ÂXhh(Âother responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence; andÆ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â(c)ÂXhh(Âthe indicated negligence is within the scope of the defendant's duty to the plaintiffÆ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ Â(2)ÂX"ÂIt is the function of the court to determine whether the inference may reasonably be drawn by the jury or whether it must necessarily be drawn.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ Â(3)ÂX"ÂIt is the function of the jury to determine whether the inference is to be drawn in any case where different conclusions may reasonably be reached.Æ(#Æ ÂXÂÂX` ` Â11.ÂX¸ ¸ ÂControl rule: The defendant must be in control of the instrumentality that was the cause of the harm to be liable to the plaintiff for negligence under a res ipsa theory.Æ(#¸ Æ ÂXÂÂX` ` Â12.ÂX¸ ¸ ÂModified control ruleÆ(#¸ Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âa.ÂX"ÂIs the instrumentality within the defendant's power or right to control? (Within his dominion?)Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âb.ÂX"ÂThe time that counts is not the moment of the injury, but rather when the negligence itself occurred.Æ(#Æ ÂXÂÂX` ` Â13.ÂX¸ ¸ ÂÃÃLowe v. QuickÄÄ elevator hypothetical: The facts of the situation and the control Quick had over the elevator's operation strongly suggests they were negligent in some way. It probably would go to the jury on res ipsa.Æ(#¸ Æ ÂXÂÂX` ` Â14.ÂX¸ ¸ ÂRun©away car cases: tampering, mechanical failure, failure to lock, or not putting the car in park and setting the emergency brake. These cases also are likely to go to the jury on res ipsa. (ÃÃWarren v. JeffriesÄÄ)Æ(#¸ Æ ÂXÂG.ÂX` ` ÂCause in factÆ(#` Æ ÂXÂÂX` ` Â1.ÂX¸ ¸ ÂThe negligent act must be the actual cause in fact of the plaintiff's harm in order for the plaintiff to recover. The plaintiff cannot recover simply because the defendant was negligence; that negligence had to have been the cause the accident.Æ(#¸ Æ ÂXÂÂX` ` Â2.ÂX¸ ¸ ÂActual cause is usually interpreted as "but©for" causation. That is, but for the defendant's negligent action this accident would not have occurred. (Also have to show proximate causation)Æ(#¸ Æ ÂXÂÂX` ` Â3.ÂX¸ ¸ ÂÃÃSalintero v. Nystrom:ÄÄ Plaintiff went to the defendant doctorÔH&0*''@@Ô for x©rays of her lower back after an auto accident. Neither the doctor nor his staff inquired as to whether or not she was pregnant or even when she had her last period. The doctor took the x©rays. Plaintiff later went to see her gynecologist when she began to suspect that she was pregnant. the gynecologist confirmed she was pregnant, and upon finding out she had been x©rayed, advised her to get an abortion. The fetus turned out to be dead. à ÃHeld:Ä Ä the doctor's negligence was not the cause of Salintero's harm, so he cannot be held liable. (In fact, according to her own testimony, had she been asked whether she was pregnant she would have responded in the negative.) The plaintiff has not shown that but for the doctor's negligence the harm would not have occurred.Æ(#¸ Æ ÂXÂÂX` ` Â4.ÂX¸ ¸ ÂBut©for cause analysis: both are neededÆ(#¸ Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âa.ÂX"ÂMust know the theory of à ÃnegligenceÄ Ä under which you will proceed (What did the defendant do wrong? He at least has to be negligent.)Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âb.ÂX"ÂSpeculative hypothetical element: If the defendant were not negligent, would the accident have happened? (Smack of hypothesis contrary to fact, a logical fallacy)Æ(#Æ ÂXÂÂX` ` Â5.ÂX¸ ¸ ÂSuppose a car leaves the roadway, crosses onto a sidewalk, and hits a pedestrianÆ(#¸ Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âa.ÂX"Â2 possible but for causesÆ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â(1)ÂXhh(ÂPlaintiff being on the sidewalkÆ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â(2)ÂXhh(ÂDefendant careening onto the sidewalkÆ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ Âb.ÂX"ÂCause (1) is irrelevant. The pedestrian was doing nothing wrong being on the sidewalk.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âc.ÂX"ÂCause (2) is the relevant cause, for the defendant's negligent (wrongful) act was probably the cause of this accident.Æ(#Æ ÂXÂÂX` ` Â6.ÂX¸ ¸ ÂJoint and several liability among several tortfeasors (ÃÃBernier v. Boston Edison Co.ÄÄ)Æ(#¸ Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âa.ÂX"ÂEach defendant is held liable to the plaintiff for the full amount of the plaintiff's damages, but the plaintiff's recovery cannot exceed the amount of the judgment. Thus, the plaintiff can collect the entire judgment from 1 defendant or from all the defendants.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂThis is useful for the plaintiff in 2 related respectsÆ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â(1)ÂXhh(ÂWith J&S liability, you can avoid having to sue only an insolvent defendant who is probably judgment proof.Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â(2)ÂXhh(ÂAlso, you can sue a "deep pocket" party who is likely to have the money to pay on the judgment you get.Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ Âb.ÂX"ÂJ&S is especially useful in cases with multiple actors and causes.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â(1)ÂXhh(ÂMerged causes: ÃÃLanders v. East Texas Salt Water Disposal Co.ÄÄ© ETS and Sunoco both had pipes which broke and dumped salt water into the plaintiff's fresh water fishing pond, killing allÔH&0*''@@Ô the fish. He sues them both arguing they are J&S liable.Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(Â(a)ÂXÀÀ-ÂOld Texas rule: For J&S liability there must be commonality of design and/or commonality of actionÆ(#ÀÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(Â(b)ÂXÀÀ-ÂNew Texas rule: Where there is an à Ãinjury that is indivisibleÄ Ä as to the respective responsibilities of each identified tortfeasor, both can be held J&S liable.Æ(#ÀÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â(2)ÂXhh(Â2 defendant aggravation of injury case: ÃÃAzure v. City of BillingsÄÄ© Plaintiff got beat up in a bar brawl and was subsequently arrested. Statutory law required that the police administer medical to him, but they failed to do so and his injuries were aggravated as a result.Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(Â(a)ÂXÀÀ-ÂIndivisibility of injuryÆ(#ÀÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(ÂÂXÀÀ-Â(1)ÂX3ÂHarm cannot be theoretically divided, orÆ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(ÂÂXÀÀ-Â(2)ÂX3ÂPlaintiff cannot practically divide the harm among the tortfeasors.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(Â(b)ÂXÀÀ-ÂOnce the plaintiff shows that the defendant's negligence contributed to his injuries, the BOP switches to the defendant to prove how much of the injury for which he was responsible, lest he be stuck with paying for the entire injury.Æ(#ÀÆ ÂXÂÂX` ` ÂÂX¸ ¸ Âc.ÂX"ÂRules governing J&SÆ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â(1)ÂXhh(ÂJ&S can be invoked whenÆ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(Â(a)ÂXÀÀ-ÂThere is concerted action among the tortfeasors or unity of design, orÆ(#ÀÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(Â(b)ÂXÀÀ-ÂThere is indivisibility of the injury.Æ(#ÀÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â(2)ÂXhh(ÂOne J&S liable defendant can seek contribution from other J&S defendants in most jurisdictions and recover the pro rata share of damages owed by other defendants. Contribution is usually apportioned as to the degree of fault.Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â(3)ÂXhh(ÂIndemnification: In some cases, a defendant is only secondarily liable to the plaintiff, making some other third party liable to the defendant. In these cases, the defendant may seek indemnification from the third party, or 100% contribution.Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â(4)ÂXhh(ÂJ&S tends to weaken the but for cause rule.Æ(#hÆ ÂXÂÂX` ` Â7.ÂX¸ ¸ ÂMerged causes where one of the causes is undetermined in nature (act of God)Æ(#¸ Æ ÂXÂÂX` ` ÂÂX¸ ¸ ©ÂX"ÂÃÃAnderson v. MN St. Paul & Slt. St. Marie RRÄÄÆ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂFire started in defendant's engine in August and smoldered until October. It then merged with a fire of unknown cause and destroyed the plaintiff's property.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â(1)ÂXhh(ÂThis case is distinguished from ÃÃLandersÄÄ in thatÔH&0*''@@Ô one of the causes is of unknown origin.Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â(2)ÂXhh(ÂOne party will get a lucky breakÆ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(Â(a)ÂXÀÀ-ÂIf court says a but for cause is required, plaintiff loses (his property is likely to have been destroyed anyway by the fire of unknown cause (rule in Cook's case: if fire combines with one of unknown origin and that fire is of superior force, then the defendant cannot be held liable.)Æ(#ÀÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(Â(b)ÂXÀÀ-ÂIf court say that if the defendant's fire was a substantial factor, plaintiff recovers for what otherwise would have been an Act of God (who is not subject to personal jurisdiction in this jurisdiction)Æ(#ÀÆ ÂXÂÂX` ` Â8.ÂX¸ ¸ ÂExceptions to strict but©for cause analysis: ÃÃDillon v. Twin States Gas & Electrical Co.ÄÄÆ(#¸ Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âa.ÂX"ÂThe defendant utility maintained uninsulated wires across a bridge which was habitually climbed by boys in the area. Dillon, a 14 year old boy, lost his balance, and while he was leaning out, he grabbed the defendant's wire and was electrocuted.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âb.ÂX"ÂWhile conceding that the utility may have been negligent carrying electricity through an uninsulated wire across the bridge and that it was the but©for cause of the boy's death, the court hypothesizes what would have happened had the wire not been there. It reasons that he would have fallen to the deck of the bridge, and the fall would have either killed or maimed him. Consequently, because of the wire, he only lost a second or two of life. Thus, he was only damaged for those extra 2 seconds of life he lost. Accordingly, his damages would have been trivial. The court looks to see what damages the decedent would have suffered were it not for the defendant's negligence, and it concludes he would have been severely injured anyway. Accordingly, the plaintiff cannot show he was damages in any significant way because of the defendant's negligence, and so his claim must fail. (The damages he stood to receive were either nothing or the difference between death and a serious injured state (not much at all.)).Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âc.ÂX"ÂThe only negligence the court cites was putting up uninsulated high voltage wires.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂOther possible theories of negligenceÆ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"©ÂXhh(ÂAttractive nuisance (they would be suing the party for leaving the bridge in such a condition that boys were tempted to climb it.Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"©ÂXhh(ÂFailure to insulate the wiresÆ(#hÆ ÂXÂÂX` ` Â9.ÂX¸ ¸ ÂFactual uncertainty over the true cause: ÃÃSummers v. TiceÄÄÆ(#¸ Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âa.ÂX"ÂPlaintiff was a part of a 3 man quail hunting party. While separated from the plaintiff, the 2 defendantsÔH&0*''@@Ô shot at covey which Tice had flushed out and which flew between the defendants and the plaintiff. Both defendants were using the same type of ammunition. Plaintiff was hit by shot from one of the guns, but it was unclear from which gun the injuring shot was fired (in other words, which one of the defendants shot the plaintiff). The trial court found that the defendants were negligent in shooting their shotguns and that the plaintiff was not contributorily negligent.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âb.ÂX"ÂIt was not possible to pinpoint which defendant caused the injury. The injury was not indivisible because either defendant alone could have caused the injury.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âc.ÂX"ÂUnder normal BOP rules, since the plaintiff must prove cause in fact, the defendants would win because the plaintiff cannot make out a prima facie case. The chances are exactly 50/50 that one of the defendants was the actual cause, but the plaintiff must prove that it was at least 51% likely that one of them was the cause. (preponderance of the evidence)Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âd.ÂX"ÂThe court resolves this problem by invoking a special rule: it shifts the BOP to the defendants after the plaintiff shows that they were both negligent to show that one of them was not the actual cause. [Again, the court prefers to find for innocent plaintiffs over negligent defendants when other things are equal.]Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âe.ÂX"ÂBoth end up being liable even though we are certain that one of them did not cause the plaintiff's injuries, and therefore is not responsible.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂIs this fair?Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂYes©ÂXhh(ÂPretty negligent to fire a gun in the direction of another person.Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX" ©ÂXhh(ÂNon©causal defendant rendered plaintiff incapable of proving that the other defendant was the cause in fact due to his negligence.Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ Âf.ÂX"ÂSuppose the court found a potential third party who could have also caused the injury. Could ÃÃSummersÄÄ be distinguished?Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"©ÂXhh(ÂProbably not. Though the probabilities are no longer 50/50, it would still be more likely than not that the defendants were responsible for Summers's injury, and therefore he is entitled to have the CIF burden shifted to the defendants.Æ(#hÆ ÂXÂÂX` ` Â10.ÂX¸ ¸ ÂZelenak's matrixÆ(#¸ Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÃÃ2 defendants 1 defendant, 1 natural causeÄÄÆ(#¸ Æ ÂXÂMergedÆ(#Æ causes ¸ ¸ ÂÃÃLandersÄÄ°hh(ÂÂXÀÀ-ÂÂX3ÂÃÃAndersonÄÄÆ(#Æ ÂXÂOne causeÆ(#Æ ÂXÂbut Æ(#Æ ÂXÂuncertain°¸ ¸ ÂÃÃSummersÄÄ°hh(ÂÂXÀÀ-ÂÂX3ÂÃÃHerskovitesÄÄÆ(#ÆÔH&0*''@@ÔŒÂXÂas toÆ(#Æ ÂXÂwhich itÆ(#Æ ÂXÂwasÆ(#Æ ÂXÂÂX` ` Â11.ÂX¸ ¸ ÂÃÃHerskovits v. Group Health CooperativeÄÄÆ(#¸ Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âa.ÂX"ÂThis wrongful death action was filed against GHC for failing to make a timely diagnosis of cancer in the decedent. Because the decedent's cancer was not diagnosed earlier, his 5 year life expectancy decreased from 39% to 25%. He dies within 5 years, and the estate sues. The trial court granted summary judgment after reasoning that more likely than not (81%) that malpractice was not the cause in fact of the plaintiff's death.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âb.ÂX"ÂThe WA S.Ct. reverses and allows the case to go to trial.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â(1)ÂXhh(ÂIf this case is reasoned similar to ÃÃSummersÄÄ in finding that the defendant's negligence obscured the causal issue, then the decision is poorly reasoned: the obscuring of the cause in fact has not deprived the decedent of any right. He cannot sue nature.Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â(2)ÂXhh(ÂMajority opinion: The plaintiff might be able to prove that without negligence, he might have lived 4 years, while with negligence he would have lived for three years. The remedy would then be to compensate him for the year of life he lost.Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â(3)ÂXhh(ÂConcurring opinion uses the minority rule: Lost chance analysis.Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(ÂTotal recovery = $1,000,000 value of plaintiff's lifeÆ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(ÂExpected value = (.39)(1,000,000)Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(ÂÃÃReceived value = (.25)(1,000,000)ÄÄÆ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(ÂDamages °3ÂÂXpp9Â= $140,000 for his lost chances.Æ(#pÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(ÂHowever, lost chance analysis works better when the plaintiff is still alive.Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ Âc.ÂX"ÂMajority rule: All or nothing 50% testÆ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â(1)ÂXhh(ÂIf it was more than 50% likely that the defendant's negligence was the cause in fact, then liability is imposed.Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â(2)ÂXhh(ÂIf it was not more than 50% likely that the defendant's negligence was the cause in fact, then liability is not imposed.Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂHyp: A single defendant who has caused much injury to a large group of plaintiffs (1000 people): The defendant gets off because none of them can prove that because of the defendant's negligence that they had a chance of death exceeding 51%.Æ(#ÆÔH&0*''@@ÔŒÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â1000 plaintiffs suing over a drug suspected of causing cancer in themÆ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â700© Would have gotten cancer anywayÆ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â300©ÂXhh(ÂDrug was a but©for cause of their cancerÆ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂBut, since the individuals for whom the drug was a but for cause cannot be identified, the defendant stands to pay nothing. However, this seems unfair. A better result would be to pay 30% of $1,000,000 (life value) to each plaintiff.Æ(#Æ ÂXÂH.ÂX` ` ÂProximate causeÆ(#` Æ ÂXÂÂX` ` ÂA.ÂX¸ ¸ ÂProximate cause is basically legally relevant causation. It is basically a à Ãpolicy decisionÄ Ä by the courts concerning where the causality chain should be cut off rather than a logical element. Thus, it is possible that the defendant could have been negligent and to have been the cause in fact of the plaintiff's harm, but for reasons of policy, liability should not be imposed, for otherwise the chain of causality would be too long and the negligence too remote.Æ(#¸ Æ ÂXÂÂX` ` ÂB.ÂX¸ ¸ ÂCompeting proximate cause analyses: Direct cause vs. Foreseeability analysis (risk rule).Æ(#¸ Æ ÂXÂÂX` ` ÂÂX¸ ¸ Â1.ÂX"ÂDirect cause: ÃÃPolemisÄÄÆ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Âa.ÂXhh(ÂGasoline was stored in the hold of hold of the plaintiff's ship. The gasoline leaked and the hold filled with gasoline vapor. While in port, the defendant negligently knocked planks into the hold. The expected harm was mechanical, but the planks produced a spark which ignited the gasoline, a totally different harm from that which was foreseen.Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Âb.ÂXhh(ÂQuestion: Is liability limited to reasonably expected harms or expanded to include all harm, foreseeable or not?Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Âc.ÂXhh(Â[If this were negligence per se, and the statute violated was intended to protect people from getting bumped on the head, there would be no liability because the resulting class of harm was not the type intended to be prevented.]Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Âd.ÂXhh(Âà ÃDirect cause ruleÄ Ä: Once negligence is shown, then if the defendant could foresee à ÃanyÄ Ä harm resulting from his negligence, then he is liable for à ÃallÄ Ä ensuing harm, even those harms which are unforeseeable, but so long as the harm was not too remote.Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(Â"The proximate cause of an injury is that which, in a natural and continuous sequence, unbroken by any efficient intervening cause, produces an injury, and without which the injury would not have occurred."Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Âe.ÂXhh(ÂDoes ÃÃPolemisÄÄ do away with proximate cause analysis?Æ(#hÆÔH&0*''@@ÔŒÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(ÂNO©ÂXÀÀ-ÂIt does reject class of harm theory, but it substitutes in its place direct causation (a particularly vague test.)Æ(#ÀÆ ÂXÂÂX` ` ÂÂX¸ ¸ Â2.ÂX"ÂForeseeability analysis (Risk rule): ÃÃWagon MoundÄÄÆ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Âa.ÂXhh(ÂThe plaintiff was the owner of a timber wharf, and the defendant was the charterer of the Wagon Mound (an oil burning vessel)Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Âb.ÂXhh(ÂThe defendant negligently allowed a large amount of oil to spill into the bay, and it congealed around the defendant's dock (This damage was foreseeable). The defendant had some welding being performed on his dock. The plaintiff asked Caltex oil if it was safe to continue welding, and Caltex gave its assurances of safety, stating that oil on water cannot reach combustion temperature. However, under the oil there was a piece of debris floating. On it was a wad of cotton. Molten metal dripped on it and set it on fire. The burning cotton then set the oil on fire, resulting in severe damage to the wharf.Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Âc.ÂXhh(ÂThe trial court that the defendant did not and could not have reasonably foreseen that the oil would catch fire. But since some damage was foreseeable (congealed oil in the boat slips), the direct causation test from ÃÃPolemisÄÄ applied. The court thus imposed liability for the fire damage on the plaintiff.Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Âd.ÂXhh(ÂOn appeal, the trial court's decision was reversed. The court reviewed several cases that appeared to be inconsistent with ÃÃPolemisÄÄ. Scholarly theories of causation appear to have distracted the ÃÃPolemisÄÄ court. Prior to ÃÃPolemisÄÄ, the courts imposed the same damages for breach of contract and tort. In ÃÃHadley v. BaxendaleÄÄ, a contract case decided before ÃÃPolemisÄÄ, the plaintiff pleaded tort and breach of contract in the alternative. The court would not have imposed liability for unforeseeable damages in breach of contract had they pursued such damages. ÃÃPolemisÄÄ did not cite this case. ÃÃPolemisÄÄ had been weakened in later cases for its scant and terse discussion. The rule it lays down has been criticized as manifestly unjust in that it holds persons liable for all harm foreseen and unforeseen as a result of negligence that causes some foreseeable harm, so long as the unforeseen harm can be deemed direct. It clashes with the principle of civil liability that a person is responsible for the probable consequences of his acts. Persons are responsible for the foreseeableÔH&0*''@@Ô consequences of their acts because of the reasonable person standard. Foreseeability of harm is a good liability limiting device.Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Âe.ÂXhh(ÂThe court substitutes the direct cause rule for the à Ãreasonable foreseeability analysisÄ Ä. Liability cannot be evaluated acontextually from the damage caused. In determining liability for unforeseeable damages, it is irrelevant that he is liable for foreseeable damages.Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Âf.ÂXhh(Âà ÃReasonable foreseeability analysis (risk rule) Ä Ä: a defendant is liable only for those harms which are a reasonably foreseeable consequence of his negligence.Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Âg.ÂXhh(ÂRationale for the opposite result: Under the court's ruling, an innocent plaintiff is forced to bear the costs resulting from defendant's trivial negligence. As for who should bear the loss ceteris paribus, the defendant should bear it.Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Âh.ÂXhh(ÂPolicy arguments:Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(Â(1)ÂXÀÀ-ÂÃÃPolemisÄÄ encourages excessive overcautiousness; nobody would do anything for fear they would be liable for some unforeseen harm caused by some negligent act they perform.Æ(#ÀÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(Â(2)ÂXÀÀ-ÂIf the fault does not relate to the harm, then there is no connection, and imposing liability dilutes impact and meaningfulness of à ÃfaultÄ Ä. Fault becomes irrelevant.Æ(#ÀÆ ÂXÂÂX` ` ÂÂX¸ ¸ Â3.ÂX"ÂCircumventing ÃÃPolemisÄÄ: ÃÃPalsgraf v. Long Island RailroadÄÄÆ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Âa.ÂXhh(Â[A Judge Cardozo special]. The plaintiff was standing on the defendant's platform waiting for a train. A train stopped, and two men rushed to get on. The first made it, but the second made it only when the train started to move, and he needed to be helped on. While he was being helped on, he dropped his package onto the tracks. The package contained fireworks, and upon contact with the ground the package exploded. The explosion knocked down some scales and injured the plaintiff.Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Âb.ÂXhh(Â1st argument: If this were an intentional tort, plaintiff would lose. Liability for negligent torts can be no higher than that required for intentional torts. Accordingly, he finds no liability.Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Âc.ÂXhh(Â2d argument: Pays lip service to direct cause test in ÃÃPolemisÄÄ, but he distinguishes between negligence with respect to whom and what interests. Was the defendant negligent to her? InÔH&0*''@@Ô answering that, did the defendant invade a significant interest in property of hers? NO. There is no such thing as "negligence in the air." The defendant did invade an insignificant interest and that resulted in unforeseeable harm, but that invasion was not negligent. Cardozo goes out of his way to say that this is case turns on negligence and not proximate cause. He thus can avoid having to deal directly with ÃÃPolemisÄÄ, which was the rule in NY at the time.Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(Âà ÃForeseeability of the riskÄ Ä vs. à ÃForeseeability as to the plaintiffÄ Ä.Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Âd.ÂXhh(ÂCardozo's analysis is similar to negligence per se analysis (class of persons protected/class of harms prevented)Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Âe.ÂXhh(Â[Her theory of negligence should have been that the scales were improperly fixed to the platform. She might have had a better chance as proving negligence towards her under that theory.]Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(©ÂXÀÀ-ÂIt is important to think hard about your theory of negligence. What exactly did the defendant do wrong? Look for those theories which give you the proximate cause you need along with cause in fact and negligence.Æ(#ÀÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Âf.ÂXhh(ÂNegligence towards the plaintiff remained the law in NY for a short time after ÃÃPalsgrafÄÄ. Foreseeability analysis (Risk rule) applies to determine the persons within the risk. Once the plaintiff is in the risk and some harm was foreseeable, then ÃÃPolemisÄÄ applies, and the defendant is liable for directly caused hard, foreseen and unforeseen. If there is no harm to the plaintiff, then there is no negligence as to the plaintiff and under ÃÃPalsgrafÄÄ, the plaintiff loses.Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Âg.ÂXhh(ÂUnder ÃÃPolemisÄÄ, if you are negligent towards anyone, then the direct cause requirement is satisfied.Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ Â4.ÂX"ÂWhy spend time discussing both these rules? It is not clear that either is the dominant rule in the US. In no jurisdiction is either completely the law. It is usually unclear which rule applies.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ Â5.ÂX"ÂÃÃHughes v. Lord AdvocateÄÄ: Applying ÃÃPolemisÄÄ with a vengeance.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Âa.ÂXhh(ÂDefendant was a municipality whose employees left a manhole open. The plaintiff was a boy burned shortly after crawling in the manhole by ignited kerosene vapor from a lamp that had fallen into the manhole.Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Âb.ÂXhh(ÂThe court found that the burning was foreseeableÔH&0*''@@Ô and thus in the risk, but the explosion was not, and thus outside the risk.Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Âc.ÂXhh(ÂAt what level of generality do we describe the harm? The court concluded that the proper level of generality is the harm from burning. "This accident was caused by a known source of danger, but caused in a way which could not have been foreseen...[and] that [should afford] no defense." An explosion was just one of the ways that burning could have been caused by a defective kerosene lamp.Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ Â6.ÂX"ÂRestatement ÀÀ435(1) Pg 212Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â"If the actor's conduct is a substantial factor in bringing about harm to another, the fact that the actor neither foresaw nor should have foreseen the à Ãextent of the harmÄ Ä or à Ãthe manner in which it occurredÄ Ä does not prevent him from being liable."Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"©ÂXhh(ÂExtent of harm: irrelevantÆ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"©ÂXhh(ÂManner of harm: irrelevantÆ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"©ÂXhh(ÂGeneral nature of the harm: RELEVANTÆ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂThis rule is consistent with ÃÃHughesÄÄ: choose the broader class of harm of "burning" in lieu of more narrow class of harm of "explosion". Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂUnfortunately, nothing as a matter logic tells us what the proper level of generality should be. It may come down to intuition, common sense, and possible who can file the first brief defining the class of harm.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ Â7.ÂX"ÂÃÃDoughty v. Turner ManufacturingÄÄÆ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Âa.ÂXhh(ÂDefendant maintained two vats of molten liquid at 800 degrees C for his manufacturing process. The vats were covered by lids made of asbestos and cement. One of the workers knocked a cover into one of the vats, and the lid sank without splashing any molten liquid. However, the heat caused the material in the lid to undergo a chemical reaction producing a burst of water vapor. The water vapor erupted, sending molten liquid onto the plaintiff.Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Âb.ÂXhh(ÂOn appeal, the court reasoned that though splashes were a reasonably foreseeable consequence of a falling cover, eruption due to the obscure chemical reaction was not foreseeable. Though the plaintiff argues that the eruption was merely a "variant of the foreseeable" and therefore liability should be imposed, the court disagrees by saying such a holding would be unrealistic. It therefore affirmed the judgment for the defendant.Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Âc.ÂXhh(Â[This case is similar to ÃÃHughesÄÄ in that it has to do with how broadly or narrowly the class of harmÔH&0*''@@Ô is defined. By narrowing the scope of harm to splashes, as the only foreseeable harm, the court essentially makes it impossible for the plaintiff to prove proximate cause. However, had the court described the general nature of harm as the possibility that molten liquid would be thrown up on the plaintiff causing burns, either by splash or eruption, then the court might have been able to find the defendant liable by holding that the general nature of harm was foreseeable. Indeed, the plaintiff essentially tried to argue this, but the court was unconvinced.]Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ Â8.ÂX"ÂThin skull rule: If you are negligent in any way which would have resulted in injury to a normal person, but the person had a special susceptibility to injury (eggshell skull), you are liable for à ÃallÄ Ä injuries sustained by the plaintiff. Essentially, the rule says that tortfeasors take their victims as they find them.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"©ÂXhh(ÂThe thin skull rule can be viewed as consistent with the risk rule if you consider that the rule merely broadens the definition of the class of harm (Broad: head injury/Narrow: death from a caved in skull). Otherwise, the thin skull rule appears to be an exception to the risk rule.Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"©ÂXhh(ÂThe thin skull rule seems to be an unfair rule. The plaintiff's thin skull ends up being the defendant's problem. It is not the defendant's fault that the plaintiff has a thin skull. Should not damages be limited by fault as well as the harm done? Additionally, the life of a plaintiff with a thin skull is not worth as much as the life of a normal person without the same condition, so the thin skilled plaintiff has not lost much.Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ Â9.ÂX"ÂFire casesÆ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Âa.ÂXhh(ÂDefendant negligently causes a fire. Some damages are foreseeable, but the damage expands far beyond what was foreseeable. For instance, the fire may destroy adjacent property. According to the fire rule, the defendant ought to be liable, since the ensuing damage was a direct cause of the defendant's negligence (ÃÃPolemisÄÄ).Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Âb.ÂXhh(ÂThe counterargument to this rule would be to argue that under ÃÃPalsgrafÄÄ, the defendant should not be liable for the damage to the adjacent property since the defendant was negligent towards the first plaintiff only and not towards the second defendant. (Draw an exclusive class of persons subject to harm rather than a broad class.)Æ(#hÆÔH& 0*''@@ÔŒÂXÂÂX` ` ÂÂX¸ ¸ Â10.ÂX"ÂApplying and qualifying the direct cause ruleÆ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Âa.ÂXhh(ÂIn practice, the direct cause rule comes down to a question of whether after the defendant's negligent act, does another person commit a wrongful act that becomes an "efficient intervening cause" that may cut off the 1st tortfeasor's liability.Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Âb.ÂXhh(ÂForeseeability and liability for the intentional/reckless/wilful/wanton intervening causes of others.Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(Â(1)ÂXÀÀ-ÂÃÃWatson v. KY and IN Bridge and RailroadÄÄÆ(#ÀÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(ÂÂXÀÀ-Â(a)ÂX3ÂA man throws a match into a derailed gasoline car, causing it to explode and injure the plaintiff.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(ÂÂXÀÀ-Â(b)ÂX3ÂThe court holds that as a matter of law, you are not required to foresee the intentional torts of others, and accordingly, you are not liable for the ensuing damages.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(Â(2)ÂXÀÀ-ÂÃÃWalker v. BurgdorfÄÄÆ(#ÀÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(ÂÂXÀÀ-Â(a)ÂX3ÂBurgdorf was draining gas that had been contaminated with water from a gas tank onto the ground. Burgdorf observed Shaw who was smoking and he asked the man not to smoke in such a close proximity to the gasoline. Shaw defiantly rejoined that Gas and water would not burn, and to prove his point he threw a match into the mixture. The match set the gasoline on fire, destroying the plaintiff's truck.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(ÂÂXÀÀ-Â(b)ÂX3ÂThe court held Shaw's act was not a à Ãsupervening causeÄ Ä, and Burgdorf was liable for the damages. The court invoked the principle of concurrent negligence and held that the negligence of both persons contributed to the plaintiff's harm. Even though Burgdorf could not have foreseen Shaw's reckless act, the danger that gasoline drained upon the ground might be ignited from some source was perfectly obvious.ÆÐ Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(Â(3)ÂXÀÀ-ÂDistinguishing the two casesÆ(#ÀÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(ÂÂXÀÀ-Â(a)ÂX3ÂIntentional torts vs. reckless (negligent) tortsÆ(#ÆÔH&!0*''@@ÔŒÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(ÂÂXÀÀ-ÂÂX3ÂAs far as who should bear the loss, the person with the most fault ought to have to bear it. This would mean since Shaw acted recklessly, he ought to have to bear the loss. However, if Shaw is judgment proof, the next culpable tortfeasor in line is Burgdorf, and between an innocent plaintiff and a negligent defendant, the court is more likely than not to make the negligent party bear the loss. But is all are solvent, Shaw ends up bearing the loss.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(ÂÂXÀÀ-Â(b)ÂX3ÂBurgdorf could always implead Shaw as a joint and several tortfeasor and require that he make a contribution towards the plaintiff's damages. He also might seek indemnification from Shaw.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(ÂÂXÀÀ-Â(c)ÂX3ÂÃÃWalkerÄÄ appears to be applying a hybrid proximate cause analysis (à Ãforeseeability of intervening causeÄ Ä)Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(ÂÂXÀÀ-ÂÂX3ÂThe general nature of the intervening cause must be foreseeable. If you spill gas, it is possible that something could ignite it causing damage.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(Â(4)ÂXÀÀ-Âà ÃForeseeability of intervening causeÄ Ä: Was it foreseeable that the à Ãgeneral natureÄ Ä of the intervening cause might occur?Æ(#ÀÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(Â(5)ÂXÀÀ-ÂWith respect to ÃÃWatsonÄÄ, though you are never required to anticipate the intentional wrongful acts of others, that is not enough to cut off liability. The unforseeability of the intentional torts of others no longer eliminates proximate cause. [Hotel security cases: the defendant is almost always held liable.]Æ(#ÀÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Âb.ÂXhh(ÂGeneral nature of the harm vs. Specific cause of harmÆ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(Â(1)ÂXÀÀ-ÂÃÃDeridian v. Felix Contracting CorpÄÄÆ(#ÀÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(ÂÂXÀÀ-Â(a)ÂX3ÂFelix was installing a gas main under a roadway. Bayside was hired to seal the main. Felix told Deridian, a Bayside employee, to set up the enamel near the oncoming traffic. Deridian did so, but under protest. The place where Felix had him set up the enamel potÔH&"0*''@@Ô was unprotected from oncoming traffic. An epileptic driver had a seizure, and his car careened out of control into the worksite, knocking over the enamel pot, seriously injuring the plaintiff.ÆÐ Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(ÂÂXÀÀ-Â(b)ÂX3ÂThe plaintiff pressed three theories of negligence: No physical barricade (dirt pile or truck), insufficient number of flagmen, and no warning signs. The last two could not be causes in fact of an epileptic's car careening into the work area.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(ÂÂXÀÀ-Â(c)ÂX3ÂTest: Was the general nature of the harm caused by the intervening event a foreseeable consequence of the defendant's negligent act of not providing a barricade? Instead of keying on the particular manner of the harm (an epileptic careening out of control), the court focuses on the general nature of the harm (a car entering the work area at high speed) and finds that the general nature of the intervening cause was foreseeable. But for not providing a barricade this accident probably would not have happened. The court refuses to break the harm down into particular manners. [Similar reasoning should be used for proximate cause analysis.]Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(Â(2)ÂXÀÀ-ÂÃÃPacific T&TÄÄ case: Plaintiff was using one of the defendant's phone booths, and this phone booth happened to be situated near a street. A car left the roadway and collided with the phone booth, injuring the plaintiff. Plaintiff argued that this sort of harm was foreseeable since the phone booth was so close to the street and that the phone booth was so designed that it was difficult for the occupant to exit in an emergency. The court held the defendant liable. [Reagan held up this case as ridiculous.] Æ(#ÀÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(Â(3)ÂXÀÀ-ÂÃÃSheehan v. NYCÄÄÆ(#ÀÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(ÂÂXÀÀ-Â(a)ÂX3ÂA city bus was stopped in a lane of traffic, a violation of a localÔH&#0*''@@Ô ordinance (negligence per se). A city sanitation truck with defective brakes collided with the rear end of the bus. The jury decided against the transit authority and the city, but the judge set aside the verdict against the transit authority.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(ÂÂXÀÀ-Â(b)ÂX3ÂAs a matter of law, proximate cause was absent.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(ÂÂXÀÀ-ÂÂX3ÂClass of harm prevented by ordinanceÆ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(ÂÂXÀÀ-ÂÂX3Â(1)ÂXpp9ÂGuard against rear end collisions (favors plaintiff)Æ(#pÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(ÂÂXÀÀ-ÂÂX3Â(2)ÂXpp9ÂProtect persons boarding and deboarding (favors defendant)Æ(#pÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(ÂÂXÀÀ-ÂÂX3Â(3)ÂXpp9ÂPrevent traffic obstructions (no safety purpose)Æ(#pÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(ÂÂXÀÀ-ÂÂX3ÂThe court concludes that though the manner of harm was within the range of the foreseeable, there was no proximate cause. [This case is in contrast to ÃÃDeridianÄÄ where the manner of harm was deemed to be irrelevant; only the general nature of the harm mattered in the analysis.]Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(ÂÂXÀÀ-Â(c)ÂX3ÂIntervening causesÆ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(ÂÂXÀÀ-ÂÂX3Â(1)ÂXpp9ÂConcurring causes: J&S liabilityÆ(#pÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(ÂÂXÀÀ-ÂÂX3Â(2)ÂXpp9ÂSupervening causes: Only the second tortfeasor is liable.Æ(#pÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Âc.ÂXhh(ÂCasting the class of harm in narrow termsÆ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(Â(1)ÂXÀÀ-ÂÃÃVentricelli v. Kinney System Rent a CarÄÄÆ(#ÀÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(ÂÂXÀÀ-Â(a)ÂX3ÂPlaintiff leased a car from the defendant. The car had a defective trunk lid which would pop up from time to time. The plaintiff went behind the car to close the trunk lid. The car behind him lurched forward and seriously injured the plaintiff. The plaintiff sues Kinney for damages.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(ÂÂXÀÀ-Â(b)ÂX3ÂThe trial court held Kinney liable, but the court of appeals reverses. The court invoked à Ãposition of the risk analysisÄ Ä. The plaintiff was standing somewhere he might have been standing anyway. The court thus describes the class of harm in extremely narrow terms.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(ÂÂXÀÀ-ÂÂX3ÂNarrow: Plaintiff might get hit while fixing the trunk lid.Æ(#ÆÔH&$0*''@@ÔŒÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(ÂÂXÀÀ-ÂÂX3ÂBroad: Plaintiff might get hit while fixing the trunk lid while standing in a parking place.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(ÂÂXÀÀ-ÂÂX3ÂThis court bucks the usual practice of broadly describing the class of harm by opting for a narrow description and decides that it was not foreseeable. It argues that he was in a relative place of safety at the time (as opposed to being on the shoulder of a superhighway), and that negates proximate cause.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(ÂÂXÀÀ-Â(c)ÂX3ÂJudge Fuchsberg dissents: he would hold opted for the broad description of the class of harm and held that it was foreseeable.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(Â(2)ÂXÀÀ-ÂÃÃCopple v. WarnerÄÄ: Collision between plaintiff and defendant. Plaintiff not injured. While at the scene, another car comes along, crosses lanes, and collides with plaintiff's car injuring her. The court holds that it was not foreseeable that someone would cross the center line and crash (narrow description of harm/no position of increased risk with regard to this injury) [Was it foreseeable that the general type of harm might result? Probably.]Æ(#ÀÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(Â(3)ÂXÀÀ-ÂWhat is the appeal of the narrow description?Æ(#ÀÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(ÂÂXÀÀ-Â(a)ÂX3Â2d defendant's action was totally bizarre.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(ÂÂXÀÀ-Â(b)ÂX3ÂWrongfulness of 2d defendant's act: it is not fair to force his wrongfulness onto the 1st defendant.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ Â***ÂX"ÂMost of the time when there is a close proximate cause question, who wins depends on how broadly the court describes the class of harm (manner vs. general nature). If you can get the court to accept your description of the class of harm, you have a good chance of winning, especially if you can get the first word in.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Âd.ÂXhh(ÂPosition of risk/zone of danger analysisÆ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(Â(1)ÂXÀÀ-ÂÃÃMarshall v. NugentÄÄ: Snowy December day in NH; the road was packed with snow and ice. As the plaintiff's vehicle was approaching the apex of a hill, the defendant's truck came over the hill straddling the center line, and it forced the plaintiff off the road. While the defendant was attempting toÔH&%0*''@@Ô get the plaintiff's car back on the road, the plaintiff went out on the road to warn other drivers of the defendant's truck. Another truck swerved to avoid the defendant's truck hitting the plaintiff. Plaintiff sues the first truck driver.Æ(#ÀÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(ÂÂXÀÀ-ÂObservationsÆ(#ÀÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(ÂÂXÀÀ-Â(a)ÂX3ÂThe court adopts risk analysis. The plaintiff was put into a position of high risk by the defendant's negligence. [The defendant's negligence created a zone of danger whereby the plaintiff was put at increased risk.] The court held the defendant liable.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(ÂÂXÀÀ-Â(b)ÂX3Â1st observation: If this accident had occurred 5 miles down the road, there would be no proximate cause (plaintiff no longer within zone of danger/increased risk created by the defendant.)Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(ÂÂXÀÀ-Â(c)ÂX3Â2nd observation: Relationship to the rescue doctrine© any negligence creates a situation inviting rescue and potential injury to a rescuer even though rescue is not foreseeable.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(ÂÂXÀÀ-ÂÂX3ÂRescue rule not needed:Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(ÂÂXÀÀ-ÂÂX3©ÂXpp9ÂThe second defendant was also negligent. The plaintiff was within the primary risk.Æ(#pÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(ÂÂXÀÀ-ÂÂX3©ÂXpp9ÂIt was foreseeable that a flagman would be needed.Æ(#pÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(ÂÂXÀÀ-Â(d)ÂX3Â3rd observation: This is a wellªreasoned case, according to Zelenak.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(ÂÂXÀÀ-ÂÂX3©ÂXpp9ÂMagic words do not solve cases.Æ(#pÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(ÂÂXÀÀ-ÂÂX3©ÂXpp9ÂHypothetical in (a)Æ(#pÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(ÂÂXÀÀ-ÂÂX3©ÂXpp9ÂGives us reasoning and analysis, not just personal opinion.Æ(#pÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Âe.ÂXhh(ÂHypothetical on page 226: Boys steal the defendant's car. Defendant has negligently left his keys in the ignition. 100 miles away the boys run over a pedestrian killing him. Is the defendant car owner liable?Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(Â(1)ÂXÀÀ-ÂArguments for the defendantÆ(#ÀÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(ÂÂXÀÀ-Â(a)ÂX3ÂTermination of the risk: Accident happened too far awayÆ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(ÂÂXÀÀ-Â(b)ÂX3ÂNarrow the class of harm: define it narrowly and conclude that it was notÔH&&0*''@@Ô foreseeable.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(ÂÂXÀÀ-Â(c)ÂX3ÂTo whom is leaving the keys in the ignition being negligent? Only the driver.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(Â(2)ÂXÀÀ-ÂPlaintiff's argumentÆ(#ÀÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(ÂÂXÀÀ-Â(a)ÂX3ÂPaint the class of harm in broad terms (general nature of the harm). Are thieves by nature more dangerous drivers?Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(Â(3)ÂXÀÀ-ÂTermination of the riskÆ(#ÀÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(ÂÂXÀÀ-Â(a)ÂX3ÂGetaway period overÆ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(ÂÂXÀÀ-Â(b)ÂX3ÂSooner or later, thief will get the car. Special risk created by the defendant's negligence is voided after a decent interval.ÆÐ Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Âf.ÂXhh(ÂÃÃLynch v. FisherÄÄÆ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(Â(1)ÂXÀÀ-ÂDefendant left truck parked on the right side of the highway, and Gunter was injured when he collided with it. The plaintiff stopped and helped Gunter out of the car. After finding Gunter's gun, the plaintiff hands it to Gunter. Deranged from shock, Gunter fires the gun at the plaintiff, injuring him. Plaintiff sued the owner of the truck.Æ(#ÀÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(Â(2)ÂXÀÀ-ÂNot an intentional tort© does not cut off the defendant's liability even if it is not foreseeable (The court does not apply foreseeability analysis. Under foreseeability analysis, it will depend on how broadly the class of harm is described.Æ(#ÀÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(ÂÂXÀÀ-©ÂX3ÂPossibility of rescuer injury ©> Defendant loses.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(ÂÂXÀÀ-©ÂX3ÂPossibility of intentional tort to rescuer ©> Defendant wins.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(Â(3)ÂXÀÀ-ÂThe rescue doctrine is inapplicable: the rescue is over, and the plaintiff was not injured during the course of the rescue.Æ(#ÀÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Âg.ÂXhh(ÂSecond injury doctrineÆ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(Â(1)ÂXÀÀ-ÂThe plaintiff is injured by the defendant's negligence, and the plaintiff is given substandard medical care that aggravates the injury.Æ(#ÀÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(ÂÂXÀÀ-ÂEstablished law: The original defendant is liable for the entire injury, including the aggravation. Negligent medical care is deemed to be foreseeable.Æ(#ÀÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(Â(2)ÂXÀÀ-ÂThis rule is similar to the thin skull rule: it avoids the need for the jury toÔH&'0*''@@Ô apportion damages according to the amount of injury the defendant actually causes.Æ(#ÀÆ ÂXÂI.ÂX` ` ÂDefenses to negligent conductÆ(#` Æ ÂXÂÂX` ` Â1.ÂX¸ ¸ ÂContributory negligenceÆ(#¸ Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âa.ÂX"ÂContributory negligence is the failure to exercise due care for your own safety. Where the classic implementation is still used, a finding of contributory negligence completely bars the plaintiff from recovering. Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âb.ÂX"ÂÃÃButterfield v. ForesterÄÄ: Defendant negligently left several poles across a roadway, and the poles were visible from 100 yards distant. The plaintiff came along riding at full gallop, ran into the poles, and was seriously injured. The court bars the plaintiff from recovering by holding that the accident was partly the plaintiff's own fault. He failed to exercise due care for his own safety (contributorily negligent). (This case is considered to be the first contributory negligence case.)Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂThree questionsÆ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â(1)ÂXhh(ÂIf both are negligent, does the fault principle justify making the plaintiff bear the entire cost of his own injuries? NO. The remedy is not apportioned according to fault. Contributory negligence bars recovery completely. The regime of comparative negligence is more in line with the fault principle in that it apportions liability according to the fault of each party.Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â(2)ÂXhh(ÂAre there any other fault analyses that would justify contributory negligence?Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(Â(a)ÂXÀÀ-ÂÃÃStinett v. BucheleÄÄ where there is no negligence on the part of the defendant.Æ(#ÀÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(Â(b)ÂXÀÀ-ÂÃÃPolemisÄÄ brand direct cause?Æ(#ÀÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(Â(c)ÂXÀÀ-ÂSupervening causes?Æ(#ÀÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(Â(d)ÂXÀÀ-ÂIf neither are at fault, the loss should stay where it was incurred and the judicial machinery should not be cranked up. We shift liability only if one party is more at fault than the other.Æ(#ÀÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â(3)ÂXhh(ÂProximate cause question: suppose an innocent child is injured by the plaintiff's horse falling, and the child sued both Butterfield and ForesterÆ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(ÂForester: Was it reasonably foreseeable that some nut riding at full gallop would fall over the pole? NOÆ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(ÂButterfield: Was the rider à ÃnegligentÄ Ä? [I would say so. Riding at full gallop can be dangerous to people in the roadway.]Æ(#hÆ ÔH&(0*''@@ÔŒÂXÂÂX` ` ÂÂX¸ ¸ Âb.ÂX"ÂÃÃBorland v. GillespieÄÄ: Defendant negligently collides with the plaintiff's car and then flees. Though her car is damaged, the plaintiff attempts to pursue the defendant to get his license plate. She loses control of her vehicle and collides with a tree. The court holds that there was not proximate cause, and so she must lose. But, the court could have applied contributory negligence and arrived at the same result. (However, if NE were a comparative negligence state, it would matter which analysis the court used. Under comparative negligence she may have gotten some recovery, but under the proximate cause analysis, she would be completely barred from recovery.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ Âc.ÂX"ÂDoctrines to ameliorate the harsh result of the contributory negligence rule.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â(1)ÂXhh(ÂLast clear chance/discoverable peril rule:Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(ÂIf the defendant had the last clear chance to avoid injuring the plaintiff, then the plaintiff may recover despite his own contributory negligence. This rule applies when a plaintiff is rendered helpless, even through his own contributory negligence, and the defendant is negligent after he à Ãshould have detectedÄ Ä the plaintiff. Accordingly, the defendant is liable for failing to detect the plaintiff and taking action to save his life.Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â(2)ÂXhh(ÂDiscovered peril doctrine: Similar to last clear chance, but the defendant's duty accrues only after he à ÃactuallyÄ Ä discovers the helpless plaintiff.Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"©ÂXhh(ÂWhy these two rules?Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(©ÂXÀÀ-ÂStill stuck in the liability/no liability mindset© This was an early ameliorative rule.Æ(#ÀÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(©ÂXÀÀ-ÂDoes not fit easily under proximate cause analysis. If this were a proximate cause doctrine, we would want to know about foreseeability of the defendant's actions (train coming). LCC does not ask this question.Æ(#ÀÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â***ÂXhh(ÂHowever, if the plaintiff is not helpless and is able to remove himself from the impending danger, and the defendant has not actually discovered the plaintiff, LCC does not apply.Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(ÂBUT IF the defendant discovers the plaintiff in time but he fails to take action to avoid hitting the plaintiff, then the plaintiff may recover despite his own inattentiveness.Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â(3)ÂXhh(ÂWilful/wanton misconduct (the culpability ladder): If the culpabilities of both parties areÔH&)0*''@@Ô equal, then they offset, but if the defendant's culpability is higher than the plaintiff's, then the plaintiff may recover.Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â(4)ÂXhh(ÂPolicy consideration: Duty upon the defendant to foresee the plaintiff's contributory negligence and to protect against it. To allow the defendant to invoke contributory negligence would in effect nullify the duty of the defendant to exercise due care for the plaintiff's safety.Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(ÂÃÃBexiga v. Havir ManufacturingÄÄÆ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(Â(a)ÂXÀÀ-ÂThe plaintiff's son was injured while operating a machine press made by the defendant. The machine had no safety devices. An expert testified that two safety devises could have prevented the accident (guard rail, separated buttons). The defendant plead contributory negligence.Æ(#ÀÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(Â(b)ÂXÀÀ-ÂThe court held that the defendant could not raise the defense, for if it could, then the duty upon the defendant to make safe products would be illusory. They are under a duty to foresee the plaintiff's own contributory negligence (through the fatigue of repetitive motion) and to design their products so as to prevent the plaintiff from injuring himself. In order to make the duty meaningful, we must deny the defense of contributory negligence.Æ(#ÀÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(ÂÂXÀÀ-©ÂX3ÂHigher level of culpability: Cost cutting at the expense of safety.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(ÂÂXÀÀ-©ÂX3ÂHow to develop a rule that minimizes the losses of hands: the parties will respond to legal rulesÆ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(ÂÂXÀÀ-ÂÂX3©ÂXpp9ÂThe plaintiff is already deterred from being unsafe: if he is not safe, he loses his hand.Æ(#pÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(ÂÂXÀÀ-ÂÂX3©ÂXpp9ÂCompany: They lose a worker if he loses a hand, but the worker is probably replaceable.Æ(#pÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(ÂÂXÀÀ-ÂÂX3ÂHowever, by imposing liability on the manufacturer as opposed to the operating company, we can better protect against machine operators losing their hands.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(Â(c)ÂXÀÀ-ÂÃÃBexigaÄÄ was probably a suit in addition to Workers Comp. à ÃTHINK!!! MULTIPLE CAUSES OF ACTION AND SOURCES OF LIABILITYÄ Ä.Æ(#ÀÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(Â(d)ÂXÀÀ-ÂDistilled ÃÃBexigaÄÄ rule: If it is reasonableÔH&*0*''@@Ô to impose a duty on the defendant to protect the plaintiff against his own contributory negligence, then contributory negligence is not a defense, for allowing the defense would negate the duty we just decided to impose.Æ(#ÀÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(ÂÃÃRue v. State Dept. of HighwaysÄÄÆ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(Â(a)ÂXÀÀ-ÂPlaintiff accidentally drove off the side of the highway. She struck a dangerous rut and flipped over. The question was whether or not it was foreseeable that she would flip if she drove off the highway.Æ(#ÀÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(Â(b)ÂXÀÀ- 2 argumentsÆ(#ÀÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(ÂÂXÀÀ-Â(1)ÂX3ÂNO: not foreseeable (prox cause/ÃÃWagon MoundÄÄ)Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(ÂÂXÀÀ-Â(2)ÂX3ÂNO: ÃÃBexigaÄÄ principle. If you were arguing for the state, you would cast the class of harm broadly (not necessarily just car flip, but any other damage as well.) (???????)Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(ÂÃÃWarner v. Kiowa City HospitalÄÄÆ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(Â(a)ÂXÀÀ-ÂPlaintiff had herself admitted to the hospital so they would protect her from herself. She ends up injuring herself because the staff does not have her restrained. After she sues, the hospital has the gaul to plead contributory negligence. The court applies ÃÃBexigaÄÄ and the plaintiff wins: duty to protect the plaintiff from her own contributory negligence.Æ(#ÀÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(Â2 features of the ÃÃBexigaÄÄ type case:Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(Â(a)ÂXÀÀ-ÂThe risks are non©reciprocal (Defendant imposes risks on plaintiff, but plaintiff imposes no risks on defendant.)Æ(#ÀÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(Â(b)ÂXÀÀ-ÂThe defendant has notice of the plaintiff's special vulnerability.Æ(#ÀÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(ÂÃÃLeRoy Fibre v. CM&S RRÄÄÆ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(Â(a)ÂXÀÀ-ÂThis was the case of the "stacked flax near the tracks." The plaintiff piles flax on his own property but near some railroad tracks. A train belonging to the defendant comes along, throws off sparks, and sets the flax on fire destroying it. The plaintiff sues, and the defendant pleads contributory negligence.Æ(#ÀÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(Â(b)ÂXÀÀ-ÂThe court finds for the plaintiff: to require him to look out for the negligence of others on his own land would effectively deprive him of his property rights.ÔH&+0*''@@Ô Contributory negligence is not available as a defense under these circumstances.Æ(#ÀÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(Â(c)ÂXÀÀ-ÂEfficiency vs. fairness: more economic analysis in the world of tort liability: The Coase theorem.Æ(#ÀÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(ÂÂXÀÀ-©ÂX3ÂSuppose it would cost LRF less to rent a warehouse for his flax than it would for the RR to pay damages. Then LRF becomes the cheapest cost avoider, and it would be economically inefficient to impose liability of the RR. Imposing contributory negligence would bring about the economically efficient result.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(ÂÂXÀÀ-©ÂX3ÂHowever, even though the court reaches the inefficient result, the parties can reach efficiency through bargaining or flat out bribery. The RR would simply offer to pay LRF a dollar amount between the cost of renting a warehouse but less than the cost of damages in order to persuade him to move the flax away from the tracks. As long as the parties can bargain costlessly, then the efficient result will be reached despite the inefficient placement of liability.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(ÂÂXÀÀ-Â***ÂX3ÂHowever, efficiency is not the only concern in the imposition of liability. Fairness also plays a role (in this case, LRF's property rights).Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(ÂÂXÀÀ-Â***ÂX3ÂAlso, transaction costs are often high, so the court had better get it right in the first place. Impose liability on the cheapest cost avoider if efficiency is all you are after.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(ÂÂXÀÀ-Â***ÂX3ÂThe Hand formula cannot be applied until you have made a primary determination of property rights.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(ÂÂXÀÀ-ÂÂX3Â$2000 (cost of warehouse < $15000 ©> impose contributory negligenceÆ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(ÂÂXÀÀ-ÂÂX3Â$2000 (cost of warehouse) not< $0 ©> do not impose contributory negligence (Property rights serve to negate any costs the RR might bear. Property rights trump the costs of others.)Æ(#Æ ÂXÂÂX` ` Â2.ÂX¸ ¸ ÂComparative negligenceÆ(#¸ ÆÔH&,0*''@@ÔŒÂXÂÂX` ` ÂÂX¸ ¸ Âa.ÂX"ÂComparative negligence is a reformed version of contributory negligence where the plaintiff is permitted to recover full damages minus the percentage of those damages attributable to his own fault.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂTwo forms of contributory negligenceÆ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â(1)ÂXhh(ÂPure comparative negligence:Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂRecovery = (damages)(percentage of defendant's fault)Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh( = (damages)(100%©% of plaintiff's fault)Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂThe NY Comparative negligence statute adopts this formula.Æ(#Æ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"Â(2)ÂXhh(ÂModified comparative negligenceÆ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(ÂIf the plaintiff's fault is below X% of the total negligence, then apply the comparative negligence formula above. However, if plaintiff's negligence exceeds X%, the apply old©fashioned contributory negligence and bar recovery.Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(ÂSplit between those jurisdictions fixing X at 50% and those fixing it at 49.999%Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ ÂÂX"ÂÂXhh(ÂWI's comparative negligence statute is an example of modified comparative negligence.Æ(#hÆ ÂXÂÂX` ` ÂÂX¸ ¸ Âb.ÂX"ÂÃÃBrittain v. BoothÄÄ: Plaintiff, an employee of Hartsook, entered an excavation which he knew not to be sloped or shored up. It caved in on him and he suffered sev