Torts Outline
Professor Pruitt
I. Battery
a.
Formal Definition
-An
actor is subject to liability to another for battery if 1 he acts intending to
cause a harmful or offensive contact with the person of the other or a third
person, or an imminent apprehension of such contact and 2. A harmful contact
with the person of the other directly or indirectly results
-offensive:
1. He acts intending to cause a harmful or offensive contact with the person of
the other or a third person, or an imminent apprehension of such a contact, and
2. An offensive contact with the person of the other directly or indirectly
occurs.
Elements
of battery:
1. Act (assume volitional, an act of will)
2. Intent to make harmful or offensive contact or create
imminent apprehension of harmful or offensive contact
3. Effect: harmful or offensive contact occurs
4. Causation
5. Harm/Damages
Generally
assume it is volitional, an act of will unless (few exceptions: D was under
hypnosis, involuntary muscle contraction, etc.)
INTENT:
Term or Art…Intent never stands alone in your analysis. Inextricably linked to
some consequence, effect, purpose.
BATTERY
TYPE INTENT
Act
(like a kick or punch) + intent (purpose or desire) to cause a harmful or
offensive contact or imminent apprehension of the same.
Vosburg
v. Putney
Act
+ unlawful act = unlawful intent = battery type intent
Garratt
v. Dailey
Act
(moving the chair) + substantial certainty that harmful offense contact will
occur = battery type intent
Privileges
Defendant
escapes liability even if elements of prima facie case present
2
methods: Consensual privileges, nonconsensual privileges
Consensual
Privileges
“Consent
is willingness in fact for conduct to occur.
It…need not be communicated to the defendant.”
Subjective
or consent in fact: Plaintiff’s willingness in fact for contact to occur.
Objective
or apparent consent: The perception of others regarding whether plaintiff
consented to the touching.
Objective
or apparent consent:
O’Brien
v. Cunard Steamship Co.
Plaintiff
traveling to America and received vaccination. Argues that there was battery. Court ruled that no battery took place
because from plaintiff’s conduct, it can be seen that she consented to the
vaccination.
Subjective
or Consent in Fact:
Barton
v. Bee Line Inc.
Plaintiff
(15 yrs. Old girl) claims that she was raped by chauffeur working for
defendants. Chauffeur claims that the
girl consented to the sexual intercourse.
Jury awarded money to plaintiff. On appeal, the court reversed. Minors consent not used for criminal
liability but for civil cases, consent should be considered, even the consent
of a minor.
Doctor
Patient Relationship
Bang
v. Charles Miller Hospital
Patient
went in to get urinary problems checked out and doctor performed an operation
in which he severed patient’s spermatic cords and rendered him permanently sterile
-Both
consent in fact and apparent consent can be used in this case, but parameter of
the consent in question
Consent
2.
To be effective, consent must be by
one who has the capacity to consent or by person empowered to consent for him,
and
b.
to the particular conduct, or to substantially the same conduct
3.
Conditional consent or consent restricted as to time area or in other respects
is effective only within the limits of the condition or restriction.
4.
If the actor exceeds the consent, it is not effective for the excess
5.
Upon termination of consent its effectiveness is terminated, except as it may
have become irrevocable by contract or otherwise, or except as its terms may
include, expressly or by implication, a privilege to continue to act
Kennedy
v. Parrot
Patient
went through surgery. Doctor found something else while performing the surgery
and went ahead and fixed it. In the process, doctor messed up.
-Court
said there was not prima facie case for battery because patient consented
“If
both patient and surgeon know that the exact condition of a patient cannot be
finally and definitely diagnosed until patient is anesthetized and the incision
made, the P’s consent will be construed as general in nature…And the surgeon
may extend the operation to remedy any abnormal or diseased condition in the
area of the original incision whenever he, in the exercise of sound
professional judgment, determines that correct surgical procedure dictates and
requires such an extension of the operation originally contemplated…”
Kennedy
is not universally followed
In
some states, consent inferred or presumed only in an emergency
General
Rule: If doctor extends the surgery, use the balancing test in your
analysis. Weigh the risks of waiting to
bring the patient back to consciousness to obtain his consent, against the
risks from the additional surgery.
Non-consensual
defenses
Self-Defense
In
exam, ask 2 questions:
1. Was the defendant privileged to use some kind of force
to defend himself?
2. If yes, what degree of force was the defendant
privileged to use?
Using
non-deadly force
1.
An actor is privileged to use reasonable force, not intended or likely to cause
death or serious bodily injury, to defend himself against unprivileged harmful
or offensive conduct or other bodily harm which he reasonably believes that
another is about to inflict intentionally upon him.
2.
Self-defense is privileged under the conditions states in subsection 1,
although the actor correctly or reasonably believes that he can avoid the
necessity of so defending himself
a.
by retreating or otherwise giving up a right or privilege, or
By
complying with a command with which the actor is under no duty to comply or
which the other is not privileged to enforce by the means threatened.
Use
of deadly force
1.
Subject to the statement in subsection 3, an actor is privileged to defend
himself against another by force intended or likely to cause death or serious
bodily harm, when he reasonably believes that
a.
the other is about to inflict upon him an intentional contact or other bodily
harm, and that
b.
he is thereby put in peril of death or serious bodily harm or ravishment, which
can safely be prevented only by the immediate use of such force
2.
The privilege stated in subsection 1 exists although the actor correctly or
reasonably believes that he can safely avoid the necessity of so defending
himself by
a.
retreating if he is attacked within his dwelling place, which is not also the
dwelling place of the other, or
b.
permitting the other to intrude upon or dispossess him of his dwelling place,
or
c.
abandoning an attempt to effect a lawful arrest.
3.
The privilege stated in subsection 1 does not exist if the actor correctly or
reasonably believes that he can with complete safety avoid the necessity of so
defending himself by
a.
retreating if attacked in any place other than his dwelling place, or in a
place which is also the dwelling of the other, or
b.
relinquishing the exercise of any right or privilege other than his privilege
to prevent intrusion upon or dispossession of his dwelling place or to effect a
lawful arrest.
-the
actor is not privileged to use any means of self-defense which is intended or
likely to cause a bodily harm…in excess of that which the actor correctly or
reasonably believes to be necessary for his protection. If he acting in self
defense exceeds the defense, he is liable only for damages associated with
excess.
Defense
of others
-at
common law, could defend members of one’s household, as if oneself.
-privilege
now extends to total strangers
-Mistake?
E.g.
if a person sees A hitting B and comes to the aid of B and uses force against
A, but then it turns out that B was the original aggressor.
Majority
view: the person stepped in the shoe of B (the original aggressor) and has no
privilege.
Minority
view: if the person reasonably believes that the person he is aiding (B) had
the privilege to use force in self defense, then the person has the privilege
to use reasonable force, even if it turns out later that B was the aggressor.
Defense
of Property
Katko
v. Briney
Defendant
setup spring gun to defend their abandoned farm house
Ct.
ruled that defendants use of deadly force was excessive and found them liable
Law
places higher value on life then property
Defense
of Possession by force not threatening death or serious bodily harm
-An
actor is privileged to use reasonable force, not intended or likely to cause
death or serious bodily harm, to prevent or terminate another’s intrusion upon
the actor’s land or chattels, if
Ÿ
a. the intrusion
is not privileged…and
Ÿ
b. the actor
reasonably believes that the intrusion can be prevented or terminated only by
the force used, and
Ÿ
c. the actor has
first requested the other to desist and the other has disregarded the request,
or the actor reasonably believes that a request will be useless or that
substantial harm will be done before it can be made.
Defense
of possession by force threatening death or serious bodily harm
Ÿ
The intentional
infliction upon another of a harmful or offensive contact or other bodily harm
b a means which is intended or likely to cause death or serious bodily harm,
for the purpose of preventing or terminating the other’s intrusion upon the
actor’s possession of land or chattels, is privileged if, but only if, the
actor reasonably believes that the intruder, unless expelled or excluded, is
likely to cause death or serious bodily harm to the actor or to a third person
whom the actor is privileged to protect.
Ÿ
In Katko,
deadly force used but the trespassers posed not serious threat to the
inhabitants of the farmhouse (farmhouse was abandoned J) so use of such force was not privileged.
Privilege
of Necessity
Ploof
v. Putnam: no trespass when
plaintiffs went into defendant’s dock to save their lives
Vincent
v. Lake Erie Transport
-The
notion of qualified privilege- privilege of necessity
-qualified
privilege to enter on the land of another to avoid serious harm, but this
privilege is coupled with a duty to pay for whatever he breaks, damages.
II. Assault
Restatement
(2d) Section 21
(1)
An actor is subject to liability to another for assault if:
(a)
he acts intending to cause a harmful or offensive contact with the person of
the other or a third person, or an imminent apprehension of such a contact, and
(b)
the other is thereby put in such imminent apprehension.
-An
action which is not done with the intention stated in Subsection (1,a) does not
make the actor liable to the other for an apprehension caused thereby although
the act involves an unreasonable risk of causing it and, therefore, would be
negligent or reckless if the risk threatened bodily injury.
-(SO
INTENT IS INDESPENSABLE)
Apprehension
-apprehension
must be of imminent contact
-an
actor’s intent to inflict some future contact and the other person’s awareness
of this is not apprehension of imminent contact.
-e.g.
A tells B that I will come back tomorrow and beat the hell out of you. No assault has occurred.
**Imminent
does not mean immediate, in the sense of instantaneous contact, as where the
other sees the actor’s fist about to strike his nose. It means rather that there will be no
significant delay.
-It is not necessary that one shall be in the striking
distance of the other or that weapon pointed at the other shall be in a
condition for instant discharge. It is enough that one is close to that
reaching distance that he can reach the other at once or that he can make the
weapon ready for discharge in a very short interval of time. Under Common Law: Present ability
Assault
Test
Act
Intent
Effect
(Most Important Element)
Causation
Damages/harm
Intent
Element
Intent
to cause apprehension of contact or contact itself
-Intent
can be transferred
e.g.
A throws a brick at B intending to hit him.
C, a bystander, is put in apprehension of contact. A liable for assault on C even though A never
intended to hit C.
Effect
Element
Apprehension
that one is about to be touched. If
person has apprehension that someone else is about to be touched, no
assault.
Apprehension
=/ Fear
Apprehension
a term of art. We don’t require that the
person be afraid of the imminent contact.
We only require that he be aware that such contact is coming.
e.g.
A, a big football player, sees B, a little drunk guy, coming towards him with
his fists closed. A is not scared of B
but he knows that B is about to strike him. Assault takes place even though A
had no fear.
Subjective/Objective
Tests
If
an act is intended to put another in apprehension of an immediate bodily
contact and succeeds in doing so, the actor is subject to liability although
the act would not have put a person of ordinary courage in apprehension.
Bouton
v. Allstate Insurance
-court
used the objective test to determine that a reasonable person will not be
apprehended. This is certainly an
anomaly.
III. Offensive Battery
Section
18 Battery: Offensive Contact
(1)
An actor is subject to liability to another for battery if
(a)
he acts intending to cause harmful or offensive contact with the person of the
other or a third person, or an imminent apprehension of such contact and
(b)
an offensive contact with the person of the other directly or indirectly
results
-An
act which is not done with the intention stated…does not make the actor liable
to other for a mere offensive contact with the other’s person although the act
involves an unreasonable risk of inflicting it, and, therefore would be
negligent or reckless if the risk threatened bodily harm.
So
offensive battery requires the actual intent to cause offensive contact.
Offensive
contact: Objective/reasonable person test
A
bodily contact is offensive if it offends a reasonable sense of personal
dignity. Contact must be that which is
unwarranted by the social usages prevalent at the time and place at which it is
inflicted.
Fisher
v. Carrousel Motor Hotel
-P
African American and D snatched the plate out of his hand and stated no Ns are
served in this hotel.
-Lower
Ct. said no battery because no assault
-On
appeal, reversed. “…it has long been settled that there can be a battery
without an assault, and that actual physical contact is not necessary to
constitute battery, so long as there is contact with clothing or an object
closely identified with the body…”
Leichtman
v. WLW Jacor Communications, Inc.
Tobacco
smoke can create offensive contact
But
substantial certainty intent not included
IV. False Imprisonment
Restatement
(2d) Section 35
(1)
An actor is subject to liability for false imprisonment if:
(a)
he acts intending to confine the other or a third person within boundaries
fixed by the actor and
(b)
his act directly or indirectly results in such confinement of the other, and
c)
The other is conscious of the confinement OR is harmed by it.
-An
act which is not done with the intention stated in Subsection (1,a) does not
make the actor liable to the other for a merely transitory or otherwise
harmless confinement, although the act involves an unreasonable risk of
imposing it and therefore would be negligent or reckless if the risk threatened
bodily harm.
False
Imprison Test
Act
Intent
to confine within boundaries fixed by actor
Effect:
Confinement results
And
P conscious of confinement
Or
Harmed by it
Causation
Damages
Effect
Element (most important)
Two
requirements
1. Confinement within boundaries
fixed by defendant AND
2. Plaintiff is conscious of
confinement or is harmed by it.
Confinement: Confinement can be by physical barriers,
physical force, threats of force, duress, asserted legal authority, failure to
release when duty to do so.
-Confinement
maybe in a large area. Doesn’t have to
be in a small area. Plaintiff might have
a way out, but as long as he does not know about it, he is confined. Even if plaintiff knows about means of
escaping, such means must be reasonable.
Whittaker
v. Sanford
-D
asked P to travel to America in his Boat.
When reached America, D refused to provide small boat to P and her
children to reach the shore.
Test
Act:
failure to provide boat (so omission can be considered an act)
Intent:
Subjective
Effect:
P confined on the large boat and conscious of it (no harms really)
Causation:
Damages:
Tricky P not really physically harmed but can be mental.
Main
points of this case: Don’t need physical contact for FI. Failure to act can be an act (e.g. D’s
failure to provide boat to P is considered act under FI test)
Restatement
2d Section 45
-Refusal
to release or aid in escape
-If
the actor is under a duty to release the other from confinement or to aid in
such release by providing a means of escape, his refusal to do so with the
intention of confining the other is a sufficient act of confinement to make him
subject to liability.
Rougeau
v. Firestone Tire & Rubber Co.
-P
suspected of stealing and asked by the employer to stay in a room
-Two
guards told not to let P leave
-Ct.
said no False Imprisonment. P only in
room for about 30 minutes. Guards never
considered him to be confined. When P
asked to leave because ill, guards let him leave.
-So
no FI
-P’s
silence can be considered consent.
Sindle
v. New York Transit Authority
-children
destroying bus property
-driver
closed door and told children that he is taking them to the police station
-One
child jumped out the window and bus drove over him.
-Ct.
of Appeals said D can use the defense of justification (D has the burden of
proof).
It
is not unlawful to restrain or detain, reasonable under the circumstances and
in time and manner, if done for the purpose of preventing another from
inflicting personal injuries or interfering with or damaging real or personal
property in one’s lawful possession or custody.
Coblyn
v. Kennedy
-old
man suspected of shoplifting
-Issue
1: any genuine restraint is sufficient to constitute an imprisonment…and any
demonstration of physical power which, to all appearances, can be avoided only
by submission, operates effectually to constitute an imprisonment, if submitted
to, as if any amount of force had been exercised. If a man is restrained of his personal
liberty by fear of a personal difficulty, that amounts to false imprisonment.
-Issue
2: Grounds are reasonable for detention when a reasonably prudent, cautious and
intelligent person would believe they existed.
Test
is objective: 1. Reasonable manner 2. Reasonable length of time 3. Reasonable belief that person has committed or attempting to commit
larceny
V. Intentional Infliction
of Emotional Distress (IIED)
- IIED Restatement 2d Section 46
- One who by extreme and outrageous conduct
intentionally or recklessly causes severe emotional distress to another
is subject to liability for such emotional distress, and if bodily harm
to the other results, for such bodily harm
- Where such conduct is directed at a third
person, the actor is subject to liability if he intentionally or
recklessly causes severe emotional distress
i.
To a member
of such person’s immediate family who is present at the time, whether or not
such distress results in bodily harm, or
ii.
To any other
person who is present at the time if such distress results in bodily harm
1.
Therefore for
transferred intent, person must be present.
For family members, physical consequences not required. For non-family members, physical consequences
required.
- Elements of IIED
i.
Act: Extreme
and outrageous conduct (in Revlon it was failure to act)
ii.
Intent: Intent
to cause severe emotional distress or with reckless disregard for whether such
distress would occur
iii.
Effect: Severe
emotional distress
iv.
Causation:
Conduct must cause the distress
v.
Damages: For
emotional distress and, if it occurs, bodily harm
- State Rubbish Collectors Association v.
Siliznoff
i.
D threatened
P to join the association or he will beat him up and slash the tires of his
truck
ii.
In this case,
future threatsŕ so no assault
iii.
But ct.
said no assault needed in order to establish IIED
- Samms v. Eccles
i.
Respected
married woman constantly asked for sex by D
ii.
Ct. of
Appeals said that D’s conduct can be considered severe and outrageous by a
jury.
iii.
Usual rule,
“there is no harm in asking”
iv.
But in this
case, conduct continued for 6 months!
- Branda v. Sanford
i.
15 year old
bus girl verbally abused by D
ii.
Ct. of
appeals ruled that trial ct. erred by dismissing cause of action
iii.
“jury was
entitled to determine considering prevailing circumstances and contemporary
attitudes and Cheryl’s own susceptibility, whether conduct in question
constituted extreme outrage.”
- Comment F to Rest. 46
i.
The extreme
and outrageous character of the conduct may arise from the actor’s knowledge
that the other is peculiarly susceptible to emotional distress, by reason of
some physical or mental condition or peculiarity. The conduct may become heartless, flagrant
and outrageous when the actor proceeds in the face of such knowledge, where it
would not be so if he did not know.
1.
Branda
v. Sanford- P’s age could be a
factor
2.
Alcorn
v. Anbro Engineering, Inc.- P’s
race could be a factor
- Context in which the conduct occurred can also
matter
i.
Logan
v. Sears
1.
Employee on
the phone called P “queer”
2.
No one but P
heard it
3.
Ct.
considered this as a factor in deciding whether IIED
4.
Also, D’s
statement only hostile but not enough for IIED
- Hustler Magazine v. Falwell
i.
Public figure
cannot recover for IIED unless
1.
Offending
publication contained a false statement of fact
2.
Publisher
acted with actual malice
a.
Knowledge of
falsity or reckless disregard of truth or falsity.
- Failure to act can also be considered act under
IIED
i.
Ford
v. Revlon
1.
P sexually harassed
by manager for long period of time
2.
P used ever
avenue available to solve problem
3.
But no action
taken for a year
4.
Clear mental
distress- P tired to commit suicide
5.
Ct. said D
responsible for IIED for their failure to take proper action
- Jones v. Clinton
i.
Ct. considered
the following in deciding whether IIED
1.
Conduct at issue
2.
Period of time
over which it took place
3.
Relation between
P and D
4.
D’s knowledge of
P’s susceptibility to emotional distress by reason of some physical or mental
peculiarity
5.
Ct. applied a
“nervous breakdown standard”- very harsh on P
v VI. Negligence
o
Reasonable risks
are acceptable. But unreasonable risks are not accepted.
o
We want people to
use ordinary and reasonable care to eliminate risks other than ordinary ones…
o
Negligence law
doesn’t expect us to be accident-free, but expects us to be reasonable prudent
actors
o
Until Brown, it
was strict liability
o
Negligence 2 meanings:
1. Title of the tort 2. Breach of duty
o
Brown v.
Kendall
§
D unintentionally
hit P in the eye with a stick while trying to break a dog fight
§
Ct said: If the
act of hitting P was unintentional on part of D, then D was not liable unless
it was done in the want of
exercise of care adapted to the exigency of the case and therefore such
want of due care became part of P’s case and burden of proof was on P.
o
Ways to establish
Negligence
§
Reasonable Person
Standard (RPP)
§
B<PL
§
Foreseeability
§
Violation of a
statute
§
Custom
o
Elements of
Negligence
§
Duty
§
Breach of Duty
·
First two are
mirror images of each other
·
Act of breaching
duty is sometimes referred to as negligence, just as tort in its entirety/cause
of action is referred to as negligence
§
Actual Cause
§
Proximate Cause
§
Harm/Damages
o
Restatement 2d
Section 283
§
Conduct of a
reasonable man: The Standard
§
Unless the actor
is a child, the standard of conduct to which he must conform to avoid being
negligent is that of a reasonable man under like circumstances.
o
Reasonable man is
not expected to be impeccable- but words reasonable man denote a person exercising
those qualities of
attention, knowledge, intelligence, and judgment which society requires
of its members for the protection of their own interests and interests of
others.
o
Mental
Deficiencies
§
Unless the actor
is a child, his insanity or other mental deficiency does not relieve the actor
from liability for conduct which does not conform to the standard of a
reasonable man under like circumstances.
o
Section
283-children
§
If the actor is a
child, the standard of conduct to which he must conform to avoid being
negligent is that of a reasonable person of like age, intelligence and
experience under like circumstances.
o
Section 283C-
Physical Disability
§
If the actor is
ill or otherwise physically disabled, the standard of conduct to which he must
conform to avoid being negligent is that of a reasonable man under like
disability.
o
When applying the
reasonable standard, we are reasonableness of D’s actions at the time and under
the circumstances. The risk is to be
evaluated as it reasonably appeared before the accident. No assessment with the
benefit of hindsight based on additional knowledge.
o
B<PL Test
§
B- Burden of
taking the precautions + the broader social utility of the conduct which D would
have to forego.
§
P- probability of
accident
§
L- gravity of the
resulting injury
§
If burden of
taking the precaution is less than harm that results from failure to do so, it
was negligent/breach of duty not to take the precaution.
§
B<PL in action
·
U.S. v.
Carroll Towing
o
B- having a
bargee on board during day hours
o
P- wartime and
during day, very likely
o
L- expensive
cargo getting lose
o
So B<PL and
negligent to not have a bargee on board during day hours.
§
Restatement 2d
Section 291
·
Where an act is
one which a reasonable man would recognize as involving a risk of harm to
another, the risk [PL] is unreasonable and the act is negligent if the risk is
of such magnitude as to outweigh what the law regards as the utility of the act
or of the particular manner in which it is done [B].
·
Factors
considered in determining utility of actor’s conduct:
o
Social value law
attaches to the interests which is to be advanced or protected by the conduct
o
Extent of the
chance that this interest will be advanced or protected by the particular
course of conduct
o
Extent of the
chance that this interest can be adequately advanced or protected by another,
less dangerous course of conduct.
·
Factors
Considered in determining magnitude of Risk
o
Social value law
attached to the interests which are imperiled
o
Extent of chance
of that actor’s conduct will cause an invasion of interest of other
o
Extent of harm
likely to be caused to interests imperiled
·
Washington
v. LP & L
o
P- probability
that electricity will escape, that there will be a contact. Very low.
o
L- extreme
gravity of injury of contact made with wire
o
B- insulating all
the wires, not just P’s wires
o
Conclusion:
although there was a cognizable risk that the antenna stationed in the cornet
of Mr. Washington’s backyard could be lowered to within dangerous proximity of
power line, possibility could not be characterized as an unreasonable risk, and
power company’s failure to take additional precautions against it was not
negligence.
§
Foreseeability
·
Weirum v.
RKO General, Inc.
o
Foreseeable for
station that running of competition can cause accident
o
Station had duty
towards P (an all vehicles at the time and Place)
o
Duty: standard of
care that is required, not about an affirmative duty to act, rather about the
standard of care with which one must act
o
How are
parameters of duty established?
§
Guidance of
history
§
Continually
refined concepts of morals and justice
§
Convenience of
rule
§
Social judgment
as to where loss should fall
§
Foreseeability
o
What about the
teenagers who actually caused the accident?
§
Can be seen as
intervening or superceding causes, but foreseeable, so does not break the chain
of causation
o
B<PL Analysis
§
B- social utility
of such competitions is very low
§
P- probability of
traffic accidents is high
§
L- great injury
o
Sudden
Emergency Doctrine (SED)
§
Actor is left no
time for adequate thought, or is reasonably so disturbed or excited that the
actor cannot weigh alternative courses of action, and must make a speedy
decision, based very largely upon impulse or guess. Under such conditions, the actor cannot
reasonably be held to the same accuracy of judgment or conduct as one who had
had full opportunity to reflect.
§
The actor must
have clean hands- must not have contributed to the creation of the
emergency.
§
SED in action
·
Young v.
Clark
o
D’s car crashed
into P’s car from the rear after an unknown driver brought the traffic to a
sudden halt
o
Ct. said SE
created by the actions of an unknown driver
o
D acted
reasonably under the SE but still was unable to avoid the accident
o
Under SED, we
still expect the actor to act as a reasonable person will act in the emergency
o
Violation of a
Statute As the Basis for Negligence
§
2 questions to
ask:
·
Is P within the class of persons intended to be protected
by the statute?
·
Is the harm that occurred within the risk intended to be
protected against by the statute?
§
Three ways
different handle violation of statutes cases
·
Negligence per
se- majority rule
·
Rebuttable
presumption of negligence
·
Some evidence
§
Negligence per se
·
Strict standard
which holds that violation of a statute is negligence, period.
·
Martin v.
Herzog
o
P didn’t have
light on his buggy in violation of a criminal statute that required lights
o
“We think the
unexcused omission of the statutory signals is more than some evidence of
negligence. It is negligence itself [AKA
Negligence per se].”
·
The act which
constitutes violation of the statute must also be the cause of the harm
o
E.g. In Martin,
the act of not having the lights caused the accident.
o
Brown v.
Shyne
§
Unlicensed
chiropractor treats P and P permanently disabled
§
P argues that D
violated statute that requires physicians to be licensed
§
Ct. says that
this statute does not establish negligence per se
§
Jury must find
that D acted negligently before finding for P
§
“In order to show
that P has been injured by the D’s breach of statutory duty, proof must be
given that D in such treatment did not exercise the care and skill which would
have been exercised by qualified practitioners within the State, and such lack
of skill and care caused the injury.
Failure to obtain a license as required by law gives rise to no remedy
if it has caused no injury”
§
[1]
§
Rebuttable
presumption of negligence
·
Courts see
statute setting a rebuttable presumption and D can introduce evidence of due
care to rebut the presumption set forth in the statute.
·
Tedla v.
Ellma
o
P walking on the
right side of highway when statute required pedestrians to walk on left.
o
Unusually heavy
traffic on the left side.
o
“We cannot assume
reasonably that the legislature intended that a statute enacted for the
preservation of human life and limb of pedestrians must be observed when
observance would subject them to more imminent danger.”
o
Custom
§
The way an
activity is habitually carried out in a trade or a community.
§
P can use custom
to prove negligence and D can also use custom to show due care.
§
Custom vs. Habit
·
Habit applies to
a person’s own conduct, while custom applies to community standard.
§
Custom is not
definitive way to establish or defend negligence
§
Trimarco v.
Klein
·
Shower glass door
breaks and P injured.
·
Custom of
installing shatter-proof glass doors
·
“When certain
dangers have been removed by customary way of doing things safely, custom may
be proved to show that D’s behavior has fallen below the required standard.”
·
“Proof of a
common practice aids in formulating the general expectation of society as to
how individuals will act in the course of their undertakings and thus to guide
the common sense or expert intuition of a jury.”
§
The T.J.
Hopper
·
Tug boat not
installed with Radio Receiver
·
D argued not
custom to install such radios
·
“…a whole calling
may have unduly lagged in the adoption of new and available devices…there are
precautions so imperative that even their universal disregard will not excuse
their omission.”
·
Ct. also did the
B<PL analysis. Radio sets relatively
inexpensive to install.
·
This case shows that general prudence is not always the
common prudence.
§
In most Medical
cases, we defer to custom. But there is an exception
·
Helling v.
Carey
o
Simple pressure
test not given to P because not the custom
o
“The test is a
simple pressure test, relatively inexpensive.
There is no judgment factor involved, and there is no doubt that by
giving the test the evidence of glaucoma can be detected. The giving of the test is harmless.”
[B<PL]
o
Res Ipsa
Loquitur (Thing speaks for itself)
§
Doctrine that may be used to get to the jury w/r/t the duty and breach of
duty issues of the prima facie case when
P is unable to make a prima face case based on a specific theory of negligence.
§
Two requirements for Res Ipsa Loquitur Requirement
·
Event must be of a type which
ordinary does not occur in the absence of D’s negligence
·
Harm must be caused by an
agency or instrumentality within the exclusive control of D.
§
Boyer v.
Iowa High School
·
High school
bleachers fell and P injured
·
Ct. allowed res
ipsa instruction
o
Bleachers under
the exclusive control and management of D
o
Bleachers just
don’t fold unless negligence
o
Also, D had more
evidence than P….P was injured so how can we expect her to do the investigation
§
Shutt v.
Kaufman
·
Res Ipsa is not a
substitute for P’s careful preparation for the case
·
P’s access to
evidence influences the court’s decision in whether to apply res ipsa.
§
Ybarra v.
Spangard
·
Doctrine of res
ipsa applied even when multiple Ds
·
Theory of
respondeat superior
§
City of
Louisvill v. Humphrey
·
Drunk husband
died while in jail
·
Res Ipsa Test
o Event of type that occurs due to negligence: Yes
o D had Exclusive control: No/Can’t tell
·
Injury can be
caused by jail inmate and D not 100% responsible for inmate’s actions.
·
Therefore res
ipsa instruction not proper.
o Duty owned by Possessors of Land
§
Three tiered
system under common law:
·
Invitees: those on land with permission but limited to
business invitees or public invitees (e.g. customers in a store)
·
Licensees: Those with permission but who do not rise to the
level of being invitees (e.g. social guests)
·
Trespassers: Those on land without permission (e.g. Katko
Case)
§
Invitees: Restatement
Section 332
·
An invitee is
either a public invitee or a business visitor.
·
A public invitee
is a person who is invited to enter or remain on land as a member of the public
for a purpose for which the land is held open to public.[2]
·
A business
visitor is a person who is invited to enter or remain on land for a purpose
directly or indirectly connected with business dealings with the possessor of
the land.
·
Restatement 343:
Duty owned to Invitee
o A possessor of land is subject to liability for
physical harm caused to his invitees by a condition on the land if, but only
if, he:
§
Knows or by the
exercise of reasonable care would discover[3]
the condition and should realize that it involves an unreasonable risk of harm
to such invitees, and
§
Should expect
that the invitees will not discover or realize the danger, or will fail to
protect themselves against it, and
§
Fails to exercise
reasonable care to protect the invitees against the danger.
§
Licensee: Section
330
·
A licensee is a
person who is privileged to enter or remain on land only by virtue of the
possessor’s consent.
·
Section 342
o A possessor of land is subject to liability for
physical harm caused to licensees by a condition on the land if, but only if,
§
The possessor
knows or has reason to know of the condition and should realize that it
involves an unreasonable risk of harm to such licensees and should expect that
they will not discover or realize the danger[4],
and
§
He fails to
exercise reasonable care to make the condition safe, or to warn the licensee of
the condition and risk involved, and
§
The licensees do
not know or have reason to know of the condition of the risk involved.
§
Trespassers
·
General rule is
duty to not injure trespassers with wanton and willful conduct. (e.g. Katko
v. Briney)
·
Types of
trespassers
o Constant trespassers
o Known Trespassers
o Child Trespassers
·
Section 335:
Artificial conditions highly dangerous to Constant Trespassers on
limited area
o A possessor of land who knows, or from facts within
his knowledge should know that trespassers constantly intrude upon a limited
area of the land, is subject to liability for bodily harm caused to them by an
artificial condition on the land if the condition
§
Is one which the
possessor has created or maintains[5]
§
Is, to his
knowledge, likely to cause death or serious bodily harm to such trespassers and
§
Is of such a
nature that he has reason to believe that such trespassers will not discover
it, and
§
The possessor has
failed to exercise reasonable care to warn such trespassers of the condition
and the risk involved.
·
Known
Trespassers: Possessor has duty to warn of artificial condition that poses
threat of death of serious bodily harm if
o Possessor has actual or constructive knowledge of
trespasser’s dangerous proximity to condition
o Trespasser is unlikely to discover the condition
himself.
·
Known v. Constant
Trespassers
o Known trespassers are those that the D knows of at the
moment of the trespass – as in a contemporaneous observance that would enable
possessor to do something to prevent harm
o Constant trespassers are not “known” contemporaneous
w/ the act of trespass, but by virtue of evidence they leave behind or past
sightings
§
Attractive
Nuisance Doctrine
·
Possessor of land
liable:
o for physical harm to trespassing children from an
artificial condition IF
o Possessor
has actual or constructive knowledge
that children likely to trespass at the
place
o AND
o Possessor
has actual or constructive knowledge
that condition involves an unreasonable risk of death or SBH to children
o AND
o Children – b/c of youth – in fact do not discover
condition or realize risk associated with it
o AND
o Possessor’s benefit/utility in having the condition
and possessor’s burden of eliminating it are outweighed by risk to children
§
B/U < R
o AND
o Possessor does
not exercise reasonable care to eliminate
danger or otherwise to protect children.
o Requires only reasonable care
o Possessor is not an “insurer”
§
Rejection of
these categories
·
Some courts have
rejected the use invitees, licensees, trespassers reasoning and have instead
switched to the reasonable person reasoning.
·
Rowland v.
Christian
o P guest in D’s house and injured by broken faucet. D
knew of the condition but didn’t warn P.
o Held that P’s status as trespasser, licensee, or
invitee will not be dispositive as to the duty of care owned to him. Instead, the test will be whether in the
management of his property, the owner has acted as a reasonable person in view of the
probability of injury to others…”
o Duty owned by common carriers
§
Common carriers
are those who engage in transport of persons or things form place to place for
hire, and who hold self out to public as ready, willing to serve public
generally.
§
Most states hold
common carrier to higher duty than RPP
§
Expressed:
·
Highest care
·
Utmost care
·
Great caution
o Duty owned by Motor Vehicle Operators
§
Few states lower
the standard of care owned by operators of autos to their nonpaying guests
generally in the form of auto guest statutes
§
Mostly require
willful or wanton conduct in order to establish any breach of duty.
o Duty to Rescue
§
Generally duty to
warn is only moral duty and not legal duty.
§
Certain cases,
duty arises
·
Pre-existing
relationship between the party in peril and the potential rescuer, e.g. Tarasoff
·
Relationship
between common carriers and passengers
·
Relationship
between school and its students
·
Duty where D
caused/created the need to rescue, e.g. Tubbs
·
Reliance, e.g. Erie
§
Reliance
·
Erie RR Co.
v. Stewart
o D without legal duty employed watchman at railroad
crossing and P injured by train when watchman not there.
o Ct. said P came to rely on the watchman and that
created a duty.[6]
o Some questions to ask: Did D’s acts invite reliance?
Did P actually rely? Was the reliance
reasonable?
·
Reasonableness of
reliance (2 part test)
o Did D’s action invite reliance?
o Did it invite P to suspend his own judgment?
·
Lacey v.
U.S.
o Coastguards not liable because they did not deter
others from rescuing.
·
Brown v.
MacPherson’s, Inc.
o State invited reliance when it said it would warn of
avalanches, but then did not do so.
o Reliance on rescue must be the cause of the aggravated
injury.
§
D
caused/created situation
·
Restatement
Section 322
o If the actor knows or has reason to know that by his
conduct, whether tortuous or innocent, he has caused such bodily harm to
another as to make him helpless and in danger of further harm, the actor is
under a duty to exercise reasonable care to prevent such further harm.
·
Tubbs v.
Argus
o D driver of car and involved in accident. Didn’t aid
the passenger.
o Ct. said D was in control of the instrumentality that
caused the accident and that created a duty to help the passenger.
o D liable for the aggravated injuries.
·
Some situations
that create duty
o Master/employer to employee
o Invitor to the invitee
o When injury resulted from instrumentality under the
control of D
·
Good Samaritan
Statutes
o
Absolve the Good
Samaritan rescuer of liability that might otherwise arise from a botched rescue
o
Some apply only
to medical professionals
o
Some to
firefighters, police officers as well
o
Some to all
rescuers
§
Special
Relationship (+Foreseeability)
·
No duty to
control the conduct of another nor to warn those endangered by such conduct
unless there is a special relationship.
·
Tarasoff v.
Regents of UC[7]
o
Special
relationship may be between the D (mental health professional) and the person
who does the intervening act (Poddar)
OR between D and person who will reasonably foreseeably be harmed (Tatiana)[8]
o
Court also uses
B<PL when it states that unnecessary warnings are a small price to pay for
the lives of possible victims that may be saved.
o
In this case
special relationship + foreseeability = duty
o
In Weirum=
froeseeability = duty