Torts condensed outline fall 2005
1. introduction;
1.1. Tort is a civil wrong. Wrongdoing recognized by law as grounds for lawsuit.
1.2. aims and approaches.
1.2.1. morality or corrective justice. To hold persons liable for harms they wrongfully caused.
1.2.2. social utility or policy. System that works for the good of society.
1.2.3. Process. Rules that are practical and easy to understand.
1.2.4. fault and corrective justice. Fault is first and harm is second.
1.2.5. strict liability. To protect important rights , so consequences imposed regardless of fault.
1.2.6. risk distributors (should be liable for harm regardless of fault, because best way of distributing costs). Although generally this isn’t used, because courts believe distribution be determined by legislature and deterrent effects limited if you pay regardless of fault.
1.2.7. Deterrence. Not limited to person on trial, but rather anyone who hears about case.
1.2.8. Process values in tort law.
1.2.8.1. rules should be able to be seen and understood,
1.2.8.2. good results
1.2.8.3. efficient
1.2.8.4. rules should constrain judge and jury as well as maintain some flexibility.
1.2.8.5. realistic.
1.3. Intentional torts –common elements, must allege in good faith, make case look good on first look. P bears burden of proving elements of claim. D bears burden of proving any affirmative defenses. Battery
a. Intent (see Garratt and Hall) to cause a harmful or offensive contact
2. b. Harmful or offensive contact occurs
1. The intent standard from Garratt v. Dailey.
a. The twofold intent standard (purpose or knowledge to a substantial certainty) is accurately stated
b. It is also likely misapplied by the court
2. The intent standard is supplemented by the transferred intent rule established in Hall v. McBryde.
2.1.
2.1.1. requiring fault
2.1.1.1. Van Camp v. McAfoos 3 yr old kid with the tricycle ran into woman. To prove an intentional tort against a child and collect damages, you must prove fault and you can’t do that with a 3 year old.
2.1.1.2. snyder v. turk surgeon who pushed nurse into cavity. Yes, Dr. intended to commit an offensive act. conduct which is offensive to a reasonable sense of personal dignity is offensive contact.
2.1.1.3. restatement on battery §13 and §18.
2.1.1.4. cohen v. smith woman didn’ t want man to touch her. Hospital said they wouldn’t. cesarean. Yes, offensive contact. Offensive contact is when contact offends a reasonable sense of dignity.
2.1.1.5. must p prove an intent to harm in order to prove a battery? No, p can prove an intent to make offensive contact. Must p prove actual harm such as pain or bruise? No P may prove offensive contact, which doesn’t have to include physical harm.
2.1.1.6. Intent; must have intent to touch and then either intent to harm or intent to offend. And must be unconsented touch.
2.1.1.7. d must commit some kind of act. What about when d is jostled in crowd? No.
2.1.1.8. battery MUST have bodily contact as actual result. (grabbing plate case, yes, clearly offensive invasion of his person, as would actual contact be), but contact with something close to person can constitute bodily contact.
2.1.1.9. Leichtman v. WLW Jacor Communications Inc. antismoking advocate, host blew smoke in face. Yes cigar smoke can constitute bodily contact. And you have a right for courts to decide rightousness of case, even if minimal damages.
2.1.1.10. noise doesn’t count. Must be particulate matter.
2.2. what interest does the tort of battery vindicate? Offense to personal dignity and invasion of personal space.
3. Liability insurance, intentional act or injury exclusions, and intentional torts
a. Typically, the intentional act or injury exclusion requires a showing that the insured intended to cause the injury, i.e., that the insured’s purpose was to cause the injury or the insured knew to a substantial certainty or should have known to a substantial certainty that the injury would occur.
3.1.1.1. Courts will sometimes infer that intent as a matter of law, particularly where there is a high correlation between what the insured intended and what occurred.
3.1.1.2. Note that the insured may still be liable for an intentional tort, but that the exclusions may be inapplicable, so that the policy will provide coverage for the damages for which the insured is held liable.
3.2. Grinell mutual v. ehmke kid threw magnet at father and blinded. Because Jessica’s action did not intend (shown by the unlikelyness of success of throw-by left hand) her insurance doesn’t cover. Because of age and circumstances of d, there was no intent and therefore no intentional act and criminal act exclusions in this insurance policy do not apply.
3.3. insurance policies; policies strictly construed against insurance company (drafter). Sometimes the clauses are different then battery. IN this case insurance exclusion was broader. Normally it is whether d knew or intended effects. in this case, reasonable person. But in walser case; expected or intended by insurer.
3.4. a lot rides on clause, because that is where money comes from.
3.5. basic standard if clause applies;
3.5.1. 1. did the insurer acted in a calculated manner and without remorse.
3.5.2. 2. insured’s conduct knew or should have known that harm was substantially certain to result. This standard both subjective and objective. Lawyers argue heavily by analogy.
3.5.3. insurance usually doesn’t cover offensive contact. What happens to transferred intent in insurance. In those situations courts can calculate as a matter of law, body armor piercing bullets (assault rifles). Walser; kids hanging on kid who hangs on basketball hoop, falls hurts finger. Here matter of law no intent to hurt. Not reasonable that person would mean to hurt (maybe offensive contact by that isn’t in insurance exclusion).
3.5.4. Transferred intent is legal fiction and can argue that it didn’t actually happen in terms of insurance exclusion. Generally can’t use transferred intent in insurance clauses.
4. liability of a parent or guardian; Parental liability; Note that there are a number of elements that have to be established, including the requirement that the minor willfully or maliciously caused injury to person or damage to property. E.g.,
b. Damages are limited to special damages and are capped at $1,000.
4.1.1.1. mn stat; damage of minor; responsibility of parent, guardian and minor. Subdivision 1. liability rule. Parent of kid who willfully or maliciously causes injury to any person or damage to any property is jointly and severally liable with minor for amount not exceeding 1,000 (if such minor would have been liable for damages had the minor been adult). Limited to special damages (not pain and suffering). HERE no defense to try and stop child.
4.1.1.2. mn stat. 611A.79 sub. 4, limit of 5,000 for biased crime.
5. INTENT
5.1. Garratt v. Dailey 5 yr old kid pulls chair out from under lady. What is intent in this case? What is important here is not that he intended to hurt her, but that he knew (substantially certain) what would probably happen and that he intended the act (to move the chair).
5.1.1.1. recklessness, wantonness and willfulness. Willful or wanton is a course of action which shows actual or deliberate intent to harm or which if the course of action is not intentional, shows an utter indfference to or conscious disregard for a person’s conduct creates a known risk that can be reduced by relatively modest precautions. That conduct is reckless and not negligent.
5.1.1.2. Hall v. McBryde kid went home and found gun, drive by shooting, he returned fire and hit neighbor. Intent to put other youths in apprehension of a harmful or offensive bodily contact which results in harmful or offensive bodily contact is battery.
5.1.1.3. insurance coverage; guy beat and killed father-in-law. An insane person is civilly liable for his/her intentional torts. Physical act is still act. That person intends to make it, unless purley unconscious (seizure, yawn). Just because he can’t make a rational choice doesn’t mean he can’t make a choice.
5.2. Insane persons/Intent’
5.2.1. Seals v. Snow; insane persons are civilly liable for their torts;
5.2.1.1.1. 1. where one of two innocent persons must suffer loss, it should be borne by the one who did the action.
5.2.1.1.2. 2. public policy requires enforcement so that relative shall be led to restrain him.
5.2.1.1.3. 3. other torts doers won’t pretend insanity as a defense.
5.2.1.1.4. 4. if he wasn’t liable there would be no redress.
5.2.1.1.5. 5. if he has lots of money it should go to victim instead of sitting there while he is in prison.Professor doesn’t think these policy reasons are very strong.
5.2.1.1.6. difference between polmatier and white is that in polmatier had intent and knew result of contact (that it would hurt p, reason was wrong-devil told me too). In white, she didn’t know it would hurt p.
5.2.1.2. white v. muniz 83 yr old in assisted living. Dementia, impulse control and loss of memory. She struck jaw of employee and ordered out of room. Insanity is not a defense , it just makes it harder to prove intent. A jury could find a mentally deficient person liable for an intentional tort, but in order to do so, the jury must find that the actor intended offensive or harmful consequences.
6. ASSAULT:
6.1. Cullison v. Medley man trying to hook up with 16 yr old. Family visits. Dad crutches and gun. Threatened. Then again glared at P and touched gun. Touching a gun or wearing one in a holster while threatening someone could qualify as assault.
6.2. damages are for mental trauma and distress. Also must apprehension must be reasonable and invade p’s mental peace.
6.3. breakdown the case into little pieces (didn’t take gun out, wear all time, threat itself; conditional (if you I will not = imminent threat of harmful contact).
6.4. koffman v. Garnett football player and coach, picks up and slams down. This was battery, not assault. There was no time for apprehension of the batter, because it occurred without warning. There wasn’t sufficient time to feel apprehension of the battery, because the time between knowledge it would happen and when it did was almost nonexistent.
6.5. assault; intent to cause reasonable apprehension of imminent harmful or offensive contact? Imminent=without significant delay.
7. false imprisonment
7.1.1. McCann v. Wal-mart mom and kids detained, wrong ones. told them they had to come, calling police and at one point said no to bathroom. Mere threat of physical force or claim of lawful authority to restrain is enough to satisfy the confinement requirement for false imprisonment.
7.1.2. elements; bad motive not one of elements only intent.
7.1.3. exclusion; must limit range of movement, not enough to exclude p from place. But discriminatory exclusion of p may violate civil rights laws
7.1.4. confinement by physical barrier or force. Suppose confined, but p knows how to get out (moving car, unlocked doors??).
7.1.5. confinement by threats or duress. Factual details are critical. When by explicit, implicit threat or duress. Also submission to an officer’s assertion of arrest is sufficient.
7.1.6. duress of goods. Grabs wallet, p wishes to leave, but can’t leave wallet. Is this implicit threat?
7.1.7. asking police to confine. Without warrant or privilege police is liable, what about D?
7.1.8. medication-nursing home, unnecessary sedatives. False imprisonment?
7.1.9. damages. False imprisonment is (intentional) trespassory tort, so p can recover damages even if sustains no actual harm. Actual harm is required when p is not aware. (baby in bank lock)
8. trespass to land; elements
8.1. –intentional entry on the land of another
8.1.1. intent? Intent to enter land. Must d know whose land it is? Mistake of fact is not a defense. intent. Purpose to enter or substantial certainty that entry will take place. Object of intent, doesn’t have to be trespass. Only intent to enter land. (even if believes own land or believes ahs right to be there).
8.1.2. interest protected? Interest in possession, as opposed to interest in the use and enjoyment of property. trespass as interference with possession. Invasion of ones’ right to possession NOT OWNERSHIP. Possible for adverse possessor to have trespass rights.
8.1.3. shoots arrow across, yes trespass, damages, interference with use and enjoyment.
8.1.4. Tresspass to land is interference with possessory property interest.
8.1.5. damages without harm. In trespassory torts d is liable for damages even if no physical or economic harm is done. See the rest of 3 on page 69. for more
8.1.6. punitive damages without harm. Punitive if trespass is deliberate or malicious.
8.1.7. extended liability; liable if never intended or could not foresee it. throws cigarette into water, water really oil spreads fire. Extended liability.
8.1.8. limiting extended liability; trespassing journalists not liable for publishing truth they obtained while trespassing.
9. conversion of chattels-trover.
9.1. Stealing watch is converting possession of property.
9.2. intent- conversion is an intentional tort. But not one of the five original trespassory torts (not transferred intent).
9.3. D must intent to exercise substantial dominion over chattel, but no requirement that D be conscious of wrongdoing.
9.4. elements; intentional exercise of dominion over p’s chattel that . so seriously interferes with p’s right to control it that , d may be required to pay P the full value of the chattel. P will have to prove actual damage. Reason; when compare to land, an action to vindicate is not as necessary. No nominal damages (like other tresspassory torts). Interference with p’s possessory interest.
9.5. conversion factors to consider §222A. (unless person intends to steal car-owners personal insurance will cover- even if deviate from permission)
9.5.1. extent and duration of D’s control over chattel
9.5.2. *D’s intent to assert right to property inconsistent with p;s right to control it.
9.5.3. D’s good faith (or lack of it)
9.5.4. extent and duration of resulting interference with chattel.
9.5.5. *harm done to chattel
9.5.6. inconvenience and expense to P.
9.5.7. –could be forced sale (and other damages that flow from conversion) would be market value at time of conversion.
9.5.7.1. honest takers still converter if dominion is sufficiently substantial. Finding conversion means that D pays full value of chattel. Restatement of torts §222A. Only tangible personal property (not land or paper money). Now sometimes stocks and bonds count.
9.5.7.2. serial conversions; a sold to b, both liable owner could sue both or either, but only collect once.
9.6. bona fide purchasers. Held liable, because can’t buy what b can’t sell. BUT if a got from original owner by fraud, then b is not liable, because he actually bought title.
9.7. remedies. Damages. Value of chattel at time of conversion. (WHAT ABOUT MOORE, IT WAS LESS VALUABLE AT TIME IT WAS TAKEN OUT), but sometimes courts permit P to recover replacement value. Also might seek replevin (actual return of goods).
9.7.1.1.
9.8.
9.9.
9.9.1. Tresspass to chattels. Something short of conversion. Liability imposed only if possessor of chattel suffers dispossession or lost use or if the possessor is harmed. Restatement §218. trespass to chattel may be committed by intentionally
9.9.1.1. dispossessing another of the chattel, ( dispossessor has it)or
9.9.1.2. using or intermeddling with a chattel …..
9.10. trespass to chattel elements; d who commits trespass to chattel §218 is subject to liability if and only if
9.10.1.1. 1d dispossess other of chattel or( dispossessor has it)WILL BE DEEMED TO BE HARM FOR TRESPASS TO CHATTEL
9.10.1.2. 2chattel is impaired as to condition, quality or value or
9.10.1.3. 3possessor is deprived o use of the chattel for a substantial time ( dispossessor stops possessor from using it, but doesn’t have it. or
9.10.1.4. 4bodily harm is caused to the possessor or harm is caused to some person or thing in which the possessor has a legally protected interest.….( sniping break line in car etc.)
9.10.1.5. 5intentionally;
9.11.
9.11.1.1. civil rights violations.
9.12. Forcible harms as civil rights violations- P may have parallel tort claims (then concurrent jurisdiction, state or fed. Statute will give you attorney’s fees (1988). Battery, assault etc. (any intentional torts not pure negligence) .
9.13. must have (42 U.S.C. § 1983);
9.13.1. person acting under color of state law[z1] . (but private people can’t violate this statute)
9.13.2. violate constitutional right.
9.13.3. damages; compensatory damages (economic harm, pain and suffering –p doesn’t get money for that right that was damaged – not value of right in and of itself), punitive damages (possibly fed. Standard, reckless or callus indifference or evil intent or motive.).
Q whether or not political entity that employees person will be subject to liability. Vicarious liability rule; employer held liable for torts of employee if under scope of job. Intentional force usually from person’s authority.
federal; fed tort claim , 1983 etc. defense qualified immunity or privilege if this applies that is the end of it (must be willful or malicious- intentionally violating a known legal right).
state; tort claims; defense (official immunity MN law- pretty much same as fed. Qualified immunity- if applies and if vicarious liability applies, then defense can be official immunity can be vicarious as well)-argument that state (or whatever) should be liable. But NOT with 1983 claims. 1983 has no vicarious liability. Also state limits for tort claims don’t apply to 1983. For purposes of 1983 Who is a person? for awhile said political subdivision said that person isn’t, but now say is. If, only if, city has adopted an unconstitutional policy.
9.13.4. the §1983 claim; 42 U.S.C.A. § 1983: every person who, under color of any statute[z2] , ordinance, regulation , custom, or usage, of any state or territory or the district of Columbia, subjects, or causes to be subjected, any citizen of the United States or other persons within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the constitution and laws. Shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. Creates Fed. Cause of action. Courts must follow precedent set by fed. Courts in this matter.
9.13.5. ….10/11/2005Yang v. Hardin; d uniformed police officers entered store to investigate burglary and then proceeded to abuse store owner, steal things, name calling and lots of physical harm This officer failed to intervene to prevent other police officers from infringing on citizen’s rights. And had a realistic opportunity to step in.
9.13.5.1. brown v. Muhlenberg township pet dog killed by policeman. Killing of person’s dog by law enforcement officer constitutes a seizure under 4th amendment. 1. seizure=meaningful interference with 2. possessory interest 3. protected under 4th amend.
9.13.5.2. elements; color of law and federal right based on statute or constitution.
9.13.5.3. color of law. exercise of power possessed by virtue of state law and made possible only because of the aurthority of state law, even where authority is misused. Doctor medic. Prison, inadequate. Also sometimes includes acts of off duty police officers.
9.13.5.4. liability of public entities; officer may be held personally liable. If officer acts on behalf of city then maybe city as well. Certain conditions for citys. States not liable at all.
9.13.5.4.1. international civil rights. Fed. Statutes called alien tort statute. 28 U.S.C. § 1350. give fed. Jurisdiction over “all causes where an alien sues for a tort only in violation of law of nations or treaty of the
9.13.5.5. exemplars of constitutional violations; 14th amendment due process, 4th amendment citizens freedom from unreasonable searches or seizures and 8th amend. Prohibiting cruel and unusual punishment
9.13.5.6. cty of sacremento v. lewis; officer chased motorcycle rider died as result. govt. power violates due process only when shocks the conscience. In this context officer must have had intent to injure, recklessness not enough .
9.13.5.7. Alexander v. de angelo officers used lady for prostitute sting. sex by threats (which no legal right to make) is rape. 14th amendment protects bodily integrity and is infringed by a serious battery. Very serious battery and rape committed under color of law is actionable under §1983 as deprivation of liberty without due process of law.
9.13.5.8. practical value of §1983-permits suit in fed. Court. §1983 permits p to recover attorneys fees and sometimes avoid defenses or immunities that would defeat a common law claim.
9.13.5.9. qualified immunity- if officer’s conduct did not violate clearly established stutory or constitutional rights of which a reasonable person would be aware.
9.13.5.10. graham v. connor. Diabetic stopped. Police refused to check pockets for medical card, or allow friend to administer orange juice. TEST is reasonableness, based on objective reasonable person at scene. Allow for some errors, but still protect against unreasonable force. Not escape consequenes if malicious. But also can’t make reasonable us of force actionable, just because done maliciously.
9.13.5.11.
10. emotional harm-
10.1. statutory actions- more money for punitive and sometimes attorney’s fees.
10.2. intentional infliction of emotional distress §46 elements;
10.2.1. d’s conduct must be extreme and outrageous (that it passed the boundaries of decency and is utterly intolerable to the civilized community
10.2.2. p has to suffer severe emotional distress (so severe that no reasonable person could be expected to endure it)
10.2.3. caused by d’s conduct
10.2.4. d must intend to cause that distress or must have acted recklessly
10.3. if you are a public figure, first you have to show false statement of fact (to claim defamation). First amendment to free speech is only right for govt not to interfere.
10.3.1. langeslang v. KYMN and Johnson langeslag threats to take legal action; she has a constitutionally protected right to peacefully bring a nonfrivolous lawsuit. Action taking to inform eddy that she intended to do so does not constitute extreme and outrageous behavior. NOT because eddy could have terminated her employment at anytime and thus prevented or mitigated his emotional distress. ALSO edy’s evidence of emotional distress was only his own testimony, medical records show preexisting conditions and that symptoms correlated with a time he was dealing with an arrest in a criminal matter. NO evidence of economic damages. (overturned jury verdict for eddy).
10.3.2. GTE southwest v. Bruce nut for boss, make stand at desk, yelled, charge at employees, required to vaccum own offices even though had janitor staff. This conduct is extreme because of it’s severity and regularity. *Also action can’t be maintained when risk that emotional distress will result is merely incidental to the commission of some other tort. This means that emotional distress must be the intended or primary consequence of D’s behavior. Here it was. In determining whether conduct is extreme or outrageous, the severity and regularity should be taken into account.
10.3.3. Look at markers/red flags that raise claim, but doesn’t mean you will recover.; things that help prove IIED pattern of harassment, abuse of power relationship, or where D takes advantage of susceptibility
10.3.4.
10.3.5. notes; restatement of torts §46. sometimes refered to as the tort of outrage. insult not sufficient
10.3.6. makers of outrage; courts tend to emphasize, carried out over a period of time, and an abuse of power or of a person know to be vulnerable
10.3.6.1. Winkler v. Rocky mountain conference of the united Methodist church. Woman volunteered at church, senior pastor touch, rub, declare love for her. Held breach of fiduciary duty and claim for intentional infliction of emotional distress. *although chamber’s conduct would be a battery, the same conduct can amount to intentional infliction of distress. That is an independent tort and the p is not required to sue for battery theory merely because the facts would have sufficed to show a battery. Where the P can assert an intentional infliction claim, the fact that the statute of limitations is up for battery is irrelevant.
10.4. sexual harassment. Sometimes can be statutory claim. If sexual harassment is verbal could victim claim damages of intentional or reckless infliction of distress. Ford v. Revlon; Company knew of sexual harassment and refused to interfere with it.
10.5. homer v. long P’s wife hospitalized for depression, wife’s therapist seduced her and she left p. Third person may recover for intentional infliction of emotional distress if the extreme and outrageous action occurs while p is at the scene and D knows s/he is there.
*Restatement (second) of torts §46 subsection (2) “where such conduct is directed at a third person, the actor is subject to liabilities if he intentionally or recklessly causes severe emotional distress (a)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 (b) to any other person who is present at the time if such distress results in bodily harm. In other words, to be liable for this harm the D must be able to reasonably predict the harm inflicted will occur.
Particularly compelling circumstances requirement relaxed ( P sues D for sexually molesting or kidnapping child).
10.5.1.1. Bettis v. Islamic Republic of Iran under the auspices of
10.6. NO TRANSFERRED INTENT (because not one of the five trespassory torts.
10.7.
11. Chapter four; defenses to intentional torts- privileges, most of these are affirmative defenses. D has the burden of proof and must convince the jury.
11.1. self defense;
11.1.1. RULE:ok to use reasonable force to defend against harmful or offensive bodily contact and against confinement. If apparent necessity.
11.1.2. Deadly force; if necessary to prevent harm. And must be proportionate (only use deadly if threatened by deadly!).
11.1.3. Retreat; no required to retreat or avoid need for self defense.
11.1.4. excessive force; not ok, only reasonable force.
11.1.5. provocation. Not ok. Insults and arguments do not justify a physical attack. Must have reasonable appearance of attack.
11.1.6. assault and imprisonment in self defense. sometimes can use this as defense. sometimes ok to put in apprehension of this, even if not ok to do it.
11.1.7. defense of third persons. first limited to family and servants, now may defend others on same basis you may defend yourself.
11.1.8. arrest and detention. Restat.2d torts §120A.
11.1.8.1. merchant;
11.1.8.1.1. great atlantic v. paul ill with heart condition, to market, checking labels carefully. Employee thought stole, took to office searched. Wrong. No showing probable cause here. In self service store; Suspect must actually attempt to leave the store without paying, unless he manifests control over property in such a way that his intention to steal is unequivocal. Also merchants exceptions can’t use to punish, just detain.
11.1.8.2. police v. private
11.1.8.2.1. Police officers are privileged to make an arrest under a warrant that appears to be authorized and probable cause or reasonable grounds to believe that a felony has been committed by the arrested person. a private person is similarly privileged, but not protected if mistaken (and can’t be for misdemeanor that isn’t breach of peace).
11.1.8.3. if 3rd person is injured by police officer then police officer can’t use self defense. The arugement would be “we expect more from police officers”.
11.1.8.4. dog bit statute; intruder is not where he is lawfully allowed to be, then doesn’t apply. Argument is no duty. Could argue excessive force if too much damage happens. Depends on the training of dog must determine if dog is more like weapon or property.
11.2. defense and repossession of property
11.2.1.1. katko v. briney uninhabited house, history of breakins, set up gun trap. Rigged to hit legs. Physical harm can only be used when defending against physical harm and force must be reasonable based on self harm anticipated.
11.2.1.2. brown v.
11.2.1.3. you can argue that a gun pretty much assumes intent to harm (because risk of hurt is so great substantially certain as to consequences).
11.2.1.4. here can transferred intent from assault (threat to harm) to battery!
11.3. recapture of chattels; defending possession is one thing, using force to regain possession is something else. Why is this rule? To keep order, you have time to go to police, incident already happened. Whereas you don’t have to sit by and watch him take it, against instinct. Also you know who perpetrator was and where your good is if happening, could be wrong if go to get it. court concluded that he could have called the police.
11.3.1.1. repossession of consumer goods; car seller may repossess the car from the defaulting buyer but only if can do so peaceably; indeed buyer may defend his possession with reasonable force
11.3.1.2. repossession of land; courts are divided, some permit the owner with right to possession to use force, limited always to reasonable force.
11.3.1.3. discipline. Some states refuse to permit children to sue their parents for torts. When they are allowed, parents still enjoy privilege to discipline children and to use force and confinement to do so. The limits are ill-defined. Restatement says parents may use reasonable force as they reasonably believe necessary.
11.4. Observing privileges (f)
11.4.1. many common law privileges have the effect of resolving issues in the case into matters of reasonableness and degree. In self defense ; reasonably believed that defense was necessary and whether used amount of force reasonabley necessary to cope with threat. Teachers only if go too far. False imprisonment; amount of time based on reasonable.
11.4.2. notice how these cases differ from cases in which the D commits a kissing batter. He kissed P. this is offensive battery and it is no defense to say that touching did not last long, that the force used was minimal or that injury was not great. Thus in common law actions cases where degree is not important and others where it is., IF the issue of privilege is injected then degree is important.
11.5. special case of consent. What constitutes consent? . in battery cases consent or apparent consent conveys the idea that a touching is not offensive, so that one element of battery would one missing. Different in public crowded areas. Would sign saying don’t touch me work there? No, why “touching in such a case is not offensive to a reasonable person and we don’t care about the p personally? Or because it is an unreasonable infringement on others rights.
11.5.1. does the employee have a capacity to consent to employer? Reavis v. slominski; sex manic employee v. employer Consent not effective if person lacks capacity. But incapacity only renders consent ineffective if her condition substantially impairs her capacity to understand and weigh the harm and risks of harm flowing from the proposed conduct. And D must have knowledge of that.
11.5.2. capacity to consent; people who are not able to manage their own affairs are legally incompetent.
11.5.3. exculpatory clause. Karate example. Depends on what goes beyond the rules of the game. Could be express consent, or implied consent (
11.5.3.1.1. wende v. united Methodist. Here minister who was counseling her for marital problems. Court agreed that consent was mutual. But two justices dissented due to the degree of control and influence the minister exercised over her entitled her to judgment as matter of law.
11.5.3.1.2. morgan v. greenwaldt. P admitted self into psychiatric unit. Then seclusion. Was false imprisonment? No, consent of authorization to treat ok.
11.5.3.1.3. some states forbid sexual contact from mental health professionals and patients.
11.5.4. exceeding the scope of consent. act of a different character. Restement second §892A.2.b for consent to be effective it must be to’ particular conduct or substantially the same conduct’ as the D engages.
11.5.4.1.1. Ashcroft v. king. Donated blood, wanted family blood for operation, got others, got hiv. Held touch exceeded consent given.
11.5.4.1.2. drugs she didn’t want, and reacted to. Said consent was not a defense, because her consent was limited to specific drugs. Which she has a right to.
11.5.4.1.3. peters v.
11.5.5. kennedy v. parrott; operation doctor found cysts on ovary and punctured even though surgery was for appendectomy. some courts though adhering to the fetish of consent, express or implied, realize the the law should encourage self-reliant surgeons to whom patients may safely entrust their bodies, and not men who may be tempted to shirk from duty for fear of a lawsuit. ..in major internal operations, both the patient and surgeon know that the exact condition of the patient cannot be finally definitely diagnosed until after the patient is completely anesthetized and the incision is made, …. Consent in the absence of proof to the contrary will be construed as general in nature. ..
11.5.6. medical battery is lack of consent (more egrebious problems by doctor (wrong patient, wrong leg...), informed consent (malpractice) is consent without proper informing of the risks (negligence). notes; distinguishing battery from informed consent cases. Medical battery v. informed consent. Medical battery is lack of consent, informed consent is consent w/o proper informing about risks (negligence). Number of important reasons; statute of limitations different and special rules for negligence based medical malpractice.
11.5.6.1. emergencies;?
11.5.6.2. substituted consent (guardian or consent of relatives etc.) can’t always agree if can override wishes of patient. How decide best interests of patient or what patient would do?
11.5.6.3. consent of minors. Can consent to touchings appropriate to their age. Usually ok to abortions (supreme court decision), but not ok for sex. Minor’s consent is ineffective and provides no defense. generally. But not liable if both minors. Can be judged differently in criminal or civil actions. 16 yr old male rebuttably presumed to have capacity to consent to homosexual acts with older man (even though his consent would be no defense in a criminal action suit).
11.5.6.4. consent to illegal acts is ineffective (illegal boxing match, both could be liable to each other. But courts can fudge or change if want. Sometimes statute may also change things (where victims are often induced to consent, by preassures the legislature wants to protect against).
11.5.7. revocation of consent. P can revoke her consent at any time by communicating her revocation to the D.
11.5.8. doe v. Johnson; Johnson knew or should have known that he had high risk of being infected with HIv, but did not warn doe of this risk or inform her that he did in fact have hiv nor did he use a condom One who knows he has a venereal disease and knows that his sexual partner does not know of his infection, commits a battery by having sexual intercourse. Here not intent to harm, rather probable knowledge of result.
11.5.9. consent procured by mistake or misrepresentation. Consent acquired by fraud is no consent. P’s mistake must be about nature of transaction consented to (mistake regarding collateral matters don’t count).
11.5.10. if homeowner opens door to purported meter reader. Consent is not defense to suit for trespass. But not about fraud, rather the interest that the tort protects.
11.5.11. express consent written, verbal, implied consent based on circumstances.
11.5.12. Questions;Does it appear to a reasonable person that that person consented to contact? D would have to believe that P consented (reasonable belief). Consent can be delegated to third person if incapacitated.
11.5.13. child; usually parent has power. Sometimes child has capacity, sometimes child’s consent can be overridden by parent. Abortion situations right now, minors don’t need parental consent. Can be parental notification statutes if there is a provision for judicial bypass.
11.5.14. avoiding consent; fraud or misrepresentation. If it goes to heart of transaction. If it is material misrepresentation, then consent can be voided.
11.5.15. consent under duress or coercion and then invalid. Abuse of power relationship.
11.5.16. could be a problem with p’s capacity. Drinking, age, medical state, (white v. mooney).
11.5.17. should criminal statute apply in a civil case? (to avoid consent) it might or it might not. There are good arguments on both sides.
11.6. privileges not based on p’s conduct
11.7. arrests and searches. Officers privileged to enter land to execute search or arrest warrant, but not privilege to invite media to cover. (and media has not privilege to enter land w/o consent).
11.8. public rights; user of public utility or common carrier has privilege to enter appropriate portion of the premises. Places open to public can’t deny the right of public can’t exclude by race or gender. Privilege to enter land to reclaim goods of one’s own. Free speech rights to enter shopping malls and campaign on public issues there..
11.9. public necessity
11.9.1. sirocco v. geary d(public officer) blew up her house in trying to stop fire. The individual rights of property give way to higher laws of impending necessity which come from natural law. Necessity gives a preference with regard to private rights. If reasonable belief in the need for taking the property of another.
11.9.2. Eminent domain case would have to be compensation, but necessity by common law doesn’t need compensation. neccessitas inducit privileguim quod jura private. Because there (eminent domain) city has choice. We want them to weigh the pros and cons. However, if there is emergency we don’t want them to shrink from the right action, because weighing economic pros and cons. Difference is emergency.
11.9.3. priviledge may be overridden if there is an appropriate state constitutional provision.
11.9.4. Distinguish takings for public use from takings that remove a public nuisance.
11.9.5. Takings for public use (highways) require compensation under the 5th and 14th amendments.
11.9.6. Takings for public nuisance different.
11.9.7. wegner v.
Above;Possibility of state tort claims. Is there official immunity, is there vicarious immunity. Necessity might apply to privilege. Even if official immunity and vicarious immunity for state tort, then constitutional takings claim . not all states have statutes. Those things work together. Even if civil rights claim (officers have privilege) they may also have qualified immunity for say 1983 claim. EXPLORE ALL POTENTIAL OPTIONS.
11.10. private necessity
11.10.1. ploof v. Putnam; family sailing bad storm, tied up on someone else’s dock. That person’s agent untied boat, boat destroyed and persons injured. D had duty to permit sloop to remain moored there. (duty by D to allow trespass, but p still has to pay actual damages). Entry upon land to save goods, which are in danger of being lost, destroyed by water or fire, not trespass etc.
11.10.2. Vincent v. lake erie transportation; ship at port in dock, big storm, lines kept fast, end dock had damage from ship. Ok that D kept ship there in storm, but then owes P actual damages. Dissent; legal status of parties should not be changed by renewal of cables.
scheme of negligent wrongs
12. prima facie case for negligence.
12.1.1. fault; General principle.. loss from accident must lie where it falls. Accident is anything he could not fairly have been expected to contemplate as possible and therefore avoid. All injury arising from inevitable accident that ordinary human care and foresight are unable to guard against, is misfortune of the sufferer and no legal responsibility.
12.1.2. institutions and elements of negligence any conduct that creates an unreasonable risk of harm to others. It is actionable when that risk comes to fruition and causes actual harm. In general person owes a duty to exercise reasonable care to avoid foreseeable risks of injury.
12.1.3. assessing responsibility
12.1.3.1. fault; intentionally harming …
12.1.3.2. causation. Not responsible if didn’t cause.
12.1.3.3. fixing scope of responsibility. Proximate cause. Not legally responsible for every harm that occurs because of one’s negligence.
12.1.3.4. duty to take responsibility. Not every problem is d’s responsibility.
12.2. General formula for negligence (5 elements).
12.2.1.1. d owed p a legal duty.
12.2.1.2. d by behaving negligently breached duty
12.2.1.3. p suffered actual damage
12.2.1.4. D’s negligence was proximate cause of damage.
12.2.1.5. d’s negligence was actual cause of damage
12.2.2. products liability is negligence principle. Critical issue is breach of care. Judge decides if d owes duty (usually matter of law).
12.2.3. In general person owes a duty to exercise reasonable care to avoid foreseeable risks of injury. primary consideration is foreseeability in most cases. In general no-duty determinations should be relatively rare.
12.2.4. proximate case (not on exam skip it)
12.2.4.1. tort reform; sometimes cap damages, no punitive damages but mostly left alone. The point liability has to be cut off somewhere. Duty denotes a set of rules/considerations that courts apply to limit recovery.
12.3. DUTY
12.3.1. duty varies depending on circumstances, but essential question is same.
12.3.1.1. variations; emergency, children, insanity etc.
12.3.1.2. prudent person standard. owed by all persons generally, to exercise the care that would be exercised by a reasonable and prudent person under same or similar circumstances to avoid or minimize risks of harm to others.
12.3.1.3. Q; what would a reasonable person have done under these circumstances? (or not done). If have negligence and direct cause then liability.
12.3.1.4. if no or questionable proximate cause then move to dismiss and judge would decide as matter of law.
12.3.1.5. steward v. motts repair shop guy helping explosion. There is only one standard of care; reasonable care (the question same, the answer may vary depending on circumstances). “We do not believe that these cases created a heightened or extraordinary standard of care above and beyond the standard of reasonable care for handling dangerous agencies. Not second tier, but recognizing general principle that under reasonable care standard, the level of care must be proportionate to danger involved.”
12.3.1.6.
12.4. duty of child; Q; what care a reasonable child would have used who was; the same age, intelligence, training and experience. In same or similar circumstances. Except when child engaged in what is normally only dangerous adult activity.
12.4.1.1. restatement 3rd §10; child standard of care doesn’t apply when child is engaged in dangerous activity that is characteristically done by adults.
12.4.1.2. robinson v. Lindsay-minor operating snowmobile is to be held to an adult standard of care. Normal duty of child is reasonable child of same age, intelligence, maturity etc. but different if doing something inherently dangerous.this policy protects need of children to be children, but protects public from injuries (from dangerous activities0 and emphasizes hazards to public. (dellwo court cited cases; tractor, motorcycle, mini-bike, and care.
12.4.1.3. rule of sevens (some jurisdictions) 14+ are presumed capable of negligence, 7-14 presumed incapable of it and those below 7 incapable as matter of law.
12.5. insane persons duty
12.5.1. creasy v. rusk. Alzhiemer’s and in institution. Rusk didn’t lack capacity for intent, however, one employed to take care of patient known to be compative, has no complaint for injuries sustained in doing so. Rusk not liable. A person with mental disabilities is generally held to same standard of care as that of normal adults, however, person may consent to specific touchings if known to be part of their job description.
12.5.2. policy for holding insane persons have intent
12.5.2.1. Allocates losses between two innocent parties to one who caused.
12.5.2.2. Provides incentive to those responsible for people with disabilities to restrain or prevent.
12.5.2.3. Removes inducements for alleged tort feasors to fake a mental disability in order to escape liability/
12.5.2.4. Avoids administrative problems attempting to identify and assess the significance of an actor’s disability.
12.5.2.5. Forces persons with disabilities to pay for damage they do if they are to “live in this world[z4] ”.
12.5.3. a mentally disabled person involuntary hospitalized does not owe a duty of care to his professional caregiver and is not liable for negligence or recklessness causing caregiver harm.
12.6. limitations low intelligence and other mental or psychological limitations are treated same way. Durfee low intelligence burns down neighbors house cause didn’t know oil in garage would be fire danger. “he did not escape liability because he did “the best he could do” or because he behaved as well as others of similar intelligence
12.7. contributory negligence; common law called a p’s negligence contributory negligence. Held barred P recovery completely. But most states now contributory negligence doesn’t bar only operates to reduce P’s recovery of damages, but does not necessarily bar all recovery. P should take reasonable care for herself not on her failure to take care for others
12.8. persons with superior knowledge
12.8.1. hill v. sparks. Operator of machines, heard someone saying to stop same thing and why, still directed sister to ride…Standard of reasonable man requires only minimum of attention, perception, memory, knowledge, intelligence and judgment in order to recognize the existence of risk. If actor has more then minimum knowledge or skills then required to exercise them in manner reasonable under the circumstances.
| Do you take these into consideration when determining if D used reasonable standard of care? | ||
| | P | D |
| Physical disability (is a circumstance to take into consideration) | yes | yes |
| Mental disability | Maybe; if contributory negligence is an issue? 1. Duty? 2. contributed[z5] ? | No (yes when institutional setting, when everybody knows) |
| insanity | Same as mental dis. | no |
| childhood | Yes (if not adult activity) | Yes (if not adult activity) |
12.8.2. roman v. estate of gobo bypass surgery, dtrs did not counsel quit driving. Heart attack while driving. Crash. Sudden incapacitating medical emergency while driving is a complete defense to an action based on negligence if such a loss was not foreseeable. Defense that must be affirmatively proved.
13. negligence per se;
13.1.1. martin v. Herzog. Driving at night crossed ctr line. Violated statute. This court says; “we think that unexcused omission of stautory signals is more then evidence of negligence. It is negligence in itself.” Matter of law.
13.2. negligence per se; assessing impact of statutes in civil litigation. It is negligence as matter of law.
13.2.1. if there is express remedy for violation? Then doesn’t matter. Express remedy, don’t have to worry about statute standards of care etc.
13.2.1.1. problems rise when not express or implied remedy, but trying to use criminal statutory standard, you may want to try to apply that standard to determine what standard or conduct. What you want is a jury instruction that if they violated statute, then they are negligent. So q is not did they exercise standard of care, but did they violate statute. Statute relates only to whether d acted negligently (what it does is replace standard of care). For it to apply it has to be built on base of common law duty; if there is no correlative common law duty, the statute may be used to persuade the courts to create the duty. Some say yes, some say no. ( in child abuse case general rule is that you don’t own any duty to guard against criminal conduct of 3rd person-so in this case statute doesn’t help). (dram shop no common law claim for that but statute provides because express remedy)
13.2.1.2. a court may take statute into consideration in deciding whether or not the court should create a common law duty. Court isn’t implying cause of action. Just that statute is important in determining whether there is a duty. But still would be able to give jury instruction of negligence per se.
13.3. QUESTIONS: to decide if statute applies; 1. need to see does p fall within the class of persons to be protected by statute?2. Did p suffer the kind of injury the statute was intended to avoid.
13.4. assuming that we have applicable statute, next questions 3. are there any excuses or justifications may be allowed.
13.5. unrebutted prima facie case will act same as negligence per se, but it vanishes if D gives evidence that s/he has made reasonable standard of care (mn for traffic code is prima facie) .
13.5.1.1. lets assume statute doesn’t apply (P falls outside protective circle), so can the statute still be used. Could be used as evidence of negligence (yes, but not as prima facie or negligence per se)”these are reasonable standards, look at statute…” but you won’t get jury instruction (if broke statute then negligent etc.). if you want to introduce, must decide what it goes to prove (are precautions feasible, reasonable, is the danger foreseeable etc.)
13.5.1.2. generally law of jurisdictions is negligence per se.
13.5.1.3. excuses and justifications; (288A 2nd restatement of torts) or §15 of 3rd restatement.
13.6. rains v. bend of river 18 found stole gun, purchased gun from vendor and killed himself. Illegal (statute)to sell guns to minors. Court; yes violation is negligence per se, because this statute (fed gun control act) is designed to protect public and should trigger negligence per se when violated. But in this case not cause of harm. Also
13.7. TEST OF NEGLIGENCE PER SE (two main questions);
13.7.1. P belongs to class of persons the statute was designed to protect.
13.7.1.1. P’s injury is of type that statute was designed to prevent.
13.7.1.1.1. Courts also consider;
13.7.2. Statute is sole source of D’s duty
13.7.3. Statute clearly defines prohibited or required conduct
13.7.4. Staute would impose liability without fault
13.7.5. Invoking would result in damage awards disproportionate to statutory violation
13.7.6. P’s injury is direct or indirect result of violation of statute.
13.7.6.1. rejecting statutory standings imposing new duties. D in most negligence per se cases already owes P a preexisting common law duty to act as a reasonable prudent person, so statute role is merely to define more precisely what conduct breaches that duty. When statute creates wholly new obligation and does not in itself create a new cause of action. Courts tend to give statute no tort law effect at all.
13.7.6.2. child’s standard. as to children; we hold that violation of statute does not constitute proof of negligence per se, but may in proper cases e introduced as evidence of a minor’s negligence.
13.7.7. licensing statute; mostly negligence per se doesn’t work with this statute.
13.7.8. wright v. brown. Dog attacked and bit p and had been released early (according to statute) from quarantine based on dog bite statute. Court ruled that her injury was not from a diseased dog, which is what the statute is designed to prevent.
13.7.9. Strict liability statutes;
13.7.10. Violation of exceptional statute may result in imposition of strict liability (take away contributory negligence and defenses or defense of assumption of risk – example keeping toxic glue out of hands of minors. Cases involving common law/social host/ tort liability not always apply. Mn 340A.801 sub. 6. incases where someone 21 years of age or older furnishes alcohol to someone younger. That would include sta. violations. Accident sue older then 21; you would think this would apply, but it is a defense. even though stat. is intended to protect minors against their own lack of judgment) no reason, but court just said.
13.7.11. Look at clear wording of statute and can look at legislative history. Etc. POINT IS DON’T GET PERFECT RESULTS IN APPLICATION OF STRICT LIABILITY
13.7.12. excused;
13.7.13. impson v. structural metals driver of truck attempted to pass car within 100 ft. of intersection ( in violation of statute). Here d excuse was d had forgetten existence of intersection in question. Sign marking intersection was small. No lines in road. But all of those matters fall within ordinary care or lack of it. d made move deliberately with knowledge of law and at least notice of intersection. The emergency here was after statutory violation had begun. No evidence of legal excuse here.
13.8. here are five categories of legally valid excuses (from impson v. structural metals);
13.8.1. violation is reasonable because of actor’s incapacity. (too young, no mental capacity, blind man who walks red light)
13.8.2. actor neither knows nor should know of occasion for compliance. Cases where night driver has tail light go out unexpectedly and without knowledge.
13.8.3. actor unable after reasonable diligence or care to comply. Impossibility.
13.8.4. confronted with emergency not due to own misconduct. Unexpected brake failure.
13.8.5. compliance would involved greater risk of harm to actor or others. Law requires people to walk facing traffic, but particular circumstances would involved greater risk to walk there.
13.8.6. general rule; mechanical failure is more predictiable and thus more preventable then medical emergency. But not always.
14. breach or negligence element of negligence case.
14.1.1. breach; assessing reasonable care by assessing risks and costs.
14.2. Questions; 1. determine duty, then ask 2. did d breach that duty. If d did, then negligent.
14.2.1.1.1. negligence is conduct that imposes unreasonable risks of harm. When a reasonable and prudent person would forsee the harm that might result and would avoid conduct that creates risk. It may include a failure to act, if action is required. Negligence entails overt behavior that creates risks a reasonable person would avoid.
14.2.1.1.2.
14.2.1.1.3. lee v. GNLV patron choked at restaurant. Had been drinking. No breach. Burden upon food service industry of providing medical training would be high in light of the “low probability that this situation would occur on a regular basis” consequently reasonably care only requires that the d summon medical assistance within a reasonable time.
14.2.1.1.4. As a general proposition no duty to rescue even if you could do so without harm to yourself.
14.2.1.1.5. fintzi v. new jersey YMHA-YWHA; p 10 fell on wet grass while participating in a relay race at d’s camp. Merely allowing children to play on wet grass does not constitute negligent supervision.
14.2.1.1.6. bernier v.
14.2.1.1.7. giant food inc. v. Mitchell; matter of law the attempted recovery of property here did not expose invitees to unreasonable risk of harm. The fact that injury was foreseeable does not by itself show negligence rather degree of risk of harm to invitees must be weighed against the privilege to protect one’s property.
14.2.1.1.8. parsons v. crown disposal. Social value of interest is garbage collecting ((vital public service and matter of high social utility) d is not negligent merely because he uses a machine that produces noises necessary to its regular operation, even though fright of horses might be foreseeable.
14.2.1.1.9. Questions; 1. does court state appropriate factor in determining liability? 2. does court state the test or factor fully and technically? 3. Did court apply test accurately? Could you accept opinion as adequate statement of principle but think wrongly applied.
14.2.1.1.10.
14.2.1.1.11. party asserting negligence first identifies some specific act of negligence, then identifying some specific safer conduct that might have been pursued if alternative conduct was safer, the court will want to know how much safer and something about its costs.
14.2.1.1.12. Foreseeable=not only foreseeable but also too likely to occur to justify risking it without added precautions
14.2.1.1.13. When courts say that harm is unforeseeable =a reasonable person would not have taken action to prevent it because the risk of harm was low, and harm was so improbable that a reasonable person would not have taken safety precautions. …romine v.
15. assessing responsibility when more then one person is negligent.
15.1. pure; where p can recover if % of fault is greater then d.
15.2. modified; where p can’t recover if % of fault.
15.3. jury assigns fault to parties.
15.3.1. comparative fault. P’s recover damages reduced in proportion to her fault. (only for negligence and strict liability cases, not for negligence).
15.3.2.
15.3.3. hammons v. poletis. Guest in d’s motel took hold of towel bar and pulled out of wall. Wall was moldy and soft or putty like. Held; no expert testimony indicating type of material behind tiles or how long it would take to become crumbly and rotted, but even so jury could reasonably infer based on common knowledge and ordinary human experience.
15.3.4. slip and fall. Can prove by; circumstantial, custom, res ipsa (the thing speaks for itself).
15.3.5. thoma v. cracker barrel old country store. P’s version of the incident could be reasonably inferred from the facts (so can d’s) so d didn’t prove p wrong (summary judgment motion). Inferences that arose which could establish the length of time that the dangerous condition had been present on the floor, a critical element in proving that appellee, through exercise of ordinary care, should have known of the condition.
15.3.6. 3 common theories of liability; P can show negligence on the party of the d by proving.
· d created the dangerous condition
· d didn’t create but discovered or should have discovered a condition and should have taken precautions to prevent injury.
· d’s mode or method of business operations made it too likely that others would create a dangerous condition.
15.3.6.1. evidence that d should have discovered. The chief method approved by courts is to show that the substance has been there for a relatively long time. Then jury permitted to conclude that a reasonable person should have discovered and remedied it. then d was on “constructive notice” of danger, meaning only that he should have discovered it.
15.3.6.2. evaluating reasonablness. Evaluation of conduct. If infer that okra has been on the floor for an hour, we are left with problem of evaluating d’s conduct. A. p can show the volume of customer traffic in the area where she fell. B. can risk utility test be applied in evaluating the restaurants conduct in thoma? Could you evaluate the conduct by considering the consumer’s reasonable expectations instead?
15.3.6.3. Ortega v. kmart. Whether a dangerous condition has existed long enough for a reasonably prudent person to have discovered it is a question of fact for jury, and cases do not impose exact time limitations. Each accident must be viewed in light of its own unique circumstances.
15.3.6.4. In blair v. west town mall; D might be found to be negligent “a pattern of conduct, a recurring incident, or a general or continuting condition indicating the dangerous condition’s existence was proved.
15.3.6.4.1. A few courts have gone further shifting the burden of proof to the shopkeeper to exculpate itself once the p has shown a fall due to a foreign substance.
15.3.7. employee handbook
15.3.7.1. walmart v. wright slip and fall company rules are admissible, but not conclusive on standard of care. Actual standard of care cannot be higher then required by law. (even if employee handbook states much higher standard).
15.3.7.1.1.
15.3.7.1.2. notes; general rule; evidence that d violated customary safety precautions of relevant community is usually sufficient to get p to jury. So safety rules come in if relevant.
15.3.7.1.2.1. what custom proves. That harm was foreseeable. That d knew or should hav known of risk, that risk was “unreasonable” one unless customary precaution was taken, and that safety precaution was feasible.
15.3.7.1.3. other then safety custom; Levine v. russel
15.3.7.1.4. mccomish v. desol paper making machine. Safety codes of private companies and govt. agencies. None had force of law, but admitted by tj. Law permits methods practices or rules experienced men generally accept and follow to be shown as aid to jury when comparing conduct of d to required norm of reasonable prudence. It is not suggested that safety practices are themselves the absolute measure of care. But they aren’t in and of themselves the absolute measure of due care. Only evidence of how to …as commonly practiced by those who have experience doing it.
15.3.7.2. TJ hooper barges towed by tugs and lost in gale. Regardless of custom, the court may decide that the precautions are so imperative (in this case cheap and effective) that even the most universal disregard will not excuse omission.
16. res ipsa loquitur
16.1. res ipsa doesn’t give you duty, only breach.
16.2. byrne v. boadle p flour barrel fell on head. 1. heavy barrels of flour need to take care with them and in this case, type of accident probably wouldn’t occur without negligence, and evidence under control of d. IN that case likelihood of negligence is strong enough to rpove a prima facie case, by the incident itself.
16.3. elements;
· event of kind which ordinarily does not occur in the absence of negligence.
· instrumentality or agent that caused was under exclusive/constructive control of d at the time the negligent act occurred.
· other responsible causes are sufficiently eliminated by the evidence.
16.4. It is the kind of evidence that permits jury to infer duty/causation
16.5. restatement §17 liability for physical harms; fact finder may infere that d has been negligent when the accident causing the p’s physical harm is type of accident that ordinarily happens as a result of the negligence of a class of actors of which the d is relevant member.
16.5.1. valley properties ltd v. steadman’s hardware; d rented space from p, had only keys. Fire from electrical wiring. P sued d and argued res ipsa loquiture. Held; to have res ipsa loquitur; 1. event is of kind which ordinarly doesn’t occur in absence of negligence. 2. other causes are sufficiently eliminated 3. indicated negligence is within scope of d’s duty to p.
16.5.2. eaton v. eaton; mom and daughter driving. Accident. Lots of damage passenger side. Mom dies, daughter few injuries. Daughter says was not driving. Mom said was. Dad sues daughter for wife’s death. 3 conditions for res ipsa; 1. accident does not ordinarily happen unless someone is negligent. 2. cause of accident under exclusive control of d. 3. event was not caused or contributed to by injured person. res ipsa inference however does not shift burden of proof. Facts are said to provide circumstantial evidence of negligence to be weighed, but necessarily accepted as sufficient. Jury may, but need not.
16.6. judges use common sense to figure out if event usually occurs in absence of negligence.
16.6.1.1. res ipsa locuitur when d’s duty of care is limited. Some situations standard is much less demanding and d breaches his duty to p only if d is chargeable with gross negligence or reckless misconduct. ..suppose in byrne; p without invitation had walked into d’s shop to look around and was hit. (no, but gross negligence could be inferred in certain circumstances).
16.7. permissible inference effect; jury may reject inference. Inference in res ipsa case is merely permissible, but does not shift burden.
16.8. abnormally strong inferences of negligence. De
16.9. attributing the fault to d rather than to others.(b)
16.9.1. giles v. city of
16.10. avoid divided control problem if you divide responsibilities or if you have a theory that makes one party liable for all others. (car crash with both cars working for same company).
16.11. contributory negligence simply because p is negligent doesn’t mean that res ipsa doesn’t apply. If in comparative fault jurisdiction. Unless jury finds that p is really responsible for action.
16.12. rule; res ipsa can still apply even if p’s negligence contributed to injury.
16.13. contemporary view of control rule; control is only one way of establishing important point that negligence was probably that of d
16.14. instrumentalities accessible to public, generally where instrument is accessible to public d is not in exclusive control. Which sometimes matters and sometimes not, depending on courts
16.15. no res ipsa= slip and fall.
16.16. Collins v. superior air-ground ambulance serv. Elderly women, daughter sent her to health care center for 5 days. Ambulance transported. Women and broken leg and dehydrated. D said because 2 ds then couldn’t show either had control. Ct held; where there are only two d who had consecutive control over p and either one could have caused p’s injuries and both are named. Complaint is sufficient for pleading purposes to reaise inference of negligence under doctrine of res ipsa.
16.17. cosgrove v. commonwealth. Stormy night, sparks. Some point power line falls. Then fire. Evidence indicated leak in buried gas line. Held; p cannot rely on res ipsa for power line, other good reason it could have fell. But can rely on res ipsa for gas leak, a buried gas line shouldn’t leak unless negligence. Even if gas company blameless, its superior knowledge of the facts at hand and its responsibility to community create a duty to come forward and make explanation.
16.18. what happens if p tries to prove certain acts of negligence and the jury rejects those features?
widmeyer v. southeast skyways plane crashed. P should not be precluded from using res ipsa, just because they have offered a possible explanation to jury. And general safety record of air travel and present state of air technology compel us to conclude that air crashes do not normally occur absent negligence even in inclement weather. thus we will not require a p to negate the possibility of weather as a cause of an airplane crash in order to obtain the benefit of a res ipsa instruction.
16.18.1.1. probability and experts; when no fund of common knowledge would enable a layperson to reasonably draw such a conclusion. P may present expert testimony that such an event usually does not occur without negligence.
16.18.2. rear end collisions; some courts address this through res ipsa. Others through specific negligence
16.18.3. rebutting the inference. Courts also recognize (for rear ending) that it creates an inference or presumption of negligence that the d may rebut with evidence.
16.18.3.1. burck v. Pederson; statute prohibits any evidence of seatbelt usage or nonusage in personal injury action arising from motor vehicle accident. Here trying to use to show seatbelt hurt her. Court says that although it doesn’t seem like this was purpose of law it is plain language and doesn’t specify that it is not the purpose.
16.19. joint and several liability apply where;
16.19.1. two or more d’s acting jointly, concurrently (can’t separate which d caused which damage. Or successively (if manufacture makes pill then someone else bottles it. etc. then they could all be successively liable.
16.19.2. common liability; all at fault.
16.19.3. if injuries can be divided up by fault, then each pay for one caused.
16.19.4. if p collects from only one of the d’s that d has right of contribution from the other ds to the extent of overpayment.
16.19.5. depends on jurisdiction. Some legislatures abolished. Actual judgment will say (p can get $ from all d and if one d pays all, then d can get from other ….)
17.
[z1]Feds? Yes, but not under this statute – bivens action 1971. liable for violating P’s constitutional rights (1,4 5,8, typically). Says that constitutional rights don’t need statute are action in themselves.
[z2]*****Jury instructions (database in westlaw ji-all). 3B, Fed. Jury Prac. & Instr. §165.23 (5th ed. Arrests)
1. extent of injury suffered
2. need for application of force
3. relationship between need and amount of force used
4. threat reasonably perceived by the responsible officials and
5. any efforts made to temper the severity of a forceful response. Injuries which result from , for example an officer’s ….
6. about reasonableness!!!!
Police officers plead- qualified immunity. if applies then case gets dismissed on summary judgment. Not many cases get beyond that affirmative defense.
Establishing whether right is clearly established, is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.
[ZM3]MN human rights act, statute that prohibits discrimination in the workplace. Age, religion, race, sex etc.
[z4]Same rational as in palmatier v. russ
[z5]Is contributory negligence is a defense in the first place? Are there times when contributorty negligence could not be a defense.
Person suicidal committed, people know. Put person in locked ward. But fail to take away a bag with strap that patient uses to commit suicide.
Pretty good argument that it should not be. If P in custodial situation and D”s duty is to guard against then why should p have duty.
Argument would be that contributory negligence would not be a defense in first place.
What about person taken custody of by police arguable that contributory defense should not be taken into account.
[z6]. (but no sig. prejudice resulted, judgment affirmed.)
1 comment:
wow. It took me all afternoon to scroll to the comments section.
This is incredible. Did you cut and paste to get these on?
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