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Multistate Torts


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Main question in Torts
Is this D going to be liable to this P for the tort at issue?
1. Can the P prove the elements/prima facie case?

If no, then no liability

If yes, then are there any good affirmative defenses?

If no, then D will be liable.

If yes, then D will not be liable.
General Test Taking Tips for Torts
1. The P's super-sensitivities are not to be taken into account unless the D knew of them in advance.
2. Everybody can be liable for intentional torts.
3. A person "intends" the consequences of her action if it was her purpose to bring about the consequences or if she knew to a substantial certainty that the consequences would occur. EX - Ballplayer throws bat into stands in frustration. Liable b/c he knew to degree of substantial certainty that by throwing the bat into the stands it would hit someone.
4. Transferred intent: Intent can transfer from tort to tort and from intended to actual victim. EX - intending to commit a trespass on the land of Neighbor, D jumps over the fence landing on fiance. Intent to tresspass tranfers to battery and intent to victimize Neighbor transfer to Fiance.
Prima Facie Case for Battery
1. Harmful or offensive contact
2. with the P's person
Offensive Contact
= unpermitted contact BUT don't take P's super-sensitivities into account. EX - D taps P on shoulder asking for directions to the bathroom. That contact is not considered offensive or unpermitted to the ordinary person.
With the P's person
Can be anything connected with the P. EX - contact with plate P is holding in his hand or shaking a car while P is inside are both contact with the P's person
Prima Facie Case for Assault
1. Apprehension of
2. an immediate battery
1. Must be reasonable
2. Not to be confused with fear or intimidation EX - weakling trys to punch strong man = apprehesion of immediate contact even though probably not scared or intimidated
3. Apparent ability creates reasonable apprehension EX - unloaded gun pointed at you creates reasonable apprehension though there is a lack of abiliy to shoot
1. Words alone are not enough. EX - if you don't promise me a job, i'll hit you

2. Words coupled with conduct can be enough - While shaking first saying if you don't promise me job, i'm going to hit you

3. Words coupled with conduct can undo the conduct and any reasonable apprehension EX - shaking fist and saying if you weren't my best friend I'd hit you NC Rule - if there is a weapon then words can't undo
Test tip for Battery and Assault
If facts indicate both battery and assault - choose battery
Prima Facie case for false imprisonment
1. Sufficient act of restraint
2. to a bounded area
Sufficient Act of restraint
1. Threats are enough (i.e. you don't have to tie me up but threating me can be sufficient for restraint)

2. Inaction can be enough if there was an understanding that D would act for P's benefit EX - D carries P accross the ocean and then refuses to give her means to come ashore

3. P must be aware of the confinement

4. Length of time of confinement is irrelevant
Bounded area
1. Mere inconvenience not enough EX - barricade which forces you around the block not a bounded area

2. Not bounded if there is reasonable means of escape of which the P is aware EX - Not reasonable if means of escape is a rat infested sewage pipe EX - Not a means of escape of which P is aware is escape can be made through hidden passageway
Prima Facie case for Intentional Infliction of Emotional Distress
NOTE: This is a fallback tort - look for it before saying no liability but if there is another answer that imposes liability --> choose the other answer

1. Outrageous Conduct
2. Damage
Outrageous Conduct
1. Continuous - conduct which might not be outrageous if isolated might becoeme outrageous if continuous EX - insulting you hour after hour, day after day

2. If the P is a young child, an elderly person or pregnant woman

3. If the D is a common carrier or innkeeper and the P is passenger or guest
Need proof of severe emotional distress and in NC - Present when there is any emotional or mental disorder or condition that may be generally recognized and diagnosed by professionals trained to do so
1. Recklessness is enough
2. Can't transfer intent EX - intent to commit a battery on X cannot be transferred to intent to inflict emotional distress on P(Note: if D knows that relative is a witness then there may be liability but here you don't need the transferred intent b/c you will have it directly)
Intentional Torts to Property
1. Trespass to Land
2. Trespass to Chattels
3. Conversion
Prima Facie case for Trespass to Land
1. Act of physicial invasion
2. to land
Act of Physical Invasion
1. No need to show knowledge of crossing a property line.

2. Propelling a physical object (i.e. rock, brick, water but not light or odor) onto property will suffice
Includes the airspace above and the subsurface below so long as we are talking about a distance where one could make reasonable use of the space EX - airplane flying over at 30k feet NOT trespass but kid throwing ball accross your lot to the street is trespass
Damages - 4th Element of Negligence
P must proved damages as part of her prima facie case for negligence. The elements of a typical award are:
1. past/future medical expenses
2. past/future earnings
3. pain and suffering

"Eggshell Skull" Rule - D is liable for the full extent of the damages he causes, even if the extent was unforeseeable EX - if you cut someone you can be liable for $1 band-aid or if the person were a hemophiliac, their death.

NC rule - P can recover punitives only if D liable for compensatory and P can show more than negligence. Capped at the greater of 3x compensatory or $250k - there is an exception for DWI.
Prima Facie Case for Trespass to Chattels and Conversion
1. Act of invasion
2. to personal property

HINT: Some damage --> trespass to chattels
A lot of damage --> conversion
For conversion damage = interference with possessory rights
Defenses to Intentional Torts
1. Consent
2. Self-Defense
3. Defense of Others
4. Defense of Property
5. Necessity (only for property torts and then still liable for economic damages)
Defenses to Negligence
1. Contributory Negligence
2. Assumption of the Risk
3. Comparative Negligence
1. Must have capacity to consent EX - Children, mental impairments, force or coersion, fraud or mistake all negate capacity

2. Express Consent - "Do it" BUT look for facts relating to mistake, fraud or coercion EX - giving mudpack with shit, though P consented was mistaken as to substance and D used fraud to get consent

3. Implied consent - arises though custom or usage or through a P's own conduct EX - taking part in football game is consent to be tackeled but not to be kicked in groin - test is the reasonable D not the subjective knowledge of the P (so if P was unaware of the rules of football but was in the game the D isn't liable)
A person is justified in using reasonable force to prevent what she reasonably believes to be an imminent threat of force against her.
Contributory Negligence
Abolished in all but a few states but still the rule in NC.

A P's failure to use the relevant degree of care for his or her own safety.

Same degree of care as ordinary negligence - but NC twist is that a P with diminished mental capacity is compared to prudent person w/ the same mental capacities
Reasonable belief
Reasonable person in the D's position would have believed that she was in danger.

Must be both subjectively true for that D and objectively reasonable. EX - nervous D sprays mace at woman who reaches into pocket --> belief that in danger not reasonable even if D subjectively believed he was in danger

TIP: when reasonableness si the standard, the correct standard will normally be in the answer - i.e. the answer in the above situation would be "D is liable b/c the belief was not reasonable"
Reasonble Force
A person may use only the degree of force reasonably necessary to avoid the threatened harm.

1. Deadly force - reasonable only when D believes that she is facing a threat of deadly force herself EX - can't shoot the P b/c he is hitting you

2. Retreat - Modern trend is that you have to retreat before using deadly force if you can do so safely unless you are in your own home.
Consequences and Ameliorating Doctrines - Contributory Negligence
If the P is contributorily negligent then it is an absolute bar to recovery.

"Last Clear Chance" (NC = Humanitarian doctrine) - If the D has the last clear chance to avoid the injury but failed to do so then P can cover despite P's negligence.
Defense of Others
A person may defend another person in the same manner and under the same conditions, as the person attacked woudl be entitled to defend himself.

Mistaken Belief - D is not liable if he reasonably believed that another person was endangered
Defense of Property
A person may use reasonable force to defend his real or personal property BUT deadly force may never be used to protect property alone.

Distinguish - D shoots Burglar in her bedroom, when Burglar sues for battery D may properly raise the defense of self-defense not defense of property.

Shoplifters - Shopkeep may detain in reasonable manner for reasonable time. NC rule - requires the Shopkeeper to have probable cause not just a reasonable belief that theft was occuring
Assumption of the Risk
Not important in NC b/c contributory negligence.

Can be:

1. Express Assumption of the Risk

2. Implied Assumption of the Risk
Only available as defense to intentional torts to property.

1. Public Necessity - unlimited privilege to protect a lot of people EX - Mayor orders homes destroyed to prevent the spread of fire

2. Private Necessity - qualified privilege to protect a limited # of people or self EX - D has engine trouble and lands small plane in P's soybean field. In an action for trespass to land, D can assert the defense of necessity but must pay for the economic damages.
Prima Facie case for Defamation (common law)
1. defamatory statement that is false
2. of and concerning the P
3. publication
4. damages
Express Assumption of the Risk
= "I'll take my chances" says P

Complete Bar to Recovery except in cases where public policy won't allow P to assume the risk in question.

EX - can't assume the risk of negligent medical care BUT you can assume the risk of negligence of employees in recreational activity i.e. skiing.
Defamatory Statement
= one that injures the P's reputation (name calling is not enough)

EX - calling someone a buffoon is not defamatory but saying that a doc performed unnecessary lobotomies would be b/c it suggests he is incompetent and he is perhaps a criminal

BUT truth is a defense to a defamation claim at common law and the D bears the burden of proving the truth of his statement
Of and concerning
The D's statement must reasonably be understood to refer to the P

EX - D says "The lawyers in this town steal" - this would be of and concerning in a small town of 3 lawyers but would not be in a large city with 1000's of lawyers
Implied Assumption of the Risk
1. P must have knowledge of the risk
2. and the encounter with the risk must be voluntary.

1. The absence of an alternative destorys voluntariness EX - In trying to leave the only exit, P falls into excavation pit. Not voluntary b/c this was the only way out.

2. emergency situations destroy voluntariness - P jumps in front of speeding car in order to push child out of the way
= communicated to a 3rd person (but need not be printed in the paper or televised on tv)

Caveats: The thrid person must be capable of understanding the statement AND the Publication must at least negligent if not intentional EX - you haven't published if eavesdropper overhears private conversation
"No harm, no foul"
Common law defenses to Defamation
1. Truth
2. Absolute Privilege
3. Qualified Privilege
Comparative Negligence
NOT the rule in NC!!!

Two Types:
1. Pure Comparative Negligence
2. Modified Comparative Negligence
3 categories where the Absolute Privilege applies
1. in the course of judicial proceedings (in NC extends to quasi-judicial proceedings like admin hearings)

2. in the course of legislative proceedings (also extends to executive branch)

3. between spouses
Qualified Privilege
Applies in the course of legitimate public debate or to serve the P's purpose (i.e. rec. letter)

Qualified privilege can be lost through abuse = not within scope or malice
Pure Comparative Negligence
P will always recover something even if was the predominant or majority negligent party
Constitutional Limitations on Defamation
The 1st A protects speech on matters of public concern. In cases involving some speech, the SC has added two elements to the P's prima facie case.

1. Falsity - The P must prove the statement was false (instead of D having to prove it true)

2. P must prove fault w/ regard to the D's knowledge of the falsity of the statement. (Public/Private Distinction)
Public/Private Distinction
Public figures (public officials or candidates and public figures) - P must prove that D had actual malice, i.e. that the D either knew the statement was false or had a reckless disregard for the truth (i.e. strong suspicion that it was false)

Private Persons - P must prove fault amounting to at least negligence (i.e. should have known that it was false)
Modified Comparative Negligence
P's recovery is reduced to a threshold (49 or 50%) and after that P gets nothing
Damages for Defamation on matters of public concern
P must prove actual malice to reocver presumed or punitive damages
Application of Comparative Negligence
Jury finds P 70% at fault and D to be 30% at fault.

Under Pure comparative negligence P will recover 30%.

Under modified comparative negligence P gets nothing.

Where you have comparative negligence the only other affirmative defense is express assumption of the risk
4 actions for invasion to right of privacy
1. Appropriation
2. Intrusion (NC has not had a case)
3. False Light (NC does not recognize)
4. Public Disclosure of Private Facts (NC does not recognize)
Use of the P's name or picture for commericial advantage w/o permission

Key: Has to be for advertising, promotional or labeling purposes. Putting in newspaper or writing unauthroized biography is NOT appropriation.
Intrusion (no case in NC)
Interference with P's seclusion in a way that would be objectionable to an average person. (note that you don't have to go onto someone's land - spying would work)

Limitation: Must be in place where you have reasonable expectation of privacy - so taking pictures of celebrity on the street is not Intrusion BUT as a fallback might have conduct that indicates Intentional Inflication of Emotional Distress
Strict Liability
1. Animals
2. Abnormally dangerous activities
3. Product Related Injury
4. Private Nuisance
5. Public Nuisance
False Light (not recognized in NC)
Widespread dissemination of information that is in some way inaccurate and that would be objectionable to an average person.

Need not be damaging as with defamation EX - newspaper publishes false story saying that P rescued 10 people from burning building - no damage to reputation so not defamation but still embarassing to the average person since not true
Strict Liability - Animals
Trespass - Strict liability for foreseeable harm caused by animals other than household pets.

Personal Injury:
1. Domesticated Animals - No strict liability unless you know of your animal's dangerous propensities in advance (one free bite rule not true - even if your animal hasn't bitten before you can be strictly liable if you know it might bite)

2. Wild Animals - Strict liability as long as the P didn't do something knowingly and voluntarily i.e. stick hand in tiger's cage.
Public disclosure of Private Facts (not recognized in NC)
The widespread dissemination of factually accurate information that would normally be confidential, and the disclosure of which would be objectionable to an average person.
EX - D broadcasts fact of P's embarassing disease on local tv station - Yes
EX - Paper prints picture of you at baseball game while playing hooky from work - NO
EX - Magazine prints picture of Mayor at nude beach - NO
BUT newsworthy disclosures are not actionable - newsworthy being items of a legitimate public interest and that means that fact of embarassing disease for a movie star would not be actionable due to newsworthiness
Defenses to the Invasion of Right to Privacy Torts
1. Consent
and with respect to false light and public disclosure you get the absolute and qualified privileges available for Defamation
Abnormally Dangerous Activities
= and activity that is:
1. incapable of being conducted except with high risk.
2. if harm occurs, likely to be severe and
3. is uncommon within the community

i.e. blasting, toxic chemicals and nuclear energy
5 elements of Fraud/Misrepresentation/Deceit
1. Affirmative Misrepresentation
2. Fault
3. Intention to Induce Reliance
4. Justifiable Reliance
5. Damages
Affirmative Misrepresentation by the D
Silence is not enough (although statutes may impose a duty to disclose) at common law mere silence is not enough
Strict Liability - Abnormally Dangerous Activities
Precautions are not relevant but limitations do apply in that you must still have proximate cause to use the strict liability theory. i.e The harm must be within the risk so if a truck carrying plutonium hits a pedestrian, you can't use theory of strict liability just b/c carrying radioactive material unless it was the radioactive material that caused the harm.
Scienter must be shown EX - if D makes statement in good faith that turns out to be false --> no liability
Intention to Induce Reliance
Statement must be material.

EX - Used care dealer tells customer that trunk is clean when in fact there is small stain behind spare tire --> NOT Material
Justifiable Reliance
normally it is justifiable to rely on the opinion of one who has superior skill or knowledge in the subject matter of the transaction

EX - Used car dealer opines that car will get 20 miles/gallon in fact it gets 1 - Car dealer can't claim only my opinion b/c P was justified in relying
Strict Liability - Product Related Injury
Be careful in answering questions about products to determine if P is using negligence theory, strict liability theory, express warranty or implied warranty.

NC does not recognize strict products liability!!!
4 elements of Negligence
1. Duty
2. Breach
3. Causation
4. Damages
Intentional Interference with Business Relations (3)
1. Inducing Breach of Contract
2. Interference with Contractual Relations
3. Interference with Prospective Economic Advantage
Prima Facie Case for strict liability for a product related injury
1. D must be a merchant of the type of goods sold (so one time seller through the classifieds won't work)

2. The prodcut must be defective.

3. The defect must have existed when the product left the seller's hands (in the case of manufacturing defect there is presumption that the defect existed if it has moved in ordinary channels of distribution).

4. The P must have made a foreseeable use of the product.
Inducing Breach of Contract
Intentional action that causes a 3rd person to breach an existing contract with the P.

EX - D pays 3P to delay construction on P's store. The delay leads to a breach in 3P's contract with P. D is liable.
2 types of defects
1. Manufacturing Defect - The product in issue is an anomaly and the difference between the product in hand and all others is the difference that made the product dangerous.

2. Design Defect - A problem common to each unit, that the seller could have eliminated through a reasonable alternative design (i.e. there was a cost-effective way to make the product safer)
Duty - general philosopy
Take precautions to dampen "risk rays"
Interference with Contractual Relations
D may be liable if interference with a P's contractual relations makes performance more difficult, even if the interference does not actually cause a breach.

EX - D hires all the unskilled labor in town in effort to prevent 3P from conpleting constrution of P's store. D is liable.
Interference with Prospective Economic Advantage
D may be liable for interfering with a P's expectation of economic benefit from thrid persons, even in the absence of an existing contract.

EX - Airfield manager urges passengers not to use P's tax company. Airfield manager is liable.

Caution: you do have a right to protect your own interests.
To whom is a duty owed?
1. Foreseeable victims 2. Foreseeable as a matter of law (Rescuers and Viable fetuses)
Defenses to Strict Liability for Product Related Injury
Traditional Jurisdictions: Contributory negligence will NOT bar recovery; assumption of the risk will bar recovery

EX - if you don't know of the risk b/c you didn't read the manual then you can recover but if you know of the risk b/c you read the manual but encounter it anyway then you can't recover.

Comparative Fault jurisdictions: Apply comparative fault principles so assumption of the risk would not bar recovery but would work to reduce recovery
Wrongful Institution of Legal Proceedings (2)
1. Malicious Prosecution (proceedings brought for improper purpose)

2. Abuse of Process (the use of a process - civil or criminal - to bring about result other than that for which the process was intended e.g. D garnished an accoutn to force P to sign a lease)
Hints for Strict Products Liability
1. If theory = negligence --> wholesalers and retailers != liable
2. Adequate warning = D not liable
3. If the question refers to a "feasible alternative" --> D is liable on design defect theory
4. Foreseeable != Intended EX - foreseeable that chair will be used as stepladder though not intended BUT NOT foreseeable that power saw will be used as dental floss
- Be wary of any answer which says "P cannot recover b/c he didn't use in intended manner" - that isn't the rule
5. The presence of additional parties doesn't change the answer
6. Can't sue on a product that was used incidental to a service - i.e. tainted blood used during an operation
Amount of care you must exercise
"Poindexter Rule" - You must exercise the amount of care that would be taken by a reasonably prudent person under the same or similar circumstances. Reasonably Prudent Person = geek who always takes precautions. FN1 - D is expected to use superior skill or expertise for the P's benefit. FN2 - D's physical (but not mental) disabilities are attributed to the reasonably purdent person. FN3 - The reasonably prudent person standard is a fixed constant e.g. motorist is not obligated to use "extreme care" while driving in blizzard - just reasonable care under the circumstances.
Strict Liability - private nuisance
Conduct that causes a substantial and unreasonable interference with the use and enjoyment of land.
3 classes of persons with special duty standard
1. Children 2. Professionals 3. Owners and Occupiers of Land
Substantial and unreasonable
NO - playing low volume classical music that bothers P's sensitive ears

YES - blasting Metallica at full volume
Remedies for private nuisance
In addition to damages, P can also get an injunction but the court will "weigh the equities" in deciding whether to enjoin D's activity
Public Nuisance
= conduct that causes physical or moral harm to the public in general.

A private action may be maintained if teh private P has suffered a special injury different from that of the general public. EX - Public in general is inconveinienced by having to walk aroudn obstruction in the sidewalk but P trips and falls - the unique damage allows P to recover for the public nuisance
Vicarious Liability - Employer/Employee
Employer is vicarously liable for the torts of an employee committed within the scope of employment.

Employer is NOT liable for the intentional torts of an employee unless violence is part of the job i.e. bouncer or debt collector
"Frolic and Detour" Rules for Vicarious Liability - Employer/Employee
Minor Departure - LIABLE e.g. truck driver en route to Atlanta from Raleigh gets in accident while heading to diner two miles off I-85

Major Departure - NOT LIABLE e.g. truck driver en route to Atlanta from Raleigh gets in accident on Bourbon Street in New Orleans
Vicarious Liabilty - Auto Owner/Driver
Owner is generally not liable. Exception - driver is on errand for owner but this is premised not on vicarious liability but on principle/agent.

Minority Rules
1. Family Car States - Owner is vicariously liable for the torts of any household member driving the car w/ the owner's permission.
2. NC Family Purpose - Liable if the owner gives the driver permission for the use, pleasure or conveience of the household.
3. Permissive Use States - Owner is vicariously liable for the torts of anyone driving the car with permission.
Vicarious Liability - Parent/Child
No vicarous liabilty.

NC rule - By statute a Parent is liable for up to $2000 of damage caused by the willful conduct of his child.
Hints and Warnings - Vicarious Liability
Look for direct liability first!

EX - D gives car keys to drunk friend who gets in accident and injures P. D is not vicarouly liable to P b/c the act of giving keys to drunk friend is negligent - negligent entrusment.

EX - Parents give 8 year a gun and kid shoots neighbor's dog. Parents aren't vicariously liable for the kids actions they are directly liable b/c negligent to give an 8 year old a loaded gun
2 alternative for the adjustment of rights between multiple defendants
1. Indemnity

2. Contribution
The passive D has the right to full reimbursement from the active D. So if employer is held vicariously liable for torts of employee then has the right to seek indemnification.
Contribution - 2 rules
1. Traditional - The D who had to pay the entire judgment can seek contribution in porportional shares from other defendants. So if there are 3 defendants and D1 had to pay $100k, he can seek 1/3 from D2 and 1/3 from D3.

2. Comparative Contribution - Recovery is based on the relative fault of each tortfeasor. Jury finds D1 50% at fault and D2 and D3 each 25% at fault. If D1 pays the entire judgment he can seek 25% from each of D2 and D3.
Wrongful Death and Survival Actions
Wrongful death - suits brought by a decedent's beneficiaries for his or her own loss of support/companionship.

Survival Actions - actions vested in the decedent's estate that the deceased could have brought had he survivied.

NC does not allow certain personal claims to survive death such as defamation (libel and slander), false imprisonment and actions where the relief sought could not be enjoyed after the victim's death
Traditionally 3 types:
1. Family
2. Government
3. Charity
Family Immunity
No family immunity.

NC rule
- as between spouses - eliminated
- as between parent/child - only eliminated in cases involving negligent driving or willful or malicious actions
Governmental Immunity
1. No immunity when the govt is engaged in proprietary function - one that private citizen would normally do EX - operation of parking garage

2. Governments retain immunity when engaging in discretionary government activity EX - police, fire
Charitable Immunity
Abolished in most states.
Duty of Care - Children
Majority Rule - A child must exercise the degree of care of a reasonable child of like age, intelligence and experience (note this is more subjective than the adult standard)

Minority/Traditional Rule and the NC Rule -
"Rule of Sevens"
1. Under 7 - no liability for negligence
2. from 7-13 - Presumed incapable of negligence but we allow the P to rebutt.
3. 14 or older - Prusumed capable of negligence but the D (child) can rebutt

Special Rule for Adult Activities - A child engaged in an adult activity is held to the adult standard - i.e. if driving a car, operating a boat or tractor
Duty of Care - Professionals
A professional is required to possess and exercise the knowledge and skill of an ordinary member of that profession in good standing

Common Fact Patterns:
1. Med Mal - If no consent --> battery If no informed consent --> malpractice Informed consent = what an ordinary doc would tell the P about the risks

2. Legal Malpractice - not enough to show negligence, have to show causation - i.e. that P would have won or gotten settlement i.e. causation

ORDINARY != average (otherwise 1/2 of the members of the profession would be negligent)
Duty of Care - Owners and Occupiers of Land
Duty owed will vary based on two variables

1. Source of the injury

2. Status of the P
Source of the injury
1. Coduct of activity

2. Encounter with a static condition

EX - conduct would be stockboy running into you in a grocery store and static would be while hiking on land stepping into a ditch
4 classes for status of the P
1. Undiscovered Trespasser

2. Discovered Trespasser (i.e. you know or should know)

3. Licensee (social guest or people you "Like" = Licensee)

4. Invitee (person who comes onto land open to the public at large - typically a store customer)
NC Distinctions
1. No distinction between licensee/invitee - use the rules for invitee

2. No duty to a discovered trespasser for a condition on your land
The Results
Discovered Trespasser - NO Duty

For all other classes you owe duty of reasonable care for activities

For conditions:

1. Discovered trespasser = man made death traps i.e. artificial, highly dangerous, concealed and that you know of

2. Licensee - Concealed and known to you

3. Invitee - Concealed and that you either know or shoudl know (i.e. you have a duty to inspect)
Tips for Dutys owed by owners and occupiers of land
1. For a static condition - the legal obligation can be satisfied by either making the condition safe or issuing a warning

2. If a child trespasser, use the reasonable prudence standard

3. If the P is injured by an open and obvious condition, he will almost always lose.
Negligence Per se
The use of a criminal staute to set the duty of care.
Test for Negligence per se
"Class of Person, Class of Risk"
Is the P in the class of persons that the statute intends to protect and is the risk he encountered the type tha that the staute was intended to protect against?
EX - statute forbids contractor work on elevator w/o placing barricades in front of the doors - punishable by fine, Barricdes weren't in place, P walks through elevator doors to plunge 10 stories. Statute was designed to protect people who use elevators against the risk of falling into an empty shaft so the P can use the statute to set the duty of care.
EX - Statute prohibits the use and possession of marijuana. Natural gas in the D's apartment when he lit up, the place explodes injuring neighbor, P. P tries to use the statute prohibiting the use and possession of marijuana to say that it was negligent per se for the D to light up his doobie. Class of Person, Class of Risk won't work - P wasn't in the class of persons the statute aimed to protect and this wasn't the risk the statute intended to protect. So not negligence per se - this does not mean it wasn't negligent to light up the doobie as D could probably smell the gas but it wasn't negligent per se.
Exceptions to the Negligent per se rules
1. When compliance with the statute is more dangerous than violation
EX - swerving accross yellow line to avoid hitting child - can't use the violation of the statute to say that D was negligent per se when his swerve caused P to hit a tree

2. Compliance is impossible under the circumstances -
EX - D has a heart attack and runs a red light
Affirmative Duty to Act Rule
General Rule - No duty to rescue.

1. D put the P in peril
2. Relationships (close family, common carrier/passenger or innkeeper/guest, and invitee/invitor)
Negligent Infliction of Emotional Distress
General Rule: No duty to worry about people's emotions.
Exception - Zone of Danger Rule - If you are exposed to a risk and you have physical manifestation of the emotional distress then you can recover.
NC rule - rejects both the physical injury and target zone requirement and allows recovery when D was negligent, it was reasonably forseeable that negligence would cause the distress and it did in fact cause severe emotional distress (that can be diagnosed by professional).
In special situations - erronous notification of relative's death or mishandling of relative's corpse - physical manifestation may not be required.
Minority View/Modern Trend is to reject the "zone of danger" where P is closely related to the victim, was present at the scene and saw the accident.
Breach of Duty (2nd element in Negligence)
P must prove the specific conduct which constituted the breach
Evidence of Custom as proof of breach
Always admissible, never conclusive. P tries to show that everyone in the world takes some precaution that D did not or the D might use as a defense to argue that nobody takes that precaution.
Res Ipsa Loquitur
Method of proof used when P doesn't have enough information to prove specific conduct that was a breach of the D's duty.

Must prove two substitute facts:
1. The event is one that does not ordinarily occur in the absence of negligence.

2. The injury-causing instrumentality was in the exclusive control of the D.

Note: Proof of this doesn't mean P wins but rather that P won't lose on summary judgment but can get to the jury.
Have to prove both:
1. Cause in Fact
2. Proximate Cause
Cause in Fact
"But for" test - D's conduct is the cause in fact of an injury when the injury would not have occured but for the D's conduct.
EX - P falls overboard to be eaten by shark. D was negligent in not have life preservers on board. But this would not have saved P, so D's conduct is not the cause in fact of P's injury.
Alternative Tests for Cause in Fact w/ multiple D's
Substantial Factor Test - use when there are multiple D's and a commingled cause
EX - seperate fires come together to burn P's house

Burden Shifting - Use in cases with multiple D's and unknown cause.
EX - Moe and Larry are shooting at quail and hit Curly in the eye - Curly can't prove whose gun the single shot hit him came from but he can shift the burden to the two D's to prove that the other did it
Proximate Cause
A limitation on the D's liability. A person is only liable for those harms that are within the risk of his activity,
The cause can be:
1. Direct - easy if the result of the D's conduct is foreseeable, the D will be liable.

2. Indirect - Result may or may not be foreseeable and the intervening cause may or may not be intervening. Liabiity will turn on the combination of factors.
Foreseeable Result - Foreseeable Intervening Cuase
D will be liable
Unforeseeable Result - Unforseeable Intervening Cause
D will not be liable
Cases in which an intervening cause will not cut off liability
1. Subsequent Med Mal - almost always foreseeable

2. Negligent Rescue

3. Reaction Forces - EX - D's action causes crowd to flee, and crowd member injures P - D will be liable

4. Subsequent Diseases or Accidents - EX - D hits P and breaks leg, that night P falls down stairs b/c he isn't good on crutches - D is liable
Cases in which an intervening cause will not cut off liabiliy if D can anticipate the intervening cause.
1. Negligence of 3rd party - D negligently blocks sidewalk forcing P to have to walk into street where he is hit by car, D is liable b/c the reason that blocking the sidewalk is negligent is b/c of the risk of motorists in the street

2. Criminal Conduct - D negligently fails to keep parking garage locked, P is victimized by Criminal. D is liable b/c the reason it is negligent not to lock garage is due to the risk of criminals

3. Acts of God - D leaves building materials on the roof despite predictions of heavy winds. Windstorm blows materials onto P's head below. D is liable b/c the windstorm was foreseeable.

Deck Info