Torts Lecture 252i5a

Barbri - Torts Lecture Intentional Torts MBE Overview – examiners love it. 1/3 of the torts questions. General Rules 1. The extreme sensitivity of a plaintiff is ignored in determining if the plaintiff has a claim. We always assume we are dealing with a person of ordinary or reasonable sensitivity. 2. In the world of intentional torts, there are no incapacity defenses. In many branches of a law, there are a lot of people who lack legal capacity (e.g., a child). However, if a child punches you in the face, the child is liable for an intentional tort (battery). The same is true for a mental ill person. a. If you see an answer on the MBE that refers to lacking legal capacity for an intentional tort, never pick it. 3. All intentional torts require intent. Individually Named Intentional Torts – Seven (7) 1. Battery a. Intent i. Deliberately and on purpose. ii. A defendant is acting intentionally if he desires to bring about the forbidden result; or knows that the result is certain to occur. b. To commit a harmful or offensive i. Harmful 1. Too easy to test – it's a that puts you in the hospital, that makes you bleed, or kills you. ii. Offesnive 1. More likely. 2. Substitute "unpermitted" for the concept of offensiveness. Pertains to a person of reasonable and ordinary sensitivity. a. E.g., unwanted sexual touching, even if it's not in an intimate part of the body, is always offensive. c. With the plaintiff's person. i. Anything the person is holding or connected to is considered a part of the person. 1. E.g., someone jumps on your car while you're driving it. Battery. 2. E.g., a girl is riding a horse and a stranger slaps the butt of the horse. Battery. 1

d. A battery need not produce instantaneous harm or offense i. E.g., poisoning a sandwich two hours before its eaten is still a battery. 2. Assault a. Intent b. The defendant must place the plaintiff in reasonable apprehension; i. "Apprehension" – it communicates something that could be misleading. Apprehension does not just mean fear; it also means knowledge or awareness. ii. Fear is not required; if the person is small and you're huge, the small person can still commit an assault. iii. However, a plaintiff has to know that it's coming. Plaintiff must see it coming and be aware of the defendant's action. iv. Unloaded Gun Problem/Empty Threat: 1. What if defendant purports to engage in threatening conduct? But we read information that the defendant cannot bring that threat to conclusion. Is there an assault? a. If the plaintiff knows that the gun isn't loaded, then there is no tort. b. But, if the plaintiff thinks an unloaded gun may be loaded, then it's an assault. c. If the plaintiff has no information, then look at what a reasonable person would think. c. Of an immediate battery i. Words alone lack immediacy – a verbal threat, by itself, is not an assault. There must be conduct, not just words (i.e., there has to be a "menacing gesture") ii. Words can negate immediacy 1. Conditional words – "[raises fist in a menacing way] if you weren't my best friend, I would beat the crap out of you!" No assault. 2. Words promising future action – "[raises fist in a menacing way] tomorrow, I'm going to beat the crap out of you." 3. False Imprisonment – surprisingly popular on the MBE a. Intent b. Defendant commits an Act of Restraint i. Physical restraint is obvious, but a threat can also be sufficient. 1. Threats only work if it would operate on the mind of an ordinarily and reasonably sensitive person.

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ii. An omission (failure to act) can be an act of restraint if you have a preexisting duty to help the plaintiff get from point A to point B iii. An act of restraint does not count for legal purposes unless the plaintiff is aware of or harmed by the confinement c. Plaintiff must be Confined Within a Bounded Area i. A "bounded area" does not have to be marked out by physical boundaries, and it can be approximate. 1. If I say, "If you leave this general area, I will shoot you." – this counts for a bounded area ii. An area is not "bounded" if there is a reasonable means of escape that the plaintiff can reasonably discover. 1. You're not locked in if you can get out. But, if the way out is dangerous, disgusting, humiliating, or hidden, then it is a bounded area and there is a valid cause of action. 4. Intentional Infliction of Mental (Emotional) Distress a. Relaxed intent requirement. i. Applies if you're acting recklessly b. Outrageous Conduct i. Conduct is outrageous if it exceeds all bounds of decency tolerated in a civilized society. ii. Mere insults are not outrageous and will not give rise to a cause of action. 1. However, insults, when added to other things, can make a bad case worse and push things over the line into "outrageous" iii. Hallmarks of outrageousness (plaintiff friendly examples): 1. The conduct is continuous or repetitive – no longer merely annoying, now it's outrageous. 2. The defendant is a common carrier or an innkeeper. If they do something that may not cross the line in another context, then the law may hold them liable because of their business position. a. Common Carrier – transportation company b. Innkeeper – hotel 3. Plaintiff is a member of a fragile class. a. Young children – decision to target a young child is outrageous b. Elderly people c. Pregnant women – defendant has to know that the woman is pregnant. iv. Prior awareness of plaintiff's peculiar emotional sensitivity and chooses to exploit that, then that's outrageous. 1. Knowledge 2. Deliberate exploitation 3

c. Suffer Severe Distress i. Plaintiff can prove severe distress through any evidence he chooses 1. No requirement for certain types of evidence ii. Exam advice: When they test on this, they will negate this element in the facts; they stipulate to the opposite but in a way that's inconspicuous. 1. E.g., "Patricia was mildly annoyed by these behaviors, so she sued for IIED." Mildly annoyed is the opposite of severe distress.

5. Tres to Land a. Intent b. Act of physical invasion i. Entering someone else's property 1. Defendant doesn't have to be aware that he has crossed a property line. The only intent required is the intent to get to that location; mistake about entitlement to be there is not a defense. ii. Projecting an object onto the land – causing an object to go on the property. 1. The object must be tangible 2. Odors, sound waves, and light do not count c. Interference with plaintiff's exclusive possession of real estate i. The proper plaintiff is the possessor of the real estate – e.g., the renter of the real estate ii. Exclusive possession includes the air above and the soil below the land, but only out to a reasonable distance 6. Tres to Chattels and Conversion a. Tres to Chattels – small harm i. Intent ii. Interference with plaintiff's personal property 1. Slight interference iii. Remedy is cost of repair b. Conversion – big harm i. Intent ii. Interference with plaintiff's personal property 1. Significant interference iii. Remedy is full market value of the item. It's a forced sale of the chattel. c. Personal Property is anything that's not real property, including electronic data d. These are private, civil, money damage causes of action seeking monetary damages 4

Affirmative Defenses to Intentional Torts 1. Consent a. A defense to all intentional torts b. Did the plaintiff have legal capacity? i. Drunk people do not have legal capacity ii. Children can consent to age-appropriate torts (e.g., 11 year olds consent to wrestling, but not to surgery or sexual ). c. Express Consent i. Words giving the defendant permission ii. Exam Tip: Examiners will likely test on an exception that holds express consent invalid if it is given as a result of fraud or duress d. Implied Consent – "Custom and Usage" i. If you go to a place or participate in an activity where certain invasions are routine, you give implied consent ii. E.g., team sports. 1. But, the scope of the consent you give has nothing to do with the rules – it's only what's customary in the sport. iii. Body Language Consent - There can be implied consent arising from defendant's reasonable interpretation of plaintiff's objective conduct and surrounding circumstances. 1. You're allowed to see, observe, and draw reasonable conclusions e. Scope i. If defendant exceeds the scope of consent, then it's a tort. ii. E.g., patient gives doctor permission to operate on a knee, but the doctor also operates on the nose. The doctor exceeded the scope of consent 2. Protective Privileges a. Types: i. Self-Defense ii. Defense of Others iii. Defense of Property b. Elements i. Proper timing 1. The threat you're responding to is in progress as you act or imminent 2. To have a proper protective privilege, you must be responding in real time—in the heat of the moment.

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a. E.g., I tell you that I'll punch you in the face tomorrow. You hit me as I tell you that. That's not self-defense. b. E.g., I hit you and walk away. You chase me down after the fact and punch me. ii. Reasonable belief that the threat is genuine 1. Reasonable mistake will not destroy the privilege 2. E.g., you're waiting for your suitcase in the airport for hours and you eventually see someone else walking away with what you think is your suitcase, so you run up and grab it. It's not yours. The owner of the suitcase sues you for battery. Defense of Property applies because it was a reasonable mistake. iii. Force must be proportional 1. In a life threatening situation, you can use deadly force 2. In cases that involve defense of property, deadly force is always considered excessive. a. Also, you cannot do by machine what is forbidden to do in person. No shotgun traps. 3. Necessity Defenses a. Only available if one of the torts alleged is one of the three property torts i. Tres to land ii. Tres to chattels iii. Conversion b. Public Necessity i. The defendant invades the plaintiff's property in an emergency but does so to protect the community as a whole, or a significant group of people. Complete defense —no liability for the property tort. ii. Exam Tip: There will be some kind of emergency, usually some kind of natural disaster (e.g., a fire with heavy wind moving towards a gasoline refinery). Onto the scene comes the defendant, "savior of the city", an altruistic man with nothing to gain. To stop the fire, he goes into a factory to take the factory's flame retardant chemicals. No tres or conversion. iii. We don't want this person to hesitate; we want this person to have legal immunity so he will save the city. c. Private Necessity i. Defendant invades plaintiff's property to protect an interest of his own. This defendant is self-interested and acting out

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of personal motives. Not an absolute defense. Generates three interconnected legal consequences. 1. Defendant in a private necessity case remains liable for compensatory damages 2. Defendant in private necessity is not liable for punitive or nominal damages 3. As long as the emergency continues, the plaintiff (property owner) cannot throw the defendant off the land, in effect forcing him back into the emergency. ii. Defense is absolute if the act is to benefit the owner of the land Defamation 1. Defamatory statement about the plaintiff a. Least tested of the three elements b. Something is defamatory if it tends to adversely affect the plaintiff's reputation. It brings you down in the estimation of other people. c. Mere name-calling is not defamatory because it lacks any reputational consequence. d. Defamatory is an allegation of fact. It sounds factual in nature and reflects negatively on the person being discussed. e. What about opinion statements? i. E.g., "In my opinion…" ii. If it sounds like the defendant has facts to back it up, then it could be defamatory (e.g., "I'd be careful ing Dr. Smith as my surgeon…") iii. If it's merely a subjective opinion (e.g., "that's a really bad hamburger"), then it's probably not defamation iv. Generally, the broader the language used, the less likely that it will be reasonably interpreted as a statement of fact or an opinion based on specific facts f. In the United States, you can only defame a living person. g. Defaming a group of people i. All of a small group – each may establish the statement was "about" him by alleging that he is a member of the group ii. All of a large group – No one member may establish the "about" element of the cause of action iii. Some of a small group – plaintiff can recover if a reasonable person would view the statement as referring to him 2. "Publication" of the statement a. Must reveal the statement to at least one person other than the plaintiff. "Publication" of the statement to the person it's about will not affect his reputation. 7

i. Damages increase as the number of people who may read/hear the statement increases. b. Publication does not have to be deliberate. Can be careless or negligent. 3. Damages – often presumed a. Libel cases – a defamatory statement that is permanently embodied in some medium of expression (typically written down). Damages presumed. b. Slander – Oral (Spoken) defamation. i. Slander per se – Damages presumed. 1. Statement about plaintiff's business or profession 2. Statement that the plaintiff has committed a serious crime a. "Crime of moral turpitude" b. Any crime involving dishonesty or violence 3. A statement imputing unchastity to a woman 4. Plaintiff suffers from a loathsome disease a. Leprosy i. "John is a leper;" "Mary lives in a leper colony" b. Venereal disease ii. Slander not per se – must prove economic damages (pecuniary injury) 4. Affirmative Defenses: a. Consent b. Truth i. Not punished for speaking the truth ii. Defendant has to prove truth at trial c. Privileges i. Absolute Privileges 1. Spouses – if a married person says something to his/her spouse, that cannot be the basis of a defamation lawsuit because there is an absolute privilege to talk to your spouse 2. Officers to the three branches of the gov't – greatest import in the judicial context. Not only granted to the judge, but also to witnesses and lawyers. ii. Qualified Privileges 1. Based on the circumstances of the speech 2. Arise when there is a public interest in candor (e.g., letter of recommendation) 3. Defendant must make the statement in good faith – there must be a reason for making the statement 4. If you know the statement is false and say it anyway, then it's false not privileged. 5. Confine yourself to the relevant topic at hand. 8

5. Public Concern Cases a. Underlying statement is a statement that is a matter of public concern i. E.g., mayor taking kickbacks; military leader is leaking secrets; athlete is taking drugs ii. If there is a suspicion that the mayor is taking bribes, people should be free to talk about that b. Two extra elements here: i. Faslsity – plaintiff has to show that the statement is factually inaccurate 1. Truth is no longer a defense, it's now presumed. ii. Fault – statement not made in good faith 1. If plaintiff is a public figure, then plaintiff must prove defendant's knowledge of falsity or that the defendant made the statement recklessly. a. Reckless e.g., newspaper publishes story about mayor taking bribes based on one rumor without any resource 2. Private figures need not prove knowledge or reckless falsity a. At least negligence is required b. Damages are limited to the actual injury c. E.g., newspaper publishes a story about the mayor's secretary that she helped the mayor smuggle money.

Privacy Law Privacy Torts 1. Appropriation a. Defendant uses the plaintiff's name or picture for commercial purposes and without permission i. EXAM CAUTIONS 1. Newsworthiness exception – if you put a football player's picture on the Wheaties box, that's a tort. But, if you put his picture in the sports section of a newspaper, you can do that without permission 2. Doesn't have to be a celebrity – it can be a private person 2. Intrusion a. Invasion of the plaintiff's seclusion in a way that would be highly offensive to the average person i. Types: 1. Involves wire tapping 2. Covert video surveillance

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3. Listening at the keyhole 4. Peeping Tom ii. Must be in a place where the person has a reasonable expectation of privacy 3. False Light (False gossip) a. Widespread Dissemination of a material falsehood about the plaintiff that would be highly offensive to the average person. Also requires publicity for liability to attach b. False light that is not defamatory: i. Religious beliefs ii. Political beliefs 4. Disclosure (True gossip) a. Widespread dissemination of confidential information about the plaintiff that would be highly offensive to the average person i. Exam Caution: Another newsworthiness exception. Disclosure of presidential candidate's medical records is newsworthy and not a tort. b. Must be confidential. i. E.g., Pete is a gay man who is out to his friends and family and involved in the political gay community. But, Pete is not out at work yet. 5. Defenses to Privacy Torts a. Consent b. Defamation privileges (Absolute and Qualified Privileges) apply to false light and disclosure

Tort of Negligence Negligence 1. Duty a. Obligation to take risk reducing precautions, and if you fail to take those risk reducing precautions and your failure results in injury, you've gotta pay for that. b. Who should I be thinking about? – Foreseeable Victims i. You owe a duty to take precautions for the benefit of "foreseeable victims" ii. No duty owed to unforeseeable victims 1. Unforeseeable victims always lose negligence cases 2. Unforeseeable victims are usually very far away iii. Exception to unforeseeable victims rule 1. You owe a duty to rescuers; they're given a free with respect to the Palsgraf problem. c. How much care? – Reasonable Prudence i. As much care as a reasonably prudent person acting under similar circumstances

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ii. We make no allowances for the defendant's personal shortcomings – this is an inflexible standard iii. Everyone is judged against the reasonably prudent person iv. Exceptions: 1. If the defendant has superior skill or knowledge in the area, then the defendant is compared to a reasonably prudent person with superior skill or knowledge. 2. Where relevant, we will incorporate physical attributes of defendant into the reasonably prudent person standard of care. a. E.g., If the defendant is blind, the reasonably prudent person is blind. d. Special Duty Standards of Care – Negligence Claims Against . . . i. Children 1. Children under the age of four (4) are incapable of negligence. a. Very young children do not owe the rest of the world any standard of care 2. Children must behave as a hypothetical child of similar age, experience, and intelligence acing under similar circumstances. a. Different for every child we encounter – every child has a different standard of care. This makes it flexible. 3. E.g., two 8-year-old children playing outside. Billy is riding a tricycle for the first time ever. He rides to the corner, makes a loop, and comes back, staying on the street. Susie is sitting on the pavement playing jacks. Billy runs over Susie's hand, breaking all the bones in her fingers. Susie sues Billy, claiming he was negligent in operating his tricycle. a. Billy is held to the standard of a child of similar age – 8-year old b. Billy is held to the standard of a child with similar experience – beginner/novice c. Billy is held to the standard of a child with similar intelligence – Billy is stupid 4. Exception: When a child is engaged in an adult activity, the standard changes and we go back to the reasonably prudent person under the circumstances. a. E.g., operating any vehicle with an engine is an adult activity ii. Professionals 1. This refers to: a. Health care professionals 11

b. c. d. e.

ants Lawyers Architects Any group of people who in the practice of their trade or occupation requires a special skill or license, and may be self-regulating. 2. Two ways of phrasing standards of care: a. (1) Restatement – A professional is obligated to exercise the skill and knowledge normally possessed by of the same profession in good standing. b. (2) Prof's – A professional must behave with the same care as average of the same profession. The custom of others is the standard of care. c. E.g., the defendant doctor is compared to other doctors in the real world. They have to do it the way the other doctors do it. The custom of the practice is dispositive. d. You may need an expert witness, since a jury will not necessarily be aware of how most doctors behave. e. The standard of care is not to behave as a reasonable doctor. i. This is incorrect because reasonableness implicates a cost/benefit analysis. We don't do that when we adjudicate doctors; we only compare them to their colleagues. iii. Premises Liability 1. Plaintiff enters real estate (private property—land or buildings). While on the property, the plaintiff encounters a hazardous condition and gets hurt. Did the person who possessed the property owe a prior duty to protect the entering plaintiff from the hazardous object? 2. The answer depends on the kind of entrant: a. Unknown/Undiscovered Treser i. (1) Plaintiff comes on the land without permission and (2) defendant has no idea the plaintiff is there. 1. Zero duty of care. No duty to protect unknown tresers. ii. E.g., burglar comes into your house while you're away on vacation and the burglar gets injured in the house. 12

iii. Undiscovered tresers are unforeseeable victims b. Known/Anticipated Tresers i. Possessor either knows or should know that they're on the land. ii. EXAM TIP: Pattern of tresing in the past triggers an anticipated treser. E.g., hikers frequently iii. Standard of care: Possessor must protect these people only from that small subset of hazards that meet four conditions (must be artificial hazardous condition): 1. No duty to tresers for naturally occurring hazards; 2. The condition must be highly dangerous—no duty if mildly dangerous; 3. The condition has to be concealed (hidden) from the entrant (no duty if open or obvious); AND 4. Defendant/possessor has to have knowledge of the condition in advance iv. The possessor must only protect from known, hidden, manmade death-traps on the land. c. Licensees i. People who enter property with permission, but who do not confer economic benefit on the possessor (e.g., social guest) ii. Duty with respect to natural/artificial conditions only if: 1. Condition is concealed (hidden) from licensee 2. Condition is known by the possessor/defendant 3. "Land possessor must protect from all known traps on the land" d. Invitees i. People who enter with permission but do so in a way that confers economic benefit on the possessor. In most jurisdictions, it is an invitee scenario if there is permission for everyone to enter (e.g., customer of a business). 13

ii. Duty standard: 1. Condition is hidden from the invitee 2. Condition is one that the possessor actual knew about or could have discovered through a reasonable inspection a. "Reasonable inspection" is one undertaken by the reasonably prudent person. Informed by cost/benefit analyses. iii. You must protect invitees from all reasonably knowable traps on the land. iv. E.g., person slips and falls on cooking oil. 1. They're an invitee 2. The cooking oil is clear so it's probably hidden. 3. Key question: How long has it been there? If 30 seconds, reasonably prudent person wouldn't have known. If an hour, a reasonably prudent person probably would have discovered it. 3. Three more special scenarios: a. Police officers and firefighters i. Police officers and firefights never recover if the injury is an inherent risk of their job ii. Assumption of the risk b. Child tresers – Attractive Nuisance Doctrine i. Ordinary or reasonable care to prevent child tresers from getting hurt ii. If there is something attractive to children on your property, that puts you on notice and you have to be careful. iii. E.g., you own or possess a parcel of land and trying your best to avoid legal liability. How likely is it that kids will tres? If no chance, do nothing. If high chance, perhaps some affirmative action to make property safer. Something that makes it more likely is an object that's a kid-magnet (e.g., swing set on property across from middle school). Must exercise reasonable 14

prudence, such as removing hazardous conditions from around the swing set. iv. E.g., in-ground swimming pool. 1. Case A: live next to family with 17year-old teenager. A teenager may be able to manage the pool and determine whether he can swim before jumping in. 2. Case B: 2-year-old infant. 2-yearold infant can't manage the pool and doesn't know any better. Build a fence. 4. Two ways to satisfy the duty: a. Fix the problem – replace the bridge b. Warn potentially entrants – put a sign by the bridge; cones/signs around the oil; etc. c. EXAM TIP: for premises liability questions on the MBE, look closely at something that says "warn" iv. Statutory standards of care – Negligence Per Se 1. Plaintiff may discover a criminal statute that bears upon the conduct being litigated a. E.g., jury instruction: "defendant had a duty to stop at a red light; defendant had a duty to not drive higher than 35 mph. If you find that defendant violated the statute, then you must find the defendant negligent. 2. Two part test for borrowing a statute a. Plaintiff must demonstrate that he was a member of the class of persons that the statute is trying to protect b. Plaintiff has to demonstrate that the accident which occurred is within the class of risks that the statute was trying to prevent c. "Class of Person/Class of Risk test" 3. One group of statutes that will almost satisfy this test a. The motor vehicle code 4. Two Exceptions (class of person/class of risk is satisfied, but no statute): a. Statutory compliance is more dangerous than statutory violation i. E.g., driver swerves across double yellow line to avoid a child, causing a driver traveling the opposite direction to swerve off the road and hit a tree. Higher danger

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is to hit the child. Apply reasonably prudent person standard. b. Compliance was impossible under the circumstances i. E.g., medical emergency. Driver driving down a thoroughfare and has a heart attack, rolls through a red light and hits a pedestrian. Copmliance was impossible because I was having a heart attack v. Duties to Act Affirmatively 1. This means to undertake a course of action in the first place—chose to participate in an activity 2. There are none. 3. Exam tip: This proposition comes up in only one context: No duty to rescue a stranger in peril. E.g., one day Michael Phelps, Missy Franklin, and Ryan Lochte were walking down the street wearing all their gold medals and decide to take a shortcut through a park with a lake, and they hear a noise coming from the lake. The noise is made from a drowning little girl who is screaming for help. The people don't help. 4. No Duty to Rescue Exceptions: a. If there is a preexisting formal relationship, (e.g., employer/employee, innkeeper/guest, common carrier/enger) b. Defendant caused the peril that made the victim require rescuing c. The duty is a duty to act reasonably under the circumstances. NOT a duty to rescue. It is sloppy and inaccurate to say you have a duty to rescue. i. Never obligated to put your own life in peril 5. If someone chooses to act, then they have a duty to ask reasonably under the circumstances. a. Good Samaritan laws choose to do away with this b. EXAM TIP: Assume no Good Samaritan statute unless otherwise specified vi. Negligent Infliction of Emotional Distress 1. Plaintiff did not suffer any physical harm; only emotional harm. a. If physical harm, then there's an ordinary negligence case. b. In physical harm negligence cases, you can also recover for emotional damages 16

2. In any true NIED essay, you're going to need a twotiered discussion: a. Tier 1: Negligence of the defendant (will be under one of the rules we have already taken up: i.e., not reasonably prudent, violated a statute, fell below industry standard of care, fell below child standard of care) b. Tier 2: Plaintiff's entitlement to recover i. Near miss cases – defendant behaving negligently does not physically injure the plaintiff but almost did and left the plaintiff agitated. "One more step and I would have been a dead man!" Emotion: Anxiety or fear. You have to show: 1. Defendant's negligence put you in a zone of physical danger (have to show that it was a near miss). 2. Subsequent physical manifestation of the distress. a. EXAM TIP: Look for clear physical symptoms ii. Bystander Cases – Injuries to X are severe (often death; if not death, very profound personal injury). Plaintiff suffers emotional distress because of their sadness about what happened to X. Emotion is sorrow/sadness/grief. Must show two things: 1. Victim was closely related to you. Includes spouses, children, and parents of minor children. 2. Must be a contemporaneous witness – close in space and close in time. iii. Relationship cases – Careless performance by defendant will cause significant distress. Preexisting business relationship is required. 1. E.g., false positive medical diagnosis by a medical laboratory. Lab performs test negligently, using wrong chemicals or confusing test for someone else's. This causes you emotional distress, and two months later you 2. Breach of Duty 17

a. The plaintiff must identify specific conduct that falls short of the standard of care. i. Either an affirmative act or a failure to do something. ii. Write this by using the words "plaintiff will allege that the unreasonable conduct here was that defendant . . . [insert fact from the problem]." iii. In addition to fact, you must give a reason. "Plaintiff will argue this was unreasonable because . . . [insert reason]." b. Res Ipsa Loquitor i. This comes up when there is no factual information regarding what the defendant did wrong. This comes up in an information vacuum. ii. E.g., Plaintiff walks down the street in England, ing by Defendant's bakery. As he walks by, a wooden barrel of flour falls and bops him in the head, landing him in the hospital. iii. Two elements: 1. The accident as of a type normally associated with negligence a. This showing is essentially an argument based on probabilities. A confession of ignorance and an appeal to statistics. b. Often times you need expert testimony to show that the accident is normally associated with negligence 2. The accident that occurred would normally have been due to the negligence of someone in this defendant's position a. This means that the accident was in the control of the defendant 3. Causation (Factual and Proximate) a. This is the connector between breach and injury/damages. The standard way to build that bridge is through a "but for" argument. But, there is also a "proximate/legal cause" element of foreseeability. b. "But for" (Cause in Fact) – But for an act constituting a breach of duty, the result would not have happened. i. Concurrent Causes 1. When several acts combine to cause the injury but none of the acts standing alone would have been sufficient, a "but for" test is applied. ii. Multiple Defendants – Merged Causes 1. Each negligent defendant will release a destructive force into the world. Those forces will come together and with each other and then, as a merged force,

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they will hurt the plaintiff. In that case, you can't use the "but for" test. a. E.g., two negligently set fires. Dave is driving his car and is smoking a cigarette. When finished, he throws the lit cigarette butt into a pile of leaves starting a forest fire. A half-mile away, camper Don packs his bags and leaves without stomping out his fire. The wind blows the fire into more leaves, causing a forest fire, burning down Pete's cottage. 2. Apply the "substantial factor" test. a. Was each breach capable of causing the harm all by itself? b. The test for Causation in Fact is satisfied if defendant's conduct was a "substantial factor" in causing the injury. iii. Multiple Defendants – Unascertainable Causes 1. E.g., two hunters each fire a shotgun, but only one pellet hits the plaintiff in the eye. Who caused it? Impossible to determine. 2. Shift the burden of proof to the defendants to talk their way out of the case. Whoever talks his way out gets to go home without liability. If they can't do it, though, they're tly and severally liable. c. Proximate Cause (Legal Cause) i. This is the Fairness Requirement – plaintiff has to convince that liability is fair and appropriate ii. Liability is fair if the result was foreseeable to the defendant. iii. Exam Tips: Foreseeability influencers 1. How much time has ed? Generally, the more contemporaneous, the more foreseeable. a. Only a guideline, not a take-it-to-the-bank rule. 2. Distance – did the consequences take place in the same area or far away? 3. Weirdness – Is what happened something that was out of the ordinary, peculiar, or surprising? Or is it routine, conventional, or expected? 4. Exam questions will typically be conditioned on foreseeability/unforeseeability iv. Four sets of precedent that, as a matter of law, it's foreseeable 1. Intervening negligent medical treatment a. Dave breaks Pete's leg, Pete goes to the hospital for a cast, and the cast is applied so

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tight that blood circulation is cut off and the leg is amputated. b. Doctors mes can be foreseeable, so you have to pay. c. In that case, the negligent doctor will also be liable for medical malpractice. 2. Intervening Negligent Rescue a. Dave breaks Pete's leg. Dave leaves, and Joe tries to rescue Pete from the middle of the street. While Joe drags Pete to the side of the road, Joe's shoulder dislocates. Defendant is liable for injury to the rescuer 3. Intervening Reaction or Protection forces a. Dave runs a red light and enters a crowded intersection, causing a stampede in reaction to the car. Trying to protect themselves, they scatter. One is hit by another car and stomped on by another reacting pedestrian. Defendant liable for both the car-hit and the stomp injury. 4. Subsequent disease or accident. a. Dave runs a red light breaking Pete's leg. Pete gets crutches. Not knowing how to use crutches, Pete falls and breaks his arm. The second injury is on the Defendant too. 4. Damages a. Eggshell plaintiff – once defendant has committed the other elements of the cause of action, even if a modest and minor breach leads to devastating harm, that defendant is liable for all harm suffered by the plaintiff. 5. Defenses to the Tort of Negligence – Comparative Negligence. a. Comparative Negligence – shown by proof that the plaintiff failed to exercise proper care for his own safety. i. Proper care is reasonable care – you should behave reasonably. Proper care can also be obedience to any selfprotective statutes. 1. E.g., Jaywalking. b. How is Comparative Negligence Determined? i. Jury looks at the case and assigns fault in a percentage ii. Instead of recovering all damages, the plaintiff's damages are reduced by their percentage of fault. iii. Pure Comparative Negligence – even if the plaintiff is assigned most of the fault, he can still get some damages 1. E.g., plaintiff is assigned 90% of the fault; can still recover 10% of damages iv. Partial or Modified Comparative Negligence 1. Plaintiff fault below 50% reduces recovery. 20

2. Plaintiff fault above 50% is an absolute bar and the plaintiff gets nothing 3. E.g., A 70% faulty plaintiff goes home with nothing. 4. E.g., A 30% faulty plaintiff goes home with 70% of the damages.

Strict Liability Animals 1. Domesticated Animals a. Pets and Agricultural Animals b. There is generally no strict liability c. You must show that the defendant was negligent. d. Exam Tip: If you keep a domestic animal but have knowledge of its dangerous propensities, then the law will hold you strictly liable. i. This means danger attributed to the specific creature, not an attribute generally attributed to the creatures. ii. E.g., bulls can charge and donkeys can kick. These aren't iii. E.g., if your dog has previously bitten someone, you now have knowledge that your dog is a dog of dangerous propensity. e. Exception to the Exception: i. Even if you have knowledge of dangerous propensities, you will never be liable for someone tresing on your land. 2. Wild Animals a. Strict liable always b. Exam tip: Safety precautions are irrelevant. Examiners will load a question with safety precautions to try to trick you. Abnormally Dangerous Activities 1. Two part test pulled straight from the Restatement a. The activity is one that creates a foreseeable risk of serious harm even when reasonable care is exercised i. "We lack the technology to make the activity safe." ii. We can't get the risk level down low enough. b. The activity cannot be common in the location where conducted. It's out of place and out of context. 2. Hallmark abnormally dangerous activity: a. Blasting – any type of explosive i. Demolition of buildings, in connection with coal mining, it could be farmers using dynamite to blow up tree stumps b. Handling and transporting highly toxic/dangerous chemical or biological materials i. E.g., ebola virus

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c. Anything involving high dose radiation or nuclear energy i. Low dose radiation (medical uses) is not abnormally dangerous d. Safety precautions are irrelevant Strict Liability for Defective Products – Most heavily tested 1. Plaintiff must show that the defendant is a merchant a. A merchant is someone who routinely deals in goods of this type. b. These things are not merchants i. Casual sellers are the opposite of merchants – people selling their stuff through ebay or craigslist ii. Service providers are not merchants – they make products available collateral to the service, but the central core of the transaction is a service transaction. c. Lessors – commercial lessors who lease products are merchants, and can be held strictly liable. d. Parties up the distribution chain are merchants and can be held strictly liable. i. The retail store is a merchant, but so is the wholesaler and the manufacturer behind them. ii. No privity of contract requirement 2. The product is defective a. Manufacturing Defect i. The product differs from all the others that came out of the same factory in a way that makes it more dangerous than consumers would expect ii. No safety precautions – this is true strict liability b. Design Defect i. This is negligence liability in disguise ii. Only defective when it fails a risk-utility test, meaning that the danger of the product outweighs its value so that a reasonable person wouldn't have put it on the market. iii. The plaintiff must demonstrate that there was a viable alternative design. 1. "Viable" means that the product would have been safer than the version actually sold, but no more expensive and not impractical 2. Teddy bear example: Under a risk/utility approach, the use of small buttons was a risk that was not outweighed by its utility (or lackthereof) iv. Failure to conform to a government regulation is proof of defectiveness c. Information Defect i. The product cannot be physically redesigned, but it still has some residual risks that are unknown to s but the product lacks warning about those risks. 22

ii. Exam Tip: All warnings are not created equal. Even though there may be some warning language, the question may arise whether it is adequate or sufficient. A warning on page 14 of an instruction manual may not be sufficient. 3. Defect existed when the product left the defendant's hands – the product has not been altered in the chain of custody a. This element is presumed satisfied if the product moved in ordinary channels of distribution 4. Plaintiff must be making a foreseeable use of the product at the time of injury a. A foreseeable use is not necessarily the intended use. Many inappropriate uses are nonetheless foreseeable. i. E.g., you stand on a chair to get an item on a high shelf and the chair collapses. Is it foreseeable that people stand on chairs? Yes. Defenses to Strict Liability 1. Same as above, including comparative negligence

Nuisance Nuisance – unlikely to be an essay topic 1. Interference with your ability to use and enjoy your real estate to an unreasonable degree. 2. Inconsistent land use – adjacent landowner doing something that make the other's life miserable a. E.g., smoke belching factory next to an asthma hospital 3. Nuisance can be due to spite. Examples: a. Loud music all the time b. Running a crack house 4. Key point – no matter what led to the problems, it's whether the degree of interference is too much. We live in a crowded world, and we have to tolerate a certain amount of annoyance from our neighbors. It's got to be something that's a big deal. a. The nuisance must be "seriously annoying." b. "Definitely offensive" 5. Multiple Choice – balance interests and the seriousness of the interference

Three More Minor Topics Vicarious Liability 1. A plaintiff may be able to sue someone with a relationship to the actor 2. Four relationships to be aware of:

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a. Employer/employee – Respondeat Superior i. Employer is liable for torts of employees committed within the scope of employment ii. Intentional torts are generally outside the scope of employment. But there are exceptions 1. If force is part of the job assignment (e.g., security guard or bouncer), then excessive force makes the employer liable through vicarious liability 2. If the job involves friction or animosity (e.g., debt collector or repo man) the employer may be vicariously liable 3. If the employee is furthering the business of the employer (e.g., store security guard who stops and detains every third customer for "spot checks"), business can be vicariously liable b. Hiring Party/Independent contractor i. A business will not be liable for the acts of its independent contractor ii. Exception: A business is vicariously liable if an independent contractor hurts a customer on the property. c. Automobile Owner/Automobile Driver i. Owner not vicariously liable for the torts of the driver. ii. Exception: If you drive an owner's car in order to do an errand for the owner, then now the owner is liable for the driver's acts. d. Parents/Children i. Parents are not vicariously liable for the torts of their kids. ii. No exceptions. 3. Final thought about vicarious liability – EXAM TRICK a. E.g., Dave has an eight-year-old son. Dave owns a handgun, which he leaves loaded on the coffee table. Son picks up the gun and takes it out to the back yard. Son shoots the gun and hits someone. i. Dave is still liable because he can be held liable for his own behavior under a theory of negligence (recklessness?) b. E.g., Dave hires George (G for Goon) to be a flower delivery guy. Dave does not do a background check, which, if he did, would have revealed that George had four prior violent felonies. George beats someone up while on a delivery. i. Dave is still liable on a theory of negligent hiring c. E.g., Dave gives his car keys to a drunken friend who Dave knows is drunk. The drunken friend gets into an accident and hurts Paul. i. Dave is liable to paul on a theory of negligent entrustment. 4. Adjustment between codefendants

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a. Three defendants, (Tom, Dick, and Harry) all found liable. Tom pays the full amount. Tom wants to collect from Dick and Harry. i. Comparative Contribution 1. The jury decides percentages to the codefendants. 2. Tom bears the risk of insolvency 3. Exceptions – two cases where the out-of-pocket can get all the money back, known as Indemnification a. Vicarious Liability – If you have been held vicariously liable and the active tortfeasor is in the action, the vicariously liable person can recover from the active tortfeasor via indemnification b. Products liability – where the out-of-pocket money defendant is a retailer, the retailer can recover from the manufacturer. 5. Loss of Consortium Claim a. In any case where the victim is married, no matter the tort, the uninjured spouse is given a separate cause of action in addition to the actual victim. b. That cause of action is said to be derivative; any defenses that could be asserted against the actual victim can be asserted against the uninjured spouse c. Types of Consortium i. Having to pay outside people to come in and do things that the injured spouse normally did ii. Loss of society – loss of a companion. You get this in a consortium claim iii. Loss of sex – pay me because now I'm not getting laid.

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