Torts Outline

A. Intentional Torts Intent Purpose v. Knowledge with Substantial Certainty o Purpose deliberate action to bring about the event (desire) o Substantial Certainty did the know with substantial certainty that the result would occur Subjective test evaluate that individual Garratt v. Dailey Did Dailey intent to cause H/O contact (was it his purpose) or did he know with substantial certainty that a H/O contact would result

Intent to what? o Always need to first determine the what o Intend to contact (majority view) Intend the contact but not necessarily for it to be H/O Ex) kids wants to pull chair out to have person fall, but doesnt want them to get hurt Ex) touching a person on the shoulder Intend a H/O contact (minority view) Act is done with the intention of bringing about a H/O contact Ex) kid wants to pull chair out to have the person get hurt Ex) punching someone in the face

Transferred intent o If you have the intent to a commit a tort against person 1, but you commit the tort against person 2, your intent to commit the tort against person 1 transfers to make out the intent to commit the tort against person 2 o Intent to commit one tort also will transfer if another tort occurs Ex) If A intends to commit assault against B, but he commits a battery against B, his intent to commit the assault transfers to make out the intent to commit the battery Talmage v. Smith Smith throws stick at 2 boys missing them and hitting a third His intent to hit the 2 boys transfers to make out intent to hit the third When dealing with intent, ALWAYS first ask Intent to what

1. Battery A is liable for battery if they act intending to cause a H/O contact with the or a third person or to cause the or a third person to suffer apprehension of an immediate H/O contact and the s act directly or indirectly causes the to suffer contact that is H/O to a reasonable person. Volitional Act (voluntary and affirmative act) o Person must have ability to make a choice Ex) Someone sleep walking hits you - does not satisfy this element o What is the relevant act? Intent to Contact i. Intent to cause a harmful/offensive contact w/ or third person, or ii. Intent to cause apprehension of an immediate H/O contact w/ or third person Apprehension to make someone believe you are about to contact them (does not necessarily mean fear) o Purpose/substantial certainty Contact o A contact with the or third person or an object closely identified with the that is H/O to a reasonable person must result. Fisher v. Carrousel Motor Hotel Contact was not w/ the person but an object closely identified w/ him (food tray) Harmful medically describable injury Offensive something is offensive if it would offend a reasonable sense of personal dignity Brzoska v. Olson Patients of dentist sue b/c dentist has HIV/AIDS It was not reasonable for the contact to be offensive b/c of the small chance of contracting the disease

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Causation o s act must directly/indirectly cause the H/O contact with the or third person. Ex) hits a dog that gets angry and then bites (indirect causation)

Intent requirements for Battery and Assault are the same only difference in the tort is in the contact that results (Assault there is no contact just immediate apprehension of a H/O contact).

Issues are usually with intent and whether the contact was offensive to a reasonable person.

2. Assault A is liable for assault if they act intending to cause a H/O contact with the or a third person or to cause the or third person to suffer apprehension of an immediate H/O contact and the s act directly or indirectly causes the to suffer apprehension of an immediate contact that is H/O to a reasonable person. Volitional Act (voluntary and affirmative act) o What is the relevant act? Intent to Contact o Intent to cause a H/O contact w/ or third person, or o Intent to cause apprehension of an immediate H/O contact w/ or third person o Purpose/substantial certainty Apprehension of immediate H/O contact o must suffer an apprehension of an immediate contact that is H/O to a reasonable person Only difference from battery no contact results just apprehension Western Union Telegraph v. Hill Clock fixer says hell fix her clock and reaches for Hill No imminent apprehension of contact b/c the size of the desk made it impossible for a contact to result not reasonable

Causation o s act must directly/indirectly cause the apprehension.

3. False Imprisonment A is liable for false imprisonment if they act intending to confine the or third person, their conduct directly or indirectly results in such confinement, and the is aware or injured by the confinement. Volitional Act (voluntary and affirmative act) o What is the relevant act? Intent to Confine o The must act with the purpose to confine the or know with substantial certainty that their act would result in confinement of the . Confinement o must be confined within fixed boundaries w/o reasonable means of escape. Grant v. Stop-N-Go Grant is accused of stealing at convenient store Does not leave b/c he does not believe he has a choice Conscious of Confinement o must be aware of or harmed by the confinement Ex) Day students want to punish night class, so during class they barricade the doors so we cannot get out. However, we are enjoying class so much, no one notices the doors are barricaded no awareness

Ex) We put a friend who is a deep sleeper in a dungeon with mold and lock them in for an hour. After a while we put them back in their bed while they are still sleeping. If the person gets sick from the mold and finds out about the dungeon they can sue for false imprisonment injured by confinement Causation o s act must directly/indirectly cause the s confinement.

Typical false imprisonment is to lock someone up in a cage/dungeon or to intend to confine someone through threats (threaten to shoot them if they leave). Confine them by threats or fear of some action if they try to leave (didnt physically imprison the person).

4. Intention Infliction of Emotional Distress (IIED) A is liable for IIED if their extreme and outrageous conduct intentionally or recklessly causes the to suffer severe emotional distress. Volitional Act (voluntary and affirmative act) that is extreme and outrageous o What is the relevant act? o s act must be extreme and outrageous conduct must go beyond all possible means of decency (conduct must be considered intolerable in a civilized community) Subjective test look at that person Intent to cause SED o Intent to cause the emotional distress or have acted recklessly Act is reckless if deliberately disregards a substantial risk that emotional distress will result Use subjective test for recklessness did this person act recklessly Reckless element unique to IIED: Ex) If you go to a crowded area and shoot a BB gun up into the air, you may not intend to hit anyone or know with substantial certainty that you will hit someone, but you are being reckless Ex) You come into class and Stris tells you your family has died (they havent) and you are so upset you have a heart attack reckless act o Purpose/substantial certainty o No Transferred Intent for IIED Severe emotional stress o The emotional distress suffered by must be severe Causation o s extreme and outrageous conduct must cause the s severe emotional stress Harris v. Jones Boss picked on Harris which made his stutter worse Court determined that Harris emotional distress was not severe and questioned whether it was caused by his bosses conduct alone o His condition got worse but was not caused by his bosses conduct

5. Trespass to Land A is liable for trespass to land if they intentionally (1) enters land in the possession of another, (2) remains on land in possession of another, (3) acts to cause an object or third person to enter land in possession of another, or (4) do not remove an object from the land in possession of another that s/he has a duty to remove. Volitional Act (voluntary and affirmative act) o What is the relevant act? Physical invasion of land in possession of another o must intentionally: 1. Enter the land in the possession of another o Land can extent upwards and downwards 2. Remain on land in the possession of another 3. Act to cause an object or third person to enter land in the possession of another, or 4. Does not remove an object from land in the possession of another that they have a duty to remove o Rogers v. Kent County left a post in the yard of the which led to her husbands death Intent to cause Physical Invasion o must intend to do the act which causes the physical invasion o Purpose/Substantial Certainty 1. Intend to enter land in the possession of another o All that is required is that you intended to enter the land, even if you did not know that it is possessed by another 2. Intend to remain on land, after your permission to do so has expired Ex) At a party you were invited to. Later that person asks you to leave her house and you dont trespass to land 3. Intend to cause an object or third person to enter land possessed by another 4. Intend to put an object on someones land with permission and then do not remove the object after the permission has expired Causation o s act must cause the physical invasion

Intent requirement for Trespass to Land only requires that there is intent to enter land, remain on land, etc. even if you do not know that it is possessed by another. Does not require an injury or damage to land to be actionable (Trespass to Chattels does) No harm required.

6. Trespass to Chattel A is liable for trespass to chattel if they intentionally exercise dominion or control over anothers chattel and cause harm to the chattel or interferes with the possessory rights of the owner. Volitional Act (voluntary and affirmative act) o What is the relevant act? Exercise of dominion or control over anothers chattel o must exercise dominion or control over the chattel that is inconsistent with the possessory rights of the owner Dominion and/or control (same thing) take something from someone or you break it Intent to Exercise of dominion or control o must intend to do the act which causes the exercise of dominion or control over the chattel o Purpose/Substantial Certainty Ex) If you grab someones sunglasses by accident or break them even if you dont intend to break them, or you think they are actually yours intent is still met Causation o s act must cause the exercise of dominion or control over the chattel Harm o must cause some harm to the chattel or to the possessory rights of its owner Different from trespass to land b/c there must be harm to the chattel or the owners interest in the chattel must be harmed Ex) If you take someones book for 2 weeks and later return it in perfect condition. You harmed the owners interest in the chattel (his possessory rights) Ex) Send spam mail to a business servers slowing them down causing harm to the owners possessory interest Intel Corp. v. Hamidi o Hamidi sends a few emails to employees of Intel o He did not cause any harm to the chattel or the owners possessory interest in the chattel

Must cause harm to the chattel or to the possessory rights of its owner (no harm required in trespass to land)

7. Conversion A is liable for conversion when his/her exercise of dominion or control over the chattel so seriously interferes with the possessory rights of its owner that the may be required to pay the possessor the full value of the chattel. A number of factors are considered to determine the seriousness of the interference. The first four elements are the same as those describe in trespass to chattel. Seriousness of Interference o A court will consider the following factors to determine the seriousness of the interference: a. The extent and duration of the actors exercise of dominion or control; b. The actors intent to assert a right in fact inconsistent with the others right of control; c. The actors good faith; d. The extent and duration of the resulting interference with the others right of control; e. The harm done to the chattel; f. The inconvenience and expense cause to the other

Only difference b/w Conversion and Trespass to Chattels is the seriousness of the harm Ex) If you steal my car and scratch it, Trespass to Chattel o I can collect damages to repair the car Ex) If you steal my car and crash it causing $20,000 worth of damages Conversion o I get more damages brand new car (full market value of car)

B. Privileges/Defenses o Privilege refers to conduct that would normally be prohibited, but, under the circumstances, is permitted. 1. Consent (Affirmative Defenses) Actual Consent (cases are never argued on this) To make out a defense for actual consent the must have been actually willing for the tort to occur regardless of their behavior. o o o Willingness for conduct to occur the person wanted the tort to occur Ex) I tell you I want you to hit me in the stomach and you do. I cannot sue you for battery I consented to the contact. If the says they were willing but really they were not (no actual consent) Actual consent has to do with if you actually consent regardless of how you act (behavior is irrelevant). Ex) Stris says he heard X was going to hit him, and he says he would like it if that didnt happen, but in his head he really wants it to happen (actual consent). If X hits Stris he is not liable b/c Stris consented. Rare to see a defense for actual consent (where there is actual consent, there is also apparent consent)

Apparent Consent (fiction) To make out a defense for apparent consent the must have reasonably believed that there was consent by the . o The reasonably believes there was consent by the (did the give the impression that they consented) o Actual consent in the s head consent o Apparent consent in the s head consent, is it reasonable to believe the consented o OBrien v. Cunard Steamship Co. Steamship requires all passengers to be vaccinated or quarantined OBrien said she had been vaccinated before but surgeon says she needs to be vaccinated. OBrien holds out her arm and receives the vaccination, and then claims battery and negligence The battery claims does not work b/c there is actual consent and apparent consent (easier to argue apparent) A reasonable person would have believed that she consented to receiving the vaccine.

Implied-in-law Consent (fiction) To make out a defense for implied-in-law consent the conduct must be something that is inherent to the activity. o o o Sometimes the mere participation in an activity will be deemed by the court as consent for actions that are otherwise tortuous. Treating conduct as if you consented b/c of something inherent to the activity. Need to determine the scope of the activity to determine if conduct is inherent to it.

Hackbart v. Cincinnati Bengals, Inc. After a play a frustrated player forearms the in the back of the head causing a neck injury. Actual Consent doesnt work obvious Apparent Consent no indication of consent, not reasonable Implied-in-law Consent - argues that as a football player we can imply-inlaw that you consented to the contact b/c its a rough sport Court said this action was not inherent (outside scope of activity)

Implied-in-fact Consent (fiction) To make out a defense for implied-in-fact consent the conduct must be treated as if the consented because of their past history of conduct. o Based on history of conduct treating conduct as if you consented b/c of something that is common over time Ex) You and friends are backyard wrestling. One day the person you are fighting grabs a skillet and beats you over the head until you are unconscious. No implied-in-law consent. Ex) This same group for 5-10 years has been beating the loser over the head with a metal object. Implied-in-fact consent If you conclude that the conduct of the parties was such that it would be fair to treat the as if they consented, this would be implied-in-fact consent. Ex) Same group who beats the loser with a metal object, one day the winner grabs a chain saw and saws off your leg. This would be beyond the scope of what you could imply.

For Implied-in-law Consent and Implied-in-fact Consent, you have to look at the scope Is it beyond the scope of what would be implied. o Invalidated Consent (i) Lack of capacity to consent Adults who have diminished mental capacity, Kids (ii) Duress Physical or economic duress (iii) Fraud Tricking someone into consenting Lack of Informed Consent (Cause of action, not a defense) Christman v. Davis o Doctor discusses procedure with patient and the consents to it o During surgery doctor decides to do less invasive procedure that is unsuccessful o sues for Lack of Informed Consent o Judgment for doctor defense was actual consent In book to distinguish the COA lack of informed consent from the consent defenses Ex) You are plastic surgeon hired to perform nose job. While operating you decide to fix patients ears. o Defense will be actual consent wont work

2. Self-Defense To make out a defense for self-defense, it must first be determined whether the force used was deadly, which must be force which is intended and likely to cause death or serious bodily harm; or non-deadly force, which is not intended or likely to cause death or serious bodily harm. Must first ask whether force is deadly or non-deadly (look at force before it occurs) o In order for force to be deadly, force must be intended and likely Ex) If you punch someone in the stomach Is it likely to cause serious bodily harm? probably not If a person is a trained fighter? maybe Ex) If someone comes at you and you hit them with a fly swatter, and this causes the person to have a freak heart attack and die non deadly force o Non-Deadly force not intended or likely to cause death or serious bodily harm o 63 Self-Defense by Force Not Threatening Death or Serious Bodily Harm 1. Reasonable belief that youre about to suffer an immediate H/O contact that is unprivileged Ex) Stris says punch me in the stomach and when you come to do it he hits you on the head with a frying pan and claims self-defense o Wont work b/c the immediate H/O contact was privileged 2. You can only use reasonable force o You can only use a proportionate amount of force once the risk of an immediate H/O contact that is non-privileged is gone, no more force is reasonable o Reasonable force under the circumstances, would the force be deemed reasonable (limited to the amount of force necessary to protect yourself) Ex) If someone comes at you and you punch them one or two times and that stops them, that is reasonable force Ex) If someone comes at you and you continue to hit them over and over again, this force is not reasonable You never have a duty to retreat before using non-deadly force. 65 Self Defense by Force Threatening Death or Serious Bodily Harm 1. Reasonable belief that you are in peril/danger of death or serious bodily harm o You must reasonably believe the force is intended or likely to cause death or serious bodily harm usually obvious 2. You reasonably believe that the only way to prevent death or serious bodily harm is with deadly force o You reasonably believe deadly force is your only option o Typically this is where the issue is: Could you have used non-deadly force to protect/save yourself? o If the answer is yes, you cannot claim self-defense 3. The privilege of using deadly force does not exist if the actor correctly or reasonably believes that he can with complete safety avoid the necessity of defending himself by: o Retreating if attacked in any place other than his dwelling place or in a place which is the dwelling of the other, or o If attacked by a roommate, you must retreat if you have the option

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Relinquishing the exercise of any right or privilege (other than the right to prevent intrusion upon his dwelling place or to effect a lawful arrest

Courvoisier v. Raymond s business/home was broken into and he grabbed a gun and forced the mob out of his home onto the street. o fired shots into the air to try to scare away the mob but instead they started throwing rocks at him. o Police officers arrive and one goes towards who then is shot by o Self-Defense works b/c the reasonably believed that he was being attacked even though he was not.

Self-Defense is only applicable if someone is about to commit a tort against you. First question is ALWAYS, did the use deadly or non-deadly force (must be asked first so the correct rule is used) o Aggressor Rule (Aggressor Doctrine) the initial aggressor, can lose the right to selfdefense and can only get it back if they abandon the fight and give notice to his adversary that he has done so Only some jurisdictions follow this rule Ex) If you threaten to fight someone, and they take out a hand grenade and pull the pin, if you are in an Aggressor doctrine jurisdiction, you cannot take out a gun to protect yourself unless you have communicated the abandonment of the fight first.

3. Defense of Others A can claim defense of others if they intervene and use force to protect another whom they reasonably believe was about to be attacked by a third person. (must be right v. reasonable belief) o Privilege given to actors who intervene and use force to protect and defend others from threats and attacks by third persons Privilege is the same as that of self-defense put yourself in the persons shoes and use the amount of force necessary for protection Force in excess of what is reasonable is not privileged Problem arises when you make a mistake if you had reasonable belief that someone was going to use force against someone else, but it turns out you were wrong, in some jurisdictions you have no right to the privilege of defense (intervene at your own peril) Some jurisdiction allow you to intervene if you have reasonable belief

4. Defense of Property To make out a defense for defense of property the must be protecting their property using nondeadly force. o o When you are defending your property, you cannot use deadly force Katko v. Briney Briney set up a spring-gun to protect his abandoned house from being robbed and trespassed

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Katko, who thought the house was abandon was collecting mason jars from the house for his collection and has his leg blown off by the spring gun Defense of property does not work b/c you can never use deadly force

5. Recovery of Property A who has rightfully lost possession of a chattel to another may attempt to recover the property as long as the acts promptly, uses reasonable force, and is correct. o o In general, a person who has lost rightful possession of a chattel to another may resort to legal redress to recover the property Privilege to use reasonable force to regain a chattel tortuously taken by another so long as the rightful possessor acted promptly in hot pursuit after dispossession or after timely discovery of it 1. Hot Pursuit the only time you can use force is if you act promptly Once the sense of immediacy is lost, the self-help privilege is gone 2. Must use reasonable force, cannot be deadly 3. You have to be right

6. Necessity A can claim necessity as a defense if they can prove that the damage caused by their act is less than the damage that would have been caused had they not acted. o Need to prove that the damage to someone elses property, that you caused, is less than the damage that would have been caused to your property had you not acted You still will have to pay damages, but this discourages property owners from acting if the damage to their property will be less than the damage caused if they do act Vincent v. Lake Erie Transportation Co. Boat is tied to a dock when a bad storm comes in Boat owner cannot move boat b/c the storm is so bad so he intentionally tightens and refastens the ropes so that his boat does not float away In the process that boat damages the dock the captain of the boat knowingly damages the dock to save his boat The owner of the boat is liable to pay for the damage caused but is not negligence b/c the amount of damages to the boat had he not acted would have been greater than the damages actually caused to the dock

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C. Negligence Negligence is a failure to act as a reasonable person would under the circumstances. A person is negligent when their actions fall below the general standard of care of a reasonable person under the circumstances, and their actions are the actual and proximate cause of the harm. To establish a COA for Negligence: 1. Duty o Members of a society owe a duty to act reasonably to avoid causing physical harm to each other or their property; to conform to a particular standard of care. 2. Breach of Duty o Once a duty has been established, must establish that the failed to act reasonably with regard to that duty that breached that duty. o Court decides what constitutes reasonable care under the circumstances and then determines if the failed to meet that standard 3. Actual Cause (Cause-in-Fact) o But-for causation would the harm have occurred but-for the breach? 4. Proximate Cause (Legal Causation) o Foreseeability 5. Harm o Was the or their property damaged? o No duty for pure economic loss (ex) lost profits, reputation, etc.). 1. Duty The standard of care owed to others to act reasonably under the circumstances to avoid causing physical harm to others or their property. a) Reasonable Person Standard The general standard of care which must be exercised is based on how a reasonable person would have acted under the same circumstances. o The reasonable person standard is an objective standard. b) Particular Standards for a Reasonable Person: 1. Knowledge - We are not concerned with what a person perceives the risk/utility to be but rather what the actual risk/utility balance is. However, a with superior knowledge to that of the average person will be considered. 2. Emergency Situations circumstances change how a reasonable person would act How would a reasonable person act under those same emergency circumstances. Emergency circumstances not considered if they were created by . 3. Physical Disabilities how would a reasonable person have acted if they had that same physical disability 4. Mental Disabilities a person with a mental limitation is held to the same standard as someone without this mental limitation Person with mental disability cannot comprehend risk/utility Point of negligence is to alter a persons conduct, this type of person cannot perceive the balance behavior is not altered 5. Children general standard is to hold a child to a standard of a reasonable person of similar age, experience, and intellect (under 5 years old cannot be negligent) Exceptions discussed below 6. Professionals persons with professional or specialized skills are required to act with the knowledge and skill that is customary of a member in the relevant community under the circumstances (similar to custom) provides evidence Look at a reasonable person in that relevant community, nationally

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7. Custom used as evidence for standard of care (what is the industry standard) Powerful evidence if it exists - Just evidence, still use reasonable person under circumstances Vaughn v. Menlove has hay near other peoples houses neighbors tell him his hay is going to catch on fire and burn down their houses. He says he is going to build a chimney to prevent this. The hay catches on fire and burns down the houses. Neighbors sue for negligence. claims he thought he was balancing the risk-utility by building the chimney The risk of building the chimney actually increased the risk o Point of this case is we dont care what he believed Delair v. McAdoo tries to pass when his tire blows out causing an accident w/ Theory of Negligence is should have known his tires were worn o claims he did not know his tires were worn We dont care if the new or not he must know Cordas v. Peerless Transportation Co. Cab driver held at gun point jumps out of his moving cab which eventually hits a mother and 2 children Theory of Negligence was - cab driver jumping out of the cab was unreasonable b/c the driver was in a emergency situation, the risk-utility balance changes Driver not negligent b/c in an emergency situation there is little time to think how would a reasonable person act in this emergency situation Trimarco v. Klein is injured when he is cut by shower door sues landlord Theory of Negligence glass shower door should have been replaced o says the industry custom was to change shower doors when apartments were refurbished Custom was not on point was not refurbishing apartment Something is reasonable, or it is not, custom does not make it so custom is a good shortcut, however, to what is reasonable (as long as it is on point) Stevens v. Veenstra 14 year old in driving school hits person getting out of car Theory of negligence is kid should be held to standard of an adult for unsafe driving General rule hold children to a standard of how a reasonable person of similar age, experience and intellect would act Here, he was held to an adult standard b/c he was participating in an adult activity Adult activity some activities are so dangerous that the risks must be borne even by the beginner rather than the innocent victims

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Some risks are so dangerous that even a child or beginner are expected to act as a reasonable adult would Adult activities usually involve a motor vehicle c) Children Reasonable Person Standard Restatement 10 Children (Majority Position) o A child under 5 years of age is incapable of negligence o A child over 5 years of age must act as a reasonable person of that age, experience and intellect would act Exception: General rule does not apply when the child is engaging in a dangerous activity that is characteristically undertaken by adults Minority Position (Illinois Rule) o A child under 7 years of age is incapable of negligence o A child between 7 and 14 years of age is treated as a reasonable person of that age, experience and intellect o A child over 14 years old treated as a reasonable child unless you are engaged in an adult activity Boyce v. Brown believes an X-Ray of her ankle should have been taken earlier to prevent permanent injury as well as pain and suffering. expert says that it wasnt common practice to always take an X-Ray at that time o Standard of care for the profession was to not give X-Rays

For children and professionals, look at what the standard is (Ex. engaged in adult activity, professional standard of care) and then apply Negligence Balancing d) Limited Duty Rules (Nonliability for Foreseeable Consequences) In these types of cases, the s acted badly and the s harm was reasonably foreseeable, but the is not held liable. i. Limitations on Duty to Rescue The general rule is a person does not have a legal duty to rescue another. Exceptions: 1. If the put the person in peril they now have a duty to rescue. (Yania v. Restatement) Yania Court said you have a duty to rescue if you are legally responsible for putting the person in the position of peril. To be legally responsible the conduct that lead to the peril must be criminal or tortuous Restatement 322 If the actor knows or has reason to know that by his conduct, whether tortuous or innocent, he has caused such bodily harm to another as to make him helpless and in danger of future harm, the actor is under a duty to exercise reasonable care to prevent such further harm. Conduct under the restatement does not have to be tortuous. You can innocently put the person in peril and have a duty to rescue. 2. Special Relationship (Baker v. Stockberger) A having a special relationship to the may make the liable for failure to act if the is in peril (e.g. parent-child, employer-employee, common carriers).

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Special relationships can be created by statute.

Baker v. Taco Bell Baker enters a Taco Bell and faints twice hitting his head and injuring himself badly. Baker sues Taco Bell claiming they didnt assist him until help arrived Taco Bell argues they have no duty. Court said if you have a business invitee, as a business you have a special relationship with the invitee, and therefore have a duty. Restatement 314A. Special Relations Giving Rise to Duty to Aid or Protect (1) A common carrier is under a duty to its passengers to take reasonable action: (a) to protect them against unreasonable risk of physical harm, and (b) to give them first aid after it knows or has reason to know that they are ill or injured, and to care for them until they can be cared for by others. Stockberger v. USA worked at a prison and was a known insulin dependent diabetic. His coworkers were aware that he had episodes where he would exhibit personality changes and would deny he had a medical problem. On the date at issue was having an episode and said he wanted to go home so he took his keys, drove into a tree and died. o His co-workers knew he was in no condition to drive but did not offer to drive him home or try to take away his keys or arrange for other transportation. s estate sues claiming s failure to act was negligent. In this case, Judge Posner said there is no duty to do anything. 3. Voluntarily undertakings Once a person starts a rescue, they may now have a duty to act reasonably that they did not have before. Justifications for the duty: i. Fake out rescue Reliance based once you start to rescue, others may not come to the victims rescue; victim relies on your reasonable care ii. Unjustified Rescue Sometimes if you start to rescue you can actually make the harm worse. Under the traditional view, a person who undertakes a rescue must not leave the victim in a worse position. Under the more modern view, a person who undertakes a rescue is obligated to act reasonably once he has begun to act.

Restatement 42. Duty Based on Undertaking

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An actor who undertakes to render services to another that the actor knows or should know reduce the risk of potential physical harm to the other has a duty of reasonable care to the other in conducting the undertaking if: (a) the failure to exercise such care increases the risk of harm beyond that which existed without the undertaking , or (b) the person to whom the services are rendered or another relies on the actors exercising reasonable care in the undertaking. ii. Limitations on Recovery for Pure Economic Loss The general rule is that a duty is owed to protect against property and physical harm, but no duty is owed to protect against pure economic loss. Majority view (Judge Higgenbotham) - you cannot recover in tort for pure economic loss. More economically efficient to have the get insurance Minority view (Judge Wisdom) - there should not be a limit to recovery use normal negligence standards (proximate cause; foreseeability) You can recover for pure economic loss if you are part of a class that is a particularly foreseeable Majority rule wont be sensitive to certain circumstances (poor restaurant owner will have to buy expensive insurance) Emerging Compromise Pure economic loss with limits (super foreseeability) p360 What is Pure Economic Loss? No physical harm or property damage. Loss is purely economic (e.g. wages, profits, reputation, etc.) Why limit? 1. Unlimited Liability Where do you draw the line foreseeability of harm can be endless 2. Fraudulent Claims 3. Disproportionate Remedies How do you determine what everyone gets?

e) Owners and Occupiers of Land Why are there special rules for landowner/occupier defendants? Public policy says that you should be the king of your castle. Duty is a sliding scale duty is determined by status of who the entrant was. No duty is owed to those outside the land from natural conditions on the land Exception applies for dangerous artificial conditions or the land owners activity i. Categories (these categories can/will change over time) Trespasser a person who has no permission to be on the land Licensee social guests who came onto land with permission (either expressed or implied); there for social purposes or business not to the land owners benefit Invitee o Business Invitee - Someone invited for the purpose of business (you will pay them or they will pay you), OR o Public Invitee - Your property is open to the public and anyone can come onto it. o A person can lose their status as an invitee if they exceed the scope of their invitation.

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Restatement Third, Torts treats licensees and Invitees the same and a trespasser is classified as a flagrant trespasser o For a flagrant trespasser, you have no duty other than to refrain from willful, wanton or reckless conduct.

ii. What Duties are owed to each type of entrant? Must look at the status of the entrant at the time of the tort not at the time of entry. Trespasser duty to not act willfully or wantonly o Discovered or anticipated trespassers are those who you know are going to be on your property or expect/have reason to know are going to be on your property. o In many cases they are treated as licensees. o No duty is owed to undiscovered trespassers. Licensee (takes the property in the condition in which the possessor uses it: 1. Duty to warn of dangerous, hidden traps, known to the owner Must be dangerous traps that licensee is unlikely to discover 2. Active operations if you are actively doing something on the land that has danger associated with it, you have to do it in a reasonable way. o To a licensee, no duty to inspect or repair known defects just warn Invitee (balancing- traditional negligence) full duty of reasonable care in maintaining the premises 1. Duty to repair something obviously broken 2. Duty to inspect (affirmative steps to discover dangers) o A warning will usually satisfy the requirement to make safe a dangerous condition o A duty to warn does not exist where the dangerous condition is so obvious that the invitee should reasonably have been aware of it.

Gladon v. RTA was drunk after a baseball game, gets on a train, gets off at the wrong stop and is beat up. He somehow ends up on the tracks and is run over. sues and the court determines that he was an invitee. appeals claiming was an invitee when he had a train ticket, but you are not forever an invitee. When he got off the train he went outside the area/scope of his invitation and became a trespasser. claims b/c he was involuntarily on the tracks, he could not be a trespasser. Based on the restatement however, he is a trespasser. o According to the restatement, it does not matter if your presence was accidental; you are a trespasser for the purposes of the duty owed to you.

iii. Different Jurisdictional Views (balancing of property interests with tort interests)

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Are you in a category jurisdiction which establishes different duties b/w an invitee and licensee? o Different duties for licensee and invitee Licensee duty to warn of hidden traps that you are aware of; active operations reasonably; no duty to inspect or repair Invitee duty to act reasonable under the circumstances Are you in a non-category jurisdiction? o Abolishes the status distinctions - Treat licensees and invitees the same duty to warn of hidden risks (no duty to repair) act reasonable Why does it matter? o There are competing values we want people to be free from unnecessary risks of injury (tort interests), but we also want some property rights (want to be free to use your land for whatever you want Must balance these rights

Carter v. Kinney Family decides to host a bible study. signs up but does not know the family nor intend to have a relationship with them. goes to the house and slips on ice. sues claiming family should have repaired or gotten rid of the ice. The issue in the case is whether the is a licensee or invitee what duty is owed? If a licensee there is no duty b/c s have no duty to warn or repair If a invitee there is a duty to warn of risks Court says was a licensee and thus no duty was owed. If in a non-category jurisdiction you would just balance the risks. iv. General Duties of landowner Fix stuff that is broken and dangerous it is unreasonable not to Discover hidden traps that would take little effort to find o Balancing the risks/burden for a invitee (no so for licensee)

2. Breach of Duty A person breaches their duty when their actions fall below the standard of care of a reasonable person, under the circumstances. This is a question for the trier of fact. Negligence Balancing - Extremely Important!!! o Why do the risks outweigh the burden or vice versa even if it is obvious o Also need to first identify the theory of Negligence (What did the do? What should the have done differently?) Negligence cause of action negligence just a way of saying you acted unreasonably o Negligence has standards not rules a court uses their discretion when applying the standards Breach of Standard (Duty) of Care Negligence Balancing You must act reasonable under the circumstances - Did the s actions fall below the standard of care of a reasonable person (use this standard for ALL negligence cases) o If you behave in a way that a reasonable person would not have behaved in that way, you fell below the standard of care

a) Risk/Utility Balancing (Restatement 2nd 291) (Informal Balancing)

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Goal of Negligence law is to strike a proper balance between the risk and utility of the act o If the risks outweigh the utility (benefits) the action is Negligent Risk the harm to society or an individual other than yourself from the activity you are engaging in Chance the thing you are doing is harmful Utility the social usefulness of the activity that the is engaging in How useful is the thing that you are doing? Ex) You are releasing toxins into the air and polluting it. But, if you are working on a drug that will cure cancer, society sees this as useful and this utility may outweigh the risks b) Learned Hand Formula - B-PL (Restatement 2nd 3) (Formal Balancing) Burden of adequate precautions - (Probability the s act will cause harm) x (Gravity of the resulting injury/Loss) If the burden is less than the probability of injury multiplied by the severity of the injury then the act is Negligent (B<PL Negligent) If the burden is greater than the probability of injury multiplied by the severity of the injury then the act is not Negligent (B>PL no Negligence) B-PL is just another way of expressing Negligence Balancing Lubitz v. Wells Kid finds a golf club in the backyard, picks it up and swings it and hits his friend Kid and his Father are sued for Negligence Theory of Negligence is that the kid didnt look to see if anyone was around before he swung and didnt warn the before he swung o Court ignores this theory and focuses on the fathers Negligence Theory of Negligence against the father is that he should not have left the golf club out, allowing a kid to pick it up and hit someone with it Case was dismissed b/c to say this was negligent would mean that every person who leaves a golf club out and has their kid hit someone with it would be Negligent (this was not reasonable) o If the circumstances changed and the kid had a history of hitting people with golf clubs, then the fathers act would be unreasonable o The risks were low and the inconvenience was high (B>PL) U.S. v. Carroll Towing Guy has a barge that is tied up to a dock. The bargee leaves the barge. Barge breaks away and is damaged. Judges theory of Negligence is that the bargee was acting unreasonable when he left the barge Judge used B<PL did the burden of prevention outweigh the risks? o Why did the bargee leave the boat? The reason will determine the utility (Did he leave to go to bar or did he leave to take Mom to the hospital?)

Washington v. Louisiana Power

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Power lines hang above backyard of house, has a radio antenna in backyard. asked power company to bury power lines they say theyll do it if pays for it. one day hits the power lines with the antenna and dies. Power company is sued for Negligence for leaving power lines exposed B burden of taking precaution (cost of burying power lines), P probability this guy would be exposed to electricity, L gravity of harm death Even though the result was terrible, the risks were so low and the burden/cost of prevention was so high not negligent

The threat/consideration that a person can be sued will alter their behavior and cause them to act safer or at least to consider their behavior. Want people who are doing risky things to think more carefully about their behavior. c) Negligence per se An actor is negligent if, without excuse, the actor violates a statute that is designed to protect against the type of accident that occurred and the victim is within the class of persons the statute is designed to protect. For a Negligence per se case, always first ask, what is the purpose of the statute? to determine if negligence per se applies. o o o Judicially determined standard of care the judge takes the case away from the jury and decides the standard of care. Judge uses the statutory standard of care as the minimum standard of care which an actor must conform to Take the balancing function away from the jury judge is saying: reasonable persons could not differ as to the risk-utility trade-offs

1. Type of Accident The accident that occurs must be the type of accident that the statute is designed to prevent. 2. Class of person The person affected must be in the class of persons that the statute is designed to protect. 3. Excuse The defendant must have no reasonable excuse for violating the statute. If has an excuse for violating the statute, cannot prove negligence per se Majority Rule If you have a statute that is violated and you can prove the 3 elements, this is negligence per se Minority Rule If you have a statute that is violated and you can prove the 3 elements, treat the negligence as presumptive evidence (factor to consider)

Reque v. Milw. & Suburban Transport o Bus stops near a curb more than 12 inches away o There is a statute which says, all parked vehicles must park within 12 inches from curb o Reque falls off the bus and sues for negligence claims negligence per se o Doesnt work b/c this is not the type of accident that the statute was trying to prevent (statute designed to give cars room to pass) Martin v. Herzog

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o o o o

Buggy driving with no headlights is hit by another vehicle driving near the center of the lane Buggy sues for negligence claiming car was not in his lane Car claims the buggy was negligent for not having their headlights on Here, statute was on point, Buggy was negligent

Impson v. Structural Metals o Statute says no passing within 100 feet of intersections o Truck attempts to pass car, car speeds up and then makes left turn and truck hits car killing two passengers car sues for negligence per se o Statute is on point truck claims his excuse was he could not see sign b/c it was small This is not an excuse it is an argument for why he was not negligent o Excuses are different from arguments of reasonable conduct Excuses my brakes failed, I had to get someone to the hospital Negligence per se on an Exam: What is the Statute? Is there an expressed or implied private right of action? Does the accident fall into the type of accident the statute is trying to prevent? Does the fall into the class of person the statute is trying to protect? Does the have any valid excuses? How will they fare? Private Right of Action Statute will have a section on enforcement. If a person violates the statute you can sue them; and you do not have to prove the 3 elements. If there is no private right of action in the statute use negligence per se

d) Res Ipsa Loquitur (The thing speaks for itself) Circumstantial evidence of Negligence can reach the jury using res ipsa loquitor when you are not sure what happened but whatever went wrong was most likely the result of someones negligence. o Dont want the burden to fall on the just b/c you are not sure what happened Ex) Things falling out of the sky, plane crash, leaving medical equipment inside of you after surgery, buildings collapse

For res ipsa loquitor to apply, the must have exclusive control of the agent which caused the accident, the accident must be of the type which ordinarily would not occur but for someones negligence and it must not have been due to any voluntary action or contribution on the part of the . Elements: 1. Accident was of the type which ordinary does not occur in the absence of someones negligence. 2. must have exclusive control of the agent/instrumentality that caused the accident 3. No contributory negligence ( cannot contribute to the negligence) If the 3 elements can be proven, the will get a jury instruction telling them they can infer negligence. The jury can infer it, but they dont have too Res Ipsa Loquitur is not a guaranteed winner.

Restatement, Third, Torts 17. Res Ipsa Loquitur

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The fact finder may infer that the has been negligent when the accident causing the s physical harm is a type of accident that ordinarily happens as the result of the negligence of a class of actors of which the defendant is the relevant member. Ybarra v. Spangard was to have an appendectomy to be performed by Dr. Spangard at a hospital owned by Dr. Swift. Prior to the operation had never had any pain or injury to his right arm or shoulder. When awoke he felt a sharp pain b/w his neck and shoulder. sues multiple s not sure who was negligent but know that one of them was. This court said the burden shifts to the s to determine who is liable. 3. Actual Causation Actual causation exists when but-for the s breach of duty, the harm would not have occurred. Would the harm have occurred but-for the breach of duty? Would the harm have occurred anyway? Perkins v. Texas & N.O.R. Negligently speeding train collides with car, killing passengers of car. Court did not know how fast the car was going it is possible that even if the train wasnt speeding, the accident would have occurred no actual causation Concurrent Causes The but-for test applies where several acts combine to cause an injury, but none of the acts alone would have been sufficient. But-for any of the acts, the injury would not have occurred. There can be many but-for causes. You do not have to be the but-for cause of the harm, just a but-for cause of the harm

Joint and Several Liability if s are held to be jointly and several liable, then the can sue one of them, or all of them and if any of them are held liable, they have to pay the full amount. o Two ways this happens: i. When you have independent acts of negligence which cause an indivisible injury (two different acts cause one injury) Ex) A and B are hunting and are negligently shooting their guns. A shoots C in the arm with one type of bullet and B shoots C in the leg with a different type of bullet. No J/S liability here, the injuries are divisible. ii. Concerted action Ex) Watching fast and the furious and we decide to go race; 2 people race and Stris waves the flag. During the race one of the cars hits a lady. All parties involved are liable acts are all connected When you have multiple s, all of whom breached a duty, if one of them caused the injury but we are not sure which one, the burden of proof shifts to the s to prove who caused the harm (J/S liability).

Problems of Proof The must prove that the more likely than not caused the injury. i. Statistical Probabilities ii. Expert Testimony Kramer v. Wilkins

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Glass falls on s head and cuts him; years later he finds out he has cancer where he was cut. breached a duty - but-for the glass, would not have been cut. Experts testified there was a 0-1% chance that the glass caused the cancer therefore no actual causation. If the probability of you causing the accident is low, you are not be the actual cause.

Reynolds v. Texas & Pacific RY. Large lady is rushing to catch a train and she slips and falls. She argues s should have had lights and hand rails. Even though the accident may have happened anyway, s negligence greatly multiplied the chances of the accident. Herskovitz v. Group Health Terminally ill patient who is going to die of cancer (has 39% chance of living) Doctor miss diagnosed him (now he has a 25% chance of living) The decreased chance of survival makes the liable. Substantial Factor Test (Majority Rule) even though the harm would have occurred anyway, or there were multiple but-for causes, the probability of harm increased so substantially due to s negligence that the court will use a substantial factor test to show actual causation. o s conduct was a substantial factor in causing the injury Loss of Last Chance Doctrine redefine the injury the injury isnt the death, it is the substantial loss in chance of living. This loss of chance would not have occurred but-for the s breach. Even if your negligence did not cause the harm, if your negligence made the chances of an accident higher, you are the actual cause. 4. Proximate Causation (Legal Causation) Proximate causation exists if the consequences of the s breach of duty are reasonably foreseeable. The extent and manner in which the harm occurs need not be foreseeable. Issues arise when due to your negligence, an injury occurs, but it is not the type of injury you would have expected. Only get to this point if it has been established that a duty was owed, that the duty was breached, and that the breach actually caused the harm. Restatement Third 29. Limitations on Liability for Tortuous Conduct. An actors liability is limited to those physical harms that result from the risks that made the actors conduct tortuous. The standard imposed by this section is often referred to as the requirement that the harm be within the scope of the risk for liability to be imposed.

a) Liability Limited to Reasonably Foreseeable Consequences

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Thin-Skull Rule when you have a injury that is more severe than you would have expected - must take the as he finds him o o o The injury which occurs is the exact injury we would expect, it was just more severe than we would expect If suffers an injury due to your negligence, you are liable for the extent of the injuries Rule applies to physical, psychological, and property injuries.

McCahill v. NY Transportation is estate of man who was hit by a cab and died. sues cab for Negligence Jury found was negligent, decedent was not contributorily negligent, and the cab was the but-for cause of the accident. Is it reasonably foreseeable that if you hit someone with your cab that they will die b/c of alcohol withdrawals? Court says yes b/c the accident precipitated the withdrawals which led to death thin skull rule o This goes to the extent of damages, not to liability first you must be Negligent, then determine the damages. If you breach a duty that actually causes s injury, you are only liable for the injury to the extent that it was i. Foreseeable ii. Within the scope of the risk that made your conduct negligent Risk must be among the potential risks that made your conduct negligent in the first place Wagon Mound No. 1 s have workers on dock with gas torches. s operate an oil vessel and there is an oil spill but they do not attempt to disperse the oil. s ask if it is safe for them to be using torches and s say Yes, but there is a fire and the dock is damaged. Was the fire foreseeable? The court said no, and rejected the thin-skull rule. b) Superseding Causes/Intervening Acts (Indirect Cause) Derdiarian v. Felix Construction construction worker is hit by car after driver suffers a seizure b/c he forgot to take his medicine. Driver of the car is Negligent. Construction company is sued as well for negligently setting up construction site. The court ruled that a car accident was reasonably foreseeable, regardless of the reason for the accident. Intervening Act you do something wrong, and right before the injury, something else happens, and then the injury occurs. Superseding Cause used to describe an intervening act which absolves a of liability o Whether intervening acts will protect the from liability is determined by foreseeability. Restatement Third 34. Intervening Acts and Superseding Causes

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When a force of nature or an independent act is also the factual cause of physical harm, an actors liability is limited to those harms that result from the risks that made the actors conduct tortuous. Watson v. Kentucky & Indiana Bridge & R. Co. Railroad company spills gasoline out of one of their trains. Someone throws a match (intervening act) into the gasoline and it ignites. This is foreseeable it is exactly the type of accident we are worried about D. Affirmative Defenses (Conduct based Defenses) 1. Contributory Negligence (Complete bar to recovery only 3-4 jurisdictions remaining) Under Contributory Negligence, if the s conduct is Negligent and his negligence is a legally contributing cause of the injury, he cannot recover against the for their Negligence. Contributory Negligence is a fairness rule if you want to sue someone you cannot be culpable. It is a complete defense to Negligence. Was the also Negligent? Was the harm the actual and proximate cause of the s negligence? Butterfield v. Forrester was making repairs to his house which was close to a road and had placed a pole across part of the road. was violently riding a horse on this road and did not see the obstruction (although it could easily be seen at 100 yards away) and he and his horse fell causing him injuries. Both and were found to be negligent = No recovery Courts in general did not like contributory negligence and looked for ways around it: o Last Clear chance doctrine - apply contributory negligence, but there is an exception if the defendant was the last person who could have prevented the accident.

2. Comparative Negligence (Comparative Fault) Under comparative negligence, if the s conduct is also Negligent and his negligence is a legally contributing cause of the injury, s Negligence is a partial bar to his recovery. Comparative negligence reduces the s recovery by the percentage of responsibility for the injury attributed to the . a. Pure Comparative Negligence Under pure comparative negligence the s damages are reduced by the percentage that they are Negligent. Ex) A is responsible for 90% of the negligence which caused his injuries; he can recover only 10% of his damages. 13 states apply pure comparative negligence b. Modified Comparative Negligence Operates similar to pure comparative negligence, except the must be under a certain percentage of fault to recover, if they are not they are barred from recovering (contributory negligence). Two Jurisdictions recovers if their negligence: i. does not exceed the s negligence (50/50 jurisdiction), or If it is 50/50 still recovers ii. is less than the s negligence (49% jurisdiction)

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If it is 50/50 does not recover s negligence must be less that s negligence In such a case, the plaintiff's damages are to be reduced in proportion to the percentage of the total negligence attributable to the plaintiff.

McIntyre v. Balentine is driving southbound on highway when enters the highway from a truck stop. enters highway in front of who eventually strikes the from behind causing him serious injuries. sues for negligence and court finds both parties negligent and jury apportions fault at 50/50. If in a contributory negligence or modified comparative 49% jurisdiction the would not recover. If in a pure comparative negligence jurisdiction would recover (or modified 50/50 jurisdiction) All comparative negligence jurisdictions agree the can recover if he is < 50% at fault. The dispute arises if both parties are 50% at fault depending on jurisdiction either recovers 50% or 0%. Nuances of Comparative Negligence Multiple Tortfeasors o Majority of courts combine the s fault and compare that to the s fault. Ex) Two s are each 30% at fault and is 40%, recovers b/c we combine s fault = 60% o Other courts require that the be compared to each alone. Ex) Same as above, but here does not recover b/c s fault (40%) is larger than each alone (30%) What Counts as Fault Restatement 3rd 8. Factors for Assigning Shares of Responsibility Factors for assigning percentages of responsibility to each person whose legal responsibility has been established include: (a) the nature of the persons risk-creating conduct, including any awareness or indifference with respect to the risks created by the conduct and any intent with respect to the harm created by the conduct; and (b) the strength of the causal connection between the persons risk-creating conduct and the harm.

For exams purposes (Comparative negligence v. Pure/Modified Contributory negligence) If the facts give the type of jurisdiction you are in, apply that rule to the facts If the facts are vague to the jurisdictions, discuss how each rule would apply to facts Only discuss if the prima facie case has been established for both parties 3. Assumption of Risk (Complete bar to recovery) A can raise the defense of assumption of risk if the assumed the risk of any damage caused by s acts. To have assumed the risk the must have known of the risk and voluntarily assumed it. a. Express Assumption of Risk (contract doctrine) Express Assumption of Risk exists when, by contract or otherwise, the explicitly agrees to accept a risk. Can be invalidated if it is found to be against public policy or if is insufficiently clear or insufficient in scope. Evans v. Lima Lima

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was part of a flight team and they were practicing when came in contact with another plane causing it to crash, killing . estate sues on theory of Negligence that the other pilots acted negligently during the practice. Court grants SJ for s b/c signed a release therefore he expressly assumed the risks of his activity.

b. Implied Assumption of Risk Assumption of risk applies when the is voluntarily exposed to a risk by engaging in a certain activity with knowledge of the risks involved. If the is also negligent, if we apply implied assumption of the risk, the recovers nothing (contrast with comparative negligence) The modern trend is to allow implied assumption of risk to be absorbed into comparative negligence but retain express assumption of risk. i. Primary Assumption of Risk Primary assumption of risk is not an affirmative defense, but rather a way of arguing the prima facie case that the defendants conduct was not negligent and that the risk was inherent to the activity. Saying not that consented, but that he had enough knowledge that risks existed, so you cannot claim Negligence. Argue that although your conduct was not unreasonable, under the circumstances it the risk was inherent to the activity no duty Ex) decides to participate in horserace and is thrown off of horse. This conduct may otherwise be unreasonable, but in the context of being in a horserace it is not. ii. Secondary Assumption of Risk Secondary assumption of risk is an affirmative defense which applies when there is a negligent act by the but the plaintiff chooses to encounter the negligently created risk. Affirmative defense dont get to it unless there is a prima facie case o Strict Indefensible defense (no recovery) Ex) Your landlord is negligent and sets fire to your house and your baby is inside, so you go into the house to save the baby reasonable conduct o Qualified - (Similar to contributory Negligence) Ex) Your landlord is negligent and sets fire to your house and your hat is inside, so you go into the house to save the hat unreasonable conduct 4. Avoidable Consequences (Not on Torts Exam) If you are the victim of s negligence and are injured, if any of your damages are exacerbated by your actions, a may claim they are not liable for the additional injuries/avoidable consequences. (Fact Specific) Generally, has the burden of proof must convince the court that the acted unreasonably. Similar to comparative/contributory negligence it is post-injury negligence by Ex) You were very sick and did not go to the doctor. You made matters worse with conduct which was unreasonable.

Novko v. State of NY

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is injured when a state trooper crashes into his car while stopped at a red light. Slam-dunk Negligence case issue is with amount of damages. State argues that should have quit as job as a dairy farmer to prevent his injuries from getting worse (avoidable consequences). says he did everything he could to prevent further injury Court agrees, says s conduct was not unreasonable.

E. Strict Liability A is liable under strict liability if they breach an absolute duty to prevent harm to others and their property, and that breach is the actual and proximate cause of the harm. Distinguished from negligence in that negligence is about care levels (standard of care) whereas strict liability is about activity levels. o Has the same elements as Negligence, except your duty is to prevent harm from your actions (absolute duty) doesnt matter if your conduct is reasonable or unreasonable. For strict liability, the s conduct does not have to fall below a standard of care even if the person acted reasonably (acted non-negligently) he can still be strictly liable if their conduct injures a Goal is to restrict peoples activity levels (as well as where they do these activities) to prevent harm. Even if a person does a certain activity reasonably, it can still be unsafe. Ex) You own a gorilla and you chain it up with the best chains in the world and it escapes and attacks someone. You are strictly liable for the injuries. Doesnt matter how reasonable you were in chaining him up, just having the gorilla makes you strictly liable. The point of strict liability is to get you to think about whether it is worth having a gorilla. Makes you consider your activity level. Risk Bearing There are certain areas where people are able to bear the risk better than others. Under negligence, when an actor exercises reasonable care, the victim bears the residual accident costs caused by the actors conduct (these are the costs that are cheaper to incur than to make efforts to avoid). Essentially the victim becomes strictly liable for the costs. Under strict liability we attempt to shift the burden of these costs to the other party. Ex) A business can purchase insurance against harm from a product they produce. A customer buying the product cannot do this. Ex) 2 people are driving, neither are speeding or doing anything unreasonable. The cars collide and one of the drivers is injured. This person cannot recover b/c under negligence there was no breach of duty no unreasonable conduct. There are costs due to the accident residual accident costs. Under Negligence, the victim bears these costs b/c there is no fault. Under Strict Liability, shift the burden to the other party.

1. Liability for Animals

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The owner of an animal is strictly liable for damage caused by the animal, other than domesticated animals, as long as it was reasonably foreseeable. Biggest issue is whether it was a wild or domesticated animal. o Domestic animals are generally considered inherently non-dangerous animals. i. Wild Animals The owner of a wild animal is strictly liable for any harm caused by the animal. You are not liable for all damages caused by all animals on your land you must be in control of the animal. Ex) Girl is sitting at the pool and is attacked by a mongoose. No liability if you do not own the mongoose you are not in control of it. You do have a duty to keep animals off your land if it is foreseeable that the animal will enter your land. o Exception exists for public zookeepers they are only liable if negligent ii. Domesticated Animals The owner of a domesticated animal is only strictly liable for injuries caused by the animal if the owner is aware of or should be aware the animals viscous propensities. If the owner did not know, or should not have known of the viscous propensity then he was negligent. iii. Livestock (Dont need to know for test) 2. Liability for Abnormally Dangerous Activities A person is strictly liable for harm caused as a result of an abnormally dangerous activity, which can be characterized as any activity that involves a substantial risk of serious harm (to person or property) no matter how much care is exercised. Restatement Third 20 - Abnormally Dangerous Activities (a) An actor who carries on an abnormally dangerous activity is subject to strict liability for physical harm resulting from the activity. (b) An activity is abnormally dangerous if: (1) the activity creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors; and (2) the activity is not one of common usage. How much risk of the activity can you take out of it by doing it in a non-negligent manner? o Is it an activity that can be made safe? If the answer is no, it considered abnormally dangerous.

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