Hammontree V. Jenner

intro
hammontree v. jenner
christenson v. Swenson
Baptist memorial hospital
ostensible agency requirements
conduct by principal
causes reasonable belief that agent was employee/agent
justifiable reliance on agency
plaintiff did not raise matter of fact on any elements
negligence
brown v. kendall
ordinary care standard
plaintiff has burden of proof in negligence action
standard of proof is preponderance of evidence (50-50)
DUTY
policy
fairness
compensation
deterrence
fraud
floodgates
defendant wants to show nonfeasance, plaintiff wants to show misfeasance
aid/rescue – no general duty to rescue
harper – lakeMinnetonka diver
social host did not have duty to warn guest about shallow diving
affirmative duty to act only for special relationships
common carriers, innkeepesr, landownders, family
knowledge of danger ≠ duty to warn
nonfeasance
farwell – beaten up friend
duty to avoid affirmative actsthat worsen situations (misfeasance)
beginning assistance can lead to duty
special relationships can bring about duty
profit
historical duty
contractual relationship
custodial (sometimes)
obligations to control the conduct of others
factors (tarasoff)
foreseeability of harm
closeness between defendant’s conduct and injury
burden to defendant
consequences to community
preventing harm
(insurance)
tarasoff
usually, there is no duty to 3rd parties
unless there’s a special relationship (restatement 2nd)
therapist and victim (doctor – patient)
master – servant
land owner
parent - child
professional inaccuracy doesn’t negate therapist duty to protect victim
public interests (welfare) weigh more than private
anti-duty argument
therapists predictions unreliable
therapy requires open communication (confidentiality problem)
doctor/patient special relationship
doctor had duty to s.o. of plaintiff to tell about HIV+
2 years btwn plaintiff’s infection and treatment of patient
doctor had duty to inform child of patient about genetically transferable cancer
doctor had no duty to husband of patient for false negative hep C test results
doc had not known plaintiff at time of offense
tenuto – doc has duty to warn parent of infant who contracted polio from immunization (special relationship expands to immediate family)
reynolds v. hicks
social hosts have no duty to third persons
too wide an imposition, too difficult for hosts
commercial hosts more prepared and get benefits, so they have duty
pro-duty
serving alcohol to a minor is criminal offense
injury is foreseeable
must stop causal chain
landowners/occupiers
carter v. Kinney
trespasser: no duty
licensee: duty to make safe dangers of known conditions
invitee: reasonable care to make safe dangers revealed by inspection
bible study attendee is a licensee
dalai lama is not a trespasser until you tell him to beat it
invitee
business
public
heins – icy hospital – invitee/licensee classifications should be abandoned
invitee/licensee classifications are predictable, stable, and historical
but entrant’s status should not determine duty
life less worthy of compensation because of permission?
classifications no good for urban industrial society and arbitrary
too harsh
factors
foreseeability
purpose for entrance
use (expected) of premises
reasonableness of inspection/repair/warning
burden
posecai
no duty to provide security in parking lot
balancing test
foreseeability of harm
nature of land
similar incident
gravity of harm
burden to landowner
totality of circumstances test – nature of land and prior incidences
specific harm test – is there knowledge of it
judge determines duty here
nonfeasant third party – problem requiring duty
duty to acquiesce
pro
bright line rule avoided
con
legal obligation to give up money
criminals are unpredicatable
intrafamily
liability intentional harm by parents against children
negligently inflicted harm in question
broadbent
parental immunity usually doesn’t apply when
parent is willful, wanton, reckless
child is emancipated
death
parent acting outside parental role and within employment
parental immunity (no good anymore)
injury to child disrupts family more than lawsuits
there are measures to protect against fraud in judicial system
insurance can keep lawsuit from depleting family resources
parent probably will not inherit money
parents always owe parental duty to minor child
standard is reasonably prudent parent in situation
insurance
may foster collusion
emotional harm
factors
intentionally or recklessly inflicted
results from physical injury negligently inflicted
emotional harm leads to physical injury
direct victims
falzone – emotional damage without physical impact
husband struck by car, wife sick from fright
elements for recovery
negligence causes emotional harm
emotional harm leads to substantial physical injury
impact not required (medical evidence advanced now)
awards sometimes given for pre-impact fright
decedent was aware of doom for an appreciable length of time
gammon
dead father’s leg was really not amputated
damages for ordinarily sensitive person here (no eggshell plaintiff)
reasonably foreseeable is the only requirement here (b/c family?)
wrong diagnoses sometimes permit emotional distress
restatement does not require physical damage but requires permanence
indirect victims
portee v. jaffee
mom watches son die in elevator shaft
dillon test for foreseeability of emotional injury
physical proximity to victim
direct witness of harm
close relationship to victim (court says this is most crucial)
additional factors
severity of injury causing emotional distress (not all courts use)
sensory impact (related to physical proximity)
zone of danger, immediate family, severe physical injury
time between negligence and emotional distress can limit recovery
unmarried cohabitatants s/t can’t recover where married couples can
Johnson v. Jamaica hospital
baby abducted from hospital for 4.5 months
no direct duty to parents for care to child
emotional injury to infant does not trickle down to parents
dissent says it’s a “pitiful confession of incompetence”
BREACH
foreseeability
defendant wants event to be specific (less foreseeable)
plaintiff wants to make event bigger (boys playing)
cases
adams (boy swinging wire)
duty to take reasonable precaution
foreseeability (wire not reachable, no prediction possible)
cost of prevention – insulation impossible
effectiveness – guards have little value
value of activity
custom
us v. carroll towing (barges)
learned hand b < pl is negligence
find factors to apply to b, p, l
p – harbor activity, weather, crowd, light/dark
b – customs, hiring attendant, cooped up bargee
l – cost of bargee, cargo
bolton v. stone (cricket)
cricket ball strikes woman off field
how probable is it someone will be struck
remedial measures are irrelevant
there should not be activity that creates substantial risk
reasonable person
bethel (wheelchair on bus)
common carriers do not owe passengers highest degree of care anymore
historically b/c railroad accident injuries high
buses similar in that passengers are at mercy of bus
reasonable person standard accounts for circumstances
public conveyances are now as safe as private modes of travel
what ordinarily ought to be done (not what is done)
some jurisdictions (kansas) still can apply highest degree of care standard
awkward or hasty must rise to reasonable standard
exceptions
blind
children (no capacity)
usu. held to standard of conduct reasonable for age
no ability to foresee possibilities
when children engage in adult activities  adult standards (driving boat/car)
mentalability
should stupid be an exception
emergency (some states)
levey, defendant confronted with emergency not of his/her own making
judge and jury
pro-judge
consistency, clarity of rules
repeated fact patterns
policy (efficiency)
experience
pro-jury
peer/common person more fair
emotions are relevant
no politics
b&o v. Goodman
defendant had no duty to display sign warning of oncoming train
plaintiff did not stop, get out, look - negligent
when standard of conduct is clear, judge decides on negligence
pokora
boxcars blocking view of oncoming train (no whistle)
plaintiff did not have duty to stop and look, no negligence
Goodman breached duty and was negligent
jury where there is no standard evolved for customary conduct
akins (foul ball in the eye)
reasonable care under the circumstances is ordinarily, but not always, question for jury
andrews v. united airlines (overhead bin)
common carrier owes utmost care toward passengers
complaints received but injuries low
jury should decide whether airline had duty to do more than warn
ordinary flight circumstances
custom
courts, not custom, define standard of care except in malpractice
well-defined
same business
actor either charged with knowledge or negligent ignorance
jury charged with reasonableness and custom
trimarco (bathtub door)
custom can show some evidence that defendant is sub-par (unreasonable)
reasonable person
lavallee
defendant motel had no duty to provide flashlights etc.
no witness knew of motel that provided emergency lighting in question
Levine
custom showed dumbwaiters used smooth ropes to avoid injury
statutes
violation of criminal statutes can cause tort harm
majority examine statute for intent, but some don’t
usually some evidence standard
martin – standard of care statute
trial judge leaves jury to decide importance of plaintiff’s lights
appeals says no duty to plaintiff who disobeys s.o.c. statute
tedla – rule of the road statute
rules of the road do not require strict observance
excuse – agree that violated standard of care, excuse as defense
justification – want new standard
approaches to violation of statutes
some evidence (jury)
prima facie evidence of plaintiff’s negligence (jury if rebutted)
negligence per se
factors
was there excuse?
was it the wrong type of harm intended to be avoided by statute
usually not liable (public order v. safety)
was the plaintiff the one meant to be protected?
if it was a standard of care statute, was there a choice?
proof
circumstantial evidence
negri – spilled baby food
prima facie negligence, slippery baby food jars in aisle
baby food does not move around  left spilled for hours (?)
gordon – wax paper
constructive notice (none)
visible defect
temporal existence of paper on steps
res ipsa loquitor – sed quid in infernos dicet?
elements
exclusive control of defendant
sometimes right of control is enough
no proof of negligence possible
accident would not have occurred ordinarily without negligence
not due to voluntary action by plaintiff (sometimes)
explanation more accessible to defendant (sometimes)
byrne – barrel of flour falls out of sky
presumption of negligence from warehouse
barrel in control of defendant – prima facie negligece
Nicollet hotel
national junior chamber of commerce throwing stuff out window
hotel management knew and turned other cheek so infer negligence
McDougald – tractor-trailer tire
a spare tire coming loose and airborne and crashing is not an accident which would occur but for failure of reasonable care of controller of tire
preponderance of evidence that there was negligence is requirement
Ybarra
right arm and shoulder injury after appendectomy
several defendants
res ipsa can’t be invoked against any individual defendant
if no RIL, plaintiff can’t recover knowing someone was negligent
like pedestrian struck bybarrel or passenger sitting awake in train
number of defendants or their relationships determine applicability of RIL
plaintiff, unconscious, does not have to identify negligent defendant
if no RIL, patients injured while unconscious willo never recover
fireman’s fund – no RIL where fire broke out but 1 of 4 smoking defendants started it
medical malpractice
standard of care
expert requirements
knowledge, experience, training, education
board certification “presumptively qualified”
no single factor is determinative
sheeley – episiotomy
expert testimony determines standard of care in malpractice case
unless lack of care is obvious within layman’s common knowledge
sometimes, court requires expert of similar education, skill, experience
same or similar locality rule thrown out
encourages disparity in standards among communities
was procedure executed in conformity with recognized standard of care? (no, liable)
accreditation, proliferation of literature, national standards
informed consent
matthies – nonconsent for NONSURGERY
informed consent
doctor must explain medically reasonable alternatives and outcomes
doc must give non-recommended alternative treatment info
policy: self-determination (historically, battery), patient must make informed decision
professional standard
expertise
better notice
more efficient (settlements)
decrease unnecessary treatments
patient standard (matthies)
true to patient expectations and desires
unbiased
self-determination
subjective standard
not standard
CAUSATION
actual cause
where but-for cause is problematic use
more likely than not (stubbs hemlock and holly typhoid case)
in medical suits, loss of chance - doesn’t need 50% (alberts ambutation)
elements
material loss of chance
causal link to a reasonable degree of medical probability 50%+
closed window of chance (temporal)
anti-lost chance approach
playing role of lotteries and insurance policies
statistics unreliable and misleading
substantial factor
where deterrence is the object
joint and several liability
joint and several
plaintiff recovers 100%
each defendant liable for full damanges
where there is a single, indivisible injury
when damage cannot be allocated
concert in action (drag races)
uniform act – each defendant pays no more than pro rata share
equity principles – solvent tortfeasors divide full amount among them
summers v. tice
quail huntin
where both defendants are negligent, one caused harm
shift burden of proof to defendants (access to evidence)
each defendant joint and severally liable for all damages
no requirement for acting in concert
if one defendant is not negligent, CA court dismissed case
hymowitz v. eli lilly - DES
~300 defendants, all negligent, direct causation problem
national market share approach
innocent plaintiff
deterrence
apportioned liability
several liability only to avoid overdeterrence
not liable if defendant did not market drug for specific use in question
liable even if defendant proves no actual specific causation (no exculpation)
liable if plaintiff proves causation traditionally (inculpation)
asbestos, lead paint, vaccines

hymowitz v. eli lilly
Several Liability / Joint and Several Liability
exculpation (no actual causation) / No / Yes
exculpation (no market share) / Yes / Yes
inculpation (traditional causation) / Yes / Yes
primary concern / optimal deterrence / optimal compensation

proximate cause
factors
foreseeability
type of harm
extent of harm
manner
plaintiff’s conduct
directness
intervening causes
judge v. jury
unexpected harm
direct harm
cause followed naturally from original negligence
risk is foreseeable
not too large time/space
not too many intervening causes (some can be okay)
eggshell plaintiff (benn)
physical injury - extent doesn’t need to be foreseeable, only injury
emotional distress – courts split, usually no
in re polemis
benzine drops onto wooden board and ship burns up
rule
direct harm
some harm foreseeable
liable for all damages
wagon mound
molten metal falls into water igniting rag soaked in bunkering oil spread from spill
rule
type of harm must be unforeseeable
extent?
intervening causes
mclaughlin - unwrapped heating blocks
egregiousness of intervening act augments unforeseeability of it
not clear about foreseeable egregious act?
intervening causes approaches
liable
reasonably likely egregious ic  liability (extension of mclaughlin)
substantial factor  liability (restatement 2nd)
not liable
egregious ic  no liability (mclaughlin)
highly extraordinary  no liability (restatement 2nd)
defendant pushes specifics, plaintiff pushes generality
unexpected victims
palsgraf - scales fall on woman’s head in train
cardozo – no duty because no foreseeable harm to this plaintiff
dissent, j. andrews
physical link
remoteness in time and space
natural progression
intervening causes
FOS
egregious?
highly extraordinary?
foreseeability
courts have found duty to rescuer of victim of negligence (trains)
kidney donors don’t recover for malpractice (deliberate and reflective, no emergency situation pressure)
time between act and injury can bar recovery

Defenses
contributory negligence
plaintiff gets no recovery if contributorily negligent in a contributory negligence state
comparative negligence
plaintiff gets reduced damages if contributorily negligent in a comparative negligence state
assumption of risk (only good for negligence, not intentional torts)
express agreements
dalury – ski resort was found to be void, but many juris. will uphold
tunkl factors – waiver invalid if
business type suitable to regulation
service is important to public
open to public
defendant has excessive bargaining strength
availability of reimbursement for burden
person is under control of seller
CO factors
duty to the public
nature of service
clear language
totality of circumstances
service is private vs. public interest
landowners have control and duty to make safe
waivers remove incentive to manage risk
societal expectations
implied
davenport approach
primary
implied waiver of liability
no duty to plaintiff
for policy reasons (sports)
secondary assumption of risk (primary + negligent defendant)
plaintiff knowingly and voluntarily confronts risks
plaintiff must have been reasonable to recover
adjust damages accordingly
Murphy – the flopper
elements
foreseeability of harm
voluntary assumption
no obscure or very dangerous risks here
limits
obscure/hidden risks
very dangerous risks
amateur sports theories
duty changes: only intentional or reckless negligence is recoverable
negligence varies according to activity
duty not to increase risk
policy
don’t chill vigorous participation
specatators
availability of choices (in seating at baseball stadium)
some protection probably enough (b > pl)
davenport – unlit staircase
elements
knowledge of facts constituting dangerous condition
knowledge of extent of danger
voluntary exposure (no lack of choice)

Intentional Torts – the best place for punitive damages
garret v. dailey (kid pulls chair from under aunt)
defendant must foresee injury
no contact necessary between plaintiff and defendant
intent
legal – substantial certainty of injury
actual – know of harmful or offensive contact
assault and battery – nominal damages okay here
assault
elements
reasonable apprehension
requires actual apprehension AND reasonable apprehension
imminent physical harm
intent (legal or actual)
legal intent = substantial certainty that harm would occur
conditional threat is often assault
phone threat not assault (not imminent)
contributory negligence is NOT a defense
battery
elements
harmful offensive contact
to person of extension of person (picard photographer)
intent
eggshell plaintiff
specially sensitive plaintiff sometimes can’t recover (homophobe hug)
unless defendant knows of special sensitivity (wishnatsky)
subjective standard v. objective one
physical eggshell plaintiff can recover
intending assault  battery or vice versa transfers
wishnatksy v. huey – guy gets shoved out the door
offensive
to ordinary person
not liable to unduly eggshell plaintiff (unless know of sensitivity)
courts more sympathetic to eggshell plaintiff in battery
false imprisonment
lopez v. winchell’s donut house
elements
actual restraint or intent to restrain
restraint (restatement)
physical barriers
overpowering physical force
threats of physical force (sometimes can be implied)
legal authority
duress
awareness of imprisonment (courts divided)
against plaintiff’s will (moral pressure is not restraint)
lopez said she was not afraid  no recovery
intentional infliction of emotional distress
elements
intent or recklessness
outrageous or intolerable conduct
continuous
type plaintiff (kid, elderly, pregnant women)
causation
emotional distress (Womack says severe)
(no bodily harm required)
(fraud makes defendant’s case worse)
Womack
photographer takes photos of plaintiff at skateland
racial and verbal harassment sometimes
sc rejected reasonable woman (for sexual harassment)
defenses and privileges
consent
hart v. geysel
prize fighter dies after fight
minority says if conduct is unlawful, no recovery unless malicious
majority - mutual combat in anger means no consent defense
professional sports
recognized risk?
can recover if tort is outside code and customs if sport
self defense
Courvoisier
guy shoots police officer thinking he’s part of rowdy mob
elements
reasonable fear
of imminent danger
reasonable means
honest belief
third party may intervene only when necessary
katko
spring-loaded gun at empty house
reasonable force means no taking life above property
family was not in house
posner suggests location, value, existence of legal remedy, warning, deadliness, cost of avoidance…
must not be hidden
strict liability
ultrahazardous activities – context matters
Indiana harbor belt railroad v.