1. intro
  2. hammontree v. jenner
  3. christenson v. Swenson
  4. Baptist memorial hospital
  5. ostensible agency requirements
  6. conduct by principal
  7. causes reasonable belief that agent was employee/agent
  8. justifiable reliance on agency
  9. plaintiff did not raise matter of fact on any elements
  10. negligence
  11. brown v. kendall
  12. ordinary care standard
  13. plaintiff has burden of proof in negligence action
  14. standard of proof is preponderance of evidence (50-50)
  15. DUTY
  16. policy
  17. fairness
  18. compensation
  19. deterrence
  20. fraud
  21. floodgates
  22. defendant wants to show nonfeasance, plaintiff wants to show misfeasance
  23. aid/rescue – no general duty to rescue
  24. harper – lakeMinnetonka diver
  25. social host did not have duty to warn guest about shallow diving
  26. affirmative duty to act only for special relationships
  27. common carriers, innkeepesr, landownders, family
  28. knowledge of danger ≠ duty to warn
  29. nonfeasance
  30. farwell – beaten up friend
  31. duty to avoid affirmative actsthat worsen situations (misfeasance)
  32. beginning assistance can lead to duty
  33. special relationships can bring about duty
  34. profit
  35. historical duty
  36. contractual relationship
  37. custodial (sometimes)
  38. obligations to control the conduct of others
  39. factors (tarasoff)
  40. foreseeability of harm
  41. closeness between defendant’s conduct and injury
  42. burden to defendant
  43. consequences to community
  44. preventing harm
  45. (insurance)
  46. tarasoff
  47. usually, there is no duty to 3rd parties
  48. unless there’s a special relationship (restatement 2nd)
  49. therapist and victim (doctor – patient)
  50. master – servant
  51. land owner
  52. parent - child
  53. professional inaccuracy doesn’t negate therapist duty to protect victim
  54. public interests (welfare) weigh more than private
  55. anti-duty argument
  56. therapists predictions unreliable
  57. therapy requires open communication (confidentiality problem)
  58. doctor/patient special relationship
  59. doctor had duty to s.o. of plaintiff to tell about HIV+
  60. 2 years btwn plaintiff’s infection and treatment of patient
  61. doctor had duty to inform child of patient about genetically transferable cancer
  62. doctor had no duty to husband of patient for false negative hep C test results
  63. doc had not known plaintiff at time of offense
  64. tenuto – doc has duty to warn parent of infant who contracted polio from immunization (special relationship expands to immediate family)
  65. reynolds v. hicks
  66. social hosts have no duty to third persons
  67. too wide an imposition, too difficult for hosts
  68. commercial hosts more prepared and get benefits, so they have duty
  69. pro-duty
  70. serving alcohol to a minor is criminal offense
  71. injury is foreseeable
  72. must stop causal chain
  73. landowners/occupiers
  74. carter v. Kinney
  75. trespasser: no duty
  76. licensee: duty to make safe dangers of known conditions
  77. invitee: reasonable care to make safe dangers revealed by inspection
  78. bible study attendee is a licensee
  79. dalai lama is not a trespasser until you tell him to beat it
  80. invitee
  81. business
  82. public
  83. heins – icy hospital – invitee/licensee classifications should be abandoned
  84. invitee/licensee classifications are predictable, stable, and historical
  85. but entrant’s status should not determine duty
  86. life less worthy of compensation because of permission?
  87. classifications no good for urban industrial society and arbitrary
  88. too harsh
  89. factors
  90. foreseeability
  91. purpose for entrance
  92. use (expected) of premises
  93. reasonableness of inspection/repair/warning
  94. burden
  95. posecai
  96. no duty to provide security in parking lot
  97. balancing test
  98. foreseeability of harm
  99. nature of land
  100. similar incident
  101. gravity of harm
  102. burden to landowner
  103. totality of circumstances test – nature of land and prior incidences
  104. specific harm test – is there knowledge of it
  105. judge determines duty here
  106. nonfeasant third party – problem requiring duty
  107. duty to acquiesce
  108. pro
  109. bright line rule avoided
  110. con
  111. legal obligation to give up money
  112. criminals are unpredicatable
  113. intrafamily
  114. liability intentional harm by parents against children
  115. negligently inflicted harm in question
  116. broadbent
  117. parental immunity usually doesn’t apply when
  118. parent is willful, wanton, reckless
  119. child is emancipated
  120. death
  121. parent acting outside parental role and within employment
  122. parental immunity (no good anymore)
  123. injury to child disrupts family more than lawsuits
  124. there are measures to protect against fraud in judicial system
  125. insurance can keep lawsuit from depleting family resources
  126. parent probably will not inherit money
  127. parents always owe parental duty to minor child
  128. standard is reasonably prudent parent in situation
  129. insurance
  130. may foster collusion
  131. emotional harm
  132. factors
  133. intentionally or recklessly inflicted
  134. results from physical injury negligently inflicted
  135. emotional harm leads to physical injury
  136. direct victims
  137. falzone – emotional damage without physical impact
  138. husband struck by car, wife sick from fright
  139. elements for recovery
  140. negligence causes emotional harm
  141. emotional harm leads to substantial physical injury
  142. impact not required (medical evidence advanced now)
  143. awards sometimes given for pre-impact fright
  144. decedent was aware of doom for an appreciable length of time
  145. gammon
  146. dead father’s leg was really not amputated
  147. damages for ordinarily sensitive person here (no eggshell plaintiff)
  148. reasonably foreseeable is the only requirement here (b/c family?)
  149. wrong diagnoses sometimes permit emotional distress
  150. restatement does not require physical damage but requires permanence
  151. indirect victims
  152. portee v. jaffee
  153. mom watches son die in elevator shaft
  154. dillon test for foreseeability of emotional injury
  155. physical proximity to victim
  156. direct witness of harm
  157. close relationship to victim (court says this is most crucial)
  158. additional factors
  159. severity of injury causing emotional distress (not all courts use)
  160. sensory impact (related to physical proximity)
  161. zone of danger, immediate family, severe physical injury
  162. time between negligence and emotional distress can limit recovery
  163. unmarried cohabitatants s/t can’t recover where married couples can
  164. Johnson v. Jamaica hospital
  165. baby abducted from hospital for 4.5 months
  166. no direct duty to parents for care to child
  167. emotional injury to infant does not trickle down to parents
  168. dissent says it’s a “pitiful confession of incompetence”
  169. BREACH
  170. foreseeability
  171. defendant wants event to be specific (less foreseeable)
  172. plaintiff wants to make event bigger (boys playing)
  173. cases
  174. adams (boy swinging wire)
  175. duty to take reasonable precaution
  176. foreseeability (wire not reachable, no prediction possible)
  177. cost of prevention – insulation impossible
  178. effectiveness – guards have little value
  179. value of activity
  180. custom
  181. us v. carroll towing (barges)
  182. learned hand b < pl is negligence
  183. find factors to apply to b, p, l
  184. p – harbor activity, weather, crowd, light/dark
  185. b – customs, hiring attendant, cooped up bargee
  186. l – cost of bargee, cargo
  187. bolton v. stone (cricket)
  188. cricket ball strikes woman off field
  189. how probable is it someone will be struck
  190. remedial measures are irrelevant
  191. there should not be activity that creates substantial risk
  192. reasonable person
  193. bethel (wheelchair on bus)
  194. common carriers do not owe passengers highest degree of care anymore
  195. historically b/c railroad accident injuries high
  196. buses similar in that passengers are at mercy of bus
  197. reasonable person standard accounts for circumstances
  198. public conveyances are now as safe as private modes of travel
  199. what ordinarily ought to be done (not what is done)
  200. some jurisdictions (kansas) still can apply highest degree of care standard
  201. awkward or hasty must rise to reasonable standard
  202. exceptions
  203. blind
  204. children (no capacity)
  205. usu. held to standard of conduct reasonable for age
  206. no ability to foresee possibilities
  207. when children engage in adult activities  adult standards (driving boat/car)
  208. mentalability
  209. should stupid be an exception
  210. emergency (some states)
  211. levey, defendant confronted with emergency not of his/her own making
  212. judge and jury
  213. pro-judge
  214. consistency, clarity of rules
  215. repeated fact patterns
  216. policy (efficiency)
  217. experience
  218. pro-jury
  219. peer/common person more fair
  220. emotions are relevant
  221. no politics
  222. b&o v. Goodman
  223. defendant had no duty to display sign warning of oncoming train
  224. plaintiff did not stop, get out, look - negligent
  225. when standard of conduct is clear, judge decides on negligence
  226. pokora
  227. boxcars blocking view of oncoming train (no whistle)
  228. plaintiff did not have duty to stop and look, no negligence
  229. Goodman breached duty and was negligent
  230. jury where there is no standard evolved for customary conduct
  231. akins (foul ball in the eye)
  232. reasonable care under the circumstances is ordinarily, but not always, question for jury
  233. andrews v. united airlines (overhead bin)
  234. common carrier owes utmost care toward passengers
  235. complaints received but injuries low
  236. jury should decide whether airline had duty to do more than warn
  237. ordinary flight circumstances
  238. custom
  239. courts, not custom, define standard of care except in malpractice
  240. well-defined
  241. same business
  242. actor either charged with knowledge or negligent ignorance
  243. jury charged with reasonableness and custom
  244. trimarco (bathtub door)
  245. custom can show some evidence that defendant is sub-par (unreasonable)
  246. reasonable person
  247. lavallee
  248. defendant motel had no duty to provide flashlights etc.
  249. no witness knew of motel that provided emergency lighting in question
  250. Levine
  251. custom showed dumbwaiters used smooth ropes to avoid injury
  252. statutes
  253. violation of criminal statutes can cause tort harm
  254. majority examine statute for intent, but some don’t
  255. usually some evidence standard
  256. martin – standard of care statute
  257. trial judge leaves jury to decide importance of plaintiff’s lights
  258. appeals says no duty to plaintiff who disobeys s.o.c. statute
  259. tedla – rule of the road statute
  260. rules of the road do not require strict observance
  261. excuse – agree that violated standard of care, excuse as defense
  262. justification – want new standard
  263. approaches to violation of statutes
  264. some evidence (jury)
  265. prima facie evidence of plaintiff’s negligence (jury if rebutted)
  266. negligence per se
  267. factors
  268. was there excuse?
  269. was it the wrong type of harm intended to be avoided by statute
  270. usually not liable (public order v. safety)
  271. was the plaintiff the one meant to be protected?
  272. if it was a standard of care statute, was there a choice?
  273. proof
  274. circumstantial evidence
  275. negri – spilled baby food
  276. prima facie negligence, slippery baby food jars in aisle
  277. baby food does not move around  left spilled for hours (?)
  278. gordon – wax paper
  279. constructive notice (none)
  280. visible defect
  281. temporal existence of paper on steps
  282. res ipsa loquitor – sed quid in infernos dicet?
  283. elements
  284. exclusive control of defendant
  285. sometimes right of control is enough
  286. no proof of negligence possible
  287. accident would not have occurred ordinarily without negligence
  288. not due to voluntary action by plaintiff (sometimes)
  289. explanation more accessible to defendant (sometimes)
  290. byrne – barrel of flour falls out of sky
  291. presumption of negligence from warehouse
  292. barrel in control of defendant – prima facie negligece
  293. Nicollet hotel
  294. national junior chamber of commerce throwing stuff out window
  295. hotel management knew and turned other cheek so infer negligence
  296. McDougald – tractor-trailer tire
  297. 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
  298. preponderance of evidence that there was negligence is requirement
  299. Ybarra
  300. right arm and shoulder injury after appendectomy
  301. several defendants
  302. res ipsa can’t be invoked against any individual defendant
  303. if no RIL, plaintiff can’t recover knowing someone was negligent
  304. like pedestrian struck bybarrel or passenger sitting awake in train
  305. number of defendants or their relationships determine applicability of RIL
  306. plaintiff, unconscious, does not have to identify negligent defendant
  307. if no RIL, patients injured while unconscious willo never recover
  308. fireman’s fund – no RIL where fire broke out but 1 of 4 smoking defendants started it
  309. medical malpractice
  310. standard of care
  311. expert requirements
  312. knowledge, experience, training, education
  313. board certification “presumptively qualified”
  314. no single factor is determinative
  315. sheeley – episiotomy
  316. expert testimony determines standard of care in malpractice case
  317. unless lack of care is obvious within layman’s common knowledge
  318. sometimes, court requires expert of similar education, skill, experience
  319. same or similar locality rule thrown out
  320. encourages disparity in standards among communities
  321. was procedure executed in conformity with recognized standard of care? (no, liable)
  322. accreditation, proliferation of literature, national standards
  323. informed consent
  324. matthies – nonconsent for NONSURGERY
  325. informed consent
  326. doctor must explain medically reasonable alternatives and outcomes
  327. doc must give non-recommended alternative treatment info
  328. policy: self-determination (historically, battery), patient must make informed decision
  329. professional standard
  330. expertise
  331. better notice
  332. more efficient (settlements)
  333. decrease unnecessary treatments
  334. patient standard (matthies)
  335. true to patient expectations and desires
  336. unbiased
  337. self-determination
  338. subjective standard
  339. not standard
  341. actual cause
  342. where but-for cause is problematic use
  343. more likely than not (stubbs hemlock and holly typhoid case)
  344. in medical suits, loss of chance - doesn’t need 50% (alberts ambutation)
  345. elements
  346. material loss of chance
  347. causal link to a reasonable degree of medical probability 50%+
  348. closed window of chance (temporal)
  349. anti-lost chance approach
  350. playing role of lotteries and insurance policies
  351. statistics unreliable and misleading
  352. substantial factor
  353. where deterrence is the object
  354. joint and several liability
  355. joint and several
  356. plaintiff recovers 100%
  357. each defendant liable for full damanges
  358. where there is a single, indivisible injury
  359. when damage cannot be allocated
  360. concert in action (drag races)
  361. uniform act – each defendant pays no more than pro rata share
  362. equity principles – solvent tortfeasors divide full amount among them
  363. summers v. tice
  364. quail huntin
  365. where both defendants are negligent, one caused harm
  366. shift burden of proof to defendants (access to evidence)
  367. each defendant joint and severally liable for all damages
  368. no requirement for acting in concert
  369. if one defendant is not negligent, CA court dismissed case
  370. hymowitz v. eli lilly - DES
  371. ~300 defendants, all negligent, direct causation problem
  372. national market share approach
  373. innocent plaintiff
  374. deterrence
  375. apportioned liability
  376. several liability only to avoid overdeterrence
  377. not liable if defendant did not market drug for specific use in question
  378. liable even if defendant proves no actual specific causation (no exculpation)
  379. liable if plaintiff proves causation traditionally (inculpation)
  380. 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
  1. proximate cause
  2. factors
  3. foreseeability
  4. type of harm
  5. extent of harm
  6. manner
  7. plaintiff’s conduct
  8. directness
  9. intervening causes
  10. judge v. jury
  11. unexpected harm
  12. direct harm
  13. cause followed naturally from original negligence
  14. risk is foreseeable
  15. not too large time/space
  16. not too many intervening causes (some can be okay)
  17. eggshell plaintiff (benn)
  18. physical injury - extent doesn’t need to be foreseeable, only injury
  19. emotional distress – courts split, usually no
  20. in re polemis
  21. benzine drops onto wooden board and ship burns up
  22. rule
  23. direct harm
  24. some harm foreseeable
  25. liable for all damages
  26. wagon mound
  27. molten metal falls into water igniting rag soaked in bunkering oil spread from spill
  28. rule
  29. type of harm must be unforeseeable
  30. extent?
  31. intervening causes
  32. mclaughlin - unwrapped heating blocks
  33. egregiousness of intervening act augments unforeseeability of it
  34. not clear about foreseeable egregious act?
  35. intervening causes approaches
  36. liable
  37. reasonably likely egregious ic  liability (extension of mclaughlin)
  38. substantial factor  liability (restatement 2nd)
  39. not liable
  40. egregious ic  no liability (mclaughlin)
  41. highly extraordinary  no liability (restatement 2nd)
  42. defendant pushes specifics, plaintiff pushes generality
  43. unexpected victims
  44. palsgraf - scales fall on woman’s head in train
  45. cardozo – no duty because no foreseeable harm to this plaintiff
  46. dissent, j. andrews
  47. physical link
  48. remoteness in time and space
  49. natural progression
  50. intervening causes
  51. FOS
  52. egregious?
  53. highly extraordinary?
  54. foreseeability
  55. courts have found duty to rescuer of victim of negligence (trains)
  56. kidney donors don’t recover for malpractice (deliberate and reflective, no emergency situation pressure)
  57. time between act and injury can bar recovery
  1. Defenses
  2. contributory negligence
  3. plaintiff gets no recovery if contributorily negligent in a contributory negligence state
  4. comparative negligence
  5. plaintiff gets reduced damages if contributorily negligent in a comparative negligence state
  6. assumption of risk (only good for negligence, not intentional torts)
  7. express agreements
  8. dalury – ski resort was found to be void, but many juris. will uphold
  9. tunkl factors – waiver invalid if
  10. business type suitable to regulation
  11. service is important to public
  12. open to public
  13. defendant has excessive bargaining strength
  14. availability of reimbursement for burden
  15. person is under control of seller
  16. CO factors
  17. duty to the public
  18. nature of service
  19. clear language
  20. totality of circumstances
  21. service is private vs. public interest
  22. landowners have control and duty to make safe
  23. waivers remove incentive to manage risk
  24. societal expectations
  25. implied
  26. davenport approach
  27. primary
  28. implied waiver of liability
  29. no duty to plaintiff
  30. for policy reasons (sports)
  31. secondary assumption of risk (primary + negligent defendant)
  32. plaintiff knowingly and voluntarily confronts risks
  33. plaintiff must have been reasonable to recover
  34. adjust damages accordingly
  35. Murphy – the flopper
  36. elements
  37. foreseeability of harm
  38. voluntary assumption
  39. no obscure or very dangerous risks here
  40. limits
  41. obscure/hidden risks
  42. very dangerous risks
  43. amateur sports theories
  44. duty changes: only intentional or reckless negligence is recoverable
  45. negligence varies according to activity
  46. duty not to increase risk
  47. policy
  48. don’t chill vigorous participation
  49. specatators
  50. availability of choices (in seating at baseball stadium)
  51. some protection probably enough (b > pl)
  52. davenport – unlit staircase
  53. elements
  54. knowledge of facts constituting dangerous condition
  55. knowledge of extent of danger
  56. voluntary exposure (no lack of choice)
  1. Intentional Torts – the best place for punitive damages
  2. garret v. dailey (kid pulls chair from under aunt)
  3. defendant must foresee injury
  4. no contact necessary between plaintiff and defendant
  5. intent
  6. legal – substantial certainty of injury
  7. actual – know of harmful or offensive contact
  8. assault and battery – nominal damages okay here
  9. assault
  10. elements
  11. reasonable apprehension
  12. requires actual apprehension AND reasonable apprehension
  13. imminent physical harm
  14. intent (legal or actual)
  15. legal intent = substantial certainty that harm would occur
  16. conditional threat is often assault
  17. phone threat not assault (not imminent)
  18. contributory negligence is NOT a defense
  19. battery
  20. elements
  21. harmful offensive contact
  22. to person of extension of person (picard photographer)
  23. intent
  24. eggshell plaintiff
  25. specially sensitive plaintiff sometimes can’t recover (homophobe hug)
  26. unless defendant knows of special sensitivity (wishnatsky)
  27. subjective standard v. objective one
  28. physical eggshell plaintiff can recover
  29. intending assault  battery or vice versa transfers
  30. wishnatksy v. huey – guy gets shoved out the door
  31. offensive
  32. to ordinary person
  33. not liable to unduly eggshell plaintiff (unless know of sensitivity)
  34. courts more sympathetic to eggshell plaintiff in battery
  35. false imprisonment
  36. lopez v. winchell’s donut house
  37. elements
  38. actual restraint or intent to restrain
  39. restraint (restatement)
  40. physical barriers
  41. overpowering physical force
  42. threats of physical force (sometimes can be implied)
  43. legal authority
  44. duress
  45. awareness of imprisonment (courts divided)
  46. against plaintiff’s will (moral pressure is not restraint)
  47. lopez said she was not afraid  no recovery
  48. intentional infliction of emotional distress
  49. elements
  50. intent or recklessness
  51. outrageous or intolerable conduct
  52. continuous
  53. type plaintiff (kid, elderly, pregnant women)
  54. causation
  55. emotional distress (Womack says severe)
  56. (no bodily harm required)
  57. (fraud makes defendant’s case worse)
  58. Womack
  59. photographer takes photos of plaintiff at skateland
  60. racial and verbal harassment sometimes
  61. sc rejected reasonable woman (for sexual harassment)
  62. defenses and privileges
  63. consent
  64. hart v. geysel
  65. prize fighter dies after fight
  66. minority says if conduct is unlawful, no recovery unless malicious
  67. majority - mutual combat in anger means no consent defense
  68. professional sports
  69. recognized risk?
  70. can recover if tort is outside code and customs if sport
  71. self defense
  72. Courvoisier
  73. guy shoots police officer thinking he’s part of rowdy mob
  74. elements
  75. reasonable fear
  76. of imminent danger
  77. reasonable means
  78. honest belief
  79. third party may intervene only when necessary
  80. katko
  81. spring-loaded gun at empty house
  82. reasonable force means no taking life above property
  83. family was not in house
  84. posner suggests location, value, existence of legal remedy, warning, deadliness, cost of avoidance…
  85. must not be hidden
  86. strict liability
  87. ultrahazardous activities – context matters
  88. Indiana harbor belt railroad v.