April 24, 2012 Torts Review 2012 Office Hours: W-F; 11-12:30; BW 407 Emails until Friday STRICT

CT LIABILITY (Cause + Damages) Posner opinion (who cares if small company?) Animals o Wild o Domesticated o Dangerous propensities Ultra-hazardous activities Commonality of activity High level of risk The activitycause of damages Restatement 3rd: its a very dangerous activity/cant get rid of the danger with reasonable care Indiana Harbor case: Posner opinion Moving a toxic chemical through populated area Looks like ultra-hazardous; probably cant prevent with reasonable care; not reciprocalit probably is ultra-hazardous. Posner weirdly calls it negligence; outlier case; talks about efficiency the way he always does. Unwilling to sympathize with small company Note 3: Restatement 522: abnormally dangerous activities o Whole thing about strict liability is helping the P It does not label the activity as negligent o We need a lot of the activities (but we do think they should pay their harms caused; ANY harmnot just harm that was not reasonably causedbut you can continue to do it). o Dangerous but nevertheless important activities Tort goals Corrective justice o Idea that when one person wrongfully harms another, the person who harms/wrongs someone else should be made to pay for the amount of the wrong BECAUSE JUSTICE REQUIRES IT. o How much? Enough to eliminate the injustice o Compensatory damages: Lost wages Med bills Pain and suffering

o Journey to quantify these. D pays this amount to P; under corrective justice it corrects the wrong. Deterrence o When we impose liability we send a messagenot only to the wrongdoerbut also t society at large; if you do bad things, you will have to pay, so dont do it. o Twist: law and economics: Efficiency based deterrence: says we should deter inefficient actsactions whose benefits whose benefits do not outweigh the costs; only want to do the things that maximize social wealth. Compensation/caretaking o Ps who were hurt are in need. o They have med bills/not going to work/need food; o They need money to get by. o The paying of money from D to P takes care of those plaintiffs. o Not necessarily justice, just giving money to people who need it, not necessarily deserve it. Other Goals: o Not to Flood the courts: dont overwhelm; maybe there will be a delay for good claims; want thresholds to come claims (Emotional distress); also court efficiency concerns (cost of maintaining courts;)

INTENTIONAL TORTS What is intent? o To desire something, or o be substantially certain it will occur (i.e. may not want it to happen, but substantially certain it is going to happen). i.e. run quickly into building running over someoneI dont want to but it will happen. Enough for intent. BATTERY: Trespass to Person o Intentionally causing a harmful or offensive contact to another person. o Causing: Directly (bam in the nose) or indirectly (kid pulls out the chair and person falls). Garret v. daily: kids can do intentional torts (contrast to negligence, where we take age into account). It is enough here. o Harmful or offensive contact: Harmful: the physical injury Offensive: dignitary/emotional injury

Spitting on someone in court was offensive battery Things closely connected to someones personcan be their body (emotional/dignitary harm being done). o Vosburg v. Putney Trespass to person Thin skull rule: if there is a part susceptibility in the P to additional harm than youd expect, then you can recover for ALL of the damages tied to the susceptibility D Cannot say I couldnt foresee it Too bad for the tort-doer. o Should the tortfeasor intend a contact we think is harmful or offensive or one that they think is offensive? The tortfeasor does not have to think its harmful or offensive, we do. If a guy thinks punching in face is a sign of love. Likely not OK. Restatementnot so clear (piano teacher case)the student got serious problems and sues for battery and the court says you can win. The tortfeasor does not have to think its harmful or offensive. o Transferred intent: The intent to do tort to one person but do it to another, it transfers to other. The other guy can sue for battery too. TRESPASS TO LAND o Actual land or something affixed to land (even things attached to house); o The law is very protective of landowner rights o Even if you dont know/Even if you think its your land, still liable. o Does not even have to have damage to land Can be nominal damages (some amount of money to just say dont do this). Want to preserve the right. Even if just walk on and off, can still sue and get nominal damages Dougherty v. Stepp o Note: improving land? Good faith v. bad faith o Intangible trespasses: not physical but could be electromagnetic waves; noise; Person has to show there was actual harm to the property (i.e. the waves broke something; not just be annoyed). See Nuisance for these unreasonable interferences with use of land

TRESPASS TO CHATTELS o Personal property; moveable. o Harmless intermeddling you cant recover for (UNLIKE walking on land where you can recover for harmless intermeddling; not here) Someone picks up your book thinking its theirs, cant recover o Some kind of harm to the property OR some sig dispossession (diminish value to you/a meaningful intrusion); take your book during finals o Intel v. Hamidi: Gray area case; Internet CONVERSION o May be merging with trespass to chattel over time. o It is about intentional exercise of dominion and control over someone elses property o You are converting that property your own and you have no right! o D has to pay full damages for property o Moore v. Regents of University CA Blood productscan you convert this? What constitutes something you can covert; court says no; pushes to lack of informed consent o Conversion in Intangible property sex. com; someone wrongly converts internet domain name

EMOTIONAL/DIGNITARY HARMS ASSAULT: o Intentionally causing someone else imminent apprehension of a harmful or offensive contact o Words? Look at context o Closely connected with a potential physical harm (stop it before it happens). o Unloaded pistol: Can be assault if person facing it doesnt know its unloaded. o Has to be relatively immediate Inchoate violence o Dont have to actually fear it; o Apprehensioneven if you think the body guard is going to stop it, can still recover for assault. FALSE IMPRISONMENT o Not allowed to wrongfully contain another within a bounded space o Has a right to liberty of motion o Bird case: if you can go the other way, no FI. You have to be fully contained in motion; no exit. o Yacht caseluxury but still.

o If FI but not injured, can still recover. o If you are not intentionally falsely imprisoned, then general negligence rules apply. Is it negligent? Physical injuryhypo of locking in a meat freezerpneumonia. o Ascot tie case: Shopkeepers privilege: can detain those you reasonably believe is shoplifting, for reasonable time. The court found no good basis/reason/method for FI. Imposed liability o Deprogramming: Parents took college student in cult. Court said as long as person consented at one point, no liability for the parents. IIED o The heart of it is about OUTRAGEOUS conduct. SEVERE emotional distress (maybe clinical diagnosis as a result or something). o Case about horrible practical joke

DEFENSES TO INTENTIONAL TORTS CONSENT o Someone saying Yes o Can be gestures (vaccine case) o Can be only so far (scope); you consent to a hug and no more. o Duration of contact. o Mohr v. Williams The wrong ear operation Battery against the doctor Today, forms given broadly (to change things) o Emergencies implied consent (CPR comes while unconscious) o Consenting to a crime Hudson v. craftillegal boxer General rule: no consent to a crime Restatement/minority view: you can consent to a crime but if you are a protect class of persons, then your consent is not valid. There, you could sue the illegal promoter. o Sports: you consent to the game well played and negligently played. We like good sports. BUT NOT recklessly played (can sue for that); also, not intentional torts (not part of gamecan sue for it).

Figure out rules of the game Formal rules v. informal rules (fighting in hockey)

INSANITY o Insulting to lump; lots of variations but too bad o Law generally does not give them a break o Policy: Proper care situations Fraud (pretending to be insane) SELF DEFENSE o Ones ability to respond to force by others when they perceive force; has to be reasonable perception and the amount of force has to be reasonable. o Force less than death/serious bodily harm unless threatened by such force. o Some jurisdictionsduty to retreat (it has to be SAFE to retreat) o If make reasonable mistake, still have a privilege You have to allow evidence to think it was reasonable Police officer case (Courvosier) Defense of others: o What about reasonable mistake here? o Some jurisdictionshave to be correct (reasonable mistake not okay); think hypo of actors hitting. o Other jurisdictions say its ok DEFENSE OF PROPERTY o You are not allowed to use deadly force to defend your property o BUT if its ALSO to protect yourself, you can use it. Mugging you with a gun. Spring gun cases o If someone is on your landask them to leave first Exception: can push them away immediately RECAPTURE OF CHATTELS o Kirby v. foster Employee/getting money back When someone claims legal right, you have to go litigate; not attack. o There has to be a hot pursuit aspect to it. o If you are right there, someone is taking your stuffgo get it! Hot pursuit; otherwise, call the police. o Recapture of land: Landlord tenant law NECESSITY o Idea is there is an emergency (threat to person or prop or both)

and need to use prop of another to get through sit; necessity allows you to use that persons prop regardless of the property owners consent. o Private: trying to protect YOUR stuff, your person; allowed to do this, but if harm things, have to pay the other side. Using other persons dockOK but got to pay o Public: trying to pay the public at large Who is going to step up and protect the public if you have to pay? Fire burning/mayor hypo: If doing it for the public, dont have to pay. Butbad for persons whose house is burned or suffered the harm. Just compensationstatutes in US (constitutional provision) o Trolley problem Turn it one way harm more people You are not allowed to kill people for necessity i.e. million dollar yacht versus life cant use other people to save life or property it is TO save life or property NEGLIGENCE Duty o To whom? To all the world Tarasoff: affirmative duty analysis; special relationships (landlord security; psychiatrist-patient) o To do what? Reasonable care: Common sense/intuitive Custom Statutes/regulations Breach Causation o Factually o Proximately o Note: Damages

INTRO: WAYS TO DEFINE REASONABLE CARE COMMON-SENSE APPROACH

COST

Common sense view: o it is objective; not what the D thinks. o What we think is reasonable as a society. Physical Disabilities o Blind people o We take into account of reasonable care under the circumstances and the disability Expertise o Beginners: we want them to get skilled so hold them to regular standard o Experts: super-skilledhold them to their super skill? If they have held selves out as an expert, they get a higher level Med-mal Kids: o Take it into account; similar age-level to gauge if person used reasonable care o Adult activity? Hold them to regular standard; others expecting it. Wealth not taken into account BENEFIT ANALYSIS Economic calculation of efficiency How do we decide what is reasonable care and what is not? What is cheaper? To prevent the harm or to run the risk of the harm happening and then pay the person for the harm? Hand Formula: B < PL Its just a construct (what would probably be cheaper); hard to concretely know for jury. Common Carriers: someone in the bus of serving public should be held to HIGHEST standard. Something above the regular o Airline case: how do you do it with cost benefit analysis?

CUSTOM Looking for in a particular area is there some subset of how business does things? Even a profession (what lawyers should be doingor doctors). What about businesses? You can say you didnt do what custom requires in your field. OR business can say we DIDbut was not enough. o Restatement says its a factor. TJ Hooper: o Radios on boats o We cant fully defer to customit might be self-serving; they may lax it so dont keep up/spend on safety. a whole industry unduly lagged.

Med Mal: custom based for the doctor o Multiple schools of thought: is it valid? Look at quality and quantity in deciding. o Rural settings/big city: National standard? Less willing to say local is lower internet etc. But think of is it reasonable to have big fancy machines? o Informed Consent Idea is not only the doctor needs some consent, the doctor has to get GOOD consent so can meaningfully consent. Affirmative duty to the patient to supply enough info to make decision to do procedure or not. If does not do it, doctor can be sued. Lack of adequate disclosure has to be the cause: P has to show that If given the risks, I would not have done the surgery. STATUTES AND REGULATIONS Another way to define reasonable care; respect for legislature. Was the statute intended to prevent this kind of harm? This class of person? If yes, court will import it to define reasonable care o But: maybe legislature had multiple intentions. Excuse not to follow OK. o Walking on side of roadparticular circumstances Licensing o Someone does not have a license and harm resultsdoes lack of license cause the harm? o Look at what the reason for the license o Is it associated with lack of skill? (negligence) RES IPSA LOQUITER Inferring lack of reasonable care from circumstances; circumstantial evidence doctrine o Event doesnt occur ordinarily without negligence o D had exclusive control o P didnt contribute to it. Are there other things that happen? Maybe D not responsible. Colmenaries caseescalator case; delegable duties Conspiracy of Silenceforce talking from Ds P CONDUCT P not taking reasonable care to Ps own well-being.

Contributory Negligence: o Old rule; if P lacks reasonable care o Last clear chance exception o Imputed: Generally actions of others is not imputed to you. Joint enterprise rule/exception (maybe criminals working together) Comparative Fault o Your recovery is reduced with regard to your % fault o Modified50/50 rule; o Purecan recover even if 99% at fault Assumption of Risk o You knew about the risk and you voluntarily encountered it. o Still out there o Primary Assumption of risk Baseball games o Secondary assumption of risk There is a risky situation with additional risk and the person nevertheless encounters it. Bar recover; OR, modern trend is to kick it into comparative fault o Maybe court ripping out express assumption of risk Lack of bargaining power; Ks defining what the risk is. Throw it out! SKI case Causation for P conduct: o Ps lack of reasonable care was a cause of their injury o If it would not have made a difference, then it was not a cause Not having lights on example. Seat belt defense o chaos in courts

SEVERAL DS JOINT AND SEVERAL SEVERAL Each D pays for own liability VICARIOUS Employees actions liability for employer General contractorsindependent; no control o Medical context o Apparent authority o Implied authority

CAUSATION Factual o But for cause o Kingston case (two fires combining)under but for both get off; not fair so both are liable as long as both o Loss of chance Patients already likely to die o Market share liability Identical product case; Rejected it in the paint case o Alternative cause Summers v. tice: the court shifted the burden to the hunters to explain Proximate o Forseeability o Directness Polermis case o Natural results o Palsgraf case Andrews dissent Cardozoduty to whom? AFFIRMATIVE DUTIES Duty to rescue o None Gratuitous undertakings o Have a duty to do it reasonably Duties on Land o Tarasoff/Kline o Invitees o Licensees o Trespassers o But note: Rowland casereasonable care Special relationships o Duty for specific person to do this specific thing in a certain setting Land-lord tenant Patient-psychiatrist