I. Intentionally Inflicted Harm: Prima Facie Case and Defenses. 3
A. Physical Harms 3
Battery and Consent3
Hierarchy of Consent3
Nonconsensual Defenses. 3
B. Emotional and Dignitary Harms 4
Assault4
Offensive Battery. 4
Intentional Infliction of Emotional Distress (IIED): Extreme and Outrageous Conduct4
II. Strict Liability and Negligence: Historic and Analytic Foundations. 6
A. Formative cases: Developing distinction b/twn Negligence and Strict Liability 6
B. Trespass and Case (direct, immediate harms v. indirect harms)6
C. Strict Liability and Negligence in 19th Century. 7
D. Strict Liability and Negligence in Modern Times. 8
III. Negligence Issue 9
A. Reasonable person. 9
B. Calculus of Risk. 10
C. Custom 11
D. Statutes and Regulations/ negligence per se 12
E. Judge and Jury. 14
F. Proof Of Negligence: Res Ipsa Loquitur (the thing speaks for itself)14
IV. Plaintiff’s Conduct16
A. Contributory Negligence. 16
1. Basic Doctrine. 16
Cause in Fact: “But for” Cause. 16
Proximate Cause. 16
Protected Class. 17
Last Clear Chance (Seeks to ameliorate some unfairness of contributory negligence)17
B. Assumption of Risk. 17
Assumption of Risk vs. Contributory Negligence. 18
C. Comparative Negligence. 18
1. Common Law.. 18
V. Multiple Defendants: Joint, Several and Vicarious Liability 20
A. Joint and Several Liability 20
B. Vicarious Liability. 20
Sexual Harassment & Vicarious Liability. 21
VI. Causation 22
A. Case in Fact22
B. Proximate Cause (herein of duty)23
In General23
Physical Injury. 23
2 Cases where unreasonable behavior that results in harm will not be found liable:23
Emotional Distress. 26
A. Duty to Rescue. 28
Introduction. 28
B. Duties of Owners and Occupiers. 30
C. Gratuitous Undertakings. 31
D. Special Relationships. 32
VII. Strict Liability 33
A. SL is established by:33
B. Conversion 33
C. Wild Animals 34
D. Abnormally Dangerous Activity à There is always a RESIDUAL HARM 34
E. Nuisance (Non-Physical Trespass/Interference)36
1. Private Nuisance – look at reasonableness, not intentional37
2. Private Nuisance is substantial, unreasonable interference with another’s “use and enjoyment” of land. 37
F. Public Nuisance. 38
VIII. Products Liability. 38
New rule (no privity requirement):38
1. Negligence: MacPherson v. Buick. 38
2. SL: if there is no further inspection after the product leaves the mfr, then apply SL.39
G. Exposition 39
I. Period 1 – Privity of Contract Era 39
II. Period 2 – Tort not Contract Era 39
III. Period 3: Making the Case for Strict Liability 39
H. The Restatements. 40
A Tale of Two Texts. 40
I. Product Defects. 40
Manufacturing Defects. 40
Design Defects. 40
Duty to Warn. 40
I. Intentionally Inflicted Harm: Prima Facie Case and Defenses
A. Physical Harms
Battery and Consent
· Battery: commits volitional act, with intent to cause contact, contact that is either unlawful or offensive. (Doesn’t include accidental or consented to contact, or that which is socially acceptable.)
· Intent: purposefully: if person acts with desire to cause harm; knowledge: if person engaged in act knowing that harm is substantially certain to occur.
Ø Vosburg v. Putney (kid kicked classmates in class—serious damage to leg)
· No consent—D didn’t intend to harm but intent doesn’t matter.
Ø Garret v. Dailey (kid pulls out chair and women falls and harm results)
· Actor must act with reasonable knowledge that act will cause un-consented contact w/ person.
Ø Mohr v. Williams (wrong ear operated on)
· Even if act is non-negligent, helpful or non-injurious if no consent then a battery (unless emergency situation).
· Emergency: implied consent if death or serious injury would result from not performing act.
Hierarchy of Consent
· Actual Consent
· Express Consent
· Implied Consent
· would have consented but not possible
· emergency situation
· incompetence—substitute consent
· should have consented but didn’t (wasn’t given a chance)
· should have consented but refused
· ** does the presence of consent make everything okay?—see Hudson v. Craft.
Ø Hudson v. Craft (18 yr. old participate in boxing match-got hurt)
· Court says where a law is enacted to protect a class of people, they cannot consent to the behavior prohibited by the law, rule may infringe on autonomy but for their benefit. (Think: Britney Benefee; Statutory Rape; Consent to sports-is not consent to un-sportsmanlike conduct.)
· Recklessness: Athletes consent to game and some contact but not to contact that is reckless and such that reasonable athlete would no expect or foresee from participation in game.
Nonconsensual Defenses
i. Self-defense
· Person permitted to use reasonable defense to protect self from harm
· Use of proportional force to avoid harm—if harm can be prevented w/ minimal force then no t permitted to use maximum force
· **If you can flee you may/may not be able to use force (never expected to flee from home)
· **If trespass to property creates threat against self then defend property as you would self.
· Self- Defense argument is beneficial b/c it allows people to protect themselves, Shifts harm from innocent to guilty because the attacker implicitly consents to harm by his actions. (Can defend 3rd party in same manner as would defend self).
Ø Courvoisier v. Raymond (man’s store being attacked in defense he shoots cop)
· Battery as self-defense; Police officer did not consent to harm; good faith mistake.
i. Defense of Property
· Actual force—no warning, immediate defense is justified
· Constructive force requires warning
· Proportionality of force to apparent harm (Policy: deference to life over protection property.)
Ø M’ilvoy v. Cockran (P was tearing down fence-D. came out and hit him right away)
· D. should have warned P—must give notice if no malice in trespass
· Proportionality to force to harm
Ø Bird v. Holbrook (spring gun in garden- no warning sign)
· Ct. found D. intended to harm not deter—inhuman behavior (trespasser is no defense)
i. Necessity
· Entry upon another’s land may be justified b/c preserving life is more important than property but if reason for trespass caused by own carelessness—then liable
· Proportionality- can’t destroy apple orchard in search of pet bird
· Public necessity: if acting to prevent substantial harm to public and destroys private property then don’t have to internalize costs (people would not choose to do something w/ positive externalities b/c liability too high).
Ø Ploof v. Putnam (docked during tempest—needed to save human life (family))
· Necessity justifies trespass, proportionality between harm and inconvenience.
Ø Vincent v. Lake Erie Transportation Co. (made conscious decision to destroy dock to save boat)
· P must internalize the cost of saving his boat because he choose to save it—cannot leave costs to dock owner—would act as disincentive to allow people to dock during storms (people must weigh proportionality of necessity and likely damage). Prevents undue enrichment of actor (act was intended even if didn’t intend harm).
· Risk spreader: who can best absorb and spread the costs of preventative measures
B. Emotional and Dignitary Harms
Assault
· Commits a volitional act, with intent to cause apprehension of un-consented harm in person, apprehension (harm) results in person.
· The person must only believe that the action is capable of creating contact, not that it will effectively do so, person must be apprehensive not fearful.
Ø I. de S. and Wife v. W. de S. ( liable for striking out w/ hatchet even though he missed)-Contact not necessary for assault (simply needs apprehension of harm).
Ø Tuberville v. Savage (if it weren’t assize time I would …)
· Threat that is unlikely to result is not assault.
Offensive Battery
· Intent to cause offensive contact or apprehension of contact to person or person’s close possessions, (doesn’t have to be harmful touching—just un-consent, person doesn’t have to know of contact (touch while asleep).
Ø Alcorn v. Mitchell (Spiting in face is offensive battery)
· Act is malicious, willful, outrageous and insulting, no physical damage needed.
Intentional Infliction of Emotional Distress (IIED): Extreme and Outrageous Conduct
· One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for II
side activity will continue unless bad outweighs good)
Ø Powell v. Fall (experimental locomotive built w/in Statutory provisions started hayrick fire- Ct. held, liable) Imposes penalties on human progress
· Holmes, The Common Law: Cost Internalization: Cost-benefit analysis- if benefit of activity does not outweigh danger then the activity should be suppressed b/c community should not bear the loss. If benefit outweighs harm then owner should pay compensation for damage. (Concerns of over-deterrence.)
i. Cost-internalization when:
1. Cases where danger is more likely
2. Cases that are non-reciprocal
3. Cases where jury will have difficulty deciding if actor was negligent
ii. Description of US shift towards a standard of negligence:
1. Strict liability is a foolish rule b/c it opens too far the sphere of liability
2. Direct vs. indirect distinction doesn’t hold up
3. *You can’t avoid that which you could not have foreseen
4. Strict liability is expensive to the courts and intrusive (state interference)
5. (Cost internalization and difficulty setting standard are 2 arguments in favor of strict liability)
Ø Ballpark hypothetical: Ballpark with high fence…once in a while ball flies out of park and breaks window…1 of 2 rules:
· Negligence: pay only if unreasonable behavior
· Strict Liability: pay regardless of care taken
· Argument for strict liability standard
· Your actions led to damage
· Cost internalization: If benefits of playing baseball don’t outweigh the costs of repairing window, you shouldn’t be playing ball (or be more careful and build higher fence)
· To incur costs of paying for window, stadium will raise tix prices
· Argument for negligence standard
· Strict liability rule could encourage careless behavior (P parks unnecessarily close to fence)
· Danger of SL for extremely unforeseen harm (ball breaks window, scares cat, you slip and fall, where does liability end)
· SL runs a danger of over-deterrence: providing a benefit for community that stadium doesn’t get in return (so stadium shouldn’t incur all the costs)
· Inefficient way to fix windshields
· Who do you want to be your insurer?
· Stadium (high tix prices) or
· Insurance Company (1st party insurance)
· Reciprocity points to a system where negligence and private insurance is most efficient way to protect and collect (but this isn’t a reciprocal relationship)
D. Strict Liability and Negligence in Modern Times
Ø Stone v. Bolton (P hit by cricket ball from nearby field)
· D under duty to prevent harm if foreseeable-Ct. says liable
Ø Bolton v. Stone (appeal by cricket team)
· Test is not foreseeability alone- (risk to those on road was so small that no reasonable person who have thought it right to take steps to prevent danger)- no culpable act.
Ø Hammontree v. Jenner (man suffers epileptic seizure and runs into bike shop)
· P wants court to use Strict Liability rule; Ct. says where someone is suddenly stricken by illness-the rule is Negligence (un-foreseeability).
III. Negligence Issue
· Duty—to behave reasonably (often implicit in cases)
· Breach—did conduct fall below acceptable standard of care
· Causation—was failure to meet standard causally connected to harm
· Cause in Fact
· Proximate Cause
· Damages—did plaintiff suffer harm
· Duty is discussed in the following types of cases:
