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I.

INTENTIONAL TORTS a. Intent i. Applies to conduct, not the consequence

1. Vosburg v. Putney: D kicked P's knee. Liable for all harm done because he intended to do a degree of harm. ii. Strict liability for all intent

1. Lack of knowledge does not mitigate

2. Intent only needs to be to do the action, not to do it to a specific P

3. Cannot use "I meant X, not Y" as a defense.

4. Policy: An accident is a side effect; direct result of something actor meant to do. iii. Substantial Certainty

1. If harm is substantially certain to result from D's actions, the harm is treated as D's intent even if it was not his goal. iv. Transferred Intent

1. If you intent to tort A but tort B instead, your tort on B is intentional. b. Battery i. Intentional harmful of offensive contact that does actual harm to P ii. Contact results, directly or indirectly, from D's actions iii. Must go beyond incidental, harmless, and inoffensive touching

1. Vosburg: D's kick was intentional and significant enough to constitute battery iv. Strict liability: D liable for all results of intended battery c. Assault i. Elements

1. Intentional act

2. Imminent threat to person a. Tuberville v. Savage: "If it were not assis-time I would beat you" is not an assault because if it is assis-time, the threat is not imminent. b. Timing of imminence is fuzzy; jury question.

3. Places P in reasonable apprehension of bodily harm a. Not necessarily fear (whether the P is subjectively afraid is immaterial) b. Emotional preparation to respond to imminent threat c. P can be apprehensive and also reasonable believe that no real harm will come his way (bigger stick scenario) d. Apprehension can be subjective; a person can be in apprehension of an unloaded gun they believe to be loaded (Allen v. Hannaford) ii. Does not require physical contact

1. Protects intangible interest in bodily integrity---emotions, security of the mind

2. Injury done is apprehension, an emotional harm d. Trespass i. Intent to enter real property

1. Dougherty v. Stepp: Intent element goes toward entering the land, not toward knowing it was private property.

2. Intent does not go toward it being someone else's land; ignorance of ownership is no excuse. Just coming onto the land voluntarily is sufficient. ii. Strict liability for all damages caused by entry.

1. Property is subject to Eggshell Plaintiff iii. Intangible trespass: requirement is on P to show harm (not required for other types of trespass.)

1. E.g. harm from electric fields. iv. Policy: Trespass suits are often brought to get court ruling on where a party's property line is. e. Affirmative Defenses i. Consent

1. Mohr v. Williams: D operated on P's other ear and P claimed battery. Patient has autonomy unless there is an emergency or expressly implied consent. a. Policy: Autonomy trumps best interests except in emergency cases b. Good decision theory: Let the party (usually the person himself) in the best position make the decision.

II.

2. General consent form: once you sign it, you turn over your autonomy to the doctor. Enables the doctor to make the best decisions for the patient without fear of malpractice.

3. Nonverbal Consent: Consent need not be spoken or written. Per custom, a person's actions can be reasonably interpreted as giving consent.

4. Implicit consent: Sports a. Combatants in sports consent to violence that occurs within normal boundaries of the sport, but not gratuitous violence. Hackbert v. Cincinnati Bengals i. "Deliberate, willfull, or reckless disregard for safety" b. Violent non fit injuria---the willing suffer no injury c. Exception: Illegal Acts i. Hudson: Cannot consent to an illegal prizefight; tort liability for battery done on the promoter. ii. Rule: No one can consent to participation in illegal activity

5. Consent is a common-law principle that can be superseded by statute a. Cannot consent to unlawful activity b. Torts adjust to fit criminal law

6. Safe Harbor a. Sufficient but not necessary condition for preferential treatment b. Localized rules establish consent for certain actions i. E.g. the rules of football are a safe harbor for most batteries. ii. Necessity

1. When life or limb is threatened, normal rules of trespass do not apply. a. Cuts back on rights of property owner. b. Society values P's life over D's property rights

2. Threat must be serious, necessity action must be reasonable.

3. Self-help a. OK to do things that would otherwise be torts if you interests have been invaded b. Excessive self-help is a tort c. Much harder to claim self-help when the harm is done to a person than to property.

4. Holdouts a. Occurs when a bilateral monopoly exists b. Deal in both parties' interests is much more valuable to the party in need than the holder.

5. Damages a. Owner can recover compensatory damages in necessity cases, but not punitive ones b. Excessive self-help triggers punitive damages c. Incentivizes P to only engage in self-help if there is true necessity---person in true need won't consider costs.

6. Also a defense to CN. See Raimondo. EMERGENCE OF NEGLIGENCE a. Forms of Action i. Trespass: Direct harm done

1. Scott v. Shepard a. Lighted squib caused game of hot potato b. Rule: Removing self from danger justifiable; blame on initial trespasser.

2. Guille v. Swan: Intent does not matter for trespass; strict liability for all injurt (balloon over NYC case).

3. Foundations for strict liability ii. Case ("trespass on the case"): Harm resulting from earlier actions

1. Foundation for negligence: creation of dangerous situation that ends up harming. iii. Problems

1. Wrong form of action resulted in dismissal

2. Interested parties could not testify b. Introduction of Due Care

c. d.

e.

f.

g.

h. i.

j.

i. Brown v. Kendall (MA SJC, Shaw, landmark negligence case)

1. D accidently hit P with stick while trying to separate fighting dogs a. Old trespass system: SL b. Negligence: P had burden to show D was acting unreasonably

2. Old system required P to merely show causation

3. New rule: causation plus unreasonable want of due care ii. Brown v. Collins

1. D exercised reasonable care over horses, but they did damage anyway

2. P couldn't show negligence and lost. iii. Duty to exercise due care extends to everyone

1. Old system: rule was SL, unless D was under specific duty, then negligence.

2. New system: negligence for all but certain exceptions Modern Rule of Negligence: Action or failure to take action to avoid injury to another i. Duty, Breach, Causation, Damages Procedure: The jury, not the judge, determines what due care is and whether the parties took it i. Pokora v. Wabash: Cardozo; negligence is a standard, not a rule. Contra Baltimore & OH v. Goodman; Holmes argued that judge should be able to instruct jury on what the reasonable person is.

1. Why Cardozo is right: Fact patterns are complicated and no singular judge rule can determine what a reasonable person would do in every possible situation. Better to make it a standard and let the jury apply that standard to the facts of the case.

2. Juries tend to favor D on liability, but award higher damages to P when D is found liable

3. Judges have seen so many things that they may not see the obvious answer in each case

4. Judge retains power to take case from jury when "no reasonable jury" situation arises

5. Juries have the sense of the common man and provide a check on the legal intelligentsia

6. Judge argument: all cases should be decided alike; fewer people deciding cases is better Policy: Economics of Negligence i. SL system was bankrupting industry ii. State could not afford to directly subsidize industry iii. Negligence lowered costs of doing business for factories, etc.

1. Only had to pay costs of precaution, not serve as an insurer for all employee accidents Policy: Corrective Justice i. With Strict Liability: Blameworthiness. Person at fault pays. Corrects all harms. ii. With Negligence: Golden rule. Liability only if person treated you at a standard of care lower than they would treat themselves. Policy: Incentives i. With Strict Liability: Precautions taken up to point of cost-efficiency. If you don't take enough precaution, you pay. ii. With Negligence: Rewards people who take due care by releasing them from liability. Causes people's conduct to reflect the effects of that conduct on others.

1. Injured P does not recover if D took due care.

2. Assuming others are taking due care, incentivizes P to avoid injury. Policy: Paerto i. Pareto improvement is a move that makes at least one person better w/o making anyone worse ii. Pareto optimality is when all possible Pareto improvements have been made Policy: Kaldor-Hicks Efficiency i. Conduct is negligent if disadvantages outweigh advantages

1. Advantage can be saving money by not taking precaution against unlikely events.

2. Not the same as a Pareto improvement: A person can be made worse off, but so long as the person benefitting can compensate the person being harmed, it works. a. This is how the legal system works. Take precautions that are justified and be prepared to pay the other person for what you don't precaution for. b. You can be forced by the legal system to make a K-H improvement.

3. This encourages internalization of risk. Look at what is cost-justified to do. ii. Policy changes should be made if they benefit X more than they harm Y Policy: Activity Level

III.

i. Strict Liability: The law of odds says that even if taking due care, you will eventually be in an accident if you do something often enough, and will have to pay. Disincentivizes activities (driving)

1. Thus we only impose it for activities we want to limit the use of (ultrahazardous) ii. Negligence: Doesn't discourage activities. Negligence only cares about how you drive, SL cares about how much you drive. THE REASONABLE PERSON STANDARD a. Objective Standard of Care i. One reasonable person standard applies to all parties

1. Policy: Prevents juries from having to seek an objective truth (reasonability) from an individual party's subjective state of mind. a. The less guesswork for juries, the better ii. Poor judgment and low intellect are not defenses

1. Vaughn v. Menlove: Low-intellect D stacks hay where it was likely to catch fire. He was still capable of making sound judgment, so he is held to RPS. iii. There is one law, not a sliding scale of laws for people of different abilities

1. Exceptions---Subjective Reasonable Person Test a. Infancy: Sliding scale based on normal child of that age. i. Daniels v. Evans: Children are held to an adult standard when:

1. Participating in adult activities a. Licensing means it's an adult activity.

2. Creating types of risk adults might create

3. Example: teenagers driving.

4. Policy: No way to tell whether a kid or adult is in the car. b. Illness/Disability: Must take due care; then held to adjusted standard. i. Due care may involve avoiding certain activities (driving) ii. Others expected to reasonably accommodate recognizably disabled person who is taking due care (e.g. blind person with cane) iii. Fletcher v. Aberdeen: Both sides need to take precautions to protect the disabled from accidents. c. Beginners i. We don't want to disincentivizes people from doing things they haven't learned to do properly yet, but we have a societal interest in learning how to do.

1. Often applies to children.

2. Non-Exceptions a. Wealth or Poverty i. Wealth does not create a higher standard of care

1. Denver & Rio Grande RR: Hold a rich warehouseman to the same standards as a poor warehouseman. ii. Poverty does not excuse negligence iii. Insurance does not factor in and may not be raised at trial. b. Old Age see Roberts v. Ring i. No sliding scale, as there is for children, based on general old age and infirmity. ii. Reasoning: Greater variance between 80-year-olds than kids. Too hard on jury. iii. Specific ailments that come with age may cause adjustment c. General Incompetence i. Relaxed standard for stupid people puts us all at risk of stupidity b. The Hand Formula i. Take precaution if LP > B

1. L: cost of harm

2. P: probability of harm a. Simplifying assumption: harm goes to 0 when precaution is taken b. Real world: P is reduced; re-run Hand analysis with lower figure.

IV.

i. B < (P1 x L1) - (P2 x L2)

3. B: burden of precaution ii. Test is more of a way of thinking than something judges actually apply iii. Marginal analysis: increase precaution at margins only if each dollar spent reduces expected liability by >$1 iv. Risk neutrality

1. If principal is $1,000 and risk is 1%, neutral amount is $10 c. Considerations in taking precaution i. No duty to take precaution against an unforeseeable, worst-care scenario

1. Blyth v. Birmingham Water Works a. D not liable for failing to have water lines ready for historically bad winter b. Hand test: cost of precautions not worth small risk of unprecedented weather c. After extreme circumstances happen, adjust Hand test to reflect likelihood of them happening again. i. A reasonable risk can become unreasonable as knowledge is accrued

2. Hammontree v. Jenner: D had had seizures in past, but had gotten his license back and was following protocols with doctor. Had seizure while driving and crashed. a. D could not be held to unreasonable precautions, no liability. ii. Probability of Success

1. Must be some marginal benefit to justify a risky behavior a. Eckert v. LI RR: P died while trying to save child from tracks. i. If child was going to die anyway, negligence (0 marginal benefit, 0%
either way) ii. If child was going to live anyway, negligence (0 marginal benefit, 100%
either way) iii. If child's chances of living were materially improved and that improvement exceeded P's chances of dying, reasonable.

1. Reasonable person will accrue some risk to himself to accomplish something truly important. iii. Benefits of not taking precaution

1. Social Costs: Desirable, largely reasonable behaviors can create risks a. E.g. Osborne v. Montgomery; natural risks created by driving.

2. Sometimes the "precaution" is more risky than doing nothing a. Cooley v. Public Service Co: Wires and woman on phone. d. Policy: Insurance and risk i. Moral hazard: tendency of insured people to take more risks ii. Strict liability: form of insurance. D insures P against all harm resulting from his risk

1. Encourages moral hazard, discourages P-side due care

2. Solution is strong contributory negligence laws iii. Negligence: encourages victims to carry private insurance and take due care since they assume all D's will be acting with due care to avoid lawsuits.

1. Creates expectation of due care

2. Insurance is about information. a. When P's are encouraged to carry insurance, they are encouraged to know about values, risks, probability, etc. b. We want the person on the plus side if the information asymmetry to be the one carrying the insurance. CUSTOM a. Standard of duty of care within a specific realm of activity i. Determined by actors within that realm

1. "Usage, habits, and ordinary risks" a. Titus v. Bradford: Reasonably safe means safe according to [above]

2. Gross carelessness, even if customary, is still grounds for liability a. Gives courts leeway to phase out dangerous customs (e.g. Mayhew, mining case)

3. Best practices change over time; custom keeps up with advances (e.g. Trimarco, shower glass became less breakable over time but wasn't replaced)

V.

4. Reasonable person: actual vs. theoretical a. Actual: Custom has more weight; it's what actual people do b. Theoretical: More economic in focused. ii. Strong factor, but not dispositive

1. Exception: Medical malpractice a. Lama v. Borras: Medical custom is dispositive if supported by national standards and schools of thought. i. Doctors are only group judged by actions and beliefs of peers

1. Requires an expert ii. "School of thought": something more than a few rogue doctors. Comprised of numerous respected, competent professionals. iii. Policy: Too hard for jurors to judge doctors b. Test (from statute used in many jurisdictions): i. Determine basic norms (national standard) ii. Prove doctor did not follow norms iii. Show causal relationship between injury and failure to follow norms

1. Injury cannot merely result from general risks of procedure c. Error in judgment not sufficient to prove malpractice i. Only ex ante (doctor knew/should have known he was wrong beforehand) errors are inculpatory d. Helling v. Carey: Tests that produce high rates of false positives are not costjustified.

2. TJ Hooper: Custom is inferior to reasonable person standard. If reasonable person would take more precaution than is custom, follow that.

3. 3rd Restatement: Admissible evidence that the actor's conduct is not negligent, but does not preclude finding of negligence. a. Party arguing against custom may question wisdom of the particular custom b. Facts and circumstances are always more important than custom b. "Sword and Shield" i. Sword: P introduces custom as evidence, alleging D didn't live up to it ii. Shield: D argues that he conformed his conduct to well-established custom c. Locality Rule i. D held to standard of care of average qualified practitioner, taking into account advances in profession

1. Not every area held to same standard as more advanced areas

2. Brune v. Belnikoff: New Bedford should have been performing at Boston's standards. Rural Nebraska may not have been held to that level. d. Test for Strengthened Custom i. Does D have "skin in the game"---a financial incentive to exercise strong standards of care?
ii. Has D internalized the risk?
NEGLIGENCE PER SE a. D's violation of a statute can automatically satisfy P's burden on the negligence element i. If harm stemmed from violation of non-tort law, jury doesn't even need to consider negligence question.

1. Helps P avoid "reasonable person" gamble with the jury ii. Statutes always supersede common law. b. Harm within the risk (don't use the term but it's the same concept): Negligence per se arises when harm done is what statute seeks to prevent i. P must be within class of persons protected by statute ii. Harm in question must be particular kind of harm the statute describes iii. Look also at legislative intent c. Jury Instructions (Test): i. Did D violate a non-tort statute? If YES...
ii. Did the violation cause harm to P? If YES...
iii. Was the harm the type that the statute intends to prevent? If YES...
iv. Is P in the class of persons that statute intends to protect? If YES...

VI.

v. Was D's conduct justified or excused? If NO.... vi. Jury must find D negligent (may still find him non-liable based on other elements). d. Only one way to prove negligence; if negligence per se test fails, D can still be found negligent under the common law. e. Gorris principle: Sheep case. Risks other than those statute sought to curtail not covered by negligence per se. i. Burnett v. Imerys Marble: P's outside protected class do not recover (non-miners w/Mine Safety Act) ii. Shadday v. Omni Hotels: Hotel safety law aimed at protecting P from intruder, not fellow guests. iii. RICO, Sherman Act, etc. prohibit many acts, but their purpose is to prevent a specific harm that each individual act is not sufficient to create (racketeering, anti-competitive practices)

1. Sherman Act protects competition, not comeptitors iv. Included in 3rd Restatement f. Justification and Excuse i. No negligence per se if actor broke statute to promote own safety

1. E.g. Tedla v. Ellman; person walking on "wrong" side of road violated statute, but was justified because he was on the side with less traffic.

2. Justification: positive departure from general rule

3. Policy: Legislature cannot be expected to foresee all justified exceptions from statutes. Responsibility on cops not to charge people who promoted safety. g. Intervening Actors i. Breaking ordinance aimed at reducing crime leaves you negligent per se for all harms stemming from crime if your violation leads to the crime the law sought to prevent.

1. Ross v. Hartman: D left keys in car, which broke statute intending to prevent joyriding. Thief stole car and hit P; D was negligent per se.

2. Vesley v. Sager: Limited civil liability per se for bars that serve intoxicated people ii. Joint and several liability: Both parties can be held fully liable (D per se, plus later criminal actor) h. Statutory cause of action: Not the same negligence per se i. Sometimes included; if not, it can be found implicitly in state statutes

1. Test for implicit cause of action: a. Is P in protected class?
b. Would recognition of private cause of action promote legislative purpose?
c. Would judicial creation of this CoA be consistent with legislative scheme?
i. Uhr: No CoA because purpose of statute was to save school districts money; creating CoA would have created extra costs.

2. No implicit CoA in federal statutes a. SCOTUS: if Congress wanted a civil CoA it would have included one ii. Differs from negligence per se; common law defenses like Gorris principle do not trump it iii. Statutes may explicitly forbid negligence per se i. P-side negligence per se i. Same test applies when proving contributory/comparative negligence ii. P-side negligence per se must have causal effect (run counterfactual)

1. E.g. Martin v. Herzog, P driving without headlights when hit, but accident would have happened even if he was obeying the headlight law. j. Licensure: lack of license is generally not sufficient to prove liability via negligence per se (Brown v. Shein, incompetent unlicensed chiropractor) i. P must prove D acted incompetently, not that he was merely unlicensed

1. Proving incompetence is doing through pathways other than negligence per se

2. Licensing is not as important as safety standards behind it ii. Gorris: P's injury must be related to what licensing law is trying to prevent (incompetence) iii. Test: Run counterfactual and ask if things would have been any different had D been licensed

1. Legal malpractice example: unlikely to change things as passing the state bar wouldn't have made the lawyer any less likely to practice unethically or incompetently. RES IPSA LOQUITER a. Why RIL Infrequently Applies: Statistical Problems i. Most accidents are caused more often by due care than negligence

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