Elements of Assumption of Risk
(1) consent to accept the risk must be freely given
(2) the P must clearly consent to accept the particular risk that led to the injury
Negligent Infliction of Emotional Distress
Claims for indirect infliction of emotional distress are based on emotional trauma suffered by one person who witnesses or learns of an injury to another.
Courts have long awarded emotional distress damages in negligence cases if the D causes direct physical injury to the P.
This became known as the impact rule.
These damages under this rule were described as "parasitic" because they could be added on if the P suffered a traditional physical contract from the D's negligence, but could not sustain an action on their own.
Zone of Danger Rule
Some courts allow a bystander to recover for emotional distress if he was in the "zone of danger."
To make this claim the P must have been close enough to the D's negligent conduct so that he was placed at risk of physical injury, even though he was not actually touched.
The Dillon Rule/Foreseeability (3 Factors)
(1) whether the P was located near the scene of the accident as contrasted with one who was a distance away from it;
(2) whether the shock resulted from a direct emotional impact upon the P from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident form others after its occurrence;
(3) whether P and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship
Some courts using the zone of danger or Dillon rules require that the P suffer some type of physical symptoms as a result of the emotional distress caused by D's conduct.
Joint And Several Liability
Each is liable for the full amount of Ps damages
May be sued singly or with other tortfeasors
If P prevails in an action against joint tortfeasors she is entitled to a judgment against each for her full damages
This does not apply if the Ds cause separate damages
Settlement and release of claims
P does not abandon claims against one tortfeasor by settling with another
The P may settle with one tortfeasor and go to trial against the others
Under traditional joint and severally liability any judgment P obtained against the remaining Ds would be reduced, dollar for dollar, by the amount paid to her by the settling tortfeasor.
Under several liability individual tortfeasors pay only a part of the Ps damages
Depends on the state/jurisdiction
There is a right to contribution among two or more persons who are jointly and severally liable in tort even though judgment has not been recovered against all or any of them.
The right of contribution exists only in favor of a tortfeasor who has paid more than his pro rata share of the common liability, and his total recovery is limited to the amount paid by him in excess of his pro rata share.
Pro rata: means equal. If there are three tortfeasors, the pro rata share of each is one-third, etc.
Effect of settlement on the right to contribution
When a release or settlement is given to one or more persons liable for the same injury:
(a) it does not discharge any of the other tortfeasors unless its terms so provide, but it reduces the claim against the others to the amount paid in the settlement; and
(b) it discharges the tortfeasor to whom it is given from all liability for contribution to any other tortfeasor
Pro Rata Credits for settlements
Example: If there are 3 tortfeasors. A settles for 2k. The P obtains judgment for 30k against B and C. A is viewed as selling one third of his claim for 2k. The entire judgment is reduced by the pro rata (equal) share of the setline defendant. Therefore P can only collect 20k from B or C, collecting a total of 22k.
Can a settling tortfeasor seek contribution?
General answer is no. A tortfeasor who enters into a settlement with a claimant is not entitled to recover contribution from other tortfeasors, despite the fact that the settling tortfeasor may settle for more than his pro rata share of liability.
Vicarious Liability:The meaning of "employee"
An employer is only liable if the worker is his employee and acts within the scope of his employment.
It is often unclear whether a worker is an employee or an independent contractor.
Generally, a person is an employee if the employer has the right of control over the person in the performance of the work.
Factors a court uses when determining employee vs independent contractor:
The extent of control the employer is authorized to exercise over the details of the work.
Whether the actor is engaged in a distinct occupation or business
Whether the type of work is customarily performed under the employer's supervision or by a specialist without supervision, and the extent of the skill required.
Who supplies the tools, other equipment, and place of work.
The length of time for which the person is employed.
Whether the person is paid on a time basis or by the job.
Whether the employer is in business, and whether the work is part of the employer's regular business.
The parties' belief as to the nature of the relation.
Acting in the scope of employment:
An employee acts within the scope of employment when performing work assigned by the employer or engaging in a course of conduct subject to the employer's control.
Modern courts have held incidental acts in the course of work (such as lunch or smoke break) within the scope of employment. They happen at the employer's place of business, during working hours, and are related in a general way to the accomplishment of the work.
Vicarious liability for intentional torts:
Courts do hold employers liable for some intentional torts.
Employers liable when employee commits an intentional tort to serve the employer's purpose no matter how misguided.
There is no bright line rule however. The outcome is a policy choice upon which courts differ.
Employers are generally not held liable for torts of an independent contractor, even though they arise from the contractor's work for the employer.
the owner remains liable for torts of an independent contractor. Courts often hold a duty nondelegable because it involves inherent danger or requires special precautions.
Restatement: owner held liable for negligence in performance of work "involving a special danger to others which the employer knowns or has reason to know to be inherent in or normal to the work."
When such a duty exists the D is liable regardless of the care with which she conducts the activity.
Restatement: strict liability is liability imposed without regard to the D's negligence or intent to cause harm.
The liability flows not from carelessness, but from the very choice to conduct the activity at all.
An owner or possessor of a wild animal is subject to strict liability for physical harm caused by the wild animal.
Restatement: an actor who carries on an abnormally dangerous activity is subject to strict liability for physical harm resulting from the activity.
Second restatement gave six factors to determine abnormally dangerous:
(a) existence of a high degree of risk of some harm to the person, land or chattels of others;
(b) likelihood that the harm that results from it will be great;
(c) inability to eliminate the risk by the exercise of reasonable care;
(d) extent to which the activity is not a matter of common usage;
(e) inappropriateness of the activity to the place where it is carried on; and
(f) to extent which its value to the community is outweighed by its dangerous attributes
An activity is abnormally dangerous if
(1) the activity creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors; and
(2) the activity is not one of common usage
Essentially the third restatement eliminates (e) and (f) from the second restatement, which were factors that weren't determinative and basically not used by the courts.
The common usage factor:
The third restatement elevates the common usage factor to a necessary element for a strict liability claim.
Many SL cases conclude that SL only applies if the Ds activity was unusual or extraordinary as well as dangerous.
Under the third restatement, an activity that involves great and irreducible risk will not support SL if it is a matter of common usage. (this is bc both elements must be met)
This is due to the fact that common activities create reciprocal risks between actor and victim. By contrast, those who conduct unusual activities, such as blasting, impose hazards on the community that are generally not imposed on them by others.
NOTE: Even though the third restatement has not been widely adopted courts will almost always decide the cases based on the two factors emphasized in it.
Strict Products Liability: Restatement (second) of torts, 402A
(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold
(2) the rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his product, and
(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.
Short form of the elements created by 402A:
(1) by a user or consumer
(2) from a seller,
(3) who is engaged, in the business of selling the product
(4) for physical harm
(5) caused by a defective product
(6) that is unreasonably dangerous
In these cases P alleges that the product was defective because it did not meet the manufacturer's own specifications for the product (it did not come off the assembly line as the manufacturer intended).
Today these are the only true strict liability claims.
P recovers simply by showing the product does not meet the manufacturer's own specifications and as a result was unreasonably dangerous and caused her injury.
Does not matter how the defect occurred (P does not need to show negligence)
A product can be defective if its design makes it unreasonably dangerous.
Obviously a manufacturer should not be liable because its product involved some risk of injury.
Consumer expectation Test: Dangerous to an extent beyond that which would have been contemplated by the ordinary consumer, with ordinary knowledge common to the community as to its characteristics.
This approach does not require the P to demonstrate a safer way to design the product. She need only show that the product was less safe than a reasonable consumer would expect.
whether the product's design represents a fair balance between the cost of designing the product to prevent the risk of injury, the effect the redesign would have on the utility of the product, and the extent of the risk that the product poses.
Factors used to determine risk/utility:
The gravity of the danger posed by the challenged design
The likelihood that such danger would occur
The mechanical feasibility of a safer alternative
The financial cost of an improved design, and
The adverse consequences to the product and to the consumer that would result from an alternative design
failure to warn:
This claim involves failure to warn the user of dangers associated with a product's use.
Dangers that a manufacturer has a duty to warn:
Second restatement: consumer should be warned if a danger is not generally known, or if known is one which the consumer would reasonably not expect to find in the product.
NOTE: "in effect, warning claims are negligence claims"
The warning must:
Describe the nature of the risk
Its scope, and
The means of avoidance
Common Defenses to Products Liability Claims: Ps negligence
Many states apply comparative fault to strict products liability claims as well as negligence claims.
Jury is instructed to assign a percentage of responsibility to the seller-defendant, for selling the defective product, and to the P for her negligence in using the product.
Common Defenses to Products Liability Claims: Assumption of the risk
States that have adopted comparative negligence, and treat assumption of the risk as a form of negligence in negligence cases, have adopted the same approach for strict products liability.
Once again, however, the law is not uniform on the point. Some states continue to treat a Ps conscious assumption of the risk as a complete defense in strict products liability cases.
Common Defenses to Products Liability Claims: Misuse
(1) misuse defeats Ps prima facie claim because it indicates that the product was not defective
A jury may find that a product was not defective, even though it was dangerous when used as the P did, because it was never designed to be put to that use. (P suing for broken bottle that he threw against a pole)
(2) misuse is a form of P misconduct that reduces or completely bars her recovery (basically comparative negligence)
This situation is similar to comparative negligence and depends on the state as discussed above.
The Ps injury is caused by a defect in the product, but also by her own misuse of it. (P suing for stepping on the paint rack of a ladder which didn't have a warning saying not to do this)
Common Defenses to Products Liability Claims: Open and Obvious
(1) dangers that can be designed out of the product
These designs fail both the consumer expectation test and the risk/utility test.
D cannot avoid liability by claiming the danger was open and obvious. Although that may be true it should not have been there in the first place.
Example: D makes a snowblower in which the blades are exposed, there is no guard covering them. Snowblower is unreasonably dangerous because the danger should have been designed out.
(2) dangers that cannot be designed out of the product
The danger is inseparable from the product, reasonably designed.
Example: P alleges design defect and warning defects from a cut by a kitchen knife.
State of the Art defense:
A manufacturer is not liable for a defect that was unknown or could not be reasonably known at the time of sale.
This is common in drug manufacturing cases in which technology restricts the actual knowledge they have about the product. (that's why its called "state of the art")
Battery is the intentional infliction of a harmful or offensive contact with the person of the P.
(1) D must act and act must be intentional
(2) the act must cause a contact with the victim
(3) the intended contact must be either harmful or offensive to the victim
No contact is intentional if it is not the result of a voluntary act.
The D must not only intend to act, she must act for the purpose of inflicting a harmful or offensive contact on the P, or realize that such a contact is substantially certain to result.
The word "intent" is used to denote that the actor desires to cause consequences of his act, or that he believes that the consequences are substantially certain to result from it.
The intent standard may be met if the actor intends to commit a battery on one person and actually inflicts one on somebody else.
Thus, where the actor tries to batter one person but inflicts battery on another, she will be liable to the actual victim.
This transferred intent fiction also allows recovery where the actor attempts one intentional tort but causes another. Such as attempting battery on one person and as a result causing assault on another.
Harmful or offensive contact
Bodily harm is any physical impairment of the condition of another's body, or physical pain or illness.
Even if the contact is not harmful, it is tortious if it is offensive.
Courts use an objective definition for offensive contact.
A contact is offensive if it offends a reasonable sense of personal dignity.
Offensive if a reasonable person in the circumstances would find the contact offensive.
Not liable for a contact considered to be socially acceptable, even though the victim turns out to be hypersensitive and is truly offended.
Often a prior course of conduct between the parties indicates that they accept contacts that would ordinarily be considered offensive.
(1) an actor is subject to liability to another for assault if
(a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and
(b) the other is thereby put in such imminent apprehension
Elements for assault:
(1) act with intent
(2) to place the victim in apprehension of a harmful or offensive contact or to make such a contact, and
(3) the victim must reasonably be placed in apprehension of such a contact.
The intent requirement:
The D must act with the purpose to cause apprehension of a contact or substantial certainty that the apprehension will result.
Fear and Apprehension
Apprehension means the perception or anticipation of a blow, rather than fright.
Assault protects not only the fear of an unwelcome contact, but the expectation or anticipation of one.
The apprehension must be imminent, meaning that the P must expect that he is about to be touched.
One is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally (a) enterers land in the possession of the other, or causes a third person to do so, or (b) remains on the land, or (c) fails to remove from the land a thing which he is under duty to remove
Intrusions Upon, Beneath, and Above Surface of Earth
A trespass may be committed on, beneath, or above the surface of the earth. [aircraft exceptions]
Trespass to Chattel
A trespass to a chattel may be committed by intentionally (a) dispossessing another of the chattel, or (b) using or intermeddling with a chattel in the possession of another.
Liability to Person in Possession of Chattel
One who commits a trespass to a chattel is subject to liability to the possessor of the chattel if, but only if, (a) he dispossesses the other of the chattel, or (b) the chattel is impaired as to its condition, quality, or value, or (c) the possessor is deprived of the use of the chattel for a substantial time, or (d) bodily harm is caused to the possessor, or harm is caused to some person or thing in which the possessor has a legally protected interest.
An insane person will be held responsible for an intentional tort. The Restatement (Second) of Torts §895J says a rational choice is not required since "an insane person may have an intent to invade the interests of another, even though his reasons and motives for forming that intention may be entirely irrational."
USE OF MECHANICAL DEVIDE THREATENING DEATH OR SERIOUS BODILY INJURY
The actor is so far privileged to use a device intended or likely to cause serious bodily harm or death for the purpose of protecting his land or chattels from intrusion that he is not liable for the serious bodily harm or death thereby caused to an intruder whose intrusion is, in fact, such that the actor, were he present, would be privileged to prevent or terminate it by the intentional infliction of such harm.
Nonconsensual defenses: Recapture of Chattels
The privilege of recapture is allowed when one person wrongfully obtained possession of the chattel
by either force, fraud, or without claim of right.
Nonconsensual defenses: Necessity
The privilege to enter another's property w/out consent, where the intrusion seems necessary to save property or life from imminent harm. The necessity of entry must be reasonable. That is, the cost of entering the land must be lower than the cost incurred by the land owner.
False Imprisonment (elements)
i. Intent to confine
ii. Some conduct of def., causing
iii. Confinement of pl. w/in a boundary
iv. Pl. is conscious of the confinement
The intentional infliction of emotional distress: Extreme and outrageous conduct
What the pl. must prove:
(1) Intent or recklessness
(2) Extreme and outrageous conduct, causes
(3) Severe emotional distress (and bodily harm if it results)
What is extreme and outrageous conduct?
1. The average member of the community would exclaim "outrageous!"
2. Beyond all possible bounds of decency and is regarded as atrocious and utterly intolerable in a civilized community
3. The extreme and outrageous character of the conduct may arise from the actor's knowledge that the other is peculiarly susceptible to emotional distress, by reason of some physical or mental condition or peculiarity
What is severe emotional distress?
i. Any highly unpleasant reaction: fright, grief, shame, worry, humiliation, embarrassment, disappointment
ii. Sleep loss for an extended period of time