OVERVIEW: TORT LAW " A CIVIL HARM"

GOALS OF TORT LAW PROVING THE ELEMENTS

1. Deterrence Burden of Production ? to get to a jury, the Plaintiff must produce sufficient
2. Compensate evidence on each element of NEG to allow a reasonable juror to conclude that
3. Economic Effciency (should not unduley burden economy) ?pore likely than not?the facts plaintiff alleges is established
4. Legal/Admim Effciency (should not cost alot or consume time) Burden of Persuasion ? Defendant may produce evidence to rebut the plaintiff?s
5. Fairness evidence, but the plaintiff bears ultimate burden of persuading the jury (or the judge
in a bench trial) of each element of its case

PREPONDERANCE OF THE EVIDENCE

THEORIES OF LIABILITY REMEMBER VICARIOUS LIABILITY

NEGLIGENCE STRICT LIABILITY PRODUCTS LIABILITY INTENTIONAL TORTS

1. Duty 1. Duty 1. Duty 1. Assault

2. Breach 2. Breach 2. Defective Product 2. Battery

A. Animals A. Manufactuering Defect
3. Causation B. Abnormally Dangerous B. Design Defect 3. IIED
Activity C. Warning Defect
4. Proximate Cause 4. False Imprionment
3. Causation 3. Causation
5. Damages 5. Defenses
4. Proximate Cause 4. Proximate Cause
6. Defenses A. Consent
5. Damages 5. Damages
A. Contributory Negligence B. Self Defense
6. Defenses 6. Defenses
B. Comparitive Negligence A. Contributory Negligence A. Comparitive Negligence C. Necessity
B. Comparitive Fault B. Secondary AOR
C. Assumption of Risk C. AOR

D. Immunities
 DUTY
Did D have a legal obligation to exercise some level of care to avoid risk of harming persons or property? (Judge determines as a matter of law)

2 STEP INQUIRY: 1) DID D HAVE A DUTY & 2) WHAT WAS THE SCOPE OF THE DUTY

GENERAL DUTY NO - DEFENDANT DOES NOT HAVE A DUTY STATUTORY DUTY

UNLESS
An actor owes a duty of reasonable care 1. Statutory negligence ? there is duty under the common law, but court can
under the circumstances to those persons use statute as standard of care for breach (i.e., Ferrell v. Baxter)
who are foreseeably exposed to physical 2. Statutory tort? legislature expressly created private right of action, statute
risks arising from the actor?s conduct. SPECIAL RELATIONSHIP creates duty and std of care
(look at who has control) 3. Legislature mandates standard of care under existing common law claim.
Nonfeasance - Defendant's conduct did not A. Parent/child See e.g., legislative codification of Tarasoff
create FRH (NO DUTY TO RESUCE RULE) B. Teacher/student
C. Between D and third person who poses
risk to another (See Tarasoff) INNOCENT PRIOR CONDUCT
D. People engaged in a common undertaking
Where a party negligently injures another, there is a duty to assist person in
Did the Defendant's actions create a foreseeable E.g. Farwell ? Two friends were hanging out
peril. There is also a duty where a party?s non-negligent conduct places a
risk of harm to another? and got into a fight. Plaintiff was injured.
person in peril.
Defendant gave him ice and left him to sleep
Misfeasance - Defendant's conduct created in the back of his car. He died.
foreseeable risks of harm RELIANC ON GRATUTIOUS PROMISE
K RELATIONSHIP Voluntary assumption of duty based on very little extra affirmative conduct by
YES - the promisor (e.g. writing a letter)
Defendant owes Plaintiff a duty of reasonable VOLUNTARY ASSUMPTION OF DUTY
care unless there is a clar exception limiting
or eliminating duty or public policy supports INTENTIONAL PREVENTION OF AID BY
departure from general duty
OTHERS

STATUS TRICHOTOMY / LANDOWNERS CA DUTY RULES A FAIR DEAL

1. foreseeability of harm to the p a. Allocation of loss
2. degree of certainty that the p suffered the b. Fairness
INVITEE LICENSEE TRESSPASER injury c. Deterrence
Person invited onto the land, Person on land with landowner?s Person on land w/o
3. closeness of the connection between D?s d. Economic Considerations
primarily for business purposes permission, including a social permission e. Administrative Concerns
guest conduct and the injury suffered
f. Legislative considerations
Public Invitation: whether the Duty to avoid willful 4. moral blame attached to D?s conduct,
premises are held open to the Person on land with landowner?s and wanton policy of preventing future harm
public in such a way that there is permission for his own misconduct or 5. the extent of the burden to the D and
a legally implied assurance that convenience or on business with through gross
consequences to the community of imposing
the premises are reasonably safe someone other than the owner negligence
for entry. a duty to exercise care with resulting liability
Duty not to create a trap or allow for breach,
NORMAL DUTY RULES: concealed danger to exist on 6. and the availability, cost, and prevalence of
REASONABLE CARE (protect property. Duty to warn of danger insurance for the risk involved
them from conditions that create they owner has actual knowledge
unreasonable harm which they of.
know or could have discovered)
 DUTY TO PROTECT THIRD PARTIES/ DUTY OF ALCOHOL PROVIDERS DUTY TO PREVENT EMOTIONAL HARM
DUTY TO WARN 1. Questions to ask:
If there?s a foreseeable risk that a ? is going to be a. Did host personally serve the alcohol to the 1. Direct Physical Risk - Physical Injury Required
injured by a party with whom a professional has a person?
b. Was the person visibly drunk? ? limited 2. Impact Rule ? allowing recovery where there was physical impact but
special relationship and the professional has explicit
liability by restricting to persons visibly no physical injury. Over time, the requirement of physical impact was
reason to know that the victim is actually in danger intoxicated
according to their special knowledge, then there is a often satisfied by even the slightest touching in an accident context. (a
2. Basis for imposing duty on server
duty to exercise reasonable care to protect that 3rd a. Creation of the risk - Affirmative conduct speck of dust in the eye might suffice)
person. that creates a risk of harm to others
b. Serve a person that is visibly intoxicated ? 3. Zone of Physical Danger (Rule I)
ELEMENTS: limited to visibility of intoxication Fear for One?s Own Physical Well-Being ? allows a party to recover for
pure emotional distress if the party was in the foreseeable zone of
1. Profession relationship w/ person whose conduct
physical danger but escaped without physical injury, at least where the
needs to be controlled distress arose from a fear for one?s own safety. The zone of physical
2. Victim is readily forseeable and identifiable NEGLIGENT ENTRUSTMENT danger is the geographic space within which a party is at foreseeable risk
A. Identifiable (actually named by patient, persons One who supplies directly or through a third of physical injury
who interact w/ patient and are aware of condition, person a chattel for use of another whom the
or doctor had reason to know third person is in supplier knows or has reason to know to be 4. Bystander in Zone of Physical Danger (Rule II)
danger) likely because of his youth, inexperience, or Fear for the Physical Well-Being of Another ? allows recovery where a
3. Foreseeable that victim would be harmed otherwise, to use it in a manner involving family member was killed or seriously injured in an accident, and the p,
though within the zone of physical danger was not injured physically, but
4. Professional has special knowledge unreasonable risk of physical harm to himself
suffered serious emotional distress at seeing the serious injury of a close
and others whom the supplier should expect relative
SEE TARASOFF to share in or be endangered by its use, is
SEE ESTATES OF MORGAN (Applied this rule to subject to liability for physical harm resulting 5. Bystander Outside Zone of Danger
psychologists, social workers, and other mental to them. Reasonable foreseeability rule: a bystander may recover damages for
health professionals who know/should have known emotional distress under the rule of reasonable foreseeability if the
of patient's violent tendancies) ANALYSIS: bystander satisfies the following conditions:
1. that the D supplied a third party with the 1. he or she is closely related to the injury victim, such as the parent or the
sibling of the victim;
chattel in question for use of the third party;
2. the emotional injury of the bystander is caused by the
2. that the supplier of chattel knew or should contemporaneous sensory perception of the event or conduct that causes
have known that the third party would use the the injury, or by arriving on the scene soon thereafter and before
chattel in a manner involving an substantial change has occurred in the victim's condition or location;
unreasonable risk of harm; and 3. the injury of the victim must be substantial, resulting in death or serious
DUTY TO PROTECT AGAINST 3. that harm resulted from the use of the physical injury; and
chattel 4. the bystander's emotional injury must be serious, beyond that which
CRIMINAL CONDUCT would be anticipated in a disinterested witness and which is not the result
imposes duty to take reasonable measures to of an abnormal response.
protect against foreseeable criminal activity. (e.g.
landlord-tenant, business owner-patron, property
owner-invitee) INDEPENDNET DUTY FOR Bystander Theory Direct Victim Theory
EMOTIONAL WELL BEING
Totality of the Circumstances Test Plaintiff witnesses the injury of As a result of breach of duty owed
considers all of the circumstances surrounding an Some emotional distress claims are directly another. Defendant?s breached the plaintiff that is assumed by the
event, including the nature, condition, and location of based on the defendant?s breach of an duty not to negligently cause defendant or imposed on the
the land, as well as prior similar incidents, to independent duty obligation to act reasonably emotional distress to people who defendant as a matter of law, or
determine whether a criminal act was foreseeable. for the plaintiff?s emotional wellbeing. (e.g. observe conduct which causes that arises out of a relationship
Balance these factors but don?t look at the burden Bodily Remains and Death Notification harm to another between the two.
on the landowner Cases)
SEE BURGESS (Pregnant Lady)
SEE DTD 2 Theories -- MUST LOOK AT THE SOURCE
OF DUTY OWED BY D to P
 BREACH
Did D's conduct fall below the level of care owed to P? In light of foreseeable risks created by the conduct, was D's conduct unreasonable under the circumstances?

2 STEP INQUIRY: 1) Foreseeable risks of harm and 2) Unreasonable conduct (act or omision) in light of foreseeable risks

GENERAL STANDARD OF CARE PROVING BREACH

The general standard of care is a reasonable person (average mental ability but
the same physical characteristics as the defendant)
COMMON SENSE
simply trusts jurors to use their knowledge of the world to decide what is reasonable
GENDER MENTAL DISABILITY under the circumstances.
Edwards v. Johnson ? Plaintiff was shot SEE Bashi : Court held sudden
by a woman alone in her apartment. mental illness may not be used as a
Dissent judge wanted a ?reasonable defense to harmful conduct and that
woman standard?. harm caused by such individual?s
behavior shall be judged on the
HAND FORMULA
objective RPP standard. PLAINTIFF'S BURDEN
EMERGENCY
Majority: RPP A person is negligent for failing to take a precaution B, if B < PL.
Minority: There must be
(1) an unforeseen combination of CHILDREN P ? probability of it occurring
circumstances which calls for immediate L ? magnitude of foreseeable harm
action; 1. General Rule: Reasonable Child B ? burden of adequate precautions (take into account costs)
(2) a perplexing contingency or of like age, intelligence, maturity, and
complication of circumstances; experience B >P x L ? no breach, acted reasonably
(3) a sudden or unexpected occasion for 2. Minimum age for negligence (look B < P x L ? breach, acted unreasonably
action, exigency pressing necessity. at JX)
3. EXCEPTIONS SEE Carroll Towing (Barge sanked because Defendant's handling of the lines. D failed
SEE Foster (Parking lot brawl) Inherently Dangerous Activity: When to take reasonable precautions)
the activity a child engages in is
inherently dangerous, as is the SEE Pheasant Run (Plainiff was assaulted in hotel. P did not offer proof incident could
operation of powerful mechanized have been prevented by taking precautions)
vehicles, the child should be held to
an adult standard of care.
PHYSICAL DISABILITY Adult activity
RPP assumes that the RPP would have Superior Skills Problem - An actor JUDICIAL STANDARD
the relevant physical disability of that must utilize not only those qualities Court determines that no reasonable juror could find that a breach of duty existed or that
party (e.g. a blind person SOC would which as a reasonable person he is all reasonable jurors would have to find the existence of a breach of duty, the judge is
become that of a reasonably prudent required to have, but also those implicitly making a judgement as to reasonable conduct under the circumstances.
blind person under the same or similar superior qualities which he has.
circumstances). You must consider that
Holmes: when they are dealing with a standard of conduct, and when the standard is
person?s knowledge of their different
clear it should be laid down once for all by the courts
ability.
SEE Goodman (guy slowed down, didn't hear train, went and died)

Cardozo: situations with extraordinary circumstances must be left to jury

SEE Pokora (same facts as above)
 CUSTOM CIRCUMSTANTIAL EVIDENCE RES IPSA LOQUITOR
1. P may show that the D DEVIATED from custom Evidence from which a reasonable Allows P theory that the mere occurrence of an accident is evidence
as evidence of unreasonable conduct inference may be drawn. of negligence on D?s part. When a P cannot point to exactly how it
2. D may show that D?s COMPLIANCE w custom happened or why, but the accident is one that occurred b/c of
demonstrates reasonableness Plaintiff has the burden of pleading, negligence
production, and persuasion (unless RIL).
THREE APPROACHES Shown through preponderance of the ELEMENTS:
A. Dispositive: If defendant could prove that it evidence. 1. Accident bespeaks negligence)
compiled w/ industry custom, then the defendant A. Proof: Facts of accident; Common knowledge; Common sense;
could not be found liable for breach. 1. Constructive Notice: signifies that a Experts
person or entity should have known, as a
SEE Copeland (Guy fell through hole in floor; that reasonable person would have, of a legal 2. Inference that Defendant was Negligent: Jury must be able to
was the custom) action taken or to be taken, even if they find that more likely than not the defendant?s NEG conduct or
have no actual knowledge of it omission caused the accident
B. Custom not admissble. Doesn't matter if A. Proof: Instrumentality or agent that caused the accident was
defendant followed it, RPP is the standard SEE KMART (slipped on grapes) under the exclusive control of the Defendant (right of control (See
Ybarra); Disprove possible Neg of 3rd Parties; Remove the P as a
C. Not Disposivite but jury could conisder it in 2. Mode of operation test ? allows P to possible contributor (or at least less than 50% responsible in
determining if there was a breach. sue on the theory that the D?s choice to comparative NEG)
SEE Klien (guy installded glass shower door that display products in a certain way or to
broke. Defendant followed custom even though opt for customer self-service may be 3. Inference of Negligence (ION) - if all element of RIL satisfied
he knew of safer option) found to be unreasonable. (e.g. Self A. Permissive Inference (MAJ) ? Jury doesnt have to accept ION.
Serve) ION does not shift burden of proof, Plaintiff still needs to establish all
other elements of Negligence
NEGLIGENCE PER SE B. Rebuttable Presumption (MIN) ? Jury must infer that the
Statute becomes the standard of care and depending on JX could be conclusive proof of defendant was negl unless D presents evidence rebutting the
negligence. inference. Burden of proof shifts to D

5 Part Test for Negligence Per Se

1. A criminal statute imposes a specific duty upon someone for the protection of others (30
mph speed limit)
2. The defendant neglects to perform that duty (defendant speeds)
3. Plaintiff is within the class of people whom the statute was designed to protect (speeding
statute designed to protect pedestrians and other drivers) 4. The statute was designed to
protect against the type of accident the defendant causes (speeding statute designed to
protect against collisions between cars and other cars/people)
5. Plaintiff?s injuries were caused by defendant?s violation of the statue (pedestrian would not
have been injured but for driver?s speeding)

Procedural Effects
Majority: Negligence per se creates presumtpion of breach, but Defendant may try to prove
application of a specific acceptable excuse
Minority: Standard remains RPP, but D's violation can be part of jury deliberation
Rare: Strict Negligence Per Se

Excuses: Incapacity; No Knowledge of Occasion for Compliance; Inability After Reasonable

Diligence to Comply; Emergency; Compliance Involves Greater Risk; Reasonableness under
all the Circumstances
 MEDICAL MALPRACTICE EXCEPTION

NEGLIGENT MEDICAL PERFORMANCE INFORMED CONSENT

Defined: providing patients with information related to their medical
Defined: Refers to all forms of carelessness arising in the care of patients. problems so that patients may decide whether to consent to proposed
treatments
Standard of Care: A physician must act with the degree of care,
knowledge, and skill ordinarily possessed and exercised in similar What info needs disclosed? (1) diagnosis (condition or problem); (2) nature
situations by the average member of the profession practicing in the field in and purpose of proposed treatment; (3) risks and consequences of
the relevant geographic community proposed treatment; (4) probability that proposed treatment will be
successful; (5) feasible treatment alternatives; and (6) prognosis if
Establishing Breach: Plaintiff must show a violation of the degree of care proposed treatment is not given
and skill required of a physician. Such standard of care is that which, under
similar conditions and like circumstances is ordinarily employed by the STANDARD OF CARE
medical profession generally. Custom sets the standard of care 1. Professional Standard ? Doctor is required to disclose those risks which
a reasonable medical practitioner of like training would disclose under the
Defining Custom: circumstances
A. Same or similar community standard: Physicians must meet at least 2. Prudent Patient Standard - disclosure duty is to be measured by the
the standard of care existing in the ?same or similar? communities? and patients need for info rather than by the standards of the medical
experts from such communities may testify as to the appropriate standards profession (Jury question)
(i.e., country doctors will be held to the same standard of care as other
country doctors, but not necessarily to the same standard as big-city CAUSATION - Omission must cause injury to P
doctors). May require experts from same/similar locality. 1. (MAJORITY) Objective test: whether or not a reasonably prudent
patient, fully advised of the material known risks, would have consented to
B. Nationally certified physicians: A growing number of courts impose a the suggested treatment
national standard of care on nationally certified medical specialists 2. (MINORITY) Subjective test: had I been informed of all of the risks I
would not have done it. Plaintiff has to prove this.
Expert Witnesses ? usually P has to provide expert testimony to show 3. Idiosyncratic patient- patients/patients with particular wants or needs
both the customary practice and professional D's deviation from that that were known to the doctor and would alter her decision. If Doctor is
practice made aware of what a patient prefers would have an effect on what would
be material info to disclose they can be held liable, even in an objective
Multiple customary standards/alternative approaches: If there are test jurisdiction. Plaintiff has to prove that the doctor was aware of the
several acceptable methods to perform a certain medical procedure, a factors that would bring this issue about.
doctor?s compliance with any acceptable method protects her from
malpractice liability. Expert can support.
Common Sense Exception - Obvious occurrence exception
If a physician?s conduct is so egregious and obvious that a layperson could
identify the breach of duty, no expert testimony is needed to establish the
duty of care and the breach.
 CAUSATION
Did a causal connection exist b/w the D's unreasonable conduct and P's harm? Breach CAUSED injury, reasonable connect

2 STEP INQUIRY: But for test and Substantial Factor Test

BUT FOR TEST CIRCUMSTANTIAL EVIDENCE -

SEE Ingersoll (Guy fell down stairs with box)
Plaintiff must show that but for the defendant?s unreasonable
conduct, the injury would not have occurred. SINGLE INDIVISIBLE INJURY
Multiple defendants come together and cause the P one indivisible injury which cannot be reasonably
apportioned, they are all held jointly and severally liable, and the burden of proving that the harm
SUBSTANTIAL FACTOR TEST can be separated falls upon those defendants who contend that it can be apportioned. SEE Fugere
Plaintiff must show that the defendant?s unreasonable act was (Lacerated Liver Case)
more likely than other factors to have caused the plaintiff?s injury.
States deal with this in multiple ways
TYPES OF CAUSES: 1. Traditional - About 15 retain joint and several liability ? one D (usually the one w/money) can be
1. Multiple factual cause ? there is no requirement that the liable for entire recovery. p is made whole and D can bring contribution action to get money back from
defendant?s act be the sole ?but for? cause of the injury, only that insolvent parties. p could only bring a claim against the D with most money and get full recovery from
it be a ?but for? cause. These are found in cases where neither him
of the defendant?s negligent act was not enough to cause the 2. Several Liability - Another 16 have abolished J&SL in most cases, these states provide that a D
accident alone, however, each act was a necessary antecedent should never be required to pay more than their share of an award and have moved to individual
to the harm. liability proportionate to judgments ? only pay their percentage.
3. Hybrid Joint and several liability approach
SEE J.C. Penny ? (Lady wore coat and was set on fire) 1. Some require all of the parties at fault, including p to proportionately cover an insolvent defendant?s
share
2. Multiple sufficient cause ? each causal factor would alone 2. Others have retained J&SL only for economic damages and abolished it for non-economic damages
have caused the harm and the but for test does not work b/c (pain and suffering)
Plaintiff cannot pinpoint which exactly did it - J&SL ? economic damages
- Several liability ? non-economic
3. Duplicative - where two parties are independently careless
and simultaneously cause a significant injury to which each
contributed ALTERNATIVE LIABILITY
Ds are independent tort feasors and thus each liable for the damage caused by him alone, and, at
4. Preemptive - two sufficient causes of something, but one least, where the matter of apportionment is incapable of proof, the innocent wronged party should not
occurs before the other. (e.g. Defendant negligently took care of be deprived of his right to redress. P must show more likely than not which caused the injury now both
a dam that would have failed under normal rain conditions. The are on the hook unless can prove they were not the one who caused. SEE Sommers (hunting case)
rain unexpectedly was excessive and was enough to destroy the
dam and damage property. LOSS OF CHANCE
Plaintiff/s suffering from a serious illness are allowed to recover the value of the chance for a cure that
5. Successive ? two causes that take place one after another the doctor negligently destroyed or eliminated. What happens when a physician?s malpractice further
(e.g. the negligently set fire meeting with another fire that causes reduces a patient?s already smaller than 50% chance of survival from a disease or condition.
injury)
P must est through a preponderence of evidence that D caused injury, D's negligence caused the Ps
likelihood of achievening a more favorable outcome to be diminished. But for D's neg, P would have
better chance.

Calculate full wrongful death damages ($600,000), percentage before negligence (45%) ? percentage
after negligence (15%) = 30% x full wrongful death damages. $600,000 x 30% = $180,000
 PROXIMATE CAUSE
Did the D?s obligation include the general type of harm the P suffered? Are there any intervening causes that are so unexpected that they are superseding?

GENERAL RULE OF LIABILITY ARE THERE INTERVENING CAUSES?

Defendant is liable for all harmful results that are the normal incidents of Defined: A force came into motion after the time of defendant?s negligent act and combined with
and within the increased risk caused by his acts. In other words, if one of the negligent act to cause injury to plaintiff.
the reasons that make defendant?s act negligent is a greater risk of a
particular harmful result occurring, and that harmful result does occur, Foreseeable Results Caused by Foreseeable Intervening Forces? Defendant Liable: D's
defendant generally is liable. negligence caused forseeable harmful response from an intervening force or created a
foreseeable risk that an intervening force would harm plaintiff.

DIRECT CONSEQUENCES TEST Independent Intervening Forces: Independent intervening forces stem from D's negligence but
Defendant liable when their tortious action directly caused (no intervening are independent actions rather than natural responses. These may be foreseeable where D's
forces) the injury and traced to the negligence of the defendant. negligence increased the risk that these forces would cause harm to the plaintiff.
E.g. Andrews: ?Is there a natural and continuous sequence-direction A. Criminal Conduct of Third Party: If defendant?s negligence created a foreseeable risk that a
connection? Defendant?s actions were a substantial factor in producing the third person would commit a crime or intentional tort, defendant?s liability will not be cut off by the
crime or tort.
result.
Three Prong Test: A) The tortfeasor?s conduct must have been a ?substantial factor? in bringing
about the harm being complained of; and B) There is no rule that should relive the wrongdoer from
FORESEEABILITY TEST liability; C) harm giving rise to the action could have reasonably been foreseen and anticipated by
Whether the type of harm that occurs was foreseeable risk of defendant?s a person or ordinary intelligence and prudence
negligent conduct
Unforeseeable Results Caused by Unforeseeable Intervening Forces? Defendant Not
Foreseeable Harmful Results ? Defendant Liable Liable
If a particular harmful result was at all foreseeable from defendant?s 1. Intervening forces that produce unforeseeable results (i.e., results that were not within the
negligent conduct, the unusual manner in which the injury occurred or the increased risk created by defendant?s negligence) will be deemed to be unforeseeable and
unusual timing of cause and effect is irrelevant to defendant?s liability. superseding. This breaks the causal connection between defendant?s initial negligent act and
the ultimate injury.
Unforeseeable Harmful Results? Defendant Not Liable
In the rare case where defendant?s negligent conduct creates a risk of a Exceptions:
harmful result, but an entirely different and totally unforeseeable type of 1. Eggshell Plaintiffs: take ? as you find them. Even though extent harm is not foreseeable
harmful result occurs, most courts hold that defendant is not liable for that because you didn?t know that the ? had some weird ailment, it does not excuse liability. General
harm. type of harm must be foreseeable but extent of harm need not be foreseeable. (Contra eggshell
psyche)
SEE Palsgraf / Andrews Hints 2. Safety Statute: Violation of the statute could be found to be an act of negligence which created
1. Whether there was a natural and continuous sequence between a foreseeable risk.
cause and effect (but-for cause, wouldn?t be here without this, not 3. Subsequent Medical Malpractice: original tortfeasor is usually liable for the aggravation of
important) plaintiff?s condition caused by the malpractice of plaintiff?s treating physician.
2. Was the one a substantial factor in producing the other? 4. Negligence of Rescuers - rescuers are viewed as foreseeable intervening forces, and so the
3. Was there a direct connection between them, without too many original tortfeasor usually is liable for their negligence. Danger invites rescue ? reasonably
intervening causes? foreseeable when in danger someone will rescue, if reasonably foreseeable then not a
4. Is the effect of cause on result not too attenuated? superseding cause. You do not have a right to put yourself in danger, at the risk of another
5. Is the cause likely, in the usual judgment of mankind, to produce the
result? ? foreseeable? Or, by the exercise of prudent foresight, could Shifitng Responsibility Factors (Neg of inital tortfeastor and intervening actor):
the result be foreseen? Culpability of the intervenor (intentional, criminal, reckless, negligent, or innocent); competence of
6. Is the result too remote from the cause, and here we consider the person upon whom reliance is placed; intervenor?s understanding of situation; seriousness of
danger; number of persons likely to be at risk of danger; length of time b/w conduct of parties;
remoteness in time and space?
likelihood that proper care will or will not be uses; case with which each of the parties can take
precautions
 DAMAGES
What legally recognized losses has P suffered as a result of D's breach of duty?

DAMAGES RECOVERABLE IN THE ACTION PUNITIVE DAMAGES

available when defendant?s conduct is found to demonstrate the requisite higher degree of
culpability above negligence. Aggravated circumstances of intentional misconduct, such as
PERSONAL INJURY (COMPENSATORY) intent to harm, recklessness (conscious disregard), fraud, oppression, malice, or outrageous
conduct may be enough to permit these damages. Merely careless not enough.
Plaintiff is to be compensated for all his damages (past, present, and
prospective), both special and general. SEE Matthias Factors (Bed Bug Case): 1) Did the Defendant benefit?; Duration / Repeated
action or behavior; Concealment à did Defendant try to conceal this?
Economic Damages: what would the person have been able to earn
but for the negligent act
1. Medical expenses (past & future) - All reasonably necessary medical WRONGFUL DEATH
expenses and related treatment expenses, past and future, are Survival Stautes: Loss to decedent?s estate - losses and harm incurred from time of accident
recoverable for injuries that were caused by the negligence of D. Must to moment of death
show to reasonable certainty. Economic Damages: Medical expenses; lost wages; Funeral, burial expenses
2. Life expectancy: use mortality tables Noneconomic ? depends, were they conscious, in severe pain, instantaneous death, etc.
3. Lost wages (past & future) Courts differentiate between past earnings P & S; Loss of enjoyment of life; Loss to dependents/heirs
losses (from the date of the accident to trial)
Types of Death Losses
4. Future lost wages ?
Before Death: medical expenses, earnings losses, pain and suffering, consortium, and loss
A) Adult: Work-life expectancy ? how long you?ll be in job market,
of enjoyment of life
average number of years in work force. Considers opportunities upon After Death: funeral expenses, pecuniary contributions the decedent would have made over
graduation, lost advancement, promotions, and employment benefits. his or her life to dependents, loss of companionship by dependents, grief of dependents,
B) Child: based on likely educational attainment of child. Look to and savings or accumulations of assets the decedent would have accrued over his or her
parents?education and skills. life.
C) Household services - recognized as a recoverable item of future
earnings losses, may be the most important item of damages for a loss
of non-employed person who works in the home.
OTHER RULES
Lump sum payment rule: promotes litigation efficiency
Noneconomic ? speculative damages
1. Pain & Suffering (physical and emotional) Nonrecoverable Items
?Cognitive Awareness? (Maj) Certain items are not recoverable as damages in negligence actions. These include; Interest
?Grief and Sorrow? ? not really compensable because no economic from date of damage in personal injury action; and Attorneys?fees.
value
2. Life expectancy - Where permanent injuries are involved resulting in Duty to Mitigate Damages: P has a duty to take reasonable steps to mitigate damages? in
losses over a lifetime, the plaintiff will have to establish his or her life property damage cases to preserve and safeguard the property, and in personal injury
expectancy. cases to seek appropriate treatment to effect a cure or healing and to prevent aggravation.
3. Loss of pleasure/loss of enjoyment of life - allowable for the
inability to engage in enjoyable and productive activities. Collateral Source Rule: Plaintiff is entitled to recover for past medical expenses as well as
4. Emotional Distress Damages ? as a result of physical injury the cost of reasonable diagnostic examinations. Payments to the injured party from a
collateral source ARE NOT allowed to dimmish damages recoverable by the tortfeasor.
 AFFIRMATIVE DEFENSES
DEFENDANT BEARS THE BURDEN OF PROOF

CONTRIBUTORY NEGLIGENCE EXPRESS ASSUMPTION OF RISK IMPLIED ASSUMPTION OF RISK

(MIN.) arises when one person gives explicit written or oral
permission to release another party from an obligation Primary implied assumption of risk - owed no duty or did not
of reasonable care. Can only be used for negligence. breach the duty owed. Not an affirmative defense. p has made
no express agreement to release the D from future liability, but he
?all or nothing? proposition, p is barred from TWO STEP ANALYSIS: is presumed to have consented to such a release because he has
recovery if her unreasonable conduct contributes 1. Look at the contract and assess if the contract voluntarily participated in a particular activity or situation which
in any substantial way to her injury. Thus, if a jury covers the injury alleged involves inherent and well known risks.
finds p was 1% at fault while D was 99% at fault, 2. If it does, figure out if the contract is void because
p would recover nothing. of public policy Objective test: it depends on the nature of the activity in question
and on the parties' general relationship to the activity rather than
Elements: D must prove by a preponderance of Tunkl Public Policy factors: the particular plaintiff's subjective knowledge and awareness. (e.g.
the evidence that the P fell below the relevant std participant in active sport)
of care and that the p?s breach of duty was a 1. It concerns a business of a type generally thought
cause-in-fact and proximate cause of the p?s suitable for public regulation
injury. Must do entire Negligence analysis. 2. The party holds himself out as willing to perform Secondary implied assumption of risk - p is said to assume the
this service for any member of the public who seeks risk of the D?s negligence.
Standard of Care: RPP or Negligence Per Se it, or at least any member coming within certain est
stds. Three elements: tested by subjective std (trier of fact ?
Last Clear Chance: Permits the plaintiff to 3. When there is a gross disparity of bargaining power burden on D to show evidence)
recover despite his own contributory negligence. between the parties; 1. ACTUAL Knowledge of the risk ? aware
Under this rule, the person with the last clear 4. When the party seeking to apply the exculpatory A. Split ? General Knowledge (D +) v. Specific Knowledge (P+)
chance to avoid an accident who fails to do so is provision offers services of great importance to the B. Appreciation of the risk: Plaintiff must have comprehended and
liable for negligence. (In effect, last clear chance public that are a practical necessity for some appreciated the danger, its consequences
is plaintiff?s rebuttal against the defense of members of the public such as medical services; C. Voluntary exposure to the risk
contributory negligence.) (E.g. X negligently 5. If the exculpatory clause is subject to typical
parked his car on the railroad tracks. The train contractual defenses such as fraud or duress; or
engineer saw him in time to stop but failed to do 6. When it is against public policy to enforce Professional Rescuer Rule: majority rule: barred from bringing
so. The engineer had the last clear chance, and agreements that insulate people from the actions against third parties whose prior negligence necessitated a
thus the railroad will be liable for the accident.) consequences of their own negligence. response in which firefighter is injured

COMPARITIVE NEGLIGENCE (MAJ.)

where contributory negligence is shown, the trier of fact weighs plaintiff?s negligence against that of defendant and reduces plaintiff?s damages accordingly.

Types of Comparative Negligence

Pure comparative fault ? negligent p recovers some damages from a negligent defendant regardless of the p?s degree of fault. Jury allocates percentages of fault for each party

Modified comparative fault ? in a two party accident the p?s recovery is barred if the p?s fault exceeds a certain percentage.
A. Greater than - In some jurisdictions the p is denied recovery if the fault of the p is found to exceed that of the D, more than 50%
B. Equal to - In other jurisdictions the cut-off point for recovery would be when the fault of the p found to be as great as that of the defendant, 50%
C. In a modified jurisdiction then, a p who was 40% at fault would receive 60% of his damages from a negligent D, but a p who was 60% at fault would recover nothing.
 AFFIRMATIVE DEFENSES / IMMUNITIES
DEFENDANT BEARS THE BURDEN OF PROOF

INTRA-FAMILY IMMUNITIES GOVERNMENTAL IMMUNITY

Injury to Person - Under the traditional view, one Common Law: cannot sue the gov?t unless they consent to be sued
member of a family unit (i.e., husband, wife, or Modern View: Common Law Rule Limited
unemancipated child) could not sue another in tort for
personal injury. This view has undergone substantial Federal Tort Claims Act: the federal government may now be held liable to the same extent as a private
change in most states. individual.

Interspousal Immunity Abolished (Maj.) - Either Exceptions

spouse may now maintain a tort action against the 1. United States Still Immune for Certain Enumerated Torts
other.
2. Discretionary Function Exception: Immunity is not waived for acts characterized as ?discretionary?(activity
Parent-Child Immunity Limited (Maj.) - abolished is that which takes place at the planning or decisionmaking level)
parent-child immunity; however, grant parents broad as opposed to ?ministerial? acts (performed at the operational level of government (e.g., repairing traffic
discretion in the parent?s exercise of parental authority signals, driving a vehicle).
or supervision. Minority retain parent-child immunity
but do not apply it in cases of intentional torts and TWO PART ANALYSIS:
Negligence. 1. Did the governmental actor have any discretion to do or not to do what the plaintiff claims caused
him harm.
A. Look for a policy/statute that tells the employee what to do.
B. If there is then it is not a discretionary function, it?s a ministerial function. If employee did not follow it then
CHAIRTABLE IMMUNITY cannot be immune. If they do follow the policy, they are immune.
Injured victims were precluded from recovering from
charitable organizations but could recover from the 2. Is the discretion the actor had the kind of discretion for which this exemption provides immunity
negligent employees or volunteers of a charity. from liability?
A. Provides immunity only for discretionary conduct that involves policy making or planning.
Exception: immunize all volunteer conduct except: B. The dividing line should be between: (1) Those functions that "rest on the exercise of judgment and
willful and wanton misconduct, conduct outside of the discretion and represent planning and policy making, fraught with social, political or economic questions for
scope of the charitable duties, and bad faith conduct which there would be governmental immunity; and (2) Those functions which involve the implementation and
execution of such governmental policy or planning for which there would be no governmental immunity.

Public Duty Rule: Where municipal immunity has been abolished, many apply the ?public duty? doctrine to limit
the scope of government liability. A duty that is owed to the public at large, such as the duty of police to protect
citizens, is not owed to any particular citizen, and no liability exists for failure to provide police protection in the
absence of a special relationship between the municipality and the citizen that gives rise to a special duty.

SEE City of Lowell ? fire dept. case, used hose and lowered water pressure instead of using sprinklers that
was the customary practice. Apply the discretionary function test, the decision not to use the sprinklers did not
involve planning and therefore the immunity does not apply.
 STRICT LIABILITY
Liability without fault - question of law

DUTY
D's activity imposes an absolute duty to make safe SEE Reciprocal Risk: exposing people in the community to risk that they aren?t exposing you to

BREACH

Animals Abnormally Dangerous Activity

An activity may be characterized as abnormally dangerous if it involves a substantial risk of serious harm
Wild Animals? Strict Liability to person or property even when reasonable care is exercised. Whether an activity is abnormally
1. The owner is strictly liable for injuries caused by wild animals dangerous is a question of law.
(e.g., lion or bear), even those kept as pets.
TWO TESTS
Domestic Animals? Knowledge Required Restatement (Second) ? balancing test
The owner of a domestic animal (including farm animals) is not 1. High probability of risk of harm
strictly liable for injuries it causes. Liability if the owner has 2. Likelihood of severe harm
knowledge of that particular animal?s dangerous propensities 3. Inability to eliminate risk by reasonable care* - need this one
(i.e., propensities more dangerous than normal for that species). 4. Not a matter of common usage ? customarily carried out by great mass of people in the community (in
This rule applies even if the animal has never actually injured society ? transporting gasoline not a matter of common usage in the society)
anyone. 5. Inappropriateness of location of activity
6. Danger outweighs value of activity to community (to society)

Restatement (Third)
1. The activity creates a foreseeable and highly significant risk of physical harm even when reasonable
care is exercised by all actors.
2. The activity is not one of common usage

CAUSATION

PROXIMATE CAUSE

PYRODYNE VIEW RESTATEMENT 2nd

Intervening acts of third persons serve to relieve the defendant from strict liability for harm One carrying on an abnormally dangerous activity is subject to SL for the resulting
resulting from abnormally dangerous activities only if those acts were unforeseeable in harm although it is caused by the unexpectable innocent, negligence or reckless
relation to the extraordinary risk created by the activity. Bigger than reasonably conduct of third parties
unforeseeable. Must at completely unforeseeable given the extraordinary risk to not be
liable

DAMAGES
DEFENSES
Contributory Negligence Comparitive Negligence AOR
plaintiff knew of the danger and his unreasonable conduct was Particular case P may have failed to exercise P would only be denied recovery for voluntarily encountering
the very cause of the harm from the wild animal or abnormally reasonable care in a way that invites the the hazard if she was going to receive some benefit from
dangerous activity. Courts call this conduct ?knowing? application of the defense of comparative that action, p may have her recovery reduced under
contributory negligence or a type of assumption of risk responsibility (carelessness). comparative fault.
 PRODUCTS LIABILITY
DUTY
Manufacturer or seller not to place a defective product on the market (anyone in chain of distrubution)

BREACH

MANUFACTUERING DEFECT
Product that departs from its design specifications

1. Apply Rest.2d §402A (Seller = Chain of Distribution)

A) Defective condition ? product is defective if it leaves seller?s hands in a condition not contemplated by the ultimate consumer and
B) Unreasonably dangerous - the product is dangerous to extend beyond that contemplated by ordinary consumer who purchases it with the ordinary knowledge common to the
community as to the product?s characteristics.

2. Apply Rest. 3d (Seller = engaged in business of selling product)

A) Product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product

Proving Defect - p must prove the existence of the defect and show that the defect existed at the time it left the D?s hands (e.g. deviation from design, or circumstantial evidence
showing it failed to perform safely in its normal use); or defective per se

WARNING DEFECT
Manufacturer fails to warn consumers of a material risk of danger in the use of the
product, A warning defect may also exist when the warning given is inadequate.

Is the defect unreasonably dangerous?

1. Apply 402A (CET and RUT Test)

2. Apply Rest. 3d.

A product is defective b/c of inadequate instructions or warnings when the
foreseeable risks of harm posed by the product could have been reduced or avoided
by the provision of reasonable instructions or warnings by the seller

Is the warning adequate?

Factors
1. the explicitness of the warning, consequences of failure to heed warning, must
apprise user of the nature and extent of the risks/hazards (Target user alters degree
of warning ? think hairspray case)
2. whether the warning language is comprehensible to typical user
3. the clarity of the warning (font, location)
4. Conspicuousness/prominence of the warning, and
5. the means used to convey the warning (symbols)
 DESIGN DEFECT
Exists when safety hazards in the design could have reasonably been eliminated. A design defect can be found if a reasonable, safer, cost-efficient design was technologically feasible when
the product was sold that would not unduly impair the overall utility of the product.

WHAT IS AN UNREASONABLY DANGEROUS DEFECTIVE PRODUCT?

APPLY 402A APPLY REST. 3rd PROVING DESIGN DEFECT

A) Consumer expectation test (CET) ? asks whether the product is more A product contains a design defect when the Circumstantial Evidence
dangerous than the ordinary customer would expect. Used when foreseeable risks of harm posed by the product Under CET, P must produce evidence that the product failed
consumer expectations about how products should perform under could have been reduced or avoided by to satisfy the ordinary consumer expectations as to safety. In
particular conditions will be in the realm of jurors?common experience. adoption of a reasonable alternative design determining whether a product?s safety satisfies the CET the
and omission of the alternative design makes jury considers the expectations of a hypothetical reasonable
Plaintiff must prove:
consumer, rather than those of the particular P. (No experts
(1) that the D manufactured or sold the product, the product not reasonably safe. needed)
(2) that the product was unchanged from the date of sale
(3) that the product was used in a reasonably foreseeable manner, Design defects: factors relevant in determining BIC Rule: If a product is designed so that it is reasonably
(4) that the product did not perform as safely as an ordinary consumer whether the omission of a RAD renders a safe for the use intended, the product is not defective even
would have expected, product not reasonably safe: though capable of producing injury when the injury results
- Magnitude and probability of the foreseeable from an obvious or patent peril.
(5) that the plaintiff was harmed, and
(6) that the product?s design was a substantial factor in causing the harm. risks of harm
- Instructions and warnings accompanying the Proof of seller representation ? SEE Jeep Case
product (APPY WARNING ADEQUACY
B) Risk utility test ? whether the product?s risks outweigh its Proof of safety regulation violation (Defect per se); A
ANALYSIS) product design that fails to comply with a safety statute or
utility. A significant aspect of this inquiry is whether the defendant
- The nature and strength of consumer administrative regulation renders it conclusively defective
could have removed the danger without serious adverse impact on expectations regarding the product, including (defective per se) regarding the risks sought to be reduced
the product?s utility and price. expectation arising from product portrayal and or eliminated by the safety rule. This Sets the floor ? you
Is there a safer, feasible, cost-effective, alternative design that does marketing. automatically establish BREACH / Product is Defective
not impair product?s utility? - The advantages and disadvantages of the
product and its proposed alternative design
CA Risk Utility Factors: may also be considered such as ?
- Gravity of the potential harm resulting from use of the product - The likely effect of the alternative design on
- Likelihood that such harm would occur production costs,
- Feasibility of alternative design - The effects of the alternative design on
- Cost of alternative design product longevity, maintenance, repair,
- Disadvantages of alternative design aesthetics, and
- The range of consumer choices among
SEE Leightamer v. American Motors (Jeep 2nd Collision Crash ) products.
- A product will be found unreasonably dangerous if it is dangerous to an
extent beyond the expectations of an ordinary consumer when used in an Proving availability of RAD
intended or reasonably foreseeable manner. · Expert testimony or prototype
· No experts needed if RAD is obvious
SEE Valk Manufactering v. Dr. Rang (Guy was hit by a truck with a hitch for
a snowplow and it went through the door)
Two Prong Test (Min.): First apply CET, and then RUT.

HINDSIGHT PRINCIPLE: If, upon hindsight, the trier of fact

concluded that the product's design was unsafe to consumers,
users, or bystanders then they are found liable
 CAUSATION

MANUFACTUERING/DESIGN DEFECT WARNING DEFECT

i. Plaintiff must show the defect existed when the product left the Prove that the product caused the injury & Prove that a warning would have altered the user?s
seller/distributor behavior such as to avoid the accident
ii. But for the defect, the injury would not have occurred Heeding Presumption: an adequate warning would have been read and heeded. This presumption
iii. Second Collision ? defect was a proximate cause of the enhancement of can be overcome by contrary evidence, but the burden of proof is on the Plaintiff. Often it is difficult
the injury. or awkward for a claimant to est that he or she would have followed an adequate warning. To
better enforce the duty to warn adequately, about half the states have adopted this presumption

PROXIMATE CAUSE

Manufacturers are required to consider not only the foreseeable risks arising out of intended uses of product, but also those arising from foreseeable users, third parties, and
uses
Misuse : The misuse must be extraordinary and whether the act is reasonably foreseeable is to be determined by following retrospectively the sequence of events and looking
back from the harm to the negligent act (Look at this in Hindsight - given the harm that actually occurred)
State of the Art : Manufacturers should not be liable for unknowable or unforeseeable risks in design or warning at the time of sale.

DAMAGES
DEFENSES

Comparitive Negligence (Maj.) Secondary AOR

Minority: Complete Bar to Recovery
 INTENTIONAL TORTS

ASSAULT INTENTIONAL INFLICTION OF EMOTIONAL FALSE IMPRISIONMENT

Intentional creation by the defendant of a reasonable apprehension
of immediate harmful or offensive contact to the plaintiff?s person
DISTRESS
a. Affirmative Voluntary Act Intentional extreme and outrageous conduct by the
defendant that causes the plaintiff to suffer sever A. False Imprisonment: An intentional act
i. Words alone insufficient, you need words and other acts or or omission by the defendant that causes
circumstances they put the other in reasonable apprehension of emotional distress
a. Outrageous Conduct the plaintiff to be confined or restrained to a
imminent harmful or offensive contact w/ his person. bounded area
b. Intent i. Exceeds the bounds of decency/socially tolerable
conduct a. Elements:
i. Defendant?s purpose or desire is to cause the apprehension, or i. Confinement
Defendant attempts a battery or false imprisonment and fails ii. Words alone may be sufficient
iii. Special Relationship 1. Actual or apparent barriers
ii. The person knows to a substantial certainty that the consequence 2. No reasonable means of escape
will ensue from the person?s conduct. In other words, the person b. Intent or Recklessness
i. Purpose or desire to cause such emotional distress 3. Only brief time required
acts knowing that the consequence is substantially certain to result 4. Knowledge by p usually required, belief
iii. Transferred Intent ii. Substantial certainty
iii. Recklessness (a high degree of risk of emotional harm that they were not free to leave
c. Causation/Volition 5. Challengeable?
i. But for causation and D acts in conscious disregard of the risk)
c. Causation/Volition ii. Of a Person
d. Reasonable Apprehension of Imminent Contact iii. Causation/Volition
i. Imminence of threat means no significant delay i. But for causation
ii. Affirmative voluntary conduct 1. But for
ii. Apparent ability to carry out threat (Vetter) 2. Affirmative voluntary conduct
iii. Plaintiff must be aware of the threat d. Severe Emotional Harm ? ED that no reasonable
person should have to endure 3. Words alone may be sufficient ? causing
iv. Fear not necessary p to believe he was not free to leave
v. Reasonable awareness (exception: Defendant knows of Plaintiff?s i. Reasonable person of ordinary sensibilities
ii. Evidence of significant emotional anguish iv. Intent
sensitivity) 1. Purpose or desire to cause confinement
e. To a Person iii. Intensity and duration factors
iv. Objective evidence not required but helpful 2. Substantial certainty
v. Directed at p 3. Transferred intent
BATTERY vi. Secondary parties exceptions: family members present
and known to D Shopkeeper Privilege: when a person
A harmful or offensive contact with the plaintiff?s person intentionally
reasonably believes that another has
caused by the defendant
e. Determining outrageous conduct: stolen or is attempting to steal property,
a. Intent
i. Abusing position of power ? defendants in unequal that person has legal justification to detain
i. Defendant?s purpose or desire was to cause the harmful or
relationship with plaintiff the other in a reasonable manner and for a
offensive contact or the apprehension of such contact (subjective
1. Employer/employee, Teacher/student, Creditor/debtor, reasonable time to investigate ownership of
state of mind); or
Landlord/tenant the property
ii. Defendant knew that such contact was substantially certain to
occur (subjective state of mind); or ii. Targeting p?s known vulnerabilities and susceptibilities
1. May find outrageous conduct if D targets race, sexual Reasonable Manner: probable cause to
iii. Transferred intent
orientation, sexual identity, gender status, psychological make a contemporaneous search of the
b. Causation/Volition
conditions, or other vulnerabilities in systematic ways person and objects within that person's
i. But for Defendant?s affirmative voluntary act Plaintiff would not
2. Especially concerned when p is in a ?captive audience? immediate control.
have been harmed
c. Harmful or Offensive Contact and is not able to get away from the targeting behavior
i. Harmful or iii. Repeating undesirable acts or behavior
ii. Offensive to a reasonable sense of personal dignity 1. If D engages in undesirable conduct frequently or
iii. Contact is deemed offensive if the plaintiff has not expressly or continuously as often happens in debtor oppression,
impliedly consented employee harassment or stalking situations
d. To a Person iv. Threatening or committing acts of violence
i. Person includes body or things connected to the person 1. Dickens (guy drove next to her started to yell at her)
 INTENTIONAL TORTS / DEFENSES

CONSENT SELF DEFENSE NECCESSITY

The defendant must reasonably believe that a tort A defendant whose property tort was justified by a public
Express - The plaintiff expressly consents if she, by words is being or about to be committed against himself, necessity has an absolute defense
or actions, manifests the willingness to submit to the a third person, or his property (objective
defendant?s conduct. The defendant?s conduct may not reasonable/ only reasonable force may be used) If justified only by a private necessity, the defense is
exceed the scope of the consent qualified (the defendant must pay for any damage
Deadly force is permitted if reasonably believed caused)
Implied - The plaintiff?s consent is implied when the to be necessary to prevent serious bodily injury
plaintiff is silent (or otherwise nonresponsive) in a situation This privilege trumps a property owner?s right to defend
Limitations his property
in which a reasonable person would object to the
defendant?s actions. 1. Reasonable Force - based on circumstances
1. Apparent ? based on actions did the person consent (weapon used?)
2. Effective Consent
2. Retreat Rules (deadly force only)
3. Emergency - When immediate action is required to
save the life or health of a patient who is incapable of 3. Verbal Provocation
consenting to treatment, such consent is ordinarily
unnecessary. Courts generally say that consent is ?implied 4. Excessive Force
in fact,? but it probably is more accurate to say that the
treatment is privileged. 5. Aggressors cannot use the right to self defense
a. Even in an emergency situation, however, a competent unless they abandons the fight, withdraws from it
and conscious patient?s right to refuse treatment cannot and gives notice to his adversary that he has
done so. An act of withdrawal must be so clear.
be overridden.

Vitiation of Defense
1. Exceeding Consent
2. Fraud, Mistake, Duress
- Consent by mistake is valid consent unless the
defendant caused the mistake or knew of it and took
advantage of it.