September 2, 1998

Intent of laws, statutes must be looked at with the intent of the law in mine.

There are some statutes that try to cover all people. Will find a secondary purpose even if original purpose was something else.

Key in ignition statute – lock car and take keys with you.

Circumstances

Prevent theft

How to interpret a statutory violation (on an exam). Look at all aspects.

Assume 16 year old with new drivers license (D), tailgating on freeway because he was late. Guy being tailgated was driving very slow (P) gets upset and runs car accidentally into the center part of the freeway.

A statute requires no tailgating and the reason for it is to prevent rear-end collisions.

Standard of care: don’t tailgate

Primary purpose: rear end collisions

Secondary purpose: prevent any kind of accident

Problem with P being in class of people meant to protect? All drivers should be protected.

Did D violate statute? Yes, he was tailgating.

Any excuse? Tailgating because he was late for class.

Was it necessary to violate the statute? Could say it was dangerous to slow down as other driver was driving too slow.

Assumed it was negligence on part of D

Always consider opposite arguments on an exam.

Was tailgated of benefit to society? No.

Other alternatives: could have driven around slow guy

Severity and likelihood of risk? High on a freeway.

When using reasonable care standard show causation and damages.

How to prove negligence?

Circumstantial evidence: ex: long skid marks,

Inference evidence: age, location of evidence

Res ipsa loquitur

Barrel fell out of a window and hit someone.

Held: would not have happened without some negligence. Barrels don’t just fall out of windows by themselves. Established idea of res ipsa loquitur

3 Requirements of Res ipsa loquitur:

1. doesn’t happen without some negligence
2. D in control of instrumentality
3. Neither P or 3^rd party contributed (this has changed a little in recent years)

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September 9, 1998

Cases in which res ipsa loquitur applies:

Often involve falling objects, bricks, falling window panes, beer keg, truck falling off a overpass, ski lift chair falling, amtrack train falling off a track, wrecking ball rolling onto a car, elevators falling, wheels falling, collapsing structures, sinks, livestock get loose, one ton bull that fell off a cliff onto a car, gas, electricity escaping, explosions of boilers, collision of railroad trains, motor vehicles - cars leaving highway going in to a ditch, streetcar crashing through a restaurant, cars colliding with stationary objects, cars rolling down hills, x-ray machine flipping over, bread with glass baked inside it, tooth filling in candy, glass in butter, medical mal practice, chewing tobacco with human toe in it

res ipsa loquitur (the thing speaks for itself) – operates as a type of circumstantial evidence, "facts or circumstances proved or known, from which existence or nonexistence or another fact may be logically inferred or deduced through a rational process.

res ipsa loquitur has 3 conditions:

1.accident does not ordinarily occur in the absence of someone’s negligence

2.caused by an agency or instrumentality within the exclusive control of the defendant

3.it must not have been due to any voluntary action or contribution on the part of P

Korman case: decided to use reasonable patient standard of care

Been looking at duty a lot.

- was the P foreseeable?

- is there a duty to act?

Need to show the above before can answer if there is a duty owed.

Then need to deal with standard of care and whether that standard was met.

Palsgraf v. Long Island Railroad Co.

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September 14, 1998

DUTY

1. was the duty owed to this P?

1. was there an affirmative duty to act?
2. GR = no duty
3. May be an affirmative duty to act if:

1. special relationship - harper - p116 and Farwell p- 125
2. responsible for P's peril
3. undertaken aid
4. gratuitous promise (GR: no duty, some courts (CA) duty is
5. duty to warn or control conduct -

in order to have a duty there must be reasonable foreseeability that the incident could have occurred.

If D owed P a duty what is the applicable standard of care?

General duty of reasonable care under circumstances? Modifications?

Special duty? Applicable statute? Custom?

Breach of duty - did D breach standard of care? What happened? Res ipsa loquitur77 apply?

Balancing - utility of conduct v likelihood and gravity of harm

Taking exams:

1. write down all causes of action (make a grid and then write down what to analyze)

1. Palsgraf v RR
2. Palsgraf v passenger
3. Passenger v RR

example case: P 366 Palsgraf

vicarious liability so both P and D have cause of action

How to chart out exam outlines:

Courts generally have refused to require a stranger to render assistance to those in need.

Why would courts not impose good Samaritan like rules?

• maybe because it could make too many people liable

Why would you want to impose a duty?

• save lives
• make others responsible
• would encourage timid people to help out

Should we have laws that reflect society’s views?

Special relationship: where P had entrusted care to D, look for a P that is particularly vulnerable, if D had power over P, economic issues

Do people have a duty to rescue someone in an emergency situation? Only if D had negligently caused the emergency situation which created the emergency situation. (ex car accidents where D was at fault)

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September 16, 1998

SPECIAL RELATIONSHIPS – characteristics:

• P vulnerable and D custodial
• D has an economic advantage

Gratuitous promises

GR: no duty

Exc: some states – foreseeable reliance

Foreseeability of the harm to the plaintiff

Degree of certainty that the plaintiff suffered injury

Closeness of the connection between the defendant’s conduct and the injury suffered

The moral blame attached to the defendant’s conduct

The policy of preventing moral harm

Extent of burden to defendant

Consequences to the community and imposing the duty

Availability of insurance

Hard to know where to draw line if you are going to impose duty here…?

Gratutitous promise to render service or assistance:

Mere gratuitous promise imposes no tort obligation on person making promise, even if person relied on promise and suffered damage

Exception: when D has undertaken to perform the promise; D has same duty to perform promise with reasonable care (ex: hotel promises to get a guest a doctor; this promise must be carried out)

When there is foreseeable reliance on a promise there is usually a duty even if promise was gratuitous.

Privity: ex: If I see a widget to Cindy, then Cindy lets Susan use it, can I be liable to Susan? No. There was no privity between myself and Susan.

Strouss case on Monday!

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September 21, 1998

Discussion of Strauss v. Belle Realty Co

Worried that if D was found negligent there would be crushing liability

Sometimes policy concerns can trump what would otherwise be seen as a liability.

Duty to warn or control the conduct of P:

Geneal rule: no duty

Exception: Tarasoff – p140 – special relationship and foreseeable/readily identifiable victim and therapist know or reasonably should know patient presents serious damage or violence to others

Exception: negligent entrustment

GR: duty id D knows or should know entrustee likely to harm 3d party

Exc: some courts: no duty if transfer title

Some courts only control one factor (Vince p152)

Liability to third parties by drink providers

Commercial provider

• traditional – no liability
• exception – dram shop acts
• exc. – negligence per se
• exc. – CL negligence

• General rule: no liability for intoxicated adult; some courts have held liability for intoxicated minor
• Feis cts: liability for serving obviously intoxicated adult – kelly, p157

Vince v. Wilson discussion

1. Need to have dangerous instrumentality for negligent entrustment
2. Need to have a situation where D knows or should have known that the person given the instrument is not likely to use it safely

Tarasoff a key case, Palsgraf a key case – is good to remember the names of the key cases so we can cite them in the exams

Liability can be found if negligent in hiring, retaining or supervising someone.

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September 23, 1998

BOARD NOTES:

Duty of landlords to tenants:

At time of transfer

Patent danger: no duty

Latent danger: Warn Or Make Safe (WOMS)

After transfer

General rule: no duty

Exception: landlord fails to make repairs

Maj: duty if lease or negligence per se

Some courts: duty if promise (and reliance)

Duty owed to 3^rd parties by drink providers:

Commercial providers:

Trad: no duty

Exc: dram shop acts

Exc: negligence per se

Exc: common law negligence

Social hosts:

GR: no liability for intoxication

Some courts: liable for intoxication

Few courts: liable …..

Duty owed by landowners to person coming on land:

(Carter v. Kinney – p. 165)

Majority – common law categories

Trespasser

Known adult trespasser

Child trespasser

Licensee

Invitee

Minority: (CA) reasonable care under the circumstances

(Rowland v. Stanley – p. 172)

§ 1714 CC "Rowland factors"

Duty regarding common areas

WOMS and inspect and discover

Duty of landlord regarding criminal activities

Off premises – no duty

On premises – reasonable care if foreseeable

Duty of merchant regarding criminal activities:

Some courts: no duty – Williams p180

Some courts: duty if high crime area

Some courts: duty if especial temptation

Some courts: duty if prior similar incidents

Some courts: duty if foreseeable

Landowner liability

Landlords do not have a duty of reasonable care under the circumstance. Only a limited duty under the circumstances.

Most of the time there must be reasonable care under the circumstances – then a land owner may have a duty of care

What about natural accumulation? Is there liability? No, just a natural condition and no liability.

How about if using the land for recreation purposes and got hurt? Is landowner liable?

• no land use for recreational purposes, owners are usually immune by statute because government wants to encourage people to open their land
• Great America incident: man was an invitee because GA made profit. When he climbed fence he became a trespasser

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September 28, 1998

Duties owed to persons coming on land:

1. Trespasser (duties by landlord or willful or wanton – then landlord may be liable (like digging holes to trap trespassers) – only person that a duty of care is not owed to is trespasser
2. Known adult trespasser – landlord needs to know that people are on land (like if they use land as a shortcut) as to the part that is being used, landlord has duty to make safe that area, or warn the known trespassers of the problems.
3. Child trespasser – some special conditions apply to children (see page 170)

• landowner knows that where the condition exists, children are likely to trespass
• landowner knows condition could involve an unreasonable risk of death or serious bodily harm to children
• children because of their youth do not discover or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it
• the utility of maintaining the condition and burden of eliminating the danger are slight as compared with the risk to the children involved
• possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children

1. Licensee – warn or make safe natural conditions – social guests you let or permit on your property; person happens to drop in uninvited
2. Invitee – have to inspect and discover any dangerous conditions, and then warn and make safe; invited persons on property

Rowland court: p 172: established a reasonable care under the circumstances. Series of factors in determining if CA should deviate from general rule (everyone is responsible for an injury occasioned to another by want or ordinary care or skill in the management of his property) basically this is just reasonable care.

• use reasonable care under circumstances, and warn or make safe any dangerous conditions
• Rowland court did not think the traditional rules were modern and needed some improvements

Rowland factors to determine whether to keep general rule:

1.Forseeability of harm

2.degree of certainty P suffered the injury

3.closeness of connection between D's conduct and injury suffered

4.moral blame attached to D's conduct

5.policy of preventing future harm

6.consequence to the community of imposing a duty to exercise care

7.availability, cost, and prevalence of insurance

if statute to keep land safe, there may be negligence per se

when leasing land, there is duty to warn of any obvious dangers

Things for which a landlord can be held liable for:

1. hidden danger in which landlord was aware, but tenant was not
2. premises leased for public use
3. premises retained under landlord’s control, such as common stairways
4. premises negligently repaired by landlord

landlords cannot control everything; places off premises

should make public spaces in a building safe

Immunities (will not be tested on charity, interspousal immunities; differences between discretionary and ministerial disparities)

Parent/child suits – were originally barred by common law because they led to disharmony in the family

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September 30, 1998

Do a practice exam and let her critique it.

Review of Zikely case:

Different than Holodock because in this case the mother had control over the dangerous situation.

Is drunk driving with a child in the car a negligent situation? Yes.. child is just like any other passenger. Owe a duty.

Most courts say negligent supervision if give a child something that causes harm.

Negligent entrustment –

Parent v child / child v parent

CL: immunity

ML: majority: no immunity

Some states (NY) – immunity for negligent parental supervision (Zikely)

Some states (CA) reasonably prudent parent

Governmental immunity

CL: immunity

ML: liability of municipality (majority)

Proprietary function – no immunity

Governmental function – immunity (Riss p198)

Exception: special relationship (Cufly p204)

Assumption of duty to act

Knowledge inaction leads to harm

Direct contact with victim

Victim relies (on promised help)

Police departments: not responsible for an individual citizen (proprietary v. governmental duty).

Special relationship between victim and police department???

Public entities have lower duties of care.