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Strategies Identify elements and match them to facts


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Particles and gasses can be considered objects and courts consider them causing them to enter property trespass.

  • Burns Philp Food v. Calvea Contl. Freight. FACTS: Calvea counter-claims for fence mistakenly built on their land Holding: Burns Philp is liable for trespass because of fence, even though it was accidental. (Trial court wants to require notice to trespassers, but higher court overrules)

  • Tresspass to chattel – Intentionally interfering with use or possession of chattel

    1. No physical harm requirement – must still pay for Π’s loss of possession

    2. assumption that one can hide chattel to keep it safe

    3. ∆ must only pay damages – not full value of property

  • Conversion – intentional interference w/ Π’s possession or ownership so substantial that ∆ should be required to pay full value.

    1. ∆ must intend to take property. Mistake of ownership NOT a defense

    2. 4 factors to differentiate from trespass to chattels:

      1. duration of dominion

      2. good or bad faith

      3. harm to property

      4. inconvenience to Π

    3. Ways to commit

      1. acquiring possession (purchasing stolen goods is usually coversion)

      2. transfer to third person (delivery by messenger service to wrong person)

      3. withholding good – refusal to return goods to owner for substantial time (e.g. parking attendant refuses to return Π’s care for a day)

      4. destroys or fundamentally alters good

    4. Remedy is forced sale: ∆ pays value for goods but gets to keep them.



    Strict Liability


    1. Theory

      1. Reciprocity – private gain enhances public good; SL is appropriate in instances of dangerous behavior b/c such behavior is non-reciprocal. (In negligence, it is OK not to pay injured party in non-negligently caused car accident b/c injured party may be on the other side next time.)

      2. Evidentiary Problems – in cases where there would be evidentiary problems w/ negligence rule, best way to ensure safety is w/ SL, but must limit this to what is reasonably foreseeable, not absolute liability.




    1. Worker’s Comp – evidentiary problems

      1. As industry grew, workplace injuries became commonplace

      2. Scientific development led to view of workplace as a manageable system.

      3. Workers couldn’t win lawsuits because evidentiary burden was too great

        1. B < PL

        2. Must evaluate workplace set-up and propose alternative that is safer.

      4. States imposed workers comp. regimes for public policy

        1. Plaintiff no longer has burden of proof.

        2. Employer has two choices:

          1. pay for safety precautions

          2. pay for the injuries  cost of doing business

        3. Employer will institute changes when it is efficient to do so.

          1. Creates incentives for employers to make conditions safer

          2. Under negligence, there was no such incentive, because Plaintiffs couldn’t succeed in proving

      5. Tradeoffs for both sides

        1. Workers are trading their tort right (variable with high damages) for workers comp (fixed right with limited damages)

          1. 2/3 of wages under workers’ comp.

          2. No damages for pain and suffering.

        2. Employers now have to pay for all injuries, but the damages are limited.

      6. NY Central RR Co v White – Upholds NY Workers’ comp regime as constitution.




    1. Uncommon Usage (Reciprocity)  Reylands v. Fletcher

      1. Reylands  Miller who installed a reservoir. There were abandoned mining tunnels under his property. Reservoir leaks into tunnels and floods mine shafts. Strictly liable

        1. Distinction between natural and non-natural use  something that man has brought onto the land and it escapes and causes mischief

        2. Over time courts began to understand “non-natural” as risky and uncommon.

      2. Others are not able to protect themselves (so what?)

      3. Reciprocity Rationale

        1. risks that are common in the community: both parties are likely to engage in them – equality (loss lies where it falls)

        2. “abnormally dangerous” and “not common in the community” create an inequality: Actor is doing something exceptional, it imposes an unequal risk. It’s fair to make actor pay for inequality

      4. Parallells to workers comp:

        1. negligence regime doesn’t provide proper incentives

        2. SL regime provides incentives for reduction in risks.

        3. There is a safety rationale for the choice in regime.

    2. Negligence v. Strict Liability

      1. Negligence – reasonable care determined by external standard. Reduces risk below level that would exist in fully compensatory world; compensates for death and serious injury with added safety

      2. Strict Liability – reasonable care determined by internal standard. Reduces risk to a level that balances cost-benefit equation, appropriate for abnormally dangerous (non-reciprocal) activities and evidentiary gaps

      3. If ∆ has more information about components of care than the court, apply SL, if court or Π has more information, negligence should apply.



    Negligence


    1. Elements

      1. Duty – Question of law  Did ∆ owe a duty of care to Π to prevent/avoid harm?

      2. Breach – Did D’s conduct fall below applicable standard of care?

      3. Injury – Did Π suffer injury?

      4. Causation – was failure to meet standard of care the cause of harm to Π?


    DUTY


    1. Duty in general

      1. Economic calculus  Duty when B


      2. Question of law – decided by judge

      3. Even if there is unreasonable conduct, causation and injury, lack of duty means no liability

      4. “Easy” duty  physical injuries. Obvious that driver must be careful

      5. Reasonable foreseeability If you can foresee it, you can prevent it.

        1. It will determine what types of risks actor will contemplate in deciding whether or not to take a certain safety precaution

        2. Objective standard  What you should have thought about.

      6. Privity  requiring a relationship between tortfeasor and victim

        1. Severely limited liability in early common law (Winterbottom – wheel manufacturer not liable for injuries to coach driver, since he didn’t buy part himself)

        2. Imminently/inherently dangerous products – Thomas v. Winchester recognized duty for products that are likely to cause harm (e.g. poison)

        3. Privity Requirement eliminated in Macphaerson v. Buick Motors

          1. manufacturer has duty to end user

          2. social conditions

        4. Duty to foreseeable third parties Mussivand v David  ∆ sleeps with Π’s wife. He gives her STD – she gives it to husband. ∆ held liable – duty

      7. Reasons to limit duty

        1. Bankruptcy  too much liability keeps important victims from collecting

        2. Social costs  allowing lawsuits to go through could impair social valuable activities (Strauss v. Belle Realty Co. – Π sues power company for injury during blackout)

        3. Economic rationale  won’t create safety benefit

      8. Social Costs of Duty

        1. Impact on third-party relationships

        2. Grounds for limiting liability of defendant

        3. Ripple effect on behavior could be an adverse consequence.

      9. Alternatives to duty (three):

        1. Bright line rules

        2. Raise evidentiary burden placed on plaintiff (see emotional distress cases later)

        3. Adopt a strict liability rule  would avoid all of the evidentiary problems that Henderson identified. Instead of denying liability, change the liability rule.




    1. Failure to Act

      1. No general duty toact

      2. Exceptions

        1. Business premises must furnish warning and assistance to business visitor (applies between employers and employees)

        2. ∆ caused injury  duty to assist, even if acted w/o fault.

        3. Assumption of duty once ∆ begins to rescue, there is duty of reasonable care

          1. dissuades others from assisting

          2. mere promise to assist may create duty if Π has reliance interest

        4. Duty to control others  e.g. children

      3. Special relationships (Tarassoff- therapist fails to warn victim that patient expressed desire to kill her)

        1. Relationship creates an“affirmative duty”

        2. In Tarasoff, it’s hard to argue that doctor created risk; he perhaps could have controlled it.




    1. Premises Liability: Duty to others on property:

      1. Trespasser:

        1. Can’t engage in intentional or reckless conduct that would result in harm to trespasser.

        2. No negligence liability

        3. Exceptions:

          1. constant trespass on limited area (creates constructive knowledge); e.g. railroad knows tresspasers have worn a footpath across tracks

          2. discovered trespassers; e.g. conductor sees trespasser on tracks

          3. trespassing children; e.g. duty to fence swimming pool

      2. Licensee: Landowner has given consent; social guests

        1. constructive knowledge of presence; e.g. City knew people were swimming in/using

        2. failure to take measures leads to implied consent

        3. Duty of care:

          1. Refrain from harming them

          2. Duty to warn of dangers that are not obvious (latent hazards, traps)

          3. Duty of reasonable inspection; liability for condition of the land. Actively creating risk, or intentionally altering condition of land in a harmful matter creates liability

      3. Invitee: on land with owner’s permission, material benefit to landowner

        1. ex. Customer in a store, visitor to the MOMA

        2. ordinary duty of care: Maintain the land so it is reasonably safe (affirmative action required to repair defects)

          1. duty of reasonable inspection

          2. Duty to protect from third parties

        3. Open to the public  duty to all those who enter area open to public (even unsolicited salespeople who come to shop)

        4. Scope of invitation person who uses private bathroom not open to public becomes invitee

      4. Justifying the categories Invitees have most protection because they are providing a material benefit. Trespassers are less foreseeable.

      5. Minority of courts have Rejected categories in favor of reasonable person standard Rowland v. Christian (man cuts hand of bathroom faucet) argues to abolish categories. Just because a man is a trespasser, the value of his life and limb is not less.




    1. Pure Economic Loss

      1. No duty to compensate for pure economic loss

      2. Floodgates problem

      3. Predictability  don’t know consequences of actions; makes it impossible to do accurate B

      4. Bankruptcy Problem  limit liability because more important to compensate physically injured Πs.

      5. Modern exception:

        1. Injury to Π was foreseeable

        2. Identifiable limited class – limited number of Πs would permitted to recover

        3. Blameworthy conduct committed by ∆




    1. Pure emotional Harms

      1. ED may seem like a social costs similar to pure economic loss

        1. No physical injury

        2. Huge number of possible claimants

      2. Accompanied by Physical Impact

        1. Liable for all emotional or mental suffering that flows from physical injury caused by ∆

        2. Parasitic damages

      3. Mental suffering w/o physical impact

        1. Nearly all courts deny recover where there are no physical symptoms

      4. Physical injury without impact

        1. When ∆’s negligent act physically endangers Π, does not physically harm, and causes emotional distress with physical consequences, there is right to recovery (Robb – man’s car caught in rut by RR tracks, oncoming train)

      5. Fear for safety of others  courts are split. Some allow recovery for those in “zone of danger” (pedestrian almost hit by care can recover for ED from seeing her child hit).




    1. Duty to the unborn can infant recover damages

      1. Child born alive  can recover for damage in utero (DES Cases)

      2. Still-born  courts are split on recovery

      3. Pre-conception injuries  courts are split on recovery


    Breach – Reasonable Care Requirement


    1. Unreasonable risk Π must show that ∆’s conduct imposed unreasonable risk at the time of action. Hindsight doesn’t matter.

    2. Reasonable person Objective standard. inHHMust be what a reasonable person of “ordinary prudence” would do.

      1. Effectively creates SL for those unable to conform to reasonable person standard, indicating that they should not engage in a given activity.

        1. Evidentiary problem  Have to judge by something outside of the person’s own head. People may lie about their own situation/capabilities

        2. Reciprocity problem  some people doing certain activities is overly dangerous (e.g. blind person driving)

      2. Creates reciprocity – we act assuming that everyone else will also act reasonably.

      3. Subjective standards – usually favor defendants by reducing liability. There are cases in which we don’t want to create SL for particular class of Π’s.

        1. not abnormally dangerous

        2. socially common activity

        3. No further desirable deterrence effect from SL

      4. Expertise  Usually a higher standard. Person is held to standard of an expert in that field. If there is not enough evidence to show they used average standard of care, prove the didn’t meet minimum standard of care for profession. med/mal and informed consent)

      5. Disabilities  held to standard of person with that disability

        1. Physical characteristics

        2. Mental characteristics

      6. Intoxication is NOT defense

      7. Children  child is held to reasonable person of age/experience. Held to adult standard in potentially dangerous adult activity (dangerous activity normally pursued by adults – e.g. motorcycle)

      8. Custom  has evidentiary value but not conclusive. Custom is nothing more than economic choice made by actors in market place – bad choices made because of incomplete information

        1. ∆’s side: showing that everyone else in industry did same thing is not necessarily exculpatory (T.J. Hooper – tug still liable for not having radio, even though not industry standard to have one).

        2. Π’s side: proof that ∆ did not take same precautions as rest of injury is suggestive of negligence, but NOT conclusive

      9. Medical Community doctors get to decide their own standard of care through guidelines.

        1. Medical profession can do this because they are in business of selling safety; incentives to provide too much safety.

        2. HMO Control may turn doctors into normal economic actors – no more reason to rely on custom w/in medical community.




      1. Emergency  must behave like a reasonable person would in such an emergency (where quicker action is required and less time for reflection

      2. Should anticipate the conduct of others assume others will act reasonably (reciprocity); may have to anticipate negligence by others; not required to anticipate crimes (unless has special knowledge)




    1. Learned Hand Formula B < PL

      1. Carroll Towing  Barges are tied to the piers one to the next and tied to pier behind. Tug is sent out to undo end barge, disengage cross support line between piers. One barge crashes into a boat and sinks

      2. The three variables

        1. Limitation of comparison

        2. B shows that we care about ∆’s liberty interest

        3. PL equation allows precautions to vary – ex. Need better precautions against frozen pipes bursting in colder climates

      3. Cost benefit exercise forces you to systematically think through all the advantages and disadvantages of the proposed courses of conduct. There must be a tradeoff – how to tradeoff is a hard question, but the process here is at least systematic.

      4. Evidentiary burden  Π should show how ∆ could have taken more precautions, e.g. woman sues hotel for negligence when someone broke into room. How should hotel have prevented this? Greater security? Better locks? Checking if door was locked?




    1. Real Negligence Standard is B > > PL

      1. B>PL says that liability is about minimizing social costs – Doesn’t comport with common notions of fairness. Studies find over and over that people find cost-benefit tradeoffs unfair, inappropriate, and/or reprehensible.

      2. Normative justification – interests

        1. Favoring security interests over liberty interests leads to “disproportionately greater than” standard (B >> PL).

        2. Force defendant to respect Plaintiff’s rights, and prioritize physical security interests.

      3. Punitive damages: If D makes decision to be negligent, he will be his with punitive damages

        1. Law will force D’s to abide by negligence standard greater than cost-benefit

        2. Behavioral component of negligence law is important: payment of damages doesn’t excuse you of behavioral requirements




    1. Negligence Per Se

      1. Unexcused violation of safety statute by ∆ is “negligence per se,” and conclusively establishes liability.

      2. Statute must apply to facts. It must be meant to guard against the very kind of injury in question

        1. Π must be a member of the class of persons it was designed to protect

          1. Sometimes, however, courts will extend logic of statute (Bayne  statute says guardrail to protect “employees” but includes invitees)

        2. Statute Must have been meant to protects against particular kind of harm for which Π seeks recovery

          1. Victor v. Hedges – parking on the sidewalk regulation was meant to prevent injuries from walking around cars or bumping into them, not being hit by another car that drives up onto curve.

        3. Gorris v. Scott – violation of statue to pen animals on ships meant to prevent disease not negligence per se if animals wash overboard. This seems illogical – fence required for limited purpose should cover greater purpose as well.

      3. Safety Exception: Sometimes violation of the statute is for a safety reason.

      4. Additional exceptions: ∆ was reasonably unaware of occasion to coply, made a diligent attempt to comply, or the was an emergency (example: owner of care has no way of knowing his breaks are out, in violation of regulation requiring functional brakes).

      5. Compliance with statute is NOT dispositive of claims against ∆.

      6. Some jurisdictions recognize contributory negligence per se if Π was violating statue at time of accident




    1. Res Ipsa Loquitur

      1. “The thing speaks for itself”  allows Π to point to fact of accident and create inference that ∆ was probably negligent. Allows negligence on circumstantial evidence

      2. Byrnes v. Boadle  barel of flour falls out of window of ∆’s shop onto Π’s head as he walks by on street below. Barrels don’t usually fall w/o negligence. ∆ must show that barrel didn’t come from his shop, or was not dropped by negligence.

      3. Three elements

        1. Injury doesn’t ordinarily result from absent carelessness on someone’s party

        2. exclusive control by ∆

        3. No contributory fault from Π

      4. Additional elements:

        1. No direct evidence of how ∆ behaved in connection with event

        2. Come courts require that evidence of what really happened be more available to ∆ than to Π

      5. Res ipsa allows case goes to jury (meets burden of production). Without res ipsa, would be directed verdict for ∆

      6. Rebuttal Evidence:
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