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Torts Outline

  1. Purpose of Tort System

Part One: Physical and Mental Harms

tentional Torts

  1. A. Physical Harms

  1. Elements of Battery

(1) Intent to cause contact and substantial certainty that act will cause contact

a. Intent to contact is necessary, no need to intend to cause pain

b. If the contact causes harm, whether you meant it to or not, you have committed a battery.

(2)Voluntary act

(3) Harmful or offensive contact

(4) Vosberg v. PutneyHolding: once defendant has committed a battery, he is liable for all harms resulting regardless of whether they were foreseeable or intended. Intent to kick is enough for liability, no need for intent to hurt.

  1. Transferred Intent—If A intends to hit B and hits C by mistake, the intent meant for B is transferred to C—since we now have intent and hit, A is liable for battery caused to C.

  1. Defenses

  1. Consensual Defense to intentional tort—Consent bars liability

  1. Mohr v. Williams—patient consents to surgery on right ear. While she is under anesthesia, the doctor finds a problem on left and operates on it.

  1. Holding: TC declares this a battery—an unlawful, unnecessary touching. Lack of wrongful intent does not relieve doctor of liability. But damages were minimal because of lack of wrongful intent. Consent covered substantially similar procedures—court felt this was not substantially similar. Defense should have raised the emergency rule, but didn’t (anesthesia is dangerous and he avoided more harm by operating immediately—implied patient’s consent because likely would have consented had she known.

  1. When an individual gives consent, recovery is barred unless consent was obtained by mistake, fraud, or duress.

  2. Hudson v. Craft—Plaintiff participates in illegal boxing match and then sues the promoter for because he suffered injuries. Promoter is liable. A law was passed to regulate boxing matches in order to protect the players, because they are not in a position to protect themselves.

  1. Holding: AC reverses TC holding. Plaintiff was barred from consenting by the regulations which meant to protect him from excessively dangerous fighting. Promoter is liable as a principal.

  1. Implied Consent: Athletic Injuries. Athlete consents to any injuries that naturally happen on the field, as a result of regular play. Does not consent to the breaking of rules. However, the athlete knows that rules will be broken when consents. Recovery will depend on the nature of the injury, and the nature of the infraction. There is a tendancy to avoid tort liability to prevent over regulation of the game.

          1. 2. Non consensual Defenses
  1. Insanity-McGuire v. Almy—Plaintiff (nurse) knew defendant had violent history. In the midst of a tantrum, with threats to do harm and actual violence, nurse goes into room to take a stick away from defendant. She fails and gets hurt.

  1. Holding—Plaintiff did not consent by entering the room—she did not foresee the specific violent behavior. Since patient intended to cause harm, she is liable.

  2. Rule: As long as a person is capable of informing an intent to cause harm, state of mind is irrelevant. Delusion is no defense.

  3. Policy rationale—Allowing recovery when an insane person commits a battery encourage care takers of the insane to be on their guard.

  1. Self-defense—Courvoisire v. RaymondPlaintiff slept above his jewelry store and heard someone break in. He gets rid of the men and chases them to the street. The shots attract Raymon (D) who is a sheriff comes to seen and shoot plaintiff (store owner) who tries to approach him?

  1. Issue: Would a reasonable person in Raymond’s situtation think his life was endanger and so be entitled to self-defense defense?

  2. Holding: Yes. Raymond was acting in self-defense. Judgment for plaintiff is reversed. Person is justified in using force against someone who reasonably appears to be threatening actor, even if that belief is mistaken.

  3. Rule: Self defense is okay against an immediate threat, belief that one is in danger must be reasonable, force of defense must match force of threat. A response of excessive force is not allowed.

  4. injuries to innocent third parties—Morris v. Platt—If use of force is reasonable, defender who shoots to save his life is not liable to innocent third parties who get hurt in the interim. Innocent victim can sue original assailant in tort—original assailant created an unreasonable risk of harm, and injury to an innocent third paty was foreseeable.

  1. Defense of property M’Ilvoy v. CochranCochran was tearing down M’s fence. M used reasonable force to protect his property and causes injury to Cochran. Cochran brought action for assault and battery.

  1. Issue—can a landowner protect his land with force, without first asking trespasser to leave?

  2. Holding: Can’t protect property with force, unless trespasser is using force. Must ask trespasser to leave, if trespasser doesn’t you can repel force with reasonable force. If person keeps coming back but doesn’t threaten harm, go to the police!

  3. Value of life is higher than value of property-must try to avoid force if you can.

  4. Money v. Property—money is fungible, property is not. There is a thin dividing line between personal property (life’s work) and personal identity. Sometimes force will be justified in protecting property that is an esstential part of identity.

  5. Houses—more justification in using force when someone enters your house. But split—is house property, or does entering house constitute a threat to life?

  1. Retreat—Jurisdictions are split as to whether reasonableness requires a retreat in the face of a threat—in an effort to prevent violence.

  2. Spring guns-Bird v. HolbrookHolbrook placed a spring gun in garden to prevent theft of flowers. No notice of gun was posted. Bird attempted to recoer a peahen that flew into garden and was severely injured when gun went off (He had knocked and tried to access garden legally first) Bird sues for damages. Def. argues trespasser can not benefit from his own wrongful acts.

  1. Holding: TC and AC find for plaintiff.

  2. Rule: Dangerous means used to deter trespassers must be warned about—life is more valuable than property.

  1. Recapture of Chattels—Kirby v. Foster-Plaintiff works for defendant as his bookkeeper. Def. thought bookkeeper (P) had lost $50 and so docked it from his pay. Later, P is given money to pay employees. He pockets $50, thinking it is rightfully his. Employer (D) thinks he is stealing and tried to recover it with force, injuring the bookkeeper (P) Plaintiff sues/

  1. Issue: Can you use force to regain possessions that are no longer in your possession?

  2. Holding: Judgment for plaintiff.

  3. Rule: Once chattel is no longer in your possession, you cannot use force to recover it. Must resort to legal redress. Conflicting claims should be settled in a court.

  4. Exception: Hot Pursuit—if you think you can immediately recover something, you can take law into your own hands and try to get your item back. (policy: since taker knows he is wrong, won’t fight so hard, in court hard to prove item is yours—one word against another, and might not get recovery, hot pursuit is quicker justice than a court room. (can’t wait a day, month…and then try to recover by force! By that point taker has a more valid claim and liklihood for violence is higher!!!

  1. Necessity-Scope of Privilege--Ploof v. PutnamPlaintiff is sailing when storm comes up. He tries to dock at D’s dock in order to protect his boat and his family. Defendant unties the boat and sets it adrift. Plaintiff sues for damages.

  1. Holding: When trying to protect your own livelihood or property because of reasonable, immediate danger, you have the right to trespass out of necessity. However, you are still responsible for any damages you might cause. (Preservation of life is more important than preservation of property—def. should not have untied—if damage had been caused he could have sued plaintiff for damages.)

  2. Proof for Necessity: must show that only choice was between harm to self and trespass.

  3. Law of Necessity: When valuable property is at risk, or risk of injury exists, necessity defense is applied.

  1. Law of General Average Contribution (liability for damage) -Vincent v. Lake Erie-Following P’s instruction, defendant moored its boat to Plaintiff’s wharf so that plaintiff’s cargo could be unloaded. During unloading, a storm came up. The storm threw the boat against the dock and caused damage. Plaintiff sues for damages.

  1. Holding: Judgment upheld for plaintiff. (This should have been a contracts case in which case defendant would not be liable because he was acting in service of plaintiff). Here, ship owner was using dock for his own benefit, so must be liable ford damages.

  2. Law of General Average Contribution: One person should not have to bear total cost of defending a group in a case of unforeseen danger. If someone’s property interest must be violated for sake of a group (must throw property overboard to prevent ship from sinking), you treat all property on board as communal property. If ship is worth $50,000 and cargo is worth $50,000, shipowner is liable for %50 of anything thrown overboard in order to protect he ship!

  1. Public v. Private necessity

  1. private necessity—compensation awarded. (if you infringe on a person’ property because of your own private necessity.

  2. Public necessity-no compensation awarded if you trespass on property in time of war, for public good, etc.

B. Emotional and Dignitary Harms

  1. Elements of Assault--unlawful setting upon, threat to do physical harm

  1. overt act

  2. intent to cause a battery or fear of a battery

  3. victim's apprehension of imminent contact

  4. threat of immediate violence.

a. Words cannot constitute an assault

  1. b. There must be some threatening gesture or carry-outable threat of violence.

  1. Apprehension: I. De S. and Wife .v W. de S.—Defendant is looking for booze. He brings a hatchet to break into tavern. Wife of tavern owner looks out and defendant swings a hatchet at her. He doesn’t touch her, but she is damaged, emotionally. She sues for recovery and gets it even though she was never touched.

  2. Intent: Tuberville v. Savage—P puts his hand on his sword and syas that he would not “take such language from you” if it were not assize-time. D strikes him and claims self-defense from assault.

  1. Issue: If an aggressor’s words negate present intent to harm, is a person justified in using force against him anyway? Intent must be present for an assault, and where that intent is negated by words, no assault has taken place.

  2. Holding: No. D’s apprehension was not reasonable where P’s words negated his intent to inflict injury.

  3. Rule: Assault must cause real apprehension, and apprehension must have been caused by the actions of the defendant.

  1. Elements of Offensive Battery

  1. volatile act by defendant that causes injury

  2. defendant must have intent to commit offensive touching (offends dignity)

  1. Offensive Touching—Alcorn v. Mitchell—At conclusion of a trial, the plaintiff at the trial spit at the defendant after having lost an appeal. Damage was offense to dignity. Man spit upon sued—he was embarrassed in public (context is important.)

  1. Issue: can punitive damages be awarded for intentional torts?

  2. Holding: Yes. Punitive damages prevent the alternative form of retribution—violence!

  1. Elements of False Imprisonment

  1. act by defendant to obstruct or detain

  2. obstruction or detention of plaintiff

  3. intent to obstruct or detain

  4. Causal relationship

  1. Bird v. Jones—Restriction insufficient. Public highway is blocked off for a boat race. Bird wants to pass and so climbs over railing. He is told to stay where he is, or pass another way but that he cannot continue forward. He sues for false imprisonment and fails.

  1. Holding: need complete obstruction to sue for false imprisonment. However, walls are not necessary. A situation can be considered false imprisonment.

  2. Slave labor cases—indentured servitude/slavery to pay off transport debt, can’t leave under threat of injury to self or family. This is false imprisonment.

  1. Whitaker v. Sanford—Wife is held hostage on a family yacht. False imprisonment exists even thoguh wife can doe whatever she wants when yacht is in harbor. However, she must return to the boat—she is not allowed to remain on land when ship sails.

  1. Holding: This is false imprisonment, but damages are minimal. This lacks the humiliation and disgrace of most FI cases. Court finds it hard to sympathize with poor wealthy wife.

  1. Shopkeepers: protection of property is more important than freedom of movement. When detention is reasonable and an innocent person is detained, no recovery. As long as there is reasonable suspicion of stealing, shop keeper can reasonably detain.

  2. Coblyn v. Kennedy’sold man is grabbed by the arm and detained on suspicion of shoplifting. He is innocent, and suffers a heart attack out of fear. He sues for false imprisonment.

  1. Holding: awarded $12,500. AC affirms. Suspicion was not reasonable to use such force and scare the plaintiff like that.

  2. Rule: Exertion of physical power that can only be avoided by submission constitutes false imprisonment. Suspiction muse be reasonable to detain.

  1. Intentional Infliction of Emotional Distress: Extreme and Outrageous Conduct (Rest. 2§46)

  1. Wilkonson v. Downton—Defendant tells woman that her husband has been in a terrible accident and she must go to him immediately. She goes into nervous shock, vomiting etc. It’s all a joke. She sues for emotional distress.

  1. Issue: Is extreme and outrageous conduct actionable?

  2. Holding: Yes. She can recover for personal injuries. The action was calculated to cause physical harm to plaintiff, an ordinary person could have suffered like P did, effects of D’s acts were not too remote.

  3. Precedent: This is new. Prior to this emotional distress damages must be rooted in another tort. If emotional distress caused pure economic loss she could recover for that but not for personal injuries caused by distress. (?)

  1. Negligence v. Strict Liability—Analytic Foundations

  1. Introduction—

We choose SL over negligence whenever the negligence inquiry suffers from evidence problems that makes it hard for plaintiff to show that defendant was negligent (Geistfeld). SL picks up where negligence is too limited by evidentiary problems—with SL no need to show fault.

  1. Last Half of 19th c.

  1. Brown v. Kendall—First case post abolition of writ system where court must decide between negligence and SL. Two dogs fight. Defendant tries to separate them. In the attempt, he hits plaintiff in the eye. Plaintiff sues under trespass on theory that action caused a direct and immediate harm to him. This is distinct from Vosberg (intentional act causing intentional harm-though not extent of harm v. intentional act that causes unintentional harm.

  1. Issue: Does tort of battery encompass a no fault situation?

  2. Holding: No liability for inevitable accident. (LL adds that plaintiff may not recover if p and d use ordinary care, p and d both fail to use ordinary care, or p fails to use ordinary care)

  3. Ambiguity—this holding does not declare whether negligence or SL is the rule. Does inevitable accident mean that reasonable care was used?

  4. Rule: If act is lawful (unlike kicking in Vosberg) than the mere act of injury is not enough to bring on liability. Need intent. Plaintiff has burden of proof that ordinary care was not used. Unless p shows some fault, there is no recovery.

  5. No room for SL here—need fault for recovery.

  1. Choice of Rule—Neg. v. SL

  1. Horwitz thesis of negligence as a subsidy for business is rejected.

  2. Geistfeld claims that the choice of rule will affect the cost of an activity. How much we value the activity will determine what rule we apply to it. For abnormally dangerous activities, we want to deter them so we use SL. For valuable activities, we use negligence

  1. Fletcher v. Rylands Rule: Strictly liable for escapes from land (English case) (Basis is that activity is uncommon and involves a real risk)

  1. Facts: Defendant makes a reservoir that floods P’s property. There is some indication of negligence on part of contractors, so def. could be held through vicarious liability.

  2. TC holding: Though no fault is found, TC awards damages to plaintiff.

  3. Holding on Appeal 1: A person who brings on his land something that will cause harm to another if it escapes doe not have an absolute duty to prevent its escape (rejection of SL rule of TC)

  4. Holding on Appeal 2 : But for D’s act, mischief would not have occurred. If P does not taken upon himself any risk, D is SL for any harm done because of his creation of the risk that water would overflow to neighbor’s land. People have a right to be free from harm of neighbor’s water flow!

  5. Holding on Appeal 3: An owner of land may use it for any purpose for which it might in ordinary course of enjoyment be used. No complaint if water had accumulated naturally. Since landowner (D) altered natural use of land, he does so at the peril of absolute liability for any damages! SL (Blackburn—frequently cited) Martin dissents—liability should be limited to those injuries that are reasonably foreseeable.

  6. Opinions try to justify negligence but in the end they want to make def. pay, so they go for SL. Clearly, constructing reservoirs on private land is not a socially valuable activity that the court wants to encourage!

  7. Later move to negligence will show a desire to limit liability to avoid its crushing nature.

  8. Interaction of Tort system and Insurance: Enterprise liability—businesses are in a better position to absorb loss than an individual victim of injury. Use SL and make injury a cost of doing business—pass costs on to consumers.  strict products liability later.

  1. Two Theories re: SL

  1. Reciprocity: SL is appropriate in instances of dangerous behavior because it is non-reciprocal behavior. In general reciprocal risks are balanced out. But abnormally dangerous behavior is not reciprocal so SL is appropriate.

  2. Evidentiary Probs: SL picks up where negligence leaves off. When there are evidentiary problems, best way to ensure safety is to throw the risk on the person who must decide how much care to take. (Holmes—but must limit responsibility to what is reasonably foreseeable so rejects absolute liability but doesn’t choose neg. v. SL)

  1. Coase Theorem (Posner): If transaction costs are zero (no impediment to bargaining) , all agreements achieved will be economically efficient. Whenever the benefit is greater than the cost, the activity will occur. Law should choose efficient outcome. (But what about initial allocation? Giving injurer right to create risk or injured right to be free from risk affects the distribution of wealth)

  1. Brown v. Collins Rule (NH) —Only liable in negligence for escapes from land. America rejects SL, it is bad because it raises the cost of activities and obstructs choice.

  1. Facts: Collin’s (D) horse become frightened and bolts out of control, running into Brown’s land and destroying a post. Brown sues for damages under Fletcher rule that SL exists for escapes.

  2. Holding: Since D was not negligent, no liability. SL would inhibit progress because no “non natural” alterations would be allowed (this deters progress!!!) Certain amount of interference with property rights is the price we pay for progress.

  1. Powell v. Fall Rule—Strict Liability is okay for legal, uncommon, abnormally dangerous activities.

  1. Facts: Fall operates a steam engine along a highway. This activity is permitted by statute. Steam engine blew sparks on Powell’s hay rick and burne dit up. Powell sues for damages.

  2. Holding: Plaintiff recovers. There was no legislative intent to bar liability, since D is using a dangerous machine and profiting from it, he should pay for injuires caused.

  1. Early to later: in early days any trespass to land was a SL offense—people have right to be free from intrusion. Later this changes—fault is necessary for recovery.

  1. In Modern Times

  1. Stone v. Bolton

  1. Facts: Stone was struck by a cricket ball that escaped over a high fence She sues Bolton and home team members for public nuisance and negligence.

  2. TC Holding: risk was not foreseeable. Judgment for defendants

  3. AC Holding: Risk was foreseeable and reasonable care was not used to avoid injury. D breached duty to use reasonable care.. Judgment for plaintiff. (sort of SL). For an insubstantial risk—cost matters. Don’t expect people to go to extraordinary expense to protect against an insubstantial risk. For a substantial risk, must protect at any cost (SL)

  1. Bolton v. Stone Appeal #2 Rule: Risk must be substantial in order to apply SL.

a) Holding: Here risk of injury was slight, not large enough to warrant use of more care than was used. No negligence so no recovery.

  1. Hammontree v. Jenner—Rule: Sudden illness cases are governed by negligence. With a disease that is known negligence also governs. It is up to legislature to change it to SL if it wants to.

  1. Facts: Def. is an epileptic who hadn’t had a seizure for 14 years. While driving he had a seizure and injured Hammontree and hubby when drives into bicycle shop. Plaintiffs sue for damages in negligence and SL. T. Judge refuses instruction on SL and jury finds no negligence.

  2. AC Holding: affirms TC refusal to instruct about SL. If legislature wants to make it a SL activity to drive once diagnosed with epiliepsy regardless of reasonable care, fine, but court can’t do that. D took all necessary precautions, no negligence, no recovery for F.

  1. Negligence

  1. Elements

  1. act or omission of defendant

  2. duty owed by defendant to exercise reasonable care

  3. breach of duty by defendant

  4. actual and proximate cause between defendant’s conduct and the harm to plaintiff

  5. Damages

  1. The Reasonable Person Standard—Determines whether defendant acted with reasonable care by determining what a reasonable person would do in the same situation. Following cases help define characteristics of reasonable person.

  1. Objective v. Subjective standards

  1. objective standard: external standard, no attention paid to individual’s particular feelings or capabilities

  2. subjective standard: defendant’s characteristics own characteristics are examined and determine if a reasonable person with those characteristics would have acted the same way.

  1. Vaughan v. Menlove—Rule: Reasonable person is judged by an objective standard. A person of limited intelligence is held to the reasonable standard of care even if he is incapable of exercising reasonable judgment. (Best judgment immaterial)

  1. Facts: D builds a hay rick on border of property. He is repeatedly told it is bound to catch fire. It does and destroys plainiff’s property next door. P sues for damages. D argues that he was using his best judgment when he ignored warnings.

  2. Issue: If a person acts according to his best judgment, though his judgment is not as good as the average person, can he be found negligent. What is the intelligence level of the reasonable person?

  3. Holding: Yes. An objective, not a subjective standard is applied. Too hard to determine in every case whether a person acted according to his own subjective judgment.

  4. When people go out into the world, expect that others will act reasonably. Too bad if acting reasonably is too much to ask of some people. Then those people will just have to take extra precaution or not do an activity that creates a risk. (negligence based on the objective reasonable person standard is sort of like SL for limited people).

  1. Roberts v. Ring Rule: Standard of Care is not lowered to account for physical infirmities.

  1. Facts: 7 year old boy runs into the street in front of a car driven by 77 year old man. Man hits him. He was driving 4-5 mph but hearing and sight were defective. Defendant claims boy was negligent. Boy claims man was negligent. TC judge instructs based on

  2. Issue: to what standards of care are 77 year old and little boy held?

  3. Holding: Old man is held negligent, because he failed to meet the objective standard of reasonable care. Little boy is not held contributorily negligent. Judgment for old man reversed.

  4. Rationale: Objective standard for the old man, because if he can’t meet that standard he shouldn’t be driving—he should be deterred! But little boy should not be deterred from playing little boy games. (In 1919 boys played in the street—defendant knew that.)

Daniels v. EvansRule: Kids engaged in adult activities are held to objective standard, not subjective kid standard.

  1. Facts: A minor (plaintiff) was riding a motorcycle and collided with plaintiff’s car and was killed. His estate sues in negligence and is awarded damages. Def. appeals saying that child engaged in adult activity should be held to an adult standard of care. Plaintiff was CN.

  2. Holding: Judgment for plaintiff is reversed (indicating CN). Children engaged in dangerous adult activities are held to the objective standard of reasonable care. A driver when seeing another car or motorcycle will expect objective reasonableness from the approaching driver and will act accordingly—don’t expect a kid to be driving.

  3. Rule for children: when engaged in children’s activities, held to S of Care for children (subjective), when engaged in adult activities, held to adult standard of care (objective). Must determine what kind of activities we want child to engage in, and what we want to deter child from engaging in.

  1. Degrees of Negligence

  1. duty of care will change with the amount of risk involved (more risk, more care must be taken to prevent injury)

  2. gross negligence or recklessness=conscious and deliberate disregard for a high risk—state of mind between negligence and intention.

  1. Breunig v. Family InsuranceInsanity defense only applies when there is an onset of an unforeseeable delusion that blurs understanding (like heart attack, stroke etc.)

  1. Facts: Defendant’s insuree has an insane delusion while driving. She drives into plaintiff, thinking that God will set her airborn thus avoiding a collision. Plaintiff sues for damages and wins them. Defendant appeals claiming that woman wasn’t negligent because she there was no evidence that she had known or had warning that she would experience the delusion.

  2. Holding: Judgment for plaintiff affirmed. Since defendant had a history of delusions, the fact that she might suffer such a delusion while driving was foreseeable. She was negligent.

  3. Restatement § 283B—insane person is held to objective standard of care in all repsects except where malice or intent is necessary for a cause of action.

  4. CN defense: when a defendant’s insanity prevents a plaintiff from understanding the danger and taking action to prevent injury to himself, defendant cannot assert CN as a defense.

  1. Fletcher v. City of Aberdeen—City must know that people with physical disabilities walk outside in the world, and the world must be safe for them. Municipality must use a higher standard of care to account for the disabled.

  1. Facts: Blind guy falls into a hole caused by city construction after a worker temporarily removed the barricade around it. He sues. City claims that standard of care does not include thinking about blind people.

  2. Holding: Plaintiff recovers. City breached by removing barrier. Standard of care does include preventing injury to blind people as well as seeing people (even though need to take more precautions). Blind man was acting reasonably in this sistuation.

  3. Rationale: If we hold blind people to the standard of care of seeing people by imposing SL, we are telling them to stay home and not participate in the world. This is bad policy! If a blind person is engaged in an activity (walking) that does not pose unreasonable harm to others, he is held to subjective standard A blind person driving a car is held to standard of seeing person we don’t want blind people driving cars! Standard of care depends on the activity.

  1. Sexual Harassment Suits Employer engages in behavior of a sexual nature that makes work environment oppressive for plaintiff. Court must evaluate conduct. Court will use reasonable woman standard-if employer doesn’t know what will be offensive to a woman, he shouldn’t make the joke. But we don’t want to allow for oversensitivity. If a reasonable woman would be offended, he was negligent. If not, he is fine.

  2. Voluntary Intoxication: Robinson v. Pioche—same facts as Fletcher. Drunk man falls into hole dug in front of D’s store. Plaintiff’s intoxication does not excuse gross negligence on part of D. Drunk is entitled to safe street too. (Since barricade was required for reasonable care to protect pedestrians, had to protect all pedestrians!)

  1. Calculus of Risk

  1. Blyth v. Birmingham Waterworks (1856) A person is only negligent if behavior fails to meet the standard of reasonable care. He cannot be liable for unforeseen circumstances, or damage due to negligible risks.

  1. Facts: Pipes are laid 25 years earlier. They explode due to extraordinary frost and flood plaintiff’s property. He sues.

  2. Holding: Upon installation defendant took care to protect against frost. The risk of such a severe frost was so small that couldn’t expect to take the added precaution to protect against it. Defendant took reasonable care and could not be held liable for accident which occurred due to extraordinary ocurrence.

  1. Eckert v. Long Island RR (1871)Emergency-Risking life to save another is not CN (though risking to save property would be).

  1. Facts: Eckert’s deceased attempted to rescue a child from the path of a negligent grain. He saved the child but died from injuries. Plaintiff sues for wrongful death. Def. counterclaims under CN.

  2. Issue: In absence of recklessness or rash judgment, can placing yourself in danger to save the life of another at risk from negligence be considered CN?

  3. Holding: No. Life is valuable. If not reckless, saving another will not be negligent. There was no time to deliberate—too much was at stake. P’s acts were reasonable. Plaintiff recovers.

  4. Dissent: P chose to assume the risk voluntarily—that is CN and bars recovery.

  5. Caveat: Emergency defense to assumption or risk does not apply where rescuer created the emergency him or herself.

  1. Terry Theory: Reasonableness depends on five factors

  1. magnitude of risk

  2. value of what is exposed to risk (Eckert’s life)

  3. Value of collateral object (child)

  4. Utility of risk

  5. Necessity of Risk (to save child)

            1. Negligence—Balancing Risks
  1. Osborne v. Montgomery (1931) Acts that injure others but are not negligent should not result in liability. Ordinary care is what is required, not more.

  2. Rule for balancing risks: Right to create risk v. right to be free from risk; benefit of driving v. risk to pedestrian.

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