1. Fault of the PL
   1. MUST PROVE THE FIVE ELEMENTS OF NEGLIGENCE
      1. If PL's neg is not the actual cause of the injury, then there can be no comparison and no comparative fault
      2. If PL fails to establish a prima facie case against the DEF, then comparison is NOT NECESSARY
   2. Contributory Negligence
      1. "Occurs when PL's breach CONCURS AND COOPERATES with def's negligence, forming proximate cause"
      2. PL's failure to care for his own safety bars ANY recovery
         1. If def was in a "bad state of mind" or wanton or reckless could the PL still recover
      3. All or nothing defense
   3. Comparative Fault
      1. PL's negligence reduces rather than bars complete recovery
      2. Percentage of fault is a question for the JURY
         1. Jury's apportionment maybe wrong, but should remain valid
      3. Modified Comparative Fault
         1. Some jurisdictions hold that if PL is more than 50% responsible, then cannot recover against DEF
      4. Public Policy or Statute may help determine fault
         1. Subtopic 1
   4. CONTRIBUTORY NEGLIGENCE DOES NOT APPLY WHEN
      1. injuries caused by DEF and PL are separate
      2. PL did not MITIGATE damages
         1. EX: PL fails to take medicine that would reduce their injury. Outside the scope of the original injury.
      3. When Def's duty of care is to prevent the type of harm caused
         1. Lack of safety device on dangerous machine
            1. Safety device was there to prevent the injury caused
         2. Mentally ill patient hangs himself in hospital
            1. No contributory negligence
            2. Entire responsibility is on hospital
         3. Drunk guy goes to hospital
            1. his negligence cannot be compared to doctor's negligence
            2. he only provided the occasion for medical treatment
         4. 13 Year old girl has sex with teacher
            1. Student did not have duty to protect herself since the defendants stand in a SPECIAL RELATIONSHIP and have a duty to protect the child.
         5. If PL is ENTITLED TO DO SOMETHING, cannot be contributorily negligent when performing that act
            1. PL plants flax crop near RR
            2. Crop burns down
            3. PL is not CN because he can use his land anyway he wants
            4. He was ENTITLED TO USE LAND
      4. Fault may be assigned by PUBLIC POLICY or STATUTE
         1. PL incapacity; structural safety; role definition; process values; fundamental values; autonomy and self-risk
      5. Rescue Doctrine
         1. CN is not available unless they rescuer acted negligently
      6. Last Clear Chance or Discovered Peril
         1. If D discovered or should have discovered peril and could have easily avoided
         2. P's earlier negligence does not BAR or REDUCE RECOVERY
      7. Bad State of Mind
         1. CN is no defense to willful, wanton or reckless torts
         2. defined as involving UTTER INDIFFERENCE TO OR CONSCIOUS DISREGARD FOR THE SAFETY OF OTHERS
      8. Illegal Activities of PL
         1. When PL is injured as a direct result of his
         2. knowing and intentional participation in a criminal act
         3. he CANNOT seek compensation for the loss
         4. if the criminal act is judged to be so serious an offense to warrant denial of recovery.
         5. USE WHEN A PL ENGAGED IN A PROHIBITED ACTIVITY
            1. PL, who is a minor, built a pipe bomb and sued everyone around him for negligence.
      9. No followed in comparative fault states
   5. When apportioning the mental state of those involved, intent, and awareness or indifference MUST BE CONSIDERED
2. Assumption of the Risk
   1. When risk is assumed by PL then there is no breach of duty by the DEF
      1. PL assumes risks of dangers inherent in a sport
      2. risks are UNAVOIDABLE BY Def's REASONABLE CARE
   2. Exculpatory Clauses or Express Assumption
      1. Cases: Contractually assuming the risk
         1. Power house gym case
            1. PL agreed to discharge all claims against the health club.
            2. This was a STANDARDIZED FORM
            3. MINORITY VIEW enforcing exculpatory clause on the basis of freedom to contract
         2. Hospital Case
            1. PL received injuries on account of hospital negligence
            2. PL was only admitted to the hospital after signing a release of liability
            3. MAJORITY VIEW if the services is one which individuals find essential, exculpatory clauses are NOT VALID.
            4. Agreement involved PUBLIC REGULATION
            5. The need for particular skill/specialty
            6. constituted a PRACTICAL and CRUCIAL NECESSITY (ESSENTIAL SERVICE)
            7. hospital HELD ITSELF OUT as willing to perform services on MEMBERS OF THE PUBLIC
            8. Basically waiver at the hospital was not really voluntary.
         3. ATV Accident Case
            1. Exculpatory clause must be CONSPICUOUSLY AND UNEQUIVOCALLY EXPRESSED.
            2. the contract only spoke of risks inherent to ATV riding
            3. it never discussed liability for general negligence.
            4. It was a NOVICE COURSE, and a hidden rock possed an UNNECESSARY DANGER
            5. implied presumption that the training course as not INHERENTLY DANGEROUS
         4. In appropriate situations parties should be able to assign risk even when injury is caused by legally culpable conduct
         5. Assumption of risk in discretionary (voluntary) physical exertion activities is SENSIBLE
            1. activities that involve risk of injury REQUIRE RISK SHARING
            2. ECONOMIC VIEW: if no assumed risk, then higher prices.
      2. There is a difficult balance between public policy and contractually assuming risks. For an exculpatory clause to be valid:
         1. Cannot offend public policy
         2. Waiver cannot be UNCLEAR OR AMBIGUOUS
            1. must be conspicuous
         3. if a business is suitable for public regulation or engaged in business that is a necessity to the public
            1. usually considered invalid if industry regulated or necessary for the public
         4. Waiver barring recovery for reckless or intentional injury would offend public policy
   3. Implied Assumption of the Risk
      1. a complete defense to tort before comparative fault
      2. There is tacit consent when a PL
         1. knowing the risk
         2. appreciating its quality
         3. voluntarily
         4. chose to accept/confront it.
         5. Elements to Implied Assumption of the risk
      3. If a given danger can be mitigated or eliminated, it is not a necessary danger and therefore not an inherent risk of the sport.
3. Defenses not on its Merits
   1. Statute of Limitations
      1. Focus on:
      2. When the claim accrues
      3. what starts the clock
         1. Date injury occurred
            1. Breach of Duty begins to run from the time the wrongful act occurred, regardless of when the harmful consequences were discovered.
         2. Discovery Rule
            1. Accrual of the claim is delayed at least until the elements of the tort are present, AND
            2. the PL discovers, or a reasonable person SHOULD HAVE DISCVORED, the injury, AND
            3. the Def's role in the injury
            4. SOL begins to run at the discovery of the INJURY not at the CAUSE OF INJURY.
            5. or by reasonable diligence should have discovered
            6. Typical Elements
            7. Discovery is when
            8. All elements of the tort are present and
            9. the plaintiff discovers or as a reasonable person should have discovered that
            10. she is injured and
            11. the def had a causal role or there was enough chance that the def was connected to the injury to require further information
            12. Duty to Investigate
            13. As soon as PL has sufficient knowledge of her injury
            14. and its cause
            15. to SPARK INQUIRY
            16. aw whether conduct of the party who caused the injury might be legally actionable.
         3. Latent Potential Harm
      4. what tolls the clock
         1. Disabilities
            1. Minority
            2. SOL is tolled on a child's injury until the child reaches ages of majority
            3. Mental incompetence
            4. Waiting for pendency of a suit seeking class action certification
         2. Equitable Estoppel
            1. A delay in filing an action
            2. that is induced by the def
            3. and the PL must ahve acted on the information in good faith
            4. failing to pursue his action in a timely manner
            5. PL RELIED TO HIS DETRIMENT
         3. Equitable Tolling
            1. Def Misconduct is NOT REQUIRED
            2. SOL tolled because
            3. Despite the PL's due diligence
            4. PL made a good faith effort to obtain the information
            5. PL was unable to obtain vital information bearing on his claim
            6. EQUITABLE ESTOPPEL VS. EQUITABLE TOLLING
            7. Equitable Tolling has no BAD FAITH REQUIREMENT
            8. Equitable Estoppel REQUIRES BAD FAITH
         4. Statutes of Ripose
            1. Some states enact states that state:
            2. "No cause of action shall be brought more than X years from last act or omission of the DEF giving rise to the cause of action"
         5. Exam
      5. what extends the clock
         1. Grace Periods
            1. Some States replace tolling with extended SOL Grace Periods
   2. Federal Preemption
      1. Implied
         1. Scheme of Federal regulation is comprehensive that Congress left no room for State regulation
         2. PREEMPTING THE FIELD SO TO SPEAK
         3. or where it is made impossible to comply with both
            1. Federal interest is SO DOMINANT
            2. that compliance with both State and Fed is physically impossible
      2. Express
         1. The language of the statue explicitly states that it preempts State law
4. Duties of Medical Professionals
   1. Medical Standard of Care
      1. Elements
         1. Establish Medical Standard of Care
         2. Through expert testimony
            1. Expert witness must give testimony to the GENERAL MEDICAL STANDARD
            2. NOT their OWN STANDARD or OPINION
         3. then prove that judged in the light of that standard
         4. Dr. was unskilled and negligently
         5. CAUSED then injury
      2. What the average physician would do in a particular situation
         1. NOT THE REASONABLY PRUDENT PERSON
      3. Locality Rules
         1. Strict Locality Rule
            1. measure def's conduct against those in the SAME COMMUNITY
         2. Modified Locality Rule
            1. degree of care, skill, and proficiency which is commonly exercised by ordinarily careful, skillful, and prudent physicians at the time of operation IN SIMILAR LOCALITIES
         3. National Standard of Care
            1. duty of care is that of practitioners in the same class to which he belongs, acting under the same or similar circumstances
            2. Locality is only one factor, the court will examine
            3. Advances in technology
            4. availability of facilities
            5. Specialists vs. Generalists
      4. Emergency Situations
         1. Good Samaritan Laws ENCOURAGE physicians to respond to emergencies
         2. Dr's are relieved from liability as long as they had NO PRE-EXISTING DUTY TO RESPOND
         3. Must examine:
            1. was Dr. on call
            2. Was Dr. contractually obligated to respond
            3. Dr. patient relationship
            4. Did hospital require dr. to respond?
            5. did employment at hospital create a duty?
            6. was duty created by practice or custom?
      5. Other Professionals
         1. Pharmacists
            1. Conflict b/w M.D.s and pharmacists
            2. PL has the burden to prove the duty of care
            3. Most States
            4. no duty to warn of side effects
            5. that the physician has prescribed an excess dosage
            6. that a drug is counter-indicated
            7. EVEN IF patient may be seriously injured if Rx is filled
            8. Some States
            9. duty to warn when serious contraindications are present or
            10. drugs carry inherent risks
            11. PHARMACISTS MAY NOT IMPEDE A PATIENT'S TREATMENT
         2. Specialists
            1. The community of specialists defines the duty of care
         3. Learned Professions or Skilled Trades
            1. custom or standard of profession is considered under the circumstances
         4. Lawyers
            1. Expert testimony required to establish stnd
            2. generally only economic risk, not personal injury
   2. Informed Consent
      1. A second cause of action to Medical Malpractice
         1. Sue for both
      2. Materiality Standard (Patient (Majority))
         1. A physician has the duty to disclose
         2. MATERIAL INFO
         3. what the patient NEEDS TO KNOW
            1. Nature of their condition
            2. nature and probability of risks
            3. reasonably expected benefits
            4. DOES NOT REQUIRE DISCLOSER OF ALL RISKS.
         4. More Cardozo/ People should be the master of their body
            1. Every competent adult has the right to forego treatment
            2. To exercise this right, a patient requires
            3. Knowledge of available options
            4. Risks attendant on each option
            5. A patient's right to know must be balanced with the burden on the physician of disclosing scientific information
      3. Professional Standared (Physician)
         1. Information that is customarily disclosed by physicians in similar circumstances
         2. More paternalistic
         3. Privilege of nondisclosure
            1. disclosing information may complicate treatment
      4. Causation
         1. Unrevealed risk that should have been disclosed MUST MATERIALIZE
            1. a MEDICAL quesitons
         2. otherwise the omission is without consequence
         3. PL must show that if the info was disclosed, she NOR A REASONABLE PERSON would have consented.
            1. objective test:
            2. reasonable person would have refused treatment
            3. subjective test:
            4. PL would have refused operation
            5. Incompetent Patient
            6. court determines whether patient
            7. if compentent
            8. what choice he would have made
            9. Some Courts REQUIRE BOTH
      5. Statistics and Success Rates
         1. Disclosure of life expectancy not required
         2. Disclosure of success rates not required
      6. Risk Free Procedure
         1. If patient indicates he is going to DECLINE risk free treatment, then
         2. the Dr has the additional duty of advising
         3. of all material risks which a reasonable person would want to know
         4. UNREASONABLE TO ASSUME PATIENT KNEW SEVERITY OF CONSEQUENCES
5. Emotional Harm
   1. Intentional Infliction of Emotional Distress
      1. An actor, who by EXTREME and OUTRAGEOUS conduct INTENTIONALLY and RECKLESSLY causes SEVERE emotion harm to another is subject to liability for that emotional harm, and if that emotional harm causes BODILY HARM, also for the bodily harm.
         1. Intentional
            1. actor intended severe emotional harm
            2. or acted knowing severe emotional harm is certain to result
         2. Reckless
            1. actor knows of the risk of severe emotion harm AND
            2. fails to take precaution that would eliminate or reduce
            3. even though the burden is slight
            4. relative to the magnitude of risk
            5. THEREBY DEMONSTRATING HIS INDEIFFERENCE
            6. Similar to B< PL Analysis An objective test
         3. Conduct must be EXTREME AND OUTRAGEOUS
            1. beyond the realm of decency
            2. depends on CONTEXT
            3. must be extreme and outrageous from SOCIETY and PL's point of view
         4. resulting harm must satisfy the SEVERE threshold
         5. There must be a causal link
            1. But - For Test
            2. Some courts require EXPERT TESTIMONY to help prove cause
      2. Most common fact patterns involve conduct
         1. repeated or carried out over a period of time
         2. an abuse of power by a person with some authority over PL
         3. directed at a person known to be especially vulnerable
      3. Third Party Emotional Harm
         1. where conduct is directed at a 3rd person
         2. the actor is subject to liability if he
         3. INTENTIONALLY or RECKLESSLY
         4. causes severe emotional distress to
            1. close family
            2. doesn't have to result in physical harm
            3. or any person present
            4. Must result in physical harm
   2. Negligent Infliction of Emotional Distress "fright or shock from risks of physical harm"
      1. Began as a parasitic claim, not stand alone
      2. Pattern
         1. Def's actions put PL at immediate risk of physical injury at a definite time or place
         2. the PL's reaction to that risk was fear and shock
      3. Impact
         1. courts began dropping physical injury and replacing with PHYSICAL IMPACT
      4. Zone of Danger (abandonment of impact)
         1. Recovery only where Def's negligence placed PL in danger of physical injury
         2. and because of that danger PL suffered emotional harm
         3. Jetski case
            1. to recover for NIED PL must show either
            2. he is a reasonably foreseeable bystander victim based upon intimate familial relationship w/ seriously injured victim of DEF's neg OR
            3. PL was direct victim of defs neg because PL was within the zone of danger
            4. guy on boat admitted he never feared for his life
            5. only the other people on the boat
            6. his distress was not so severe that a reasonable person could not be expected to endure it
         4. Foreseeability Test
            1. whether PL was near scene
            2. whether the shock resulted from direct emotional impact rather than hearing from others
            3. whether PL and victim were closely related
            4. flexible rule
         5. Thing Test
            1. closely related to injury victim
            2. present at the event and aware that it is causing injury to the victim; AND
            3. as a result suffers serious emotional distress
            4. beyond that of a disinterested witness
            5. which is not an abnormal response to the circumstances
            6. Strict Rule
         6. Birth Case
            1. woman was giving birth
            2. found out something was wrong
            3. suffered emotional distress
            4. Woman was a DIRECT VICTIM not a bystander because DR had a preexisting duty to her.
      5. Restatement Approach
         1. Def's neg places PL in danger of immediate bodily harm and emotional harm results from that danger OR
         2. or neg occurs in specified activities or relationships where neg conduct is likely to cause serious emotional harm.
   3. Duties of Care to Protect Emotional Well-Being Independent of Physical Risks
      1. HIV Case
         1. Dr negligently reported PL had HIV TWICE
         2. Cannot be a NIED claim when peril is NONEXISTENT
      2. courts usually allow recovery for NIED for mishandling of dead bodies
      3. Erroneously announced death is recoverable
      4. Sextape Case
         1. No physical harm risked, therefore no recovery
      5. Cement Truck Accident Case (abandons necessity for injury)
         1. Seious or severe emotional injury occurs where a:
         2. would be unable to adequately cope with the mental stress
         3. engendered by the circumstances in the case
         4. MUST BE SUPPORTED BY SCIENTIFIC PROOF
      6. Toxic Exposures: Fear of Future Harm
         1. As a result of D's neg, Pl is exposed to toxic substance the threatens cancer
         2. PL's fear stems from knowledge CORROBORATED BY RELIAVLE medical or scientific opinion,that is MORE LIKELY THAN NOT that the PL will develop the cancer in the future.
            1. Expert Witness required
         3. Exception:
            1. where D's conduct amounts to oppression, fraud, or malice
            2. willful conscientious disregard
            3. PL does not have to meet the more likely than not threshold
         4. Alleged fear must be GENUINE AND SERIOUS
6. Vicarious Liability Responeat Superior
   1. Goals
      1. prevention of future injuries
      2. assurance of compensation
      3. Equitable spreading of losses caused by enterprise
         1. Part of the cost of doing business
         2. Respondeat superior carries the desire to include in the costs of operations, inevitable losses to third persons incident to carrying on an enterprise and DISTRIBUTE THOSE COSTS accordingly.
   2. Scope of Employment
      1. act was done while servant was
      2. doing the master's work
      3. no matter how irregularly, or with disregard for instructions
         1. EVEN IF EMPLOYER SPECIFICALLY EXPLAINS TO EMPLOYEEE WHAT NOT TO DO
   3. Does not exclude the liability of the employee!
      1. employer has theoretical right to indemnify against employee
   4. Employer need not be negligent
      1. EMPLOYEE MUST BE FOUND NEGLIGENT
   5. Borrowed Servant
      1. when an employer loans his employee to another employer and employee injures someone
      2. Two views
         1. restatment
            1. which employer is in the better position to take measures to prevent injury suffered, or which employer has right to control employees conduct
         2. traditional view
            1. first employer is vicariously liable, borrowing employer is not
         3. both could be liable is BOTH HAVE RIGHT TO CONTROL
   6. Going and Coming Rule
      1. If travel time is compensated UNDER CONTRACT
      2. Also, Respondeat Superior generally applies when
         1. special errand on employer's behalf
         2. employer requires employee to drive personal vehicle to work for work related tasks
         3. the employee is on-call
   7. 24-hour employee case
      1. PL must show his conduct was to some degree in the furtherance of the interests of his employer
      2. He was discussing business all day
      3. smoking cigarette WHILE filling out expense report
      4. 24 hour employee limits his freedom.
   8. Frolic and Detour
      1. Frolic
         1. employee goes off route to do something not within the scope of employment
         2. getting a beer with a friend
         3. no vicarious liability to employer
      2. Detour
         1. going to the bathroom
         2. still liability
      3. Reentry into Employment
         1. formulated an intent
         2. to act in furtherenace of employer's buisness
         3. must be coupled with reasonable connection
         4. in time and space
         5. with the work he should be engaged
   9. Liability for Intentional Torts
      1. normally an employer is not liable for employee's intentional torts that are
         1. if completely personal
         2. highly unusual
         3. measured by context of employment
      2. Nursing Home Case
         1. assault was a FAIRLY AND NATURAL INCIDENT
         2. to BUSINESS
         3. NATURALLY GREW OUT OF OR WAS INCIDENT TO PERFORMING MASTER'S BUSINESS
      3. Grouphome Case
         1. Sexual contact, or abuse of power is a
         2. WELL-KNOWN HAZARD
         3. in this kind of enterprise
      4. Liability IF
   10. Independent Contractors and Ostensible Agents
       1. Ordinarily employer of an independent contractor is not liable for his negligent acts unless
          1. landowner retains control of the manner and means of doing the work
             1. Extent of control which, by agreement, the master has over the work
             2. whether work is party of regular business of employer
             3. whether parties subjectively believe they are creating a master servant relationship.
             4. No liability is employer is only has supervisory interests over contractor's actions!
             5. The less control the master has over the contractor, the less likely he can be found liable
          2. engages an incompetent contractor
          3. activity contracted for is inherently dangerous
       2. A servant is one who is employed to perform services or affairs of another whose physical conduct is controlled or subject ot control
       3. Negligent Hiring
          1. show contractor was incompetent and principal knew or had reason to know of contractor's incompetence.
          2. Imposing a duty on the principal to check driving records and credentials would impose a very onerous burden
7. TORT LIABILITY FOR DEFECTIVE PRODUCTS
   1. Focus on the PRODUCT unlike negligence where the focus is on the DEFENDANT's CONDUCT
   2. Started as a claim based on Privity of Contract and Warranty, and Misrepresentation but evolved from to tort liability