Topic

▼	Intentional Torts
	•	Is there intent, is there consent?
	▼	Battery - protection of physical autonomy
	▼	Battery is an intentional act, that is unlawful or wrongful offensive touching, that causes a harm
	▼	It is battery regardless of the extent of the harm- If its a bruise or a broken leg- its still battery.
	•	Assault on dignity count as battery.
	•	Invading one's personal autonomy
	•	Guided by an objective test- would a reasonable person view it as offensive or objectionable.
	•	Battery can exist without touching- if you pull the chair out from underneath someone as they are sitting down, you've committed a battery, even though there was no touching
	▼	Intention
	•	"The plaintiff must show either that the intention was unlawful, or that the defendant was at fault. If the intended act is unlawful, then the intention to commit it must necessarily be unlawful."  
Vosburg v. Putney L-Where a child kicked another in school- the kick was a violation of the order and decorum of the school, hence unlawful.
	•	Knight v. Jewett NL- D Stepped on the hand of P during a game of touch football, and broke her finger. There was no intent to step on the hand-it was an accident-(possibly foreseeable in a game of touch football, hence an assumed risk?) incidental to the game. There was no battery because there was no intent to step on the hand.
	•	"Lack of any specific intent to harm or injure is immaterial"
 White v University of Idaho L. D touched plaintifs back in a manner similar to the striking of a keyboard with the fingers in the course of a piano lesson. The intent was to touch, not to harm, and that is all that is required for the tort of battery.
	▼	Insanity is not a defense for battery. Polmatier v Russ L. "The liability for lunatics for their torts tends to secure a more efficient custody and guardianship of their persons" 
	▼	"External manifestations of the will is necessary to constitute an act, and an act is necessary to make one liable for battery"
	•	The court speculated that had the act been caused by actions that were reflexive, convulsive, or epileptic, the D might not have been liable
	•	The first law of nature: "where it is a question whether one of two men shall suffer, each is justified in doing the best he can for himself." 
Laidlaw v Sage NL (using another as a human shield when someone blows up your office is OK)
	•	Intent doesn't need to be directed at the person who suffers the harm. Instigating acts that continue behaviour that eventually causes a battery opens oneself to liability.
 Even if I don't throw the erasure, if I'm a part of the activity, and someone else is harmed, I can still be held liable. Keel v Hainline L
	•	Intent the cause harm is battery regardless of the result of the act. Manning Lintended to throw the ball at the people, but did not intend for the ball to hit them. The intended act was different from the resulting act.
	•	Garratt L: Pulling a chair out from under someone as they are sitting down is battery. There was no direct contact with the person sitting, but the act resulted in harm and there was intent to do the act. 
	•	Leichtman L Blowing Cigar smoke in someone's face does count as a battery- the Jury found that cigar smoke is particulate matter. 
	•	Madden NL: No intent to have exhaust vented from a bus onto another person. Buses blow exhaust all the time. 
	•	Morgan L: Suspected shoplifter's bag was grabed from P. P did not shoplift the product. Constituted battery.
	▼	Causation must be present
	•	must be a link between the intentional act and the harm-causation
	▼	Consent: a defense to the prima facia case, or flaw in the explanation of the prima facia case
	•	Surgery performed by a different doctor than the one consented too is battery. Grabowski v Quigley L
	▼	Dentist with HIV did not commit battery by failing to disclose his HIV status. Infection was highly unlikely. P's said that they would not have consented if they had known of the doctor's HIV status. Brzoska v  Olson NL
	•	Resaonable Person Standard- Would a reasonable person have fear in this case?
	•	 Acting against a patient's wishes with regard to religious beliefs about being seen unclothed by the opposite sex is Battery.  Cohen v. Smith L
	•	Coerced consent is not consent at all. Rains v. Superior Court
Sluggo Therapy case
	▼	Consent must be informed.
	•	Drunks can't consent to a fight
Hollerund v. Malamis- drunks fighting in a bar can't give their consent 
	▼	Consent to an Illegal Act
	•	Laws banning fighting in public serve in the public interest by preventing the breach of the peace.
McNeil v Mullin- Road Rage: consent is void in a fight the streets. 
	•	Consent is a defense when the injured person engaged in an organized, though illegal, prize fight. Even though the fight was illegal, people should not have the right to recover damages from an act that they expressly consented to.
	▼	Implied Consent
	•	Blood Transfusion that was not consented too was delivered. The court found implied consent, because the circumstances changed during her operation her previous rejection was uninformed as to the severity of the need. The derived consent from the standard of reasonableness.  Werth v. Taylor NL
	▼	Liability
	•	"the wrongdoer is liable for all injuries resulting directly from the wrongful act, whether they could or could not have been foreseen by him" Vosburg v Putney
	•	The finding of liability has consequences that follow from that.
	▼	Trespass- protects exclusive possession and use of land- the right to exclude
	▼	Trespass is entering upon another's land, causing a thing or third person to do the same, remain on the land, or failing to remove from the land a thing which he is under a duty to remove. 
	•	Trespass protects the right to exclusive possession of the land, just like Battery protects the person. 
	▼	Actual or Constructive Knowledge
	•	Dogs running onto property and causing a ruckus is trespass. The dogs owners could reasonable expect that hunting dogs would chase a fox onto another's land. Dogs will chase things that they've been trained to chase. Even if the owner didn't intend to have the dogs run onto another's property, he should have. Pegg v. Grey
	•	Tresspass includes leaving something behind on a persons property, even if the origonal passing onto the land was consented to. 
Van Alstyne v. Rochester Telephone Corp.- lead dropping left behind after an electrical line repair poisoned the land owners dogs
	▼	Intent
	•	Golf Balls landing on another's property is not trespass. 
Malouf v. Dallas Athletic Country Club They golfers do not intend the balls to land onto the persons property. Does the standard change with the frequency of the act? If balls are routinly hit onto property,is that different from one errant ball?
	•	Wandering in the woods that results in putting you on the another's land would be considered strictly trespass. By being on your land, you know that it has a boundery.
	•	Hounds don't pay attention to property boundaries- the owner of dogs should know that they would wander into another's property - Shows a lack of care. Constructive knowledge.
	•	Simply putting your foot on another's property is prima facia trespass
	▼	Consent
	•	Consent can be given to a trespasser fraudulently, and it can still be consent. If the trespasser is at a business, and does nothing otherwise offensive, they would not be guity of tresspass. Desnick v ABC Inc NL
ABC aledgidly tresspassed in filming a show segment critical of the Desnick's opthimology practice. Desnick argued that he would not have allowed the people there if he knew their true purpose. Because they didn't interfere with the activities of the buisness, they were not tresspassing.
	•	The interests of the tort of trespass protects the exclusive use of the land. The people who trespassed in Desnick v. ABC didn't
	•	Even if there is no demonstibly ecnomic loss, the right to exclude is central to property rights and trespass. Analogous to the lack of specific harm needed in battery.
	•	Going beyond the scope of the consented trespass is not a consent.
	▼	Scope
	•	A cave that extends under another's land is part of the surface owner's property, even if the cave entrance is on another's property. It would be trespass to go into the cave that where it passed under the others land. 
Edwards v Lee (1929) There was a vigorous dissent in to this case - the owner of the entrance put in significant expense and labor to improve the cave and should have been able to enjoy the profit from that labor- he discovered the cave, he should reap the benifit. 
	•	Low altitude flight is trespass. Airspace is limited in height. Restricting it would restrict air commerce. Planes can't fly lower than a reasonable height that would limit the owners enjoyment of the air. 
Smith v. New England Aircraft Co. (1930)
	▼	Coase Therom
	•	If you impose liability on one- they may not erect a fence, they'll just pay off the cow owner- this shifts the liability
	•	Fencing in and fencing out
	▼	You assume there are not transaction costs.
	•	But there are always transaction costs
	•	"The Problem of Social Costs"
	•	Liability should be assigned in a way that makes the overall transaction costs the least.
	•	Damages are not needed to prove trespass.
	▼	Conversion - protects the exclusive use and enjoyment of chattels
	▼	Intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another to control it. Compare v Trespass- interfering with the enjoyment of land. 
	▼	Conversion v Tresspass to Chatels
	•	Conversion is longer term- demands a forced sale of the item, Tresspass is temporary - demands return of the chattel
	▼	Remedies- conversion gets you the value of the item converted. trespass gets you damages with regard to the amount of loss that occured 
	•	v. Replevin- gets you the item back
	▼	Control
	•	The converter must have control of the chatel for their to be liability.
Palmer v Mayo
	▼	Intent
	•	There must be intent to convert.
Spooner v. Manchester-- Renting a horse and carriage to go on a trip- got lost, and ended up taking a different route that the one planned for. Not conversion Think about how this relates to the trespass and the desnick case- there was consent, but not to the resulting act. The act was one that would not otherwise be objected to. 
	▼	Mistaken action is still intent to convert- Just like battery-intent to the act- not necessarily the consequence of the act.
Wiseman v Schaffer Tow truck driver tows a truck on the premise of a phone call to the tow truck company. The call was fraudulent. The original owner sued for conversion.  Tow truck asserted dominion over the car, with intent to assert dominion. 
	•	Policy Arguemnt- Who is in the best position to stop this from happening? The tow truck company-duh. There is a duty on them to make sure that the actions they are taking are not harming the true owner. 
	▼	Title transfer in conversion
	▼	A thief acquires no title to the goods he steals
	•	"Title, like a stream. can rise no higher than the bank. 
	▼	Fraud is an exception- a person who acquires goods by fraud has a voidable title
	•	Voidable only by the person against whom the fraud was committed.
	▼	One who receives stolen money in good faith and for good consideration will prevail over the unfortunate victum of theft.
Kelley Kar Company v. Maryland Casualty Co.
	•	If you steal money and buy a car, you can't make a claim against the seller of the car- how would he have known that the money was stolen? If he would be liable, then there would be a huge social cost involved in each transaction. 
	▼	A possessor has good title against all the world except the original owner.
	•	This seems to make some victums at least partly responsibl for the acts against them
	▼	False Imprisonment - protects freedom of movement
	▼	Intentionally holding a person, in a confined space within a physical boundary, and they are conscious or harmed by the confinement. Protects the freedom of movement- which by definition involves freedom of choice.
	•	Willingly remaining confined is not false imprisonment. 
Peterson v. Sorlien - P' regained volitional capacity to consent after engaging in the first 3 days of being held. P stayed 16 days 
and had opportunity to escape beforehand.
Eilers v. Coy P escaped at the first opportunity during a deprogramming session
	▼	Intent
	•	If the police are the one's intending on making the arrest, then there is no false imprisonment. 
Baggett v National Bank and Trust Co.  Hold up in a bank by writing on deposit slips: P wasn't involved
	•	If a private citizen insists that the polices arrest someone, and the police would otherwise not have made the arrest, then there may be a case of false imprisonment.
Melton v. LaCalamito: U-Haul furniture pad case- Arrest would not have happened w/o insistence by D- plus there was direct evidence to the contrary that the police could have examined- contract made no mention of furniture pads.
	▼	Confined Space
	•	If there is a way of escape that is obvious and easy, then it is not False Imprisonment. But the existence of a way of escape that isn't known or is unreasonable does not negate the liability for False Imprisonment. 
	▼	Conscious or Harmed
	•	The person must be aware that they are confined. You can't suffer the harm if you arn't aware of it.
	▼	Assault - protection of physical autonomy
	▼	A person acts intending to cause a harmful or offensive contact, or an imminent apprehension of such contact, AND the other is thereby put in such imminent apprehension
	•	The threat of harm must be imminent- there are other ways of dealing with non-imminent threats.
	▼	Intention
	•	Intention as to do the act, or intention to cause apprehension. Either or.
	•	Knowingly putting someone in a dangerous area, even w/o intent to cause them harm, would put them in imminent apprehension of harm
Bennight v. Western Auto Supply Co
	▼	Apprehension
	▼	The person must be made aware of the act against them
	▼	If you're asleep- its not assault.
	•	But- if someone is acting to cause an assault knowing you are asleep and you wake up then their would be an assault.
	▼	The defendant must be linked to whatever is causing the fear.
	•	In the false imprisonment case of the bank teller, the act of handing the slip to the teller does not cause the apprehension, its the writing on the slip. So the person who wrote the info is the person committing the tort, not the person handing the slip of paper.
	•	Words alone are not assault.
	▼	Outrage (IIED)
	▼	Liability for IIED is found only where the conduct has been so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community
	•	A trait that seems to be shared among outrage cases is that the D's wanted the P to suffer and succeeded. 
	▼	This is a line drawing problem- very fact intensive cases
	•	Revealing truths is not IIED. Goes to the outrageousness of the act
Pemberton v. Bethlehem Steel
	•	In appropriate cases, severe emotional distress may be inferred from the extreme and outrageous nature of the defendants conduct alone.
Muratore v. M/S Scotia Prince - Person who didn't want their picture taken was taunted by photographers on a cruise. They knew after a while that the P was sensitive to their actions. 
	•	It seems that IIED acts with a deterrent aspect (maybe more so) as well as a remedy for harm.
	▼	4 Elements:
	•	D's State of mind
	•	Nature of the Conduct
	•	Causal connection between D's action and P's distress
	•	Degree of P's Distress
▼	Intentional Torts: Priledges
	▼	Defense of person and property
	▼	You can't use lethal force to defend property- regardless of the value of the property that they are trying to steal
Katko v. Briney: Spring guns can't be used to defend you house. Katko was shot by a spring gun while trying to steal mason jars from Brineys property.
	•	"A possessor of land cannot do indirectly and by a mechanical device that which, were he present, he could not do immediately and in person."
	•	But- firearms can be used if reasonably necessary to prevent the commission of a felony, or to arrest a felon after a felony has been committed
Wright v. Haffke: Robbers shot in the back while escaping- NL for store owner shooting them
	▼	Policy is that we don't want innocent parties to get hurt by something that is indiscriminate. 
	•	There is no circumstance where a piece of property is worth more than the life of a person.
	•	The proportionality of the action being take to the action being defended against is the important point of analysis
	▼	Shooting robbers in the back was Ok
	•	deadly force used to stop the commission of a felony was ok in that jurisdiction, but this case might have been on the edge of the law. 
	•	Killing a dog that goes after your eggs is ok if you've taken steps to prevent it. 
Hull v. Scruggs
	▼	If your dog is attacking goats, then you are justified in killing the dog if it costs less than the goat
Kershaw v. McKown
	▼	How do you determine the worth of a dog? Very problematic.
	•	There is not recourse then for the loss of your property.
	•	Courts would use a bit of agregate utilitarianism to determine who's liable. 
	•	Use of non-deadly force is ok when there is a reasonable apprehension of any bodily contact
	▼	Use of deadly force is ok when there is a reasonable apprehension of serious harm
	•	but it ends when the threat ends. 
	•	No duty to retreat in either case
	▼	Private Necessity
	•	Circumstances may put you in a position to do something that you might otherwise not be able to
	•	If you do harm to the property, you will be held liable. 
	•	Entry upon land of another may be justified by necessity
	•	Mooring upon a dock to escape a storm would be necessity
Ploof v. Putnam- The privilege of trespass created a cause of action in this case. Ploof moored his boat to Putnam's dock in a storm, and Putnam removed the boat saying Ploof was trespassing. 
	▼	Necessity creates a privilege.
	•	The owner does not have a action against you
	•	The right is temporary though.
	▼	If you use this privilege and cause damage in the process, then you are liable for the damage.
Vincent v. Lake Erie.
	•	This puts the burden on the person making use of the necessity. It is then in their judgement as to make use of the necessity and risk damage, or leave the place of necessity and not be subject to liability
	•	They would be in the best position to make this decision. 
	▼	The privilege of trespass makes it not a trespass. It does not make it a trespass that is defensable. 
Rossi v. DelDuca
	•	2 innocent parties- 1 will bear the costs but the defense of necessity makes us think that the person making use of necessity isn't liable.
	•	There is no private necessity to squat in someone's abandoned building 
London borough of Southwark v. Williams- if the people would have been allowed to stay, then it would have upset the system of housing that the borough had set up to help people in their case- they were trespassers to begin with.
	▼	Public Necessity
	•	A barge was overloaded and a storm came up. D's stuff was thrown overboard by another passenger. Not found liable for the loss of D's goods due to the threat of the barge going under and killing everyone on board. D has an obligation to pay for the lost goods. Mouse, who lost his goods, also was saved in the action.
Mouse's Case Many would benefit from throwing his stuff overboard.
	▼	If a fire is raging in the town, houses may be destroyed in order to stop the spread of the fire.
Surocco v. Geary- fire of San Francisco in 1849- houses would probably been burned to the ground otherwise, and by destroying the house you save others.  
	•	It doesn't matter if the city if the one doing the blowing up- are we allowing private citezens to take police powers into their own hands in case of emergency.
	•	Public necessity is like the police powers of the state- the city has a duty to protect the other citizens of the city. 
	▼	Discipline
	▼	Sea Captains Privilege
	▼	beatings on board a ship is ok if it is to maintain order.
	•	Flogging on commercial ships was banned by Congress in 1850
	▼	School Master's privilege 
	▼	" A school master thad the right to inflict reasonable corporeal punishment. He must exercise reasonable judgement and discretion in determining when to punish and to what extent."
Lander v. Seaver
	•	A school master is not liable on the ground of excess punishment unless the punishment is clearly excessive, and would be held so in the general judgement of reasonable men.
	▼	Interspousal Immunity
	•	Reflected attitudes that women were property, and couldn't enter into contracts and own property independent of their husbands.
	•	Court was hesitant to rule on the validity of the rules of certain family government relations. 
▼	Negligence
	▼	5 Parts of negligence
	•	Duty
	•	Breach of Duty
	▼	Cause in fact
	▼	Scientific Question
	•	can we establish in terms of physics that this action caused that result- if we can do that -then there is cause in fact
	▼	Proximate Cause
	•	Remoteness of the scientific connections. Draws a line to cut off cause in fact. With a certain amount of indirectness and forseeablility. Some but for causes will not be held liable
	•	Damages
	▼	Reasonable Person Standard
	▼	Negligence is based on an objective standard that doesn't allow variation in its interpretation, based on an ordinary reasonable person of average intelligence.
	•	People should know their limitations and take care accordingly. If you are really dumb, then you should realize that you need to be extra-careful. If you are average or above average then you are assumed to posses the judgement necessary. 
	▼	Only exceptions: a "distinct defect"- people need to know of the defect. 
	•	A blind person can't be expected to see in offered to avoid danger.
	•	Infants can be expected to reason rationally
	▼	Insanity doesn't exempt you from from negligence- Just like an intentional tort.
Williams v. Hays: Ship captain went insane at the helm of a ship- 
	▼	Captain lost his sanity by doing everything humanly possible to save the ship- Just like insanity doesn't exempt you from liability, if you act with such reasonable care that you are put into a mentally deficient state because of your reasonable acts.
	•	Kind of parallels private necessity- the necessity of the circumstance led him to the condition that he was placed in.
	•	Places a burden on those who care for insane people to make sure that they do not act negligently. 
	•	Mental acuity doesn't exempt you either
Vaughan v. Menlove
	•	BUT omission of instructions to someone who is retarded, who would otherwise realize the danger, does make you liable for their injuries
	▼	A reasonable person also cannot be expected to take every possible precaution to prevent a possible accident.
Weirs v. Jones County- County put up a sign in english that a bridge was unsafe. P couldn't read english and crossed the bridge. It collapsed and he was injured. NL
	•	County doesn't need to post a sign condemning a bridge in every possible language, on the off chance that someone coming by only speaks that language and not the predominate language of the area.
	•	Religeious conviction may cause an plaintiff to do something that is otherwise not reasonable. -Freidman v. State
	▼	Physical Infimities
	•	A deaf person is expected to be held to a higher standard because they are aware that there are dangers that they might not be aware of.
Kerr v. Conn. Deaf man was hit by a trolly opperated by the state who was walking on the tracks. Walking on track is dangerous and the deaf person knew that they would be unable to hear any warning.
	•	A Blind person may recover for a unprotected sidewalk opening
Davis v. Feirnstein- the Blind man fell into a open sidewalk basement entrance- he was talking the amount of care expected from someone who is blind- he was using a cane to find his way around. 
	▼	Age
	•	Standard for Children: Reasonable person with the age, intelligence, and experiance as the child being considered 
	•	Exception: Minor engauged in adult activity. -Generally- no special allowance is made for their age/immatuity/ experiance.
	▼	Minors who engage in an adult activity should not be held to the same standard as an adult.
Purtle v. Shelton Minor shot his hunting companion in an accident. NL because they applied a minor standard. 
	▼	2 step standard
	•	is the activity dangerous to others
	•	and is it normally engaged in only by adults
	•	It seems that this goes to the truck drivers, supra, to argue that because of the D's experience he should be held to a different standard. Bright line rules are easy to enforce, and provide consistency across jurisdictions.
	•	A 12 year old operating a motor boat should be held to an adult standard- It a usual adult activity.
	•	Youth doing adult activities should be held to adult standards, and when they do youthful activities, held to a youthful standards. 
	▼	Custom
	▼	Custom is not a conclusive factor, but it is relevant. 
	•	Technological change has an impact on custom. Just because one tug boat line doesn't make use of a radio, and another does, doesn't automatically make a radio's use necesseary as custom.
The T.J. Hooper
	•	Custom is another ellement used to determine what is reasonable.
	•	If it is custom not to provide a piece of safety equipment, then those who would be spared by its use are aware becasue its coustom to do it one way that they are being exposed to something. ???
Ellis v. Louisville and Nashville Ry. 
	▼	Custom is important except when the conduct in question is not inherently dangerous.
MacDougall v. Pennsylvania Power and Light Co.- fuse box that otherwise was customaryily used conducted electricity in the rain and shocked a repair worker. L.
	•	A high degree of danger calls for a high degree of care. 
	▼	When contractual ellements come into play, custom is inherent in the relationship and the prices paid between the parties.
	•	Economic relationships take into the account the cost and liabilities involved in the transaction. 
Rodi Yachts v. National Marine Inc.
	▼	Medical Malpractice
	▼	Custom is relevant - even conclusive- in medical malpractice claims.
	•	Jurors can make a determination about the reasonableness of tying up a tug boat, but it is more difficult to do the same in medical cases.
	▼	Locality Rule- The D must have exercised the amount of care that others in the same locality would have.
	•	Ensured that the amount of care exercised in smaller less well equipped areas was not put up against the latest and greatest techniques known only to the best hospitals in the country.
	•	Generally overruled now because the amount and spread of knowledge is more easily done wiht telephones plane and the internet.
	▼	Medical Facilities are different from doctors pratices
	•	Locality rule is appropriate when discussing the adequacy of facilities
	•	Protection of patients is not a medical function of hospitals but a service function. Some might provide more services than others. 
Johnson v. Wills Memorial Hospital
	▼	Negligence Per Se- goes to duty/ standard of care- replaces the juries judgement of what the reasonable person would do. 
	•	Generaly, violating a statute will make you negligent per se, if the purpose of the statute is to prevent the harm that occurred, and it is a safety statute.
	•	Neg. Per Se - Simply establishes that there was a duty- it DOESN't establish negligence.
	▼	Violation of Criminal Statutes
	•	By not turning on your lights, you are creating a hazard that the legislature explicitly made the statute to prevent. 
Martin v. Herzog
	•	If you can show good cause for the violation of a statute- while still acting in the spirit of the statute's motivation- you are not necessarily negligent per se.
Tedla v. Ellman- Walking on the highway in the wrong direction not negligent per se because walking the direction that they were was safer that walking the direction that the law proscribed.
	•	For negligence per se there has to be a violation of the policy behind the criminal statute that caused the harm.
Tingle v. Chicago
	▼	You must also consider to whom the duty is required under the statute
	•	A store owner is not liable to an individual injured in front of their store because of the owners failure to clean up dog poop. The statute is meant to obligate individuals to the city, to assist the city in keeping sidewalks clean, and not to clean a duty to individuals.
	▼	Neg. as a mater of law
	•	Reasonable minds will always come to the same result in these circumstances, so the judge should declare it neg as a matter of law to avoid the inevitable variation in jury verdicts 
	•	when we are dealing with a standard of conduct, and when the standad is clear it should be laid down once and for all by the courts" OWH
	•	Failing to stop fully, look and listen when crossing train tracks in a car, is negligence as a matter of law.
B&O RR v Goodman
	•	When it would be futile to take so much care as that the time required would render the amount of care immaterial, the you are not neg. as a matter of law as long as you took reasonable care 
Pokora v. Wabash
	▼	It is negligent  as a matter of law to fall asleep while driving because there are warning signs that reasonable people experience that they are getting sleepy
Theisen v. Milwaukee Auto. Mut. Ins. Co. 
	•	But it would not be Negligence per se if you were to fall asllep because of a sudden unanticipated medical condition. You would have no warning of this, and it would therefore not be negligent to keep driving when you have no indication of a problem.
	▼	Res ipsa loquitur- "it speaks for itself"- goes to duty- circumstantial evidence rule- shifts the burdeon from the P to D- D still has the opportunity to shift it back. 
	▼	Used when the only plausible cause of an accident was negligence. It is a very high probability that the cause was negligence.
	▼	4 parts
	•	The accident must be of a kind which ordinarily does not occur in the absence of someone's negligence
	▼	It must be caused by an agency or instrumentality within the exclusive control of the defendant
	•	BUT now it seems that it is not a deal killer to lack exclusive control.-Huffman says so.
	•	it must not have been due to any voluntary action or contribution on the part of the plaintiff
	•	P usually has no knowledge about what exactly happened to cause the negligence.
	▼	Used by P to establish negligence on the part of the D when it is not positive what caused the accident. 
	•	Injury implies the negligence
	•	Negligence per se looks at the conduct of the D and then looks at the statute to define the conduct. 
	▼	Who is injured should be taken into account, and their relationship to the injuring party
	•	A person walking on the street should be able to claim res ipsa when there is and injury from a neaby construction site, while the construction worker on the site assumes a different level of responsibility for being on the site.
	•	Can't claim res ipsa when there are multiple possibilities as to who the person responsible was.
	•	A random chair thrown from the window of a hotel does not count as res ips
	▼	Cf. a person injured by mud from the window of another hotel is res ipsa when the group staying at the hotel was so roudy, as a group,  the hotel had a duty to control them.
	•	Hence, a spontanious act would not make the hotel liable, but something ongoing would create a duty by the hotel to control their guests.
	•	If a person is injured by an escaped cow, it would not be res ipsa, because cows can escape from adequite confines. To rule other wise would require a very high standard with regards to penning cows.
	▼	Owning a gunpowder factory is an inherantly dangerous activity and the standard of care should be very high- an explosion would thus be res ipsa loquiter.
	▼	As the risk of danger increases, so does the expected standard of care.
	•	If something is extreamly dangerous, gunpowder factory, nuclear power plant, we almost expect strict liability.
	•	When there is equality of ignorance, res ipsa can apply
	▼	When there are multiple defendants, any of whom could have cause the accident, and there is no way to determine who precisely caused the accident:
	•	When the people are working together on the same task, like a medical procedure, res ipsa applies
Ybarra v. Spangard
	•	When the people are all working independently of each other, like a construction site, res ipsa does not apply.
Wolf v. American Tract Society.
	•	When there is a contractual agreement about the ownership and maintenance of equipment that fails- res ipsa applies.
Bond v. Otis Elevator
	▼	Duty
	▼	Affirmative Acts
	▼	Duty to rescue
	▼	There is no legal duty to rescue another in peril.
	•	You do not have to throw a rope to a drowning person
	•	You do have a duty to help those who have been injured by your conduct.
	▼	Standard Duties go to Nonfeasance
	▼	Nonfeasance- D has failed to aid P through beneficial intervention.
	•	liability can attach if a special relationship can attach. 
	▼	Misfeasance- D is responsible for making P's position worse
	•	Liability is governed by ordinary care.
	•	Duties arise out of relationships.
	•	There is a duty no to interfere with rescuers, even if there is no duty to rescue yourself.
Globe v NY Cent and H Rail Road Co.
	▼	Places of public accommodation must make the use of a phone available for calling rescuers.- BUT a private home does not have to open their home. 
Soldano v. O'Daniels
	•	Private homes would become open to people who fraudulently said there was a problem- ala Clockwork Orange, and harm could result. 
	▼	Theory- Duty to rescue is a kind of social conscription
	•	BUT when there are accidents, society, which we are all a part of, suffers.
	•	In duty to rescue, the question is: is it negligence to not rescue
	▼	Duties to Arise from Undertakings
	•	Undertakings result in special relationships often.
	•	Doctors have no duty to enter into employment agreements to save the life of another with whom he has a preexisting relationship
Hurley v. Eddingfield
	•	Hospitals have a duty to help those who arrive seeking medical attention- they cannot give medical advise, and then abandon them.
O'neill v. Montefiore hospital
	•	If you undertake to rescue- you must exercise due care to not put the person in need of rescue into a worse position.
US v. Lawter
	•	But-If there is a duty to rescue that does not make a rescuers liable for an unsuccessful rescue, as long as they exercise due care. 
Frank v. US
	•	You undertake liability for negligence when you voluntarily accept the duty to help another.
	▼	Not necessarily when you have a preexisting duty
	•	either way when you act to help, there is a duty to do sowith good faith.
	▼	Special Relationships
	•	Shipowners have a duty to use every possible means to rescue his men that have been washed overboard
	▼	Common carries have a duty to protect their passengers from injury and need to protect passengers
	•	But only as far as getting the passengers to their destinations safely.
	•	Carriers dicharge their duty when the passenger gets off the plane safely.
	•	There is a duty of care (usually) when a person places themselves in the care of others- like when getting on a plane.
	▼	Traffic accidents are caused by the consumption of alcohol, not the sale of gift of the beverage.
	•	There is a lack of duty to someone who provides alcohol.
	•	BUT courts have changed this rule.
	▼	Medical Providers have a duty to protect third parties from SPECIFIC threats of harm by persons under their care.
Tarasoff v. Regents of Uni. Cal. 
	•	They have a duty to protect others from third parties.
	•	But if the threats are directed at the public in general, and not a specific person, there is no duty
Thompson v. County of Alameda
	▼	A Duty to warn is different from a duty to rescue.
	•	Rescue puts the rescuer in danger, warning calls into qestion the nature of the relationship between the parties.
	•	When alcohol is involved, statutory rules are very often in play now.
	▼	Landlord are in a better position to protect the tenants in large multifamily units.
	•	Carrier/ passenger, school principle/ student, store owner/customer.
	•	When the ability of one of the parties to provide for his own protection has been limited in some way by his submission to the control of the other, a duty shouldby imposed upon the one possessing control, and thus the power to act, to take reasonable precautions to protect the other from assaults by third parties, which at least, could reasonably have been anticipated.
	▼	Doctors have a duty to warn those who might be exposed to communicable disseses.
	•	Execpt when the person to  be warned is unknown to the doctor at the time.
	▼	Public Duty
	▼	Police have a duty to protect the public, not specific people
	•	Police need to have discretion in doing their jobs, and to hold them to a duty requiring rescue of all members of the public.
	•	BUT Those who offer to help the police by responding to a request for information, are owed a duty of protection, by virtue of their offer to help.
	•	
	▼	Hand Formula
	•	There is no general rule that establishes when a bargee is neglignet. 
US v. Carroll Towing
	▼	Hand Formula: If the Burden is less than the amount of the loss mulitplied by the probability- then there should be liability, if it is greater then there should be no liability
	•	Takes into account of the costs associated with the gaurding against unlikly accidents.
	•	Its a way for a court to establish the amount of care that a person should take.
	•	Doesn't it make it difficult to decide if you would or would not be liable for an accident before the fact.
	•	But is it more or less telling than the reasonable person standard.
	▼	Does a standard like this really motivate people in their decision making process.
	•	It does make sense in that this is how people actually opperate.
	▼	The formula does not stop accidents
	•	It only assigns blame when accidents occur.
	▼	You should pay more when the proabability of the act is higher
Adams v. Bullock
	•	Its not foreseeable that a child will touch a electric trolley wire with another wire
	•	It is not negligent to try to save another life, while risking your own, unless that the risk to yourself is so high as to constitute rashness. 
Eckert v. Long Island Railroad
	▼	Duties arrising from the occupation of land
	•	Tresspassers are generally assume the risk of injury for their presence on the land they are tresspassing on.
	•	There is no duty to trespassers for mere negligence, there must be some intentional act toward them
Haskins v. Grybko
	•	BUT When the trespasser is a person who is harmed by a dangerous act, that could have harmed everyone present, and not just the trespasser, there is liability negligence.
Herrick v. Wixom.
	•	A land occupies owe n duty to unknown adult trespassers.
	▼	A Person squatting in a unoccupied house, who is harmed by a negligent act that occurs off of the defendants property, is able to collect for negligence.
	•	Everyone in the neighborhood was at risk because of the negligence, not just the one injured
	•	If the property is attractive to children, and you know that tresspassers come upon the land, you have a duty to guard against them
	▼	Licensee- a person coming onto the land with the express or implied permission of the land occupier, confering no particular benifit on them. Social Guest, Visiting relatives, buisness visitors, priviledged entrants, door to door salesmen, process servers. 
	•	There is a duty to warn lisencees of hazards you are aware of, but you don't have to find all the hazards in advance.-
	•	Land owner is not immune from harm resulting from active negligence.
	•	Licensees take the premisis as he find them and the duty of the owner of the premises is to refrain from wanton negligence or willful misconduct that would injure the licensee
	•	buisness licensees are there for the benifit of te business owenrs. 
	▼	Invitee a person who enters with the express or implied invitation of the land occupier for some purpose related to the activities or interests of them. Facilities open to the public, store customer, any person entering premises held open to the public- free or paid- theaters airports.
	•	they are owed a duty to exercise ordinary care for his safety.
	•	There is a duty to inspect and discover and to  warn of any artificial or natural dangers or to correct those dangers.
	•	At the home- people are generally licenee's or trespassers
	•	In a Buisness, they're either licenee's invitees or tresspassers.
	▼	California has changed the licensee/ invitee designation
	•	The court instead should infer liability relitive to the facts of the situation- licenssee/invitee distorts the relationship in certain cases. 
	▼	Privity Limitation
	▼	A contract between A and B does not include a duty to C, a person served by B
	•	Duties don't extend to third parties where there is no contact between the third party and the negligent party.
	•	They are third party benificiaries
	•	Just as police have a duty to protect the community, and not individual persons, Municiple contractors have a duty to the city, not to the individual homneowners.
	•	A contract should be how these are resolved, not through a tort action.
	▼	When the actions of A add value to something sold to C through B, there is liability to C by A.
	•	The actions of A directly effected the value of what C bought.
	▼	Duties resulting from contractual relations with municipalities are different from contracts with individuals.
	•	When the negligent act is what add direct value to the third party, and the primary party KNEW that the third party would relly- liability for negligence ill come about.
	•	Courts are looking at the burdons
	•	A power company will be liable for damages caused by a blackout to the individual owners, but not to someone whose property was looted because the power went out.
	▼	Third Party Liabilty should be weighed against:
	•	Extent to which the transaction affected the P
	•	Foreseeability of the harm
	•	degree of certaintiy that P suffered injury
	•	closeness of the conection between D's conduct and the injury
	•	moral blame attached to the D conduct
	•	policy of preventing future harm
	•	Where the harm is directed at a very specific person or group of people, liability generally attaches.
	•	Where the harm is directed toward a huge group, and thus the liability would be very large, courts are generally not going to attach liability.
	•	Privity results in duty: The doctrine of privity in contract law provides that a contract cannot confer rights or impose obligations arising under it on any person or agent except the parties to it.
	▼	Pure Economic Damages.
	▼	You generally can't recover for pure economic damages where there is no resuliting damage to property.
	•	A tort to the person or property of one man does not make the tort-feaser liable to another merely because the injured person was under a contract with that other unknown to the doer of the wrong.
Robbins Rule
	•	Exception would be fishermen- By the contractual relationship between fishermen and the boat owners, they kind of have the same relationship as the boat owner do with the company who injures them. 
	•	Goes strongly to foreseability- When there is a contract- the breaching party has knowledge of the extent of the damages that the breach has caused. There is an unknown as to how much liabiltiy they could be exposed to because of some economic relationship between the breached party and other parties.
	•	Pure -economic loss is sometimes a proxy of forseability.
	▼	Negligent Infliction of Emotional Distress
	•	All jurisdictions agree that liability for NIED and the act also results in physical harm. 
	▼	In the absence of physical harm- mental harm is much more difficult to find absent physical harm
	•	Of course- physical harm does not also entail mental harm
	•	The question is one of evidence- its easy to fake a mental injury when there is no resulting physical harm. 
	•	There can be liability where fright is proximately caused by negligence and the is a physical manifestation of the fright-Must be in the immediate zone of risk. 
Robb v. Pennsylvania Railroad.
	▼	Extending the liability for NIED will not decrease plane crashes.
	•	7 Factor Test-- Find it and put it in outline
	▼	Reality of injury is not certanty of injury
	▼	Just because you think you could be injured in an act does not make the likelihood of injury real. 
	•	the zone of risk is a foreseable thing
	▼	Duty v. Foreseability - 2 perspectives on NIED
	▼	Forgeability is a much more factual inquiry- was the emotional injury foreseeable
	•	A stricter look at NIED- The EMOTIONAL injury must be forseable, not just some ancillary property damage.
	▼	Duty is a contractual element- Did the injury result from a breach of duty
	•	Allows for a more liberal interpretation of NIED- more likely to recover
	•	Falsely accusing someone of a criminal act will forseeably cause them emotional harm and will result in liability
	▼	Important ellements of NEID
	•	Zone of danger- you must actually be in the risk of danger
	•	limit to the number of claims
	▼	It must be forseable that emotional injury will result
	•	Garbage truck rolls into house destroying lifes work in art. NL not forseeable.
	•	A fase criminal accusation is a foreseable harm
	•	Irrational Fear of harm
	▼	Restatement 3- Shifts from a duty to foreseeability doctrine.
	•	Jury would decide if the danger was foreseeable,
	▼	Judge decides if a duty was owed
	•	Duty is a question of law, foreseeability is a question of fact. 
	▼	Cause in Fact
	▼	But -for-Causation
	▼	Liability attaches when an injury occurs but-for the negligence on the part of the D
	•	A drowning was not "caused" by the lack of life saving equipment- its falling in the water. It is not certain that the person would have been saved  but for the negligence of the boat owner.
	•	A drowning could have happened even with the best safety equipment. 
	•	The probability for success in using the alleged negligent behaviour is an important element in determining liability
	•	But- If there is a statute that requires the posting of a sign- there will often be liability found- because to do otherwise would allow people to ignore the sign statute with impunity. There would be no teeth to the sign statute.
	•	The absence of a fence does not cret liability for drowning horses- they would have broken through the fence anyway. The fence is designed to keep people out- not horses.
	•	Incentive to take precaution is an important element.
	▼	Causation in an informed consent suit is to be judged by an objective standard.
	•	Cause is not a failure to warn if the person would have gone through it anyway.
	•	Would the reasonable person have engaged in the activity with the warning.?
	▼	In medical cases- if the procedure is neccesary then there is a objective standard applied
	•	If it is ellective- then there is a subjective standard.
	▼	Reduction in the chance of survival is sufficient evidnece of causation to allow a jury to decide-
	•	Any reduction is not sufficient- the evidence must be that the person
	•	MORE
	▼	Lost chance Doctrine
	•	A negligent act that changes a persons chance of death from 5% to 25% should result in liability wheneve someone dies. We are overcompensating some people and undercompensating others. But in the aggregate- everything is even. DO MORE WITH THIS> 
	▼	Alternative Liability
	•	CF Res Ipsa- Was it negligent? Alternative Liability- Who did it.
	▼	When a person is injured negligently and it is indeterminate who caused the harm but all are negligent, the burden shifts to the defendants to prove that they were not liable, lest they be charged according to their level of responsibility.
	▼	The whole amount of damages is collectible from EITHER Defendant. Joint-Several Liability
	▼	The D who the money is collected from may sue to collect from the other if the jurisdiction allows for contribution
	•	Contribution was not allowed under english common law.
	•	This allowed for the full recovery for the P, at the expense of the D's- one of whom is overpaying and one underpaying.
	•	If you have two people behaving in the exact same negligent mannor and someone is hurt, one of the persons caused the harm, and another did not. And one person will overpay and the other will under pay
	•	If ONE party is definitily  NOT negligent, alternative liability generally does not attach to BOTH
	▼	In products liability cases- the product must be fungible-
	•	Goes to assurances that everyone if equally responsible for the harm caused.
	▼	Proximate Cause
	▼	Remoteness and Foreseeability
	•	If the act is negligent, and ANY loss is reasonably foreseeable, then the negligent actor is liable for all DIRECT damages that result from the act, regardless of their foreseeability.
	•	The question to ask is what would the reasonable person have done BEFORE the harm occurred. If they could not foresee the accident, how could they take precauctions against it.
	•	THERE ARE HARMS THAT ONE CAN CAUSE AND NOT BE LIABLE FOR THEM. REASONABLY FORESEABLE HARMS ARE THE ONES THAT SOCIETY SHOULD SEEK TO REDRESS.
	•	Proximate cause becomes a rule of law that cuts off cases before the jury gets them.
	•	Freakish results that occur because reasonable standards were not followed do incur liability. It is not the result that we are looking at, it is the standard of care that we are looking to follow. If the Standard of care is not followed, and the tort is freakish and weird, but stems from a lack or reasonable and foreseeable care, liability attaches
The rat that catches fire and causes an explosion is freakish, but it was caused by a lack of care in handling gasoline and open flame heaters- liability- not bacause of the rat, but because of the gas and open flame heater.  
	•	See Cf to above note: a boat drifts negligently into a bridge, and closes the bridge. An ambulance cannot cross the bridge and a person dies as a result. No liability because the standard of care would require the boat owner to have plans in place to help ambulances cross rivers when their boats drift into bridges.
	▼	Foresight is the standard that governs.
	•	What harms could be reasonably anticipated- and what precautions should be taken to prevent those harms.
	•	If the precautions are not taken, and weird unanticipated results happen- liability will attach- even though the precise events were not anticipated. 
	•	Negligence is only possible if there is foreseeable harm.
	▼	Intervening causes
	▼	If party A acts negligently against party B, and party C intervens to cause harm to B. A is liable for B's injury caused by C.
	▼	IF the injury by C to B is reasonably forseeable because of A's negligence, then there is liability.
	•	If A's train breaks down, and B is murdered by C, A is not liable to B.
	•	If C acts as they normally would, A is liable.
	▼	If C acts to intententionally hurt B, then A is not liable.
	•	A negligently spills gasoline. C lights a cigarette and injurs B in an explosion. A is liable.
	•	A negligently spills gasoline. C throws a match intentionally into the gasoline and injurs B in an explosion. A is not liable. 
	•	It is more likley to be a intervening cause if the risk is increased by the act of the third party.
	▼	Palsgraf
	▼	Cardoza-Duty, there was a wrong, but not a legal wrong.
	•	The duty is not to Palsgraf, only to the person carrying it.
	•	It is unreasonable to expect an explosion from a dropped package.
	•	Palsgraf cannot recover on a wrong that occured to another person, the package holder. 
	•	All legal wrongs have a remedy- there is not duty here, so no legal wrong.
	▼	Andrews- Proximate Cause- The act of the railroad was the proximate cause of the injury.
	•	There is a duty to the whole world to protect them from their negligent acts, that the railroad was the proximate cause of.
	•	There is an unbroken chain of causation between the negligence of the Railroad and the injury to palsgraf.
	▼	It's ok for there to be legal wrongs, for which there are no remidies. 
	▼	If we have a duty to the world- then arn't all injurious acts compensatable. BUT he says we have to draw the line somewhere. So- on  the otherside of the line there is a duty to prevent the harm, but there is no remidy available because they were too far beyond the line
	•	This seems wrong
▼	Strict Liability
	▼	Animals
	▼	Wild Animals
	•	Owners are strictly liable for ANY injury by a wild injury- there is a presumption that they will do harm.
	•	Even if the other party is partly to blame.
	•	We can't forsee every possible harm that a wild animal would do, because they are wild, so we make their owners liable for all damages by them. 
	▼	Tame By Nature
	•	Rabbits. Assumed to be harmless unless proved otherwise
	▼	Tamed By Man
	•	Owner must know that the animal is dangerous before liability attaches.
	•	Once the dog attacks another, they are considered to be a wild animal from then on.
	•	"One free bite" rule the first bite is treated under negligence standards. 
	•	Bees, horses, cows
	▼	Rylands v. Fletcher- Basis of modern Strict liability
	▼	Blackburn "The person is damned without any fault of his own; and it seems but reasonable and just that the neighbor, who has brought something on his own property which was not naturally there, harmless to others so long as it is confined to his own property, but which he knows to be mischievous if it gets on his neighbors, should be obliged to make good the damage which ensues if he does not succeed in confining it to his own property."
	•	Exception: Acts of god, and interference by the one injured.
	•	Liable for all harms.
	▼	Cairns: Strict liability for non-natural uses of the property.
	•	What is a nonnatural use?
	•	Planting a Yew tree that grows so that a neighbors horse can eat it and die from the poison is held strictly liable.
	▼	Abnormally Dangerous Activities
	▼	Ellements
	▼	The risk of harm is great
	•	This is a property not of substances, but of activities.
	•	Gasoline in large ammounts is ultrahazardous.
	•	The harm that would result is great
	•	Such accident could not be prevented by due care
	▼	It is not a common activity
	▼	Lots of other people take on the risks of your actions that you are receiving the beinfit of 
	•	Cf. Driving a car- other drivers take part
	▼	Activity if inappropriate to the place where it took place.
	•	Ballooning in the city will likely cause more harm than ballooning in the city.
	•	The value to the community of the activity is not great enough to offset the potential harm
	•	Posner Comment: "Accidents that are due to a lack of care can be prevented by taking care and when a lack of care can be shown in court, such accidents are adequately deterred by the threat of liability for negligence."
	•	The archityple case for strict liability is dynamite.
	▼	Respondeat Superior
	▼	Generally- Employers are responsible for the negligent activities of their employees during the course of their employment.
	▼	"Scope of Employment" is the key
	•	Was the activity reasonably forseable
	▼	Did the employer require anything to happen that might have led to the opportunity of the harm
	•	Driving a specific route-
	•	"can be functionally defined by the reference to the liklihood that liability would induce benificial changes in activity."
	▼	Independant Contractors are exempt
	•	"If the one securing the services controls the means by which the task is accomplished, the one performing the service is an employee, if not, he is an independant contractor"
	•	The independant contractor is charged with determining the method of acomplishing the job
	•	Collateral acts by independant contractors does not make the employer responsible. 
▼	Defenses
	▼	Contributory Negligence
	▼	Contributory Negligence
	▼	Both parties are equally negligent, and the plaintiff will not be able to recover
	•	Some States: If P is 50% negligent- no recovery.
	▼	The standard of care is the same for professional truck drivers as it would be for all other drivers.
Fredericks v. Castora
	•	BUT Rest. 2nd says that people with exceptional abilities are expected to use those abilities in a manner that they are capable of.
	•	A strong person is expected to use their strength to extent that they can. A weak person would not be held to the same standard because they cannot physically do the same thing. 
	•	No longer good law in almost all jurisdictions.
	▼	Any such negligence by the plaintiff prevented all recovery
	•	You don't want someone to collect for their own wrong doing.
	▼	Common Law wrongful death- if you died, the cause of action died with you.
	•	Almost all statutory.
	•	Juries ended up acting in comparative negligence to avoid injustice.
	▼	Last Clear Chance rule- No longer good law-
	•	If the plaintiff was negligent and the defendant had the last clear chance to avoid harm 
	▼	Comparative Neglignece
	▼	Comparatively Negligence
	▼	Liability is assigned based on fault.
	•	If P is 75% responsible, then they may recover 25% of the actual damages from D
	•	Theory is that each shares the costs that they are actually responsible for.
	▼	"It is better to assume that the people know the law, than to apply it to their capacity in each and every case."OWH
	•	If you're driving down the road- its assumed that you know to drive on the correct side of the road, and if you don't the law doesn't exempt you from liability. 
	•	When both the plaintiff and defendant are both at fault the defendant is liable for the portion that they are at fault for
	•	Pure- D is liable for any portion of their negligence, no matter how small
	▼	50%- If the P is 50% liable, the D is liable for 50%
	•	BUT if the P is 51% there is no recover
	▼	49% If the P is 49% liable the D would pay 51%
	•	BUT if the P is 50% liable- there is no recovery
	▼	Comparative to what?
	•	Comparative to negligence
	•	NOT to the extent of harm or causation
	▼	EX: Big Truck v. Motorcycle- Each is equally negligent, but the truck caused 95% of the harm by virtue of the difference in size. 
	•	BUT they were equally negligent- so that is what the court focuses on.
	▼	If the act is so seriously against public policy there will generally be no recovery
	•	Joy riding in a car and then getting injured, even if the car owner was negligent in leaving his keys in the car, is neglignet, and recovery should be barred when the harm is their own doing.
	•	Doctors cannot claim contributory negligence for injuries Patients suffer on the opperating table, when the injuries that brought them there in the first place were negligent.
	•	Attempting to save a life does not make you contributorily negligent unless you act in a rash or reckless manner.
	▼	Express Assumption of Risk
	▼	Assumption by formal agreement
	•	Exculpation clauses must affirmatively state negligence to avoid cases of negligence.
	▼	Exculpatory clauses are void when they violate the public interest.
	•	Tunkle Rules about "public interest"
	•	Monoplists.
	•	where Agreement is drawn by the defendant and palintiff passivly accepts it, its terms will be construed strictly against the defendant.
	•	No duty to protect P
	•	P choose to encounter the negligently created by D.
	▼	Primary Assumption of Risk
	▼	Flopper Case
	▼	One who takes part in such a sport accepts the dangers that inhere in it so far as they are obvious and necessary.
	•	A fall in the flopper was forscene as one of the risks of the adventure.
	▼	Primary Assumption of risk is not a real defence- it prevents the P from making out the prima facia case of Neg. 
	•	It goes to duty- if the P assumes the risk- there is no duty by the D.
	•	If the floppper ride broke and the P was injured because of that, there would be L because the P did not assume the risk that the ride would not opperate in the intended way.
	▼	People are given the option- assume the risk and do the activity
	•	Or not assume and skip it.
	▼	Human Kite Case
	•	The risk assumed did not happen- the P assumed lots of risks in doing the stunt, but not the risk that the driver would disope his express directions, and that the Producers were telling the truth when they told him the dirver was a professional.
	•	A vetranarian assumes the risk of bite from animals becasue of their superior knowledge ad experiance.
	•	SUBJECTIVE STANDARD- but objective about what reasonable danger existed.
	▼	Secondary Assumption of risk
	•	THERE IS A DUTY HERE.
	▼	 And there may have been a breach of that duty, but the P recognized the risk and choose to accept it.
	•	"When one acts knowingly, it is immaterial if one acts reasonably"
	•	When one has a clear chance to avoid the risk and is injured by choosing to do the activity, there will generally be no Liability.
	•	Kind of like comparative neg- both parties were neg.