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The highest duty is owed to the business invitee. In this case a customer shopping for goods was a business invitee, as opposed to a trespasser or mere licensee. The duty owed to a business invitee includes inspecting for dangers, and making them safe, or posting a noticeable warning of the danger. Here, the oil had spread out into the main walkway and, although the kiosk had a duty to clean it up, the mall also was responsible, particularly for its main walkways.
If anything, bystanders should be entitled to greater protection than the consumer or user where injury to bystanders from the defect is reasonably foreseeable. Consumers and users, at least, have the opportunity to inspect for defects and to buy only from reputable manufacturers and reputable retailers, whereas the bystander ordinarily has no such opportunities. In short, the bystander is in greater need of protection from defective products which are dangerous.
An actuarial expert gets on the stand and explains in a step-by-step process how to compute the figure of lost earnings for the remainder of the man’s life. The appropriate expert for this is an economist or actuary. The figure must be reduced to present value so the defendant gets that discount and the plaintiff must invest it to get the extra interest that has been deducted by the discount rate.
The organization can have certain activities enjoined due to the acts of patrons who inflict damage to surrounding residential properties and interfere with people’s right to use and enjoy their land. An injunction to protect and preserve these rights is an appropriate measure, after a balancing test of the factors is made. The mere fact that the police might be able to provide relief is not sufficient to eliminate the need for an injunction. See Armory Park Neighborhood Assn v. Episcopal Community Services, 712 P.2d 914 (Ariz. 1985). Here, the interference was clearly substantial and unreasonable.
Assumption of the risk is a defense to strict liability in tort. This refers to the voluntary encountering of a risk that is explained and warned, yet the consumer proceeds to go forward. Using the product despite knowing of the stated danger.
Simply providing the venue for a party without actively providing intoxicants or drugs is not enough to raise a legal duty to the attendees. See Sakiyama v. AMF Bowling Centers, Inc., 1 Cal. Rptr. 3d 762, 768, 110 Cal.App.4th 398 (CA Ct. of Appeal, 2d App. Distr. 2003). Foreseeability does not alone establish a legal duty; there are other factors to weigh, including public policy factors. Thus, defendants who simply provide venues for drinking alcohol or raves where ecstasy may be used do not owe a duty of care to plaintiffs killed or injured by guests despite the foreseeability of car accidents. Id. 772-73. Furnishing drugs would make a difference but that did not happen here. Accord, Looby v. Local 13 Productions, 751 A.2d 220 (Pa.Super. 2000).
The tort of misrepresentation is an intentional tort that includes the making of statements of material fact, with the intent to mislead, that are false, and that are justifiably relied by the victim in suffering actual damages.
In pure comparative negligence, plaintiff’s recovery is limited to the percentage attributed to the defendant, even if the plaintiff was more than 50 percent at fault. Thus, plaintiff collects that percentage of the damages attributed to the defendant, which in this case is 40 percent of $100,000, for a recover of $40,000 from the defendant.
In most states, the action is allowed but there are restrictions. The plaintiff must be closely related to the victim, and she must be present at the time of the accident and witness the trauma to the son. She must then suffer severe emotional distress, which is the kind of distress that a normal person would be unable to adequately cope with. A minority view says that she can arrive immediately after the accident, before any changes occur, and before the victim’s location is changed; but in our example above the victim was moved and mother arrived after the scene had been cleared away. See Thing v. La Chusa, 48 Cal.3d 644, 667-68, 771 P. 2d 814 (CA Supreme Ct. 1989); Portee v. Jaffee, 84 N.J. 88, 101, 417 A. 2d 521(NJ: Supreme Ct. 1980); Clohessy v. Bachelor, 237 Conn. 31, 52-53 (CT Supreme Ct. 1996).
There must be a publication of the defamatory statement, meaning it must be communicated to a third person other than the doctor himself. There is nothing here to indicate that the caller said any of these things to anyone other than the doctor. If a nurse had been listening on an intercom or if the conversation was on speaker phone with others in the room than it could be asserted to be slander per se.
The tort prohibits spying, probing, peering and such stealthy activities into one’s private life and activities. The activities are judged by an objective standard of what would be offensive to a reasonable person under the circumstances. These activities are so intrusive and continuous as to constitute a true interference with the plaintiff’s right to privacy and the peaceful enjoyment of his life.
The attractive nuisance doctrine exists in some form or another in most jurisdictions. All states place a duty on landowners for young children when it is foreseeable to the defendant that young children will come on the land and be exposed to danger from an abnormal condition which young children cannot see or cannot appreciate. The rule does not apply to an obvious danger that children can appreciate. The older the child the less likely it is that the rule will be applied. The duty is triggered on the landowner to protect the children when it is not an obvious danger, especially to children under 12. In this case, the four prior incidents make it foreseeable, and due to their young age, the children cannot be held to the maturity or understanding to appreciate the danger. The defendants both knew that there was an unreasonable risk of serious injury or death to trespassing children in this situation. The burden of taking safety measures to eliminate the burden would be minimal in comparison to the risk to the children. See Restatement of Torts 2d Sec. 339. Before a duty will be imposed on an owner or party in possession, therefore, it must be shown that he knows or should know that children frequent the premises and it must be that the cause of the child's injury was a dangerous condition on the premises. Unless these two prerequisites are met, the harm to the child will not be deemed sufficiently foreseeable such that the law will impel the owner or party in possession to remedy the condition. Logan v. Old Enterprise Farms, 139 Ill.2d 229, 236, 564 NE 2d 778 (Ill Supreme Court 1990).
The intentional tort of interference with contract must allege (1) a valid contract, (2) defendant’s knowledge of the contract, (3) defendant’s intentional interference with the contract and a resulting breach, and (4) damages. All of these elements can be fairly found in the stated facts.
The function of the homeowners association is analogous to that of a landlord and the association owed a duty to plaintiff to protect her from the foreseeable criminal acts of others. The plaintiff alleged facts sufficient to show the existence of a duty, that defendant may have breached that duty of care by refusing to improve the lighting, and by ordering her to disconnect her additional lights, and that this negligence, if proved, was the legal cause of her injuries.
Res ipsa loquitur allows for negligence to be inferred, or for a rebuttable presumption of negligence, from the mere fact that an accident has happened. This is based on it being the kind of occurrence that does not normally happen unless there has been negligence, and in this case the instrumentality causing the injury was in the exclusive control of the defendant. The remaining requirement is that the event must not have been contributed to in any way by the plaintiff.
There was a duty owed to the 8-year-old because his presence on school property over the summer was foreseeable, and there were other children on the grounds. The school district was negligent in not following its own rules and keeping the chemistry lab locked and inaccessible. It was foreseeable that chemicals would be sought out by teenagers allowed in the lab. To establish a prima facie case, plaintiff must show that defendant's negligence was a substantial cause of the events which produced the injury. An intervening act will be deemed a superseding cause and will serve to relieve defendant of liability when the act is of such an extraordinary nature or so attenuates defendant's negligence from the ultimate injury that responsibility may not be reasonably attributed to the defendant. When, however, the intervening act is a natural and foreseeable consequence of a circumstance created by defendant, liability will subsist. Prosser, Torts (4th Ed), § 44, pp 272-280.
The law imposes a duty on those who have a venereal disease to protect others who might be in danger of being infected. By having unprotected sexual relations with the woman, the young man breached the duty of reasonable care imposed on him. By knowing that she was married, the young man tortfeasor was able to reasonably foresee that the young woman would have relations with her husband and that the husband could contract the disease in due course.
There is absolute liability for the creation and use of an abnormally dangerous condition or activity that the defendant is aware of and that directly causes damages. This is a strict liability tort so that negligence does not have to be proved.
Negligence per se is generally applied as a presumption of negligence where a violation of law results in the precise type of injury that the legal provision seeks to prevent and protect against. The violation that the defendant receives must be directly related to the actions that caused the accident. If the ticket is for not having operating brake lights, but the accident is caused while making a left turn then there is no negligence per se. The plaintiff must be one of the category of persons intended to be protected by the particular law. If the defendant is making an improper left turn but she rear ends another vehicle after the left turn is completed, then the injured person is not within the purview of the persons intended to be protected by the 'improper left turn' violation that the defendant received. In that event, there can be no negligence per se because it is irrelevant in these facts whether the defendant made a proper left turn.
See Howell v. New York Post Co., 81 NY 2d 115, 122 (NY Ct of Appeals 1993) (Liability is found only where the conduct has been so atrocious, outrageous and so extreme as to go beyond all possible bounds of decency, and must be “utterly intolerable in a civilized community”). See Murphy v. American Home Products, 58 N.Y.2d 293, 303, citing Restatement [Second] of Torts § 46, comment d (Liability does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities). See also, Hoffmann-La Roche Inc. v. Zeltwanger, 144 SW 3d 438, 445 (TX Sup.Ct. 2004) (behavior must be so severe and outrageous that no reasonable person could be expected to endure it). The defendant must have intended to inflict emotional distress, and the plaintiff’s reaction must be very severe. The current facts just don’t qualify for that kind of outrageousness. If this type of somewhat common temper tantrum were given actionable status in the workplace, the flood-gates would be opened to an overflow of cases, which is frowned upon by the courts.
Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas. But there is no constitutional value in false statements of fact. Neither the intentional lie nor the careless error materially advances society's interest in "uninhibited, robust, and wide-open" debate on public issues. The author here presents his essay as a “theory” and calls for bringing down a “system of non-democratic governance” if such system is found to really exist. There is a constitutional privilege for statements of opinion. Gertz v. Welch, 418 U.S. 323. See also, New York Times Co. v. Sullivan, 376 U. S. 254 (1964), which would apply here to rule out a claim for libel. New York Times applied to public officials but the Supreme Court extended the protection against libel to include discussions of public figures. See Curtis Publishing Co. v. Butts and its companion, Associated Press v. Walker, 388 U. S. 130, 162 (1967). The well-known billionaire philanthropist in our question qualifies as a public figure.
Res ipsa loquitur applies if the following exist: (1) the event must be of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not be due to any voluntary action or contribution on the part of the plaintiff and (4) evidence as to the true explanation of the event must be more readily accessible to the defendant than the plaintiff (Prosser, Torts [3d ed.], 218).
The tort consists of the nonconsensual, intentional confinement of a person, without lawful privilege or cause, for an appreciable length of time, however short. That length of time can be as brief as 15 minutes. Restraint may be effectuated by means of physical force, threat of force or of arrest, confinement by physical barriers, or by means of any other form of unreasonable duress. (See Rest.2d Torts, § 40A.). See Fermino v. Fedco, Inc., 872 P. 2d 559 (Calif. Sup. Ct. 1994). Here, the employer appears to have had no good reason for the confinement – it was fishing expedition, and an emotionally brutal one at that.
Once a therapist does determine, or under applicable professional standards reasonably should have determined, that a patient poses a serious danger of violence to others, he bears a duty to exercise reasonable care to protect the foreseeable victim of that danger. While the discharge of this duty of due care will necessarily vary with the facts of each case, in each instance the adequacy of the therapist's conduct must be measured against the traditional negligence standard of the rendition of reasonable care under the circumstances. That is usually a decision for the jury to make after all of the factual evidence is in.
Here, the powerful nature of the vehicle and the difficulty in operating it without training created “special circumstances”, which is an exception to the general rule that simply leaving the keys in the vehicle is not enough for foreseeability. See Palma v. U.S. Industrial Fasteners, Inc., 36 Cal. 3d 171, 183-86, 203 Cal. Rptr. 626, 681 P.2d 893 (1984). In Palma, defendant parked a large flatbed truck overnight in an unfenced lot in a high-crime area with keys inside, door unlocked, and window open. This was held to be a triable issue of foreseeability. Id. at 186. In a negligence case, a plaintiff must prove that the defendant’s act created a foreseeable zone of danger of such magnitude that the defendant owes a duty to the plaintiff to refrain from engaging in the act. Herrera v. Quality Pontiac, 134 N.M. 43, 73 P.3d 181, (2003).
It was not foreseeable that an experienced, seasoned lifeguard would jump into shallow water at the shallow section of the pool. It is also not that unusual for a lifeguard chair to be place at that location and many other locations – this should not interfere with the lifeguard’s experienced discretion in knowing where and how to enter the pool. Therefore, this was a highly extraordinary act that was not within the sphere of the foreseeable risk created by the defendant’s careless acts. The plaintiff’s admitted knowledge of all factors made his actions reckless under the circumstances. Thus, the unforeseeable act by the plaintiff was an intervening, superseding event that cut off the chain of liability. See Boltax v. Camp, 67 NY 2d 617, 618-19(NY Ct. of Appeals 1986). Note that the Court of Appeals of New York is the highest appellate court in that state.
With respect to battery, there is a lack of proof of actual intent by the hospital. The same defense would apply to the tort of assault. Intentional infliction of emotional distress also fails on the intent issue, and the actions were not outrageous enough to establish the kind of egregious behavior necessary for that tort. Intent with respect to these torts is defined in the Restatement in effect that the actor intends to cause the consequences of his act or that he believes that the consequences are substantially certain to result. It is much more likely that negligence, being the lack of due care under the circumstances, is the tort action that has the best chance of being successful. The danger to a funeral home personnel, who are often required to embalm bodies, was foreseeable. The hospital had a duty to prevent that kind of injury to a company that it did business with regularly.
The parties in almost all states must be married, for a loss of consortium claim to be made. Generally, the spouse joins in the action and asserts a separate count in his or her name alone, for loss of companionship, affection, love, sexual relations and household services. There is no justification for denying a loss of consortium claim to a spouse who is in a same-sex marriage.
Defendants are deemed concurrent tortfeasors because their independent acts combine to cause a single injury. Under this theory, plaintiff has the burden of presenting sufficient evidence to prove to the jury that each defendant's act (the original tortfeasor's negligence and the manufacturer's defective product) was a substantial factor in producing the plaintiff's injuries. Should the plaintiff's injuries be indivisible, the defendants are held jointly and severally liable as concurrent tortfeasors for plaintiff's total damage. If reasonable minds could differ on whether the plaintiff's injuries are divisible, the trier of fact determines whether the injury can be reasonably apportioned among the defendants and the extent of each defendant's liability.
An assault for civil action damages consists basically of an action or movement with the intent to cause a harmful or offensive contact, or to cause apprehension of such contact, where the victim is put in reasonable apprehension of an imminent harmful or offensive contact. Here, all the elements are clearly met and the female rep would have an assault claim in civil court. That doesn’t mean that the claim would be worth much, or worth the trouble of suing, but if the threats became repetitive, the long-term emotional trauma to a defendant could become significant.
