We impose negligence when there is a precaution we want people to take



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§322: “If the actor knows or has reason to know that by his conduct, whether tortious or innocent, he has caused such bodily harm to another as to make him helpless and in danger of further harm, the actor is under a duty to exercise reasonable care to prevent such further harm”

  • Summers v. Dominguez, 84 P.2d 237 (Cal.App. 1938)

    1. D struck P with his car. D had been drinking. D drove away.

    2. Court did not hold D liable for his “original misconduct” but for “a separate duty to aid and protect the other after his helpless condition caused by the actor’s misconduct is or should be known.”

      1. RPD: How do you calculate damages for a case like this (assuming the underlying injury was innocently caused)?

  • Similarly, once aid is voluntarily provided to an injured/helpless person, the rescuer can be held liable if:

    1. He fails to provide reasonable care, or

    2. He leaves the injured person in a worse position than when the actor took charge by discontinuing his aid. Zelenko v. Gimbel Bros., 287 N.Y.S. 134 (N.Y. Sup. Ct. 1935)

  • Exception to no affirmative duty to rescue. A person can be held liable if he negligently prevents a third party from helping an endangered person from giving aid

    1. Soldano v. O’Daniels, 190 Cal. Rptr. 310 (Cal. App. 1983). P was being chased and asked to use the D’s restaurant’s phone. D refused. P asked D to call the police. D refused. P was subsequently killed.

      1. Court held that D had a duty to allow P to call the police or allow a patron to do so, even though D did not have an actual duty of rescue

      2. RPD: Seems similar to necessity cases

  • Constitutional dimension to duty to rescue

    1. 14th Amendment does not create an affirmative duty on state agencies to prevent child abuse. DeShaney v. Winnebago.

      1. P was being savagely beaten by father. D social services were aware of this but did nothing. Child was eventually left brain damage. Brought claim under the “due process” prong of the 14th Amendment

      2. “If the Due Process clause does not require the State to provide its citizens with particular protective services, it follows that the State cannot beheld liable under the Clause for injuries that could have been averted had it chosen to provide them.”

      3. RPD: Imagine if the case had come out the other way. The State would b/c responsible for everything

    2. However, K.H. v. Morgan, 914 F.2d 846 (7th Cir. 1990) (Posner, J.). §1983 conferred a limited right of action to a ward of the state. Breach of duty when a child in state custody is handed over by state officers to a foster parent or other custodian, private or public whom the state knows or suspects to be a child abuser”

      1. Posner did remand on the question of damages and did not allow P to recover on the claim that she had a right not to be shuttled b/t foster homes

      2. RPD: This is not dissimilar to the rule found in Montgomery.

    Duties of Owners and Occupiers

    1. Law distinguishes between trespassers and lawful entries

      1. Trespasser takes the risk of purely accidental injuries at the very least

      2. Landowner has some duty of care to persons lawfully on the premises

        1. Law formerly distinguished between:

          1. Social guests (“licensees”) → lower duty (warn of latent defects)

            1. Child brought by her grandmother to grandmother’s part-time place of business at a church was a licensee. Lemon v. Busey, 461 P.2d 145 (Kan. 1969)

            2. P killed while chopping down a tree for his girlfriend’s family’s bonfire was a licensee. Knorpp v. Hale, 981 S.W.2d 469 (Tex. App. 1998)

          2. Business visitors (“invitees”) → higher duty (reasonable care to both discover danger and keep premises safe)

            1. Individual injured on a paid tour of a home was an invitee for the purposes of tort. Post v. Lunney, 261 So.2d 146 (Fla. 1972)

        2. Distinction has been disregarded in certain jurisdictions

    2. Epstein on this subject: Why is it if an independent contractor comes onto your land and creates some third party harm, you are liable and yet if the contractor kills someone on the way to your house, you are not responsible?

      1. You have a lot more control over your premises

      2. If contractor is working on Blackacre, only the owner of Blackacre can be responsible

        1. Note: liability as between the contractor and the owner of the locus in quo can be established by contract (and then insurance)

        2. If contractor is going to the store, he could be going for many different jobs (many different liabilities)

      3. Another exception to employees is delivery boys:

        1. If it isn’t a premises specific occupation, then owner is only responsible for the torts committed on the premises (limited vicarious liability)

        2. One test that then gets applied is the number of employers for which you are operating:

          1. E.g., the more different newspapers you deliver, the more likely you are considered to be an independent contractor

            1. The fewer you deliver, more likely to be an employee

            2. Also, the question of “who brings the supplies”

              1. Bring the supplies → contractor

              2. Supplies on premises → employee

              3. Creates substantial tax implications as well

    3. Distinguishing between invitees and licensees. Focus on the nature of the premises rather than the purpose of the visit.

      1. Rules of invitees: Applies to those who operate premises to which the public is generally invited

        1. Invitee Defined (Restatement §322): (1) Either a public invitee or business visitor (2) Invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public. (3) Business visitor decfines as person invited to enter/remain for a purpose directly/indirectly related to business of the possessor of the land

        2. NOTE: Duties to firefighters/cops/public officials. Generally treated as business visitors if they arrive at a premises under ordinary circumstances.

          1. Mounsey v. Ellard, 297 N.E.2d 43 (Mass. 1973). Police officer delivering a summons was implied invitee. “The mere fact that a policeman rather than a mailman delivered the criminal summons should not affect the standard of care owed by the occupier or owner.”

      2. Rules of licensees: Those who maintain private premises

    4. Trespassers.

      1. Robert Addie & Sons, Ltd. V. Dumbreck A.C. 358 [1929]. There is no duty on a proprietor to fence his land under the sanction that, if he does not, those who come over it become licensees. Proprietor has no affirmative duty of care as regards trespassers

        1. D operated a coal hauling facility. At the end of the hauling system was a mechanical wheel which attracted children. D did not fence its land in, but attempted to chase away children when they appeared (which the children continuted to do anyway)

        2. Wheel was dangerous and attractive to children. P’s son, a 4-year old, had been warned not to play there, but was drawn into the wheel and killed.

        3. Court based its ruling entirely on capacity in which the child was on D’s land (invitee, licensee, trespasser). P was held to be trespasser, hence no liability

        4. Exception: When D’s conduct represents such reckless disregard for the known danger imposed on others so as to be “willful and wanton”, liability may be found. Excelsior Wire Rope Co., Ltd. v.Callan, A.C. 404.

          1. D had dangerous machinery next to a playground, where the children often played on D’s machinery. Child was caught in the machinery and injured

          2. Court allowed recovery, and distinguished from Addie on the theory that D had acted in reckless disregard for P’s welfare by starting the machine without making certain that children had been cleared.

          3. Rule also applied in Gould v. DeBeve, 330 F.2d 826 (D.C. Cir. 1964). (Cited in Rowland to justify Rowland’s departure from differing standards of care)

            1. P, staying illegally with a tenant of D, had her baby fall out of the apt window through a screen that was defective “in almost every conceivable way.”

            2. Court held P to be a trespasser, but allowed recovery since D’s conduct was “willful and wonton misconduct” in ignoring statutory obligation to replace the screen after being asked to do so.

    5. Shift away from tri-partite classification of entrants to land. Rowland v. Christian, 443 P.2d 561 (Cal. 1968). Court explicitly rejected varied standards of care owed by a possessor to entrants, rather the possessor owes a reasonable standard of care to any entrant regardless.

      1. Facts

        1. P, a social guest to D’s home, was injured by a broken faucet. D had known of the damaged faucet and the risks posed but did not warn P

        2. D had won summary judgment on basis that P was a social guest

        3. Court reversed summary judgment, “[a guest] should reasonably entitled to rely upon a warning of the dangerous condition so that he, like the host will be in apposition to take special precautions when he comes in contact with it.” Hence summary judgment was inappropriate

          1. RPD: As an aside, remember that the court’s reluctance to use SJ in this case can perhaps be rooted more in the general attitude towards summary judgment at work at the time.

      2. Levmore: But why would we make Macy’s, say, more liable than the private home owner who has friends over to his place?

        1. Similar to the idea that there this no intent to create binding obligations among friends/family (RPD: Hall v. Hall, the law will not enforce marital obligations simply b/c they are in contractual form. Friends/family will perform even in the absence of contracts, though business partners probably will not)

          1. Also, do we really want to deter people from making gifts?

          2. We want the “signaling” function created by gifts (a non-binding promise signals some gratuitous intent, but also not to the extent that the promisee ought to rely on it)

        2. Note: There are some situations in which unilateral promises can be enforced (Allegheny College).

        3. On the other hand, Macy’s is probably not internalizing the concerns of their patrons (in the same that, say, a friend might) in the absence of legal obligations

        4. We presume that a business arrangement wants some sort of formality inasmuch as we presume friends/family would not want that formality

          1. Like good Coseans, it’s very hard for Macy’s to contract with each and every patron

          2. However, it is not hard for friends and families to contract around these things

          3. Similarly, we can assume that we would not want to create a contract where a trespasser could get damages as a result of his trespass

      3. Response to Rowland has been mixed.

        1. Some states have adopted Rowland’s one standard of care, some have not. Some states have maintained the trespasser distinction, but maintained a single reasonable standard of care for invitee/licensees

        2. Statutory modifications.

          1. IL, for instance, has abolished the distinction b/t licensees and invitees. Applied in Ward v. K-Mart Corp., 554 N.E.2d 223 (Ill. 1990). D liable when P collided w/a large concrete post that had been inappropriately marked, given that shoppers would be leaving the store encumbered w/large packages.

          2. However, statutory modifications generally protect landowners from claims by people engaged in sports on the premises

      4. Duties to strangers post Rowlands.

        1. Generally speaking, American courts do not impose liability for natural conditions, except those injuries caused by falling trees.

        2. But see Sprecher v. Adamson Co., 636 P.2d 1121 (Cal. 1981). D held liable for failure to prevent a mudslide after heavy rains threatened damage to neighbor’s home, located downhill.

          1. Court noted that “it is now clear that a duty to exrcise due care can arise out of possession alone.”

            1. Whitt v. Silverman, 788 So.2d 210 (Fla. 2001). Court rejected traditional rule on the basis that liability of a commercial business in an urban area specifically relying on the frequent coming and going of motor vehicles should be guided by forseeability analysis.

            2. D, owner of a gas station, held liable when pedestrian was struck and killed and another injured when driver’s view leaving gas station was obstructed by heavy foliage.

    6. Attractive Nuisance Doctrine. A possessor land is subject to liability for physical harm to children trespassing caused by an artificial condition upon the land if (Restatement (Second) §339))

      1. Possessor knows or has reason to know that children are likely to trespass

      2. And should realize that the condidion involves an unreasonable risk of death/serious bodily harm

      3. Children, because of their youth, might not realize the risk

      4. Utility in maintaining the condition is slight as compared with the burden to mitigate the risk and the risk to children

      5. Possessor fails to exercise reasonable care to eliminate the danger/otherwise protect children

      6. Note: The doctrine seeks to reconcile the possessor’s free use of land with the general law of negligence

    7. The assumption of risk – section (c) – bars many claims

        1. Merrill v. Central Maine Power Co., 628 A.2d 1062 (Me. 1993), nine year old plaintiff could not recover when he climbed over a fence surrounding defendant’s electrical power substation and badly burned himself while trying to cook an eel on a live wire.

    8. However, more routine settings can make summary judgment inappropriate as to the care actually taken by a possessor regarding an attractive nuisance. Carmona v. Hagerman Irrigation Co., 957 P.2d 44 (N.M. 1998). Court held that SJ was inappropriate when P drowned in an irrigation ditch

      1. Note: The Restatement definition of Attractive Nuisance Doctrine has been adopted by at least by NM, OH, UT per the casebook

    Gratuitous Undertakings. Incomplete undertaking → liability.

    1. Restatement §324(a): Liability for gratuitous acts/promises if:

      1. Failure to exercise reasonable care results in increased risk of harm actually suffered

      2. D undertook to perform some duty owed by P to a third party

      3. Harm suffered is b/c of reliance of P or third party

      4. RPD: Note the inapplicability of the Restatement to the WaterCo. exception

    2. Reasonably foreseeable reliance generally the test for liability in gratuitous undertakings

      1. Based in part in promissory estoppel (which is essentially an extension of the tort theory of forseeability into contract law)

      2. One who undertakes to warn the public of danger and thereby induces reliance must perform his good Samaritan’ task in a careful manner. Indian Towing v. United States, 350 U.S. 61 (1955)

        1. Voluntary safety precautions undertaken by a party can create liability when that party knew or should have known that such precautions will be relied on. Erie R.R. v. Stewart, 40 F.2d 855 (6th Cir. 1930)

          1. P was in a truck crossing D’s train tracks. P knew D generally employed a watchman to warn of oncoming trains, though D was not statutorily obliged to do so. P was struck by train when watchman was not at his post

          2. Court held that such a safety practice was known to the general public such that the public relied on it, a positive duty was affixed to the RR.

          3. Concurring opinion dislike the court’s use of the subjective understanding of the public

            1. Standard of care undertaken by the RR was the standard of care (regardless of the public’s p.o.v.)

            2. Reliance should only be an element of contributory negligence

      3. Voluntary undertaking for a party can result in liability if that service is negligently performed. Marsalis v. LaSalle, 94 So.2d 120 (La. App. 1957)

        1. P was bitten by D’s cat, though there was no negligence. D offered to hold onto the cat to test it for rabies. Cat subsequently escaped, through negligence of D. P got a rabies shot, but complications ensued. It turned out the cat did not have rabies.

        2. D owed no initial duty to P, but once he voluntarily undertook this responsibility he was required to exercise reasonable care.

        3. However, P was only allowed to recover for the harm suffered as a result of the rabies shots and the costs thereof

    3. Waterworks Exception. Based on the idea that “The vast institutional arrangements needed to supply utility service in modern settings have wholly outgrown the Procrustean bed of the common law approach to incomplete undertakings” Epstein, Torts (1999).

      1. P unable to recover under breach of contract or tort when Water Co. negligently fails to maintain proper water pressure and P’s house is burned by fire. Moch v. Rensselaer Water Co. 159 N.E. 896 (N.Y. 1928) (Cardozo, J.). Nonfeasance alone does not result in liability.

        1. Court held P was merely a gratuitous beneficiary to the locality’s contract with the water co, hence P could not recover under breach of contract claim

        2. Court held that acts of omission could only give rise to tort liability if the relation b/t P and D was such that the omission would cause injury as opposed to simply withholding some benefit

          1. P’s relation with WaterCo. was not such that its omission caused injury

        3. Without tort liability, P could not recover under breach of statutory duty, either

          1. RPD: Cardozo is concerned with the fact that no premium sufficient to cover such liability was involved in the Water Co.’s initial rate structure

      2. However, Weinberg v. Dinger, 524 A.2d 366 (N.J. 1987). Insurance subrogation rights may be enforced against a negligent WaterCo. only to the extent that claims are uninsured or underinsured

        1. Epstein notes the problem, however, that this might incent parties to deliberately underinsure in order to preserve claims

    4. Moch is generally applied in order to limit exposure of insurance companies/landlords/employers so as to promote inspection

      1. RPD: After all, if you didn’t you would have the perverse outcome that you punish a D more if their standard of care is higher. “Even a negligent inspection could result in fewer injuries than no inspection at all” Epstein, Torts, §11.3.2.

      2. Levmore: Look at Moch in the sense that there is no single identifiable party for which the WaterCo. must supply water. Moch should be understood as a wealth distribution case

        1. No “privity” between WaterCo. and P (contractual relationship).

        2. Can also understand Moch in the background of Insurance

          1. If WaterCo. pays, water prices go up

          2. If InsuranceCo. pays, insurance goes up

          3. Because insurance is a private choice by the homeowner, we’d rather have insurance costs go up (the costs of insurance will more fairly reflect the assets of the individual homeowner. I.e., we don’t want rich homeowners to be able to spread the costs of their water over poor people. Rather have them pay for higher insurance rates)

    Special Relationships. Generally speaking, there is no duty to prevent third parties from harming others unless a pre-existpiing “special relationship” exists b/t the actor and the third party or the injured party has some special relation to the actor affording the injured party some right of protection.

    1. Weirum v. RKO General Inc., 529 P.2d 36 (Cal. 1975). D held liable when its disc jockey had a contest that required individuals be the first to reach a specified location and P was killed while racing there at 80mph

      1. Court based its ruling on the idea that D had specifically intended to create this sort of “competitive pursuit”

      2. Levmore: This is an easy case to predict: it’s a single party relationship

        1. Court wants to deter these types of contests (it’s easier to keep the disc jockey from conducting some sort of contest, than to deter teenagers from speeding)

        2. Remember, there are substantial risks third party harms involved (e.g., the next time the negligent driver could kill a busload of nuns)

    2. Kline v. 1500 Massachusetts Ave. Apartment Corp. 439 F.2d 477 (D.C. Cir. 1970). Landlord liable if he fails to take reasonable steps to protect tenants from foreseeable criminal acts committed by third parties

      1. Facts:

        1. P was assaulted in apartment building following a series of attacks in building. Building lacked doorman, and entrance was generally left unlocked.

        2. When P had moved to the building, there had been a doorman and security

      2. Court focused on the fact that the premises was under the exclusive control of the landlord; and consistent with the notion that landlords have a responsibility to maintain the structural elements of the premises (staircases, etc.)

        1. He’s the only party with the power to make the required precautions

      3. Landlord must have notice of the crime and the ability to mitigate the risk

        1. That is, the risk must be probable (landlord not liable for random acts)

    3. Institutional responsibility and the “special relationship”

      1. Liability for schools: Peterson v. San Fracncisco Community College District, 685 P.2d 1193 (Cal. 1984). Community college district had duty to protect a college student against foreseeable criminal assault that took place in broad daylight on campus on the strength of special relationship b/t school and student

      2. Common Carriers. Lopez v. Southern California Rapid Transit District, 710 P.2d 907 (Cal. 1985).

      3. Condominiums. Frances T. v. Village Green Owners Assoc., 723 P.2d 573 (Cal. 1986). P was sexually assaulted in her condo at night after the condo association refused to letter install lights by her unit for her own self-protection.

        1. Court extended Kline

      4. Shopping malls. Ann M. v. Pacific Plaza Shopping Center, 863 P.2d 207 (Cal. 1993)

        1. Court denied recovery to P who had been raped in her place of employment at 8am when she tried to sue landlord.

        2. Court held that the crime did not meet the requisite degree of foreseeability to warrant the precautions (security guards) that would have been required by P’s argument

      5. Off-premises liability. Kuzmicz v. Ivy Hill Park Apartments, Inc. 688 A.2d 1018.

        1. Court denied recovery when P was mugged crossing an abandoned lot to get to D’s property.

        2. D had erected a chain link fence to prevent people from doing this

    4. Plaintiff bears the burden of proof to show that D’s negligence resulted in harm suffered when P is making a claim on a “special relationship” theory. Burgos v. Aqueduct Reality Corp., 706 (N.E.2d 1163)

      1. P was beaten by two men when leaving her apartment

      2. Court held that P had the burden of showing that the criminals had entered through the negligence of D, and met this burden by saying that all of her apartment building’s locks were malfunctioning

    5. Contributory negligence can limit recovery

      1. Wassell v. Adams, 865 F.2d 849 (7th Cir. 1989) (Posner, J.): P raped when she let a person into her hotel room in the middle of the night thinking it was her fiancée. Sued the hotel. She won a jury verdict, but P was found 97% negligent

      2. “It is absurd to think that hoteliers are required to give so obvious a warning any more than they must warn guests not to stick their fingers into electrical outlets”

      3. Also, the problem was not a lack of warning but that the plaintiff was half-asleep

    6. Limits on other duties to occupiers. Courts have generally shown a reluctance to extend Kline beyond a reasonably duty of care to prevent criminal acts

      1. Drew v. Le Jay’s Sportmen’s Café, Inc. 806 P.2d 301 (Wy. 1991). Decedent choked to death while eating a meal.

        1. D had duty to “promptly call” for help, but not to actually administer first aid

      2. Atcovitz v. Gulph Mills Tennis Club Inc. 812 A.2d 1218 (Pa. 2002)

        1. D tennis club not required to have a defibrolator for benefit of paying customer w/heart disease

      3. Mastriano v. Blyer, A.2d 951 (Me. 2001). Cab driver only had obligation to see drunk passenger had “safe exit” and not to make sure passenger did not drive while intoxicated

      4. KFC of California v. Brown, 927 P.2d 1260 (Cal. 1997). D was under no obligation to “instantly comply” when a criminal used P as a hostage and demanded D open the safe

        1. Court noted that to do otherwise could actually incentivize hostage taking, and that there was no guarantee that the criminal would actually let the hostage go

    7. Tarasoff v .Regents of University of California, 551 P.2d 334 (Cal. 1976). Physican may be held liable for the criminal acts of his patient if those acts were reasonably foreseeable and physician failed to warn the endangered party/police/anyone at all. based on the “special relationship” between psychiatrist and patient

      1. UofCal. It’s not a psychiatrist, it’s a clinical psychologist . Psychologist diagnosed patient as possibly dangerous and recommended he be committed. Patient later killed the woman for whom he expressed such violent urges.

      2. Court cited both Dillon v. Legg and Rowland v. Christian to argue for a broad understanding of proximate cause, and placed heavy emphasis on the direct

      3. Limits of Tarasoff

        1. Thompson v. County of Alameda, 614 P.2d 728 (Cal. 1980). D released a juvenile with long history of abuse. Juvenile had claimed he would kill an unspecified individual upon release. Subsequently killed P’s son.

          1. Court barred recovery. Distinguishing Tarasoff on the basis that the identity of victim was unknown

        2. CA statute now requires physicians warn relevant parties. Liability only ensues of “patient has communicated… as serious threat of physical violence against a reasonably identifiable victim or victims”


    Traditional Strict Liability:

    Levmore

    Now: The important starting point is Rylands v. Fletcher: Normally our system adopts a negligence rule. (Show bad behavior, show harm, show damages). But there are some areas that are exceptional in which we impose strict liability (though still need to show harm and damages). Rylands: This used to be:



    • Fires

    • Common carriers/innkeepers

      • Little bit b/f our time, since we are accustomed to statutory liability right now

      • Innkeeper could be liable for damage to the goods of guests

      • Hence the reason that innkeepers have safes now, and statutes limiting liability to the use of the safe

    • Non-voluntary bailments/conversion

    • Grazing cattle

      • A very old rule

      • Value of damages is the damage incurred by the cattle

    • Conversion

    • Note: Takings are sort of strict liability

      • Vincent v. Lake Erie

      • This is a big case for Levmore

    • “ Sort of” strict liability b/c it is agreed that it was not negligent on the part of the ship to tie itself to Erie’s dock.

      • This applies also to takings under the 5th Amendment (eminent domain)


    Conversion

    1. Levmore: Assume someone steals your $1,000 of your money, and uses it to make an investments, which result in a gain of $100,000.

      1. Three possible rules:

        1. Recovery of the $1,000

        2. Recovery of the $1,000 plus interest

        3. Recovery of the $1,000 plus the $100,000 gain (a “tracing” rule)

      2. The U.S. rule is (3): Recovery of $1,000 plus $100,000

        1. Justification is that most times the tortfeasor will waste the money in the investment, or the thief has lost the money or wasted it or done something to make himself judgment proof

        2. So, the rule is really just applied in the highly unusual case that the money (and the gain) is actually recoverable

    2. Conversion generally results in application of strict liability to tortfeasor

      1. Levmore: The law is taking the very strong property rights/bargain view of the world in this respect (the law likes strong property rights in non-emergency situations when there is time to bargain)

        1. Generally speaking strict liability will be applied in conversion situations ((Levmore adopting the Posnerian assumption that the parties could have had time to bargain)

        2. We will impose liability b/c we want these parties to bargain

        3. RPD: An action is trover is the proper action for conversion

      2. Poggi v. Scott, 139 P. 815 (Cal. 1914). Lack of intention or negligence is no defense to an action for conversion.

        1. Levmore: The case makes no sense unless you assume that the parties who induced Scott to sell the property are missing or otherwise judgment-proof (so Poggi can only pursue recover for Scott)

        2. Scott sold some allegedly empty barrels of wine, belonging to P (though stored with the lessee of D’s building).

        3. Court held the conversion as analogous to trespass: “Absence of bad faith can never excuse a trespass, though the existence of bad faith may sometimes aggravate it. Every one must be sure of his legal right when he invades the possession of another.”

        4. Note: Distinction b/t trespass and conversion . Trespass merely implies misappropriation; conversion is something inconsistent with the rights of the owner

      3. Maye v. Tappan, 23 Cal. 306 (1863). D dug up goldbearing earth from P’s land after P mistakenly, but sincerely, told D that P owned the land. P was awarded damages on a theory of strict liability equal to value of the gold, less cost of its extraction/refinement

        1. Opinion supported by Holmes in The Common Law. The person who damages property intends to do so. He knows that someone bears the cost (the damagor bears the cost if his own property, it would therefore be illogical to allow the damagor to escape paying that cost if the property was another’s)

      4. Moore v. Regents of the University of California, 793 P.2d 479 (Cal. 1990). P did not state a cause of action for which relief can be granted when P brought action conversion for cells extracted and later used in lucrative medical experimentation

        1. Levmore: Rule of conversion does go to tracing (e.g., Russell v. Hill) , but not so far as to unbelievable value added

        2. - Note: Levmore feels that the dissent is simply wrongheaded.

        3. Facts

          1. P had a rare type of Leukemia. Spleen removed. Doctors knew his cells had great commercial use unrelated to his medical care

          2. Doctors ordered more tests, telling patient it was for P’s well being though this was not true

            1. Note: Court did hold physicians liable for failure to disclose nature of the tests

          3. Physicians later patented the cell line

        4. Court noted that conversion claim required some interference inconsistent with his ownership or right of possession

          1. Moore had not expectation of continued possession following removal of cells

          2. Supported by CA law regulating sale of tissue/etc.

          3. Court also declined so extend such liability on policy considerations

            1. Liability for the non-disclosure would protect privacy rights at issue

            2. Extending possessory interests as Moore wanted would

              1. extend possessory interests too far,

              2. Would force patients to question the fiduciary risks imposed by treatments, etc.

              3. Could impose liability on researchers who did not know the origin of particular cells, etc.

        5. Adopted in Greenberg v. Miami Children’s Hospital, 264 F. Supp. 2d 1064 (S.D. Fla.. 2003)

          1. Ashkenazi Jews who had donated cells for medical research barred from recovery under a theory of conversion when that material later formed basis for a patent

          2. Commercial use and medical research use of the donated matter was not consistent with the ownership of that matter by Ps: “Plaintiff’s have not cognizable property interest in body tissue and genetic matter donated for research under a theory of conversion”

            1. Noting Poineer Hi-bred v. Holden Foundation, 25 F.3d 1226 (8th Cir. 1994) which held that where information is gathered and arranged at some cost and sold as a commodity, it is properly protected as property

            2. “If adopted, the expansive theory championed by Plaintiffs would cripple medical research.”

          3. Court held that an action did lie in unjust enrichment

    3. Conversion of intangible property. Kremen v. Cohen, 337 F.3d 1024 (9th Cir. 2003). D was liabile in conversion against an Internet domain registrar when it was fraudulently induced by a third party to give P’s registered Internet Domain to that third party

      1. Court applied strict liability on the theory in a manner reminiscent of Rossi. “Negligent or not, it was [the Internet domain registrar] that gave away Kremen’s property. Remen never did anything. It would not be unfair to hold responsible [the Internet domain registrar] and force it to try to recoup its losses by chasing down [the party that had committed the fraud].

    Animals

    1. Strict liability generally applies to damages caused by animals ferae naturae. Negligence obtains to animals mansuetae naturae (tame by nature)

      1. i.e, Generally speaking, a negligence rule applies to attacks by normally domesticated animals. However, if you keep a “dangerous” animal (e.g., a tiger), then you can be held strictly liable

      2. Hence, a defense of, say, contributory negligence could obtain to injuries caused by a tame animal

      3. Exception: Owner can be held strictly liable for a tame animal if it shows a propensity to do harm. Knowledge of one attack is sufficient at common law (“one bite rule”). Gehrts.

      4. Gehrts v. Batteen, 620 N.W.2d 775 (S.D. 2001). Negligence is the appropriate standard of care for dog that had not previously shown dangerous tendencies.

        1. Facts.

          1. P asked to pet D’s dog, which was secured in the back of P’s pickup truck

          2. P was bitten, sustaining substantial injuries to face

          3. Dog had never before displayed any dangerous behavior

        2. Court denied recovery either in negligence or strict liability

      5. However, Possession is pre-requisite to liability. Woods-Leber v. Hyatt Hotels of Puerto Rico, 124 F.3d 47 (1st Cir. 1997). D not liable on claim of strict liability when a wild mongoose lept out and attacked sunbathing guest as P could not show that the D possessed or owned the mongoose.

    2. Affirmative defenses for Wild Animals

      1. City and County of Denver v. Kennedy, 476 P.2d 762 (Colo. App. 1970). State’s general rule of strict liability did not apply to animals kept in public zoos

        1. Based on the “obvious” “public desire” for zoos

        2. Court still held that P had made a sufficient case to reach jury in negligence

      2. Rubenstein v. United States, 338 F. Supp. 654 (N.D. Cal. 1972), aff’d, 488 F.2d 1071 (9th Cir. 1973), court reached same conclusion as regards national parks

    3. Cattle trespass. Rules for cattle trespass differ from those for wild animals

      1. Restatement § 21. Owner/possessor of livestock . . . that intrude upon land of another is subject to strict liability for physical harm caused by the intrusion

      2. However, limited to “reasonably expected harms” (though a bull can be expected to gore anything)

        1. But see Williams v. Goodwin, 116 Cal. Rptr. 200 (Cal. App. 1974): P barred from recovery when gored by trespassing bull

    4. Distress damage feasant

      1. Defined as “taking of chattels, whether animate or inanimate, that are doing damage to or (perhaps) encumbering land, or depasturing chattels, and the retaining of them by way of security until compensation is paid”

      2. Refers to the self-help remedy available to victims of trespassing cattle (can hold them until the owner compensates for damage)

      3. Animals on public highways. Gibbs v. Jackson, 990 S.W.2d 745 (1999). D owed no duty of care to keep his horse of a public road (as opposed to private property) given the extensive “free range” rule in Mississippi. Hence a P whose car was totaled when it struck the horse was barred from recovery

    5. “Fencing in” and “fencing out”

      1. Common law rule was that it was owner’s duty to keep his animal off the property of another, and owners could be liable for damages. America modified the rule (given our grazing/cattle needs and large % of unuses gov’t land) to create a “fence out” rule instead.

      2. It is an intentional tort only when owner places cattle on his own lands in a manner making it substantially certain they will stray . Lazarus v. Phelps, 152 U.S. 81 (1894)

      3. Had important social effect of allowing a low-cost (in the economic sense) of negotiating changes in patterns of land use

    Ultrahazarous or Abnormally Dangerous Activities

    1. Levmore: Strict liability is something of an information-forcing problem. It is much more efficient to allow the blaster pay for the damages actually caused rather than forcing some sort of contract which may or may not cover the actual damages.

      1. Thus, we are incentivizing the blaster to take as many precautions as possible b/f the fact (he has the most control over the situation

      2. Also, consistent with the premise that any evidence of negligence would be destroyed by the actual blasting

    2. Restatement (Second)



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