Torts Outline- Spring 2010

Brad Armstrong

I. Negligence- Duty & Causation

1. Duty: Restatement, Liability for Physical Harm § 7:

A. An actor ordinarily has a duty to exercise reasonable care when the actor's conduct creates a risk of physical harm. In
exceptional cases, when an articulated countervailing principle or policy warrants denying or limiting liability in a particular
class of cases, a court may decide that the defendant has no duty or that the ordinary duty of reasonable care requires
modification.
(1) Implied primary assumption of risk and duty.
a. Primary assumption of risk applies where the plaintiff voluntarily encounters a known risk of injury.
b. Primary assumption of risk is the flip side of a no duty determination.
c. Implied assumption of risk is abolished or limited to consensual sports cases in some jurisdictions, see
Trupia, although not in Minnesota.

(2) Express assumption of risk. Relieves the defendant of any duty owed to the plaintiff. If there is an exculpatory
clause, the clause must be clear and unambiguous, unaffected by the public interest, not arise in the context
of a special relationship, and not be an adhesion contract.

2. Causation- Cause in fact: P must prove a causal connection between D's conduct and P's injuries.

A. The issue is whether by a preponderance of the evidence the defendant’s conduct is a but-for cause of the plaintiff’s
injuries.

B. Other jurisdictions, such as Minnesota, recognize that the but-for standard is a prerequisite for establishing causation, but
frame the issue as whether the defendant’s conduct was a substantial factor in bringing about P's injuries. D's conduct does
not have to be the sole cause of injury, of course. This standard was adopted to avoid the problems of overdetermined
causes, when either of two or more causes would have been sufficient to cause the plaintiff’s injuries.

(1) But-For-(Hale v. Ostrow pg. 197, and applied in Saliento v. Nystrom pg. 198) - Restatement 26: Tortious conduct must
be a factual cause of physical harm for liability to be imposed. Conduct is a factual cause of harm when the harm
would not have occurred absent the conduct. Tortious conduct may also be a factual cause of harm under section 27.

(2) Substantial Factor- §27: If multiple acts exist, each of which alone would have been a factual cause of the physical harm
at the same time, each act is regarded as a factual cause of the harm. MN says: Act is cause if the act was a substantial
factor in the harm’s occurrence. But-for causation, is still necessary for substantial factor causation because if the harm
would have occurred even without the negligent act, the act could not have been a substantial factor. Basically, the
test states that the D’s conduct is a cause in fact (direct cause) if the conduct is a substantial factor in causing the P’s
injury.
a. Anderson v Minneapolis, St. Paul & Sault Ste. Marie Railway (pg. 203) – Fire started by D, but combines with
another fire of unknown origin. D liable as if he alone was at fault.
b. Landers v. East Texas Salt Disposal Co. (pg. 202)- this case said that if two or more people all contribute to some
damage, and you can't determine who caused what damage, then the plaintiff can sue any of them and make that
defendant pay all of the damages. Or they can sue all the defendants and the court can try to split the damages by
some kind of equitable formula.

3. Burden of proof. P has the burden of proof, unless for policy reasons (e.g., Summers v. Tice) the burden is shifted to Ds.
A. Summers v Tice (pg. 208) – 3 people hunting quail. 2 Ds shoot and P gets hit. We don’t know who actually shot P, but
since they were both negligent, both liable. D’s burden to offer proof of apportionment (b/c D has more knowledge).

4. In MN, fault is apportioned between all parties to a transaction, even if they aren’t parties to the lawsuit.

5. Loss of a chance. The defendant may be liable for depriving the plaintiff of the loss of a chance, perhaps of survival or perhaps
of some other opportunity that would have avoided or minimized the injury; even if it is not more probable than not that the

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 death or injury was caused by the defendant. Hard to quantify but possible through expert testimony. Usually only present in
medical malpractice. Three approaches:
(1) Preponderance test (Standard Rule) – P must prove that D deprived P of at least 51% of a more favorable outcome
than p rec’d. If P can’t reach 51%, no recovery, if P can, than P can recover for full extent of injury (can be unfair).
(2) Relaxed-Causation test – P must prove D’s negligence more likely than not increased harm to P or destroyed a
substantial possibility of achieving a more favorable outcome. Damages rec’d in full (NY has similar test).
(3) Quantified-Causation test (loss of chance theory) – P establishes lost opportunity; get quantified value; P recovers
differential. If chance of survival was 40%, and D’s negligence eliminated that chance, then damages is 40% of the
damages for which the D would be liable for if he caused death.

A. Lord v. Lovett – P injured in accident. D (doctor) negligent, and P lost the opportunity for a better recovery
B. See problems on 1-13 study notes.

6. Aggravation of pre-existing disability or injury- A person who has a pre-existing disability or medical condition at the time of an
accident is entitled to damages for aggravation of that pre-existing disability or condition directly caused by the (collision)
(accident) (event) (defendant's negligence/fault).

II. Proximate Cause

1. Proximate Cause Restatement §29 - An actor's liability is limited to those physical harms that result from the risks that made the
actor's conduct tortious. This deals with foreseeability, though it is often confused with cause in fact.

A. Medcalf v. Washington Heights (pg. 219). – P wants to enter building, buzzer doesn’t work; while waiting for door to open,
p gets attacked. No proximate cause – no foreseeability (buzzer is to protect residents of outside intruders).
B. Palsgraf v. Long Island Railroad Co. (pg. 223) – D tries to help man into RR (negligently), & in process man drops package,
which unknowingly contains fireworks, which explode, injuring P. No proximate cause – not foreseeable that there would
be an explosion, and it was the explosion, not the D’s negligence that caused P’s harm (use foreseeability test)

2. Scope of Risk Principle - D liable for harms only within the scope of risk he negligently created. Not liable for harms outside the
risks he negligently created.

A. A harm or risk is not within the scope of the risks negligently created by the defendant in any of the following
circumstances:
(1) Harm/risk of this type not foreseeable by reasonable person
(2) If there is foreseeability, but reasonable person would not have taken greater precautions to avoid it than
D did (no breach)
(3) Harm/risk to class of persons P falls in not foreseeable to reasonable person

3. Foreseeability of Risk- To prove that an injury is a reasonably foreseeable consequence of negligent conduct, a plaintiff need not
prove that the defendant actually foresaw or should have foreseen the extent of the harm suffered or the manner in which it
occurred. Instead, the plaintiff must prove that it is a harm of the same general nature as that which a reasonably prudent
person in the defendant's position should have anticipated, in view of what the defendant knew or should have known at the
time of the negligent conduct.

4. The Rescue Doctrine §32: If D’s tortious conduct creates a situation where rescue is necessary, D is also liable for harm caused to
the rescuer. See pg. 229.

5. Manner of the Harm Rule – Harm/risk of a kind that is foreseeable is within the scope of risk even if neither the exact harm or
exact manner of occurrence could have been foreseeable.

A. Hughes v. Lord Advocate (pg. 231) – Workers leave manhole open, boys don’t fall in but drop a lantern in which causes fire,
and boys burned. It was foreseeable that leaving the manhole open & lantern unattended would cause injury, even though
the manner it happened was unforeseeable.
B. Doughty v. Turner Manufacturing (pg. 232) – Worker knocked cover into molten liquid, but no splash. A few minutes later
liquid erupted. Even though eruption (exact harm) was unforeseeable, risk of harm by dropping it in was foreseeable.

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6. Thompson v. Kaczinski

Facts: Ds disassembled a trampoline on their property and left the pieces approximately 38 ft from a gravel road. They intended to move the
pieces at a later time. A few weeks later, a severe thunderstorm caused the top of the trampoline to blow in to the road. P was driving on
road and swerved to miss the trampoline. When he did, he lost control and his car entered the ditch and rolled several times. Ds woke up to
P’s screams. They went outside to check and one person helped P, while the next removed the object from the road.  

Issue: Did D’s owe a common law duty to keep objects in their yard from entering the road? Was there a causal relationship between P’s
alleged negligence and D’s injuries?
 
Holding: Yes and it’s up to a jury. The court first ruled that foreseeability should be taken out of the equation as it pertains to duty. Then they
attacked the district court’s ruling that the chain of events was not foreseeable and, thus, not the proximate cause of the injuries. The court
then talked about how they used to use the substantial factor test for legal/proximate cause but now they want to use the scope of liability
test, as outlined in the Restatement. This test doesn’t rely so heavily on foreseeability, although it is still relevant. The new test says that
when scope of liability arises in a negligence case, the risks that make an actor negligent are limited to foreseeable ones, and the factfinder
must determine whether the type of harm that occurred is among those reasonably foreseeable potential harms that made the actor’s
conduct negligent. This test provides clarity and a more flexible application than the foreseeability test.

7. Extent of Harm Rule-

A. Thin Skull / Eggshell Plaintiff - Restatement §31: When D’s tortious conduct causes harm to P, that b/c P is more sensitive
causes a greater or different type of harm that might be reasonably expected, D is liable for the full extent of the harm. See
pg. 234.
B. Fire Cases – tortfeasors responsible for full extent of damage caused by fire, even if not foreseeable.

8. Intervening Person or Force - Restatement §34: When there’s an intervening act or force, D liable only for harms that result
from within the scope of foreseeable risk.

A. A cause is a superseding cause when four conditions are present:

(1) It happened after the original (negligence) (fault); and
(2) It did not happen because of the original (negligence) (fault); and
(3) It changed the natural course of events and made the result different from what it would have been; and
(4) The original wrongdoer could not have reasonably anticipated this event.

B. Foreseeability or unforeseeability of the intervening cause will not terminate a D’s duty if the risk of injury that occurred
was the risk of injury that made the D’s conduct negligent.

C. Where the risk created by the D’s conduct has terminated and a new and unanticipated result occurs, the unanticipated
result may be a superseding cause relieving the D of liability.

D. Intervening intentional/criminal acts – traditionally, would be superseding cause, but not so much anymore. Now ask if
intervening act was foreseeable.

1. Derdiarian v. Felix Contracting Corp (pg. 241). - No barrier for construction site (negligence). Car drove into site
(intervening act); caused injury. Foreseeable for this type of accident to happen if no barriers, so there is proximate
cause.
2. Sheehan v. City of New York – bus stops in wrong lane, truck hits bus, passenger injured. No proximate cause b/c
intervening act not a foreseeable risk. Bus driver provided an occasion for the accident, but not the cause of the
accident. Also, driver in wrong lane, but law is only to protect people getting on and off, not passengers on the bus.
3. Ventricelli v. Kinney System Rent a Car, Inc. (pg. 244) – D sold car to P w/ defective trunk. P trying to close trunk
when a parked car jumped up and hit him. Majority says foreseeable for P’s inconvenience in closing the trunk, but
not to be hit while in safe (parked cars) area, where he could have been at any time. Not a proximate cause.
4. Marshall v. Nugent (pg. 246) – D caused a car to go off road, and helping to get back on. P stayed on road to warn
oncoming traffic and was hit. The risk D created was still present when plaintiff was injured, so there is proximate
cause.
5. D claims that he is not responsible for the plaintiff's injuries because the injuries were caused by AB (3 rd person). If
D is negligent, but P’s injuries caused by AB, D can still be responsible, if D should have reasonably foreseen that
his negligence would result in AB’s act. If a reasonably prudent person would not have foreseen it, then D is not
liable.
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III. Defenses

1. Contributory/Comparative Negligence

A. Contributory negligence: Failure to exercise reasonable care for own safety

(1) Traditional, common law rule = complete bar to Pl’s recovery
(2) Comparative negligence systems
b. Pure – if P’s negligence contributed to the injury, figure out % fault of each party
c. Modified – if P’s negligence contributed more than 50% of the injury, then no recovery. If less than 50%,
then P can recover total damages less P’s % fault. Should jury know how damages will be apportioned?
Better for jury to know b/c then some people will know & others not.

B. Butterfield v. Forrester (pg. 251) – P negligently riding & hit an obstruction (left by D). Traditional rule was that P’s
contributory negligence barred any recovery.

C. Balance multiple factors - Restatement §8: Factors for assigning percentages of responsibility to each person whose legal
responsibility has been established include:
(a) the nature of the person's risk-creating conduct, including any awareness or indifference with respect to
the risks created by the conduct and any intent with respect to the harm created by the conduct; and
(b) The strength of the causal connection between the person's risk-creating conduct and the harm.

D. Traditional Exceptions to the Traditional Contributory Negligence Bar

1. Last Clear Chance or Discovered Peril - P is negligent but D has the “last clear chance” to avoid injury yet
negligently inflicts injury. This doctrine is mostly abandoned in jurisdictions that have adopted comparative fault
systems
2. Discovered Peril – applies above rule only if D actually discovered P’s peril
3. Defendant’s Reckless or Intentional Misconduct
4. Plaintiff’s Illegal Activity
5. Exceptional Statutes

E. Minn. Stat Section 604.41- Contributory fault does not bar recovery in an action by any person or the person's legal
representative to recover damages for fault resulting in death, in injury to person or property, or in economic loss, if the
contributory fault was not greater than the fault of the person against whom recovery is sought, but any damages allowed
must be diminished in proportion to the amount of fault attributable to the person recovering. The court may, and when
requested by any party shall, direct the jury to find separate special verdicts determining the amount of damages and the
percentage of fault attributable to each party and the court shall then reduce the amount of damages in proportion to the
amount of fault attributable to the person recovering.

F. It covers actions for damages for fault resulting in death, injury to person or property, economic loss. Recovery reduced by
the fault of the person seeking recovery. Recovery is barred if the person seeking recovery is greater than the fault of the
person from whom recovery is sought.

G. MN used the WI modified system. Example: P (60%) v. D (40%): P is not entitled to recover because P’s fault is greater than
D’s.

H. If P is at fault and one D is unable to P, P must bear part of the responsibility for any part of the damages that an insolvent
D can’t pay if reallocation is required under Minn. Stat. § 604.02, subd. 2. Reallocation to P works only if the D seeking
reallocation is jointly and severally liable and pays P more than its fair share of the judgment. Example: P (20%) v. D1 (20%),
D2 (60%), Damages = $10,000. D1 can’t pay. D2 is jointly and severally liable to P. D2 seeks to reallocate D1’s uncollectible
share ($2,000) in part to P. D2 pays P his fair share ($6,000) plus 3/4ths of the uncollectible $2,000 ($1,500).

I. Aggregation- E.g., joint enterprise (or other common scheme or plan): Mutual undertaking for a common purpose and a
right to some voice in the direction and control of the means used to carry out the common purpose. Ex: P (30%) v. D1

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 (20%), D2 (50%), Damages = $10,000. Assume that D1 and D2 are unrelated. What, if anything, does P recover from D1 and
D2? A: Individual comparisons apply. P’s fault is greater than D1’s fault. No recovery. P’s fault is not greater than D2’s
fault, so P is entitled to recover against D2. D2 is not more than 50% at fault, so D2 is not jointly and severally for the full
amount. D2 pays P 50% of the damages, or $5,000.

2. Establishing Joint & Several Liability- Two or more defendants acting jointly, concurrently, or successively, or where vicarious
liability or imputed fault applies. All Ds are at fault (not necessarily under the same theory). Indivisible injury or injuries to the
plaintiff or plaintiffs.

A. After 2003 Amendment- Several liability is the rule, with four exceptions: (1) Where a person’s fault is greater than 50
percent; (2) Where two or more persons act in a common scheme or plan that results in injury; (3) Where a person commits
an intentional tort; (4) Where a person commits certain environmental torts. See 1-26 study notes.

B. Pierringer Release- Three key elements: (1) The release of the settling Ds from the action and the discharge of a part of the
cause of action equal to that part attributable to the settling D’s causal negligence; (2) the reservation of the remainder of
P’s causes of action against the nonsettling Ds; and (3) P’s agreement to indemnify the settling Ds from any claims of
contribution made by the nonsettling parties and to satisfy any judgment obtained from the nonsettling Ds to the extent
the settling Ds have been released. See 1-26 study notes and Newinski.

C. Example: P settles with D1 for ($50,000) OR ($10,000). P proceeds to trial against D2. Jury finds D1 30% at fault, D2 70% at
fault, and damages of $100,000. D2 pays P $70,000, no matter what P received from D1 ($50,000 or $10,000). D1’s liability
is fixed at whatever the settlement amount is.

D. Traditional- Common Law Settlement Rules- Ex: A P is entitled to only a single satisfaction of a judgment. So, if P sues and
fully recovers from D1 (who is a joint tortfeasor with D2), P can’t recover from D2. If P settles with D1 and then tries to sue
D2, the common law rule is that a release of one joint tortfeasor is a release of all bars P. If P settles with D1 and they
execute a covenant not to sue, D1 is still susceptible to liability on a contribution claim.

E. Settlements & Releases- Generally, a release of one joint tortfeasor is a release of all, although there are settlement devices
that avoid this result.
(1) The Pierringer release permits the piecemeal settlement of tort claims. Pursuant to a Pierringer release the settling
defendant is released from the lawsuit in return for the amount paid in settlement and the remaining defendant is
held responsible only for his percentage of fault.
(a) With the Pierringer release the settling defendant is dismissed from the litigation and the remaining party
is held liable only for that party's share of the judgment, based on the party's percentage of fault. The
rule applies whether the plaintiff makes a good or bad settlement with the settling defendant. Joint and
several liability applies as to the remaining defendants (modified, however, by the 2003 Comparative
Fault Act amendments).
(b) Pierringer pitfalls: (1) Settling with vicariously liable defendant does not preclude action against the
actively at-fault defendant. The reverse is not true. Kellen; (2) A settling defendant must be sure that
there is protection against contribution, indemnity, and loss reallocation that may be made by the
nonsettling defendant or defendants.

3. Assumption of Risk

A. Avila (pg. 286) - says that primary implied assumption of risk arises when the P impliedly assumes those risks that are
inherent in a particular activity.

B. Express Assumption of Risk- Is the clause valid? (1) Is it ambiguous? Is it reasonably susceptible of more than one
construction? Question of law for court in first instance. (2) Does it release the benefited party from liability for intentional,
willful or wanton acts? (3) Does it contravene public policy? Disparity? Public or essential service? See Myers v. Lutsen.

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 C. Primary Assumption of Risk- Did P have knowledge of the risk? Did he appreciate the risk? Did he voluntarily encounter the
risk, despite the option to avoid it? See Andren v. White Rodgers.
(1) Sports cases- A participant in a contact sport breaches a duty of care to a co participant only if the participant
intentionally injures another player or engages in conduct that is so reckless as to be totally outside the range
of the ordinary activity involved in the sport. Avila. Other cases say you assume negligent conduct of others,
but not willful or wanton conduct.

D. Secondary Assumption of Risk- P must have knowledge of the risk. P must appreciate the risk. P must voluntarily
encounter the risk. P must have been unreasonable in doing so. This is a form of contributory negligence. In real world,
this is just merged into a contributory negligence decision.

E. See 1-28 study notes.

IV. Duties of Professionals (see 2-11 study notes)

1. What is the appropriate standard of care?-General practitioners- national standard of care or a modified locality rule? Experts.
A national standard of care.

2. Proof of professional malpractice

A. In general, experts must establish the standard of care, that the defendant was negligent in deviating from that
standard of care and that the deviation was a direct cause of the plaintiff’s injury.
B. Res ipsa, where injury is such that a lay person could make the negligence determination without expert testimony, or
in medical malpractice cases, where the injury is to a healthy part of the body not under treatment, or where the
expert establishes the foundation for res ipsa.

3. Informed consent theory. Usually in medical malpractice cases, although the concept could also be applied in other
professional malpractice cases. Elements (in med. mal.):
(1) Dr. failed to disclose a material risk that the dr. knew or should have known about. Materiality is determined
according to what a reasonable person in what the doctor knows or should know is the patient's position
would think material.
(2) The undisclosed risk must materialize.
(3) P must prove that a reasonable person in the P's position would have not consented had the risk been
disclosed and that P himself or herself would not have consented.

4. Reasonable Care-
A. If doctor has skill that exceeds average doctor, standard of care based on his own skill.
B. Law recognizes doctors have different abilities, but minimum keep up with developments and use best judgment.
C. No guarantee to good result; doctor liable only if negligent.
D. “Two schools of thought” Doctrine - When there are medically acceptable alternatives, a doctor is not liable for using
one method as opposed to another as long as it is reasonable for doctor to use that method (b/c it’s widely accepted).
a. Walski v. Tiesenga (pg. 346)–P goes into surgery; bad outcome. P’s expert says he would have used a diff method.
Doctor not unskillful or negligent, just of a differing opinion than the expert. D’s method was not proven
unacceptable.
E. A deviation or departure from accepted practice, traditionally based on community standards [locality rule], but use
similar areas as basis [modified locality rule].
(1) Vergara v. Doan (pg. 351) – P saying Dr negligent, but D says use the modified locality rule, which permits a lower
standard of care. The reasons this rule was established no longer apply. Technology has allowed rural doctors the
same training, facilities, etc as an urban doctor.

5. MN Standard of care for Doctor, nurse, dentist, ect.- is care that meets an accepted standard of care a doctor, who in a similar
practice in a similar community would use or follow under similar circumstances. This is a modified locality rule. Also, doctor
has a duty to refer a patient to a specialist if the doctor discovers that his ability or skill will not be reasonably successful.

6. Good Samaritan statute: See 2-16 study notes- Emergency care - Any individual … who in good faith renders emergency care at
the scene of an accident or emergency to the victim, or while transporting the victim to a hospital or other facility where
treatment or care is to be rendered, shall not be liable for any civil damages as a result of any acts or omissions by such person

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 in rendering the emergency care (also provides relief from civil liability for practitioners rendering emergency care). This does
not impose a duty, it outlines a standard of care. To nail someone, you would need to prove willful and wanton conduct or
reckless conduct, other the person is immune.

7. Non-Medical Practitioners – standard not based on medical standards, only according to their school of belief (chiropractors,
Christian scientist)

8. Res Ipsa – P must have unusual injuries (not of the kind that happens w/o negligence), while P is unconscious, has to be injured
during medical treatment.

A. States v. Lourdes Hospital (pg. 358) – P under anesthesia, cannot show how injury happened. Use res ipsa. Expert
necessary to explain to jury common knowledge in medical community. Jury decides if negligence more probable than
not, and probably D.
B. Ybarra v. Spangard (pg. 360) – P under anesthesia, use res ipsa, but many people involved, cannot prove probably
defendant (exclusive control), & all cannot be responsible b/c of diff functions. Court holds all D jointly liable, b/c Ds
knows more info, and they should come forward with it.

9. Informed Consent- see pg. 370; 2-16 study notes

A. Harnish v. Children’s Hospital Medical Center (pg. 364) – Dr failed to disclose a risk of operation, and P injured. P may
not have gone through w/ operation if he knew of the risk. Important to have informed consent – people have right
over their own body (dignity).
(1) Is this something Dr should have known & informed patient of? – expert testimony needed for this
(2) Would a reasonable person still have proceeded with operation? – Jury question.

V. Duty of Owners and Occupiers

1. The common law approach depends on the classification of the entrant. Different duties are owed, depending on the entrant’s
status.
(1) Trespassers- No duty, unless there is trespass on a limited area or the owner knows of the presence of the trespasser,
then the duty is only to warn.

(2) Licensees (people who aren’t invitees, but yet aren’t trespassers) - Generally, only a duty to warn of dangers about
which the landowner knows. No affirmative duty to inspect the land or make alterations.

(3) Invitees (using the economic benefit or public purpose analysis) - Generally, a duty to warn of dangers that are known
or should be known. Duty to make repairs, if owner knows that the condition is hazardous even if it’s obvious, and the
repairs should reasonably be made.

(4) Sui generis, e.g., police officers and fire fighters- Generally, no duty with respect to dangers that are encountered in the
ordinary course if their duties. But, there are exceptions: (1) Where officer is acting as a normal citizen, e.g., eating
doughnuts. (2) Where there’s a highly unusual risk not ordinarily contemplated in emergency response cases.
(3)Where there’s a statutory violation. (4) Where owner knows of the risk and knows the officer won’t.

2. Merger? After, e.g., Rowland v. Christian?

(1) All categories might be merged, or perhaps only licensee and invitee, in favor of a general duty of reasonable care. If
so, the entrant’s status still is a factor, but only one.
(2) Impact? Courts, uneasy about their ability to control juries, may substitute other control devices, e.g., holding that Ps
are barred because of the obviousness of the danger (primary assumption of risk).

Entrant Category Definition Duty owed by landowner/occupier

Invitee Person on the premises (1) at least in part Reasonable care
for the pecuniary benefit of the landowner
or (2) on premises open to the general
public
(business visitors, general public)

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 Licensee Person on the land with permission, but Avoid intentional, wanton, or willful injury
with a limited license to be on the premises (w/ exceptions)
(traditionally, social guests)
Trespasser Person who has no legal right to be on Avoid intentional, wanton, or willful injury
another’s land (w/ exceptions)

3. Gladon v. Greater Cleveland Regional Transit Authority (pg. 317) – P invitee only in station & on train. P on tracks, so is a
trespasser on tracks where he was injured (but he was pushed onto tracks, so can’t be held liable as a trespasser). So, D’s duty is
to avoid reckless/willful acts only. So question was if conductor acted reasonably once she saw him (for jury to decide).

4. Restatement §339: The Attractive Nuisance Doctrine – Landowner liable for harms caused to trespassing children if lured onto
land b/c of an artificial condition there if:
a. landowner knows or has reason to know that children are likely to see condition & trespass, and
b. landowner knows or should knows the risks to children, and
c. children don’t appreciate the danger b/c of their young age, and
d. burden of landowner of maintaining or eliminating the danger slight compared to risk to children, and
e. Landowner fails to exercise reasonable care to eliminate danger or otherwise protect children

5. Bennet v. Stanley (pg. 332) – boy trespassed to neighbor, and drowns in pool; mother dies trying to save him. Attractive
nuisance doctrine – D owes duty to protect child (pool unguarded, very dangerous), Mother – rescue doctrine.

6. Open and obvious danger- O’Sullivan v. Shaw (pg. 327) – P gets injured while diving headfirst into shallow end of pool. Danger
so apparent, that D does not need to warn.

7. Eliminating the traditional entrant categories :

A. Rowland v. Christian (pg. 334) – P (D’s guest) injured by faucet. P knew of risk, but didn’t warn P. Majority says D has
duty to warn P (traditionally, P would be licensee, and then D wouldn’t be liable, but here eliminates the distinction
between licensee & invitee (Dissent goes for the traditional classifications.

8. Foss v. Kincaid

Facts: On October 15, 2003, Peggy Foss, David’s mother and friend of Stephanie Kincade, had taken David and his nine year old sister to visit
the Kincade home. Ds had just moved into the home a few weeks earlier, so they had boxes lying around, and some empty rooms. The two
women were talking in the dining room while the kids were playing, when they heard a loud boom. When they went to investigate the noise
in the next room, they saw a six foot tall bookcase tipped over. They lifted up the bookcase and found three year old David under it. David
was bleeding and turning blue so they called 911. Because of the accident David had significant head injuries requiring several invasive
surgeries. David had permanent disfigurement to his face and possible future sight complications.

At deposition, Peggy said that she had known David was apt to climbing furniture and that she probably saw the bookcase in D’s home at
some point. Peggy said she didn’t tell D’s about David’s aptness to climb furniture but that they knew he was an active child. Ds said that they
knew the bookcase could tip over but didn’t consider it a hazard to their own children. They threw away the bookcase.
 
Issue: Should the minimum standard of care be that of a child trespasser? 
 
Holding & Rule: No. The standard of care owed to a child injured on a landowner’s property is the general standard of care. For the most part,
MN does not distinguish between statuses. The trial court relied on the presence of Peggy to determine that Ds were negligent. Supreme
Court says there is no negligence because the harm to David wasn’t reasonably foreseeable. Court says that even though the Ds said that it
was conceivable that the bookcase would fall over, it is not reasonable to require that landowner’s safeguard against every conceivable
problem. They must only guard against ones that are reasonably foreseeable, which this was not. Because the court said it wasn’t reasonable
foreseeable that David would climb the bookcase, the Ds had no duty to prevent that harm.

Notes: MN has abolished the distinctions between licensees and invitees. Majority is saying there is no negligence because
there is no breach, as a matter of law. This case lays out the general duty of reasonable care owed to entrants in MN, as ruled in
Peterson. He says there is no duty as a matter of law because the injury wasn’t foreseeable. Peterson would have suggested
that the duty question, section 51 in the new restatement. The starting point for this is Peterson, the general duty of care to
entrants. Usually foreseeability is a component of breach. Even if the injury was foreseeable, it might not be enough for P to
recover. Duty is a question of law for the court, and foreseeability is usually a jury question (not in this case).

VI. Landlord Tenant (see 2-9 study notes)

8
 1. Common law: no duty, unless P establishes one of the exceptions, e.g., common area, concealed trap, premises leased for public
use, or LL makes a promise to repair.

2. Merger, e.g., Pagelsdorf? Not the same success as in owners and occupiers, probably because the common law exceptions work
well.
A. Pagelsdorf v. Safeco Insurance Co. (pg. 341) – tenants moving out, P (movers) injured when railing they were leaning on
crumbled b/c of dry rot. Better policy is to require landlord to exercise due care for maintenance (question is whether
he did use due care. Must find out if there was notice of defect, its obviousness, etc). No longer using traditional
entrant categories.

3. Strict liability for breaching a statutory or implied warranty of habitability? In general, no. LL must know or should know of
danger before there is any obligation to repair.

VII. Immunities

1. Parent-child immunity - some alternatives

(1) Abolition
(2) Retention without modification.

(3) Modification, with retention of immunity where parental discretion is exercised. (Partial abolition for certain kinds of
cases, e.g., intentional torts, sexual abuse, motor vehicle accidents, conduct of a family business, breach of duty to
world at large)
2. Governmental immunities - Governmental entities and officers (see pg. 413)

A. Suits against the United States are regulated by the Federal Tort Claims Act.
(1) No liability for discretionary acts (policy decisions, actual or susceptible to).
(2) There are also judicially established exceptions, e.g., the strict liability exception and the exception for injuries to
persons on military duty (Feres Doctrine-incident to service, see pg. 410).

B. Suits against the state (and political subdivisions) and officials are regulated by state or political subdivisions torts claims
acts (also subject to exceptions, particularly the discretionary act exception).
(a) Officials. Official immunity- A public official is not protected by immunity in the performance of his duties when
he fails to perform a ministerial act, or when his performance of a discretionary act is willful or malicious.
Elements:

(1) Inapplicable to ministerial acts

(2) The official must have exercised judgment or discretion (but not at the planning level)
(3) The immunity is lost on a showing that the official acted willfully or maliciously (known violation of a law
or rule).

(b) Governmental entity-

(1) Vicarious official immunity almost always applies when there is official immunity. No official immunity, no
vicarious official immunity.
(2) Statutory immunity. Like discretionary immunity under the FTCA, it immunizes governmental entities for
planning level decisions involving political, economic, and social factors. There must be an actual decision.
Planning level decisions are those involving questions of public policy, that is, the evaluation of factors
such as the financial, political, economic, and social effects of a given plan or policy. Operational level
decisions, on the other hand, involve decisions relating to the ordinary day-to-day operations of the
government.

3. Recreational Use Immunity- claims against government entity and entity is immune for recreational use of public property.
Generally the entity only owes a duty under a trespasser standard, so entity would have to know of the danger.

4. Fear v. Independent School District

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 Facts: Fear was playing on a snow pile on the playground and fell onto a piece of ice and was injured. School says they are immune because
the snow placement was a planning level decision.

Issues: Was snow placement planning level decision which would give immunity? Did immunity for hiring employees apply? Did the
recreational immunity apple? Was there official immunity, if so, was there vicarious immunity? 
 
Holdings & Rule: No, yes, no, no. The court said the school didn’t provide enough details to show that the snow placement was a planning
activity. They said the hiring of employees provided immunity. They said recreational immunity was a question for the jury, and the child
trespasser standard should apply. And they said that employees didn’t get official immunity because there was no proof that they used
discretion while supervising the children. Since there was no official immunity, there couldn’t be vicarious official immunity for the school.

Notes: The snow placement wasn’t a planning level decision because the affidavits were conclusory. They just said that they took into account
many factors. Court remands question of whether child could recover under child trespasser standard. If he could, then the recreational
immunity is gone

5. Wilson v. City of Burnsville

Facts: P and her husband went for a jog and when they got home the husband wasn’t feeling well so they dialed 911. Dispatcher gave
ambulance the wrong address. Dispatcher realized mistake and told crew the right address, but they still couldn’t find the place.  
 
Issues: Was giving the wrong address protected by immunity? Was going to the address protected by immunity? Was there a special duty to
the P? 

Rule & Holding: No, yes, no. The court says giving the wrong address to the crew was a ministerial task and was not protected. Driving was
discretionary so it was protected.

Notes: P is arguing that D assumed a duty to rescue. Court says no assumed duty under these circumstances so the public duty doctrine still
applies. P then argues that D assumed a special duty. If there was a special duty, like a statute intended to protect a vulnerable class of
individuals under a child abuse reporting statute, you can beat the public duty doctrine

VIII. Limited Duties

1. Nonfeasance- The general rule is set out in Yania v. Bigan (pg. 437), is that there is no duty to render to another person who is in
a position of peril. There are exceptions, however, as demonstrated by Keaton and Podias. See 2-23 study notes for
Restatement rules.

2. Nonfeasance– No Duty to Act (as opposed to misfeasance – negligence in actively doing something)-
A. Restatement § 37 - An actor whose conduct has not created a risk of physical harm to another has no duty of care to
the other unless a court determines that an affirmative duty is applicable.
B. Yania v. Bigan (pg. 437) – D came to P’s coal-mining operation; P taunted D, which induced D to jump in trench & he
drowned. P didn’t help him. No duty to act. P not responsible for D jumping into water (D is adult making own choices).

C. Exceptions to “No Duty to Act” (Affirmative Duties):

(a) Restatement § 39. D’s prior conduct, even though not tortious, creates the risk of harm characteristic of the
conduct, has a duty to exercise reasonable care to prevent or minimize the harm.

(b) Voluntary Undertaking – Restatement §42: actor who voluntarily undertakes to render services to another has a
duty of reasonable care if (1) failure to do so increases risk of harm or (2) person relies on actor’s exercising
reasonable care (b/c of imminent danger).
a. Wakulich v. Mraz (pg. 442) – Ds induce minor P to drink full bottle of alcohol for $; P becomes sick.
Normally no duty to act, but they voluntarily undertook caring for her by checking in on her, and also
b/c by barring a call to 911, they took it upon themselves to care for her.

(c) Restatement § 38. - When a statute requires an actor to act for the protection of another.

(d) Restatement § 40. If there is a special relationship then owe duty of reasonable care. (Ex: Employer/employee in
imminent danger or helpless, business/customers, school/students, landlord/tenants, innkeeper/guest).

10
 a. Farwell v. Keaton (pg. 444) – D’s friend gets hurt. D could have helped w/o endangering himself. B/c
of special relationship, D had an affirmative duty of due care (implied understanding that D would
help his friend).

(e) Constitutional Duties

a. DeShaney v. Winnebago County Dept. of Social Services – Son badly injured by father. Many
witnesses, no one said anything. Mother suing based on XIV amendment. No duty – meant to protect
citizens from state, not citizens from each other, so state only has to exercise reasonable care.

3. Duty to unborn children-

A. Prenatal injuries: recovery should be permitted, particularly if the child is viable at the time of the accident and is born
alive. Even where the child is stillborn there may be a wrongful death action by the next of kin.
B. Pre-conception injuries are subject to causation requirements, but the action may be allowed.
C. Wrongful birth: parents' action may be allowed, although damages may be limited.
D. Wrongful life: the child's action for economic loss may be allowed, but not the action for pain and suffering.
E. Wrongful conception: may be allowed for things e.g. negligent sterilization, but damages may be limited by offset for
benefits to parents for benefits of a healthy child. Offset may be against any potential emotional harm, or against the
cost of raising the child, or the offset may be completely disallowed.

4. Duty to take affirmative action-

A. Generally no duty, but there are numerous exceptions:

(1) Defendant has control over instrumentality causing injury.
(2) Defendant responsible for placing plaintiff in position of danger.
(3) Possible application of Good Samaritan statute, e.g., Minn. Stat. § 604A.01 (but note the need for common law
duty upon which to base a negligence per se claim).
(4) Special relationship, e.g., employer-employee, parent-child, etc. Negligent hiring & supervision.
B. If P undertakes rescue then P must exercise reasonable care.
C. If rescue effort is commenced and abandoned, D may be held liable if P is left in a worse position.

5. Duty to control third persons-

A. In general, there is no duty to take action to avoid the criminal conduct of third persons.
B. Duty to control may arise where the criminal conduct is foreseeable and D should reasonably be expected to avoid the
conduct.
C. There may be a duty where there is an undertaking to provide security.

D. Special relationship may also impose a duty on D to control actions of the third person.
(1) Where there is a special relationship between the defendant and the person who causes the harm, e.g.
a. a parent with minor children,
b. a custodian with those in its custody,
c. an employer with employees, and
d. A mental-health professional with patients. e.g., the patient-psychotherapist relationship.
(2) Between the defendant and the victim, e.g.
a. a common carrier with its passengers,
b. an innkeeper with its guests,
c. a business or other possessor of land that holds its premises open to the public with those who are
lawfully on the premises,
d. an employer with its employees,
e. a school with its students,
f. a landlord with its tenants, and
g. A custodian with those in its custody, if the custodian is required by law to take custody or voluntarily
takes custody of the other and the custodian has a superior ability to protect the other.

6. Duty to Protect from Third Persons-

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 A. Defendant’s relationship with the plaintiff-
(1) Posecai v. Wal-mart Stores, Inc. (pg. 481) – P robbed in D’s parking lot. Court says there is a duty as a matter of
law. The greater the foreseeability of harm, the greater the duty of care imposed.
(a) Approaches in determining duty of businesses/landowners:
1. Specific harm rule – if aware of imminent specific harm
2. Prior similar incidents (foreseeability)
3. Totality of circumstances - takes into account other factors that may affect foreseeability
4. Balancing test – balances the interests (risk-utility)

(2) Marquay v. Eno (pg. 486) – P (students) abused by D’s (school) personnel. Statute says they must report the
abuse (negligence per se); no legislative intent for statute to infer a duty. School has affirmative duty b/c of
special relationship (imposes on them duty of reasonable supervision).
(3) Funchess v. Cecil Newman (pg. 492) - Landlord not liable for break-in because it was not foreseeable.

B. §41: Defendant’s relationship with dangerous persons, actor owes duty to 3 rd person b/c of risks established from the
relationship. Special relationships can be: (1) a parent with dependent children, (2) a custodian with those in its custody,
(3) an employer with employees, and (4) a mental-health professional with patients.
(1) Tarasoff v. Regents of University of California (pg. 497) – patient confesses to therapist that he wants to kill
someone. Therapist (D) warns campus police, but not P. D kills P. D had duty to warn P and exercise reasonable
care to protect foreseeable victims.
(2) Brigance v. Velvet Dove Restaurant, Inc. (pg. 504) - D (restaurant) negligently served alcohol to a clearly
intoxicated person. Commercial vendor has duty. Driving intoxicated high risk & very foreseeable. But also must
show proximate cause.
a. Dram Shop Laws – establish the liability of establishments arising out of the sale of alcohol to visibly
intoxicated persons or minors who subsequently cause death or injury to third-parties—those not having
a relationship to the bar, as a result of alcohol-related car crashes and other accidents.

7. Duty to Protect Against Emotional Harm

A. Suits for loss of consortium

(1) Generally limited to actions by one spouse for loss of the other spouse's consortium.
(2) Some states allow children to assert the claim, but generally not, because of policy reasons (e.g., cumulative
liability for a single tortious act).

B. Emotional distress – approaches. See Restatement (Third) of Torts §§ 46, 47.

(1) Impact rule (largely abandoned).
(2) Zone of danger (the predominant rule) - maybe with an accompanying physical injury requirement. There may
be additional limitations where P is in zone of danger but seeks to recover because of fear for the safety of
another. See Engler.

C. Bystander recovery, which may have to be accompanied by physical injury arising out of the plaintiff's emotional distress.

D. Direct victim recovery, e.g., Thing v. LaChusa, and Restatement (Third) of Torts § 46(b), where the e.d. (b) occurs in the
course of specified categories of activities, undertakings, or relationships in which negligent conduct is especially likely to
cause serious emotional disturbance.

E. Emotional Harm- Restatement §45 Intentional (Or Reckless) Infliction of Emotional Disturbance - D is subject to liability for
that emotional disturbance and, if the emotional disturbance causes bodily harm, also for the bodily harm.
(1) GTE Southwest, Inc. v. Bruce – boss terrorized employees. To prove intentional infliction of emotional distress
must prove: (1) D acted intentionally or recklessly, (2) Conduct was extreme or outrageous, (3) D’s conduct is
substantially certain to cause distress and did cause P severe emotional distress, (4) D knows of risk, and fails to
precaution against it, when cost is so low.
(2) Comment (l) Emotional disturbance caused by harm to a third person - limits recovery to bystanders who are
close family members and who contemporaneously perceive the event.

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 F. Homer v. Long (pg. 516) – Therapist (D) seduces P’s wife; causes divorce. D not liable to P (only to wife). P was close family
member, but was not present, so D didn’t intend to harm P (unknown presence wouldn’t work either b/c D didn’t have the
intent). *Maybe if P was a patient of D’s there’s a special relationship, then D could be liable, or if D did it on purpose to hurt
P.

G. Engler v. Illinois- zone of danger

H. Negligent Infliction of Distress or Emotional Harm

Grube Dillon Thing Rest. §47

P saw last look of person getting Mother & sister saw car strike and P not present at time of injury, but
hit by train, and saw the carnage. kill victim. once she found out her son
P operated the train. injured, rushed to scene, found his
body.
Zone of danger Bystander Bystander Bystander (Rest.)
(guidelines approach) (bright-line rules approach)
• P w/in zone of danger of Is it foreseeable that P will suffer • P must be closely related to • 3rd person suffers serious
impact emotional harm from injury to victim bodily injury
• P fears for own safety third person? • P must be present at the • P suffers serious emotional
• Causes immediate Consider: scene at the time of the accident distress
shock/trauma • P close to scene? • P must suffer serious • P “perceives the event
• P observes accident? emotional distress contemporaneously”
• P/victim closely related? • P is close family member
No recovery here, P caused it! Yes, recovery above factor No recover; wasn’t present at
satisfied here. time of injury

I. Toxic Exposures: Restatement § 46 (c) Exposure to a toxic substance requiring a significant latency period, and subclinical
effects that do not rise to the level of bodily harm, do not satisfy the zone-of-danger requirement (nor would it constitute
impact)
(1) Potter v. Firestone Tire and Rubber Co. (pg. 538) - D dumps carcinogens into local water. P drank water. P
cannot recover b/c fear of cancer not recoverable, unless P can show there’s a good chance of getting cancer.

J. Negligent Infliction of Emotional Disturbance Resulting from Bodily Harm to a Third Person- An actor who negligently causes
serious bodily injury to a third person is subject to liability for serious emotional disturbance thereby caused to a person
who: (a) is sufficiently near the accident to perceive it contemporaneously, and (b) is a close family member of the person
suffering bodily injury.

K. When is emotional distress compensable in MN? P who suffers a physical injury gets to recover for accompanying mental
anguish. NIED requirements: (1) The P was actually exposed to physical harm as a result of the negligence of another.”
(Zone of danger), (2) P had an objectively reasonable fear for her own safety, (3) P must suffer severe E.D. with attendant
physical manifestations, (4) If P seeks to recover for E.D. to another P must prove the above 3 elements, plus (5) P must be
in a close relationship to the third-party victim.

L. Bystander Recovery- Only if in zone of danger unless special relationship. See Burgess on pg. 527.

M. Loss of Consortium in MN (Spousal Consortium) - A husband and wife are entitled to be compensated for wrongful damage
to their marital relationship. The damages which justify compensation include their loss of companionship, affection,
assistance, and loss or impairment of sexual relations.

IX. Strict Liability for Abnormally Dangerous Activities

1. Standard approach is the Restatement (Second) of Torts § 520 approach, which partially incorporates Rylands v. Fletcher. But
see Restatement (Third) of Torts: Liability for Physical Harms § 20:
(a) A defendant who carries on an abnormally dangerous activity is subject to strict liability for physical harm
resulting from the activity.
(b) An activity is abnormally dangerous if:
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 (1) the activity creates a foreseeable and highly significant risk of physical harm even when reasonable care is
exercised by all actors; and
(2) The activity is not a matter of common usage.

2. While strict liability is generally accepted, the exact contours of the doctrine have remained unclear. Not all jurisdictions, e.g.,
Minnesota, have automatically accepted the Restatement formulation.

3. Defenses- (1) Failure to discover the danger is not a defense. (2) Voluntarily encountering a known danger (secondary
assumption of risk) is a complete defense. (3) Post-comparative fault. The defenses may be merged into a single defense of
contributory negligence. However, failure to discover the danger is arguably still not a defense, even with comparative fault.
(4) Restatement would not make any exceptions.

4. Rylands v. Fletcher (pg. 614) - D builds pond over old mine shaft, which breaks and overflows into P’s mine shaft. No negligence
or intent. D liable based on strict liability for entities that escape from your own property.
5. See Restatements: 20, 23, 23, and 25.

X. Defamation

1. Elements of a defamation claim:

(1) Defamatory statement. "A statement is defamatory if it tends so to harm the reputation of another as to lower him in
the estimation of the community or to deter third persons from associating or dealing with him." Restatement.
(2) The statement must be false.
(3) Publication (to at least one third person).
(4) Of or concerning the plaintiff.

2. A communication is defamatory if it tends to:

(1) So harm the reputation of another as to lower that person in the estimation of the community or
(2) Deter third persons from associating or dealing with that person, or
(3) Injure his or her character, or
(4) Subject this person to ridicule, contempt, or distrust, or
(5) Degrade or disgrace this person in the eyes of others

3. Libel and slander

A. Libel- Written or permanent form, or radio or television (because of capacity to do great harm). Libel is actionable per se,
i.e., on its face, without proof of special damages.
B. Slander- Oral defamation. Slander is not actionable unless the plaintiff proves
a. Special damages (i.e., actual pecuniary loss flowing from the slander), or
b. Slander per se, which occurs if the statement
(1) Accuses the plaintiff of having committed a crime involving moral turpitude (the test may be whether it
involves a major social disgrace), or
(2) Accuses the plaintiff of having a loathsome disease, or
(3) Accuses the plaintiff of having committed serious sexual misconduct, or
(4) Relates to the plaintiff in the plaintiff's business, trade, profession, office, or calling.

C. Defenses
a. Truth is a complete defense (defendant has the burden, unless New York Times v. Sullivan or Gertz applies, in
which case P has the burden of proving falsity.
b. Privileges:
(1) Absolute (legislators, judges, and lawyers)
(2) Qualified (e.g., common interest, defense of third person, reporting of crime, fair comment). P can
overcome these privileges by showing actual malice.
c. Retraction. Minn. Stat. § 548.06. - No more than special damages unless a retraction is demanded and refused. If
retraction is published, P gets general damages “unless the defendant shall show that the libelous publication was
made in good faith and under a mistake as to the facts.”

14
 D. Damages-
a. Libel- P recovers any special damages flowing from the defamation. P is also entitled to presumed damages
b. Slander- P must prove slander per se or special damages. If P proves either, P is entitled to presumed damages

E. Constitutional standards
(1) New York Times Co. v. Sullivan (public officials and public figures)
a. Actual malice must be established (knowledge of the falsity or in reckless disregard of the truth, i.e.,
publishing with substantial doubts about the truth, according to St. Amant v. Thompson)
b. Plaintiff has the burden of proof of proving falsity of the statements
c. Burden of proof is clear and convincing evidence.
d. If the above elements are met, damages are presumed and P may be entitled to punitive damages.
e. There must be an independent review of the record on appeal to determine compliance with the New
York Times Co. actual malice standard.

(2) Gertz v. Robert Welch, Inc.

a. Applies to private figures (and public issues)
b. Requires proof of: (1) Fault (negligence), (2) Actual damage, (3) Plaintiff has burden of proof on the truth
issue. In Philadelphia Newspapers v. Hepps, the Court made it clear that the plaintiff has the burden of
proof on the truth issue, "at least when a newspaper publishes speech of public concern."

F. Application of Gertz: Private figures (private figures are those who aren’t public officials or figures). Gertz applies whether
the D is a media or non-media D. Application hinges on whether a matter of public concern (not clearly defined). If there is
no matter of public concern, the state interest in compensating individuals for injury to reputation justifies the award of
presumed and punitive damages, even absent a showing of “actual malice.”

G. Public officials- Public must have independent interest in person’s qualifications to hold the position. “[A]applies at the very
least to those among the hierarchy of government employees who have, or appear to the public to have, substantial
responsibility for or control over the conduct of governmental affairs.” For the most part those who attain this status have
assumed roles of especial prominence in the affairs of society. Some occupy positions of such persuasive power and
influence that they are deemed public figures for all purposes. “Absent clear evidence of general fame or notoriety in the
community, and pervasive involvement in the affairs of society, an individual should not be deemed a public personality for
all aspects of his life.” An individual who is merely “well known in some circles,” but has “achieved no general fame or
notoriety in the community” remains a private figure. More commonly, those classed as public figures have thrust
themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved.

H. Longbehn v. Shoenbock- Schoenrock in a cell-phone conversation with a third person, referred to plaintiff Patrick Longbehn,
who was a 34-year-old probationary police officer in Moose Lake, as “Pat the Pedophile,” a name some members of the
community conferred on him because he had a relationship with an 18-year-old. Court of appeals holding: The statement
was “defamatory per se”. The word “pedophile” imputes “serious sexual misconduct or criminal activity” to the person. A
reasonable person could not understand it to be anything but defamatory per se. Special damages could not be awarded
because of lack of a causal connection between the statement and the damages. Punitive damages could not be awarded
because defendant had a reasonable belief that the name was generally used by people in the community.

I. Blending the common law and constitutional standards. Note that the most restrictive law applies. The First Amendment
establishes only minimum standards. The state is free to restrict defamation claims to a greater extent than required by the
First Amendment. So, for example, even if a public-figure plaintiff in Minnesota meets the New York Times Co. v.
Sullivan actual malice standard, recovery is not automatic. There may be other, more restrictive hurdles that the plaintiff
must overcome, including any qualified privileges, and any limitations imposed by the retraction or punitive damages
statutes.

4. General rule- “climbing the ladder”:

1) P, at a minimum, must meet the elements of a common law defamation case
2) P must satisfy any common law qualified privileges
3) P must satisfy any statutory limitations, e.g., the retraction statute
4) P must satisfy any constitutional privileges

15
5. Generally truth is a defense, and usually burden is on D to prove truth. Standards of truth: true in all its particulars, substantially
true, and meaning of actual truth significantly different that impression left by the defamatory statement.

6. Burden of Proof- At common law, defamatory statements were presumed to be false and D had the burden of proving truth.
Constitutional standards: P has the burden of proving falsity.

7. Damages-
a. Libel- P recovers any special damages flowing from the defamation. P is also entitled to presumed damages. P can
recover for humiliation, embarrassment, and suffering.
b. Slander- P must prove slander per se or special damages. If P proves either, he is entitled to presumed damages.

8. MN’s Retraction- MN has a limitation on damages pertaining to retractions. You can’t recover special damages unless a
retraction is demanded and refused. If retraction is published, P gets a general damages unless D is able to show that libelous
publication was made in good faith and under a mistake as to the facts. Notice burden of proof is on the D. Basically this means
that even if P establishes New York Times’ “actual malice”, but fails to demand retraction, he can only get special damages.
Retractions only apply to newspapers, not all publications.

9. Qualified privileges:- common interest, interest of third persons, reporting crimes, reporting a public document, meeting ,or
activity, fair comments, and statutory privileges (Communications Decency Act, ect). If qualified privilege applies, P has burden
to overcome privilege by proving actual malice. This actual malice is different from New York Times v Sullivan. NYT actual
malice is publication with knowledge of falsity or reckless disregard for the truth. Common law actual malice is spite or ill will
(focusing on state of mind). There is a little bit of overlap. Common law actual malice will go to NYT actual malice, but NYT
actual malice doesn’t flow to a common law analysis of actual malice.

a. Examples of qualified privileges: employment deal where someone tells boss on someone else for stealing. Even if
it’s not true, there was probably a privilege. Common interest would be example of school paper (deemed
publication and not newspaper).

10. Holding in New York Times v. Sullivan- (1) P who is a public official must prove actual malice. Remember that there were other
D’s than NYT, so this applies to public officials suing individuals. (2) P must prove actual malice by clear and convincing evidence.
(3) Record independently reviewed to determine if standard is met. (4) P has burden of proving false statement of fact, by clear
and convincing evidence. (5) If P meets standard, damages are presumed and punitive damages are possible. If punitive
damages are applicable, they are under the state’s standards. Meaning of actual malice is knowledge of the falsity or reckless
disregard of the truth (publication with substantial doubts about the truth). This clarifies the standard. Strict liability is hard for
publishers.

11. Meaning of “Actual Malice”- knowledge of the falsity or reckless disregard for truth (publication with substantial doubts about
the truth)

12. Application:

A. Public officials: public must have independent interest in person’s qualifications to hold the position. Applies at the
very least to those among the hierarchy of government employees who have, or appear to the public to have,
substantial something or other. See slideshow.
B. Public figures are those who have prominence in the affairs of society. Even if they are well known in the community,
they may not be a public figure. They must have achieved general fame or notoriety in the community. Usually this is
people who thrust themselves to the forefront of particular public controversies in order to influence the resolution of
the issues involved. This could be consumer groups or another group who lobbies the government. Think of the notion
of assumption of risk. You are entitled to keep your privacy, if you choose to do so.

13. Gertz v. Robert Welch- actual malice is not necessary for defamation of private person if negligence is involved. This is a
situation involving a private citizen, but a public issue. In this case, P had to prove fault/actual damage. Damages could be
emotional harm or damage to reputation, but they must be actual. Court said that damages for emotional harm are not
recoverable absent proof or actual harm to reputation. P has the burden of proving falsity (in all constitutional cases, as well).

16
 14. Application to Public issue- Gertz applies, even to private Ds, and negligence and actual damages are required. Application
hinged on whether a matter is of public concern. MN held that Gertz is inapplicable to a private P suing a private D on an issue
not of public concern, but court of appeals has nonetheless followed it concluding that “states have no interest in securing
gratuitous awards” of general damages. If P meets higher standard (NY Times), actual malice, then even case involving private
person with public issue, then damages will be presumed, like NY Times.

15. Damage at Common law- no proof of actual damage required. Gertz required actual damage. Strict liability is applicable but P
has burden of proof.

XI. Invasion of Privacy

1. The four torts:

A. Intrusion. Restatement (Second) of Torts § 652B: One who intentionally intrudes, physically or otherwise, upon the solitude
or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the
intrusion would be highly offensive to a reasonable person.
B. Appropriation. Restatement (Second) of Torts § 652C: One who appropriates to his own use or benefit the name or likeness
of another is subject to liability to the other for invasion of his privacy.
C. Public Disclosure. Restatement (Second) of Torts § 652D: One who gives publicity to a matter concerning the private life of
another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that: (a) would be
highly offensive to a reasonable person, and (b) is not of legitimate concern to the public.
D. False Light. Restatement (Second) of Torts § 652e: One who gives publicity to a matter concerning another that places the
other before the public in a false light is subject to liability to the other for invasion of his privacy, if (a) the false light in
which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted
in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.

2. Constitutional Privilege:

(1) There is a First Amendment privilege to publish true public record information, if it is properly obtained.
(2) There is a privilege to publish true information, even if it is initially obtained unlawfully, although not obtained
unlawfully by the publisher.

3. Yath v. Fairview Hospital- Yath went to Fairview Cedar Ridge Clinic to be tested for sexually transmitted diseases because she
had a new sexual partner who was not her husband. Tek, a Fairview employee who knew Yath, accessed Yath’s medical record
and discovered that Yath had a sexually transmitted disease and a new sexual partner.  Tek passed this information onto Phat, a
sister of Yath’s husband’s sister. Phat worked at Fairview Ridges Hospital, in medical records. The court of appeals noted that
there are 2 methods of establishing the publicity element; (1) By proving a single communication to the public, (2) By proving
communication to individuals in such a large number that the information is deemed to have been communicated to the public.
The court held that “the publicity element of an invasion-of-privacy claim is satisfied when private information is posted on a
publicly accessible internet website.” The court held that the MySpace website that triggered Yath’s privacy claim was such a
site. The court of appeals held that the claim should be dismissed as to Fairview and Phat, however, because there was no
evidence that they were involved in the creation of the MySpace.com webpage.

4. Privacy- False light is when P can’t prove defamation, but can prove that that were not accurately portrayed. MN didn’t adopt
false light. In part, people wouldn’t really know when they’re going to get nailed for it.

5. Lake v. Wal-Mart- Wal-Mart- in this case two girls were photographed naked in the show. One of the girl’s sister developed the
film at Wal-mart. When they got the photos there was a note saying that some pictures weren’t developed due to their nature.
Subsequently, the two girls heard that people knew of the photos and they were still circulating in the community. Original
court dismissed because MN didn’t recognize the four torts of invasion of privacy. Supreme Court reversed and decided that
MN recognizes three of the four. They recognized intrusion upon seclusion, appropriation, and publication of private facts.
They declined to recognize the tort of false light. They said false light was too much like defamation. When it went to trial, Ps
lost.

XII. Products Liability

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1. Restatement § 1- One engaged in the business of selling or otherwise distributing products and sells or distributes a defective
product is subject to liability for harm to persons or property caused by the defect.

2. Restatement § 2- A product is defective when, at the time of sale or distribution, it:

A. Manufacturing Defects- contains a manufacturing defect (departs from intended design, although no negligence)
B. Design Defect- is defective in design (when the foreseeable risks of harm posed by the product could have been
reduced or avoided by the adoption of a reasonable alternative design, and the omission of the alternative design
renders the product not reasonably safe)
C. Failure to Warn- is defective because of inadequate instructions or warnings when the foreseeable risks of harm posed
by the product could have been reduced or avoided

3. Manufacturing Defect-

A. Elements:
(1) Commercial Seller/Sale
(2) Defect (at time left D’s control)
a. consumer expectation test- “product is unreasonably dangerous if it is dangerous to an extent beyond
that which would be contemplated by the ordinary consumer who purchases it, with the ordinary
knowledge common to the community as to its characteristics.”
b. product departs from its intended design- Restatement says a product contains a manufacturing defect
when the product departs from its intended design even though all possible care was exercised in the
preparation and marketing of the product.
c. MN seems to implicitly sanction the approach taken by the Restatement when the court said that there is
an objective tests- the flawless product- by which the allegedly defective product can be measured.
Consumers may objectively expect that the product will be made as it is designed to be made without
flaws. MN uses consumer expectation standard.
(3) Causation - Defect was actual and proximate cause of P’s harm

B. P may rely on circumstantial evidence to satisfy prima facie case; does not need to identify specific defect (it can be
inferred).
a. Lee v. Crookston Coca-Cola Bottling Co (pg. 643) - waitress injured when coca-cola bottle exploded in her
hand. P can’t prove specific defect (doesn’t know). In strict liability, plaintiff needs to prove:
(1) Product defective at time mfr relinquished control. How to prove: (1) Eliminate all other
possibilities, (2) then ask for res ipsa. For strict liability, P doesn’t need to show D was negligent,
only that product was defective.
b. Restatement § 3, Res Ipsa- It may be inferred that the harm sustained by the plaintiff was caused by a
product defect existing at the time of sale or distribution, without proof of a specific defect, when the
incident that harmed the plaintiff:
(1) was of a kind that ordinarily occurs as a result of product defect; and
(2) was not, in the particular case, solely the result of causes other than product defect existing at
the time of sale or distribution.
c. Food - Consumer Expectation test v. Foreign-Natural Doctrine
(1) Foreign-Natural Doctrine: if product is natural to food, it’s ok. Only if it’s something
foreign in the food, then liability.
(2) Restatement- Liability of Commercial Seller Or Distributor For Harm Caused By Defective
Food Products- a harm-causing ingredient of the food product constitutes a defect if a
reasonable consumer would not expect the food product to contain that ingredient.
d. Schafer v JLC Food Systems- This is the case when the P ate a muffin at Perkins and something in the muffin
cut her throat. The court said the reasonable expectation test should be used in food defect cases and that
circumstantial evidence could be used to establish a food defect, even if the injury causing object is not
identified.

4. Design Defect

A. Elements-

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 (1) Commercial seller/sale
(2) Defect (at time left D’s control)
a. Rest 2d: Consumer Expectations Test
b. Rest 3d: Risk-Utility Balancing Test
(3) Causation

B. Consumer expectation test v. risk-utility balancing test

(1) Consumer Expectations Test (Restatement 402a) - It is more dangerous than an ordinary consumer would
expect when used in an intended or reasonable manner. Bilotta held that consumer expectation standard was
appropriate for determining defectiveness in manufacturing defect cases, but not design defect cases.
(2) Risk Utility Balancing Test- weighs benefits and risks. If the benefits of the challenged design do not outweigh
the risks inherent in such design, then there is defect. Product design is defective to consumer, if it is more
dangerous that an ordinary consumer would expect when used in an intended or reasonably foreseeable
manner, or if the benefits of the challenged design do not outweigh the risk inherent in such design.

C. Bilotta v. Kelley Co. - this is the case involving a warehouse dockboard. P was injured when it malfunctioned and sued
the warehouse, distributor, and manufacturer. Kelley made safety devices to prevent such malfunctions, but for the
model used in this case, it was not standard and cost additional money to install so the warehouse didn’t get it. The
court said that the reasonable care balancing test is applicable to design defect cases, that a manufacturer may not
delegate its duty to develop a safe product to the purchaser (if single use), and merged strict liability and negligence
theories in design defect cases.

D. Some factors to be considered in applying the risk-utility test:

(1) Usefulness and desirability of the product

(2) Availability of substitutes
(3) Mfr’s ability to eliminate unsafe character
(4) User’s ability to avoid danger
(5) User’s probable awareness of the danger

E. Factors relevant to whether an alternative design is reasonable and whether its omission renders a product not
reasonably safe include:
(1) magnitude and probability of the foreseeable risks of harm
(2) instructions and warnings accompanying the product
(3) nature and strength of consumer expectations regarding the product, including expectations arising from
product portrayal and marketing
(4) relative advantages and disadvantages of the product as designed and as it alternatively could have been
designed
a. likely effects of the alternative design on production costs
b. the effects of the alternative design on product longevity, maintenance, repair, and esthetics
c. the range of consumer choice among products

F. Manifestly Unreasonable Designs - No Reasonable Alternative Design

(1) Example: exploding cigar causes injury – no reasonable alternative available, but the utility is so low, and risk
of injury so high that it can be concluded that the design is defective and shouldn’t have been marketed at all.
(2) Kallio v. Ford Motor Co- in this case, P brought a product liability suit against manufacturer, alleging defect in
automatic transmission. P stopped his car, putting it in park but leaving the engine on, and when he got out
the car started rolling away. While chasing the car to stop it, he slipped and was injured. P brought suit saying
that transmission was defective and that Ford should have warned him. Appeals court held Ford liable even
though P didn’t show a safer alternative design. Ford says that if P doesn’t show this, Ford is not liable. Court
says that proof of an alternative design is helpful, but not necessary, to prove product was defective.
Steenson says that a feasible alternative isn’t part of a prima facie case of design defect, but in order to win
you need to show the existence of a feasible alternative.

G. Negligence Per Se- violation of a statute, ordinance or regulation may constitute negligence per se. (1) Was person
within the intended protection of the statute? (2) Was harm suffered of the type the legislation was intended to

19
 prevent? This is only relevant to negligence, no strict liability, so in most cases it will end up being whether the
allegedly defective product was in a defective condition unreasonably dangerous to the user.

H. Foreseeable or Intended Use- A manufacturer is obligated to exercise that degree of care in his plan or design so as to
avoid any unreasonable risk of harm to anyone who is likely to be exposed to the danger when the product is used in
the manner for which the product was intended, as well as an unintended yet reasonably foreseeable use. In MN,
courts say that if danger was not foreseeable, then no duty. Foreseeability looks to see if specific danger was
objectively reasonable to expect, not simply whether it was a conceivable possibility.

I. Causation- Must proof that defective condition caused the P’s injury or damage. Same as negligence, must have been a
substantial factor in bringing about the harm. If P proves design was defective, causation is a problem. Misuse,
altercation, or modification can be contributory negligence.

5. Failure to Warn-
A. Elements-
(1) Commercial Seller
(2) Warning/Info Defect
(3) Causation (but-for may be implied)

B. MN- One who supplies directly or through a third person a chattel for another use, subject to liability to those whom
the supplier should expect to use the chattel with the consent of the other or to be in the vicinity of its probable use,
for bodily harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if
the supplier:
a. Knows, or from facts known to him should realize, that the chattel is or is likely to be dangerous for the use for
which it is supplied;
b. And has no reason to believe that those for whose use the chattel is supplied will realize it’s dangerous
condition; and
c. Fails to exercise reasonable care to inform them of its dangerous condition or of the facts, which make it likely
to be so.

C. Restatement - A product is defective because of inadequate instructions or warnings when the foreseeable risks of
harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or
warnings by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission
of the instructions or warnings renders the product not reasonably safe.
(1) Liriano v. Hobart Corp. - P injured hand by machine mfr by D. Machine sold with safety device, but later taken
off (unknown who). It is obvious meat grinder is dangerous, but a reasonable person may not know of the use
of safety guards, and that they are available, so the manufacturer had a duty to inform of this alternative, and
at a relatively low cost.

D. Duty to provide information-

a. A mfr’s failure to provide info about the dangers and risks associated, may make an otherwise safe product
dangerous and defective.
b. Warnings alert users to risks that are not obvious, or to inform users of safer alternatives.
c. Cost of warning low, so risk-utility balance: always place a warning?
d. MN says legally adequate warning should: (1) attract the attention of those that the product could harm, (2)
explain the mechanism and mode of injury; and (3) provide instructions on ways to safely use the product to
avoid injury.

E. Obvious Danger- If danger is obvious, product not defective for lack of warning (D can use contributory negligence
defense – open & obvious danger). However, if the mfr foresees that harm will occur in spite of obvious danger, mfr
may be liable for design defect if it could easily warn and failed to do so. Open and obvious danger may prevent
liability for failure to warn under consumer expectations test, but not necessarily under a risk-utility test. If danger is
obvious, then P may have primarily assumed the risk. See Andren v. White-Rodgers. If danger is so obvious, it makes
danger avoidable. This could mean injury was not caused by defect or that person was contributorily negligent.

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 F. Causation- If a warning is needed, the plaintiff would have to have read, understood and heeded the warning.
Otherwise, the failure to warn cannot be the cause of the harm (causation test). But courts usually presume that the
plaintiff would have done this, and leave the burden on the defendant to prove otherwise. Shifting of the burden on
defendant once plaintiff proved that the failure to warn "greatly increased the likelihood of the harm that occurred."

G. See Product Liability Handout for: Sophisticated Users (no duty to warn), Learned Intermediary Doctrine (If
intermediary is better able to warn than manufacturer, then manufacturer might get off the hook), and Sophisticated
Intermediary Doctrine (duty to warn, but it is reasonable for manufacturer to rely on intermediary to warn end user).

H. Germann v. F.L. Smithe Machine Co- this case involved a properly designed hydraulic press. P took off the safety bar
and was injured. Court said that manufacturer still had the duty to warn because the action causing injury was
foreseeable. Court said that since the bar had to be removed for maintenance, it was foreseeable that it wouldn’t be
put back on. Court also said that you could be liable for failure to warn even though not liable for design defect.

I. Post-Sale Obligations- Would reasonable person provide post-sale warning? See handout. Recall and retrofit- no post-
sale common law duty to recall or retrofit. MN would likely follow common law. It’s different if there is statutory or
regulatory requirement or if recall is done negligently. Both are negligence.

J. Heeding Presumption- This is causation issue. If injured person wouldn’t have acted differently even with a warning,
then absence of such warning cannot be said to have caused the injury. This is a rebuttable presumption.

6. The theories of recovery-

(1) Strict liability
(2) Warranty (express, implied, fitness for a particular purpose)- (a)Express warranty may exist even if the product
is not defective; it rests upon a showing that the seller warranted to the product to have certain characteristics
that it didn't have and that the warranty became part of the basis of the bargain. (b) Implied warranty of
fitness for a particular purpose requires a showing that the product was warranted for a specific purpose and
that the buyer relied on that representation. (c) Implied warranty of merchantability- most common, and
amounts to an assurance by the seller imposed by law, not an agreement between parties, that the product is
fit for ordinary purposes for which such goods are intended.

(3) Negligence
(4) Misrepresentation/Fraud and misrepresentation rest upon specific representations made about the product,
somewhat like the express warranty. Product doesn’t actually need to be defective, just that the D
communicated material facts that were false. Three kinds: intentional misrepresentation (fraud), reckless
misrepresentation, and negligent misrepresentation. Misrepresentation must have been fact, not opinion;
fact must have been material and false; and that P justifiably relied on representation to his detriment.

7. Common elements:
A. For negligence, strict liability, and implied warranty a defect (defective condition unreasonably dangerous to the user,
consumer, or the user's or consumer's property)
B. Defect must have existed when it left the seller's possession
C. Defect must have caused injury to plaintiff or damage to plaintiff's property

8. What is a product-
(1) A product is tangible personal property distributed commercially for use or consumption. Usually doesn’t
apply to used products, but depends on seller’s conduct, how product is marketed, and whether it is
remanufactured product.
(2) Services are not products. Product/Service distinction uses the “predominant factor test.”
(3) Human blood and tissue are not products.

9. What plaintiffs are entitled to recover?- Users, consumers, and bystanders

10. What defendants are subject to liability?

a. Sellers (manufacturers, wholesalers, retailers, component part manufacturers, and apparent manufacturers).
See handout. Component manufactures are generally not liable unless the component itself is defective.

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 b. Lessors
c. Providers of services? Is the service combined with a product?
d. Successor corporations- they are if not unless: (1) they expressly or implied assume such debts, (2) where
transaction amounts to consolidation or merger, (3) where purchaser is continuing previous company, and (4)
where transaction is fraudulent. Duty for post-sale: see handout.
e. Non-manufacturing Ds- Section 544.41 dismisses many sellers.

11. What damages are recoverable under the theories?

(1) Personal injury (and economic loss flowing from the injury), not subject to disclaimer.
(2) Property damage (but what kind of property damage? Damage to the product itself? Damage to other property?) If
there is a person- endangering defect that results in either destruction of the product itself or damage to other
property, and the loss to the plaintiff is not commercial, there is a greater likelihood that strict liability will apply. If the
plaintiff is a commercial enterprise, and there is not a person-endangering defect, and the product simply doesn't work
as well as expected, strict liability principles will probably not apply.
(3) Economic loss? Strict liability is probably inapplicable.

12. How is the products liability claim proved?

(1) Res ipsa (or the strict liability equivalent), for manufacturing flaw cases and perhaps for design defect cases as well.
(2) Proof of a feasible alternative, particularly in design defect cases (includes state-of-the-art issues

13. Defenses
a. Pre-comparative fault: Restatement, comment n controls.
b. Post-comparative fault: contributory negligence, secondary assumption of risk, product misuse, and failure to mitigate
or avoid an injury should merge into a single defense of contributory negligence, which is compared to the defendant's
negligence or strict liability.
c. Restatement leaves it up to individual states.
d. Superseding cause (unless foreseeable)

XIII. Civil Damages Act & Social Host Liability

1. Two Paths- MN plaintiff sues for injuries or losses caused because the defendant provided alcohol to or allowed another person
access to alcohol, there are two paths to follow. One is to establish liability under:
A. Civil Damages Act-The Act applies only to commercial vendors who make an illegal sale of alcohol to a person. If the
Civil Damage Act does not apply, the only other possibility is

B. Social host liability- There are two types. One is common law social host liability (Minn. Stat. § 340A.801, subd. 6) and
the other statutory social host liability (Minn. Stat. § 340A.90). There are similarities and differences between the two.

2. Civil Damage Act (340A.801) - Provides an action for persons injured in their means of support or who suffer pecuniary loss as a
result of the illegal sale of an alcoholic beverage.
a. Illegal sale will typically involve a sale to an obviously intoxicated person or to a minor.
b. The cause of action does not exist in favor of a voluntarily intoxicated person.
c. Comparative fault principles apply, including the defense of complicity, which, prior to 1990, was a complete
defense. Complicity applies where one person voluntarily contributes to the intoxication of another person.
d. Subdivision 6, added in 1990, states that common law principles apply in cases where a person 21 years of age or
older knowingly furnishes or provides an alcoholic beverage to a person under the age of 21. The common law
principles include principles of negligence per se. The minor is able to recover under this subdivision, although the
minor’s contributory negligence is subject to comparison against the defendant’s.
e. Section 340A.90, added in 2000, provides for social host liability under similar circumstances, except that no cause
of action under the statute exists in favor of the minor who consumes the alcohol. However, the minor’s parents
would be entitled to recover for loss of means of support and pecuniary loss.

3. Causation- illegal sale must contribute to the intoxication and the intoxication must contribute to the accident. These are two
separate “direct cause” question. After hours sale is an illegal sale.

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4. Social Host Liability- you can get nailed under common law (340A.801) or statutory liability (340A.90). It’s one of those two, or
nothing. You may be able to get negligence per se because providing alcohol to a minor is illegal by statute. Courts say
contributory negligence is applicable to social host liability. Social host liability only applies to people under 21. If you can’t get
someone for social host, you may be able to get them on an ordinary negligence theory for creating an unreasonable risk of
harm. Two types social host liability:

(1) Common law (340A.801 subdiv. 6)- minor and anyone injured by minor gets to recover, right of family members to
recover depends on common law principles, including, for example, NIED law, and in a case involving the death of the
minor who is provided alcohol, the only avenue for recovery is the Wrongful Death Act. Plaintiff could use negligence
per se to recover because there is a statute about minors drinking, but contributory negligence will apple. Same sex
couples can’t recover under Wrongful Death in MN. If minor lives, he can sue under common law. Parents usually
can’t sue here, other than maybe for medical expenses for which they are obligated to cover.

(2) Statutory Liability (340A.90) - minor can’t recover under this statute. People can sue for recovery of their means of
support, if there is any, and for pecuniary loss. Parents can usually sue for medical expenses. The basis for recovery is
broader than common law social host liability because the statute applies to cases where D controls the premises and
fails to stop alcohol consumption. Minor’s parents and siblings can recover for loss of means of support and pecuniary
loss.

5. Death of Minor- recovery only by the trustee for benefit of the surviving spouse and next of kin under the common law theory.
Under the statute, parents recover for loss of means of support and pecuniary loss.

6. Civil Damage & Wrongful Death Act Claims- Commercial sellers of alcohol who make illegal sales of alcohol may be held liable
only under the Civil Damage Act, even in death cases. Social hosts are subject to statutory liability and common law liability in
death cases. The statutory claim is subject to the requirements of section 340A.90. Common law claims for wrongful death act
are subject to the Wrongful Death Act, Minn. Stat. § 573.02. Both may be applicable in a death case involving the liability of a
social host.

7. Innkeeper Liability- Claims against bars may also be brought under a common law theory of innkeeper liability. The claims
typically arise when a bar patron negligently fails to prevent a third person from causing injury to another. The claim by the
injured plaintiff may be based upon the Civil Damages Act or it may be based upon common social host liability. The claims may
overlap. Innkeeper liability claim is a common law claim, and is supplemental to a Civil Damage Act claim. Bar owners have a
common law duty to exercise reasonable care under the circumstances to protect their patrons from injury. In order to
establish an innkeeper's liability, a plaintiff must prove four elements:
(1) the proprietor must be put on notice of the offending party's vicious or dangerous propensities by some act or
threat;
(2) the proprietor must have an adequate opportunity to protect the injured patron;
(3) the proprietor must fail to take reasonable steps to protect the injured patron, and;
(4) The injury must be foreseeable. Foreseeability is a threshold issue and is more properly decided by the court
prior to submitting the case to the jury.

8. Other Alcohol Related Negligence Claims- There may be other claims for negligence that are alcohol-related. It may help to
think in terms of section 7 of the Restatement (Third) of Torts. Duty arises when a person creates an unreasonable risk of harm.
A defendant may not be held liable in a social host situation, for example, except as permitted under statutory or common law
social host liability. A person is not liable for furnishing or providing alcohol to someone who is 21 years of age or older. The
person may create an unreasonable risk of injury, however, as where the person loans an intoxicated person his motor vehicle.

9. Loss of Consortium- Minnesota permits claims for loss of spousal consortium, but not parental consortium. In Thill v. Modern
Erecting Co, the SC defined consortium: “Consortium,” as a general description, represents reciprocal rights inherent in the
marital relationship of husband and wife, including such undefined elements as comfort, companionship, and commitment to
the needs of each other. Its “predominant element,” however, as more specifically described by plaintiff’s counsel, is “the loss
of sexual relationship,” . . . The predominance of this element tends both to exclude claims asserted by children for injury to a
parent and to avoid excessive appeal to sentimentality. The marital relationship is a wholeness, so, except only as we have
emphasized a specific facet of it, attempts otherwise to single out its elements for the assessment of damages would be
inappropriate.

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 10. Pecuniary Loss- Both the Wrongful Death Act and the Civil Damages Act permit recovery for pecuniary loss. Pecuniary loss is
defined more broadly than loss of consortium, encompassing “the loss of aid, advice, comfort, and protection that a person
would have provided but for the person’s injury regardless of whether a marital relationship exists.”

11. For Wrongful Death/Birth Statutes, see 3-16 study notes. MN doesn’t allow claims for wrongful birth or life, but does allow for
wrongful conception.

12. Application of comparative fault- although they apply, they don’t bar recovery by third persons. The negligence of the allegedly
intoxicated person is usually irrelevant. If P is 51% at fault and bar is 49% at fault in claim for $100,000, P can recover $100,000.
Exception- if drunken guy kills someone else, they would only pay their portion of fault to the other party. They can get
contribution claim somehow.

13. Joint & Several Liability- There is no joint and several liability in civil damage act claims. This means that the bar doesn’t have to
cover and money that the AIP can’t pay, assuming that the AIP is more than 50% at fault. If AIP is 60% and bar is 40% at fault in
a 100,000 claim by innocent third party, bar is not liable for any more than 40,000. In this case, if family of AIP makes claim
against bar, the percentage of fault of the AIP is irrelevant.
a. Ex: Say P is 40, AIP is 40, and bar is 20, then P can’t recover from bar (maybe from anyone). You would need
to lump bar and AIP’s fault, which is not going to work.
b. If bar is 60 and AIP is 40, then bar is jointly and severally liable and would have to pay for any money that AIP
can’t pay.

14. Defenses- Complicity is no longer a complete defense; it is only a form of contributory negligence (secondary assumption of
risk).

Civil Damage Act- Commercial

SH- 340A. 90 (Statutory) SH- 340A. 801 subd 6 (Common Law)
Seller
Persons See > "other" can recover. Other= Spouse, parent, child, guardian, or other person injured Third persons. Persons under 21
Entitled to any person injured who didn’t in person, property, means of support, or who incurs
Recover cause intoxication other pecuniary loss. Subd. 1(a). Intoxicated person
under 21 can’t recover. Subd. 1 c
Damages See> Injury in person, property, or means of support, or who Personal injury- past and future med.
incurs other pecuniary loss. Subd. 1(a) Expenses, wage loss, & pain/suffering
Compar. Applies. Fault of intoxicated Statute is silent 604.01 applies; contributory negligence
Fault/Cont. person not imputed to fam. of person under 21 is defense
Neg. Members.
Required Proof Commercial vendor, Illegal sale, Person over 21 controlled premises, was in reasonable Person over 21 knowingly provided or
sale prox. Cause of position to prevent intoxication, and knowingly or furnished alcohol to person under 21,
intoxication/injuries recklessly permitted consumption of alcohol by minor, (including neg. per se for violating
or sold, furnishes, or purchased alcohol for minor 340A.504, subd. 2 (1))

XIV. No-Fault Auto Insurance

1. No-fault eliminates: fraud, underpayment/overpayment of claims, and nuisance claims. Insurance is compulsory. Tort
thresholds limit the right to sue insured drivers in negligence for pain and suffering.

2. Four types of Insurance required:

(1) Basis economic loss coverage (no-fault insurance or PIP)-
a) $40K in coverage for medical expense loss and other economic loss, including: income loss, replacement
services loss, funeral expense loss, survivor’s economic loss, and survivor’s replacement services loss.
b) $20K medical and $20K for other economic loss- no crossover

(2) Residual liability-

a) $30 K for bodily injury to one person subject to a $60K per accident limitation, with $10K in property damage
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 b) This covers the insured if the insured is liable to a third person.
c) It is fault-based coverage. No liability, no coverage.

(3) Uninsured motorist coverage-

a) $25K bodily injury per person subject to $50K per accident limitation.
b) This applies in cases where the at-fault person is not insured or is a hit-and-run driver.
c) It covers the same losses that liability insurance would have covered.

(4) Underinsured motorist coverage

a) $25K per person subject to a $50K per accident limitation
b) It covers the injured person in cases where the D is properly insured, but the insurance is insufficient to cover
the injured person’s damages.

3. What if P wants to sue? - P will be entitled to recover for economic loss not covered by no-fault benefits (thresholds don’t
apply). If P wants to recover noneconomic detriment (pain and suffering) from an insured driver, P must prove one of the tort
thresholds in 65B.51, subd. 3:
(1) $4,000 in medical expenses threshold
(2) Permanent injury
(3) Permanent disfigurement
(4) Disability of 60 days or more
(5) Death

4. Trigger for benefits- 65B.46, subd. 1: (1) What it an accident, (2) causing injury, (3) resulting in “loss”, (4) arising out of the
“maintenance or use,” of a (5) motor vehicle?

5. “Use”- includes occupying, entering into, and alighting from a motor vehicle.

6. Disfigurement- is that which impairs or injures the appearance of a person

7. Permanent Injury- is one from which it is reasonably certain a person will not fully recover. The injury may improve or worsen,
but must be reasonably certain to continue to some degree throughout the person’s life.

8. Sixty-day Disability- means that an injured person is unable to engage in substantially all of his or her usual or customary daily
activities, for 60 days or more. Sixty days does not mean 60 consecutive days. It is sufficient if the total number of days of
disability was 60 or more.

9. Limitations on Tort Recovery-

(1) 65B.51, subd. 2 (offset) - applies where there is: (1) a negligence action, (2) arising out of the use of a motor
vehicle, and (3) where D is properly insured. This reduces P’s recovery by the PIP benefits P has received from his
or her no-fault carrier.
(2) 65B.53, subds. 3 &3 (subrogation) - applies where the offset does not apply because D’s liability does not arise out
of the maintenance or use of a motor vehicle. This reduces P’s recovery by P’s PIP benefits paid to P. Shifts the
loss outside the no-fault system to the non-contributor.

10. Tort Thresholds (65B.51, subd. 3) - applies only in negligence actions, arising out of the use of a motor vehicle, and when D is
properly insured. Tort thresholds apply only to claims for noneconomic detriment, defined as: “all dignitary losses suffered by
any person as a result of injury arising out of use of a motor vehicle including pain and suffering, loss of consortium, and
inconvenience.”

11. Strict Liability- Tort thresholds don’t apply. But P won’t double recover because his insurer will get subrogation claim.

12. Use or maintenance of a motor vehicle- To determine whether an accident arose out of the maintenance or use of the vehicle,
the courts will ask whether the vehicle was actively involved. When child was burned with matches, court says vehicle was not
actively involved so no coverage. Intoxication of person who crashes into snow bank and leaves, Steenson said MN Supreme
Court says that intoxication didn’t matter and that coverage applied. In case where dude passed out in car, Steenson says he
doesn’t know if the vehicle was actively involved. Courts will also ask if the car is being used for transportation purposes. For

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 intentional torts cases, a superseding cause will work to prohibit coverage.

13. Motorcycles- 65B.46, subd. 3, says that injuries from using motorcycles do not arise out of the maintenance or use of a motor
vehicle even though a motor vehicle is involved in the accident causing injury.

14. Taxi- If insured, uses his own coverage. If not, then to taxi’s insurance. Same with child on bus.

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