Torts Outline
Steiner
A.
A
person acts with intent to produce a consequence if:
1.
the
person has the purpose of producing that consequence; OR
2.
the
person knows to a substantial certainty that the consequence will ensue from
the person’s conduct
a.
Garrett v. Dailey (battery)- boy moves chair and
plaintiff falls and breaks her hip, boy didn’t intend to break her hip, just to
make her fall; if it was proved when he moved the chair that he knew with
substantial certainty that the plaintiff would attempt to sit down where the
chair had been a battery would be established
B.
Battery
1.
An
actor commits battery if he acts intending:
a.
to
cause a harmful or offensive contact to person of other or a third person OR
b.
to
cause imminent apprehension of such contact AND
c.
harmful
or offensive contact actually results
2.
Elements:
a.
a
contact
b.
that
is harmful or offensive, and
c.
that
the defendant caused intentionally
3.
Essence
of battery is an offense to dignity involved in unpermitted
invasion of inviolability of person
4.
Not
necessarily any physical harm done to body or actual physical injury
5.
Includes
unpermitted and intentional contacts with things
connected to the body (clothing, cane) when done in an offensive manner
a.
Fisher case- Fisher went to a luncheon,
defendant took Fisher’s dinner plate and shouted he could not be served there,
Fisher was humiliated, intentional grabbing of plaintiff’s plate constituted a
battery, this was invasion of his person as would be an actual contact with the
body
b.
can
be an extension of the body (i.e. plate, cane, clothes, anything directly
grasped by the hand)
6.
A
bodily contact is offensive if it offends a reasonable sense of personal
dignity
a.
must
be contact which is unwarranted by the social usages prevalent at the time and
place which it is inflicted
b.
since
it involves dignity, it is not necessary that the plaintiff’s actual body be
disturbed
c.
some
things are so intimately connected with ones body as to be regarded as part of
the person
d.
if
an object remotely attached to someone’s body can accomplish the offense this
object can be regarded in the same light
7.
You
can have a battery and not be aware of it
(i.e. plaintiff is in a different room at the time defendant commits the
battery)
8.
Generalized
knowledge is not enough for intent (Shaw
v. Brown & Williamson Tobacco Corp)
a.
Corp. did not know with substantial certainty that second-hand smoke would
touch any particular non-smoker
C.
Assault
1.
An
actor is liable for assault if:
a.
he
acts intending to cause a harmful or offensive contact with the person of the
other or a third person, or an imminent apprehension of such contact, AND
b.
the
other is thereby put in such imminent apprehension
2.
Every
battery does not include an assault
3.
Assault
is all about awareness
4.
Need
apparent ability for assault to occur, no assault when the defendant is too far
away to do harm
5.
Victim
must perceive harmful or offensive contact is about to happen
a.
if
attacked from behind or while asleep there is no apprehension and no assault
6.
Defendant
must desire or be substantially certain that actions will cause apprehension of
immediate harm or offensive contact
7.
If
A knows his gun is unloaded and points it at B, which causes apprehension, it
is an assault even though A neither had the intent nor the ability to harm B
8.
Words
alone do not constitute assault, need words with conduct
9.
Holloway v. Wachovia- defendant attempts to repossess
plaintiffs car and points a gun, cant commit an assault on a sleeping baby
because there is no apprehension (can commit a battery)
10. Vietnamese
Fishermen v. Knights of KKK-
group of KKK members attempted to intimidate local Vietnamese fisherman, a mile
away from fishermen’s docks the KKK hung a figure in effigy and fired a cannon,
fishermen were fearful but court found there was no assault because there must
be an apparent ability and opportunity to carry out the threat immediately, no
assault where the defendant is too far away to do harm
D.
Transferred
Intent
1.
Actor
shoots at A, hits B
2.
Actor
shoots intending to miss A, but hits A
3.
Applies
whenever both tort intended and resulting harm fall within trespassory
torts (battery, assault, false imprisonment, trespass to land, trespass to
chattels)
4.
Transferred
intent does not work for conversion and intentional infliction of emotional
distress
E.
False
Imprisonment
1.
Liability
for actor if:
a.
acts
intending to confine the other or a third person within boundaries fixed by the
actor;
b.
his
acts directly or indirectly result in such a confinement
c.
the
other is conscious of the confinement (awareness)
2.
Restraint
includes more than physical barriers or physical force (boundary does not have
to be 4 walls)
a.
threat
of force- when person attempts to go beyond the area in which the actor intends
to confine him
b.
duress-
sufficient to make the consent given ineffective to bar the action (more than
loss of job)
3.
Motive irrelevant for plaintiff’s prima facie
case
4.
Protects
an individual’s right to move freely from place to place as she sees fit
5.
Victim
must be aware of confinement
6.
Bounded
area:
a.
freedom
must be restricted, not mere inconvenience
b.
not
bounded if reasonable means of escape exists and plaintiff knows about it
c.
victim
must be confined in an area bound in all directions
d.
no
false imprisonment if plaintiff is free to proceed in some direction though it
may not be the desired direction
e.
bounded
area can be large, even an entire city
7.
Escape:
a.
the
person confined must act or imply to leave
b.
reasonable
means of escape preclude liability
c.
escape
is not reasonable if it requires the victim to be heroic, endure excessive
embarrassment or discomfort, or if the victim is unaware of this means of
escape
8.
Confinement
may be accomplished by:
a.
physical
barriers, or
b.
force
or threat of force against victim or victim’s family, others in presence, or
property
c.
defendant’s
omission when defendant has a legal duty to act
1.
A
invites B on boat and promises to bring A ashore when requested, B’s failure to
do so is false imprisonment
d.
improper
assertion of legal authority
1.
false
arrest by a fake cop
9.
Shopkeeper’s
Privilege- when a store owner or security guard detains a shopper suspected of
shoplifting and both the suspicion and manner of detention were reasonable
a.
defendant’s
desire to protect property might serve as a valid defense to false imprisonment
claim
b.
merchant
can lose privilege if excessive force is used or if detains shopper for an
excessive amount of time
10. Intent aspect- it is only necessary
for the plaintiff to prove that the defendant had the purpose to confine him or
her, or that the defendant was substantially certain that his conduct would
cause confinement; motive is irrelevant
11. Teichmiller v. Rogers Memorial
Hospital- plaintiff
“imprisoned” in an office by two others blocking door, she did not ask to leave
and was only detained for 3 minutes, she only speculated force would be used on
her – no false imprisonment
F.
Trespass
to Land
1.
Trespass-
interfering with your right to exclusive possession
2.
One
is subject to liability for trespass, irrespective of harm to a protected
interest of the other, if he intentionally:
a.
enters
land in the possession of the other, or causes a thing or third person to do
so, or
b.
remains
on the land, or
c.
fails
to remove from the land a thing which he is under a duty to remove
3.
Mistake
and good-faith does not negate intent
4.
Intent
to harm not necessary
5.
Nominal
damages inferred
6.
Plaintiff
must demonstrate that the defendants invasion was tangible
7.
Courts
allow property owners to protect the airspace above their land and the
subsurface below their lad only to an extent that the landowner can make
practical use of the space (“effective possession”)
a.
the
old rule was, he who has the soil owns upward unto heaven and downward to
perdition; with aircraft this rule is impractical
8.
Intent
remains an element of a trespass to land action. Plaintiff must prove that a defendant had the
purpose to invade her possessory right in land, or that
the defendant was substantially certain her action would do so.
9.
Not
necessary that a defendant be aware that he is on another’s land for plaintiff
to succeed, only necessary that the defendant enters the land in a volitional
fashion
10. Damages can be nominal, actual, and
substantial
a.
can
always get nominal damages in a trespass case (plaintiff can take someone to
court for just stepping on their land, vindication of rights)
b.
are
able to get actual damages
c.
contemptuous
damages- let the plaintiff recover but give him the lowest coin of the realm (a
penny)
11. Airborne articles: nuisance v.
trespass
a.
trespass-
interfering with your right to exclusive possession
b.
nuisance-
interest affected is use and enjoyment of land
1.
Amphitheaters v. Portland Meadows-
horse race track lighting shining on an outdoor movie theatre, need actual
harm, light is only a nuisance
c.
in
a trespass case involving airborne particles, plaintiff must show:
1.
an
invasion affecting an interest in the exclusive possession of his property
2.
an
intentional doing of the act which results in the invasion
3.
reasonable
foreseeability that the act done could result in an
invasion of plaintiff’s possessory interest
4.
substantial
damages to the property
d.
must
prove all elements (Bradley v. American
Smelting- deposit of airborne particles from manufacturing plant on
plaintiff’s property, conflict between industrial society and landowners, had
all elements and therefore trespass occurred)
e.
must
show actual and substantial damages with airborne particles
f.
accumulation
of particles is trespass, actual harm needed to hold defendant liable; if
particles dissipate it is a nuisance
G.
Trespass
to Chattels
1.
Intentional
interference with the right of possession of personal property
2.
Liability
for intentionally intermeddling with chattel of another if:
a.
dispossession
another of chattel
b.
chattel
is impaired in its condition, quality, or value, OR
c.
possessor
is deprived of the use of the chattel for a substantial period of time, OR
d.
bodily
harm is caused to possessor
3.
Any
one of these elements will result in a trespass to chattels case
4.
Conversions
little brother
5.
Plaintiff
must show actual damages; nominal damages won’t work
6.
Does
not require bad faith
7.
Can
interfere with possessory rights in two ways:
a.
intermeddling-
directly damaging chattel (scratch briefcase)
b.
dispossession-
dispossess plaintiff of a lawful right to possession (take briefcase for own
use)
8.
The
difference between trespass to land and trespass to chattels you have to show
harm and actual damages
9.
Compuserve,
Inc. v. Cyber Promotions-
email solicitations blocking Compuserves system and
decreasing value, damage sustained by plaintiff is sufficient for trespass to
chattels
H.
Conversion
1.
Used
when a defendant completely dispossesses the plaintiff of an interest in
personal property
a.
a
defendant need not physically damage a plaintiff’s property to convert it
b.
court
have allowed a plaintiff to recover the full value of converted property even
if the defendant has not damaged the property
2.
Intentional
exercise
3.
Dominion
or control over chattel
4.
Damages
of full value of chattel (forced sale)
5.
Factors
to determine serious of interference:
a.
the
extent and duration of the actor’s exercise of dominion or control
b.
the
actor’s intent to assert a right in fact inconsistent with the other’s right of
control
c.
the
actor’s good faith
d.
the
extent and duration of the resulting interference with the other’s right of
control
e.
the
harm done to the chattel
f.
the
inconvenience and expense caused to the other
6.
Conversion
only to personal property, not real or intangibles
7.
Examples:
a.
A
destroys B’s chattel – conversion
b.
A
causes minor damage to B’s chattel- trespass to chattel
c.
A
attempts to steal B’s chattel and is caught within minutes- conversion because
of bad faith
d.
A
mistakenly takes B’s chattel and returns within minutes – no conversion
e.
A
mistakenly takes B’s chattel and accidentally loses it – conversion because
permanent
8.
Purchasing
stolen property, even if the purchaser was acting in good faith and was not
aware the seller did not have title, constitutes conversion by both the seller
and innocent buyer because both acts seriously interfere with the ownership of
the rightful owner
9.
Wiseman
v. Schaffer-
imposter called for truck to be towed, was towed and then stolen, towing co.
liable for conversion
10. Where intermeddling falls short of complete
or substantial deprivation of possessory rights there
is trespass to chattels
I.
Intentional
Infliction of Emotional Distress
1.
One
who by extreme and outrageous conduct intentionally or recklessly causes severe
emotional distress to another is subject to liability for such emotional
distress, and if bodily harm to the other results from it, for such bodily harm
2.
Elements:
a.
intentional
or reckless conduct
b.
extreme
and outrageous
c.
must
be a causal connection between the wrongful conduct and the emotional distress
d.
emotional
distress must be severe
3.
Conduct
must be “so outrageous in character, and so extreme in degree, as to go beyond
all possible bounds of decency, and to be regarded as atrocious, and utterly
intolerable in a civilized community.
(Outrageous! Test)
4.
Liability
does not extend to “ mere insults, indignities, threats, annoyances, petty
oppressions, and other trivialities”
a.
we
do want people to have a little bit of a thick skin
5.
Restatement
intent: purpose of causing distress or actor knew that distress was
substantially certain to be produced
6.
In
addition to intentional conduct, tort includes “reckless” conduct
7.
Not
a precise tort, very subjective; hurdles are high for plaintiff
8.
No
transferred intent
9. Hypothetical: guy working in office is
fixated on the rapture, one time he is out of the office and his co-workers
play a joke on him by arranging their clothes on chairs throughout the office
and hiding (as if they have gone to heaven), guy comes back and is crushed
because he believes the rapture has occurred and he is still on earth,
introduces doubt for the rest of his life, difference of opinion on whether or
not this is intentional infliction of emotional distress
10. Figueiredo-Torres
v. Nickel- marriage
counselor sleeping with the wife (abuse of position or relation by authority),
made demoralizing statements to husband, was enough for intentional infliction
of emotional distress
11. Caldor
v. Bowden- Bowden was embarrassed at work because he
was told he had stolen money, was handcuffed in front of the building, not
intentional infliction of emotional distress because he was only upset and
embarrassed and did not have a severely disabling emotional response that would
hinder his day to day activities
12.
Courts
require a high degree of misconduct, one that frequently relates to the
relationship of the parties
A.
Common
law principle: violenti non fit injuria
= to one who is willing, no wrong is done
1.
Affirmative
defenses- says “yes, but”
2.
legal
excuse
3.
purpose
is to protect autonomy
B.
Consent
1.
Can
consent be implied from the circumstances?
a. express consent
b. implied consent- immigrant inoculation
to enter U.S., she offered her arm to the doctor and later claimed she did not
want the shot (O’Brien v. Cunard Steamship Co.)
c. Peterson
v. Sorlien-
Daughter sued parents for false imprisonment for the first three days she was
in detox.
Court held that because she consented to the rest of the duration of the
detox, her consent could be implied to the first
three days. (note that the parent-child relationship in this case is
exceptional)
2.
Does
the complained of action go beyond what the plaintiff consented to?
a. implied consent to conduct within
rules does not imply consent to conduct outside rules
b. Hackbart- football game, excessive contact not
in rules, things can go beyond what is consented to when playing a game
3.
Consent
and medical procedures
a. ordinarily express consent is required
b. without consent, procedure is battery
even if successful
c. exceptions to express consent
1.
patient
is incapable of giving consent
2.
during
operation, problem is found that is life threatening and urgent
d. if a surgeon obtains a patients
consent to an operation without informing him of the nature of the operation or
the extent of the harm that is necessarily involved, the patients consent is held
to be an “informed consent”
4.
Invalidating
consent
a. Is consent invalidated by fraud or
misrepresentation?
b. Is consent to illegal activity valid
consent?
1.
prize
fighting- majority says it is an illegal act so there is no consent but still
liability, minority says it is an illegal act so there is binding consent and
no liability
2.
A
and B engage in a boxing match which is illegal because the required license
has not been obtained. Each is guilty of
a breach of peace, but neither is liable to the other – Restatement.
5.
Consent
under mistake, misrepresentation, or duress
a. A consents to sexual intercourse with
B, who knows that A is ignorant of the fact that B has a venereal disease, B is
subject to liability to A for battery
b. Person did not consent to have sex
with someone who is HIV positive, only consented to sex
6.
Apparent
consent
a. Taking part in a game manifests a
willingness to submit to such bodily contacts or restrictions or liberty as are
permitted by its rules or usages. Participation in such a game does not manifest
consent to contacts which are prohibited by rules or usages
of the game if such rules or usages are designed to
protect the participants and not merely to secure the better playing of the
game as a test of skill.
b. A, member of a football team, tackles
B, player on opposing team. A’s conduct
is within the rules of the game, A is not liable for B.
c. A tackles B while A is “offsides”. The
tackle is made with no greater violence than would be permissible by rules and usages of football were he “onside”. A has not subjected B to a violence greater
than, or different from that permitted by the rules although he is guilty of a
breach of a rule A is not liable for B.
d. A, while tackling B, deliberately
injures him. A is subject to liability
to B whether the tackle was or was not otherwise within the rules and usages of football.
C.
Self
Defense
1. An actor is privileged to use
reasonable force, not intended or likely to cause death or serious bodily harm,
to defend himself against unprivileged harmful or offensive contact or other
bodily harm which he reasonably believes that another is about to inflict
intentionally upon him.
2. Privilege to use reasonable force to
defend against immediate harm
3. Must have a reasonable belief that
force is necessary
4. No right to retaliate when no longer
threatened
5. Amount of force generally is limited
to that which is necessary or reasonable appears to be necessary
6. No duty to retreat where use of force
will not result in serious injury
a.
Restatement
puts a duty to retreat before using force unless in ones home, majority of
courts usually say there is no duty to retreat
b.
If
you have an opportunity to flee, the restatement says flee; most jurisdictions
say shoot the guy, you don’t have to flee
c.
You
cannot shoot someone in the back running away, this is no longer self defense
because the threat is over, must be an immediate threat
7. Roberts
v. American Employers Insurance Company- officer shot plaintiff (convicted crook with record
)while making an unlawful arrest, officer reasonably believed he was in danger
(knew of plaintiff’s past) and the force used was not excessive
a.
factors
to look at: size, age, strength, reputation, aggressor, degree of physical harm
reasonably feared, presence or absence of weapons
b.
need
a reasonable belief, use reasonable force
8. Defense of Others
a.
similar
to privilege of self-defense
b.
reasonable
mistake?
1.
limited
privilege: intervenor steps into shoes of person he
defends
2.
privileged
to use reasonable force even if mistaken, if mistake is reasonable
c.
a
person may defend a third person in the same manner, under the same conditions,
as the person being defended would be able to do in self defense
d.
you
can do anything for someone else you would reasonably do for yourself
D.
Defense
of Property
1. Privilege to defend property is
limited to amount of force that is reasonably necessary
2. No privilege to use force that is
intended or likely to cause death or serious harm unless intrusion threatens
death or serious bodily harm to occupiers of premises
3. Must be “dwelling place”
4. The use of force must be proportional
to the threatened interest
5. Property always has less value than
life
6. Use of a mechanical device
a.
the
actor is privileged to employ deadly force by means of a mechanical device to
the same extent to which he is otherwise privileged to use such force; a
possessor of land cannot do indirectly and by a mechanical device, that which,
were he present, he could not do immediately and in person
b.
Prosser:
spring guns and other mankilling devices are not
justifiable against a mere trespasser or petty thief; they are privileged only
against those upon whom the landowner, if he were present in person, would be
able to inflict injury of the same kind
c.
Vacant
farmhouse will always lose
d.
Katko
v. Briney-held
liable for use of spring gun in boarded up house, shot a young boy, what if it
had been a fireman or child?
7. Owner dispossessed of property may use
reasonable force to recover property immediately after dispossession
a.
fresh
pursuit v. undue lapse of time
b.
force
is limited to what is reasonable under the circumstances
8. Merchant’s Privilege
a.
Restatement
recognized privilege for merchant to detain for reasonable investigation a
person whom merchant reasonably believes to have stolen merchandise
b.
Scope
differs in various jurisdictions: how much force; what is a reasonable time for
detention; what’s reasonable grounds to detain; does privilege extend beyond
premises? (can hold for a good hour without a false imprisonment claim)
c.
Reasonable
mistakes are allowed
d.
Fact-intensive
E.
Private
Necessity
1. Incomplete defense which provides privilege
to interfere with another’s property rights to avoid greater harm (where the
act is to benefit any person or protect any property from destruction or
serious injury the defense is qualified), but
2. Defendant acting out of private
necessity must compensate plaintiff for damage done, but not guilty of trespass
3. Qualified privilege because it still
requires the defendant to compensate the property owner for any damage caused
(subject to liability) but defendant is not guilty of trespass
4. Restatement says you can trespass on
property but not on another person. You
cannot swerve into a pedestrian to save yourself instead of swerving into
oncoming traffic. Cannot trespass on
another person to save yourself.
5. Ploof v. Putnam- servant unmoors
plaintiff’s ship from his dock during a storm, plaintiff had qualified
privilege to use the dock, found liable when the boat is destroyed and
plaintiff is injured
6. Vincent
v. Lake Erie Transportation Co.-
owner of dock suing owner of boat tied up to dock to unload and a storm came,
they stayed tied to the dock during the storm causing damage to the dock, no
trespass because the storm was an act of God, but defendants are liable for
damage to dock
F.
Public
Necessity
1. One is privileged to commit an act
which would otherwise be a trespass to a chattel or a conversion if the act is
or is reasonably believed to be necessary for the purpose of avoiding a public
disaster
2. Provides privilege to destroy private
property to protect community
3. Unlike private necessity, this is a
complete defense, absolute privilege- a defendant who successfully raises the
privilege need not compensate the plaintiff for his loss
4. In the absence of legislation
providing compensation, those whose property is destroyed by an act of public
necessity have no right to compensation
5. United
States v. Caltex- if the government uses your property they have to
compensate you for it, but if they destroy if under public necessity you get
nothing; Caltex destroyed their facilities for the
government during the war with Japan, afterwards they were not compensated for
anything
6. Famous case- San Francisco fire-
ordered a house burned to stop the spread of fire and guard the city, plaintiff
could not recover
A.
Elements
of a negligence claim:
1. a duty of due care- duty exists if the
defendant’s conduct foreseeably creates unreasonable
risks of harm
2. breach of the duty- plaintiff must
prove that the defendant failed to use reasonable care to avoid causing harm
3. causation- plaintiff must first prove
cause in fact (the negligent conduct brought about the plaintiff’s injury) and
then prove proximate cause (the causal connection between the negligent conduct
of the defendant and the plaintiff’s injury was close enough that the defendant
should be held liable)
4. damages- plaintiff must prove that
actual injury resulted from the defendant’s conduct, nominal damages are not
awarded for negligent conduct that does not cause injury
B.
Negligence
seems to be blameworthy behavior that requires less in the way of intent, but
is deemed blameworthy because a jury finds that the defendant’s behavior falls
below the reasonable person standard of care.
C.
Defining
the standard of care
1. the standard of care measures the duty
owed
2. standard of care is the level of
expected conduct that is required under the circumstances
3. the most common standard is that of
the reasonably prudent person, an objective standard
4. did the defendant deviate from the
standard?
D.
Reasonably
prudent person
1. negligence is the failure to use
ordinary care, that is, failing to do that which a person of ordinary prudence
would have done under the same or similar circumstances of doing that which a
person of ordinary prudence would not have done under the same or similar
circumstances
2. because of objective standard,
defendant can’t defend actions as the best that could be expected from a person
with poor judgment of limited intelligence
3. a defendant is expected to know things
that a reasonably prudent person would know
4.
Vaughn v. Menlove- defendant made a chimney through a rick which bust into flames and destroyed the plaintiff’s
cottages, defendant wanted to be judged to the limit of his intelligence
(subjective standard), court disagreed and went with the prudent man approach,
defendant held liable
E.
Applying
the reasonable person standard
1. The general duty is to act as a
reasonable person. The jury is asked to
make an objective, rather than subjective determination. The person who acts is not required to do his
or her own best, but is required to act as a hypothetical reasonable person
would act in similar circumstances.
2. Three parts to the jury’s finding of negligenct:
a.
The
first question is whether a duty exists at all
b.
The
second question presumes the existence of a duty, and focuses on how the judge
describes the duty to the jury
c.
Once
the jury is told what the duty is, the just must apply the law to the facts to
determine whether the defendant has breached that duty
F.
Child’s
standard of care
1. a child typically is judged by a
child’s standard of care, which examines what “an ordinary prudent child of the
same age, experience, intelligence, and capacity” would have done
2. a child, however, is judged by an
adult standard when engaged in adult activities for which adult qualifications
are required or are inherently dangerous
3. Daniel
v. Evans- this case
presents a child doing an adult activity, driving is an adult activity,
therefore cant be held to a minor standard of care
G.
Elderly
standard of care
1. seniors are held to an ordinary adult
standard of care, unless they are the plaintiff, and then the standard is
affected more by physical disability, than just simply by age
2. court may measure an elderly mans
conduct against the standard of conduct of the ordinary person suffering from
the same or similar infirmities of old age
3. old age can be considered when it is
the cause of physical infirmity
4. mental infirmity is not considered
H.
Reasonably
prudent woman
1. some jurisdictions have adopted a
“reasonable woman” standard for sexual harassment cases
2. the standard remains objective, but
becomes gender specific (conduct that a reasonable woman would consider
sufficiently severe or pervasive)
I.
Physical
disabilities
1. the standard of care will reflect the
defendant’s physical qualities
2. a defendant with a physical disability
is held to the standard of a reasonably prudent person with that disability
a.
a
blind person’s conduct will be judged against a reasonable blind person under
the same or similar circumstances
J.
Drunkenness,
blackouts, seizures, and sudden mental illness
1. just having a drink does not make a
driver negligent, the drinking needs to have affected the driver’s behavior
2. blackouts and seizures present
questions concerning the level of notice to the sufferer of their condition
before they get behind the wheel of a car
3. sudden mental illness also presents a
question of fact of whether the reasonable person with this mental illness
would have continued to drive
K.
Mental
deficiency and the standard of care
1.
Restatement
(majority) position: mentally deficient persons are liable for torts, and are
judged by the standard of a reasonable prudent person of ordinary intelligence
and rationality
2.
Some
jurisdictions consider whether mental disability suddenly incapacitated
defendant from conforming conduct to that of a reasonable person
3.
Policy
basis of holding a permanently insane person liable for his tort is:
a.
where
one of the two innocent persons must suffer a loss it should be borne by the
one who occasioned it
b.
to
induce those interested in the estate of the insane person to restrain and
control him
c.
the
fear an insanity defense would lead to false claims of insanity and to avoid
liability
4.
Bruenig
v. American Family Insurance Co.-
woman involved in an accident due to an insane delusion (saw a light and
followed it, thought she could fly like Batman), court said there must be absence
of notice of forewarning, did she have warning or knowledge that hallucinations
would occur that would affect her driving?, if so then she is negligent
L.
Wealth
1. wealth should not play a role in
determining whether the actor is negligent
2. if plaintiff alleges a claim for
punitive damages, the wealth of defendant is relevant to the juries
determination of the amount necessary to punish and deter
M.
Negligence-
Custom
1. Relationship between what is
reasonable and what is customary
2. Nothing guarantees that custom will
set the standard at the right height
3. Customs are not controlling, just
relevant
4. Evidence of custom and industry
practice may be used as evidence of what a reasonably prudent person would do
(sword and shield)
a.
sword-
plaintiff can argue that the defendant fell short of custom
b.
shield-
defendant uses custom as a shied to show ordinary care
5. Custom is relevant as a “composite
judgment” about the risks of situation and required precautions
6. Evidence of custom and industry
practice is relevant, but is not conclusive on establishing negligence
7. No group of individuals and no
industry or trade can be permitted by adopting careless and slipshod methods to
save time, effort or money, to set its own uncontrolled standard at the expense
of the rest of the community
a.
Court
will then determine the standard
b.
T.J. Hooper- custom was not to have radios on
tugs, the whole industry unduly lagged or fell behind, court had to impose a
standard of care on the industry saying the tugs should have had the radios
8. Custom can lag behind what a
reasonably prudent person would do
9. Medical standard of care
a.
plaintiff
must prove physician’s conduct deviated from recognized (customary) medical
practice
1.
Helling
v. Cary- patient with
glaucoma not given test because medical standard of care was not to test until
the age of 40, defendants found negligent because reasonable prudence required
the timely giving of the test to the plaintiff, court made a greater standard
of care than the one imposed by the profession
b.
What
is the proper standard of medical care?
1.
strict
locality (if you are in New Bedford, New Bedford sets the standard)
2.
same
or similar communities (majority view)
3.
national-
accreditation involved
c.
informed
consent
1.
do
not have to show negligence
2.
majority
test: what a reasonable physician (customarily) would disclose
3.
patient-centered
standard, which includes both objective (Canterbury) and subjective tests,
requires disclosure of material risks
4.
exceptions
to disclosure are allowed
5.
plaintiff
must show causation- must be a relationship between the damage caused and the
lack of informed consent, exists when disclosure of risks incidental to
treatment would have resulted in a decision against it
6.
patient
centered approach: subjective- what would that particular patient want to know;
objective- reasonable person
7.
doctor
centered approach: what would a reasonable doctor disclose? Custom?
8.
exceptions:
patient is unconscious, patient would not undergo treatment because they would
be frightened
9.
Canterbury v. Spence- the causality issue (disclosure of
risks incidental to treatment would have resulted in a decision against it)
should be resolved on an objective basis in terms of what a prudent person in
the patient’s position would have decided if suitable informed of all perils
bearing significance
d.
Restatement-
The standard is not that of a particular locality. If there are only three physicians in a small
town, and all three are highly competent, they cannot be permitted to set a
standard of utter inferiority for a fourth who comes to town. The standard is rather that of persons
engaged in a similar practice in similar localities, considering geographical
location, size, and the character of the community in general.
1.
Brune
v. Belinkoff- anesthesiologist gave excessive dose to woman giving
birth who then fell out of bed and injured herself, wanted to be held to the
standard of care for specialist in New Bedford, court said one holding himself
out as a specialist should be held to the standard of care and skill of the
average member of the profession, no longer using strict locality
N.
Calculus
of risk
1.
Where
an act is one which a reasonable man would recognize as involving a risk of
harm to another, the risk is unreasonable and the act is negligent if the risk
is of such magnitude as to outweigh what the law regards as the utility of the
act or of the particular manner in which it is done (probability of risk
balanced against the utility- risk outweighs utility
a.
Burden
of proof. Conduct is not negligent unless the magnitude of the risk involved so
outweighs its utility as to make the risk unreasonable. (accept some risk, just not unreasonable
risk)
b.
Rinaldo
v. McGovern-
golfer misses the fairway and sends the ball soaring off the course onto an
adjacent roadway and through plaintiffs windshield, court held that the mere fact
that a golf ball did not travel in the intended direction does not establish a
viable negligence claim, person injured must show the golfer failed to exercise
proof by showing that the golfer aimed so inaccurately as to unreasonably
increase the risk of harm, in this case the risk does not outweigh the utility
c.
Baseball
games- no liability for foul balls, all a ballpark needs to do is provide some
screened seating behind home plate that gives people an option for screened
seating, if a ball leaves the ballpark and hits someone outside the ballpark
there is liability
2.
In
determining utility of conduct, certain factors are important (can you get the
same utility but make it less dangerous?):
a.
the
social value which the law attaches to the interest which is to be advanced or
protected by the conduct
b.
the
extent of the chance that this interest will be advanced by the particular
course of conduct
c.
the
extent of the chance that such interest can be adequately advanced or protected
by another and less dangerous course of conduct
3.
In
determining the magnitude of risk, these factors are important:
a.
the
social value which the law attaches to the interests which are imperiled
b.
the
extent of the chance that the actor’s conduct will cause an invasion of any
interest of the other or of one of a class of which the other is a member
c.
the
extent of the harm likely to be caused to the interests imperiled
d.
the
number of persons whose interest are likely to be invaded if the risk takes
effect in harm
4.
Custom
will dictate care unless the costs to the actor are less than the risk of
injury- the probability of injury multiplied by the extent of the expected
injury- the actor’s conduct creates
5.
Hand
formula: B < L x P
a.
B
is burden
b.
L
is injury
c.
P
is probability
d.
United States v. Carroll Towing Co.- barge breaks loose because there was
no attendant there to help guide it, damages other ship, apply the Hand
formula- burden is the bargee at working hours ($8),
probability is the odds of something
happening even if the bargee is there as opposed to when
he is not there, loss is the value of the barge
O.
Negligence
Per Se
1.
A
tort concept whereby a legislatively imposed standard of conduct is adopted by
the civil courts as defining the conduct of a reasonably prudent person. The jury is not asked to judge whether the
defendant acted as a reasonably prudent person would have acted under the same
or similar circumstances; the statute itself states what a reasonably prudent
person would have done. If excuse is not
raised, the only inquiry for the jury is whether the defendant violated the
statute, and if so, whether this was a proximate cause of the accident.
2.
Statutory
violations
a.
courts
may use statutes, regulations, and ordinances to establish standard of care
b.
statute
is used as shortcut to reasonable person standard; the specific duty outlined
in the statute replaces the general common-law duty
c.
there
is a different approach to licensing statutes and to minors and statutory
violations (Brown v. Shyne)
d.
violation
of statute is negligence per se, judges determines whether statute applies,
jury never gets the question of negligence, jury only answers whether or not
there was a violation and whether or not there was causation
e.
Chaffin
v. Brame- motorist driving at night hits vehicle
with no lights on, statute says it is negligent to drive an automobile along a
public highway in the dark at such a speed that it cannot be stopped within the
distance that objects can be seen in front of it, statute not designed to require infallibility
of the nocturnal motorist or preclude him from recovery, tension between
looking at the facts of the case and the statute, statute does not apply to
these circumstances, court goes with reasonably prudent person
f.
Martin v. Herzog- collision between buggy and automobile, buggy had no lights on it
in violation of a statute, this is negligence in itself – admitted violation of
a statute intended for the protection of travelers on the highway, there was
negligence but it needs to be determined if there was a causal connection
between the negligence and the injury, defendant who travels without lights is
not to pay damages for his fault unless the absence of lights is the cause of
the disaster (some evidence?)
g.
Brown v. Shyne- plaintiff employed defendant for chiropractic treatment,
defendant had no license to practice but held himself out as being able to
diagnose under the Public Health Law, plaintiff became paralyzed, in order to
show that plaintiff has been injured by defendant’s breach of statutory duty,
proof must be given that defendant did not exercise by qualified practitioners
within the State and that such lack of skill and care caused the injury,
failure to obtain a license by law gives rise to no remedy if it has caused no
injury (most jurisdictions hold that a
licenses is an indicator of skill but to prove negligence the plaintiff must
show lack of skill caused the injury or lack of license will not be enough)
3.
Threshold
issues (test for violation of statute)
a.
Is
plaintiff a member of the class of persons intended to be protected by the statute?
b.
Is
the harm the kind that the statute was intended to protect against?
c.
Gorris
v. Scott- sheep on
ship cast overboard, object of the statute was to keep them in a pen to prevent
disease, not to keep them from going overboard, statute doesn’t apply
4.
Appropriateness
of adopting criminal standard
a.
courts
do not have to accept criminal standard as a standard for civil liability;
criminal statute must provide appropriate basis for tort liability
b.
factors
to consider include:
1.
pre-existing
common law duty?
2.
Does
statute clearly define prohibited or required conduct?
3.
Direct
or indirect relationship with harm?
c.
Osborne
v. McMasters-
drug-store clerk sold to plaintiff deadly poison without labeling it “Poison”
as required by Penal Code statute (criminal), court borrows criminal statute
for civil case, statute fixes the standard, plaintiff has to show he is a
member of the protected class and has an injury according to the statute,
drug-store clerk is liable
d.
Veseley
v. Sager- vendor of alcoholic beverages
provides drinks to a customer who as a result of intoxication injures a third
person, Business and Professions Code provides that anyone who sells or
furnishes an alcoholic beverage to an intoxicated person is guilty of a
misdemeanor, statute was adopted to protect members of the general public from
injuries to person from excessive use of liquor, purpose of the statute was a
case like this, vendor is liable
5.
The
court may adopt as the standard of conduct of a reasonable man the requirements
of a statute whose purpose is found to be:
a.
to
protect a class of persons which includes the one whose interest is invaded,
and
b.
to
protect the particular interest which is invaded, and
c.
to
protect that interest against the kind of harm which has resulted, and
d.
to
protect that interest against the particular hazard from which the harm results
6.
Effect
of statutory violation
a.
negligence
per se (majority)- statutory violation conclusive on whether defendant violated
applicable standard of care
b.
rebuttable
presumption- presumption may be rebutted by party violating statute
c.
some
evidence- violation of statute provides some evidence of negligence
d.
the
unexcused violation of a legislative enactment which is adopted by the court as
defining the standard of conduct of a reasonable man is negligence in itself
e.
the
unexcused violation of an enactment or regulation which is not so adopted may
be relevant evidence bearing on the issue of negligent conduct
7.
Compliance
with a legislative enactment or an administrative regulation does not prevent a
finding of negligence where a reasonable man would take additional precautions.
(use it as a sword but not necessarily as a shield)
8.
Excuse
under Restatement
a.
excused
violation is not negligence
b.
Restatement’s
non-exclusive list includes:
1.
violation
reasonable because of incapacity (heart attack)
2.
actor
neither knew nor should have known of occasion to comply (rear lights out in
car)
3.
unable
after reasonable diligence to comply
4.
emergency
5.
compliance
would involve a greater risk of harm (walking on wrong side of the road when a
lot of traffic is on the other side)
6.
may
also be able to argue custom as an excuse (everyone was speeding on the
highway, if you slow down you will get hit)
7.
A
statute provides that all drivers of vehicles shall keep to the right side of
the highway. While A is driving on the
right side of the highway with reasonable care, a child darts out from the
sidewalk into his path. A turns to the
left side of the highway to avoid hitting the child. His car collides with that of B, who is
injured. A is not liable to B on the
bases of a violation of the statute.
Emergency was not A’s fault.
9. Proof of Negligence
a.
interplay
between judge and jury
1.
judge-
appropriate to use the statute
2.
jury-
violation
b.
Baltimore & Ohio R.R. v. Goodman- man gets run down at railroad grade
crossing, rule is to stop and get out of your car if you can not be sure
otherwise that a train is dangerously near, if a person does not get out of
their car their behavior is unreasonable as a matter of law and negligent
(controversial decision)
c.
Pokora
v. Wabash Ry.- man driving across a railroad crossing is struck and
injured, under Goodman he should be
found negligent but this does not follow the “facts of life”, you cant require
people to get out of their car and look at every railroad crossing, not
reasonable, the court sets a new rule to use appropriate caution
d.
Wilkerson
v. McCarthy- plaintiff injured when he fell
in to a pit while at work, trial judge granted directed verdict, SC says there
is enough evidence for workers comp. damages and this case should have been
given to the jury to decide on negligence
9.
Res
Ipsa Loquitur- the thing
speaks for itself
a.
Rule
of evidence that permits jury to infer negligence based on the accident itself
where direct evidence is lacking
b.
Procedural
impact of res ipsa:
plaintiff eludes dispositive motions by defendant,
gets case to jury
c.
Jury
can then draw an inference of negligence based on certain circumstances
d.
Burden
shifting- plaintiffs burden of proof gets shifted to defendant who has to prove
by a preponderance of the evidence that defendant was not negligent
10.
Res
Ipsa Requirements
a.
Instrumentality
causing injury must be under exclusive control of defendant
b.
Accident
would not ordinarily occur without negligence
c.
Must
not have been due to any voluntary action or contribution on part of the
plaintiff
11.
When
you lack direct evidence you apply res ipsa, but you still need some evidence on exclusive
control. You have to show this act would
not have happened without negligence.
Must have proof.
12.
Res
Ipsa: Type of Accident
a.
Event
must be one that does not ordinarily occur unless someone has been negligent
b.
Examples
of events that occur without negligence:
1.
falling
down stairs
2.
tire
blowing out
c.
Examples
of events that don’t ordinarily occur without negligence:
1.
elevator
falling
2.
boiler
exploding
3.
derailing
train
d.
Byrne v. Boadle- Plaintiff hit by a barrel of
flour. Defendant is a dealer in
flour. Plaintiff doesn’t know where
barrel came from. Defendant says plaintiff
has to show actual affirmative negligence.
The negligence is that the barrel fell.
The defendant had exclusive control of the barrel. Defendant must prove any facts inconsistent
with negligence.
e.
Larson v. St.
Francis Hotel- armchair falls out window of hotel, court says it would be
impossible for hotel to have exclusive (complete) control over chairs, there is
a possibility of several causes and therefore a problem in applying res ipsa
13.
Procedural
Impact at Trial
a.
Inference
of negligence permitted by jury, not compelled, or
b.
Presumption
of negligence: just must find negligence if defendant does not provide enough
evidence to rebut presumption, or
c.
Shifts
burden of proof: defendant must prove by preponderance of evidence that injury
was not caused by defendant’s negligence
14.
Res
Ipsa and Multiple Defendants
a.
Typically
res ipsa does not apply
against multiple defendants because you can not have exclusive control
b.
Ybarra’s
narrow exception: where plaintiff in course of medical treatment receives
unusual injuries while unconscious, all defendants who had control over body or
instrumentalities that may have caused the injuries
may be required to explain their conduct
15.
Negligence
Per Se v. Res Ipsa
a.
Negligence
per se
1.
statutory
standard defines what reasonably prudent person would do
2.
procedural
affect varies
3.
judge
determines whether statute applies
4.
jury
decides whether statute violated, causation, damages
b.
Res
Ipsa
1.
rule
of evidence prevents directed verdict despite plaintiff having no direct
evidence of negligent conduct
2.
procedural
effect varies
3.
judge
determines if res ipsa applies
4.
jury
decides negligence, causation, and damages
A.
Causation
is the concept that focuses on the necessary link between the defendant’s
conduct and the plaintiff’s injury.
B.
Elements
of Causation
1.
Cause
in fact
a.
Sine
qua non or “but for” cause; substantial factor
b.
Examines
the cause and effect relationship between tortious
conduct and injury
c.
If
harm would have occurred anyway, defendant’s negligence is not the cause in
fact and it is over for the plaintiff.
Plaintiff must show that defendant’s negligence was not only capable of
causing harm, but that the negligence actually caused the harm.
2.
Proximate
cause
a.
determining
whether liability will be cut off even though cause in fact has been
established
b.
policy
decision based on justice, fairness, or expediency
c.
if
you do not have cause in fact you do not care about proximate cause, have to
have “but for” for proximate cause
d.
cause
in fact is too remote
e.
must
have causation to win
C.
Post
Hoc Ergo Propter Hoc
1. After this, therefore because of this:
a logical fallacy that because one event follows another chronologically it was
caused by the first event
2. Just because event B follows event A
does not mean that A caused B
3. A difference between possibility and
probability
a.
going
to have to show probability more likely than
not
D.
But-for
Causation
1. Lyons
v. Midnight Sun Transportation Services- Plaintiff was killed when her van was struck by a truck
driven by defendant. Plaintiff pulled
out of parking lot in front of defendant and the vehicles collided. Jury found defendant was negligent but he was
not held liable because his negligence was not a legal cause of the
accident. The cause of the accident was
plaintiff pulling out of the parking lot. (must prove causation)
2. Slip and fall case- even if the
plaintiff can prove that the defendant negligently created a dangerous
situation, the plaintiff must still prove that the dangerous condition caused
the fall
a.
Dapp
v. Larson- plaintiff
fell down front steps of defendant’s residence, claimed plastic mat in front of
house created a dangerous situation but could not prove this was the cause of
the accident, summary judgment granted for defendant
b.
Williams v. Emro
Marketing Company-
plaintiff slipped and fell on ice on pavement at store and failed to present
evidence that ice was the cause in fact of his fall, witness testified he
helped plaintiff up from ice, no summary judgment
c.
To
recover in a slip and fall case, the plaintiff must first show that the
defendant was negligent. This requires
proof that a dangerous condition existed on the premises, that the defendant
knew or should have known of the condition, and that the defendant failed to
use reasonable care to correct it. The
plaintiff must then show that the dangerous condition created by the
defendant’s negligence caused the fall.
E.
Concurrent
Cause
1. When separate acts of negligence
combine to cause a single injury, each tortfeasor is
responsible for the entire result
2. Concurrent cause also includes conduct
that combines to cause injury where either alone would have been sufficient
3. Courts use “substantial factor” test
when two or more causes combine to bring about a result
4. Possibility of apportionment (Dillon)
a.
may
be able to divide between two tortfeasors if you can
figure it out
F.
Loss
of chance/ Loss of opportunity
1. The antithesis of proximate cause is
the doctrine of lost opportunity
2. Some jurisdictions allow for recovery
for loss of chance or reduced chance of survival even though plaintiff can’t
prove that it is more likely than not that defendant’s negligent conduct caused
injury
3. Some jurisdictions do not relax
causation or recognize a cause of action (Texas)
a.
Weymers
v. Khera-
plaintiff was misdiagnosed repeatedly, she retained 10-15% kidney function, if
it had been spotted earlier function would have been 30-40%, state does not
recognize lost opportunity if death is not a result
4. What do you do with damages? Do you apportion them? Different
jurisdictions take different approaches.
5. Where doctrine is recognized,
jurisdictions have taken three different approaches:
a.
pure
lost chance: full recovery of damages even though more likely than not
plaintiff would have suffered injury even if the defendant had not been
negligent (100%)
b.
proportional
approach: limits recovery to percentage of chance lost multiplied by total
damages (20%)
c.
substantial
possibility approach: allows full recovery where defendant’s negligence was
less than loss of 50%, but was a “substantial possibility”
G.
Science
and Proof of Causation
1. Causation- more likely than not to
have caused injury- can be proved by scientific evidence (expert testimony)
2. Statistical evidence must show more
than a doubling of relative risk
a.
need
a risk factor of above 2
b.
“more
likely than not” test of causation
3. Daubert
test:
a.
whether
expert testimony is “good science” (peer review/publication; independent
research)
b.
whether
proffered testimony is relevant (fit between testimony and issue in case)
4. Daubert v. Merrell
Dow Pharmaceuticals-
two minors brought suit against Merrell Dow claiming
they suffered birth defects because their mothers had taken a drug prescribed
for morning sickness to pregnant women; issue is whether or not certain expert
scientific testimony is admissible to prove this drug caused plaintiff’s birth
defects; good science is peer review and publication and independent research,
none of the experts constitute good science in this case (experts needed to say
that drug caused plaintiff’s injuries or drug more than doubled the likelihood
of birth defects to prove causation- could
not say either of these- testimony inadmissible because there is no fit)
A.
Proximate
cause, or legal cause, addresses whether liability is to be imposed (cause in
fact has already been established)
B.
Draws
lines where liability stops
C.
Approaches
to proximate cause
1. Direct causation (Polemis):
a.
negligent
conduct was proximate cause of the injury even though defendant could not have
foreseen it
b.
if
act was negligent and some damage could be anticipated, does not matter that
actual damage caused was unexpected
c.
unforeseeability of damage immaterial as long as damage is “directly
traceable” to the negligent act and not because of independent causes
d.
natural
sequence of events (hindsight)
e.
Polemis- Owners of steamship claim to recover
damages for the total loss of steamship by fire, beam fell into the hold of the
ship and set a spark which caused an explosion
1.
the
owners claim charterers are responsible for
destruction; owners argue dropping beam into hold was a negligent act
2.
charterers
argue that the danger was not foreseeable
3.
two
tests: direct cause (liable if there is negligence) and foreseeability
(consequences that could be expected)
4.
defendant
was negligent
5.
Warrington:
if there is negligence look to see if there is a direct consequence, because
the act could cause some damage the defendant is liable for everything else
that is a direct consequence
6.
Scrutton:
determine whether there is negligence that would cause damage, the damage does
not have to be the same kind you could foresee but has to be directly traceable
to negligent act and not sue to an intervening cause
7.
lack
of foreseeability is immaterial, the act itself was
negligent and something bad could have happened, on the hook for anything
2. Foreseeable risks (Wagon Mound): proximate cause is to be tested by the reasonable foreseeability of that type of risk
a.
Risk
rule- go back to the duty and breach and try to determine the type of
unreasonable risk of harm that the defendant has imposed on the plaintiff, in
order to determine whether the harm the plaintiff has suffered is “within the
risk”
b.
Restatement
on risk rule: Defendant gives a large loaded handgun to a small child. The child handles the gun and drops it. The gun crushes the toe of D, and the impact
causes it to go off. The bullet strikes
and wounds C. Defendant liable for the
wounding of C but not the crushed toe of D.- foreseeable risk is shooting
someone, not dropping gun on a toe
c.
Wagon Mound-
defendant’s ship leaks oil onto water, plaintiff is welding, spark catches
cotton in water on fire, fire damages wharf and ship, plaintiff relies on Polemis case
(some damage from spillage of oil on the use of the slips would be negligent so
defendant is on the hook for some damage and can be responsible for all
damage), court reject Polemis,
foreseeable risk, what can be anticipated, defendant could not have known that
spilt oil was capable of being set on fire on the water (capable of pollution)
d.
Limitation
on liability- liable only for things a reasonable person could have foreseen of
the consequent damages (foresight test)
e.
Problem
with Polemis:
can not assign blame based on the past, need to use reasonable person foresight
E.
Danger
invites rescue
1. Rescue doctrine permits injured
rescuer to sue the party who caused the danger that required rescue
2. Considered foreseeable that a rescuer
will come to aid of person affected by tortfeasor’s
actions
3. Disallows claim that rescuer assumed
risk
F.
“Eggshell
Skull” Plaintiffs
1. Applies to personal injury cases
2. Defendant takes plaintiff as he finds
him (tough luck)
3. Defendant is liable for aggravating
preexisting illnesses and conditions despite lack of foreseeability
(liability is limited to aggravation only)
4. Most courts have included
psychological injuries if there has been some physical impact
5. Companion principle- factfinder can adjust for possibility that preexisting
condition would have resulted in harm to the plaintiff even without tort
a.
Stoleson- dynamite heart, worked at plant
where there was nitroglycerin which caused her heart problems, Stoleson says hypochondria induced by her heart disease,
eggshell plaintiff must prove causation, Stoleson
could not prove causal connection between defendant’s negligence and her
neurotic symptoms, need causation between the negligence and the illness, Stoleson was a hypochondriac, would have developed these
symptoms anyway
b.
Litigation
stress- policy concern, defendant not responsible because this would deny the
defendant the right to defend the claim
G.
Intervening
Cause
1. Fact pattern: first the defendant will
act negligently, the negligence creates a dangerous situation or places the
plaintiff in a position of vulnerability, some other actor or force then comes
into play to trigger the potential danger created by the defendant and to
thereby cause injury to the plaintiff, this other actor or force is the
intervening cause, if the intervening force is so extraordinary or so
independent of the original negligent conduct it is a superseding cause and the
defendant should be excused from liability
2. When an intervening cause cuts off
liability it’s a superseding cause
3. An intervening act of third person
will interrupt causal link if it’s extraordinary, or independent, or far
removed from the defendant’s conduct (superseding)
4. An intervening act will not interrupt
the causal chain if the intervening act is the normal or foreseeable consequence
of defendant’s negligence
5. If it is an intervening cause the
defendant is liable, if it is a superseding cause the defendant is not liable
6. If a defendant’s negligent act causes
a situation and people begin to run the defendant’s liable for injuries that
result from the running because running is a foreseeable risk, “danger invites
running”
7. Herman
v. Markham Air Rifle- customer in store shot plaintiff’s
eye out with loaded air rifle, defendant (Markham)
negligent in shipping loaded rifle, negligent act of pulling the trigger does
not break the causation
8. Derdiarian v. Felix
Contracting Corp.- driver has epileptic seizure and careens his vehicle
into a work site seriously injuring plaintiff, Felix creates an unsafe
condition (safety measures inadequate) and therefore is negligent, the risk is
someone driving into the work site, the precise manner (seizure) this happens
does not matter
9. Marshall
v. Nugent- truck driver causes car to swerve off
road, truck driver tells plaintiff to go up the road to warn traffic, plaintiff
is hit by another car, truck driver is liable for the plaintiff being hit by
the other car because the risks to the plaintiff were not over at the moment
the primary risk of collision between the truck and the car was surmounted
10. McLaughlin
v. Mine Safety Appliances-
child burned by heat blocks, plaintiff sues manufacturer of heat blocks for
inadequate warning, the fireman at the scene (who had training on the heat
blocks) breaks the chain of causation (superseding cause not foreseeable by the
defendant), defendant (manufacturer) not liable
H.
Intervening
intentional acts
1. an intervening cause that is negligent
is not a superseding cause if foreseeable
2. when an intervening act is
intentionally tortious or criminal, it is more likely
to be considered superseding
3. negligent is not superseding, tortious or criminal is superseding
4. Watson
v. Kentucky & Indiana Bridge & R.Co.- gasoline leaked out bottom of railroad car, man
(Duerr) threw match on gasoline which was ignited,
injured plaintiff, facts should have gone to jury: if Duerr
acted maliciously and wantonly the railroad is not liable, if Duerr carelessly dropped his match the railroad is liable;
could not have been foreseen one would maliciously do such an act for an evil
purpose, but could have been foreseeable if the match was dropped carelessly
I.
Intervening
criminal acts
1. criminal conduct no longer
automatically interrupts causal link
2. intervening criminal act is not
superseding:
a.
defendant
is under duty to protect plaintiff from criminal conduct
b.
defendant’s
act destroys or defeats plaintiff’s protection from crime
c.
defendant
places someone likely to commit crime in plaintiff’s path (e.g., security guard
with criminal record)
3. Brauer v. New
York Central & H.R.R.Co.- collision between
rail car and wagon, goods from wagon stolen by thieves after the accident
(foreseeable), railroad company owes driver of the wagon for the stolen goods
because the negligence which caused the collision resulted in a condition of
the wagon driver in which he was not able to protect his property which
resulted in its disappearance, criminal conduct of thieves was a superseding
cause
4. Watson
and Brauer have
different views on criminal acts. Brauer says a
criminal act can be foreseeable, and Watson
says criminal act not foreseeable therefore it is superseding.
J.
Public
policy
1. Courts will draw lines based on
fairness and public policy
2. Some lines will narrow liability (New
York’s fire rule) to prevent ruinous liability and make liability manageable
a.
lady
leaves lantern on in barn, cow knocks the lantern over, fire burns down the
whole city, lady is negligent but not liable for the damage of the whole city
(under Polemis
she would have been liable for the damage of the whole city)
3. Other lines will broaden liability to
ensure that plaintiff is compensated for loss
K.
Judge
and Jury
1. Duty is a law issue, and can be
determined as a matter of law (dispositive motions,
many cases arise from directed verdicts)
2. Proximate cause ordinarily is a fact
question and goes to a jury
3. Proximate cause may be determined as a
matter of law when defendant’s actions are too remote or liability cut off for
policy reasons
L.
Summing
Up
1. Some aspects of causation are fairly
clear and predictable (e.g., eggshell skull; rescue doctrine)
2. Proximate cause has two general
approaches: direct cause and the risk rule
3. Be able to analyze fact patterns and
present different approaches on causation, read Polemis and Wagon Mound very
carefully
A.
Joint
and Several Liability
1. Each of several tortfeasors
is liable jointly with the others for the amount of the judgment against them,
and
2. Each potentially is also individually
liable for the full amount
3. Plaintiff gets one stop shopping- they
pick a defendant and that defendant is liable for the full amount
4. Carolina,
C. & O. Ry. v. Hill- defendants constructed railroad along
a river opposite plaintiffs land which caused damage to his land, at the same
time another company was removing lumber which defendants say also caused
damage; the injuries could not be separated so defendant is on the hook for all
damages, joint and several liability, if all defendants are found negligent,
one of them can be held responsible for the entire judgment
5. Examples:
a.
tortfeasors
acting in concert
b.
defendants
fail to perform a common duty owed to plaintiff
c.
defendants
act independently to cause indivisible harm (cant tell who injured who)
d.
special
relationship between the parties
B.
Concert
of Action
1. Defendant is liable for acting in
concert with another by inducing or encouraging the tort (express agreement or
planned action)
2. Example: drivers involved in a race
are liable to third party regardless of which driver directly caused the injury
because there would not have been an action if not for the race (Bierczynski v. Rogers)
3. Considered act of “concurrent negligence”
C.
Enterprise
Liability
1. Liability for “joint enterprise”
despite lack of express agreement
2. Plaintiffs must prove joint awareness
of risk and joint capacity to reduce those risks
3. Hall
v. E.I. Du Pont Nemours-
13 children injured in 12 different accidents sue 6 manufacturers and the trade
association because they cannot tell who made the blasting cap that caused the
injuries; to establish liability show 1) joint awareness of the risk, and 2)
joint capacity to reduce the risk (could have put warning on cap); don’t have
to identify particular defendant, one can be held liable for all
4. Example: blasting caps
a.
small
number of entities
b.
industry-wide
standard of safety features
c.
delegation
of safety to trade association
d.
inability
of plaintiffs to identify which defendant made the cap that caused the injury
D.
Alternative
Liability
1. Each defendant is negligent but
plaintiff is unable to prove which defendant directly caused the harm
2. Burden shifted to defendants (compare
to Ybarra)
3. If defendants start pointing fingers
at one another we are better off
4. Summers
v. Tice- triangle
of hunters, shoot at quail and hit plaintiff (not battery because there was no
intent); both defendants are negligent, don’t know which defendant hit
plaintiff in the eye; plaintiff normally has the burden of proof on causation-
shift burden to defendant to sort out the apportionment of damages, both
defendants are negligent so they can figure it out (burden shifting rule)
E.
Marketshare
Liability
1. Example: DES (Sindell v. Abbott Laboratories)
a.
plaintiff
unable to identify which manufacturer made the drug that caused the injury
b.
concert
of action, alternative liability, and enterprise liability theories don’t fit
c.
policy
reasons behind theory
d.
all
DES is bad and can cause injury, we just don’t know which actually caused the
injury
e.
remedial
revolution- the court wants to find a remedy for the plaintiff who has been
hurt, so they sua sponte
will come up with a theory that will work
f.
between
innocent plaintiffs and negligent defendant, the negligent defendant will bear
the cost
g.
each
defendant before the court is liable for the proportion of judgment represented
by its market share unless it proves id didn’t make the DES that caused
plaintiff’s injuries
h.
if
proven DES is harmful and defendant has 10% of the market share, the defendant
owes 10% of the damages unless they can prove they had nothing to do with the
drug at all (ex. Plaintiff says pill was red, defendant never manufactured a
red pill).
i.
Sindell required substantial share of market
j.
The
burden is now on plaintiffs to show that the product they have been injured by
is more like DES than not
k.
DES
cases in other jurisdictions (notes p.314)
2. Hamilton
v. Accu-Tek- relatives of 6 people killed by handguns sued 25 handgun
manufacturers for negligence in providing youths and violent criminals with
easy access to guns, court reasoned why other theories will not work for this
case: (reasoning thru theories possibly on exam)
a. Alternative liability is inappropriate
because of a large number of potential wrongdoers, equivalency of defendants’
and plaintiffs’ positions in terms of the ability to identify the manufacturer
whose product caused the injury, and the unfairness of imposing joint and
several liability where the probability that any one defendant’s product
actually injured the plaintiff is small.
b.
Concerted
action is inappropriate because this liability requires proof of an express or
tacit agreement to engage in tortious conduct.
c.
The
heart of enterprise liability is joint control of risk. There is insufficient evident of that in this
case.
d.
Market
share liability works because plaintiffs are faced with intractable problems of
proof. Court wants plaintiff to get
relief so they are going to stretch the theory of market share liability.
F.
Joint
and Several Liability After Comparative Negligence
1. The adoption of comparative negligence
raises the issue of the continued viability of joint and several liability
2. Some jurisdictions have retained joint
and several liability
a.
defendant
A is found 80% at fault, and
b.
defendant
B is found 20% at fault
c.
plaintiff
could recover the complete judgment from defendant B
d.
defendant
B would seek contribution from defendant A
3. Other jurisdictions have limited
defendants’ liability to the percentages found under comparative fault
a.
if
defendant A is found 80% at fault, and defendant B is found 20 % at fault
b.
then
plaintiff could recover 80% of the judgment from defendant A, and 20 % from
defendant B
c.
proportionate-
can only approach defendant for what they owe according to percent chosen by
the jury
4. Other jurisdictions have a hybrid
approach
a.
In
Texas, a defendant is liable only for the percentage of the damages equal to
that defendant’s percentage of responsibility
b.
Except
joint and several liability is retained for a defendant
1.
when
the defendant’s percentage of fault is more than 50%, or
2.
when
it’s an toxic tort and the defendant’s fault is more than 15%
5. Class Example: Comparative Negligence
a.
Plaintiff
is 10% negligent, defendant 1 is 60% and defendant 2 is 30%
b.
If
we stick with joint and several liability the percentages are irrelevant
c.
If
plaintiff is greater than 50% we do not care about defendant’s negligence
6. Disney problem: Plaintiff and her fiance were driving bumper cars at DisneyWorld. The fiance’s car
collided with the plaintiff’s car causing her to suffer $75,000 in
damages. At trial, jury found the
plaintiff 14% at fault for her own injuries, her fiance
85% at fault, and Disney 1% at fault.
Spousal immunity shielded the fiance from
liability. Under joint and several
liability Disney would be liable for 86% (14% subtracted for plaintiff).
G.
Contribution
1. Contribution and indemnity are
mutually exclusive remedies
2. Darren was driving an automobile when
he ran over Paul and broke his arm. Five
minutes later, David hit Paul and broke his leg. Each defendant is responsible for the
separate injury that he caused, and neither could seek contribution against the
other.
3. Contribution: based on share fault, tortfeasors who have caused an indivisible harm
a.
one
defendant sues another defendant to recover overpayment to plaintiff
b.
before
advent of comparative fault, contribution was based on pro rata share of
judgment
1.
two
defendants: 50% each
2.
three
defendants: 33 1/3% each
H.
Indemnity
1. “All or nothing” approach between two tortfeasors (want everything)
2. One defendant may be required to bear
sole responsibility of satisfying judgment
3. Right of indemnity depends on
relationship between the parties
a.
contractual
indemnity
b.
manufacturer-retailer
(innocent retailer who just sold product can seek indemnity)
c.
derivative
or passive liability (seek indemnity from active)
4. National
Health Laboratories v. Ahmadi- plaintiff suffered permanent
paralysis as a result of misdiagnosis, incorrect lab results, lab made the
mistake but said center had a duty to discover their mistake, each defendant says
the other is 100% liable (indemnity), trial court says each defendant is 50%
liable, pro rata contribution- divide liability by the number of defendants
A.
Personal
injury damages
1. One purpose of tort damages is to make
plaintiff whole
2. Another goal may be to provide
deterrence necessary to provide safety
3. Jury accomplishes these goals through
award of monetary compensation; all losses must be translated in dollar amounts
(damages are for the factfinder)
4. All damages- past, present, and
future- are included in one award at one time (cant come back to court later
and need more)
5. Awards include pecuniary and
non-pecuniary damages
a.
Nonpecuniary
damages- awarded to compensate an injured person for the physical and emotional
consequences of the injury- pain and suffering and the loss of the ability to
engage in certain activities
b.
pecuniary
damages- damages awarded to compensate the victim for the economic consequences
of the injury- medical expenses, lost wages
6. Review of jury awards is limited
a.
deference
especially to noneconomic side
7. English law has contemptuous damages
a.
someone
sues for slander, defendant is guilty but jury has utter contempt for plaintiff
b.
get
the “lowest coin of the realm”
8. Loss of consortium- derivative claim,
one spouse sues because of the other spouses injury
B.
Economic
Loss
1. wages and benefits, expected growth,
work expectancy, discounting
2. use average wages of others similarly
situated
3. Seffert v. Los Angeles Transit
Lines- Plaintiff
getting on defendant’s bus when it began to pull away, caught her foot, serious
injuries, defendants appeal from excessive non-pecuniary damages given to
plaintiff, since damages do not shock the conscience deference is given to
jury, affirmed
C.
Non-Economic
Losses: Pain and suffering
1. Physical pain (hurt knee)
2. Mental anguish (anxiety about hurt
knee)
3. No set formula for amount of money
that could be awarded for pain and suffering; jury has discretion
4. Per diem arguments (per day, makes
amount larger)
5. Hedonic damages (loss of enjoyment) as
separate from pain and suffering (usually not a separate item)
6. Legal fiction- use money to compensate
for a noneconomic loss such as pain and suffering and
loss of enjoyment of life; does not ease pain but all society can do is award
monetary damages
7.
McDougald
v. Garber- Plaintiff in permanent comatose
condition. Is cognitive awareness a
prerequisite to recovery for loss of enjoyment of life? Yes.
Should an award of damages for loss of enjoyment of life be separate
from pain and suffering? No.
D.
Lost
earning capacity
1. Past: loss of wages or diminished
earning capacity by time of trial
2. Future earning capacity: loss or
impairment post-trial
a.
type
of injury: examine injuries that have caused physical disability which has
impaired ability to work and earn money
1.
career
arc- someone with your background, potential to move up, raise, etc.
b.
What
is the impact of incapacity? Does it
affect the type of work you do?
E.
Duty
to mitigate damages
1. Injured victims have duty to act
reasonably to lessen losses
2. Plaintiffs are expected to seek
appropriate medical care
3. Plaintiff can’t recover for permanent
injury if permanency of injury could have been avoided by medical treatment
when a reasonable person would do so under the circumstances
4. Whether plaintiff mitigated damages is
an issue for the factfinder
5. Defendant has the burden of proof to
show that plaintiff did not act to lessen the losses
6. Considered a defensive plea
7. Factors used to assess plaintiff’s
reasonableness include:
a.
risks
of operation
b.
whether
operation could make things worse
c.
degree
of seriousness
d.
alternative
methods of treatment
e.
whether
doctors agree on advisability of operation
f.
cost
of operation
8. Colton
v. Benes-
Plaintiff injured his back in accident with the defendant. Plaintiff was advised to undergo an operation
but did not because he could not afford to.
Law does not require the injured person to undergo an operation where
the hazards are great. Burden of proving
the plaintiff should submit to an operation to lessen his damage is upon the
defendant. Where an unreasonable
expenditure would be required to undergo treatment an injured person is
justified in refusing to undergo it.
9. Basic doctrine: Plaintiff has duty to
mitigate, bounded by reasonableness, burden on defendant.
F.
Loss
of Consortium
1. Wife or husband can recover
2. Loss of society and companionship
3. Ex. There is an accident and the
spouse is not the same as they were before, this fractures the relationship.
4. Loss of society between parent and
child
a.
minors
can recover for loss of parent- no playing football, etc.
b.
adult
child can recover too but not in the same way
c.
parents
allowed loss of society damages for death of a child (emotional loss)
G.
Collateral
loss rule
1. Traditional rule: If injured party
gets payments from source independent from the tortfeasor,
those amounts aren’t deducted from award (collateral source traditionally will
not be allowed in)
2. Policies behind rule
3. Criticism of rule is double recovery
a.
plaintiff
gets paid twice for medical bills; insurance and defendant
b.
this
does not happen anymore because insurance companies have figured this out
4. Plaintiff’s recovery of gratuitous
services
a.
family
nursing care
b.
reasonable
value of what is being provided
5. Collateral source rule and tort reform
a.
states
are split
6. Helfend v. Southern California
Rapid Transit-
Medical bills had been paid by a third party and the jury was not told. Damages went to plaintiff and defendant
appealed. Court is in favor of
collateral source rule. Court says there
is no such thing as double recovery because insurance companies become
subrogated to the amount and if the plaintiff wins the money goes to the
insurance company. The court believes
the jury needs to hear about medical expenses in order to determine
damages. This does not mean the jury has
to award these expenses a second time.
H.
Punitive
damages
1. Purpose can be discerned from the
names that have been used: punitive, exemplary (making defendant an example),
vindictive (don’t like defendant), smart money (defendant was being dumb, this
is something to make them smart)
2. Defendant has acted with malice or
other extremely blameworthy behavior