TORT OUTLINE – Professor Suter – Fall 2011

DEFINITION OF TORTS - To be wronged

FUDAMENTAL QUESTION TORT LAW ADDRESSES - WHO SHOULD BEAR COSTS?

FUNCTIONS OF TORT LAW - FAIRNESS EFFICEINCY

LIABILITY SPECTRUM- ABSOLUTE LIABLITY- All that is necessary is causation of injury UNIVERSAL INSURANCE – P can recover for D giving him dirty looks STRICT LIABLITY NEGLIGENCE INTENTIONAL – generally criminal NO LIABLITY

INTENTIONAL TORTS

Vicarious Lability for Intentional Torts if EE is motivated by E’s interesto This is very Rare but still possible

General Comments about Intentional Tortso Intent Basedo Most morally culpable of Ds and therefore, Hardest to Prove

Difference b/w Battery – intentionally infliction of harmful or offensive contact to P’s person

o (1) Intent- (1) Desire or purpose to cause (actual intent) or (2) Belief that consequences are substantially certain to result (legal intent)

Subjective standard D can be liable despite lack of ill-will

o GARRATT- 5 yr old D can be liable for moving chair P was about to sit on even though his purpose wasn’t to injure P as long as D knew P’s injury was substantially certain to result.

Policy Reason- To confine intentional tort liability to cases with a higher level of culpability

Transferred intent doctrine- From victim A to victim B- If D had intent to cause A harm and

accidentally causes B harm instead From requisite intent for battery to requisite intent for assault- If D

intends to cause P offensive contact and fails but causes P apprehension of harmful contact, D liable for assault

Policy Reason- D is just as culpable when attempt succeeds or failso (2) Infliction - To causeo (3) Harmful or offensive contact (disjunctive)

(1) Harmful contact or Bodily harm – any physical impairment of the condition of another’s

body or physical pain or illness Contact doesn’t need to be b/w P & D as long as D caused P to

suffer harmful contact with something.o Garratt- D caused P to have harmful contact w/ ground

Known Eggshell can recover (2) Offensive contact –

Test- Contact is offensive if a reaonsonable person in the circumstances of the victim would find the particular contact offensive

Reasonable sense - Reasonable person standard Policy Reason against subjective standard – D wouldn’t know her acts

were tortious. Also avoids flood of litigation Known Eggshell – might be able to recover

It is suffice if D intended the contacts and not the consequences of the contacts. If D trips P and P falls down stairs, D committed battery b/c D intended

to trip P.o Policy Reason-

Battery tort provides P an alternative to retaliating against D. Protects P’s bodily integrity/space, privacy, security and autonomy

Assaulto Transferred intent – Intent for assault can be transferred into botho No eggshell P when touching is incidental o Exception- Known Eggshell

Majority – Don’t allow recovery Minority - allow

o Rxable Apprehension Both subjective and objective test

o Imminent Harmo Conditional Threat – generally considered assault

False Imprisonment – Unlawful Confinemento Elements

Intent (legal or actual) Unlawful Restraint of personal liberty or freedom of locomotion

Actual/Apparent barriero Actual cage suffices – its impossible for P to leave ORo Threat of barriers- P gets shocked if he tries to move

Overpowering physical forceo Being leaned on

Threat of physical forceo Having someone lean over you

o Threat of future action doesn’t count Asserted fake legal authority

o Prentend to be cops Duress

o Threat to do unlawful act D cant threaten to steal P’s purse

P is aware or harmed by the confinement – P must be knowingly imprisoned NOTE- P can still recover if P wasn’t aware of confinement if P was

harmedo Defenses –

Voluntary consent negates false imprisonment To recover, P couldn’t have chosen to be imprisoned. There must actual threat that impeded P’s ablity to leave LOPEZ- P was confined by her employers, when they accused her os

stealing $$. Ds never threatened P w/ her job. P stayed for a while to protect her reputation but ultimately left when she decided. At no time did P fear for her own safety. Crt found there was no false imprisonment b/c she decided to stay not a fear of physical injury but b/c it would ruin her reputation. No threat or force in this situation

Threat of future action (doesn’t count for recovery) Intentional Infliction of Emotional Distress

o Policy Reason – People have right to be free from serious, intentional and unprivileged invasions of mental and emotional tranquility

o (1) Intent or Recklessness Reckless- D Knew or should have known that ED likely to result Tests for Recklessnes

Abuse of power Taking advantage of or intentionally harming P known to be vulnerable Repeating or continuing acts that may be merely offensive if happen

once or twiceo Bill collectors harassingo Sexual or racial harassment usually doesn’t recover under IIED

Eggshell Po (2) Extreme and Outrageous Conduct-Offensive to ordinary persons standard of decency

Policy Reason- hardest element to satisfy- raises bar for what constitutes IIED Trend- Crts are divided as to what constitutes extreme and outrageous conduct General TEST- Conduct it outrageous if offends generally accepted standards of

decency/ morality Relation b/w D and P must be weighed. If D has power dynamic over P

like a professor has over a student, its more likely to be extreme Eggshell P-

o In most STs, D’s knowledge of P’s sensitivity is immaterialo In some STs, one must not take advantage of P knowing that P is

especially vulnerable.

WOMACK- D a lawyer posed as a journalist, took picture of P and used photo in trial asking the 2 boys if the person was the one who abused them. Crt ruled that Ds conduct was extreme and outrageougs b/c it offended generally accepted standards of decency and morailty

o (3) D must have caused o (4) Severe Emotional Distress

Causation – Liable for More Broad scope of results than for N

Affirmative Defenseso Consent

Policy RX Deterrence Autonomy- State is violating

Majority RULE- When parties engage in mutual combat in anger, each liable to other for physical injury

Consent isn’t a defense Policy RX – Deter Ds from fighting

Minority RULE – When parties engage in mutual combat in anger, act of each is unlawful & recovery is denied in civil claims, at least in absence of excessive force OR malicious intent to do serious injury

Consent is a defense Deter Ps from fighting

Prize Fighting RULE – Parties engage in Mutual combat not in anger but b/c of prize of winning should not be able to recover due to death resulting from such behavrior

Rules above don’t apply b/c combat was not in anger Policy RX- Should not reward person who lost (tough luck)

o No man shall profit from his own wrongdoing Consent is a defense and bars recovery HART – Fought for prize and P died. P’s estate sued and D defended that

P consented. Crt held consent is a defense here and bars Ps recoveryo Self-defense

Policy Reasons – Self-preservation (1) Belief – D’s belief in the necessity of force must be honest (2) Reasonable belief – objective evaluation of Ds subjective knowledge

Context- Specific knowledge of D at time D actedo Doesn’t matter if belief was a mistake as long as it was

reasonable COURVOISIER- Ppl were rioting outside Ds building, throwing stones at

D. D fired shot into air and P, a cop moved toward D announcing her was an officer. D didn’t hear and because of his bad vision, shot P. Crt held that it was reasonable under D’s circumstances to believe that using deadly force was necessary to preserve oneself.

Policy RX- Want to allow ppl to protect themselves and sometimes D don’t have time to assess whether there is an actual threat and must take action to preserve themselves

(2) In Imminent Threat Cannot preempt potential future harm (go to police instead for

protection) (3) Reasonable Means

Policy RX- Minimizing the use of force as a means of self-protection No retaliation

Duty to Retreat General RULE- D has no duty to retreat when threatened by force Exception – For Deadly Force, minority and REST say when threat is

deadly force, D has a duty to retreat Trend – Majority still hold no duty to retreat when using deadly force

Limits of self-defense defense – D may only use reasonable force No retaliation Imminence of harm

o Cannot preempt potential future harm (go to police instead for protection)

Reasonable means: cannot use deadly force against non-deadly forceo Proportional

o Defense of 3rd Party – reasonably belief that force is necessary Broad Privilege (Majoirty) – Ds not liable even reasonable belief was mistake Limited Privilege- (Minority )– The reasonable belief must be correct

Shoe-stepping – D only privilege to defend if 3rd party V had privilege to defend for himself

If 3rd party V was initial aggressor, then D cant defend V b/c V had no self-defense privilege.

o Necessity – Necessity Defense is used by a Trespasser –

Excuses Tort of Trespasso Expelling D from Prop is not privileged when D is there out of

necessity. If LL feels its unsafe, then LL has privilege to expel. Probably Doesn’t excuse tort of destroying Landowner’s property

o Trespassor still has debt to LL if Trespassor destroy LL’s prop Intruder has duty to let LL know why his trespass is privileged.

o Otherwise, it is presumed that inrusion isn’t privileged and LL has right to expel intruder from LL’s prop

VINCENT – D keeps boat at P’s dock and storm hits and D cant leave dock. This eventually ruins the dock. Thought D is not condemned for his act, D still should repay P for using P’s prop and destroying it. Crt compared D to starving man on ship who eats Ps food to save his life but after, must still pay P back

Private necessity- incomplete defense Public necessity – complete defense

D’s protection of landowner’s property that D is trespassing on is a complete defense

When D’s act is protecting the ‘entire public’, D has complete defenseo E.g.- Shooting a rabid dog, that poses a threat to public

Reasonable means – Risk averted must be greater than the risk imposed by D E.g. – D cant take bomb that’s about to explode and throw it onto

neighbors property b/c the risk imposed is equal to the risk avertedo Defense of Prop – think force is necessary to stop the intrusion

Policy RX – Life is more important than land Elements

Reasonable Belief Reasonable Means of Force (Least force necessary)

o KATKO- D had abandoned house where P would go to steal glass jars. D knows about trespassing and several ‘no trespass’ signs are put up but don’t stop P. D puts a spring gun aimed at P’s leg if P comes back to trespass. P is severely hurt by spring gun. Crt rules that owner may use reasonable force in protecting property but right does not extend to taking a human life or inflicting great bodily injury and thus D, homeowner is liable.

o If peacable intruder, D must request they leave firsto If non-peacable intruder, D can push them off land

STRICT LIABILITY

Definition – SL is liablit imposed w/o regard to D’s N or intent to cause harm. No fault required but on policy choice to place accidents losses of the activity on the actor

and not on the victim Policy RX Arguments

Corrective Justice - Fairness Reciprosity of Risk - Based on the unilateral nature of the risk D has created.

This is why SL isn’t imposed on NORMALLY dangerous activities drivers of cars See HAMER v. JENNINGS

Collective Justice - Economic Considerations Loss Spreading – Spreading out the Costs of Accidents

Ds must bear costs and not individual Vs because Ds are in best position to pass over those costs to the general public consuming their products. Losses therefore will be distributed among many instead of a few Vs. And better for everybody to pay a little than for P to pay the full price.

Supports policy for Abnormally dangerous activities Loss Reduction – Deterrence

Prevents cost of accidents by deterring companies from continuing such high risk activities and giving them greater incentive to adopting alternative ways of achieving the same goal.

Even if Ds continue these activities, they will take extra precaution to avoid these accidents.

Loss Allocation – Ds will internalize the costs of their activities. Society will move closer to its economic ideal of optimally allocating its limited

resources

Ds will now start to base what is in their own private economic interest on what is the public’s economic interest. B/c now the public’s losses resulting from their activities become their own losses.

Ds will feel the pain of accidents and readjust whether these activities should be conducted based on whether this is most economically efficient for the entire community, not just themselves

P will feel the pain of increased cost of products to society Costumers recognize cost of their behavior

Policy PROB- This may drive the company out of business Administrative Efficiency – Administriative costs of litigation for N are higher than

litigation for SL To apply a negligence rule, a court must first determine the level of care that would

have been optimal under all of the circumstances, and then whether the parties met that level of care. To apply a strict liability rule, all a court must determine is whether or not the defendant caused the plaintiff's injuries. The latter is much simpler -- and thus cheaper -- for the parties as well as the court.

Posner’s Economic Analysis and Theory – Under N regime, for an activity where B is greater than PL

D wont be held liable Under SL regime, for the same activity where B is Greater than PL,

D will be held liable Thus, holding D SL, will get D to change activities to an activity that is more efficient

for society. We get to decide this based on what best promote efficiency and utility. Abnormally Dangerous Activities

Wild Animals RULE- An owner or possessor of a wild animal is subject to SL for physical harm caused

by the wild animal. Not Duty for N but different duty: a duty to prevent the injury entirely.

Ryland Doctine – Escaping Substances Doctrine RULE- Those who impose grave and truly unusual risks on the community are held SL

RYLANDS- D introduced a dangerous force, a large body of water onto his land which escaped unexpectedly and injured his neighbor’s prop. D had not been N. One who brings onto his land anything likely to do mischief if it escapes, must keep it in at his peril and if he doesn’t his prima facie responsible for all the damages which is the natural consequence of its escape.

Why not ban these ultrahazardous activities??? Because some of them are escpicially socially useful

Expanding RULE- If D’s engages in abnormally dangerous activity and P is injured as a consequence, then D is strictly liable to D. SULLIVAN- D is liable when he uses dynamiate to blow up a tree and P who was quite

a distance away was struck with debris. Modern RULE – An actor who carries on an abnormally dangerous activity is subject to SL for

physical harm resulting from the activity. Factors

FOS/ highly significant risk of physical harm Even w/ due care

Locale/value to community Have to show proximate cause, actual cause

Actual causation of event that is not normally FOS doesn’t satisfy proximate cause

Rationales Minimizing High Risk ACtivities Reciprocity of risk- Cost avoidance Loss Allocation/Internalization Loss Spreading

Scope – Which activities are abnoramally dangerous? 2nd REST- Weighs 6 factors in determining whether activity is abnormally dangerous

Existence of high degree of risk of some harm to the person, land or chattels of others

Likelihood that the harm that results from it will be greawt An inability to eliminate risk by the exercise of reasonable care Extent to which the activity is not a mtter of common usage Inappropriateness of the activity to the place where is carriedon. extent to which the value an activity provides to the community is outweighed by

its dangerous attributes. 3rd REST- More like SL –An activity is abnoramally dangerous if:

Activity that creates a foreseeable and highly significant risk of physical harm even when rxable care is exercise by all actors. AND Same as Factor 3 of 2nd REST TEST- Can reasonable care make the activity generally safe?

If NOT, then SL applies even if activity is socially useful. Activity that is not of common usage .

Includes both factors 4 and 5 of 2nd REST Whether an activity is of common usage depends on the environment where it

is being conducted One drilling an oil well in rural Oklahoma is less likely to be SL than one

drilling an oil well in downtown LA. Generally, courts impose SL on actors who impose a risk on the community

disproportionate to the general risks they are exposed to themselves. Explains why tigerowners would be imposed w/ SL whereas

dogowners are imposed w/ duty to care/N Excludes activities of common usage such as driving.

Benefits 0f 3rd REST – It is more straightforward and yet is consistent w/ the approach of the 2nd REST

INDIANA– D loaded a railway car with the toxic and highly flammable chemical to ship to NJ. When stopping off at P’s railyard, the railcar leaked out 4,000 of its 20,000 gallons. The railyard was potentially contaminated, and the railyard had to pay close to $1 million to clean it up. P sues D for this amount, alleging that production of the chemical is inherently dangerous. The court relied on Second Restatement §520 & stated that an abnormally dangerous material would meet the following criteria when: The risk of harm is great (or probable).

The severity of harm that would occur if the risk materialized is great. Such accidents could not be prevented by the exercise of due care. The activity is not a matter of common usage. The activity is inappropriate to the time that it occurs. The value to the community of the activity is not greater than the risk.

The court found that shipping chemicals was valuable, and the issue was one of negligence, since there appeared to be a due care issue present. Found for defendant.

Who can recover? SULLIVAN-

DEFENSES Common Usage – Ds activity is of common usage!!

Probably D’s best argument Reasonable Care- Ds activity can be reduced w/ reasonable care and therefore shouldn’t

be imposed w/ SL but rather should only be imposed w/ duty to car/N

Products Liability Emergence of Doctrine

Negligent Manufacturing of Products- Rejection of Privity Principle Traditional Privity principle – Sellers of good only owed a duty of care to purchasers

Manufacturers of transit equipment for trains not liable for pedestrians affected by the train’s defective products

New RULE- A manufacturer owes duty of care to all those who may foreseeably be injured. MACPHERSON- P, purchaser of Buick Car sues Manuf for N for defective wheel.

Caradozo ruled that manufacturer can be liable to users of there products if its FOS that a carelessly made product can cause injury to users of their products

Probably applies to Passengers in cars but not to bystanders b/c not FOS Problems with N as oppose to SL

Difficulty of proving N of manufacturer Products may end up defective on assembly line even if Ds exercised due care

Difficulty of P, injured by product to have PJ over manufacturer Its easier to have PJ over the retailer who P bought the product from but

probably is not at fault Contractual Duty of D by means of warranty

Breach of Express Warranty- requires that D sold product through misrepresentation Uneffective generally because it requires a specific representation by D that the

product is not defective Breach of Implied Warranty of Merchantibility

RULE- D, a seller, is liable if the product is not fit for the ordinary purpose for which it was sold and P suffers personal injury as a result of this unfitness

Limitations- Sometimes, state stats limit breach claims to those who are immediate family

of the buyer of the defective product SL for Defective Products –

Policy RX for imposing SL on manufacturers of defective products Difficulty for consumers to assesss the risks of the products

Quid Pro Quo- Crts view advertising of products as aggressive efforts to stimulate sales as fairly involving a quid pro quo: that MANUFs stand behind their sales

Loss allocation/internalization – Prices of product will reflect their true cost RULE in 2nd REST for SL of Manufs of defective products

Authorizes recovery by a user of consumer from a seller who is engaged in the business of selling the product for physical harm caused by a defective product that is unreasonably dangerous regardless of whether D exercised due care And whether P has entered into a contractual relation w/ D

Dissent in ESCOLA- Justice Traynor- Waitress has Coca Cola explode in her hand. Traynor holds D to be liable not b/c of RIL but b/c of SL due to implied warranty. Already have SL for food products and should etend it to all products b/c of implied warranty to customers. C Uses Loss Avoidance theory- consumers wont and often cant inspect products.

Thus, manufacturers are in best position to avoid the accidents Enhanced Injuries for Cars

P must divide actual injury caused by crash and enhancement of injury caused by car defect.

Types of Product Defects Manufacturing Defects-

RULE- D is liable when product didn’t meet manufs own specific design of product Product didn’t come off the assembly line as Manuf intended

TEST- P must prove that the defect existed, made the product unreasonably dangerous and caused P injury. “Gravamen of the CL is the condition of the product, not the conduct of D

Design Defects RULE-D is liable if a product’s design makes it unreasonable dangerous to the user

Dangerous nature of a product is insufficient b/c danger must be unrxable dangerous

THEORY- Product is defectively designed b/c it failed to eliminate the risk of injuries from its use

Consumer Expectations TEST- TEST- A product is unreasonable dangerous if it is dangerous to an extent beyond

that which would be contemplated by the ordinary consumer who purchases it, w/ the ordinary knowledge common to the community as to its characteristics.

Policy RX for: Some products may be unreasonable dangerous even if it cant be designed to

be safer Useful in cases dealing w/ simple non-technical products (NOT cars)

Risk/Utility TEST – balances risks and utility/ benefits of product design Look at ORTHO TEST TEST- Does the product’s design represents a fair balance b/w

the cost of designing the product to prevent the risk of injury the effect the redesign would have on the utility of the product the extent of the risk that the product poses

Feels like N – like B>PL

Endorsed by 3rd REST Useful in complex product cases CAMACHO- P crashed car and claimed that enhanced injury occurred as a result of

defective design by Honda. P claimed leg guards used by Honda’s competitors would’ve prevented the injury. Crt use RU TEST &hold Honda liable b/c whether the danger was FOS to the consumer is irrelevant but only whether D could’ve made product safer without taking away from product’s utility.

Tension b/w 2 TESTS Consumer Choices vs. Minimum Standard of safety Choice vs. Protection

Some courts like BARKER and SOULE allow both tests to be used to prove defect Best for P and worse for D b/c P has option of using either test to show Ds liable SOULE- Case where P argued that defect of car enhanced injury in car crash.

Ordinary Consumers generally don’t have expectations as to how a car will perform in the event of a crash. Thus, CE test doesn’t show D is liable. So crt did RU test and showed that D was liable based on conclusion that product’s design embodied “excessive preventable danger.”

P’s preference – May prefer CE TEST

When defect is non-technical When defect is hidden b/c P then doesn’t have to hire expensive expert witness to testify about

alternative designs of the products that would elimintate the danger but only that the product was less safe than the reasonable customer would expect

May prefer RU TEST When defect is technical When defect is apparent SOULE- Case where P argued that defect of car enhanced injury in car crash.

Ordinary Consumers generally don’t have expectations as to how a car will perform in the event of a crash.

CAMACHO- P rode motorcycle, crashed and got hurt. CE test wouldn’t work b/c consumers would expect that product to be dangerous. Defect is apparent

Ortho Factors – USE FOR EXAM – (1) Utility (2) Likelihood of harm (3) Availablity of alternative (4) ability to eliminate unsafe characterizes w/o losing utility or an increase in cost (5) User’s ablity to avoid harm (6) user’s anticipated awareness (7) feasablity of spreading loss. Utility to user/society Safety aspects of product Availablity of substitute product to meet same need and be safer Manu’s Ability to stop risk w/o impairing usefulness/making too expensive to

maintain utility User’s ablity to avoid danger by using due car User’s anticipated awareness of risks inherent in producot and avoidability due to

general public knowledge of obvious product condition or existence of suitable warning/ instructions CE TEST element

Manufacturer feasibility to spread loss by setting product price or carrying liability insurance

Difference b/w ORTHO and REST 3D – Reasonable Alternative Design- Whereas Ortho weighs reasonable alternative

design as a factor in determining D’s liability, REST 3d requires there to be a reasonable alternative design in order to hold D liable. Exception 3rd REST doesn’t require Reasonable Alternative Design when

product is irreducibly unsafe such as a knife When product is irreducibly unsafe and has no utility, D is liable

Potential Ps in SL- Who can sue?? Consumer/user = YES (cant inspect, FOS user) Passengers = YES (cant inspect, FOS users Bystanders (cant inspect, no benefits, cant protect from – risk reciprocity)

Potential Ds in SL- Who can be Sued? Manufactuers = YES Retailer = YES – deterrence (can inspect or put pressure on manufacturer Supplier =

YES – deterrence (majotiry) NO- not in control of product downstream (minority)

WARNING DEFECTS- Policy RX- P can avoid the risk best by reading warning and thereby taking the

necessary precautions in using the product. This would be less costly than redesigning the entire product to eliminate the risk.

Like N more than SL b/c of reasonability standard. NOTE: D cant argue that a warning was given to P about a design defect.

3rd REST – When safer design is possible, warning not adequate alternative Policy RX- Crts want to force companies to make safer products

Duty to warn – When does D have a duty to warn its consumers of a risk? Minority Approach- Duty to warn under implied warranty

Presumes Manufacturer is fully informed of all risks of product at time of lawsuit. Hindsight Approach

Majority Approach – Duty to warn of risks reasonably knowable at time of selling product.

VASSALLO- In determing what D had duty to warn its consumers, D was held to standard of knowledge of expert in appropriate field. Expert report must be somewhat known. Should be published

Warning TEST- Is warning necessary?

Is this type of harm common knowledge? There is no duty to tell ppl what they already know

Minority Approach- Duty to warn under implied warranty Presumes Manufacturer is fully informed of all risks of product at time of

lawsuit. Hindsight Approach

Majority Approach – Duty to warn of risks reasonably knowable at time of selling product.

VASSALLO- In determing what D had duty to warn its consumers, D was held to standard of knowledge of expert in appropriate field. Expert report must be somewhat known. Should be published

IS warning adequate? Is warning reasonable under the circumstances?

Factors for adequacy Content

Probablity Magnitude of Harm Type of harm Consequence

Intensity/Prominence Characteristics of users Intensity of warning (where,what)

Comprehensibiltiy ( language used, or pictures, colors, caps) If warning was adequate, what would’ve happened?

P claims that he would’ve acted differently If warning was adequate Heeding presumption- Fact-finder can presume that P wouldn’t have

use the product to his own danger had the warning been adequate. However, D can rebut this presumption by showing that P would’ve

used the product to his own danger eve if warning was adequate HOOD v. RYOBI- P uses D’s saw. P read the warning which says that “serious injury

will result if P removes blade quards. P removes blad guards and gets hurt. P claimed that D should’ve warned about each specific injury that can result from removing the blade guard. However court ruled that including more info about the potential injury would have taken away the INTENSITY of the warning because ppl wont read verbose warning labels.

FOS misuse, Manufacturer should probably put in warning against such danger Who can be held liable?

Anyone who sells the product w/ the inadequate warning Even those who did not put the warning on the prduct in the first place

DEFENSES- Assumption of Risk –

Disclaimers – usually don’t bar recovery Express Assumption of Risk = (courts divided) signing the paper that P is aware,

eliminates duty (D has no duty to P) Secondary Assumption of Risk = knew of risk involved & decided to do activity

anyway (no paper) Comparative fault (some jurisdictions) Complete Bar to recovery (other jurisdictions) If obvious, may not be defect (Consumer Expectations)

Where assumption of risk links to prima facie case Comparative N – Would P’s N relieve D from liability when D would otherwise be SL?

General Comparative Responsibility RULE- Fault is a partial defense against SL and serves to reduce damages by % of P’s fault

Policy RX For- Increases incentive for P to act reasonably

Policy RX Against- Incommensurable - How can D’s SL be compared to P’s N? Lessens incentive for D to do right

Duty to discover defect RULE- There is no duty to discover defect

Duty not to act N w/ Product RULE- P has duty to use product reasonably

GM v. SANCHEZ- P put car in neutral thinking he put car in park and got out of car. Car moved and crushed P against gate, killing him. D argued that P was N in thinking he put car on break and not in park and therefore, D is not complete liable. Crt ruled that P’s N reduces P’s recovery by 50%

Misuse If FOS misuse, is product defective or not?

Manufacturer has to design w/ FOS defects in mind = STILL defective product despite FOS

May reduce damages based on comparative N If unFOS misuse, is product defective?

1st argument: May not be – not a design defect (wasn’t designed around during designing as it was not known)

May prevent proximate cause

VICARIOUS LIABILITY Respondeat Superior – An employer is Vicariously Liable for Negligence of an Employee while

acting in the scope of Employer’s employment NOTE: Tort is against E vicariously for e’s fault and not b/c E negligently hired e.

Discuss vicarious liability in damages Make difference b/w when E is N himself and when he is only vicariously liable

Scope of Employment TEST- E is liable if 3 conditions are met e’s conduct must be of the general kind that d was hired to perform

CHRISTENSON- Security guard trip to get lunch within the area served the “see and be seen” aspect of her job

Conduct must occur substantially within hours and boundaries of employment CHRISTENSON- Getting lunch withing the short time frame allowed was w/n scope of

employment e must be party motivated by purpose of serviing D

CHRISTENSON- Its important that security guard takes breaks b/c otherwise, she wont be able to concentrate on her job.

CHRISTENSON – Trial Court held that rxable minds could disagree as to whether D was in scope of her employment.

Distinguishing Hosp Employees and Independent Contractors

Apparent Authority TEST– Rissler – Hospital (1) Representation of purported principle (2) Reliance by P, a patient – detrimental reliance (3) Change in position by P – detrimental reliance – If P knew that doctor wasn’t hops

employee but independent contractor, he would’ve rejected treatment Done something by E

Non-delagable Duty- When P has no other reasonable option and Hosp cannot delegate the duty of care to independent contractors

Policy RX- Helps P Policy RX For

Fairness – e has link to E Efficiency- Employers will be more careful about who they hire. Deterrence- Encourages employers to supervise and hire more responsibly Money – Employers have deeper pockets than employees

Policy RX Against Fairnuess- Employer is not at fault and does not deserve to have to pay for something

that is not his fault RULE- EE is liable for N committed by EE if EE was working the scope of E’s employment

TEST for whether D is working within scope of employment EE was doing the work E hired him to do

CHRISTENSON- E was eating lunch b/c EE needs energy to complete E’s work and further E’s interests

EE was working within the hours and spatial boundaries that E pays him for

EE’s action that resulted in N was motivated by serving E’s business interest

NEGLIGENCE

DUTY – For D to be held liable for N, D must’ve owed P a duty of care When does D owe P a duty of care? Difference b/w Duty and Breach

Duty – WAS THERE A DUTY to P? Breach – WAS IS THE Scope of that Duty?

Reasonable FOS Ordinary or Extraordinary Care??

Practical Difference – If theres no duty, case is dismissed as a matter of law and doesn’t go to jury If yes duty and is a question of breach, then this can be a question of fact and

goes to jury 1st Question – Was D’s N act an action or inaction? Misfeasance or non-feasance? Creation of Risk – Those who Do Act When does P have a duty to not act?

General Rule- When D Does act in a way that creates a risk of injury to others, D owes those who can be harmed a duty to exercise care to avoid injuring them. Risk-creating activities- By acting, D chooses to engage in activities that creates a risk

of injury to others, and therefore do have a duty to exercise care to avoid injuring

others. Policy Rx- D has created new risk of harm to P and would be at fault for their

injuries Brown- D attempts to break up dog fight with stick and hurts P. D’s action and not

inaction created risk of injury to P and is thus held liable Ex- cases of Negligent Drivers who decide to engage in a risk-creating activities

Exception- In certain risk-creating activities, D owes P no duty of care. Sports participants and spectators- D only owes duty to P to not engage in conduct

that is so reckless as to be totally outside the range of the ordinary activity involved in the sport Ex.- Stadium not liable for spec who got hit by ball

Exculpatory agreement- Can D upon P’s written consent relieve himself of a duty of due care. P can waive his right to sue D for N and thus D has no duty HANKS- Dissent found that P couldn’t sue D for N since P waived his right to

demand a duty of care from D. Does an exculpatory agreement violate public policy?

Exceptions based on Policy RX for Invoking No Duty Affirmative Duty to Act – When does P have a duty to act if D isn’t the source of risk?

General Rule – There is no duty to act to protect another from harm. No duty to rescue

Harper - Policy Rx- Individual Autonomy – State would be encroaching on individual’s free

will. Policy Rx for NO DUTY- Society puts a high premium on individualism and therefore

one is not bound to protect care for others exercise care for his neighbor. Courts don’t want to overburden actors

REYNOLDS – Social Hosts cannot be held liable for breaching a duty against a 3rd party

Flood of litigation argument STRAUSS – P gets injured during blackout and sues Con Edison for N. The crt

often conflating Duty and Breach b/c there doing Learn Equation and determine that there should be no duty

Exceptions 2nd Question- If D’s alleged N was a failure to act, does D have a special relationship to

P? Policy RX- In some cases, protecting ppl from harm is clearly the right thing to do!!

Especially when D is uniquely positioned to prevent P’s harm Especially when the harm is foreseeable You are Your Brother’s Keeper!!!!

SR- Special Relationship to victim–“An affirmative duty to act only arises when a special relationship exists b/w the parties” - see Harper- Common carriers Innkeepers Possessors/LL of Land has SR to entrants on his Prop and thus owes them duty

Conflates Duty and Breach Courts do Learned Hand Equation PLUS including factor of identity of the

entrant HEINS- Abolishing the distinction b/w licensee and invitee

Policy Prob- Imposes a big burden on homeowners. Identity of LL- Who is liable?

General RULE- Liability based on condition of land/property is generally imposed on the possessor of the land rather than on the owner NOTE: Liablity is on possessor of Land, not on owner

Policy RX- Possessor is best situated to control condition of land Exceptions – Where owner is in better position of taking necessary

precautions to prevent harm Scope of Duty

Generally, Duty of LL only extend to entrants of LL’s prop and doesn’t extend to PPL outside of Prop even if injured by condition on LLs Prop Why? B/c then theres no SR Policy RX-Individualism and LL has right to use home as he wants

Categories of Entrants- Who is LL liable for? Depends on Entrant’s Status Trespassor- Enter or remains on land w/o Possessor’s permission

Duty Owed to them- General RULE- No duty of Rxable Car regarding Conditions of or

activities on premises but LL owes duty to refrain from willful and wanton conduct

Exceptions Discovered Trespasser

Some Courts impose duty to use reasonable care, where risk is from activity on, as opposed to condictions of Prop

Rationale- Conditions of prop would be omission whereas an activity on prop like mowing lawn is a comission

Frequent Trespasser -innocent party who comes onto ur lawn Some Courts impose a duty to warn them of hidden dangers and

duty to use rxable care to avoid harm through activities Other Courts - duty of rxable care for conditions of prop

RX- Frequent trespassor beginning to look like licensee who is permitted on prop but was not invited

Child Trespasser- Kids who LL knows of should know are likely to trespass Has duty to protect kids from condition that LL knows to pose

unrxable risk of death or serious bodily injury Kids don’t discover danger on their own B>PL – Risk is higher than burden!!! - sounds like breach

Licensee – Has permission to enter the premises but isn’t invited Identity-

Trouble of distinguishing Licensees from Trespassers Frequent Trespassors pose difficulty of what status they have

Duty Given - L’ees are expected to accept Prop as Possessor leaves it. Typical RULE- NO duty

To Inspect Premises

To Discover Dangerous Condition CARTER- Invitee is owed no duty to inspect prop and get rid

of dangerous patch of ice on driveway that injures P. HEINS- P slipped and fell at hospital main entrance when

visiting relative who was a patient. Trial Crt ruled that P was only licensee and was owed no duty to reasonable care

Or To Make Premises Safe for the Visit IN some STs-

Only Duty to warn of known hidden Dangers Or Duty to Make Safe Know Dangers

In Other STs Only duty of care for Activities on Prop & not Conditions

Invitee- On premises w/ posesessor’s permission AND Land is open to the public Business RX that concern possessor

Some STs require Material Benefit to Possessor CARTER- D hosted a Bible class at their home and ppl

incuding P came. P slipped and fell and got hurt. Court ruled D had no duty to use Rsable Care b/c P was invitee b/c P didn’t bring any material benefit to D.

Material Benefit must be sought after by LO NOTE: No unilateral elevation to Invitee status by Entrant

who confers gift onto LO W/o LO requesting it IS OWED HIGHEST DUTY of CARE – Affirmative Duty of Rxable Care

To discover Dangers To protect against Dangers of Which LL is or should be aware To warn P of open and obvious Danger????

Court divided about whether LL owes invitees this duty Trend: to consider whether notice suffices to keep land safe

To Protect Invitees from Criminal Acts by other invitees Court may do B>PL equation to avoid overburdening LLs Policy RX For Duty- Gives LL incentive make land safe

Plus LL may be in best position to prevent harm Policy RX- Exchange of Benfits- IN exchange for Material Benefit P

confers on LL, LL confers benefit on P of duty to use rxable care DEFENSES for LL-

Omission – LL had no affirmative duty to act Limited Status of Entrant- P wasn’t owed great duty b/c of status May be hard to show harm is sufficiently FOS No breach-Alleged breach is beyond scope of rxable care D owed

Proximate Cuase- Intervening Criminal Conduct cuts off liability Trend- Eliminating Distinction b/w Invitee and Licensee

3rd REST imposes duty of care on all entrants except flagrant trespasser HEINS-P slipped and fell at hospital main entrance when visiting relative

who was a patient. Crt found invitee/licensee distinction was unrxable, and rejected it. In its place the court found that landowners have a

duty to exercise reasonable care in maintaining their property for all lawful guests. The court notes the silly differences between why a social visitor could not earn damages, while a regular visitor could. The court did keep the same classification for trespassers, and provided seven factors that a court could consider in determining whether a landowner had met the duty of reasonable care Foreseeability of harm. Purpose of entrant’s visit. Time, manner, and circumstances of the visit. How the property is to be put to use. Reasonableness of the inspection, repair, or warning. Opportunity and ease of inspection and warning. Burden on landowner, and/or community in providing protection.

More like Learned Hand equation Policy RX for Licensee/Invitee Distinction

Policy RX FOR Predictablity Protect Landowners Common Law was right!!!

Policy RX Against- Moral Status – all visitors treated the same Urban Setting – easier to make land safe, more localized than in the past Arbitrariness

Family relationships D has custody over P & P is deprived of opportunities for self-protection

Social Host- This does not include a D social host where a P isn’t deprived of opportunity for self-protection NM- Claim in Harper- Since D who hosted P on boat knew the water P

wanted to dive into was shallow and P would therefore get hurt, P needed his D’s protection and thus D had duty to act.

T- D’s Superior knowledge of a dangerous condition by itself doesn’t impose upon D a duty to protect P from that danger. Thus P was not deprived of opportunities to protect himself

Reasonable Expectation of self-protection- P must reasonably expect to count on D for self-protection NM- When P jumped off D’s boat into water, P expected D to tell him of the

danger of doing so. T- To expect D to stop P from entering danger that’s clear to P would not be

reasonable. Co-adventurer-

Ex- Farwell,- D was P’s companion in a joint venture and therefore when P got concussion, D owed P a duty to care and attend to him.

Policy Prob- Very Weak Argument – Dissent in Farwell- This theory isn’t based on legal prescedent but on public policy observation that society would be benefitted if its members were required to help each other out.

Triangulation of Special relationship – Special Relationship to 3rd Party– D has duty

to protect P from 3rd party b/c of special relationship with 3rd Ex.- A parent has duty to 3rd parties that her kid may injure Ex- Mental Patients- TARASOFF- Holding that D, psychiatrists special relationship

to a dangerous patient gave rise to a duty to warn the patient’s intended victim that patient had threatened to kill her NM- (Dissent) Psychiatrists cant be required by law to breach the

confidentiality b/w him and patient. T- Still, protective privilege ends where the public peril begins NM- (dissent) Overburdening D b/c of difficulty to accurately predict when

patient will actually act on his urges to act violently. Difference b/w Identifiable 3rd Party and Foreseeable 3rd party

TARASOFF Court divided as to whether D can be liable for failing to predict danger.

Innocent Creation of Risk RULE- If D acts and subsequentally realizes or should realize that it has created an

unrxable risk of causing physical harm to P, D has duty to exercise rxable care to prevent the rist from taking effect Ex- One who w/o N injures another has an affirmative duty to render

assistance to prevent further harm. D w/o N crashes into pedestrian P. D must try to get assistance for P.

Policy RX- This fairly requires D to minimize the consequence of risks which society gives D a privilege to create

Reliance – Trend – Only some STs accept reliance as a basis for duty but is gaining popularity FARWELl – When D took injured P into his car to took care of him, P relied on D to

do all he could to heal P and not make the condition worse (which D ended up doing)

Beginning to Rescue- If D takes charge of P who is helpless to aid himself, then D has duty to exercise reasonable care to secure P’s safety. 2 Views – STs split

Duty to Not make situation better Duty To Rescue and Use Care to Make

Ex- Farwell- Held that if D attempts to aid P and takes charge of situation, Ds entered voluntarily into a relation w/ P and owes P a duty

NM- Dissent- Imposing a duty on D to care for P once D has taken charge of P mistakenly elevates a moral duty to a legal duty

T- No, a legal duty exists where a special relationship exists b/w P and D and b/c D took charge of P, D has duty not to leave D in worse condition.

Should this be subsumed within the SPEC Relationships Section TREND- Gradual Shift toward establishing a General Affirmative Duty of Care

Exceptions to the Exceptions- When Policy RX dictate Invoking No Duty Immunities –

Charitable immunity - Interfamilial immunity - Spousal Immunity - from Wife’s Suit

Policy RX For-

Fears of Fraud Fear of destroying Harmony of Home

Policy RX Against Not great risk of fraud and is Peace preserved by preventing suits???!!

Trend- Eliminated Spousal Immunity Exceptions- Small minority retain Spousal Immunity

Premarital Torts Torts for Acts in Marriage Intentional Torts

PARENTAL IMMUNITY General Policy RX

Values of ppl are different and we don’t want to tell parents what to do Disruption of Harmony- Reluctance to interfere with how a parent wishes to raise

a child. General Trend Total parental immunity- a child is barred from suing parents for N

Policy Reasons- Allowing children to sue parents would interfere with parental care, discipline and control. We want to protect the right of parents to raise their children by their own methods and in accordance with their attitudes and beliefs.

Partial Parental immunity – A child is barred from suing parent for N when parent was operating under her own parental discretion. Wisconsin- No Parental Immunity except for

Exercise of Parental Discretion regarding Food and Car Exercise of Parental Control

Duty to the world / duty to the child distinction Duty to World- Where the parent owes a general duty to exercise care to

prevent harm to anyone Ex- A mother’s dog bites her child. Mom owes a duty to restrain dog not

only to child but to all who the dog may come in contact; Mom drives drunk and puts child’s and all in car’s life in danger.

Duty to Child- Where the parent owes a specific duty to exercise care to her child by virtue of the facts that the person is her child Ex.- A mother’s failure to supervise her child allows child to get bitten by

neighbor’s dog. Policy Reasons- Allowing children to sue parents would interfere with parental

care, and discipline. Given various cultural and religious approaches to parenting, parents have right to raise their children by their own methods and in accordance with their attitudes and beliefs.

Policy Problem- This seems to draw an arbitrary line to categorize when a parent can be sued and when a parent cannot sued. This is unfair to child who cannot sue her parent even though parent was N.

Negligent supervision – Parent protected from claim of creating a risk that cause injury to their child. Ex- A mother letting a Child drive a motorcycle would be liable

Complete abrogation of parental immunity – reasonable parent standard General RULE –REASONABLE PARENT STANDARD- A factfinder must determine

whether D’s act conforms to the act of a reasonable and prudent parent. NM- Broadbent- D let her child P swim in pool unattended and P got injured. P

cant sue D since D has immunity from P’s lawsuit. T- No D is liable if D failed to act as a reasonable and prudent parent

Exceptions- Palpably reasonable standard- In some cases, a parent is N only if her act is palpably unreasonable. Cases where parents have diff. views about how to raise child and parents shud be given more leeway Ex.- Sending kid to swimming lessons at neighborhood pools

Policy Reason – Parents shouldn’t have unfettered discretion in raising their children. Parents’s duty to exercise authority over their child must be exercised within reasonable limits

Policy Problem- Doing Hand equation for parents is difficult to assess. Given cultural differences in parental approach, its difficult to set uniform standard for reasonable parent

GOVERNMENTAL IMMUNITY- Existed till end of WWII Trend- Courts divided about under which contexts gov’t has immunity

RULE- Gov’t is more likely to be immune when engaging in something discretionary that protects the public from wrongdoers Gov’t didn’t get sued for N in maintaining a road Cop chasing down subject and injures someone.

Exception where there is a duty- Reliance – Gov’t tells P that “help is on the way”

When Gov’t solicits help from public and member of public relies on the gov’t for protection, then the gov’t owes the person a duty to protect. RISS- Police didn’t affirmative act toward public but rather P acted

toward the police. Beginning to Aid- Must be an affirmative act on behalf of police to get P involved.

RISS- Contexts where there doesn’t exists

Elements in which there is no basis – Taken from NY Approach Reliance Communication b/w

Discretionary Function – Basis for Immunity Is the case fraught w/ public policy consideraitons DEFENSES – Merely operational matter and doesn’t concern public policy

considerations and therefore no duty. Policy RX for

Seperation of Powers- No interference w/ executive branch Difficult to determine how limited police resources will be limited.

Policy RX Against Duty to Avoid Emotional Distress

Negligent Direct Infliction of emotional distress (NIED)– NOTE: Only resort to this when there was no physical injury – DON’T Do this analysis

when the emotional distress is attached to a physical injury. Emotional distress W/o a Corrleate Phsical Injury

Trend- Majority Approach – Falzone Elements

Reasonable Fear Immidiate Injury

Whether its immediate depends on whether P is in the danger zone Causes Emotional Disrtress

There needs a physical manifestation of emotional distress FALZONE- P was sitting in a car when another car struck her husband and came

dangerously close to hitting her. P sued for emotional distress. Crt abolished previous standard of only allowing recovery for emotional distress claims made in conjunction with physical injury claims. They allowed P to recover damages for bodily injury or sickness that resulted from fear of immediate personal injury instilled by the defendant’s personal act. Crt also found that emotional distress can and should be recognized by courts, as the role of a crt is to meet the needs of those who are in need, and the courts should not arbitrarily reduce their opportunity to be heard.

Policy RX for Keeping Physical Impact RULE Fraud 1st Impression Flood of Litigation Speculation Warning

Policy RX for Eliminating Physical Impact RULE Role of conjuctive physical injury is arbitrary Difference b/w mind and body is more pronounced Concern to weed out fraud is not that big of an issue Eliminating rule would not encourage a flood of litigation

GAMMON Elements Reasonable Distress Foreseeablity because of vulnerability This is being treated much like physical injury There must be severe emotional distress

Also, must be by a close family member GAMMON- P’s father dies in D hospital, and upon receiving a bag of his father’s

“personal effects” there was a dismembered leg that was not his father’s. P began having nightmares, and his relationship with his wife and child suffered. The court found that one may be liable for inflicting foreseeable emotional harms that he negligently causes. Crt found that this case had strong suggestion of foreseeability since the family was especially vulnerable. Crt finds that the same standards that apply to physical injury apply to emotional distress, since emotional harm is not more difficult to determine than physical harm.

Policy RX- Puts emotional well-being and physical well-being on same level First Question - Was fear reasonable? Second Question – Was the fear of an immediate injury?

Some Jurisdictions don’t require this Example- Fear of getting hit by a car

Third Question- Was there emotional Distress Courts also disagree

Indirect Infliction of Emotional Distress– IS THERE A DERIVATIVE Claim PORTEE Elements

Death or serious injury as a result of D’s N Witness to event

Because there is more certainty of harm Proximity to Accident– Zone of Danger Foreseeability of P suffering

Notice to D Close Relationship

Usually same household Close Relative

Severe Emotional Distress PORTEE- Child elevator claim – can be survival claim- Mother sued for her

emotional distress caused by watching child dying in elevator. The court found that her claim was colorable, finding that a plaintiff may file a claim when P witnesses the death or severe injury of a close relative. The court found that the plaintiff would need to (1) have been close to the scene of the accident, (2) whether the shock was received as a direct result of witnessing the event, (3) whether the plaintiff and victim were closely related. Finally, the court pointed out that the injury must be severe

Problem of lack of proximity Loss of consortium – start with Husband’s Claim and then move Wife’s claim Portee – Three separate actions – Survival Action for N, Wrongful for N

Wrongful Death and survival action– Duty must be owed to P Derivative Suit – Intentional N Infliction of Emotional Distress

For Wrongful Death and Survival Actions- Indirect NIED to 3rd Parties

Indirect V claims that D had duty to her Must meet Portee factors

BREACH – the Negligent Act- the little ‘n’ Emeregence of Concept of Fault

General Accepted THEORY- SL was the norm prior to the industrial revolution Writ of Trespass

First writ whose aim was to offer remedy for the injured Elements – Ds voluntary Conduct cuased

Forcible Direct and Immidiate Invasion of P’s person or property NOTE: No need to show fault

Ex- Throwing log directly at P. Writ of Trespass on the Case

Punished those who did obviously wrongful act that wasn’t qualify as writ of T. NOTE: Had to show fault

wrongful intent or N

Had to show actual damages Source of modern law requirement of damages

RX for N’s Emergence in Industrial Revolution Increased Frequency of Accidents- Whereas prior to IR, most injuries were caused D’s

intentional act, now injuries were more often caused by accident. To promote Capitalism

SL would have made innovation and industry too costly N was a strategy to encourage innovation

BROWN- Not intentional Standards for Determining N Behavior

Foreseeablity (FOS) of Risk Cardozo’s TEST in ADAMS- Was P’s injury within the range of Ds prudent foresight?

ADAMS – Cardozo- Feasibility Learned Hand Equation

Burden Probablity/Foreseeablity Magnitude of Harm/Injury

Reasonable Person Common Carriers

No higher standard of care ANDREWS says there is a higher standard of care- it must mean going beyond the

Learned Hand Equation – standard is higher than what is reasonable under the circumstances

Judicial Process of Determining N Role of JUDGE Role of JURY

REASONABLE PERSON STANDARD - Need for Objective Legal Standard of Care

Adopts an Objective Standard that focuses on D’s actual ability to prevent harm As oppose to Subjective Standard which would focus on whether D had morally

culpable State of Mind Policy RX

Administrative Ease of Proof Avoids difficulty of assessing individual Capacity

Avoids Fraud Detterence- Setting a Minimum Standard of Behavior

Creates Disincentive for all N actors to improve their behavior Policy Probs

May punish behavior that isn’t blameworthy Inequities Among Ds

Some Ds are disinclined to act risk-averse and meet standard of rxableness RULE- If risk of causing P harm was FOS to rxable person in Ds circumstances, then D is

liable for Ps injury General TEST- Was risk FOS to a reasonable person under D’s circumstances?

Not was risk FOS to D himself but rather the reasonable person D’s circumstances doesn’t incorporate:

gender distinctions – Why??? Belief that rsableness is uni-gender and doesn’t always differ Fact it would lead to marginalization

Elderly considerations- Why??? Expectation of Capacity in Most

Whereas all infants lack Capacity Have learned concept of rxableness, unlike kids

Ordinary Care vs. Extra-ordinary Care for common carriers BETHEL- There was a defective seat on a bus that gave out, causing P injury. P

argued that D as common carrier had owed P duty to use extraordinary care to prevent injuries. Court held that D only owed P duty to use due care, rxable care

Higher degree of care vs. Hgher standard of care INTERNAL CIRCUMSTANCES- Measuring reasonability under D’s subjective circumstances

D’s circumstances doesn’t incorporate: gender distinctions – Why???

Belief that rsableness is uni-gender and doesn’t always differ Fact it would lead to marginalization

Elderly considerations- Why??? Expectation of Capacity in Most

Whereas all infants lack Capacity Have learned concept of rxableness, unlike kids

Distinct, Apparent, Physical Disabilities Alternative TEST- Was risk of P’s injury FOS to rxable person w/ disability? Rationale- Victims on notice of risks NOTE: doesn’t include mental disabilities – Why?

Line Drawing- Hard distinguishing mental disability from variations of temperament

Fraud- Relatively easy to feign mental handicaps Victim’s inability to protect themselves-

Risk isn’t as apparent to V when encountering mentally disable person than when encountering physically disabled person

Children Alternative TEST- Was risk of P’s injury FOS to rxable person of similar age,

intelligence and experience? Especially when engaged in children’s activities Rationale- Cant presume that children have capacity for rxableness

Trend Some STs- <6-7 - Conclusive presumption cant comprehend risk

7-14 – Rebuttable presumption cant comprehend risk Some STs- Rxable Adult Standard of Car

Rationale- Presumtptions about capacity to appreciate reasonable calculus Emergencies-

Alternative TEST- Was risk of P’s injury FOS to rxable person confronted w/ emergency that D was confronted with?

Rationale- Cant think w/ same reason and care in emergency Trend

Some STs reject emergency doctrine Rationale- Facts of emergency considered in circumstances

Common Carriers EXTERNAL CIRCUMSTANCES- Measuring what was reasonable under the external

circumstanes that D was under – do so w/ LEARNED HAND equation- Goal - Limiting scope of which foreseeable risks D must take precaution to avoid to

which foreseeable risks a reasonable person would take precaution to avoid. Premised on notion that a reasonable person weighs utility & likelihood of harm

Marginal benefits vs. marginal costs analysis Emphasis of relativistic value assessment

Formula- D is L if B>PL – RULE- D is liable if the burden of taking adequate precaution is less than the

likelihood of injury multiplied by the extent of the injury. TEST- In determining what was reasonable under the external circumstances ask:

WAS THE BURDEN OF TAKING ADEQUATE PRECAUTION LESS THAN THE PROBABLITY OF THE INJURY MULTIPLIED BY THE GRAVITY OF THE INJURY?

CARROLL – Barge was unmanned by bargee for 21 hours. Hand rule that given the feasiablity of inspecting the barge at least once during daylight hours and the high cost of not manning the barge, bargee’s conduct was N.

Policy RX- This makes N law a means of promoting regulating social conduct to promote

efficiency. This captures an intuitive way of assessing risk

Policy PROB- How do we determine the magnitude and probability of a loss is higly speculative to the ordinary person

Factors in Factoring External Circumsances Role of Custom – Has dearing but not definitive

Weight Custom has on determining reasonable behavior General RULE- Custom is a factor in determining what a reasonable person

under D’s circumstances would have done but not conclusive Helpful in setting bar of Rxable Person Standard – Three ways

Feasibility- if entire enterprise is conducts an activity in a certain way, then it likely feasiable to conduct activities in such a way.

Foreseeablity- If a certain risk X was foreseeable to those engaged in D’s enterprise, then D should have foreseen risk X

Why? – Custom reflects the judgment and experience of many

Yet Not end all be all

Cases where reasonableness and custom may diverge E.g.- Though it is reasonable to wear a seatbelt, most people do not

wear seatbelts. Jury can also claim that custom was excessive and goes beyond the duty

of care Exception- In conducting the reasonable Doctor test, custom is dispositive

TRIMARCO- P was injured when he fell through a shower door that was built with thin glass, as opposed to safety glass, which was defined as the industry standard. Court found that custom and usage may be used to prove that one charged with negligence has fallen below the required standard of due care.

Benefit to P’s case- How will P use custom to show D’s N? Will argue that

D did not live up to standard of care that was customary The Custom standard of car is the reasonable standard of care

Benefit to D’s case- How will D use custom to show P’s N? Will argue that:

D did meet custom standard of care The custom standard of care is the reasonable standard of care

Policy Factors At Stake-

Deeming custom standard of care as falling short of reasonable standard of care would cause great upheavel to those engaged in that industry Doing so would also raise prices of

Role of Statute Policy RX-

Reliance- Predictablity, Objectivity, Unflexibility

Policy Prob Discriminarty in practice b/c it doesn’t consider nuance Could become outdated Thinking about criminal law, not tort law

First Question – Should we use this standard for criminal standard for determining the reasonable standard of care? Was crim standard designed to prevent harm

Second Question – Is the harm P incurred the type that stat tries to prevent? Third Question- Is P w/n group that criminal law intends to harm? Trend- Majority supports rebuttable presumption or N per se w/ excuse N Per Se – A statutory violation constitutes N in itself

MARTIN – The unexcused omission of the statutory signals is more

than some evidence of negligence. It is negligence in itself. A violation of statute designed for guidance and safety is negligence and is not a jury question. P traveling without lights and D crossed the center line.

Even here, Cardozo hints that there are exceptions to his rule Policy RX Against N Per Se for limiting role of Statutes

It seems that there are certain cases where the reasonable person would violate the law.

N Per Se w/ Excuse Escuses – intuitive – 5 excuses

Incapacity Didn’t know or shouldn’t know Unable to act w/ due diligence Compliance would lead to greater risk of harm It was an emergency NOTE:

IMPSON- D drove on left side to pass someone else. P claimed that b/c of statutory violation, there N per se. Crt held that D was N b/c D couldn’t offer any recognized excuse

Procedural implications – Role of jury is only to determine whether one of these recognize excuses to

N per se is present in this case Goes to Judge unless the question of whether one of the excuses is pre

Rebuttable Presumption If evidence of an excuse is offered, then P had burden of persuading jury that D

was N Yet, before D offers excuse, it is presumed that D was N.

Evidence of N Jury is instructed that D can be found not liable if even if no excuse was offered Lack of license is irrelevant to determining whether D was N b/c it says

nothing about the care with which D drove. Role of Judge and Jury

Role of Judge Decides case when Issue is a matter of law OR Issue is matter of fact but yet so clear that reasonable person couldn’t disagree

whose version of the facts is correct Policy RX for Judge Deciding Case

Consistency Efficiency Predictablity Fairness Less emotional influence

Policy RX for Jury deciding case Facts so important Emotions might be relevant Flexibility/evolution of case Politics don’t play a role

Andrews– Action by P regarding a fallen briefcase that injured P at the conclusion of a flight. D moved for summary judgment, which court denied. The court found that a reasonable jury could find that United was negligent or not negligent based on the

facts. He says that United, being a common carrier, had a “heightened standard of care.” Since reasonable minds could see the case falling either way, the court ruled that summary judgment was not appropriate.

Proving Rxable Person Standard was Breached Direct evidence – evewitness testimony of the negligent act Circumstantial Evidence – evidence of facts from which the jury can infer that D was N

Constructive Notice – We assume that D should have known about the dangerous condition. NEGRI- Case where P slips on broken jars in supermarket and falls. A witness

testified that she did not hear jars fall from shelves within 20 mins before incident. It can be inferred that D must have had construtctive notice of the dangerous condition and failed to fix it.

GORDON- P fell on D’s front entrance steps and incurred an injury as a result. A piece of waxy paper coming from the concession stand that D had contracted to have present caused him to slip. P claims that D was N insofar as its employees failed to discover and remove the paper before he fell on it. Yet, The dirtiness of paper would not itself demonstrate constructive notice – since it still could have been a few mins since the condition arose

Res Ipsa Loquitor- Inferring D’s fault from the accident itself Definition- Special form of circumstantial evidence that can be used that permits

the jury to infer that D acted negligently without any pinpointing a specific N act. Origin of Doctrine

BRYNE- P was hit on the head by a flour barrel which fell from D’s window. Even though there was no evidence of what caused the flour barrel to fall on P, the court allowed P to recover because “the thing speaks for itself” in that the very event that the barrel fell out of the window suggests that D most likely acted Nly. Alleging the circumstances of the accident suffice.

Elements – Requirements for its invocation TEST- If these 3 conditions are met, is it more likely than not that D was N (1) P must have been injured by accident that doesn’t ordinarily occur w/o N

Accident was more likely than not the result of N Usually freakish or improbable

Elevator falling several stories Sode bottle explodes

McDougald v. Perry: P is not requires to eliminate with certainty all other possible causes or inferences. The inference of negligence comes from proof of the circumstances of the accident.

(2) D must have had exclusive control over the instrumentality the caused the accident Instrumentality causing accident was within D’s exclusive control

Prosser emphasizes D’s responsibility more so than D’s control Notion of collective exclusive control: of suing group of ppl that were in

exclusive control of the instrumentality Ybarra v. Spangard: D is treated as group whose N caused

patient undergoing surgery to suffer unrelated injuries. Crt. also held the doctors alternatively liable. Burden of proof on D to rebut presumption, which is an incentive for Ds to give an account of what happened. Rare case of extending RIL. Following this logic, a whole apartment bldg may be held liable for a falling flower pot.

NOTE: This may be a special exception to medical malpractive cases and might have to do with the fact that P was unconscious and had no way of proving there was a negligent act.

(3) P must not have contributed to injury though any voluntary act of his own Only some STs have this CN requirement

NOTE: Some other STs also require that the evidence must be more accessible to D than to P. Unlikely to be a controlling factor Policy RX- Fairness factor

NOTE: Diff. b/w RIL & Inferring a Specific Act Negligent from circumstantial evidence This is different than mere circumstantial evidence in the sense that in NIGRI,

we established constructive notice based on circumstantial evidence and were able to allege a negligent act. In RIL cases, we cant pinpoint a negligent act

Evidentiary Implications- Allows case to go to jury even tho P hasn’t proved D’s N Rebuttable Presumption

Minority view in Cal. treats RIL as rebuttable presumption and D must provide prove to rebut, otherwise jury is required to find for P if all 3 elements are met

Burden of Production shifts to D but Burden of Persuasion still w/ P. Permissible Inference (Majority)

Evidence is treated as permissible inference (majority view) since negligence is not the only conclusion that could be reached. D is not required to provide proof.

Judge determines whether P has made a prima facie case with respect to each element (whether reasonable jurors could find each element present) and then it goes to the jury to infer more likely than not D was negligent.

Jury is not required to find D negligent but allows jury to find that D was N even though P had not brought allegations of a specific negligent act.

P still has burden of production. If D eliminates one of the 3 criteria above, he destroys the

reasonable inference of negligence and makes it a non-RIL case. Alternatively D can prove that he generally exercised due care to influence probabilities

. D’s Response

Must refute one of three requirements by showing D must show he lacked exclusive control over instrumentality causing

accident Accident is sort that commonly occurs w/o N P’s voluntary acts contributed to the harm

Directed Verdict – D can still get directed verdict if he destroys reasonable inference of N based on P’s evodemce If D makes it a non-RIL Case

Generally, P can plead or prove evidence of specific negligence and still rely on RIL. Some courts would not allow RIL if specific acts can explain the harm Minority of STs disagree and don’t allow RIL once P shows

specific N act by D Critique- It allows P to prove D was N without actually proving that D was N Justification- Consider the alternative to invoking the doctrine. P in Bryne would

not recover any damages even though it is clear that D was more likely than not N. Special Case of Medical Malpractice

Custom is definitive TEST- What would a reasonable Doctor/medical professional Do? National custom rather than local custom

Majority- Traditional locality and specialty rules don’t apply no longer apply since medical training and certification in now nationalized

Minority- Local rules still partially define custom Policy RX- Rural/urban distinction

Sheeley -When P gave birth, a Dr. who was a family practice doctor, had performed surgery from which the P developed complications. P sued Dr. Ryder and the hospital. P introduced Dr. Leslie, as an expert witness. D objected, citing the fact that Leslie was not a family practice doctor, and was not in the same local field and “community” as the defendant. Trial court did not admit witness, and P appealed. Appeals court held that the determination of whether an expert witness shall be allowed to appear is up to the discretion of the trial judge. Any witness that could speak to the required duty and skill in the case is a reasonable witness. Appeals court held that Leslie would likely meet this standard

Evidence for proving doctor was unreasonable Expert testimony will usually set the standard.

Factors to be considered when determining which expert witnesses to admit Length of time of experience Education Resources available at time of practice Specialty of the doctor

Obvious cases of malpractice don’t require expert testimony

Informed Consent General RULE- Dr. must disclose to patient

All medically reasonable invasive and non-invasive alternatives even alternatives he doesn’t recommend in his professional opinion

HA- Violation of informed consent is only when conducting an invasive procedure

Risks and likely outcomes of those alternatives Materiality of the risk measures by a reasonable patient in the patient’s

position. Policy RX- Protecting patient’s right to autonomy and self-

determination This is a violation of a patient’s dignity

Matthies– P had fallen and broken her hip. D doctor, after considering all of the other options, most of which were more risky, prescribed bed rest. P never fully recovered and sued. court found that a dr. must present all the adequate facts to a patient such that the patient can make the most informed decision on her care, whether the procedure is invasive or non-invasive. The patient must be given an opportunity for informed consent. In addition, the physician must discuss all viable treatment options (Medically reasonable alternatives), even if the physician does not recommend them.

TESTs fro determining Breach Rxable Patient- Must discuss all alternatives, risks, losses that a patient would

want to know Policy RX-

Better respoects patient’s right to self-determination Patient has to cope with the consequences and doctor does not Avoids the doctor’s biases

Limits- if non-serious injury is unlikely result of procedure, Dr. doesn’t need to inform the patient of this.

Rxable Doctor – Must discuss all medically reasonable alternatives of treatment Burden – He is already burdened with treating the patient Knowledge/experience Objectivity and predictablity

TESTs for determining Causation – Would the patient have accepted the alternative treatment if the Dr. had properly informed her of it? Subjective Patient- Would the patient actually have chosen the alternative

treatment if the doctor disclosed it as an alternative to the treatment he conducted?

Reasonable Patient- Would the Rxable Patient would have decided differently if the doctor had properly informed him of the alternative treatment? – Strong Majority Approach

TEST for Physical Harm Must be physical injury

NOTE: Dr. can be charged w/ battery for unconsented surgical procedure

CAUSATION - Must show both Proximate Cause and Actual Cause

Actual Cause- Cause in Fact General Rule/Test - But for causation test N caused INJ if INJ wouldn’t have been incurred by

P but for D’s N. KNICKERBOCKER- P’s horses run onto D’s prop, go onto thin ice and drown. P sued D for N

alleging that if D had built a fence around the ice as required by statute, the horses wouldn’t have drowned. Crt ruled there was no but-for causation b/c horses probably would’ve jumped over the 4 foot fence required by statute.

Problem of Reconstruction History – Practical Difficulty in exploring counter factual Probable Cause/Reasonable Likelihood Standard for proving ‘but for’ Cause

Particularisitc Evidence – General Probability does not suffice Probalistic Cause – D’s N doesn’t need to be the sole ‘but for’ cause

STUBBS - D city supplied the drinking water to the town of Hemlock. P, a resident of the town, contracted typhoid fever and suggested that the water was the cause. The lower crt found a non-suit for P. On appeal, court found that when P can prove that his injury was more than likely caused (“reasonably likely”) (proximate cause) by 1 factor (in this case, the drinking water), then P may recover from owner or authority of that source. P must not show certainty of causal chain but merely likelihood that D’s was the

cause. In this case, proving that D was the sole cause would be too burdensome given the practical difficulties of producing historical evidence

Problem- Overcompensation or Overdeterrence If 75% chance that D caused harm to 100Ps

Then for each individual P of the 100 Ps, it is more likely than not that D caused harm Thus, D will need to compensate 100 Ps even though it only caused 75 Ps harm.

Ps are overcompensated. D will be overdeterred from the activity, b/c they must pay more than the

harm they caused. Undercompensation or Underdeterrence if 25% chance that D caused harm to 100Ps

Then for each P of the 100 Ps, it isn’t more likely than not that D caused them harm Thus, D wont need to compensate any of the 100Ps even tought they caused harm

to 25 of them. Ps are undercompensated Ds are underdetterred because they don’t have to pay anything for the harm

they caused to 25 ppl. Solution – Alternative Approach of Proportional Recovery

Ds must pay damages proportionate to the percentage chance they caused injuries. If theres a 75% chance that D caused harm to 100 ppl, then 100 Ps recover 75% of the

damages. Optimal deterrence But for some Ps, overcompensation and for some Ps, undercompensation

Loss of Chance MATSUYAMA – Cant show that Dr. more likely than not caused P’s injury. Cant establish ‘but

for’ cause, because medical statistics indicate that P would have probably suffered that injury even w/ proper care Loss of Chance is the damages itself and then we have causation of the loss of chance Most courts don’t extend this doctrine to other cases outside medical cases

Limit it to health care b/c in medical cases, we have stats to prove an objective loss of chance

Courts require material loss of chance Recovery – D pays P the percentage chance that P would have not suffered the injury had D

treated P with proper care. This percentage multiplied by the cost of P’s injury. Problem- D is underdeterred when a group of patients lost chances of being healthy and

safe from injuryImagine 100 people with risk of leg lossWith proper medical care, 50% chance of saving leg

i. (1)  50 would have saved legs

ii. (2)  50 would have lost legs

Improper care leads to 10% chance of saving leg

. (1)  10 will have saved legs

. (2)  90 will lose legs

D should pay loss of chance to 40(50-10) but only ends up paying loss of chance damages to 36 (40% 0f 90 injured) of the 40. Thus UNDERDETERRENCE

Justification – When D completely takes away P’s chance to liveiii. Imagine 100 people with risk of leg loss

iv. Proper medical care has 40% chance of saving leg

. (1)  40 would have saved legs

. (2)  60 would have lost legs

. Improper care has 0 % chance of saving leg

(1)  0 will have saved legs

(2)  100 will lose legs

D pays 40% of losses for each 100 people. D is optimally deterred. Yet some Ps are overcompensated and some Ps are undercompensated

Justification Application of this doctrine is exclusive to cases of medical malpractice –

Policy RX- If cases of med mal, we have the statistics to prove the actual loss of chance and the loss of chance is not arbitrary but scientifically proven

Market Share theory of Defective Products in which the Manufacturer cannot be Distinguished Immediate Cause In Fact Problem- DES, a drug taken by pregnant women to prevent

miscarriage but ended up causing the children various medical problems, was marketed in

chemically identical form by over 200 companies. B/c when one child P brings suit, it is clear that each of the 200 companies were N but only the N of 1 of the 200 companies was the actual ‘but for’ cause of P’s injury. Solution- Market Share theory- P sues all 200 companies and holds each of them liable for

part of P’s injuries. The part of P’s damages each D pays is proportional to share D sold in relevant market area.

HYMOWITZ- P was injured b/c her mother took DES while she was pregnant with P and sued D who was manufacturer of DES. Even though there was no evidence that P’s mother took DES specifically manufactured by D, crt held recovery should be proportional to D’s market share not to the relevant area where Ps mother lived but w/n the entire national market. Policy RX- It’s a windfall for D who acted N but got lucky that pill wasn’t marketed to

where P lived. Policy Problem- this holds Ds responsible even if D proves that he was not a ‘but for’

cause of P’s injury Plus overturns the causation element of torts!!!!

JOINT AND SEVERAL LIABILITY (JSL)- When multiple tortfeasor Ds cause harm jointly Policy R- Guarantees full compensation for wronged P Single Indivisiblity RULE- 2 Actors N are needed to cause P’s harm

Damages might work out differently for both Ds – For an injury they both caused – we have joint and several liablity

Recovery- P can either sue group of Ds as whole or each D individually & recover up to but no more than full damages from either group of Ds or from 1 D. If 2 Ds are JSL, then P can recover full damages from each D. If D1 found liable cant pay compensation, then P can sue other D2 If D1 required to pay full damages, D1 can either implead D2, other tortfeasor or bring

separate action against D2. Under equity principles, Ds divide full damages equally and if D1 pays P full damages,

D1 can recover from D2 half of full damages If P is comparitevly N, then N can recover full damages from D1 and D2 after

subtracting % of damages P is liable to bear, Under Uniform Act, if D2 pays more than pro rata share, he cant sue D1 to compensate

him for his additional payment to P Policy R- want to encourage settlement to end litigation

How are damages to be divided up among the Ds? Pro rata – Damages can be divided up 50/50 among Ds.

Contribution- If D1 pay greater value than half of damages, D1 can demand contribution from D2 to pay that addition back to D1.

Can apportion based on respective fault Contribution- If D1 at 50% fault and D2 at 30% fault and D1 pays $80 damages,

then D1 can seek contribution for $30 When can one recover for JSL?

Single indivisible injury- ONLY when there is a single indivisible injury–Even if not planned together or if Ds don’t know each other, both Ds are joint tortfeasors Concurrent action – two concurrent N acts by different Ds, each of which is

necessary in bringing about injury

Successive action- two successive N acts by different Ds, each of which is necessary in bringing about injury

Concurrent event-2 concurrent N acts, that when put together is a ‘but for’ cause but separately are not ‘but for’ Exception- Both Ds are held liable even tho each aren’t ‘but for’ causes-D’s act

was substantial factor Policy R- Fairness-Both Ds are N and P is innocent

Concerted Action-Co-conspirational event- Multiple Ds act in concert regarding tortious activity – true joint liability EX- Drag Racing EX- Planned Battery

Alternative Liability (AL)-Multiple Ds are N but only 1 D caused harm SUMMERS V. TICE-2 hunters accidentally shoot P and 50% chance D1 caused

injury and 50% chance D2 caused injury. Both Ds held liable unless rebutted by evidence produced by either D1 or D2. BOF is shifted to Ds and Ds presumed to be JSL Policy R-P lacks access to evidence to prove which D caused him harm-like

Ybarra except for causation Policy Prob-1of Ds is liable for harm he didn’t cause

YBARRA – Takes both Alternative L Concurrent Actions – When 2 people cause the act but are not but fore

Substantial factor TEST 2 set fires case Hymnowitz

Where one cannot recover for JSL? When 2 Ds caused two separate damages, 2 separate injuries.

Where one causer is N and the other causer is not Several liability – When multiple tortfeasor Ds cause harm not jointly.

Recovery- P can ONLY sue group of tortfeasors Ds and not individual Ds and cannot demand full damages from one D but only a portion of damages How are damages to be divided up?

May be pro rata- divided equally between all Ds who are severally liable Portion may be based on percentage degree of fault If D1 doesn’t pay his allocated portion, this doesn’t effect amount of money P can

recover from D2. Market Share Recovery-

Hold D liable for market share Funjable – applies to funjable products Manufacturers are liable for what they had in market Manufacturers like market share approach - Optimal Compensation

Joint and Several Liablity

National Market Share Cannot exculpate but can be inculcated

Proximate Cause- unexpected harm

NOTE: Start w/ Act that is closest in time to injury b/c have fewest intervening causes Unexpected Harm: Foreseeable P will be able to recover for injuries even if

there was a pre-existing condition because the injury is the proximate cause of P’s harm. Under Benn v. Thomas, D is responsible for all injuries of P, not just those that are foreseeable.

In re POLEMIS (minority view): Foreseeability establishes duty (and whether act is negligent or not; if

negligent, D will be liable) Type of harm does not matter D will be liable for all direct consequences.

In WAGONMOUND, SCOPE OF THE RISK APPROACH foreseeable type of harm & direct or natural result, then there is

proximate cause. D is responsible for only the type of harm that is foreseeable. Foreseeable intervening causes do not matter is general harm is

foreseeable. PALGRAF dissent lists “common sense” factors in determining proximate

cause (goes to jury): Foreseeability (of type of harm or risk and consequences; general nature

of harm that actually took place) Directness Time and space between D’s conduct and harm Substantial contributing factor Not too many intervening causes Policy: fairness, blameworthiness, deterrence (can’t deter unforeseeable

consequences), ability of D to bear loss. UnFOS Extent of Harm –

Personal Injury YES Property Damage YES

UnFOS Type of Damage Personal Injury YES (see BENN) Property Damage NO

Intervening Cause – Is it independent or not? Worse things happen at hospital for injury D originally caused – then D and hosp are jointly

and severally liable b/c of single indivisibility rule

DOE v. MANHEIMER- The court explains that the only way a negligent person can be removed from liability is when: 1. The harm is intentionally caused by a third person and 2. Is not within the scope of the risk created by the defendants conduct Forces that are highly improbable and extraordinary

Trend – A bad guy intervening cause does NOT cut off liability – LL who doesn’t put locks no doors and rapist case – use single indivisible injury – rapist coming into TNTs room is foreseeable type of harm resulting from omission of putting locks on doors -

Polemis – D is only liable for what is direct – doesn’t matter if its unforeseeable and doesn’t matter if its – eggshell PWaggonmound – D is only liable for what is foreseeable - Majority Approach

Unforeseeable extent of harm – Doesn’t matter - Unforeseeable type of harm – D is not liable according to Waggonmond – like injury to property – physical injury, property damages

Gibson – D is N for pole that rotted – Did it require N maintenance for it to fall down – Maybe it would have fallen down anyway – then no but for cause – single indivisible injury –

Trend – A bad guy intervening cause does NOT cut off liability – LL who doesn’t put locks no doors and rapist case – use single indivisible injury – rapist coming into TNTs room is foreseeable type of harm resulting from omission of putting locks on doors -

Palsgraf – Cardozo – Only have duty to D if D is within orbit of dangerAndrews – Is P’s harm foreseeable to D? Is it close in time and space?

3rd REST – cuts off liability for unforeseeable types of harm – like Doe

DAMAGES

COMPENSATORY DAMAGES – Personal Injury/Property Damages Goal –

‘To make P whole’ or “to restore P to her pre-injury condition Prob- Largely Fictional Ideal

Single Recovery RULE – All compensation emerging from one injury must be sought in a single trial Requires P to prove past and future damages

Future damages RULE- usually limited to those that are “reasonably probable”, if its more likely than not that P will suffer this harm Policy RX – Difficulty of proof if must wait years to sue for risk <50% Policy PROB-

Windfall for P if recover damages for future harm that never materializes Could deplete D of money to pay those who do get disease

Windfall for D if P doesn’t recover damages for future harm that does materialize

Two Disease RULE – Allows P to sue for 2nd disease when it develops Economic/Tangible Damages –

Definition – Tangible Losses whose actual dollar amount can be calculated Scope

Medical Expenses (past and future) Types

Physician/hospital bills Medication Therapy

Surgery Travel (E.g.- to meet various medical experts) Therapeutic and other equipment Etc.

Proof – Requires expert medical and actuarial testimony Lost Earnings (past and future)

Current loss of earnings – from time of accident to trial Lost future earnings – depends on many factors

Expected Duration of injury/disability Type of work P would have done w/o injury

Difficult when career path is undefined Students, children, homemakers, impending career change

How long would have worked if no injury Life Expectancy, type of work, level of interest, other factors

Fringe Benefits Health insurance, stock options, etc.

Reduced by earning capacity post-injury Property Damages

Non-Economic Losses/Intangible Damages Definition- Intangible losses for there is no objective or accounting basis; highly subjective! Scope

Pain and Suffering Physical Pain from injury, recovery and/or disability Emotional distress

Anguish, humiliation/embarrassment from disfigurement Fear associated with trauma Frustrations w/ diablity Fear of recurrence, Depression Facing Reduced life expectancy

Loss of enjoyment to life Loss of ablity to enjoy experience enjoy prior to injury

E.g. Law student suffers memory loss and cant enjoy law school Sometimes subset of ‘Pain and Suffering’, sometimes separate element Measured against pre-accident life expectancy

Effect of Unconsciousness – Courts Divided For Pain and suffering

Most crts – deny recovery b/c no discomfort or pain if Ps unconscious For LEL

Some Crts- P should recovers b/c coma still prevents P from engaging activities Loss of enjoyment of life is an objective loss

Some Crts- P should NOT recover b/c theres no pleasure lost Collateral Source RULE-

RULE – D must still pay damages to P even if P is compensated from ‘collateral sources’ such as private insurance, or workers compensation

Rationales –

D shouldn’t get windfall from P’s attempts to prevent loss Protects insurers subrogation rights

B/c insurer has compensated P, insurer can sue anyone that P could sue Concerns

Compensates P for losses that P doesn’t actually incur Economically inefficient: draws from most expensive insurance and adds costs of

subrogation suits Ps first party insurance usually cheaper than D’s liability insurance

Wrongful Death Legal Basis –A cause of action to recover for a wrongful death is based in state statute

This reversed common law NOTE: Wrongful Death isn’t a tort action but rather is a type of injury upon which P can

recover damages for on a standard tort action Definition – This is an action on behalf of survivors for losses due to death of decedent

Policy RX- Its indefensible to allow recovery for personal injury but bar recovery entirely where V sufferes the ultimate injury

Who recovers? NOT the decedent herself but only decedent’s relatives Practice- Depends on ST statute,

Typically, spouse, children, parents, siblings or others mentioned in will What is recovered?-

Practice- Recovery rules vary from state to state Generally, allows damages for the losses suffered by closest surviving relatives

Injury- Sole injury to be recompensed is the death itself. Economic/Pecuniary Losses – Loss of V’s financial supportor household services

Immediate Tangible Losses- - Funeral, etc. Loss financial contributions from decedent

Lost household services

Non-economic/Intangible- Loss of consortium- loss of companionship and emotional support Practice – Recovery for these losses was historically excluded Immediate Intangible Losses- grief of V’s death. Loss of Consortium/companionship

Advice, moral training, education. Sexual consortium. Emotional support Emotional Distress

Pecuniary Losses- Typically exclude recovery for intangible injuries such as loss of consortium Policy Prob- If a child or retied person is injured, family suffers great emotional

loss but no economic loss and therefore would recover nothingg. Doctrine is often stretched to include intangible injuries such as loss of C

Policy RX- Its inconsistent to allow recovery when relationship is impaired b/c of V’s injury but deny recovery when relationship is ended b/c of V’s death

Survival Action Legal Basis –A cause of action to recover for a wrongful death is based in state statute

This reversed common law

Definition – Actions for personal injuries of decedent that decedent could have brought if still alive

Recovery- Allows estate to recover damages for injuries suffered by decedent before death, which decedent could have recovered had she lived. Recovery is then passed on to heirs Economic – Losses prior to death

Medical Expenses Loss of earnings Property Damages

Non-Economic- Pain and suffering

Defenses Contributory N of decedent affects recovery in the way it would if decedent had lived and

brought suit Damages would be reduced under pure comparative N

N of a beneficiary in a wrongful death suit affects recovery according to the rule of a contributory N E.g.- BEnefiiciary’s N would reduced damages under pure comparative N Especially w/ loss to survivor statutes vs. loss to estate

PUNATIVE DAMAGES Damages over and above compensatory damages Goal - Intended to punish D for wrongdoing Scope

Limited to egregious wrongdoing Action motivated by spite, malice, fraudulent or evil motive, conscious or deliberate

disregard of other’s interests, wanton misconduct Where criminal law most enters torts Recovery of punative damages is more determined by the motive and conduct of the tort

rather than the type of tort committed Often N is not sufficient But mere fact of an intentional tort may not be sufficient

Policy RX In favor of Punitive Damages

Compensate for actual expenses of litigation Provide incentive to litigate cases of outrage and oppression that might escpae notice

of prosecutors Against Punitive Damages

Undue benefits for P, should be paid to the state Amount is fixed by the caprice of the jury

Meant to be in relation to compensatory damages, but in reality can far out of proportion

Imposed w/o safeguards of criminal procedure NOMINAL DAMAGES

Defintion – Where P hasn’t suffered compensable harm through a D’s intentional wrongdoing E.g. some offensive contact batteries

Goal – not intended to compensate but to recognize D’s wrongdoing Small Amount of money

Rare Usually only apply to some intentional torts

AFFIRMATIVE DEFENSES – Even if P proves all 4 elements of Prima facie Case, D can relieve himself of liability by advancing affirmative defenses by asserting P faulted or P assumed risk P’s Fault – Contributory N

Trend- Most jurisdictions have rejected Contributory N in favor of Comparitive N Recovery- If P was also at fault, then P is completely barred from recovering.

Ex- If D is 70% at fault and P is 30% at fault, then P recovers no damages. Test- When is P contridutorily N?

General Rule- When P falls below reasonable person standard Exception – Last Clear Chance Doctrine- Can recover if:

P’s N puts P in position from which he is powerless to extricate himself, D sees danger, had time to avoid harm but fails to use reasonable care to do so

Policy Reasons No need to apportion damages for one injury among multiple causes. Consistent with individualism of common law.

people responsible for taking care of themselves Policy Problem- Seems contrary to goal of compensating P for injuries

If P is only 20% at fault, P should still recover. P’s Fault – Comparative N – Types of Recovery

Practice- Most jurisdictions use comparative N Determining P’s N – Use Same Reasonable Person Standard

Did P breach a duty? DISCUSS BREACH and NOT duty

Pure Comparitive Negligence Trend – most judicially adopted comparative N system Recovery P’s recovery for injury is reduced by degree to which Ps at fault

Degree of P’s fault is quantified as a % of fault for accident P recovers for injury minus % Ps at fault

Ex.- P whose 40% at fault recovers 60% of damages Ex.- P whose 55% at fault, P recovers 45%

Policy Prob – may not seem fair to pay damages to one who is overwhelming cause of misfortune

Modified Comparitive N Trend- Most statutorily adopted comparative N system. Recovery- P’s recovery is limited by degree to which Ps at fault. However once P’s fault

exceeds a certain %, then P cant recover any damages. Consensus- In all states, P must meet certain standards to recover

Ex.- P whose 40% at fault recovers 60% of damages Ex.- P whose 55% at fault recovers nothing.

Divide- When P and D are equally at fault, states are divided. Approach 1 - P cant recover if P and D are equally at fault Approach 2 - P cant recover only if P’s fault exceeds D’s fault,

Multiple Ds- In cases of multiple Ds, state are divided as to when P can recover Approach 1- P’s fault % is compared to aggregate % fault of all Ds

If P=40%, D1= 30% and D2=30%, P recovers 60% Majority approach among states Better for P since it gives P the best chance of recovery

Approach 2 – P’s fault % is compared to fault % of each D. If P=40%, D1= 30% and D2=30%, P is barred from recovery

NOTE: IF P is reckless, then P is generally barred from recovery Policy Reason- Purpose is to apportion fault but not bar recovery Policy Prob- unfair b/c P whose 45% at fault recovers half damages whereas P whose 55%

at fault recovers nothing. Not optimal recovery Measuring Percentage Fault- How to measure fault?

Majority view-Measures Ds N and not degree to which Ds N caused harm D’s N driving is as responsible for P’s harm whether or not D’s drunk but Ds at greater

fault if D’s drunk since D is more culpable. Still P is at 0% fault if P’s N did not in any way cause P’s own injury

Think of degree to which party is N and degree to which party caused injury Policy Prob of Compartive N’s Recovery

Determining the percentage to which P is at fault is inherently imprecise Assumption of Risk- P assumed risk and therefore shouldn’t recover

Recovery- The Defense that P assumed risk is traditionally barred P from recovery Diff. b/w AOR and Contributory N-

In Contributory N, P acted with lack of care and was thus N In AOR, P knowingly and voluntarily assumed risk of incurring injury. Whereas Contributory N is objective test, AOR is subjective test

Express AoR- Exculpatory agreement- P contractually waives right to sue D for N Ex.- Hanks- When going snowtubing, D asked P to sign “Release of Liability” agreement. P

then hurt foot b/c of D’s N. D said he wasn’t liable b/c of agreement. Rule- D must give P adequate notice that D is releasing liability. Rule–An Exculpatory Party agreement is unenforceable if it violates public policy Test (HANKS): An exculpatory agreement violate public policy when:

Waiver concerns business suitable for public regulation D provides services of great importance to public

Dissent- It’s a recreational activity, not necessary to public D possesses advantage in bargaining power over members of public

D had bargaining adv. since P drove long distance just to go snowtubing Dissent- P didn’t have to snowtube and could’ve left.

P under D’s control & is subject to risk of carelessness D has expertise to control hazards. D alone can insure against risks.

Policy Reason for Express AOR- Acitivities will become more expensive if customers can sue (Dissent) We want to encourage “vigorous participation” in activities (Dissent) Free market- People can decide to contract away rights.

Policy Problems for Express AOR Exculpation clauses remove incentive for hosts to act w/ due care. The law wants to

deter N behavior! Who can prevent injury should bear costs. Protectionism- For marker to be free, P & D shud have equal bargain power.

Disclaimer Signs –disclaimers that waive D’s liability must be presented adequately to P Conflating Express AOR with Duty- It could be argued that Express AOR isn’t an affirmative

defense b/c by P waiving his right to sue, D owed P no duty. Implied AoR – P knowingly and voluntarily assumes risk

Test (Davenport)– P assumed risk when P must have knowledge of facts constituting a dangerous condition

Murphy- P observed the Flopper before stepping onto it. P must know that condition is dangerous

Murphy- P saw people fall on ride before stepping onto it. P must appreciate nature and extent of danger

Davenport- P complained about danger of unlit stairwell to landlord P must voluntarily expose himself of the danger

Davenport – P used unlit stairwell despite ablity to use other stairwells. Primary AOR– P assents impliedly to risks inherent in a situation

Ex- Murphy – D road the ‘Flopper,’ an inherently risky amusement park ride Rule- One who takes part in such a sport accepts inherent dangers so far as they are

obvious and necessary Test – Were the dangers obvious and necessary or obscure and unobserved?

Murphy – P saw people on Flopper fall before deciding to step onto ride. Sports participants and spectators-

D only owes duty to P to not engage in conduct that is so reckless as to be totally outside the range of the ordinary activity involved in the sport

Ex.- Stadium not liable for spec who got hit by ball Exculpatory agreement- Can D upon P’s written consent relieve himself of a duty of due

care. P can waive his right to sue D for N and thus D has no duty HANKS- Dissent found that P couldn’t sue D for N since P waived his right to demand a

duty of care from D. Does an exculpatory agreement violate public policy? Policy for Sports Participants

Encourage Vigor Difficulty in Assessing N in those circumstances

Conflation with Duty- Davenport says that Primary Implied AOR isn’t a true affirmative defense but should be part of duty analysis.

Secondary AOR – P voluntarily and knowingly encounters unrxable risk created by D’s N True affirmative defense according to Davenport Ex- Davenport- D was LL and was N in not fixing lights in stairwell. Then P was Nly used

stairwell and fell. D claims P assumed risk and shouldn’t recover Test – If D voluntarily and knowingly assumed risk, whether risk was reasonable or not.

Ex- If P’s N didn’t exceed D’s N, then P recovers. But if not, then Ps barred. Practice- Courts divided as to whether AOR absolute defense should be barred.

Minority Absolute AOR states- P’s AOR completely bars P from recovery Policy Reason-B/c P acts knowingly, hes more liable, and shouldn’t recover

Majority Comparative AOR states- P’s AOR bars P from recovery only if Ps more at fault than D. If Ps 30% at fault, then P recovers 70% from D. Policy Reasons- If P’s AOR is reasonable, then P should be able to recover.

TORTS ATTACK SHEET

Did D have a duty to P?Was D’s act a nonfeasance or a misfeasance?

If misfeasance, then presumably there was a dutyIf nonfeasance, did D have an affirmative duty to act?

Did D have a special relationship to D or a 3rd party?Was P relying on D for his own safety?Did D begin to rescue D and fail to continue rescue?

Does D have immunity?Does D not have a duty because of public policy?

Did D breach his duty to P?Would a reasonable person under D’s circumstances have done what D done?

Was risk foreseeable to D?What was magnitude of harm that was foreseeable?Was it feasible to take the necessary precautions to avoid the foreseeable risk?Were there alternative means of avoiding the foreseeable risk?

Role of Custom suggest foreseeability of risk and feasibility of necessary precautionsRole of Statute

Is

Can transferred intent also be applied to cases in which D attempted to hit A but ended up hitting both A and B.

For assault, an apprehension must be experienced by subjectively by P and that apprehension must be of the type that a reasonable person would have felt that apprehension. For battery, an injury to dignity must be reasonable under the circumstances. Thus, it has objective element like the apprehension in assault cases. Does it also have subjective element, that P must have subjectively felt a dignitarily violated?

Big questions: The consent defense must be founded on the protection of individual autonomy b/c deterrence must not be an issue – deterrence is not an issue b/c if they said consent is not a defense in prize fighting cases, then winner of fight must pay damages to plaintiff for battery he inflicted on plaintiff during fight –

Does Davenport completely merge AOR doctrine with Comparative N doctrine? Does it leave any room for the subjective element of P’s knowledge of risk or just apply reasonable person test?

Affirmative Duty Not to Act – How does creation of risk fit into all of this? How does sport participants and spectators play into this?

Nagel paper: moral luck and Terrorist litigation

Maybe those liable of tort actions should not only be required to pay damages but also should be required to do community service in working on projects to prevent the specific injury he was at fault for causing. This would develop an emotional connection b/w the tortious actor and the tortious victim. This would foster a greater sense of community by instilling into the heart of the tortious actor a sense of sympathy for the tortious victim. Considering that a fundamental goal of tort law is to deter negligence, it would seem appropriate to require a liable actor to engage in an activity that will make him sympathetic towards the safety and health of potential victims, thus leading to a greater emotional incentive to improve his conduct. Perhaps emotional incentive to avoid liability is a stronger deterring force than a financial incentive to avoid liability. This would give rise to a more communitarian community

Does LL/ entrant analysis all within context of special relationship exception to general nno affirmative duty to care

Vicarious