law school torts outline - spring 2012

8/19/2019 Law School Torts Outline - Spring 2012

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Torts Outline

1. Principles of tort lawa. Compensationb. Deterrence

c. Punishmentd. Fairness

2. Degrees of Faulta. Strict Liabilit ! reco"er without proof of faultb. #egligence ! ob$ecti"e reasonable personc. %ec&less

i. 'a$orit use sub$ecti"e test aware of but disregards a high degree of ris&ii. 'inorit use ob$ecti"e test should ha"e &nown of (high) degree of ris&

d. *ntentional ! purpose or &nowledge to a substantial certaint that conse+uences

would result

,. -urdensa. -urden of pleading ! legall compensable claimb. -urden of production ! more than a scintilla of e"idence not $ust conclusor

allegationsc. -urden of persuasion ! preponderance of e"idence more li&el than not

/. 0"idencea. %eal ! documentar

i. Signature disease ! eistence of the disease is a signature of eposure to a

particular agentb. Direct ! no inference but credibilit is +uestionable e.g. eewitnesses3

i. Admissibility of expert testimony1. Fed. %. of 0"idence ! if speciali4ed &nowledge would assist

understanding of the issues epert opinion testimon is allowed from a

witness that is +uali5ed as an epert b &nowledge s&ill eperience

training or education2. Daubert factors ! interpretation of a federal rule state courts emplo

another standard or adopt the standard to help trial $udge determine

whether the reasoning or methodolog is scienti5call "alida. Tested according to the scienti5c method6b. 'ethod sub$ected to peer re"iew and publication6c. Potential rate of error6d. 7eneral accepted theor6

c. Constructi"e notice ! *mputes &nowledge8 must be "isible and apparent 9 must

eist for a su:cient length of time prior to the accident to permit emploees to

disco"er and remed iti. Mode of operation rule

1. The business practice creates a continuous and foreseeable ris& of

harm to customers no need to pro"e actual or constructi"e noticea. 0.g. self;ser"ice < speci5call designed to attract customer

attention elsewhere 9 increases ha4ard b re+uiring customers

to obtain items themsel"es6b. -usiness ma rebut this presumption b=

i. >isible warning signs

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ii. %egimented and fre+uent cleaning inter"als with notated

proof ii. Prior history of similar accidents ! ma be rele"ant when there are=

1. Substantiall similar circumstances relating to a material issue in the

current case2. #ot outweighed b counter"ailing polic considerations e.g. unfair

pre$udice undue dela3

d. Circumstantiali. Res ipsa loquitor – “the thing speaks for itself

!. Collapses duty" breach" and actual cause# permits neg to be

inferred by the nature of an accident $ithout e%idence of an

act2. %easonable person standard still applies ! plainti? must pro"ide

e"idence from which reasonable persons can sa that on the whole it is

more li&el that there was negligencea. Should include all potential defendants to form (probabilit) of

negligence and remo"e from speculati"e sphere polic@

fairness63

b. #ot applicable where surrounding facts are disco"erable andpro"able

&. 'lements “(') ! Tpe of accident 0clusi"e control #otcontributor

a. !. (ype of accident $hich ordinarily does not occur in the

absence of negb. *. Caused by an agent or instrumentality $ithin the

exclusi%e control of the +i. Actual eclusi"e controlii. Constructi"e control ! not in actual possession but no

change occurred after it left the personBs possession

iii. %ight to control ! in medical casesc. &. Plainti, $as not contributorily negligent

/. -asis of conclusion ! inference from common sense general

&nowledge O% epert testimon about e"idence

. ',ect on litigation a. !. '%idence of neg

i. Eur can infer negligenceii. -urdens of production and persuasion stas with plainti?

b. *. -eak rebuttable presumption CO $urisdiction3i. Eur must 5nd negligence unless plausible rebutting

e"idence

ii. -urden of production shifts to def but persuasion staswith plainti?

c. &. trong rebuttable presumptioni. Eur must 5nd negligence unless persuaded that notii. -urdens of production and persuasion shift to D

ii. Spoliation of e"idence ! where a part destroed important e"idence to

pre"ent his ad"ersar from gaining access to it8 generall a separate claim

although court might alternati"el impose procedural sanctions during the

original trial

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)egligence – +uty

- A legally recognized relationship obligating a party to conform conduct to a

particular standard of care

/ 0uestion of la$o Eur ma still determine the factual circumstances gi"ing rise to a dut

o #o foreseeabilit #O dut= Courts lea"e foreseeabilit determination to

$ur unless no reasonable person could di?er on the matter < Palsgrafplainti?

; 0roding distinction between=o 'isfeasance ! acti"e misconduct creating a peril or changing the nature of the

eisting ris&o #onfeasance ! failure to act when person has a dut to do so

/ 1enerally no duty to otherso Polic < Fairness

nacceptable possibilit of punishing people who tr but fail to help another

*ndi"idual autonom ! "ariable capacities and moti"es e.g. time bra"er3

o Criti+ue

Deterrence ! social goal of protecting li"es to encourage action

Punishment ! for sociall condemned beha"ior law is based on moralit

/ ources of dutyo #OT merel superior &nowledge of a danger absent a dut to protect

o pecial relationship

Parental custodial role

Eoint "enture ! companions engaged in a common underta&ing

Doctor and patient

o 2and possessors ! separate from special relationship

o 3oluntary assumption of care

o tatutory dutyo 4 pri%ity

o Promise to help and reliance

o Creation of an unreasonable risk 5+'6A72(89 'isrepresentation ! etends to third parties

Furnishing alcohol

#egligent entrustment

o )on/negligent creation of risk ! dut to warn if actor should ha"e &nown the

created a ris&

; >oluntar assumption of careo One who underta&es to act or ta&es charge of another who is helpless

o Liable for=

13 Failure to eercise reasonable care while within charge of the indi"idual8

and 23 Discontinuing aid if doing so lea"es the other in a worse position than

when the actor too& charge of him

; Dut to warn third parties/


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o Polic ordinaril disfa"ors imposition of a dut to third parties for failure to disclose

o 0ceptions@

pecial relationship – therapist;"ictim;law enforcement

Where the patient has communicated a serious threat of

physical violence against a reasonably identiable victim or

victims Duty to make reasonable eorts to communicate the

threat to the victim or victims and a law enforcement agency

• #ot for=

o A*DSo Suicide

o Propert damage most $urisdictions3

• Polic

o %ationale@ (the protecti"e pri"ilege ends where the public peril

begins) ! societal interest in protecting against phsical threats

of "iolence outweigh the patients right to pri"aco Criti+ue@ con5dentialit needed for e?ecti"e treatment trust

disclosure see&ing help3 9 unpredictabilit of "iolence Creation of an unreasonable risk – non;disclosure amounts to a:rmati"e

misrepresentation when one part &nowingl ma&es misleading half;truths

represented as the whole and the other part reasonabl relies on those

statements to his detriment

; Pri"it ! limiting the (orbit of dut)o Pri%ity doctrine ! polic decision that there generall must be a direct G

relationshipo 0.g. tenant who fell down stairs in the common area lac&ed pri"it with the electric

compan because onl his landlord had a G with the compan for that part of the

buildingo 7ndertaking doctrine ! exception to privity installation v maintenance

There ma be a dut where an entit has a direct G responsibilit to maintain

ser"ices for the bene5t and protection of a &nown and identi5able groupwhich includes the in$ured non;contracting part3 9 the in$ured part is

in$ured as a result of direct reliance upon that obligationo Polic considerations

%ationale@ Controllable limits placed on liabilit due to=

• Large numbers of potential plainti?s

• To ensure cheap readil procurable ser"ices

Criti+ue@

• %educes incenti"es toward safet

• Arbitrar distinction regarding whether inaction is merel denial of a

bene5t "ersus the commission of a wrong

; *ntoication and liabilit to third personso :ntoxication

ocial host ! not recei"ing 5nancial bene5t• Dut to the minor but not epanded to third persons in$ured b the

intoicated minor

• %ationale@

o 7enerall unaccustomed to the pressures in"ol"ed in ta&ing

responsibilit


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o Far reaching social implications gi"en the wide sweeping class of

social hosts and lac& of predictabilit re+uired to card6 Hire a

bartender6 Obtain a breathal4er6 Chec& all guests before the

lea"e the premises6

Commercial %endor ! proprietar interest• Dut imposed for both minors and adults

• %ationale@ #arrow class better organi4ed and 5nanciall capable to

eercise greater super"ision o"er patrons

+ram hop Acts ! statutes in most states impose liabilit for harm

resulting from ser"ing persons to the point of intoication or ser"ing an

intoicated persono 'a appl to sports stadiums

o >ariable triggers for liabilit and causation re+uirements

o Some states re+uire &nowledge that person will soon be dri"ing

a "ehicleo 0.g. airline that ser"ed passenger until drun& was not liable to a

third person who was in$ured b the passenger while dri"ing

home ! airline &new the passenger would disembar& but did #OT

&now whether he was ta&ing public transit had a connectingIight or dri"ing

+esignated dri%ers

• A person who agrees to act as a designated dri"er has a dut to third

parties onl once performance begins

• 'odern "iew < a bare promise ma be su:cient to constitute an

underta&ing

o )egligent entrustmentD creates an unreasonable risk by supplying chattel to another who

then in!ures a third person *ssue@ whether the entrustor &new or should ha"e &nown that the recipient

would li&el use it in a manner in"ol"ing unreasonable ris& of phsical harm

to himself and others

• Combined negligence of 29 peopleJJ

• Applies to anone who supplies a chattel for the use of another

o Sellers lessors donors and bailors

o #ot merel co;signing a document as guarantor without further

assistance

(he entrustor should kno$ risk $hen the;

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o e.g. author of a manual for murders stated he &new and

intended the boo& to be used to assist in &illing people First

Amendment issue6

4eys in the ignition ! (permitted) a third part to ac+uire chattel and

cause harm

• Car owner lea"es auto unloc&ed with the &e in the ignition. Thief

steals it and crashes into a third part. *n$ured part brings claim

against the onl sol"ent part car owner.

• Statutor liabilit ! courts split on whether the goal is safet ". a"oiding

costl police searches and insurance paments

• Factors to 5nd (special circumstance) where car owner has dut to the

general publico Area where par&ed ! dangerous6

o Time period ! o"ernight6

o Si4e of "ehicle ! capable of inIicting more serious harm6

o Di:cult of operating "ehicle ! not common eperience6

/ +uties of lando$ners and occupiers – Premises 2iability 2a$o A=rmati%e act of the possessor ! reasonable care under the

circumstanceso Condition of the property

*n$ur on land caused b ha4ard not owned b possessor no dut

• Lac&s power to correct the ha4ard

• nless danger was &nown then perhaps dut to warn based on

reasonableness3

Ma>ority – foreseeability• Standard of reasonable care for all lawful "isitors

o 1M states also include trespassers unless criminal or (Iagrant)

• Among the factors to be considered=

o Foreseeabilit and li&elihood of harm

o Purpose of entrance

o Circumstances of entrance time manner etc.3

o 0pected use of the premises

o %easonableness of inspection repair or warning

o Opportunit and ease of repair or warning

o -urden on possessor of pro"iding protection i.e. incon"enience

and cost3

ubstantial minority – status• Traditional "iew@ The possessorBs intent in etending an in"itation to

the "isitor determines the "isitorBs status and in turn establishes thelegal dut of care owed

• Status ma change depending on the speci5c purpose of the in$ured

partBs action at the moment when harm occurred

• Eudge decides status because dut is a +uestion of law

• 2icensee ! permissi"e entrance onto anotherBs lando *ncludes intangible bene5ts such as human intercourse

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o Dut to warn ! entrant must ta&e the propert as the possessor

himself does8 not entitled to epect an additional preparations

other than what the possessor would do for his own safet

• :n%itee ! permissi"e entrance with an in"itation that implies awarrant of safet deri"ing from the prospect of pecuniar gain

o Tpes

-usiness "isitors ! epectation of material bene5t from

the "isit Public in"itations ! in"itation etended to general public ".

limited classo Dut to inspect and ma&e safe the premises

'ust eercise reasonable care to protect against dangers

that the in"itee li&el would fail to protect against but are

&nown to the possessor or would be disco"ered upon

reasonable inspection 0penses and e?orts beond reasonableness must be

directl tied to commercial interest in the "isit 0lements

•

nreasonable ris& &nown or would be breasonable inspection

• Should epect in"itee will fail to protect himself

against it

• Failure to eercise reasonable care to protect

against ris&

• (respasser ! an non;permissi"e entrance onto anotherBs lando 0.g. wal&ing in a cit par& after closing hours

o There is a dut to not willfull or wantonl harm the trespasser

o 1enerally no a=rmati%e duty to $arn 7)2';

Possessor kno$s that people frequently intrude upon a

limited area of the land and may encounter a hiddendanger

• 0"idence of fre+uent trespass e.g. footprints36

• 0"idence that some danger was &nown and disregarded6

4no$n trespasser

Child trespasser

• Attracti"e nuisance doctrine ! broadl co"ers in$uries to

children who were unaware because of their immaturit of

ris&s associated with the propert

• Open and ob"ious danger mention in comparati"econtributor

negligenceo Plainti?Bs neg in failing to ta&e appropriate precautions for an ob"ious

dangero -T a dut eists if the land possessor could foresee danger to

entrant

• %ecreation statutes in almost all states limit owner liabilit on

recreationall used land to pre"ent suits in"ol"ing natural dangers


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• 0ntrant approaching an ownerBs front door Statutes generall hold the

entrant to be a licensee unless there is some "isible signal to the entrant

that indicates otherwise

o 2andlord/(enant 2a$ Traditionall landlord was liable onl for in$uries attributable to=

• Hidden danger in the premises of which the landlord but not the tenant is

aware

• Premises leased for public use

• Premises retained under the landlordBs control e.g. common stairwas3

• Premises negligentl repaired b the landlord

Toda housing codes and statutor pro"isions impose epanded dut

Criminal acti"it landlord has dut to ta&e reasonable protecti"e measures

to mitigate the ris& of intruders not an insurer of tenant safet Polic for imposing liabilit on landlord ! 5nancial inabilit and lac& of incenti"e

for tenant "ersus the pecuniar bene5t and control of the landlord

/ Parental :mmunityo Parents ma still ha"e immunit for negligence suits b children8 the standard

"aries b $urisdiction

Complete immunity ! bars neg suit8 unfettered parental discretion gi"endi?ering personal bac&grounds and beliefs

Palpably unreasonable ! ac&nowledges parentBs prerogati"e and dut to

eercise authorit o"er child8 immunit for parental conduct that is within the

eercise of ordinar discretion or parental authorit Reasonable parent ! whether parental conduct comported with that of a

reasonable and prudent parent in a similar situationo Polic

Disturb domestic tran+uilit -T in$ur to child more than law suit disrupts the

tran+uilit Danger of fraud and collusion -T present in all law suits

Depletes famil resources -T generall suit is not brought without a"ailableinsurance co"erage so immunit could actuall place a 5nancial burden on the

famil *nterferes with parental care discipline and controlJJJJ

o *nsurance ! subrogation clause allows insurance compan to litigate suit so as not

to pa damageso Fetal in$ur ! courts "ar on whether or not the treat as dif or the e+ui"alent of a

child alread born ni+ue situation ! still biologicall $oined to the in$ured part8 collateral social

impact

; 7o"ernment actor Ta&e note of potential immunit issue here but place in defenses

section

; )eg in?iction of emotional distress ! non;phsical interests harmed bunintended interference

o Physical impact All courts permit reco"er

Does not encompass phsical contact to disease

o +irect


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Risk of physical harm absent physical impact – ma>ority of courts

permit reco%ery @one of danger test allows reco"er for emotional in$ur for plainti?s

who b DBs neg conduct either sustain a phsical impact or who are put in the

immediate ris& of phsical harm

• 1. Qithin 4one of danger

o < ris& created b defendantBs neg conduct

o Foreseeabilit what ris&s could be epected

o Palsgraf plainti?JJ

• 2. %easonable fear for safet

o 'easured b an ordinaril sensiti"e person

o #o compensation for hpersensiti"e P (eggshell psche)

• ,. Se"ere emotional distress with phsical manifestations

o 0.g. potential phsical manifestations ! see&ing professional help

medical testimon regarding mental health hospitali4ation suicidal

preoccupations ner"ous brea&down miscarriage nausea aniet

weight lossgain 'C'P(:ority9

'motional distress implied e%en $ithout proof of physical impactfor;o )egligent mishandling of body parts or corpse

o )egligent transmission of death of a lo%ed one

• %ationale@ eceptional "ulnerabilit of the famil of recent decedents

ma&es emotional distress highl probable and remo"es concern of

fraudulent claims

• ncertain how much courts ma etend these but there are cases where

court included in this categor ! false positi"e communication of A*DS

and sterilit+iseases

Physical manifestations of disease – may reco%er• H*> ! ma$orit re+uire proof that the dirt needle actuall contained the

"irus8 a few courts allow reco"er for the window of time between e"ent

and negati"e test results

-indo$ Rule – Pre/impact u,ering• %eco"er for emotional distress of "ictim during the period of awareness

before death or serious bodil in$ur

• Period of awareness can be "er short

• 'ust pro"ide fact;speci5c e"idence of su?ering e.g. s&id mar&s seated

b wing of plane that brea&s o?3

• Death 0state ma sue under sur"i"al statutes for claims that could

ha"e been brought b decedent but for his deatho Polic regarding estates

For@ *llogical to den reco"er when feared harm came to pass

Against@ Persons recei"ing pament did not su?er that distress

o :ndirect Bystander – absent either physical impact or risk of physical

harm Often allowed e"ol"ing area of liabilit

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+illonPortee test

Distress su?ered b a close relati"e who witnesses the phsical in$ur

• Factors or elements depending on $urisdiction@

o Relation ! close relati"eo (emporal ! contemporaneousl obser"es

o 1ra%ity ! death or serious in$ur of a neg "ictimo Proximity ! near the scene of the accident

'an states do not re+uire all factors to be pro"en

• Child seual abuse ! parents might still reco"er because thecircumstances su:cientl assure distress was se"ere and genuine

• nmarried couples ! duration of relationship degree of mutual

dependence and emotional reliance etent and +ualit of shared

eperience members of same household6

• *n$ur to bab at hospital ! Standard for categori4ing parents as direct

"ictims or onl interested bstanders8 *f in$ur occurs during labor and

deli"er mother has action regardless of whether conscious or not

• Damage to propert ! most states den reco"er

• Pets ! ma be considered personal propert and thereb denied reco"er

but se"eral states ha"e enacted statutes against this antipath

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)egligence – Breach

; Ruestion of fact ! $ur ma&es the assessment

; 'easuring the standard of careo BP2 'conomic Assessment

) D B E P2 "egligence is proven when the cost of preventative is

less than the probability of in!ury multiplied by the degree of loss

• -urden of pre"ention ade+uate precautions• Probabilit ris& of in$ur

• Loss gra"it of in$ur

sed primaril for propert damage and weighing business $udgments but

ma also be factored into loss of lifelimb "aluations Polic criti+ue@ 13 Lac& of deterrence and 23 ignores moralit ! Cost;bene5t

formula allows potential tortfeasors to ignore &nown ris&s

o Reasonable person

Degree of care that would be exercised by a #$ of ordinary prudence

under like circumstances

• #ormal (standard) of communit beha"ior ! what ought to be done

• 0ternal and ob$ecti"e ! based on conduct without regard to state of

mind

'xceptions

• Common carriers public transit

o Dut of utmost care that human prudence and foresight can suggest

o %ationale@ because person is sub$ect to anotherBs control

o Criti+ue@ sub$ecti"it is inconsistent with the fundamental concept of

neg

• Dangerous instrumentalit

o Dut of highest care

o

0.g. safe&eeping a handgun• Superior attributes

o Asmmetrical liabilit < %P 9 actorBs sub$ecti"el superior +ualities

o 0.g. 'edical malpractice or Shaun Qhite

• Children

o %easonable child of similar capacit with li&e age intelligence and

eperienceo nless engaged in adult acti"it ! argue about what acti"ities should

be categori4ed as adulto Culture ! Foreign child without conception of another wa of life6

• 0mergenc trend #O3

o

%e+uired to ehibit onl honest eercise of $udgmento *ncreasing number of states appl %P standard because the standard

Ieibl factors in emergenc situations (in light of circumstances)

• Phsical disabilit

o %P under li&e disabilit

o #o liabilit if not foreseeable 9 wholl beond the actorBs control

o 0.g. stro&e that impairs consciousness does not ecuse liabilit

because onl (impaired)

• #OT insanit or mental de5cienc

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o Characteri4e the disabilit as phsical rather than mentalJJJ An

scienti5c e"idence that pro"ides proof of phsical element to

disabilit6o Polic@

>ague and unsatisfactor character of e"idence slipper slope

of ecusing liabilit and abilit to feign illness 'ental defecti"es li"e in this world and so should pa for damage

done 0ncourage careta&ers to closel monitor the defecti"e

o Criti+ue@

Lac& of personal and general deterrence ! realit that the actor

cannot conform conduct to the standard of care and so liabilit

does not impact future actions >icarious liabilit for careta&ers ! alread etremel epensi"e so

this standard is undul burdensome on careta&ers

• #OT ineperience for dangerous acti"ities

o Lac& of competence does not ecuse liabilit8 ris& must be borne b

the beginner rather than innocent "ictims

• #OT gender

o 'ost often argued in seual harassment cases

o Polic@ ine+uitable ". permissi"e of discrimination

Custom Aids in formulation of reasonableness via the general

expectation of society o #ote@ reasonableness is still considered under ALL circumstances

o #o need for speci5c notice to the particular defendant ! actor ma be

charged with &nowledge or neg ignorance

Applicabilityo % &airly well-dened and in the same eld

o ' #easonable ( what ought to be) not always in line with thegeneral average

o * $urpose of the custom is to avoid like in!uries

• Polic@ 13 has a direct bearing on feasibilit8 23 reIects the $udgment

eperience and conduct of man8 and ,3 ensures the court decision

would not impose great social costs to the industr

• #on;custom as a defense ! PBs suggested safer techni+ue is not common

&nowledge

• 0pert witnesses ! ma ha"e more general +uali5cations not necessaril

emploed within the precise industr whose practices are being

challenged ! purpose is to pre"ent letting the industr indirectl set its

own standards of reasonableness

o tatutes

Criminal liabilit does not determine ci"il liabilit

Applicability (C**G)

+s the purpose of the statute is to protect,

o .A// ( a class of persons) of which the plainti is one

o +"01#1/0 ( the particular interest being invaded

o +"23#4 ( against the kind of harm that resulted

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o #+/5 #1A01D ( against the particular hazard that caused the

harm6 based on foreseeability of the risk created by the

defendant7s conduct

• Still re$ected if obscure un&nown outdated or arbitrar such that it

would be ine+uitable to adopt it as a standard of reasonable care

',ect on litigationF three distinct $urisdictions• 'AEO%*TK negligence per sa@ if applicable "iolation of the statutor

de5nition of reasonable conduct is per se negligence unless some limitedecuse applieso 0ceptions@ $udge decides3

0mergenc

*ncapacit or inabilit to compl

*gnorance of an instantaneous fact causing "iolation

Compliance would be more dangerous

• '*#O%*TK e"idence of negligence@ neg is a permissi"e inference and the

statutor standard is considered alongside other circumstances of the

case

• , E%*SD*CT*O#S rebuttable presumption@ neg is presumed but "iolator

ma rebut b demonstrating the acted as a reasonable person Lac& of license ! generall not considered proof of unreasonable conduct

%ationale@ 13 not the cause of in$ur and 23 statutor purpose for licensing

is to protect against actions b uns&illed persons which necessaril

entails proof of negligence

Possible eception@ #K legislati"e enactment made the unauthori4ed

practice of medicine prima facie e"idence of negligence in personal in$ur

cases

/ Medical Malpracticeo &ailure to do something and unreasonable under the circumstanceso Higher standard of care but tempered b measuring reasonableness to others in the

same medical 5eld and depending on the $urisdiction perhaps similar localit.

#ational standard is more li&el to be in"o&ed if board;certi5ed.

o 0pert testimon

Admissibility ( any doctor with knowledge of or familiarity with the

procedure) ac8uired through experience) observation) association) or

education) is competent to testify %es ipsa

• 'edical epert testi5es that such in$uries do not occur in the absence of

neg

• Plainti? shows that all the potential causes of in$ur were under the

management and control of the defendants• Defendants possessed greater access to &nowledge about the cause of

in$ur than Po Residents held to same degree of care as phsicians ma$orit3

o If no special knowledge or expertise is re+uired reasonable person standard applies

o If there are two schools of thought about reasonable procedures ! phsician ma

appl either one so long as it is recogni4ed b a reputable number of medical

eperts e"en if in the minorit

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/ 3icarious 2iabilityo Theor of reco"er based on relationship to the tortious actor regardless of

reasonableness or whether the should ha"e &nown #O negligence elements

Criti+ue ! should re+uire a foreseeable and a"oidable act impling a choice

Holmes3

o Product liability

o

Parents #ot usuall "icariousl liable for child unless=• Failure to eercise control8 or

• Permitted child to do something beond the childBs abilit

o Respondeat uperior 5)eg or :nt9 1mployers are held liable for the negligent acts of their employees if

the employee was acting within the scope of employment 'lementsF

• % "egligent Act

• ' 1mployeeo 0mploee or independent contractor6 (SPAST*C)

SP0%>*S*O# ! etent to which emploer directs their actions6 PAK'0#T ! method of pament6 Lump sum or paroll6

ACT*>*TK ! distinct acti"it separate from emploer6

SG*LL ! le"el re+uired of the indi"idual6 Speciali4ed training6

T*'0 ! length of time hired for6 Concrete end date6

*#ST%'0#TAL*T*0S ! who supplies them6 -rought own tools6

CSTO' ! custom of the industr as to super"ision6

o *f a contractor emploer is not generall liable unless=

Peculiar risk

• Qor& in"ol"es inherentl dangerous acti"it or peculiar ris&

• Test@ contractor failed to ta&e appropriate precautions in light

of the ris&6• 0.g. ha4ardous waste disposal

)on/delegable duty of care

• A part will be held "icariousl liable when it possesses

substantial bargaining power in hiring emploees to ensure

competence while the in$ured part client cannot and does

not realisticall ha"e the abilit to negotiate and bargain on

the open mar&et for another pro"ider

• 0.g. cit maintains the roads

• 0.g. personnel at a hospital

Apparent agency

A principal may be liable to a third party for acts of itsagent which are within the agent7s apparent authority

!. Purported principal created the ob>ecti%e

appearance of an agency relationshipo Qords or actions &nowingl tolerates or permits3

Posted signs stating not an emploee6

%e+uired to sign a disclaiming form6

1


16/32

*. +etrimental reliance on that representation by a

third party

&. -ithin the scope of agentGs apparent authority

• * /cope of employment HemployerGs conduct must

o A9 1eneral kind of $ork employed to perform

o B9 -ithin special boundaries of employment

7eographic area6

Qithin the hours of emploment6

o C9 :n part to ser%e the interests of the employer 0mploer tacitl sanctioned the act6

Compan policies6

Assault ! not within scope of emploment #L0SS in$ur arose out of $ob;

related stimulus Hiring practices ! Anal4ed under negligence

• 0.g. bartender punched a customer unreasonable under the

circumstances because &nowledge of criminal record 9 hired for position

where he would be dealing with the public in a "olatile atmosphere *ndemnit ! 0mploer can see& to reco"er loss from the emploee

Polic

• Fairnesso Pre"enting future in$uries

o Assuring compensation to "ictims

o 0+uitabl spreading the losses

• Deterrence

o *ncenti"e to police oneBs wor&force

o *ncenti"e to consider alternati"es such as mechani4ation of tas&s

1


17/32

)egligence – Causation

; Actual cause o -asic connection between conduct and in$ur

o -urden of proof on plainti?

o Preponderance of e"idence standard ! more li&el than not DBs conduct caused PBs

in$ur

o But/for Cause Single Defendant

'ultiple necessar conditions

'ultiple competing potential causes

o Ioint and e%eral 2iability

Eoint tortfeasors are each wholl responsible for PBs in$ur

• P ma go after onl one of them to satisf $udgment

• 0ntitled to contributions from each other

o 'ultiple independent actors

Concurrent su=cient acts – ubstantial Contribution

• *ndep actors 9 either alone su:cient to cause harm 9 both caused harm

•*f #OT substantial ! cause is too insigni5cant to sub$ect D to liabilit

Alternati%e 2iability

• *ndep neg acts 9 onl one caused PBs harm 9 impossible to pro"e which

was cause;in;fact

• Small number of tortfeasors

• -urden shifts to defendants to pro"e who was at fault

• %ationale for forcing DBs to eonerate themsel"es

o All breached a dut to P

o Li&elihood that each ma ha"e caused in$ur is relati"el high

o DBs are ordinaril in a better position to determine who caused in$ur

o Should not eonerate DBs to PBs detriment

Market hare 2iability• P was in$ured b a fungible product 9 can show that all DBs produced the

defecti"e product -T the precise cause;in;fact manufacturer is

unascertainable all DBs held liable

• 0lements

o 1. Clear causal relation between product and harm

o 2. P unable to identif manufacturers

o ,. Fungible product

• 0culpation@

o Proof that D was not a participant in the common group acti"it

o #OT b showing his product did not cause the plainti?Bs in$ur

• Liabilit in proportion to each manufacturerBs (mar&et share at time ofin$ur)

• Fact 5nder determines applicable mar&et ma be=

o #arrowl de5ned ! to increase li&elihood of fault e.g. speci5c

pharmac3o #ationall de5ned ! corresponds with o"erall ris& of in$ur created to

the public

1N


18/32

• Asbestos ! problem with fungibilit8 asbestos < generic name for a famil

of minerals8 se"eral "arieties of asbestos 5bers 9 dif products containing

asbestos create dif ris&s

• Childhood "accines ! not held liable because of public polic goals

o 'ultiple cooperati"e actors

Concert of action – parallel conduct

• 0ach defendant directl participated O% tacitl assisted and encouraged

one another in the tortious conduct

• 7enerall=

o Small number of actors

o Short time span

• 0.g. Se"eral men 5re guns in PBs direction ! all are liable despite proof

that DBs bullet could not ha"e caused the in$ur because D &new the

others were acting tortuousl and encouraged them b doing the same 'nterprise liability

• *ndustr;wide standard and cooperation in defecti"e design

• 7enerall=

o Small number of producers

o #ot an area of close go" regulation

o Post hoc" ergo propter hoc

%ebuttable presumption of causation ! when a neg act increases the ris& of a

particular tpe of accident and such accident occurs D must come forward

with e"idence negating causation Three factors@ 1. Circumstantial e"idence8 2. %elati"e abilit of the parties to

obtain e"idence8 and ,. %eason to ha"e dif concerns about error fa"oring P

o"er Do Medical Malpractice

'nhanced risk ! where plainti? shows precursors or earl smptoms of the

disease

2oss of opportunity ! phsicianBs neg diminishes li&elihood of achie"ing amore fa"orable medical outcome8 usuall limited to malpractice suits in"ol"ing

death

/ Proximate causeo Legal cause scope of liabilit

o Anal4e unepected e"ents harms persons

o Ma>ority

(hreshold questions – both the plainti, and type of harm must

be foreseeable• Loo& at defendantBs conduct

• 1. Plainti? ! Qho was within the scope of the ris& created b defendantBs

conduct6o (Danger in"ites rescue) eception

*f D imperiled life of a third part and PBs in$ur resulted from

tring to help

• #o time to reIect and weigh

#atural and probable conse+uence of the danger

o #ot within scope no dut < Palsgraf plainti?

1


19/32

• 2. Harm ! Qhat tpe of harm could ou epect to occur due to

defendantBs conduct6

:f yes to both" + is liable for PGs in>uries including;

• 0ggshell Plainti?

o D must ta&e his P as he 5nds him and compensate for harm

etraordinar harm brought on b despite pre;eisting dormant

condition 0motional distress

• *f (ordinaril sensiti"e person) standard has been met

• P might reco"er greater damages than those foreseeable

because of preeisting phsical or mental conditionso %ationale ! P has right to li"e his life as he chooses and would not

ha"e eperienced that in$ur without DBs conducto Defenses@

*n$ur not eacerbated b DBs conduct

P wouldB"e eperienced in$ur later anwa8 in$ur onl

(precipitated) onset

econdary harm occurring concurrently or after +Gs conduct•

D ma be liable for further in$uries that would ha"e been a"oided absentDBs neg acts

• Qithin scope of the ris&6

o #O uperseding causes ! unforeseeable bi4arre e"ents which

cut o? liabilit Plainti?Bs culpable conduct can li&el be considered a superseding

cause Supreme Court holding@ no inconsistenc with comparati"e

fault here but limited to admiralt cases3o K0S :nter%ening causes ! foreseeable and donBt cut o? liabilito K0S Medical necessity rule ! ma&es conduct foreseeable as a

matter of law

Public polic matter ! necessar steps in securing medicalser"ices as a conse+uence of DBs conduct

#ormal e?orts of third persons in rendering aid which the in$ured

part reasonabl re+uires e"en if the helper acts negligentl DO #OT HA>0 TO FO%0S00=

• 'anner of how in$ur occurs e"en if highl unusual

• 0act conse+uences e"en if onl (small ris& of great de"astation)

o *f actor engages in conduct which entails a large ris& of small damage

and a small ris& of other greater damage from the same forces and to

the same class of persons !not relie"ed of responsibilit for greater

damage

• %elati"es of plainti? who ma bring suito Minority

*f there is foreseeabilit as to the neg conduct as anal4ed in breach then

liabilit etends to direct conse+uences regardless of whether those

conse+uences were foreseeable Polic@ nreasonable ris& conduct creates a (dut to the world)

Criti+ue@ lac& of deterrence because people cannot conform conduct to

unforeseeable ris&s

1


20/32

2M


21/32

)egligence – +efenses

; PLA*#T*FF ALSO CAS0D *#E%Ko A:rmati"e defense ! e"en if D was negligent P is also responsible for neglecting

some dut to himself o Parallels basic neg elements ecept based on PBs dut to (himself)

o Contributory )egligence total bar to reco"er

Onl a few states Limitations that bar D from in"o&ing this defense

tatutory “)o +uty Ruleso Qhere purpose is to protect some group against its own liabilit to

protect itselfo 0.g. statute re+uiring bus dri"ers to instruct students in crossing

street Iash red lights wait until safel crossed to mo"e ! purpose

understood as protecting school children from their own neg and

allowing this defense would thwart leg purpose

Reckless or intentional +

o Qhere DBs misconduct was more serious8 ma assert contributor

rec&lessness or contributor willful misconduct though

2ast clear chanceo Qhere P beha"ed carelessl for his own safet and got into a

dangerous situation -T D had and failed to use the last clear chance

to a"oid in$ur to Po Applies where either=

Jelpless peril

• P got into a position of helpless peril and was no longer able

to ta&e protecti"e steps

• D &new or should ha"e &nown of PBs plight while still able to

a"oid the harm b eercise of due care


22/32

o Allocation of fault based on

o P M at fault then ma reco"er 1M from D while D ma reco"er

M from P

• The rest are split between two "ariants that allow reco"er based on of

fault onl if PBs fault is (not as great as) or (no greater than) DBs faulto #ot as great as M P fault bars reco"er 'qual fault bar

o #o greater than 1 P fault bars reco"er 1reater fault bar

6ault

• Determined b eamining how responsible each part is for causing thein$ur not the amount of damage caused e.g. car swer"es and causes a

pile;up= the car did not directl cause the damage but is most at fault3

• *ncludes unreasonable=

o Assumption of ris& not constituting an enforceable epress consent

o Failure to a"oid in$ur or mitigate damages

o Product liabilit ! 'isuse of a product for which D otherwise would be

liable

(ypes of comparati%e apportionmentF

• #eg < neg 9 rec&

• Fault < neg 9 rec& 9 int

• %esponsibilit < neg 9 rec& 9 int 9 SL minorit but +uic&l mo"ing to

ma$orit3

Apportionment bet$een +efendants

• #eg D might be held more at fault than the *nt D D who is neg because

of failure to protect P from the speci5c ris& of an intentional tort is $ointl

and se"erall liable for the intentional tortfeasorBs share of fault

• Contribution ! emplos a comparati"e notion

• *ndemnit ! all;or;nothing reco"er e.g. %espondeat superior3

P engaged in criminal conduct $hen in>ured ! polic debate

• For allowing P to reco"er@o

PBs conduct does not impact his legall protected interestso Polic concerns against PBs conduct are best e?ectuated through

penal law

• Against reco"er@

o Lac& of proimate cause for PBs claim against D

o PBs "iolation directl resulted in the in$uries for which he wants

mone Medical cases ! PBs neg in originall in$uring himself is irrele"ant to doctorBs

liabilit for neg care Rescuers ! 'ost courts ha"e remo"ed special protection for rescuers who

were not barred from reco"er unless (rash or rec&less) because the social

"alue and altruistic moti"ations can be ta&en into account with determiningnegligence and comparati"e responsibilit3

+runk dri%er kills himself ! estate ma bring for decedent drun& dri"er

against the licensed "endor who supplied the alcohol8 some states also permit

neg entrustment action against persons who &nowingl loan the drun& dri"er a

car

; PLA*#T*FF 0AC0%-AT0D CO#S0R0#C0So A%oidable Consequences

22


23/32

P does not contribute to or cause original in>ury but exacerbates it

• Partial defense ! P not barred from reco"er but it reduces damages

• Dut to mitigate damagesJ

RecogniLed Risk 'xception P has no dut to undergo treatments in"ol"ing

a recogni4ed ris& does not ha"e to be signi5cant or e"en probable3= *ssue

with religious beliefsJJ Failure to use safet e+uipment e.g. safet belt helmet3

• (Anticipator a"oidable conse+uences)

• Statutor "iolation as well ! leg "ar in imposing ci"il liabilito >iolation inadmissible to encourage manufacturers to design

"ehicles safer3o Allowed small reduction to not prohibit reco"er if ma$orit

comparati"e fault3o Allow full reduction in reco"erable damages

/ Assumption of Risko Lead with the elements in analsis

D must pro"e A% b a preponderance of the e"idence

'ust be >OL#TA%K ! Choice of e"ils O% warning of ris& without reasonable

alternati"e < insu?

o 0press A%

-hen the parties expressly agree in ad%ance ) in writing 9hold-

harmless agreement: or orally " to release + from his legal duty to$ard

P and any prospecti%e liability Continues as an absolute defense e"en in comparati"e fault $urisdictions

because based on epress manifestation of consent through G 1. 0press and unambiguous6

• Speci5call related to the neg causing in$ur

• Courts generall hold that gross neg and rec& can are non;disclaimable

2. Does the agreement "iolate public polic6

• Trend – void against public policy • Factors determining polic "iolation@

o Tpe of business generall thought suitable for public regulation

o Performing ser"ices of great importance to the public often practical

necessito Holds himself out to the public

Qithin established standards6

-usiness;in"itee law6

o -argaining power ad"antage resulting from essential nature of the

ser"iceo Standardi4ed adhesion G

#o alternati"e reasonable option for purchaser to gain protectionfrom neg

*nformed onl upon arri"al after in"ested in trip

o Purchaser placed under sellerBs control as a result of the transaction

Plainti? lac&ed the &nowledge eperience and authorit

D had sole abilit to properl maintain and inspect premises train

emploees and guard against neg

• Also underling concern signee doesnBt understand what the are

assuming the ris&s of and ha"e a default presumption of safet and trust

2,


24/32

that D wonBt act neg ! has D gi"en a clear eample within the G to dispel

these concerns6

o *mplied A% generall #o epress language or agreement indicates the intentions or understandings

of the parties Sub$ecti"e tests based on PBs awareness of ris&s

o Primary :mpliedP kno$ingly encounters and impliedly assumes risks inherent in

activity #O -%0ACH OF DTK

• *ssue@ whether DBs legal dut encompasses the ris& encountered b the

P6

• #ot an a:rmati"e defense

Anal4e the particular circumstances@

• :nherent risks of acti%ity ! in$ur resulted from the "er ha4ard that

was in"ited and foreseen ". outside realm of anticipation6

• 1enerally accepted customs ! within normal practice of the acti"it6

• A$areness of risks ! prior eperience or time to acclimate and become

aware of ris&s6%ebuttal for P – trap for the un$ary

• Obscure or unobser"ed danger

• Too perilous to be endured

o #umber of similar accidents ". mass of total participants

o Some +uota of danger is permissible

Participants in sports – %olenti non Kt in>uria

• One who ta&es part in such a sport accepts the dangers that inhere in it

so far as the are ob"ious and necessar

• Eurisdictions ma modif either=o Dut of care ! liabilit onl for intentional or rec&less in$ur

o %easonableness standard ! adapted to circumstances Spectators ! limited dut rule for stadium not li&el liable unless in$ur

resulted from a neg defecti"e screen or willfulwanton conduct

o econdary :mpliedP kno$ingly encounters risks created by D7s neg

0lements

• 1. A$are of the dangerous condition

• 2. Appreciates the magnitude of the ris&

• ,. 3oluntarily encounters it Qhether the ris& was out of all proportion to the ad"antage which he is see&ing

to gain6 Eurisdictional split

• 1. Abolished A%

• 2. Complete bar to reco"er ! maintained it as a separate defense

• ,. 'erge with comparati"e neg most li&el ma$orit3

Dif from contributor negligence ! not ob$ecti"e ! based on eercise of free will

/ 1o%ernment :mmunityo Discretionar acts ! decisions in"ol"ing the eercise of reasoned $udgment

balancing of costs and bene5ts Completel immune

2/


25/32

o 'inisterial acts ! conduct re+uiring adherence to a mandator polic with acompulsor result *mmunit abrogated8 #OT0@ merel remo"e issue of immunit

do not necessaril ma&e go" action tortious

o Sources of liabilit Proprietary action ! go" displaced or supplemented traditionall pri"ate

enterprises e.g. hospitals3 although there has been a shift awa from this

distinction

Pro%iding ser%ices and facilities for the direct public use e.g.public highwas3

o )< duty to protect the general public from “external haLardso 'C'P(:


26/32

o Polic

#o general dut of police protection

• *nfringes upon separation of powers ! pro"ince of legislati"e

determinations8 should not foist $udicial $udgments upon another

institution acting within their const capacit

• *nstitutional competenc ! ac&nowledge di:cult duties imposed upon

police limited resources and inherent ris&3 so should defer to their

epertise and $udgments on ris&

• Qould ine"itabl determine how limited police resources should be

allocated without predictable limits to liabilit Criti+ue

• Compensation ! for personal in$ur 9 pa taes to recei"e protection so

should be liable

• #on;delegable dut

+amages

; Compensatory +amageso (o put the P in the position he $ould ha%e been in had the in>ury not

occurredo Decision;ma&ers

Eur ! +uestion of fact

• 'ust discount to present "alue ! if P in"ests mone prudentl to earn

interest su:cient to support future whole paout8 interest is taable Trial $udge ! ma grant a new trial or use remittitur or additur to change a

damage award if persuaded the "erdict is unacceptable as a matter of law

• %emittitur ! conditionall grants a new trial unless P consents to

reduction of award

• Additur ! conditionall grants a new trial unless D consents to upward

ad$ustment of award Appellate standard of re"iew ! must be so out of line with reason that it shoc&s

the conscience and necessaril implies passion and pre$udice in the decisiono Taation ! determined b Congress

Phsical in$ur ! not taable

0motional in$ur ! taable

o Statutor caps

*ntangible losses pain and su?ering ! recent trend to stri&e them down on

const challenge of separation of powers for encroaching on fundamental

$udicial prerogati"e of assessing $ur determination3 Total award for certain tpes of cases in a few states medical malpractice 9

go" units3

o Pecuniary – economic loss Past pecuniar losses < from time of accident to time of trial

• 'edical epenses ! doctors hospitals drugs

• 0arnings

Future < life epectanc standardi4ed table including factors li&e gender and

smo&ing habit

2


27/32

• Analsis to determine the U ears P would ha"e li"ed and wor&ed absent

in$uro 1. A"erage life epectanc tables and a"erage wor& career of

emploee in PBs 5eldo 2. 0"idence wh PBs particular lifestlecareer "aries from the norm

• 'edical ! e.g. drug costs how long course of treatment is epected

additional surger

• *ncome

o Lost future earnings ! if wor&ing at time of in$ur= *nIation6

Promotion6o Lost earnings capacit ! if unemploed= based on prior

emploment6o Loss of earnings opportunit ! if special opportunit for great

5nancial success= P must show had alread had access to it and

would ha"e succeededo O?set ! courts often declare the lost fringe bene5ts roughl e+ual to

decrease in wor&;related epenses

o )on/pecuniary – intangible losses

SO'0 L0>0L OF AQA%0#0SS %0R*%0D FO% %0CO>0%K• %ationale ! rests on legal 5ction that mone damages can compensate

for a "ictims in$ur so without awareness it lac&s solace meaning or

utilit to the in$ured person

• Parado ! the worse a person is in$ured the less li&el the ma be able

to reco"er

Pre;impact su?ering

Pain and Su?ering

• *nIiction of a negati"e eperience

• Phsical and emotional stress caused b in$ur

• Sub$ecti"e

• Anal4e@o Phsical pain ! e.g. se"erit of in$ur length of reco"er time

potential long;term conse+uenceso 0motional and pschological trauma ! e.g. scar on face causing

insecurit shoc& grief

Loss of en$oment of life

• Loss of a positi"e eperience

• Ob$ecti"e but with an element of sub$ecti"it with using proies to

anal4e en$oment

• 0motionall based not monetar epenses of acti"it

•

(The person reall lo"ed to do and now can no longer do becauseof D)

Loss of consortium and companionship

/ 3ehicles into court for estate" lo%ed ones" and beneKciarieso As a public polic matter courts create dut to allow reco"er

o Relationship losses – Both pecuniary and intangible losses Loss of consortium in$ur to marital interest

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28/32

• Depri"ation of ser"ices pecuniarJ ! "irtuall all states allow reco"er for

phsical loss

• 0motional harm to relationship ! some states allow reco"er for

intangible aspects of relationship Loss of companionship most states allow parent suit for se"ere in$ur or

death to child Loss of parental societ a few states allow minors who are dependent on

parent economic 9 5lial need for closeness guidance and nurture3

o +ecedent Plainti, Statutes enacted to re"erse common law refusal of a claim

Claims often made in con$unction in the e"ent that DBs wrongful conduct

resulted in the in$ured partBs death Sur"i"al action

• -rought b the estate

• -ased on in$ur to the decedent between the time of in$ur until death

• Permits reco"er for the entire cause of action decedent would ha"e had

if he had sur"i"ed

• %eco"er@

o Past lost income and medical epenseso Loss of en$oment of life

o Loss of life ! in some $urisdictions8 to compensate a decedent for the

loss of "alue he would ha"e placed upon his own life8 misaligned with

the purpose of compensator damages6 Qrongful death

• -rought b the bene5ciaries as determined b the stateBs wrongful death

statute

• -ased on in$ur to the bene5ciaries lost compan and support from

decedentBs death3

• 'an states ha"e eliminated or broadened the cap on these awards

• 7rief epert testimon6 ! for impact of wrongful death on the famil• %eco"er now includes pecuniar as well as non;pecuniar and puniti"e

damages in some states unless D dies before trial3

/ Medical Malpracticeo 'nhanced risk ! Eurisdictions "ar windows of probabilit re+uired

'a$orit ! 'ore li&el than not

'inorit ! M;2M chance of in$ur materiali4ing

%eco"er ma be impacted b a smaller window so could bene5t plainti? to

wait Two disease rule ! ma reco"er onl when the more serious disease occurs8

some allow emotional harm reco"er for fear of future disease

o 2oss of opportunity Proportional damages approach ! measured as the probabilit b which DBs

conduct diminished PBs opportunit to achie"e a more fa"orable outcome

• Purpose ! to fairl allocate costs and ris&s of in$ur and mitigate the all or

nothing rule

• 0.g. V1MMMMM leg lost where the chance of &eeping the leg reduced from

NM to M... loss of opportunit < 2M 1MMMM compensation would

be V2MMMM

2


29/32

'ost states grant full reco"er for cases in"ol"ing greater than M loss

/ Ioint and e%eral 2iabilityo >aring statutor changes in /M states recentl

o *f abolished P must sue all potential causes to recei"e full compensation because

indi"idual DBs are not liable past their share of faulto P might sue them together or separatel and reco"er the full etent of damages

against either oneo Contribution ! DBs ma assert a contribution claim against the other D in proportion

to their fault Comparati"e fault based on proportional cause no longer pro rata e+ual

shares3 *nsol"ent D ! places the whole burden of pament on a single D because

cannot see& contribution

/ Collateral ource Ruleo Flag when ou see gifts of mone charitable o?ering insurance co"erage

o %ule@ P in personal in$ur action ma still reco"er full damages e"en if the recei"ed

compensation for their in$uries from a collateral sourceo %ationale@

D should not reco"er windfall from the thrift and foresight of P

To encourage people to obtain insurance

'one partl goes to attornes so P would not be full compensated

o Subrogation clause ! standard in insurance policies which allows the compan to

litigate suit

2


30/32


31/32

:ntentional (orts

; 2egal (est ! Sub$ecti"eo 'ust be "olitional ! possible defense6

o 0stablished b either=

Desire to cause the conse+uences

Gnowledge to a substantial certaint of the direct conse+uences of his action

o

Proimate cause Can be foreseeable or unforeseeable

Direct conse+uences test liable for all in$ures resulting directl from the

wrongful act whether or not the in$uries could ha"e been foreseen b himo Puniti"e damages a"ailable if proof of malice

o Liabilit cannot be discharged b ban&ruptc

/ Battery – :ntentional in?iction of a harmful or o,ensi%e bodily C


32/32

• Di:cult in assuring actual harm occurred and speculati"e damage

measurement

• Certain amount of "erbal abuse is part of e"erda life

o Public 5gures and o:cials ma not reco"er for publications containing false

statements of fact made with actual malice8 e"en when moti"ated b hatred or ill;

willo Outrageousness standard

Totalit of the circumstances would o?end an a"erage member of the

communit and lead him to eclaim outrageousJ *mpermissible in political and social discourse ! inherentl sub$ecti"e

o Actual malice ! &nowledge that statement was false or with rec&less disregard as to

whether or not it was trueo 1st Am Const defense ! need to gi"e ade+uate (breathing space) to freedom of

speech Aspect of indi"idual libert

0ssential to the common +uest for truth ! free trade in ideas

o *ntentional interference with famil relationships

-ased on adulter 9 alleged against the third part in the a?air

'ost states abolished this cause of action through $udicial decision or (heart

balm) statutes 1. Alienation of a?ection ! outsiders through an means dri"e a wedge

between famil members 2. Criminal con"ersation ! seual intercourse of an outsider with husband or

wife

/ 'mployees (itle 3::o Protects certain classi5cations b forbidding emploers with 19 emploees from

discriminating in terms and conditions of emplomento Protected Categories@

7ender seual harassment

%ace or national origin

%eligion

#OT co"er seual orientation

o Tell emploee if ouBre the counsel ! donBt be late or insubordinate otherwise

summar $udgment granted for emploer because reasonable to 5re

o exual harassment 1ender Ruid pro +uo ! emploment bene5ts conditioned on seual fa"ors

Hostile en"ironment

• 1. nwelcome harassment in wor&place

• 2. Harassment is because of membership in a protected categor

• ,. Harassment is se"ere or per"asi"e enough to alter conditions of wor&

and create a hostile en"ironmento Ob$ecti"e reasonable person standard ! polic against reinforcing

stereotpes

• /. >icarious liabilit ! emploer &new or should ha"e &nown and too& no

action to remedo A? defense ! grie"ance procedures a"ailable and not used

o Should ha"e multiple methods of reporting or pre"ention

law school torts outline - spring 2012

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