Torts - Outline1. Torts: Introduction

a. Definition: civil wrongs other than contracts for which a remedy may be obtained usually in the form of damages, obligations people have that they have not agreed to. Non-criminal obligations or duties that all persons as individuals owe to all other individuals.

b. Purpose of Tort Law:i. Allocation of Losses to those who ought (fairness, justice, economic efficiency)

to bear them, decides what to do with transferring losses;ii. Compensation to persons for harm caused: Damages through $ aimed to

“restore” people to their original condition1. Compensation for losses caused by wrongful acts or omissions of another;2. Prevention of future losses and harm: deterrence, notice of what one will

have to pay foriii. Punishment/Admonition: primary purpose of Criminal Law, secondary purpose

of Tort Law.

2. Negligencea. Definition: Unintentional fault: the failure to exercise the standard of care that

a reasonably prudent person would have exercised in a similar situation; any conduct that falls below the legal standard established to protect others against unreasonable risk of harm, except conduct that is intentionally, wantonly, or willfully disregardful of others’ rights.

b. Liability without Fault:i. In order to be negligent the ∆ must have some control over the situation:

1. Cannot be an unanticipated illness which causes an act: a. Cohen v. Petty- must have a specific knowledge of the possibility of

fainting while driving for negligence.ii. Strict Liability: Liability that does not depend on actual negligence but is based

on an absolute duty to make something safe. 1. Ex) Spano v. Perini Corp.: there is strict liability for blasting

c. Elements of a Cause of Action for Negligence:

i. Duty: to use reasonable care, obligation to protect another from unreasonable risk of injury

ii. Standard of care: determines breach, RCUC: reasonable care under the circumstances

iii. Breach: failure to conform to the required standardiv. Cause in Fact: close causal relationship between action and injury, did the

breach cause the damage?v. Proximate Cause: limits liabilityvi. Damages: actual losses suffered, physical, financial, and emotional.

d. Negligence Formulai. Learned Hand Formula: not the law, can be chosen to be used or not used by

judges. *The formula is one way to help determine “reasonableness.” Cost benefit analysis:

1. P = Probability that an event will occur (children playing on a railroad turntable)

2. L = Injury, degree of harm resulting from the occurrence of an event (kid’s foot severed by turntable)

3. B = Burden, inconvenience or costs of taking precautions to prevent the occurrence (putting a lock on the turntable)

4. If B < P x L, precautions should have been taken. a. Krayenbuhl: a lock is a trivial burden and does not restrict the public

good of the railroadb. Gulf Refining v. Williams: the probability of a “rough bung cap”

causing an explosion after an employee notices it must be weighed against the seriousness of the possible consequences even if it is improbable: proof is “sufficient” to allow a jury to evaluate.

c. Carroll Towing: barge secured negligently, breaks and hits another barge which then sinks. Π argues that if bargee had been present, loss could have been prevented. -Creation of Learned Hand formula; B<PL so Δ was liable

e. Standard of Carei. The Reasonably Prudent Person (RPP): Reasonable care under the

circumstances (RCUC). The ∆’s conduct is measured against what the

reasonable, ordinary, prudent person would have done in ∆’s circumstances. Measured by an objective standard. Characteristics:

1. Physical Characteristics: the “reasonable person” is considered to have the same physical characteristics. Must take the same precautions which the ordinary reasonable person would take in with similar physical characteristics.

a. Physical characteristics are objective where human judgment is subjective.

2. ex) Blind man not negligent in walking to bathroom without cane and bumping into someone: was exercising reasonable care. Roberts v. Louisiana

3. Mental Ability: most courts treat mental conditions as irrelevant for negligence liability. Insane people are held to a level of sanity and people with mental disabilities are held to a level of normal intelligence.

a. ex) Vaughn v. Menlove: cannot hold ∆ to whether he exercised his best judgment in building a Hay rick close to neighbors property: the standard of reasonable care is objective and does not vary from person to person. Must be what a RPP would do.

b. ex) Breunig: Insanity is not a defense, even if it is sudden insanity, ∆ is judged by the standard of the reasonable person.

4. Same knowledge as average community members: must know what the average person in the community would know, this is an objective standard: does not consider the individual shortcomings of the ∆.

a. ex) Driving with worn is negligence as the average person would know not to drive with tires worn to the threads: Delair v. McAdoo

5. Emergency: An emergency is a special circumstance which can be used to determine RCUC. Most states allow jury to consider that the ∆ was acting under an emergency not of their own making. A ∆ acting under an emergency does not automatically exculpate them from liability.

a. ex) Cordas v. Peerless Transportation: Cab driver jumps out of moving cab when held at gunpoint, cab hits pedestrian: jury allowed to consider the emergency situation

6. Custom: Custom is admissible, relevant, and a possible ground for a conclusion of negligence or no negligence. Custom helps prove what a RPP would do.

a. ex) Low v. Park Price: ∆ car repair shop conformed to custom in parking car in lot then the transmission of car to be repaired is stolen: custom admissible to allow case to go to jury to be decided- not negligence as a matter of law.

b. Precedent may determine reasonable care under the circumstances: ex) Pokora v. Wabash Ry. Co.

ii. Professional Standard of Care: a person who is a professional has special skills (doctor, lawyer, airplane pilot) and is required to have the requisite degree of learning, skill, and ability of the ordinary member of the profession in good standing.

1. Expert testimony: must have expert testimony when a jury of layman cannot understand without assistance the nature of the work. π must offer expert testimony.

a. It is not enough for an expert to simply testify they would not follow the ∆’s practice: must show the ∆ practice did not conform with the standard of care of an ordinary member of the profession.

b. ex) Heath v. Swift Wing: must evaluate the conduct of the pilot in regards to what a reasonable pilot would have done using expert testimony.

2. Medical Malpractice: a. “Locality Rule”: Most jurisdictions use the rule of a “similar

community in similar circumstances” for establishing the standard of care.

i. ex) Morrison v. McNamara: DC doctors held to a national standard of care for administering urethral smear test: DC is an urban area with the highest level of medical practice.

b. To get to a jury the π must prove:i. a standard of care;ii. which the ∆ deviated from (proved through expert

testimony);

1. Exception: Expert testimony not needed when negligence of doctor is so egregious that a layperson can determine breach. ex) leaving a scalpel inside a patient during surgery.

iii. the conduct deviated from the standard of care in similar locales.

c. Informed consent: The requirement that a doctor must disclose all risks and information in order for the patient to make an informed decision regarding medical treatment/procedures.

i. Must be proven that adverse consequences did in fact occur and were not made known and that the patient would not have consented had they known of the risk.

1. Scott v. Bradford: patient undergoes hysterectomy, not informed of risk and says would not have consented had she known: this must be proven to be credible and was not in this case: the loss of free will is not enough to recover.

2. Moore v. Regents of UCLA: expands informed consent: surgeon uses patient cells after surgery for research, sells licensed cells developed from patients cells: physician must disclose personal interests unrelated to the patient’s health (economic) that may affect the physician’s professional judgment.

iii. Child Standard of Care: 1. Rule: Children generally held to standard of what is reasonable to expect

of children of like age, experience, and intelligence. A Subjective standard: tailored more specifically to the child.

2. Exception: a. “Inherently dangerous conduct” or “Adult activity”: children may be

evaluated based on a higher, adult standard of care if engaging in inherently dangerous conduct such as the operation of a motor vehicle.

i. ex) Robinson v. Lindsay: 13 year old drives snowmobile, tows girl behind him who loses thumb: should be held to adult

standard as conduct was “adult activity” and “inherently dangerous”.

f. Violation of Statute, Negligence Per Se:i. “Harm and Class Test”: A violation of a statute/regulation can be used to

establish negligence when:1. The statute is intended to protect a certain class of people (ex. patrons in

a bar); and2. the harm that occurs is meant to be protected by the statute (ex.

violence). a. Violation of a statute may occasionally substitute for RCUC. b. ex) Stachniewicz: Bar owner can be evaluated by jury for violating a

regulation prohibiting loud, boisterous conduct: fight ensues where π is injured.

c. ex) Ney v. Yellow Cab: cabbie leaves car running and unlocked on side of road, thief steals cab and crashes into the π, cabbie violated Traffic Statute and may be evaluated by jury to determine if violation caused the injury.

3. Exceptions: if π violates statute which contributes to an accident may not allow π to recover even if ∆ is also negligent ex) Herzog: travelling at night in buggy with no lights, car crosses line and crashes into buggy: the jury may not be given dispensing power over the violation of a statute as innocent or culpable.

a. Gen Rule: Defenses are unavailable to unexcused violations. If π meets the “harm and class rule” and the statute is violated, an excuse must be provided for violating the statute:

i. Zeni v. Anderson: woman walking on road on snowy day when sidewalk was covered in snow is violating statute that keeps pedestrians to sidewalks and is hit by a car: jury decides there was a sufficient excuse for the violation and she recovers.

g. Proof of Negligence:i. Circumstantial Evidence: an inference, (from fact X you deduce fact Y)

negligence can be proven without direct evidence using circumstantial evidence (ex. banana was brown/gritty).

1. Gen Rule: Must be able to establish on a more probable than not basis that reasonable jurors could find the π’s contention of negligence correct to get to a jury.

2. Banana Cases: use RCUC determining reasonable people do not leave slippery food on the ground where people will be walking.

a. Constructive notice: establishes the ∆ should have known of a condition. Was the banana on the ground for long enough for the owners of the train station to have known?

b. These cases use circumstantial evidence to establish negligence: look at color and whether there was dirt in banana peels to show the banana had been on the ground for long enough that ∆ should have known of the condition.

i. Constructive notice need not be proven when operating methods of a store are such that a dangerous condition is continuous or easily foreseeable. Jasko v. Woolworth: slipping on pizza in store.

c. Prima facie case: a case sufficient on the surface to support a jury verdict.

ii. Res Ipsa Loquitur: 1. Definition: rule of evidence that permits but does not compel an inference

of negligence under certain circumstances. “The thing speaks for itself”, the π may not know what actually happened but there is a permissible inference of negligence

a. ex) Byrne v. Boadle: π walking on street past ∆ shop, barrel of flour falls on him from the window above: prima facie evidence of negligence.

b. ex) Sullivan v. Crabtree: truck goes off road and crashes, driver cannot explain what happened, jury enters verdict for ∆: jury can infer negligence but is not compelled to find negligence using res ipsa loquitur.

c. ex) Ybarra v. Spangard: medical malpractice and res ipsa loquitur; π injured while unconscious for surgery (injury not related to surgery) multiple Δs and unknown instrumentality; patient π is allowed to go

forward without showing any one person responsible on inference of unreasonable conduct unless Δ can rebut

i. Ybarra is not a general rule.2. Requirements:

a. The ∆ must have exclusive control over the object in question;i. Larson v. St. Francis Hotel: π hit in head with chair in front of

hotel: could not prove hotel had exclusive control over chair: could have been guests.

b. The event would not have happened without negligence (no injury without negligence)

3. Cause in Fact:a. Definition: the cause and effect relationship between ∆’s conduct and π’s

injury or loss. b. “But-for” Test (Sin Qua Non): But-for the ∆’s unreasonable conduct, the

injury would not have occurred, must prove more probably than not that the conduct caused the injury. i. ex) Reynolds v. Texas Ry. Co: railroad does not light stairwell or provide

handrail and tells passengers to hurry up; π falls down stairs and is injured: court decides a reasonable juror could decide the negligence caused the injury.

1. The fact that the accident might have happened without negligence is not sufficient to defeat.

ii. ex) Gentry v. Douglas Hereford Ranch: π suing ranch where man fell near stairs with gun in hand and accidentally shoots woman: cause in fact cannot be proven as a matter of law that the negligently maintained stairs caused ∆ to trip.

iii. Concurrent Causes: The negligence of one does not preclude the negligence of another.

1. The “but-for” test applies when several acts combine to cause an injury that would not have happened without either act.

a. Hill v. Edmonds: truck parked protruding into road on a stormy night, driver not paying close attention crashes into it: both are negligent and each party is liable for all the damages. Each negligence is a cause in fact.

c. Substantial Factor: if there are multiple causes: ∆’s conduct has to be a “substantial factor” in causing the injury (not the “but-for” cause)i. Fire caused by ∆ railroad joins with another fire of unknown origin and

destroys π’s property: the negligence in the air is more important than the “but-for” cause.

d. Determining what Party Caused Harm when uncertain: when two or more people are negligent but it is uncertain which one caused π’s injury: burden of proof shifts to ∆s to prove their negligence was not the cause of injury. i. ex) Summers v. Tice: π hunting with two others, two men shoot towards bird

and π shot by one bullet, can’t determine more probably than not who caused

the injury: both men may be held liable and the burden shifts to ∆ to prove they did not cause injury.

e. Medical Uncertainty: courts will allow the plaintiff to recover for wrongful death from medical malpractice even if the patient probably would have died at the same time anyway, if the doctor's negligence significantly reduced the patient's chance of surviving. The jury has discretion to find the medical malpractice “caused” the death and award wrongful death damages.i. Herskovitz v. Group Health: misdiagnosed π’s cancer: ∆ already had a less

than 50% chance of survival but misdiagnosis reduced the chance of survival 14%: π can recover for damages caused by premature death.

ii. Enterprise Liability/ Market Share Liability: applies to DES cases: several jurisdictions allow for % of manufacturers market share to equal the % they are liable for when the π cannot prove what manufacturer was used. ex) Sindell v. Abbott Laboratories: court allows 6 manufacturers of DES drug to be held liable as they make up 90% of market of drug that may have caused cancer.

4. Proximate Causea. Definition: determines whether liability should be imposed where cause in fact

has been established. Deals with limitation of liability and deals with liability/nonliability for unforeseeable or unusual consequences of one’s acts. Must have both breach and cause in fact to apply proximate cause

b. Foreseeability: i. Of risk: whether the ∆ should have foreseen the consequences or type of

harm suffered by the π1. Wagon Mound #1: dock sues ship that releases oil that later catches on

fire: court finds no liability- not foreseeable that fire would occur from oil on water, no liability.

a. Wagon Mound #2: brought owner of ship damaged at dock, uses Learned Hand formula to find negligence. Foreseeability can be based on expense to eliminate risk. The ship owners did nothing to start the fire (dock owners were welding in #1)

2. “Egg Shell” Rule: the type of injury to the π need not be foreseeable, unforeseeability of injury to the person from a physical injury is allowed to establish proximate cause. ∆ must take π “as he finds him”.

a. Jeckovich: π has pre-existing psychiatric condition, involved in minor car accident and suffers complete mental breakdown: proximate cause established.

ii. Foreseeable Plaintiffs: 1. Palsgraf Test: (Cardozo): foreseeable zone of risk: π was not in the area of

risk (package falling could not be foreseen to pose a risk to π at end of station)

a. Andrew’s Dissent: Proximate cause should be based on public policy considerations and can’t be reduced to a single test (∆ should be liable for the direct effect of explosion as it was a natural and continuous sequence)

c. Directness Test: established if negligence directly caused injury; producing an unexpected/unforeseeable result does not relieve the negligent party from damage. Can see the action was a cause in hindsight. i. Polemis: Δ is liable for damage to a ship caused by fire, injury was not

foreseeable but liability flows because the consequences directly result from

act, plank falls into hold igniting gas fumes (more direct than Wagon Mound #1)

d. Intervening Causes: an intervening force is a new force which joins with the defendant's conduct to cause the plaintiff's injury. The intervening cause occurs after ∆’s conduct. Liability determined based on whether the intervening act was foreseeable (car driving into worksite, no barrier: yes)i. ex) Derdiarian v. Felix Contracting: where the act of a 3rd person intervenes

between ∆’s conduct (maintaining construction site) and π’s injury the causal connection is not severed.

ii. Superseding act: intervening force is superseding only when the act is extraordinary and breaks the causal chain: no proximate cause.

1. Intervening criminal conduct can be a break in the causal chain but is not always. Watson v. Kentucky RR: if man lit match intentionally then railroad that leaked gas is not liable.

2. Suicide does not automatically preclude liability as a superseding cause: a. Fuller v. Preis: minor car accident causes man to have seizures,

man kills himself : court allows driver involved in accident to be evaluated by jury.

e. Public Policy: must occasionally use policy arguments in limiting proximate cause

i. Enright v. Eli Lilly: can’t hold producer of DES liable for multiple generations: must confine liability within reasonable limits (those who ingest drug or are exposed to it): extending liability to multiple generations affected by DES could discourage research and withhold useful drugs.

5. Duty of Care6. Defenses7. Intentional Torts