Torts Outline

TORTS OUTLINE
I. INTRODUCTION TO TORT LAW A.
Prof. Wonnell Fall 2012
Law can generally be divided into Criminal Law and Civil Law; Civil Law can be further divided into Contract Law and Tort Law; Tort Law can then be divided into intentional and unintentional torts. Why tort law? 1. Torts are to compensate for injuries caused through normal courses of actions, and the desire is not to "stamp out" the actions altogether. 2. The purpose of tort law is to change behavior. We are trying to get people to behave differently than they are naturally inclined to. 3. A person who does not bare the risk of a particular activity or situation does not have the incentive to bear the burden to reduce the risk - tort law acts to serve this purpose. 4. There is a view of tort law that its primary purpose is of an instrumentalist/economic/utilitarian view in which serving the greater good and perform cost-benefit analysis. 5. There is also a view that tort law serves a corrective justice function. Economic Concepts 1. Pareto Efficiency A change is efficient if it results in a net increase to some (or all), and no one is made worse off (i.e. Net gain, no one loses). 2. Kaldor-Hicks Efficiency A change is efficient, regardless of whether or not someone suffers a net loss, as long as those who gain receive enough such that they could compensate the losers and still be better off (i.e. Net gain, regardless of losers). 3. Coase Theorem - If trade in an externality is possible and there are no transaction costs, bargaining will lead to an efficient outcome regardless of the initial allocation of property rights (i.e. legal rule).
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INTENTIONAL TORTS: INTERFERENCE WITH PERSONS AND PROPERTY A. Intent: To act with the purpose of causing a contact or apprehension or with knowledge that such contact or apprehension is substantially certain to be produced (i.e. intent = purpose or knowledge). 1. Diminished capacity (such as by that of children or adults with mental retardation or insanity) does not in itself disprove intent. Those with diminished capacity can be held liable for an intentional tort if intent of the actor can be established (Garret v. Dailey, Wash. 1955 Defendant 5 years, 9 months held liable for battery). 2. The actor need only commit the unlawful act with the intent to cause contact. Intent to harm or offend is not required. (Garret v. Daily The fact that the boy did not intend harm or know that harm was substantially certain is not relevant. The boy only must have intended or knew with substantial certainty that contact would result from his actions). 3. Transferred Intent: If an actor intentionally attempts to make contact with a particular person or property, but accidently makes contact with a different person or property, the intent to contact transfers from the intended to the actual target (Talmage v. Smith, Mich. 1894 the fact that the defendant hit, and thus injured, a different person than he intended does not absolve him of liability of an intentional act; Ranson v. Kitner, - a good faith mistake in which object the defendant intended to damage actually was does not absolve liability). Battery The actor acts with intent to cause harmful or offensive contact, or imminent apprehension of such contact, and harmful or offensive contact results either directly or indirectly from that act; Intentional contact in a manner that is harmful or offensive. 1. Brzoska v. Olson (Del. 1995) Treatment of patients by a healthcare provider that has a deadly disease, without any showing of harm or exposure to the disease, does not qualify as a "reasonable" harm or offense. 2. Fisher v. Carrousel Motor Hotel (Tex. 1967) Actual physical contact is not necessary, and contact with an object closely identified with the body is sufficient to establish battery. Assault A defendant acts intending to cause harmful or offensive contact, or an imminent apprehension of such a contact, and the other is thereby put in such imminent apprehension. 1. Western Union Telegraph v. Hill, Ala. 1933 An employee who made sexual comments at a patron and attempted to contact her did constitute assault, but it was not sufficient to hold the employer liable under respondeat superior because it was not within the scope of his employment.
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Conditional Threats A conditional threat is sufficient for assault if it places the plaintiff in imminent apprehension (e.g. Your money or your life.). However, conditional threats about future harm are not sufficient.
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False Imprisonment An actor intends to confine another within boundaries fixed by the actor, and his act directly or indirectly results in such a confinement, and the other is conscious of the confinement; Willful detention without consent. 1. Grant v. Stop-N-Go Markets, Tex. 1999 The court held that there were facts to support that there was willful detention of the plaintiff without his consent, and that the detention may not have been reasonable under the shopkeepers privilege. The summary judgment of the trial court was reversed and remanded for a trial. 2. Shopkeepers privilege Shopkeepers can detain a suspected shoplifter if there is a reasonable belief a person has stolen or is attempting to steal, the detention is for a reasonable time, and the detention is done in a reasonable manner. Intentional Infliction of Emotional Distress Extreme and outrageous conduct that intentionally or recklessly causes severe emotional distress to another. 1. Harris v. Jones, Md. 1977 Infliction of humiliation does not meet the requirement of severe. The severity of the emotional distress is not only relevant to the amount of recovery, but is a necessary element to any recovery. Mere insults, indignities, threats, and annoyances are not sufficient to establish IIED. 2. Courts are not reluctant to direct a verdict if they do not believe the conduct was extreme and outrageous, or if the emotional distress suffered was not severe. 3. Insurance companies have been held liable for IIED for cancellation of policies. (Liberty Mutual Insurance v. Steadman, the insurance company delayed authorizing payment for a lung transplant for 9 months with the hope that the plaintiff would die before it had to pay; Hailey v. California Physicians Service, the insurance company cancelled the policy claiming there was an omission in the application after it had to pay over $450k in medical bills following an auto accident). 4. Common Carriers (transportation services) and Innkeepers (lodging services) were held to higher standards with respect to IIED; insults could amount to IIED. However, courts have recently begun to reject the rule to hold common carriers and innkeepers to different standards. 5. The First Amendment protects against some forms of speech that may be harmful. The Supreme Court held that speech of public concern, including that related to political, social, or other concern to the community, is protected and not liable to IIED. Trespass to Land If a person intentionally enters land in possession of another person without permission, he/she has committed the tort of trespass 1. Possessors of real property have a right to exclusive possession. 2. If someone intentionally enters the land, but mistakenly believes it to be their own, they are still liable for the tort of trespass. 3. A trespass may be committed by the continued presence of an object placed on the land pursuant to a license or other privilege if the actor fails to remove it after the consent or privilege has been terminated. 4. Rogers v. Kent County Board of Road Commissioners, Mich. 1948 The failure to remove a stake placed on the plaintiffs property, upon consent of the plaintiff to build a temporary fence, was sufficient to establish trespass. Trespass to Chattels - Intentional interference with the personal property of others that is relatively minor, and only requires the defendant, if liable, to pay the value of the harm caused to the chattel. Harm must have been caused to the chattel for the defendant to be liable. Conversion Intentional exercise of dominion or control over a chattel which seriously interferes with the right of another to control it such that the actor may be required to pay the other the full value of the chattel. 1. The following factors are important to determining the seriousness of the interference: the extent and duration of the dominion or control; the intent of the actor to assert a right that is inconsistent with the others right of control; the actors good faith; the extent and duration of the resulting interference with the others right of control; the harm done to the chattel; and the inconvenience and expense caused to the other. 2. Intel Corp. v. Hamidi, Cal. 2003 The continued sending of anti-Intel e-mails by Hamidi, although unwanted, did not cause harm and did not result in any actual cost by Intel. Harm must be caused to the chattel, and absent proof of harm, the emails are lawful and did not constitute trespass to chattels.
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Umbrella Intentional Tort An actor who intentionally causes harm is subject to liability for that harm. This is an umbrella rule included in the Restatement of Torts. The Monster Intentional Tort The alien tort statute allows aliens (i.e. people from other countries) to sue for extreme intentional torts. 1. Abdullahi v. Pfizer, Inc., 2d Cir. 2009 Pfizer administered testing of a vaccine, Trovan, on children in Nigeria without informed consent that caused death to 11 children and severe defects in others. Pfizer was found liable because their acts violated a norm of international character, was a specific cause of action that is no less definite than the paradigms of the ATS, and was of mutual concerns to State.
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DEFENSES / PRIVILEGES A. Consent One consents to the acts of another, or to the consequences of those acts, if he/she is subjectively willing for that conduct or those consequences to occur. 1. OBrien v. Cunard Steamship Co., Mass. 1891 The plaintiff alleged that the ships surgeon administered to her a vaccine without her consent. However, the court held that the plaintiff's conduct demonstrates that, by her standing in line, holding out her arm, not protesting the vaccination, and using the vaccination certificate demonstrate her desire to be vaccinated. 2. Express Consent is willingness in fact for conduct to occur. It may be manifested by action or inaction and need not be communicated to the actor. 3. Implied The plaintiffs words or conduct reasonably caused the defendant to believe that the plaintiff had co nsented, they constitute apparent consent and are as effective as actual consent. th 4. Hackbart v. Cincinnati Bengals, 10 Cir. 1979 While it may be true that players consent to a reasonable expectation of injury based on the rules and customs of the game, acts that fall outside of the rules and customs of the game of football may be open to tort liability. Consent to the risk of injury for actions not within the scope of the game cannot be reasonably implied. 5. Christman v. Davis, Vt. 2005 If the plaintiff consists to a procedure, and the defendant surgeon performs a procedure, but does not go as a far as was originally intended, the fact that the surgeon performed less than was promised does not mean that the plaintiff did not consent since, in fact, the plaintiff consented to more than what was actually performed. 6. De May v. Roberts, Mich. 1881 The physician assisting the plaintiff in the birth of her child brought along a friend to assist him with his things. He did not inform the mother or father that his friend was not a medical professional, and given that the circumstances would allow one to believe that his friend was in the house for a medical reason, failure to disclose Mr. Scattergood's disposition constitutes fraud. The element of fraud nullifies consent. 7. Fraud Consent, if obtained by fraud, is nullified and cannot be used as a defense for an intentional tort. 8. Duress When consent obtained under duress (e.g. threats of physical violence, economic pressure such as loss of job), consent is nullified, and cannot be used as a defense (Grager v. Schudar, N.D. 2009 The court ruled that consent provided in a jailer/prisoner setting requires that the jury be instructed to consider the prisoner's ability to control the situation or to give consent to someone who has supervisory authority or disciplinary control over her. Consent is not a complete defense in this case). 9. Lack of Capacity Consent can be nullified when it is offered by adults with either temporary or permanent diminished mental ability, or by children. No fine line case by case basis. 10. Informed Consent For medical treatments, consent obtained without providing proper information as to the risks of the procedure or possible alternatives may render the physician liable. 11. Scott v. Bradford, Okla. 1980 To prove medical malpractice on the grounds of informed consent, the plaintiff must prove: 1) defendant physician failed to adequately inform of material risk prior to securing consent; 2) the plaintiff would have not consented if he/she had known of the risks; 3) the adverse consequences that were not disclosed to the plaintiff occurred and were a result of the treatment. Self Defense 1. By Force Not Threatening Death or Serious Bodily Harm An actor is privileged to use reasonable force, not intended or likely to cause death or serious bodily harm, to defend himself even if he believes he can avoid self-defense by retreating or otherwise giving up a right or privilege, or complying with a command with which the actor is under not duty to comply or which the other is not privileged to enforce by the means threatened.
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Courvoisier v. Raymond, Colo. 1896 The plaintiff need not have assaulted the defendant in order for the defendant to assert self-defense. It is only required that the defendant could have reasonably believed that the plaintiff intended to harm the defendant. By Force Threatening Death or Serious Bodily Harm An actor is privileged to defend his/herself against another by force intended or likely to cause death or serious bodily harm, when he/she reasonably believes that the other is about to inflict a contact that threatens death or serious bodily harm. This privilege holds even if he/she believes they can retreat if he/she is attacked in his/her place of dwelling, and the dwelling is not also the dwelling of the other; or by permitting the other to intrude upon or dispossess him/her of his/her place of dwelling; or by abandoning a lawful attempt of arrest. If someone provokes a fight or altercation, they may be barred from claiming self-defense.
Defense of Others Would be rescuers are allowed to intervene to assist a stranger, but they are not required to do so. 1. Type of Force The type of force allowed is the same as in defense of self as outlined above in by force not threatening death or serious bodily harm, and by force threatening death or serious bodily harm. 2. Mistake Some jurisdictions do not hold would-be-rescuers liable if they intervene in good faith, but they were mistaken. However, some jurisdictions will hold would-be-rescuers liable, stating that they intervene at their own peril. Defense of Property 1. Katko v. Briney, Iowa 1971 Defense of property does not justify protection that will likely result in death or serious injury such as the instillation of a trap gun. 2. Protection of property is allowed as long as the amount of force used is reasonable Use of force likely to result in death or serious injury is never justified for protection of property only. Recovery of Property One who discovers that another has taken his/her property may use reasonable force against another as long as the rightful possessor acted promptly in hot pursuit after dispossession or after timely discovery of dispossession. 1. Limits on Self-Help Must act promptly and only use reasonable force. Force likely to result in death or serious bodily injury is never justified. 2. Repo Man A buyer that purchases personal property (i.e. chattel) on a sales contract allows for the seller or lender, or authorized agent (repo man) to repossess the collateral if the purchaser defaults on payment. They may repossess the property as long as they do not breach the peace. Some jurisdictions interpret breach of peace to mean without the buyers consent, while others allow use of reasonable force. Necessity If a person is in a situation in which they must use anothers property, they can do so, but they must pay for any resulting damage. 1. Vincent v. Lake Erie Transportation Co., Minn. 1910 - Even if someone must, out of necessity, use or avail his/herself of someone else's property out of circumstances beyond his/her control, he/she is still responsible for any resulting damage. 2. If property is sacrificed to save lives or entire communities, liability for the harm is not imposed. Legal Authority Peace officers are not usually liable for harm caused to a person during a lawful arrest unless excessive/unreasonable force is used. However, damage to the person's property that occurred as a result of an arrest may be grounds for liability (Constitution prohibits the taking of personal property without just compensation). Also, an officer may be liable for harm caused if the officer did not have probable cause for the arrest. Disciplining Children - Parents have a privilege to use reasonable physical force in disciplining their children. Some states also recognize a school's right to discipline children, while other states expressly prohibit it. Justification An umbrella defense, usually up to a jury to decide. If a person is justified in their acts, they are usually not liable for a tort action. However, it is often up to a judge or jury to determine if a particular justification was reasonable based on the actions. 1. Sindle v. New York City Transit Authority The plaintiff argued that the trial court erred in allowing the defendant to present evidence that he was justified in taking the children to the police station. The appellate court held that because the defendant has the burden to prove it, justification is a defense that the plaintiff should be prepared to meet (no error).
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NEGLIGENCE
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Elements 1. Duty Everyone owes a duty to avoid causing physical harm to others. However, there is no duty to rescue. 2. Breach of Duty Requires that the defendant failed to act reasonably according to the standard of reasonable care. 3. Cause-in-Fact - That the defendant's negligent conduct had a causal connection to the harm suffered. 4. Proximate Cause Based on whether or not the harm was foreseeable. An actor cannot be held liable for harm done that was outside of the ability for a person to reasonably foresee the consequences of their actions (e.g. driver wrecks into the back of a truck carrying dynamite, which explodes causing millions of dollars in damage - even if the driver is negligent in causing the wreck, he/she is not the proximate cause of the millions of dollars of damage caused by the exploding dynamite because it was not foreseeable). 5. Harm Actual, tangible harm must be suffered (i.e. no intangible harm). General Standard of Care: Negligence Balancing 1. Lubitz v. Wells, Conn. 1955 Leaving a golf club in one's own backyard does not breach a duty to another. Court MAY have been stating that one does not owe a duty to prevent common objects from lying around in his own backyard. 2. United States v. Carroll Towing Co., 2d Cir. 1947 The hand test was formulated in that a risk-utility analysis helps to determine negligence. The Burden of adequate precaution (B) must be considered against the gravity of resulting injury or loss (L) and the Probability of loss occurring (P). The formula is B< PL. 3. Washington v. Louisiana Power & Light, 1990 Given that the burden far outweighed the risk (since it was not very likely or foreseeable that the accident might occur), the defendant did not owe a burden to the decedent to eliminate the risk. The risk of harm (PL) must outweigh the burden (B). 4. Juries - The (Near to) Almighty Jury: a. The courts rarely overturn jury verdicts. b. The appellate courts do not like to overturn jury verdicts because negligent cases are usually very fact specific, and the jury is the finder of fact. c. However, on occasion, courts do overturn jury verdicts as manifestly erroneous. Qualities of the Reasonable Person 1. Knowledge and Skills A person is held to the standard of common knowledge and skills, even if he/she does not possess the common knowledge or skills (Delair v. McAdoo - The defendant was expected to know whether or not the condition of his tires was hazardous, and the court ruled that because tires are a common item of knowledge, the plaintiff was not required to produce expert testimony as to their condition). 2. Emergencies People cannot be expected to act reasonable in emergency situations, but only as reasonable as an ordinary person would act under the circumstances (as stated in Cordas v. Peerless Transportation Co. in which a cab driver was not required to act reasonably when a criminal had a gun pressed to the back of his head and he leaped from his moving car). 3. Customs (Customary Practice) Serve as evidence as to whether or not someone deviated from a standard of care. When a defendant fails to conform to, departs from, or ignores an established level of due care (breach of duty) and this departure gives rise to suit (cause in fact and proximate cause), liability is established (as demonstrated in Trimarco v. Klein when a landlord failed to adhere to custom of replacing glass doors with shatter proof glass or plexiglass). 4. Physical Attributes Physical attributes of a person, including physical disabilities such as blindness, are attributed to the reasonable person to determine if that person, given their physical characteristics in the situation, acted reasonably (Roberts v. State of Louisiana a blind man was not negligent for accidently knocking down a man when he was not using his cane in public since he was following the custom of blind men, which is to use his facial sense while walking in a familiar place). 5. Mental Attributes Mental attributes, such as mental disability or incapacity are not taken into account in the reasonable person standard. This is a possible pocket of strict liability. The Restatement, Third, of Torts states that an actors mental or emotional disability is not considered in determining whether conduct is negligent, unless the actor is a child. Further, religion is not attributed to the reasonable person (Williams v. Bright The NY appeals court held that by considering the reasonableness of plaintiffs religiously motivated action did not treat her religion with neutrality and implicitly endorsed her religion she refused a blood transfusion that would have mitigated her suffering and the compensation required, but refused because she was a Jehovahs Witness). 6. Children Children under the age of 5 cannot be held liable for negligence. When assessing whether or not a child 5 years or older is negligent, the reasonable person is adapted to the standard of a reasonable youth given their age, mental capacity, and experience, unless the youth is engaged in an adult activity such as driving (Stevens v. Veenstra A 14 year
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old who was driving for the first time during drivers training and accidently drove onto a sidewalk striking a pedestrian. The court held because he was engaged in an adult activity, that he was to be held to the same reasonable person standard as any other adult driver). Professionals Professionals are held to the standard of care that a reasonable professional in their field would or should adhere to (i.e. usually the custom of practice). However, if the customary standard of care is not sufficient, a court may rule that following the custom is negligent (Helling v. Carey There was reason to believe it was necessary to administer an eye pressure test to determine if the plaintiff had glaucoma. Given that the eye pressure test is relatively cheap, painless, and efficient, there was no need not to administer the eye pressure test. What "ought to be done is fixed by a standard of reasonable prudence whether it usually is complied with or not" The fact that the ophthalmologist followed the standard of care of only administering eye pressure tests to people over 40 does not prove he was not negligent).
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Judicially Determined Standards of Care 1. Courts Utilizing Risk-Utility Balancing to Decide Cases as a Matter of Law Courts can rule against negligence as a matter of law if they do not believe the facts support the claim. a. When the design of a product seeks to maximize utility and attempts to eliminate as much risk as possible, the design is not negligent (Timpte Industries v. Gish Given that the risk of someone climbing on top of the trailer against the warnings of the manufacturer is low, and that the top two rungs of the latter acted as safety measures in other instances, and that the top two rungs of the latter were designed with functional utility to allow for more efficient storing of the commodity to be transported, the design was not negligent as a matter of law, using B > PL). 2. Courts Utilizing Safety Statutes to Set Specific Standards of Care: Negligence per Se a. Evidence of Negligence When courts allow a law prohibiting a specific act to be admitted as evidence of negligence when the person (plaintiff or defendant, since it can be a claim or counterclaim) does not act in accordance with that law. This is used in some states. b. Presumption of Negligence When the courts presume an act to be negligent, i.e. creates a prima facie case, when the actor acts in defiance of a law prohibiting the act. The actor can present evidence of a justification or defense, which is judged on a standard of reasonableness. This is used in some states. c. Negligence Per Se When the courts deem an act to be negligent when the actor acts in defiance of a law prohibiting the act. This usually requires that the harm caused must be the harm that the statute attempted to protect against, i.e. protected class of person, and the person harmed is in the protected class of persons the statute sought to protect. If the legislature didn't consider a particular harm by a prohibited act, doing the prohibited act which results in a harm that was not considered by the legislature is not recognized by the courts as negligence per se. i. Martin v. Herzog When a car struck a buggy as they were going around a curve in opposite directions, the court ruled that the buggys failure to have lights was negligence per se because the legislature intended to prevent the exact harm that occurred (e.g. buggies being struck by cars), and the people involved were included in the protected class of persons (e.g. people in buggies and people in cars). ii. Reque v. Milwaukee & Suburban Transport Corp. The court ruled that a buses failure to stop within 12 inches of a curb was not negligence per se. To establish negligence per se, the violation of the law must have caused the risk that the law sought to avoid. Because the law sought to avoid parked vehicles being partially in the street blocking traffic and/or causing accidents with moving traffic, and not to make it easier for people to get on and off of buses, it does not constitute negligence per se. iii. Negligence per se, if applied, cannot be defeated on the grounds that the actor was reasonable in complying. This would negate the purpose of negligence per se, and render the question was the defendant reasonable? The excuse must be of a higher standard. d. There are, generally, five categories of defenses/justifications that can excuse negligence per se. Per Impson v. Structural Metals, the five categories of excusable violations are: i. Incapacity of the actor; ii. The actor does not know nor should have known of the occasion for compliance; iii. The actor is unable to comply after reasonable diligence or care (impossibility); iv. An emergency situation not due to the actor's own conduct; v. Compliance would cause a greater risk of harm to the actor or others.
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Statutory Private Rights of Action: Express or Implied On some occasions, a private right of action is stated directly in a statute, or are structured such that courts can imply a private right of action. If a private right of action is not expressly stated, such as in The Consumer Product Safety Act, it can be implied using a four-step test: a. The plaintiff must be a member of the class for whose special benefit the statute was enacted. b. There must be indication of legislative intent to create a private right of action. c. The private right of action must be consistent with the purpose of the statute. d. The plaintiffs cause of action must be one that is not traditionally relegated to state law. Later cases modified the Cort test, making the question whether or not the legislature intended to create a private right of action (i.e. a matter of statutory construction).
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Proof of Negligence: Res Ipsa Loquitur This doctrine allows for a plaintiff to recover for damages of negligence even though they cannot prove the exact element of causation that caused the harm. For example, if a decedents relatives brought suit for a plane crash, they need not prove that the pilot of the airline was defendant in a particular act, which, absent some excuse, the act was negligent because planes are not supposed to crash. 1. Restatement, Third, of Torts - 17. Res Ipsa Loquitur: The factfinder may infer that the defendant has been negligent when the accident causing the plaintiffs physical harm is a type of accident that ordinarily happens as a result of the negligence of a class of actors of which the defendant is a relevant member. 2. Res Ipsa Loquitur is a form of circumstantial evidence, but implies that the court does not know and cannot know what actually happened in the individual case to cause the accident. 3. Singh v. United Cerebral Palsy of N.Y.C., Inc. Singh was injured when an automatic door slammed shut on her, which was owned by the defendant. The court stated that to apply res ipsa loquitor, the plaintiff must establish that the event 1) was of a kind that "ordinarily does not occur in the absence of someone's negligence; 2) was caused by an agency or instrumentality within the exclusive control of the defendant; 3) was not due to any voluntary action or contribution on the part of the plaintiff. 4. Ybarra v. Spangard After surgery, Ybarra had suffered pain, paralysis, and atrophy in his shoulder and right arm. The court held that it was sufficient that the plaintiff can show an injury resulting from an external force applied while he lay unconscious in the hospital. All of those defendants who had any control over his body or the instrumentalities which might have caused the injuries may properly be called upon to meet the inference of negligence by giving an explanation of their conduct. 5. Sullivan v. Crabtree The court stated that res ipsa loquitur can take three different procedural forms: a mere inference for the jury to accept or reject; a rebuttable presumption that the defendant is required to produce some reasonable evidence; or a presumption that shifts the burden of proof onto the defendant. The court held that most cases, including this one, only require an inference of negligence, and that the stronger procedural effects are reserved for cases that warrant a stronger inference based on the strength and weight of the facts.
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V. ACTUAL CAUSATION A.
But-for-Causation - The harm caused would not have occurred but for the defendant's negligent act. If the plaintiff's harm would have occurred even if the defendant had not acted negligently, then the defendant's negligence did not actually cause the plaintiff's harm. The "but for" cause is limited to actions in which an increase in harm was known or should be known to the defendant BEFORE THE ACT. 1. Perkins v. Texas & N.O.R. (La. 1962) A speeding train struck a vehicle that ignored a signal and entered the tracks. The court found for the defendant as a matter of law due to lack of causation because there was no evidence provided by the plaintiff to show that the collision, more likely than not, would not have occurred. 2. Ford v. Trident Fisheries Co. Plaintiffs intestate was a mate on defendants boat, and fell overboard and drown. The court held that the defendant was not the but for cause because the defendants negli gent keeping of its life boat was not the cause of death since no one could see where the intestate was in the water and the life boat would not have been able to save him. 3. Reynolds v. Texas & Pacific Ry. (La. 1885) The defendant contested judgment against it because, defendant argued, the plaintiff was overweight and may have slipped and fell on their stairway regardless of proper light. The court held that the defendants negligence greatly multiplied the chances of an accident, and is of a character naturally leading to the occurrence of the accident, so the mere possibility that it might have happened without the negligence is not sufficient to break the chain of causation. 4. Failure to Warn - If risks of harm are generally obvious to reasonable people, no duty to warn exists. There is a causality question, "Would it have made a difference if you were warned?" There is a presumption that if a warning would have been made, it would have been headed. This presumption, however, is rebuttable. Was the Defendant's Conduct Capable of Causing the Plaintiff's Harm? 1. Kramer Service, Inc. v. Wilkins (Miss. 1939) The defendant appealed a judgment based on improper jury instruction because the expert doctors, when considered most favorable to the plaintiff, only established a 1/100 probability between the trauma sustained by the plaintiffs negligence and the cancer that later developed. Therefore, considering that the experts established that the cancer was not, more probable than not, caused by the trauma, the trial court should have allowed the jury instruction. 2. Small probabilities are difficult to prove. The court wants the plaintiff to demonstrate that the harm or injury suffered by the plaintiff was caused more probable than not by the defendant. 3. Difficulties with Probabilities include: a. A mere increase in likelihood is not sufficient to establish causation on a "more probable than not" standard. b. The increase in a probability, for it to be considered to have caused the harm "more probable than not," must double the background rate. For example, if there is a background rate of a particular disease that is 1 per 1,000, it would be necessary to prove that the defendant increased the rate to MORE THAN 2 per 1,000 for the defendant to have caused a particular plaintiffs harm more probable than not. 4. Frye Test This test for scientific evidence was whether or not the theory was generally accepted in the field. The US Supreme Court found the test to be overly restrictive (for federal courts). 5. Daubert Test This test for scientific evidence is whether the evidence is "scientifically valid evidence." The factors of scientifically valid evidence include: a. Whether the theory or technique in question can be and has been tested. b. Whether the theory has been subjected to peer review and publication. c. Whether the theory the theory its known or potential error rate. d. The existence and maintenance of standards controlling its operation. e. Whether it has attracted widespread acceptance within a relevant scientific community. f. "The inquiry is a flexible one, and its focus must be solely on principles and methodology, not on the conclusions that they generate." Courts are cautioned against admitting "speculation, conjecture, or inference that cannot be supported by sound scientific principles." 6. Rider v. Sandoz Pharmaceutical Corp. (11th Cir. 2002) The evidence provided does not satisfy the Daubert rule because there are too many gaps in the causal argument. First, the fact that the drug is in a broad class with other drugs, some of which cause the harm does not mean that, without proof, this drug causes the same harm. Second, animal studies, without a showing of why the effects in animals are analogous to humans, do not prove the harm. Third, the fact that the drug may cause a different type of stroke (ischemic stroke) does not demonstrate it may also cause a different type of stroke (hemorrhagic). The plaintiffs' evidence would require the court "to make several scientifically unsupported 'leaps
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of faith' in the causal chain. Courts must scrutinize the evidence, especially of the cutting edge variety because law does not lead science. State Courts - Frye or Doubert? Some states use the Doubert standard, while other states use the Frye test. Some states don't subscribe explicitly to one standard, but all states scrutinize scientific evidence before allowing it in court. Herskovits v. Group Health Cooperative of Puget Sound (Wash. 1983) It was proven that the defendants negligence in failing to diagnose lung cancer reduced the decedents chances of survival, even though the decedents chance of survival, even with proper diagnosis, would have been less than 50%. The court held that the reduction in the decedent's chance for survival is sufficient to allow the jury to consider that the physician's failure to timely diagnose the illness was the proximate cause of his death. Majority opinion focused on whether or not negligence was a substantial factor. The minority concurring opinion focused on the loss of a chance of survival as the harm rather than the actual death. Loss of Chance or Increase Risk of Harm - A majority of jurisdictions allow loss-of-chance claims to reach the jury even when the plaintiff cannot prove that the defendant was, more likely than not, the cause of plaintiff's harm. Some state legislatures have eliminated or restricted the availability of loss of chance recovery. However, the loss of chance recovery has been limited to medical malpractice because there is a contractual relationship between patient and physician (or physician's employer), good empirical evidence available about statistical probabilities of the lost opportunity, and frequently the consequences of the physician's negligence will deprive the patient of a less-than-50-percent chance for recovery.
C.
Two or More Negligent Actors Concurrently (or Successively) Cause the Plaintiff's Harm 1. Hill v. Edmonds (N.Y. 1966) The defendant left his truck parked in the middle of a street on a stormy night. The court held that, "assuming, arguendo, that [the driver of the car] was negligent, the accident could not have happened had not the truck owner allowed his unlighted vehicle to stand in the middle of the highway. Where separate acts of negligence combine to produce directly a single injury each tort-feasor is responsible for the entire result, even though his act alone might not have caused it." 2. Indivisible Harm & Joint and Several Liability When harm required the negligence of more than one actor to bring about the harm caused. When two or more negligent parties acts result in an indivisible harm, the plaintiff can sue either negligent defendant for full liability, i.e. the negligent actors are jointly and severally liable (unless it is a contributory fault state). 3. Kingston v. Chicago & N.W. Ry. Two fires, either of which would have burned the plaintiffs property, converged and jointly burned the plaintiffs property. The defendant argued that their negligence was not the but for cause because the other fire would still have burned the plaintiffs property. The court held that the defendant was liable because any one of two or more joint tort-feasors whose concurring acts of negligence result in injury are each individually liable for the entire damage resulting from their joint or concurrent acts of negligence. 4. Substantial Factor Was used (or meant to be used) to hold people liable when there are two more acts that contribute to harm. Because each person's act was sufficient to cause the harm (or some of the harm), his/her acts were a substantial factor in contributing to the harm. 5. More About Joint & Several Liability When there are two more actors that are negligent, if there is a way to apportion the damages (i.e. the damages are divisible), the liability can be apportioned between defendants. However, defendants who are jointly liable can be joined in a single action, although a plaintiff is not required to join them. Also, defendants who are severally liable are each liable in full for the plaintiff's damages, although the plaintiff is entitled to only one total recovery. Joint and several liability arises under two occasions: 1) The defendants acted in concert to cause the harm; or 2) When the defendants acted independently, but caused indivisible harm. 6. Indivisible Harm Revisited: Good Bye to Substantial Factor Restatement, Third, of Torts, 27. Multiple Sufficient Causes: If multiple acts occur, each of which alone would have been a factual cause of the physical harm at the same time in the absence of the other act(s), each act is regarded as the factual cause of the harm. When One of Several Negligent Actors Clearly Harmed the Plaintiff, but We Can't Tell Which One 1. Summers v. Tice Two actors negligently fired their shotguns in the direction of the plaintiff, but the plaintiff could not determine which gun caused the harm. The court held that when two or more persons are the sole cause of harm, and the plaintiff has introduced evidence that the one of persons is responsible, the defendant can recover from either of them. The burden should shift to the defendants to determine which of their acts is responsible. The court reasoned that the defendants are better suited to introduce evidence to defend their selves, and an action should be taken amongst the negligent parties to apportion liability. The plaintiff should be able to recover damages.
D.
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2.
3.
4.
5.
According to the Summers v. Tice decision, the courts condone imposing liability on actors who we know did not actually cause the plaintiff's harm because otherwise we would let the one who did it off the hook. This is equivalent to parents punishing both kids for something that they know one or the other did wrong, but do not know which one actually did it. Sindell v. Abbot Laboratories (Cal. 1980) The plaintiff argues that she should be able to bring an action against a group of negligent parties when it is probable that one of them are responsible for producing the DES provided to her mother that caused her cancerous side effects, even though she does not know which one. The court held that it is reasonable [in the context of DES] to measure the likelihood that any of the defendants supplied the product which allegedly injured plaintiff by the percentage of their market share. If the plaintiff joins in the action the manufacturers of a substantial share of the DES, the injustice of shifting the burden of proof to defendants to demonstrate that they could not have made the substance which injured plaintiff is significantly diminished. Further, each defendant should be held liable for the damages in proportion to their market share (at the time the drug was taken by her mother). Market Share Approach For DES cases, courts adopted a market share approach in which, as long as the defendants named in the suit made up a "substantial share" of the DES market, the group of defendants could be held liable even if the plaintiff could not prove that any one of them was to blame for the harm suffered. Each defendant was held liable for the proportion of the judgment represented by its share of that market unless it demonstrated that it could not have made the product which caused the plaintiff's injuries. Courts have overwhelmingly rejected the use of the market share approach in other areas. Reasons Market Share Approach was used in DES cases: a. DES was a generic drug with the same dosage utilized by women for a short period of time during their pregnancy. b. The types of injuries that resulted in their daughters were unique, i.e. signature injuries. c. Young women rarely contract cancer of their reproductive system. d. There was not much variation in the production of the drug, the dosage utilized by the women, the amount of time the women used the drug, or the type of injuries suffered, which meant that the causal link from the drug to the harm was more easily established. The only problem was attributing it to a specific manufacturer.
VI.
PROXIMATE CAUSATION Pertains to the relative distance, both geographically and in number of links in the causal chain, between the but-for cause and the harm. A. Liability Limited to Reasonably Foreseeable Consequences 1. Marshall v. Nugent (1st Cir. 1955) The defendants, Socony-Vacuum Oil Co., driver negligently drove on the wrong side of the road, causing a car to skid out of control. The passenger of the car was struck when he got out of the car and attempted to warn oncoming traffic. The defendant disputed liability because defendant believed its driver was not the cause of the harm. The court held that the extra risks created by the defendant's negligence were not all over at the moment the initial collision was avoided, and the plaintiff was still at risk until the car was able to be moved safely from harm in the middle of the street. The defendant was liable because the harm was within the scope of foreseeable harms that may result from negligently driving in the wrong lane. 2. Demers v. Rosa (Conn. App. Ct. 2007) A police officer slipped and fell on ice while responding to a call about a roaming dog. The dog did not do anything that directly caused the officer to slip, but the officer argued the dog owner caused the harm because, but for the owners negligence in allowing the dog to roam, he would not have been standing on the ice where he slipped. The court held that the owners negligence was too remote and trivial because even if it is reasonably foreseeable that a police officer responding to a call on a snowy and icy day may become injured through a weather related incident, this argument would include any type of harm sustained in the midst of responding to a call during inclement weather. 3. The Third Restatement and Proximate Cause, 29. Limitations on Liability for Tortious Conduct: An actors liability is limited to those harms that result from the risks that made the actors conduct tortious. 4. Foreseeability An event is never foreseeable in its precise detail. Likewise, a very broad description of harm is almost always foreseeable. However, the best way to think about foreseeability is that if you were to describe a list of reasons why one should not be negligent in a particular situation, the harm caused would be in one of those categories. A foreseeable harm need not be the "main" reason that a person should not be negligent in a particular circumstance; it can be a secondary reason. If the way in which the defendant's negligence caused the harm to the plaintiffs is "weird," then sometimes he is not liable. 5. McCahill v. New York Transportation Co. (N.Y. 1911) A taxicab driver, employee of defendant, negligently struck the decedent causing a broken thigh bone and injuring his knee. The doctors testified that the injuries suffered by the
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accident could not have caused the decedents death, but the accident hastened the decedents delirium tremens (a pre existing condition from the decedents alcoholism). The court held that the defendant takes the plaintiff as he finds him, and that the defendant is responsible for the resulting death, even if death would not have been caused by the injuries alone caused by defendants negligence. The fact that the defendant hastened the condition of the decedent is sufficient to hold the defendant liable for all damages. 6. Thin Skulls and Fragile Psyches The thin skull or egg shell skull doctrine states that the plaintiff must take his defendant as he finds him. The fact that a normal person would not have suffered the amount of harm that the particular plaintiff suffered as a result of the plaintiffs fragile state does not absolve the defendant from liability of the abnormal harm. The law draws a categorical distinction between foreseeability of causing harm versus the magnitude of the harm. Once harm has been caused, the foreseeability of the magnitude does not matter. Also, if someone suffers less injury than a usual person because they have a "rock hard" skull, the defendant would not be liable for more damage than would actually be suffered. 7. Negligence Per Se and Proximate Cause Courts recognize a proximate causation requirement in negligence cases involving conduct that violates safety statutes. In Larrimore v. American National Insurance Co., there was a safety statute that prohibited the laying out of poison. When the owner of a coffee-shop accidently left out rat poison, it caused an explosion when the chemicals got too close to a burner. The court held that the risk of explosion was not the sort of risk that the statute was intended to protect against, and thus the proximate cause link between the negligent conduct and the plaintiffs harm was missing. 8. Palsgraf v. Long Island R.R. (N.Y. 1928) Palsgraf was injured by a set of scales knocked over by exploding fireworks, which occurred when one of the train attendants tried to assist a man onto a train, and accidently knocked a box out of his hands that was wrapped in newspaper. a. Palsgraf Majority (Cardozo) opinion: If no hazard was apparent to the eye of ordinary vigilance, an act innocent and harmless did not take to itself the quality of a tort because it happened to cause harm. Also, even if there was a tort, it would be against the holder of the package against invasion of his person, but it does not transfer to one who is remote to the potential of danger given the orbit of the danger as disclosed to the eye of reasonable vigilance. No breach of duty occurred. b. Palsgraf Minority (Andrews) opinion: A duty is owed both to anyone whom the actor may reasonably expect to harm, and to anyone that is harmed by a given act. The act of the defendant's guard unreasonably jeopardized the safety of anyone who might be affected by it. Proximate" is matter of convenience, public policy, a r ough sense of justice, and common sense, that courts use to arbitrarily declines to trace a series of events beyond a certain point. It would not require any great foresight that an explosion would cause injury to a person across the platform, even if the exact method could not be predicted. 9. Duty or Proximate Cause Some courts have used proximate cause issues, i.e. matters regarding analysis of foreseeability, to determine that the defendant owed no duty to the plaintiff. There is debate, however, on whether or not the duty rubric should be used to rule as a matter of law. Most courts use Judge Andrews proximate causation terminology even when they rely on Cardozos foreseeability analysis to determine outcomes regarding which plaintiffs may recover for harm caused by conduct that was clearly negligent. 10. Thompson v. Kaczinski (Iowa 2009) The defendants left an untethered, disassembled trampoline blew into the street and caused the plaintiffs to crash into a ditch. The Iowa Supreme Court disregarded their previous conceptions of duty and proximate cause, and adopted the Restatement, Third, of Tort. The Court held that although courts have used foreseeability to determine issues of no duty, no duty should be left to articulate a policy or principle. Further, proximate cause, i.e. the foreseeability of a risk, is harm that is limited to those physical harms that result from the risks that made the actor's conduct tortious, and the determination should be left to juries unless no reasonable person could differ on the matter. B. Superseding Causes 1. Derdiarian v. Felix Contracting Corp. (N.Y. 1980) The driver of a car failed to take his medicine and negligently drove into an excavation site along the side of the freeway, striking the plaintiff and a kettle containing 400 degree liquid enamel. The liquid enamel landed on the plaintiff, causing him to burst into flames, which caused severe injuries. The court held that the negligent conduct of the driver was only an intervening cause that contributed to the plaintiffs harm, but was not a superseding cause (not sufficient to establish the intervening cause as the primary cause), and did not absolve the contractor of liability for his negligence in not placing appropriate barriers around the jobsite.
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2.
3.
4.
5.
6.
7. 8.
The Restatement, Third, of Torts takes aim at the concepts of intervening acts and superseding causes. 34. Intervening Acts and Superseding Causes: When a force of nature or an independent act is also a factual cause of physical harm, an actors liability is limited to those harms that result from the risks that made the actors conduct tortious. Barry v. Quality Steel Products, Inc. (Conn. 2003) Plaintiffs were injured while working on a roof when the plank they were on collapsed and they fell. The company that manufactured the bracket denied liability stating that the negligence of the plaintiffs employer their co-worker were superseding causes. The court held that superseding cause is actually just a question of proximate cause, and proximate cause should be used to apportion the liability to all negligent parties. If the defendant was both the cause in fact and a proximate cause of the plaintiffs injury, the defendant will be liable for his or her proportionate share of the damages, notwithstanding other acts of negligence that also may have contributed to the plaintiffs injury. Watson v. Kentucky & Indiana Bridge & R. Co. (Ky. Ct. App. 1910) The railroad claimed that even though their negligent rd act caused gasoline to flow in the street, the criminal act of a 3 party in igniting the gasoline was a superseding cause. The Court held that lighting of the match could only absolve the defendant of liability, i.e. would constitute a superseding cause, if he was found to have purposely ignited the gasoline. However, there is a question of fact as to whether he ignited the gasoline purposely or accidently, which should be left to a jury. Fuller v. Preis (N.Y. 1974) A surgeon committed suicide after an auto accident caused brain damage, and caused mental and physical deterioration. The defendant argued that the plaintiffs conscious choice to commit suicide was a superseding cause. The court held that tortfeasors can be held liable for suicide of persons who, as a result of their negligence, suffer mental disturbance destroying their will to survive. It is a question of fact for the jury as to whether the decedent's suicide was a result of an "irresistible impulse" that resulted from the negligence of the defendant. Wagner v. International Railway (N.Y. 1921) The plaintiffs cousin was thrown from a moving train and killed when the conductor failed to close the doors. The plaintiff was injured when he fell from a railroad bridge searching for his cousin. The defense argued that the plaintiff chose to search for his cousin, so it is a superseding cause. Cardozo stated that danger invites rescue, and the wrongdoer who negligently submits a victim to injury is also liable to the rescuer who acts reasonably to rescue the victim for any damages to the rescuer. A defendant may even be liable for damages incurred by a plaintiff in mistaken attempted rescue if the defendants negligence leads one to reasonably believe a rescue is necessary. Even though danger invites rescue, it also invites onlookers. A defendant is not liable to those who just stop to watch an accident or rescue attempt. Liability on the defendant may only be imposed for those injured while attempting a rescue.
C.
The Duty Card 1. Hamilton v. Beretta U.S.A. Corp. (N.Y. 2001) The Court held that handgun manufacturers do not owe a duty to victims of handgun shootings in the marketing and distribution of handguns where such a duty could possibly encompass a very large number of plaintiffs, where the manufacturers are not shown to be a direct link in the causal chain of Plaintiffs' injuries, and where the manufacturers are not in a position to take reasonable steps to prevent the alleged harms. Also, the Court held that because of the asymmetry of handgun manufacturers, the market-share approach is not proper. 2. Social hosts typically do not owe a duty to prevent injuries to a plaintiff from an inebriated guest when the guest drives home from the defendants party. Further, a passenger in a car with a visibly intoxicated driver does not have a duty to prevent the drunk driver from operating his own car. 3. Doctors due owe a duty to those harmed by patients when they negligently fail to inform their patient of side effects of their medication which could make an activity dangerous (e.g. a prescription medication that causes drowsiness is dangerous while driving). However, the duty to third parties does not extend to situations in which a doctor negligently prescribes a particular medication, or an incorrect dosage. 4. Bence v. Crawford Savings & Loan (Ill. App. Ct. 1980) The plaintiffs decedent was shot to death when the bank personnel refused to activate an electronic door buzzer system to allow the robber to leave. The Court refused to recognize a duty on the part of the bank personnel to accede to the robbers demands. 5. Sanders v. Acclaim Entertainment (D. Colo. 2002) The court refused to recognize a duty on the part of producers and distributors of violent video games, movies, and music to the family of a teacher killed in the Columbine High School shootings, which the shooters allegedly imitated in carrying out their plan. Makers of works of imagination including video games and movies may not be held liable in tort based on the content or ideas expressed in their creative works. Placing a duty of care on defendants in the circumstances alleged would chill their rights of free expression. 6. The courts upheld a duty in two cases (1997 & 2001) against Paladin Enterprises, the publishers of Hit Man: A Technical Manual for Independent Contractors. The first Court stated that because of the detailed instructions on committing
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murder, and the books evident lack of any even arguably legitimate purpose beyond the promotion and teaching of murderwe are confident that the First Amendment does not erect absolute bar to the imposition of civil liability. The second Court stated that in addition to the books intent to assist people in murder, the publisher was also aware people were using it to commit murder (because of the first case). VII. NONLIABILITY FOR FORESEEABLE CONSEQUENCES (LIMITED DUTY RULES) A. Limitations on the Duty to Rescue Generally, people have no duty to rescue. There is a legal duty to do no wrong, but there is no duty to protect against wrong. However, there is a duty to rescue in a number of exceptional situations. 1. Yania v. Bigan (Pa. 1959) The plaintiff sued for negligence for the death of her husband when the defendant failed to warn the decedent of the risk of jumping into a trench with 8-10 feet of water and then failed to rescue him while he was drowning. The court held that there was an apparent hazard which did not require the defendant to warn the decedent of the risk. Also, because the defendant did not create the risk, there was not duty to rescue. 2. Restatement, Third, of Torts 42. Duty Based on Undertaking: An actor who undertakes to render services to another that the actor knows or should know reduce the risk of physical harm to the other has a duty of reasonable care to the other in conducting the undertaking if: a) the failure to exercise such care increases the risk of harm beyond that which existed without the undertaking, or b) the person to whom services are rendered or anothe r relies on the actors exercising reasonable care in the undertaking. 3. Reliance based duties as in 42(b) of the Restatement, Third, of Torts, requires that the defendant 1) undertook services to rescue operations, 2) failed to follow through with the rescue operations, and 3) other would-be rescuers relied on the defendants rescue attempt in not initiating rescue attempts of their own. 4. Baker v. Fenneman & Brown Properties, LLC (Ind. Ct. App. 2003) The plaintiff become nauseous and dizzy, and fell injuring himself inside of a Taco Bell. Taco Bell claims because it was not responsible for the instrumentality that caused plaintiffs initial injury, it had no duty to assist. The court held that a possessor of land who holds it open to the publi c is under a duty to assist members of the public who enter their property in response to the possessor's invitation, OR when the injury resulted from the use of an instrumentality under the control of the defendant; both are not required for imposition of a duty to assist. 5. Stockberger v. Unites States The plaintiffs husband, who an insulin-dependent diabetic, was an employee of a federal prison, and his coworkers were aware of his condition. The plaintiff sued the prison for failure to prevent him from attempting to drive home while he was hypoglycemic, and he wrecked and died as a result of his condition. The Court held that even though other states had imposed duties to rescue on invitors (those who possessed private property but invited others onto it), Indiana, the state laws that controlled the claim, had not yet adopted the rule (this ruling was 2 months prior to Baker). The Court held that there was no duty. 6. Restatement, Second, of Torts 314A. Special Relations Giving Rise to a Duty to Aid or Protect: a. A common carrier is under a duty to its passengers to take reasonable action: (a) to protect them against unreasonable risk of physical harm, and (b) to give them first aid after it knows or has reason to know that they are ill or injured, and to care for them until they can be cared for by others. b. An innkeeper is under a similar duty to his guests. c. A possessor of land who holds it open to the public is under a similar duty to members of the public who enter in response to his invitation. d. One who is required by law to take or who voluntarily takes the custody of another under circumstances such as to deprive the other of his normal opportunities for protection is under a similar duty to the other. 7. J.S. and M.S. v. R.T.H. (N.J. 1998) The Court held that the wife of a man who molested their neighbors two daughters (12 & 15 years old) for over a year had a duty to warn her parents, or other authorities, of the suspected abuse. 8. Tarasoff v. Regents of University of California (Cal. 1976) The Court held that a therapist had a duty to warn the victim (or her parents) of a patients threat to murder her when a patient communicates to a psychotherapist a serious threat of physical violence against an identifiable victim. 9. Rescuers do not have an absolute duty. They only have a reasonable duty to rescue, and may avoid any liability if another person rushes to the aid of the injured party. 10. Attorney-Client Confidentiality: Rule 1.6(a) of the Model Rules of Professional Conduct prohibits lawyer from disclosing any information relating to the representation. However, Rule 1.6(b)(1) permits a lawyer to disclose information relating to representation if the lawyer reasonably believes it necessary to prevent reasonably certain death o r substantial bodily harm.
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B.
Limitations on Recovery for Pure Economic Loss Majority position in US is that plaintiffs cannot recover for pure economic loss. th 1. State of Louisiana, Ex Rel. Guste v. M/V Testbank (5 Cir. 1985) Court declined to abandon the requirement of physical damage in cases of unintentional maritime tort because it is a bright line rule and it would open the courts up to a lot of suits which they would not properly be able to handle. 2. Some states will allow recovery for pure economic loss, with limits. California established a 6 factor test in JAire Corp. v. Gregory, providing 6 criteria by which to judge when pure economic loss will be allowed: 1) the extent the transaction was intended to affect the Plaintiff, 2) the foreseeability of harm to plaintiff, 3) the degree of certainty that the plaintiff suffered injury, 4) closeness between defendants conduct and injury suffered, 5) the defendants moral blameworthiness, and 6) the policy of preventing future harm. Some states, however, only allow one to recover economic loss if the economic loss results from physical (property or person) damage. 3. There is also some precedence for allowing recovery for economic loss when there is negligence by a party to a transaction, whose conduct was to protect against economic loss (e.g. auditors who negligently audit a corporation's finances, and investors rely on the audit to conclude that the business is worth investing in) 4. People Express Airlines, Inc. v. Consolidated Rail Corp. (N.J. 1985) The court concluded that pure economic loss was allowed in instances in which it was foreseeable that a particular plaintiff would suffer economic loss from the defendants negligence. 5. Aikens v. Debow (W.Va. 2000) The West Virginia Supreme Court of Appeals held that pure economic loss was not allowed in a tort action absent either privity of contract or some other special relationship with the alleged tortfeasor. Limitations on Recovery for Emotional Distress Courts look at claims carefully when a plaintiff, who was not physically harmed by the defendants negligence, claims damages from becoming fearful or otherwise emotionally distressed. 1. Impact Rule - Some jurisdictions will not allow for recovery of emotional distress unless it was caused by physical impact. The term impact has been relaxed in some jurisdiction to include such contact as false medical test results that result in medical treatment (R.J. v. Humana - Plaintiff improperly informed he had HIV and then began treatment satisfied impact). 2. Zone of Danger If a plaintiff was involved in or close enough to an accident to be placed in imminent danger of bodily harm, the person who was placed in imminent danger can sue the negligent party for emotional distress suffered as a result of the danger. 3. Mishandling of Corpses Courts typically allow for plaintiffs to recover for emotional distress when a defendant has negligently mishandled the remains of the plaintiffs deceased loved ones. 4. Mishandling of Genetic Material Doctors, hospitals, and fertilization clinics have been held liable for emotional distress in the mishandling of genetic material in situations in which the plaintiffs genetic material was negligently implanted in a third party (Perry-Rogers v. Obasaju, N.Y. 2001), and when a third partys genetic material has been negligently implanted into the plaintiff (Andrews v. Keltz N.Y. 2007). 5. Special Relationships When the parties have a direct relationship with each other or there has been an undertaking such that there are clear expectations as to appropriate conduct, courts will allow a cause of action for emotional distress absent an imminent danger of bodily harm (Johnson v. State, N.Y. 1975 A hospital that misinformed a patients daughter that her mother had dad was liable for emotional distress; Rowell v. Holt, Fla. 2003 Defendant attorney was liable for emotional distress on his client for causing him to spend 10 needless days in jail as a result of attorneys failure to prese nt evidence to the court that his client, although having a previous felony, had his civil rights restored and was allowed to own a gun). 6. Emotional Distress or Physical Manifestations: Restatement, Third, of Torts allows for recovery for negligently inflicted emotional distress even if plaintiff has no evidence of physical manifestations. Although may jurisdictions agree with this position, other jurisdictions do no. 7. Daley v. LaCroix (Mich. 1970) Two children became emotionally disturbed after a car wrecked into an electric pole causing high voltage lines to contact electrical lines to plaintiffs house, which caused an electrical explosion. The court stated that they could recover for emotional distress without physical contact, but the distress must have physical manifestations. 8. Bystanders A bystander without a close relationship to an injured or imperiled party may not sue for the shock of witnessing anothers danger. However, in Dillon v. Legg, Cal. 1968, the court held that when a plaintiff suffe red shock that resulted in physical injury, the defendant may owe a duty to the plaintiff when the following factors are taken into account: 1) Whether plaintiff was located near the scene of the accident; 2) Whether the shock resulted from a direct
C.
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emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident; 3) Whether the plaintiff and victim were closely related, i.e. had a close relationship. 9. Thing v. La Chusa (Cal. 1989) The court held that a mother who did not witness a car accident in which her son was injured cannot recover damages for the emotional distress she suffered when she arrived at the accident scene. The court modified the Dillon v. Legg factors as follows: A plaintiff may recover damages for NIED, absent physical impact, if and only if the plaintiff 1) is closely related to the injury victim; 2) is present at the scene of the injury producing event at the time it occurs and is then aware that it is causing injury to the victim; and 3) as a result suffers serious emotional distress - a reaction beyond which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstances. 10. The Restatement, Third, of Torts 47 adopts the rule outlined in Dillon. Twenty-nine (29) jurisdictions now follow the Dillon rule. D. Harm to Unborn Children 1. Wrongful Birth Suits Wrongful birth suits are brought by the mother for negligent diagnoses or not providing correct information which would have allowed her to abort her pregnancy during the 1st trimester so that she would not have a child with a serious birth defect. It is coherent that a mother can claim that she would have been better off aborting the fetus than having a child with a debilitating disease. Courts typically award extraordinary medical expenses but do not often award emotional distress. 2. Wrongful life suits are brought by the child (usually through the mother or father) claiming that the child would be better off not having been born. Most courts have rejected wrongful life suits because they do not want to state that a defective life is worse than no life. 3. Werling v. Sandy (Ohio 1985) The court held that the statutory beneficiaries of an unborn fetus are entitled to damages for the wrongful death of the fetus when the defendant negligently inflicted injury and death of the child before birth. The court held that a viable fetus should be treated as a person for purposes of wrongful death. 4. Procanik by Procanik v. Cillo (N.J. 1984) The court held that it would not allow general damages, such as pain and suffering for a defective childhood, in a wrongful life suit because it could not state that a defective life is worse than no life. However, the infant plaintiff may recover special damages for the extraordinary medical expenses he will incur.
VIII.
OWNERS AND OCCUPIERS OF LAND A. Duties Owed to Entrants on the Land The traditional view was that the defendant's duty turns on Plaintiff's status: 1. Trespasser On land without permission. a. Special duty to small children trespassers. i. "Attractive Nuisance" ii. Restatement, Second, of Torts 339 lists factors of attractive nuisance: (1) The place where the condition exists is one where the possessor knows or has reason to know that children are likely to trespass; and (2) The condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children; and (3) The children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it; and (4) The utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved; and (5) The possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children. iii. Gist of Restatement: Defendant knows children use premises, understands or should understand the danger of the condition, and children are too young to appreciate the danger (e.g. a vat of acid that looks like a swimming pool). b. Duty to avoid willful and wanton. i. Spring Guns ii. "Willful and wanton" has been expanded in some cases to include failure to warn known hazards to a known trespasser. iii. Gladon v. Greater Cleveland Regional Transit Authority Court treated plaintiff as "trespasser" for being on the tracks without permission (which is odd considering he was not there willfully since he was thrown onto the tracks). It was further odd that the court extended willful and wanton to include
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2. 3.
4.
5.
what amounts to recklessness based on the fact that the driver of the train did not stop when she disregarded the risk that a person was attached to the shoe. Licensees On the land with permission/license, but not for a material benefit of the owner, e.g. social guest. The defendant owed a duty to warn of hazards known to owner/occupier that are hidden to guest. Invitees On the land with permission for a material benefit of the owner. a. General Duty of reasonable care. b. Duty to discover hazards. c. Duty to warn about hazards. d. Duty to reasonably prevent hazards from harming them. Rejection of Traditional Categories a. Rowland v. Christian - California court determined that a landowner must be reasonable under the circumstances. i. Everything is a factor for the juries to consider and determine if the landowner was reasonable (including whether or not the entrant was trespasser, licensee, or invitee). ii. Court determined that the rules were too arbitrary and attempted to eliminate the arbitrariness. iii. There is hidden arbitrariness in that the juries decisions will be arbitrary since they will not be provided any guidance on what constitutes reasonable. Each jury will need to decide for themselves whether or not they believe the person acted reasonably, without any set rule(s) to guide them. b. Some courts have retained the trespasser distinction while eliminating the distinction between invitees and licensees. Sticking to Tradition Some jurisdictions have stayed with the traditional categories. a. Carter v. Kinney (Mo. 2005) Plaintiff who was injured when he fell on ice attending Bible study at a fellow church members house sued for negligence. The Mo. appellate court declined to eliminate the distinction between licensees and invitees, and held that Defendant was a licensee and only had a duty to warn of known hazards that were not obvious to those on the land with permission. b. Per Professor Keeton, he believes many courts are reluctant to eliminate the distinction between invitees and licensees because many are skeptical about reducing many years of jurisprudence to a single standard of reasonable care, which places all of the power in the hands of unknowledgeable juries.
B.
Special Rules Limiting Possessors Liability 1. The Firefighters Rule a. Firefighters or police who entered the premises of another to perform their functions were treated as licensees. b. The possessors of land owed no duty to make the premises safe for a licensee nor to inspect for dangers unknown to the possessor. c. Fordham v. Oldroyd (Utah 2007) The court refuses to abandon traditional firefighters rule. d. Pinter v. American Family Mutual Ins. Co. The firefighter rule was extended to dangers outside of land ownership when a firefighter/paramedic was injured while administering aid to a person who negligently crashed his car. The court cited to Thomas v. Pang stating the rationale that it offends public policy to say that a citizen invites private liability merely because he happens to create a need for those public services. 2. Recreational Use Statutes a. If a private person were to open up his/her land to the public for recreational use, common law would treat them as either invitees or licensees, which would impose duties upon those land owners. b. To provide incentive for landowners to open up their properties for recreational use, and alleviate demand on public parks, most states have enacted recreational use statutes that partially immunize land owners for accidents that happen on their property. c. These statutes do not apply to those who charge money for use of their land. d. These statutes do not immunize against willful or malicious failure to guard, or to warn against, a dangerous condition, use, structure, or activity. Duties Owed to Those Outside the Premises 1. Salevan v. Wilmington Park, Inc. A pedestrian outside of a baseball stadium was injured when a foul ball was hit outside of the park. The court held that the operator of the stadium had a duty of reasonable care to those outside the premises and the precaution taken to avoid harm was not reasonably adequate to pedestrians. 2. What if a tree falls into the highway? a. The landowner can be liable if he had actual knowledge of the weakened condition of the tree. b. Is there a duty to inspect for hazardous trees? i. Traditional view was a rural/urban distinction: Rural = no; Urban = yes. ii. Some cases believed the rural/urban distinction was too arbitrary and rejected it in favor of "reasonable under the circumstances."
C.
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3.
4.
Taylor v. Olsen (Or. 1978) The court disregarded the distinction between rural and urban, stating that the defendant must be reasonable under the circumstances (i.e. rural versus urban, the amount of traffic, the proximity of the tree to the road, and the amount of trees one has are all relevant factors). However, the court also held that because the evidence indicated that visual inspection of the tree would not have uncovered the defect, but only by drilling or chopping into the tree, the trial court did not error in directing a verdict on behalf of the defendant. Staples v. Duell (S.C. Ct. App. 1997) Stuck with the rural/urban distinction holding that a rural landowner did not owe a duty to inspect his trees that are adjacent to a highway even though 13,000+ cars utilized the highway every day.
D.
Duties Owed by Lessors to Lessees 1. Common law imposed few duties. 2. Case law has created exceptions to the no duty rule: a. Common Areas b. Public Areas c. Conditions known to landlord but not tenant d. Negligent maintenance or repairs 3. Some states/courts embrace a broader liability than that of the common law. a. Theories based on contract / Implied Warranty of Habitability. b. Sargent v. Ross The court held that even though it could stretch the "maintenance" exception of the immunity rule to include negligent construction, it makes more sense to reverse the general rule of no liability. The emphasis on control and other exceptions to the rule of nonliability, both at trial and on appeal, complicate the jury's task and divert the issue of the unreasonable risk. Eliminating the nonliability rule is consistent with the Court's previous ruling to eliminate caveat emptor (i.e. buyer beware) from landlord-tenant law which created an implied warranty of habitability. c. Many states/courts agree with Sargent, while others maintain the common law doctrine with its exceptions. However, some states have also, via statute, created an implied warranty of habitability with respect to residential housing. These statutes range from a guarantee that the property contains no hidden defects to an obligation to keep property in good repair during the term of the lease. Even though most statutes do no provide for civil liability, courts can treat violations of the statutes as negligence per se. Liability of Owners for Crimes by 3rd Parties 1. Posecai v. Wal-Mart - A duty to protect customers (invitees) against foreseeable criminal acts. The court looked to determine if there were any prior incidents. The court held that Wal-Mart owed no duty to hire security guards to keep in the parking lot to protect against criminal acts of third parties because the burden of hiring fulltime security staff to patrol the parking lot is high (B < PL). Judicial balancing of cost and benefits given the likelihood of the criminal conduct versus what it would take to have prevented the crime. 2. Kline v. 1500 Massachusetts Ave. Apt. Corp. - N.J. landlord case - The landlord had previously provided a doorman, parking garage attendants, and strictly enforced a policy to lock side entrances in the evening, but after 10 years those security measures were taken away. The district court held the landlord had no duty to prevent crime, but the appellate court held that the landlord had a duty to take reasonable measures to protect tenants against crime b/c the landlord was the only one capable. 3. There is always a causality question if the landlord would have acted differently. Would the security measures have made a difference?
E.
IX.
AFFIRMATIVE DEFENSES A. Defenses Based on Plaintiff's Conduct 1. Contributory Negligence a. Coasim story on externalities Each persons activity was a negative externality producing the result. b. Common Law Rule - All or Nothing Approach: i. If both Plaintiff and Defendant were at fault, and the fault contributed to the accident, then judgment in favor of defendant. ii. Courts developed strategies to try to avoid the injustice of the rule: (1) They usually would not direct verdicts even when there was clear evidence that the plaintiff was contributory negligent to see if the jury would not find the plaintiff negligent. (2) Last Clear Chance - At common law, if the defendant had the "last clear chance" to avoid the accident, then the defendant was liable for the entire amount. (3) Was not a defense to intentional torts, or conduct that was reckless or wanton. (4) Also, the defendant had to prove the plaintiff was contributory negligent, and the courts were more strict with plaintiffs negligence than the defendants negligence (text states they played it by the book).
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2.
3.
(5) Gross Negligence - If the defendant was grossly negligent compared to the negligence of the plaintiff, the defendant could be liable for the entire amount. c. Butterfield v. Forrester (Eng. K.B. 1809) The court held that one person being in fault (i.e. negligent) will not dispense with another's using ordinary care for himself. One may not cast himself upon an obstruction which was caused by another's negligence, and avail himself of it, if he did not himself use ordinary care. d. Most states have, either by judicial decision or statute, moved from the all or nothing rule in favor of comparative negligence. Comparative Negligence a. Pure Comparative Negligence applies the percentage of fault to both the plaintiff and defendants in proportion to the total award (e.g. If Plaintiff is 70% at fault, and Defendant is 30% at fault, then Defendant pays only 30% of damages). This is the form favored by the Restatement, Third, of Torts, as well as most scholars. b. Modified Comparative Negligence applies the percent of fault to both the plaintiff and the defendants, but does not allow recovery if the plaintiff is at least equally at fault (49 percent jurisdiction) or more at fault (50 percent jurisdictions), depending on the jurisdiction. c. McIntyre v. Balentine (Tenn. 1992) The court did away with the all or nothing approach of contributory negligence holding that a modified comparative fault scheme is preferred in which a Plaintiff cannot recover unless his/her negligence is less than the negligence of the defendant(s). The court rejected pure comparative negligence stating that it is unfair to allow plaintiffs to recover who are 80, 90, or 95 percent at fault. The court also eliminated joint and several liability, believing (erroneously) that it was covered by a comparative fault scheme. d. What are you comparing in comparative negligence? i. Extent of deviation from reasonable? ii. Extent of causal contribution? e. The Restatement, Third, speaks to the factors that should be taken into account by the jury when trying to allocate fault: i. The nature of the persons risk-creating conduct, including any awareness or indifference with respect to the risks created by the conduct and any intent with respect to the harm created by the conduct; and ii. The strength of the causal connection between the persons risk-creating conduct and the harm. f. Comparative negligence usually applies unless there is an intentional wrong - comparative fault does not reduce the liability of one who intentionally wrongs another. g. Comparative negligence eliminates need for "last clear chance" doctrine. h. Joint and Several Liability - Courts are divided as to whether to keep the joint and several liability doctrine in comparative fault schemes i. Rape Cases and Comparative Fault An issue of comparative fault arises in rape cases when the rape victim sues a third party, such as a property owner, for failure to protect against the crime. Courts have been reluctant to blame the rape victim for exposing themselves to the risk. i. Wassell v. Adams The rape victim opened the door of her hotel room to a stranger and allowed him to use the restroom in the middle of the night. The appellate court upheld the jury verdict that found the victim 97% at fault for creating the risk, and the hotel only 3% at fault. ii. Raven H v. Gamette The court stated that it would partially offset the fault of the defendant in providing inadequate locks and bars on windows allowing a rapist to enter by the plaintiffs fault in leaving the window open. j. Rescue and Comparative Fault If one is injured while rescuing a person who was placed in peril by the negligent acts of another, the rescuer has a cause of action against the negligent party unless the rescuer was either grossly negligent or willful or wanton conduct in her rescue attempt. k. Crime Does Not Pay at Least Sometimes Does a persons criminal act bar them from total recovery? i. Alami v. Volkswagen of America, Inc. The Court held that Volkswagen's alleged design defect, which, Plaintiff claimed, enhanced Decedent's injuries, breached Defendant's duty of care to Decedent regardless of the fact that the cause of the accident was the decedents drunk driving. The Court noted that Volkswagen had a duty to produce a product that did not unreasonably enhance or aggravate injuries. ii. Many courts have allowed people who were driving while intoxicated to recover for enhanced injuries suffered as a result of a design defects. Courts have noted that the cause of the accident has nothing to do with crash worthiness. Assumption of the Risk An all or nothing doctrine. a. Express Assumption of Risk When parties agree in advance to exculpate another party or parties. i. Stelluti case - Express assumption of the risk case via a contract with release/waiver of liability - Court upheld the release, but stressed the narrowness of its holding (gym, knowingly risky, not a necessity, not a monopoly).
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ii.
4.
Many courts have struck down clauses exculpating a defendant from gross negligence as contrary to public policy. Other stats did not allow an exculpatory clause to be used against willful or wanton conduct. Some states have enacted statutes eliminating exculpatory clauses for certain types of business (such as gyms, places of amusement, recreation, and similar establishments). b. Economics of release terms - K terms are efficient if parties are well informed. Only if the consumer knows that the terms are better will the market reward the more efficient terms. i. Invalidating efficient terms increases prices and harms consumers. ii. Will not help consumer - counterproductive to invalidate inefficient terms. c. Implied Assumption of Risk i. Flemming James Critique: (1) Sometimes the Defendant is not Negligent - Affirmative Defense not needed (2) Sometimes the Defendant is negligent when the Plaintiff isn't - Want to impose liability on defendant (3) Sometimes both negligence, but comparative negligence already takes care of this. (4) Therefore, implied consent is no longer required. (5) Blackburn case accepted this critique. ii. Analogous to consent to intentional torts - Why cannot one consent to possible negligence? iii. Turcotte v. Fell The court held that participation in the horse racing event was implied assumption of the risk as to the customary hazards of the sport. iv. Now that most states are going to comparative fault regimes, assumption of the risk is being absorbed into comparative negligence. However, it is sometimes used in the no duty context as well to demonstrate that a defendant did not owe a duty to a plaintiff ( Mastro v. Petrick, Cal. Ct. App. 2001 a snowboarded who collided with a skier on a ski resort slope owed no duty to the skier who chose to ski where he knew others would be snowboarding). Avoidable Consequences Doctrine a. Plaintiff has a reasonable duty to mitigate damages after the accident. b. Failure to mitigate will result in damages being measured as if you did (i.e. damages reduced the amount they would have been if reasonable steps could have been taken to mitigate). c. No duty to take unreasonable steps i. Novko v. State of New York - No duty to change occupations to attempt to mitigate losses. d. Seat Belt / Motorcycle Helmet - Not quite comparative negligence (does not cause the accident), nor is it quite part of avoidable consequences (not conduct after the accident) - Courts are divided on this issue.
B.
Non-Conduct Based Affirmative Defenses 1. Immunities (Traditional immunities are in disfavor) a. Intrafamily i. Family Harmony - Courts don't buy this because parents are often on the same side as children and want to aid in obtaining claim against insurance ii. Parental Discipline - Has limits - can't abuse iii. Courts generally do not recognize an intrafamily immunity b. Charitable Immunity c. Sovereign Immunity i. State and Federal Governments (not local) enjoy common law immunity. ii. The Federal Government and the States have, by statute, waived their common law sovereign immunity. iii. However, those waivers obtain exceptions. iv. Federal Government does not waive their sovereign immunity with respect to discretionary functions (policy decisions). In Tippett v. United States - Local official (park ranger at Yellowstone) who balances values to make a decision (decision to allow the snowmobilers to pass the moose was considered a discretionary function because there was no rule or policy specifically guiding his actions, and he was trying to weigh the competing policies of encouraging recreational activities in the park with conserving wildlife) is protected. v. Immunity for Torts in the Military Setting Difficult to sue the federal government for acts of military personnel while performing their official duties. vi. Local government can be immune (i.e. no duty) with respect to policy decisions / discretionary functions. (1) Riss v. City of New York The NYPD did not owe a duty to an individual to provide 24 hour police protection even though she had been threatened, and she was actually attacked with lye thrown in her face blinding her and scarring her face). However, this is not technically sovereign immunity.
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(2) Brandon v. County of Richardson A female living in Nebraska as a male (she was diagnosed with gender identity disorder) was attacked and sexually assaulted when two male acquaintances discovered she was a female. The county sheriff knew that the two men had criminal records, and Brandon feared for her life for reporting the incident. The sheriffs department did not arrest the men or place Brandon under protective order. Later, the two men murdered Brandon and two people she was with. The Nebraska Supreme Court held that the Sheriffs Department was liable because, even though there is no general duty to prevent crime to an individual, there is a duty when a special relationship is formed. 2. Statute of Limitations a. Must bring suit within X years of cause of action. i. In most cases, when the cause of action occurred is clear (e.g. when the defendant hit the plaintiff with the car). ii. What if the Plaintiff does not know that the defendant's actions caused harm to the Plaintiff (e.g. toxic waste, over a period of time, causes cancer in plaintiff)? b. Discovery Rule - The statute of limitations does not begin to run if the plaintiff knew or should of known of his/her cause of action. c. Why Statutes of Limitations? Stale evidence, repose. d. Some states have passed Statutes of Repose - Generally have much longer time frames than statutes of limitations - bar suits if brought after a certain number of years, regardless of the plaintiff's ability to discover the harm (applies a cut off to the discovery rule).
X.
JOINT TORTFEASORS - Traditional Joint and Several Liability A. Concerted Action 1. Drag Race - Both Joint and Several Liable 2. Herman v. Westgate - Fellow Bachelor Party Participation? In this case, the court held it was a question of fact whether or not defendants acted in consorted action with others that were throwing people from the deck of a barge. A. Substantial Assistance B. Encouragement C. A common tortious design 3. Restatement, Second, of Torts, 876. Persons Acting in Concert (vicarious liability) if he: a. Does a tortious act in concert with the other or pursuant to a common design with him, or b. Knows that the others conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself, or c. Gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately considered, constitutes a breach of duty to the third person. Liability Imposed by Law 1. Employers vicariously liable for torts of employee within scope of employment. A. Joint and several liability applies. B. Employers may have an indemnity action against employee, although the employer almost never seeks repayment from employee. 2. A landowner may be held liable for the conduct of someone who negligently performs repairs on her premises. This is one of the situations in which courts proclaim that a duty is nondelegable. Where the law imposes nondelegable duties, both the tortfeasor and the one who sought to delegate the duty are both responsible. Indivisible Injury Caused by Multiple Defendants 1. American Motorcycle Assn. v. Superior Court of Los Angeles (Ca. 1978) First, because this is an indivisible harm, the apportioning of fault on a comparative negligence basis does not render an indivisible injury divisible for purposes of joint and several liability. Second, just because some plaintiffs are contributory negligent, it is not true that a plaintiff is no longer innocent (some may be). Third, even when a plaintiff is partially at fault, the plaintiff's culpability is not the same as the defendant because the plaintiff only placed himself at risk. Finally, the abandonment of joint and several liability would require the injured part to bear the costs of tortfeasors' actions if one or more is insolvent. 2. Today, a majority of jurisdictions do not impose joint and several liability across the board. Legislatures in most states have either abolished or modified the common law joint tortfeasor doctrine. 3. Legislative Changes to Joint and Several Liability A. Comparative Negligence makes some people believe J & S is suspect. B. American Motorcycle case - rejected the arguments against J & S liability. C. Many states have abolished J & S liability
B.
C.
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D. E.
Uniform Comparative Fault Act (UCFA) - Reallocates insolvent defendant's responsibility amongst other responsible parties in proportion to their percentage of responsibility. Other states say a defendant less than a certain percentage of responsibility cannot be held jointly and severally liable for the entire judgment.
D.
Contribution and Indemnity - When one is required to pay more than their share of responsibility under J & S, they may seek a contribution or indemnity action against another party. 1. Contribution: A. Not an issue if J & S is abolished. B. Where there is J & S liability, contribution is allowed. I. Used to be based on [amount of judgment] / [# of Defendants] II. No is based on relative fault 2. Indemnity is for 100% A. Employer versus employee (if employer not at fault) B. Retailer versus manufacturer - The product is bad, and the retailer did not do anything wrong. Settlement and Release 1. Settlement and release at common law barred an action against any defendant, even those not included in the settlement agreement. 2. UCFA - Not universally followed: A. Defendant settles with Plaintiff on behalf of all Defendants: Defendant can seek a contribution action against the other Defendant(s) based on percentage of fault. B. Defendant settles with Plaintiff on behalf of himself only: Other Defendant(s) can seek a contribution action against the settling defendant for the settling defendant's percentage of liability, less the amount of the settlement. However, the settling defendant cannot seek a contribution action against the other defendants. Where the Issue of Divisibility of Damages is Unclear 1. In general, a defendant should only be held liable for damages she causes. If damages can be reasonably apportioned between two tortfeasors, then the issue of apportionment should be left to the trier of fact, even though some cases present great difficulty in apportionment. 2. Michie v. Great Lakes Steel Division, National Steel Corp. (6th Cir. 1974) The court held that the present case is one in which there is not concerted action, but the independent acts of multiple actors combine to produce indivisible harmful consequences. Previous Michigan case law has stated that it is unfair to place the burden on the injured party to prove the specific shares of harm done by each tortfeasor. This Court believes that Michigan courts would follow the Maddux holding, allowing the trier of fact to determine if liability is joint or several. If the injury is indivisible and it is not practical to apportion the harm, the entire liability may be imposed on one or several tortfeasors. The tortfeasor or tortfeasors who have liability imposed on them have the right of contribution against other tortfeasors, and the burden of proof of their proportion of fault should be placed on the defendants. 3. Dillon v. Twin State Gas & Electric Co. - The baseline for damages is the situation but for defendant's behavior (in this case, the damages of Twin State would have been the difference between death by electrocution and what would have been the result of the fall).
E.
F.
XI.
STRICT LIABILITY A. Possession of Animals One of the earliest forms of strict liability involved those who possessed, confined, and managed animals that were capable of causing harm both to persons and property when they escaped from confinement. 1. Most cases involve animals falling into three basic categories: a. Livestock (including cattle, horses, sheep, goats, and the like) Courts generally imposed strict liability. b. Wild Animals Courts generally imposed strict liability. c. Dogs, cats, and other domesticated animals other than livestock Courts only impose liability if the plaintiff can prove the defendant knew that the animal was prone to violence. 2. Bard v. Jahnke (NY 2006) The court held that to find the owner of a bull liable, the bull must have either acted dangerously or viciously prior to put the owners on notice that the bull was dangerous. Even though it is true that some particular breeds of animals may be considered dangerous, this court has never held that breeding bulls are of the class of dangerous animals. To hold the owner strictly liable, the owner must have been aware of the bull's dangerous propensities. (Rejection of Restatement). Abnormally Dangerous Activities
B.
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1.
2.
3. 4.
5.
6.
Fletcher v. Rylands (Engl. 1866) The court held that when a defendant brings something (in this case water) onto his land that, as long as it remains on his land would not be harmful, but if it escapes would cause harm, the defendant does so at his own peril. He need not be negligent, rather he is strictly liable. Rylands v. Fletcher (Engl. 1868) This case is an appellate review of Fletcher, and the court held that because the defendant used his land for an unnatural use (i.e. the water was not there naturally), then he should be liable for any damage caused by the unnatural use, whether or not he was negligent. The Rylands case was believed to have an impact on tort law, but did not open the floodgates of strict liability as predicted, mainly because there were not a lot of situations similar to these cases. Turner v. Big Lake Oil Co. (Tex. 1936) The court held that in Texas, drilling for oil is a major part of the economy. Salt water is the natural byproduct of drilling for oil. Unlike Rylands v. Fletcher in which the bringing of water onto one's land in the rainy part of England is abnormal, it is not the case with salt water ponds in Texas. In West Texas, salt water ponds, as byproducts of oil drilling, is not an abnormal use of ones land. Indiana Harbor Belt R.R. v. American Cyanamid Co. The court held that the shipping (i.e. preparing the item to be shipped, and then allowing it to be picked up by the transporter) is not in itself an ultrahazardous activity. If due care had been taken in inspecting the tanker car, then this accident would probably have been avoided. Because this accident could be avoided with due care, it is not amenable to strict liability. Foster v. Preston Mill Co. (Wash. 1954) The court held that even though blasting was a strict liability, ultrahazardous activity, they declined to extend liability to blasters for disturbing mother minks over 2 miles away during mating season, causing them to kill their young. The court held that the blasting was not an ultrahazardous activity because it caused wild animals, which were being held in captivity for commercial purposes, to kill their young. They employed a harm within the risk notion, holding that it was the minks sensitivities that was actually the proximate cause of the mother minks killing their young.
XII.
PRODUCTS LIABILITY A. History/Development of Strict Liability in Tort Law 1. Originally a contract idea - express or implied warranty. 2. Problems with the contract theory led to a shift to tort. a. Privity issue b. Notice requirements c. Damage limitations d. Disclaimers of liability 3. At first, when liability shifted to tort law, it was based on negligence. 4. Then, it shifted from negligence to strict liability. 5. Restatement, 2nd, of Torts 402A. a. Strict Liability (regardless of contract or negligence) b. Personal injury or property damage (not economic loss) c. Defendant in business of selling the product. d. "Defective" products are "unreasonably dangerous" i. Surprisingly dangerous (greater than one would expect) ii. Economic logic - Market provides an incentive to make efficient improvement in products if the defect is visible. 6. Restatement, 3rd - Products Liability a. Three types of defects i. Production defects - A product that is not manufactured according to its design. ii. Design defects - The product is manufactured according to its design, but the design is bad. iii. Warning defects - The manufacturer fails to warn against known dangers or of dangers which the manufacturer should have known to exist. b. Strict liability limited to production defects. c. Design defect claim requires proof of a reasonable alternative design (RAD). This a B versus PL analysis in that there was an alternative design in which the manufacturer should have used based on risk-utility balancing. However, consumer expectations are relevant to a RAD. Defining and Proving Defect 1. Manufacturing Defects a. A product that departs from its intended design is defective. b. Welge v. Planters Lifesavers Co. - The court allowed the plaintiff, who was injured when a peanut jar shattered in his hand, to use a res ipsa like inference to show that there was a probable defect at time of sale (not res ipsa b/c not negligence strict liability).
B.
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c.
2.
3.
Circumstantial Evidence Supporting Inference of Product Defect It may be inferred that a defect caused a harm if the harm is not of the kind that ordinarily occurs as a result of product defect, and it was not solely the result of causes other than product defect existing at the time of sale or distribution. Design Defects a. Risk-Utility Balancing: Reasonable Alternative Design A design is defective if it could have been designed more safely, which implies a safer (RAD) exists. b. Prentis v. Yale Manufacturing - Court accepts negligence standard It held that unlike a manufacturing defect, the design of a product should be based on whether the manufacturer took reasonable care in light of any reasonably foreseeable use of the product which might cause harm or injury. The court also implied proof of a better design (i.e. RAD). c. Vautour v. Body Masters Sports Industries - RAD is not a requirement to prove a design defect, but it is a factor. Requiring a plaintiff to demonstrate a reasonable alternative design is often too burdensome, and often too complicated. Further, it should not be mandatory, but one of several factors. These factors are for the jury to weigh and decide, and the judge should not take these considerations away from the jury. The authors attack this opinion asking what it means for a product to be defective from a risk-utility perspective if there is no better way (i.e. an RAD) to design it. d. Potter v. Chicago Pneumatic Tool Co. (Conn. 1997) The court held that Connecticut has a long standing consumer expectation standard, and is not inclined to abandon it in favor of an alternative design standard. The alternative design view imposes an undue burden on the plaintiffs. Further, in some instances, a manufacturer's design may be defective even though no safer alternative design exists. However, in some circumstances, the ordinary consumer may not be able to form expectations of safety. Therefore, Connecticut will incorporate riskutility factors into the ordinary consumer expectation analysis such that a consumer expectation tests provides the jury with the product's risks and utility and then inquires whether a reasonable consumer would consider the product unreasonably dangerous. The availability of an alternative design should be one factor, but not determinative. e. The authors also note that sometimes the consumer expectations test is bad for consumers. In Halliday v. Sturm, the father of a boy who shot himself playing with a gun was barred from recovery because, even though the design of the gun did not incorporate child safety features to prevent the gun from being loaded, it met consumer expectations with respect to its use. f. Soule v. General Motors - Consumer expectation tests cannot be used solely as a basis for liability when there is a complex product because the ordinary consumer does not usually have specific expectations - usually they only expect that the manufacturer will be reasonable. Therefore, with complex issues, risk-utility balancing must be used. g. O'Brien v. Muskin Corp. - Case embraced the notion than an entire product line can be defective. h. Adamo v. Brown & Williamson Tobacco Corp. - Court stated that all high tar cigarettes are not defective because their utility must provide more benefit than their risk considering that people, knowing the risk of high tar cigarettes, still choose to smoke them. To declare high tar cigarettes as negligent, or that the manufacturer is strictly liable, would be to declare high tar cigarettes should not be sold, which is not for the courts to decide. Warning Defects a. Can defendant be liable if warnings were state of the art at the time of the sale? i. Anderson v. Owens-Corning Fiberglas Corp. (Cal. 1991) In order for a defendant to be liable for failure to warn, knowability of the danger requiring warning is relevant. Therefore, a defendant in a strict liability case based on failure to warn may present evidence of the state of the art, i.e. evidence that the particular risk was neither known nor knowable by the application of scientific knowledge available at the time of manufacture and/or distribution. b. Causality Issue in warning cases - Many states employ a heeding presumption that if a warning would have been provided, it would have been heeded.
C.
Should proximate cause be imported from negligence to products liability? 1. Union Pump Co. v. Allbritton - The court states that even though the defendant's product caused a fire, and it is true that but for the fire, the defendant would not have slipped and fell, it was not the "producing" (proximate) cause of the accident because it was not foreseeable, it occurred after the fire had been put out, and the plaintiff could have avoided it by not taking an unnecessary risk in walking on a wet pipe. 2. Producing cause has been rejected as a separate concept from proximate cause. Courts now use proximate cause for both negligence and strict liability. Comparative Fault 1. Yes, Plaintiff's negligence, if a contributing cause of the harm, can serve to reduce defendant's liability.
D.
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2.
3. 4. E.
Webb v. Navistar International Transportation Corp. - Although strict liability does not mean that the defendant was at fault, and therefore we will not use a comparative fault analysis, we will use a comparative causation analysis to determine the comparative liability of the parties. The overwhelming majority of states allow for the reduction of plaintiffs recovery based on comparative fault. Some states have mandated comparative fault in strict liability cases by statute. Even if a plaintiff misuses a product, the defendant can still be liable for protecting against foreseeable improper uses.
Alternative Theories 1. Express Warranty - False statements of fact regarding the functionality or quality of a product. a. 2-313 (Contract Theory) - Effect of fact or promise - Part of basis of bargain (weak reliance requirement). i. Mix of Information ii. Does not constitute statement was mix of information used if the plaintiff did not see or hear the statement. 2. Intentional or Negligent False Statements of fact create tort liability 3. Baxter v. Ford Motor Co. - Breach of express warranty is a strict liability notion - Do not need to show fault, only that factual claims about a product turn out to be false (e.g., shatter proof class is not actually shatter proof).
XIII.
TRESPASS TO LAND AND NUISANCE A. Intro: 1. 2. 3. 4.
For trespass, the plaintiff need not prove damages to get relief. However, the defendant must tangibly intrude upon the property of another. Plaintiffs like to try to apply trespass concepts to intangible invasions of property (nuisance) to try to get the favorable treatment. Plaintiffs have tried to use trespass as an alternative remedy for pollution. Trespass Has Advantages: a. No need to prove damages. b. Easier to get injunction. c. Intentional Tort - Only requires knowledge of substantial certainty.
B.
Trespass in Shades of Gray 1. Bradley v. American Smelting and Refining Co. - Defendant operated a smelter near the Plaintiffs property. As a result of its operations, Defendants smelter caused various gases and particulate matter, imperceptible to the naked eye, to be deposited upon Plaintiffs property. Plaintiff sued to recover for trespass and nuisance. The Court held that particles that remain on a property give rise to a trespass claim, but also held that actual damages needed to be shown for recovery. Private Nuisance - Defendant unreasonably interfered with Plaintiff's quiet enjoyment of land - must be significant harm. 1. Is cost benefit relevant to nuisance? "It's not so clear." 2. Restatement of Torts - Different types of nuisance: a. Intentional and unreasonable (unreasonable is not B < PL in this context - it is a significant amount of interference); b. Negligent; c. Abnormally dangerous activity. 3. Case Law is not as clear as the Restatement tries to make it. 4. Hughes v. Emerald Mines Corp. The court held that the award for total cost of plaintiffs property was not warranted based on the evidence since neither party argued whether or not the damage to the plaintiffs wells, and thus whether the property could have good water, was not answered. The case was remanded for a determination of damages. 5. Cost benefit may be relevant to remedy. 6. Restatement 826 that states that a defendant can be held liable for a nuisance regardless of the utility of the conduct if the harm is serious and the payment of damages is feasible. 7. Carpenter v. Double R Cattle Co. (Id. 1985) The court disregarded the Restatement 826 stating that Idaho is scarcely populated, and depends upon agriculture, lumber, mining, and industrial development for its economy, and can find no policy reason to warrant holding such defendants liable. Idaho considers the utility of the conduct, community interests, business standards and practices, gravity of harm, and the circumstances surrounding the parties movement to their
C.
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TORTS OUTLINE
location. The court stated that to hold defendants liable otherwise would be to place an unnecessary burden on their economy and is not warranted. D. Property Rule versus Liability Rule: 1. Property Rules - This does not allow one to take or abridge another's entitlement. Respectful of idiosyncratic values, but allows for individual monopolies. This is the approach used in providing injunctive relief. 2. Liability Rules - This allows one to take or abridge an entitlement, but requires compensation. Not respectful of idiosyncratic values, but overcomes holdout / monopoly issues. This is the approach used in the paying of damages. 3. If an injunction is inefficient, will it result in an inefficiency? The Coase Theorem may allow parties to bargain around an injunction to reach an efficient result. However, the fact that each party has a bilateral monopoly may result in an expense game of chicken in which case the parties do not reach an efficient result. "Coming to nuisance" doctrine - Not an absolute doctrine, but is a factor. It is more important as a remedy factor in determining whether the court applies a property rule (injunctive relief) versus a liability rule (monetary damages). 1. Spur Industries Note Case - Plaintiff came to nuisance, and court would grant injunctive relief only if plaintiff paid for defendant's cost to move. Remedies 1. Boomer v. Atlantic Cement Co. Inc. (NY 1970) - The Plaintiffs, Boomer and other neighboring land owners (Plaintiffs), brought a nuisance action against the Defendant neighboring cement plant, claiming damages and an injunction due to dirt, smoke, and vibrations interfering with their property rights. This court balances the equities between the two parties, refusing to close down a large cement plant even though it creates a nuisance, but allowing neighbors to recover present and future damages created by the nuisance. The court gets around the automatic injunction rule stating that a junction is granted unless the defendant fails to pay the awarded damages.
E.
F.
Page 25 of 25

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Torts Outline - Professor Wonnell - Fall 2012

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I. INTRODUCTION TO TORT LAW A.

Prof. Wonnell Fall 2012

Prof. Wonnell Fall 2012

Prof. Wonnell Fall 2012

Prof. Wonnell Fall 2012

Prof. Wonnell Fall 2012

Prof. Wonnell Fall 2012

Prof. Wonnell Fall 2012

Prof. Wonnell Fall 2012

Prof. Wonnell Fall 2012

Prof. Wonnell Fall 2012

Prof. Wonnell Fall 2012

Prof. Wonnell Fall 2012

Prof. Wonnell Fall 2012

Prof. Wonnell Fall 2012

Prof. Wonnell Fall 2012

Prof. Wonnell Fall 2012

Prof. Wonnell Fall 2012

Prof. Wonnell Fall 2012

Prof. Wonnell Fall 2012

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Prof. Wonnell Fall 2012

TRESPASS TO LAND AND NUISANCE A. Intro: 1. 2. 3. 4.

Prof. Wonnell Fall 2012

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