Torts Outline

August 24, 2011 Tort: civil wrong that is not a breach of contract o Tort is common law o Issue of precedent Language and facts of case are important

Aims of tort law Corrective justice Economic efficiency (deterrence, internalization of social costs)

Legal Cases o o Complaint (petition) Defendant then may move to dismiss o o If this fails, defendant files answer

Parties undertake discovery At this point, either party or both may move to summary judgment If this fails, case proceeds to trial and verdict

Judgment at any stage may be appealed Upper courts either affirm or remand (when they find legal errors)

Think about: o o o Does plaintiff deserve pay? Does defendant deserve to pay? What are the implications of a judges decision? How will liability affect future behavior?

August 29, 2011 (p. 121-134) Standard of Negligence o 1) Defendant owed a legal duty Duty: legal obligation that is owed or due to another and that needs to be satisfied; an obligation for which somebody else has a corresponding right

o o o

2) Defendant negligently breached duty 3) Plaintiff suffered actual damage 4) Defendants negligence was cause (both actual and proximate) of damage

Negligence (Breach) Negligence (carelessness) questions to ask: o o o o 1): Did the plaintiff owe the defendant a duty? 2) Did the defendant breach that duty by failing to use reasonable care? 3) Did the defendant take reasonable precautions against the harm that occurred? People can be negligent without being liable for the tort of negligence

The reasonable person: unless the actor is a child, the standard of conduct to which he must conform to avoid being negligent is that of a reasonable man under like circumstances o o Reasonable person follows the law at all times Some things are a matter of care, but others are intrinsically unreasonable

Feasor: person who commits an act

A. THE REASONABLE PERSON (p. 122) Mental ability and mental states Law intends what is agreeable to reason Williams v. Hays (143 N.Y. 442, 38 N.E. 449 (1894), 157 N.Y. 541, 52 N.E. 589 (1899)) Facts: Defendant = captain of boat. After 48 hours on the deck while the boat encountered storms, defendant took 15 grains of quinine for fever/malaria and went to bed. Boat sustained damage. Two other boats offered assistance, and defendant refused and appeared to be drunk or insane. Boat crashes into shore. Defendant was unable to remember the day of the incident. Procedural history: Defendant won in trial by jury. Plaintiff appealed. Issue: Does the defendants claim of insanity furnish a defense to the plaintiffs claim? Rule: An insane person is just as responsible for his torts as a sane person, {and the rule applies to all torts, except, perhaps, those in which malice, and therefore intention, actual or imputed, is a necessary ingredient.)

Holding: Justice Earl reversed and remanded

Reversal: an appellate courts overturning of a lower courts decision / Remand: to send a case or claim back to the court or tribunal from which it came for some further action Reasoning: o o o He who causes an act must bear it. There is no more justice in making others bear the losses resulting from an insane persons actions. Hypo: the defendant became insane solely from his efforts to save the boat. Defendant couldnt control the storm and became insane due to his efforts to save the boat not defendants fault.

When the case was sent back to the trial courts, judge gave a directed verdict to the plaintiff. Defendant appealed, and Court of Appeals again reversed and remanded. Directed verdict: a ruling by a trial judge taking a case from the jury because the evidence will permit only one reasonable verdict Facts: already stated above Procedural history: Defendant won. Plaintiff previously appealed. Reversed and remanded. Plaintiff then won through directed verdict. Defendant now appealing. Issue: Is it just to hold insane persons to be as responsible as sane persons for their actions when the reasons behind the insanity are beyond the control of the insane person? Rule: o A sane or insane person must be held responsible for his or her actions unless the insanity is caused by means beyond the control of the person in question and asking the person in question to act otherwise would have been asking for the impossible. Humans have limits to their mental and physical capabilities. When these are exhausted and the person has done everything within their power to correct a situation, the impossible cannot be expected from someone.

Holding: Justice Haight reversed and remanded Reasoning: o Policy states that the loss falls on the person who causes the loss. This rule serves the convenience of the public by only one persons rights giving way. o This brings negligence to a point beyond reason.

Mankind has limits on physical and mental endurance and cannot be expected to perform the impossible.

Defendant worked for three days and nights caring for the vessel and thus, did all he could do under the circumstances/limits of being human. Impossibility is an excuse in law, and there is no obligation to perform impossible things.

Notes on above cases

The law intends what is agreeable to reason. (Justice Haight) o The two Court of Appeals cases agree that a person is held responsible for their actions, regardless of sanity, but not in all cases (you cannot expect the impossible from someone). Qualifications: Exhausting physical and mental capabilities Doing everything that could be reasonably expected of a person in the given situation

Lacking the highest order of intelligence Vaughan v. Menlove 132 Eng. Rep. 490 (C.P. 1837) Facts: Plaintiff expressed concern about haystack fire on defendants property. Defendant built chimney through the haystack. Fire caused damages on plaintiffs property. Procedural history: Plaintiff won. Defendant appealed (shouldnt be responsible for not possessing the highest order of intelligence). Issue: Can the people be held to the same standards of prudence/responsibility? Rule: Did the person take ordinary, reasonable and prudent care in this case? Holding: held in favor of plaintiff Reasoning: o Courts cannot look at individual intelligence or prudence because it is too varied. o Practicality is a concern of litigation

Courts must look at whether a man of ordinary prudence observed caution or not.

Comparing Williams v. Hays and Vaughan v. Menlove Both define humans as like creatures (all have limits, all have ordinary expectations of intelligence/care) Williams offers an exception to the rule that all must be held accountable for their actions, regardless of their sanity.

Vaughan offers no exception in this case people must be held to the same standards of ordinary prudence. The same rationale does underlie the two cases because the outliers to these rules need to be more extreme instances of exception. o For example, being stupid does not pardon poor judgment, but being past the physical and mental limits of humanity does pardon poor judgment.

Mental disabilities Lynch v. Rosenthal 396 S.W.2d 272 (Mo. App. 1965) Facts: Plaintiff is 22-year-old man with the mental capacity of a 10-year-old and IQ of 65. Plaintiff engaged in corn picking with defendant. Plaintiff lost arm in personal accident with picker. Procedural history: Plaintiff won in trial by jury. Defendant appeals. Issue: Can a third party be responsible for not issuing reasonable warning to a mentally-deficient person? Rule: In cases of mental deficiency, when instructing a person of lower mental capacities, the third party can be liable for not issuing proper caution. Holding: held for the plaintiff (Lynch) Reasoning: o Expert witness (psychiatrist): Defendant did not have independent ability to realize the danger of moving objects but could have understood verbal warning. Very low aptitude warrants different standard of care

Notes on above case In this case, we are evaluation the plaintiff as well as defendant (due to circumstances and contributory negligence claim) The defendants specific mental impairments were very important in this case due to the facts.
Lynch and Vaughan are similar in a superficial way o Both examine the idea of expectations of ordinary people

Cases are different

Lynch documented mental incapability, more extreme than not possessing the highest order of intelligence Plaintiff alleged he was contributorily negligent for coming too close to the picker

Vaughan claimed that defendant just simply wasnt as smart as the average person, so he shouldnt be held to the same standards

Distinct defects (Holmes)

Blameworthiness does not consider individual differences, but . . . There are exceptions to the universal standard of ordinary capacity o Distinct defect that is recognized by all as making certain precautions impossible therefore, person is not liable for these impossibilities Blind man is bound to consider his blindness when making decisions, but is not liable for not taking precautions requiring eyesight nor for injuring others in this respect

No general rule for insanity Insanity prevents a person from complying with the rule that he or she has broken

Vaughan v. Menlove: no distinct defect / Lynch v. Rosenthal: distinct defect Allowances: o o Children have inferior qualities of mind and body and are judged on that basis Allowance is made for adults who are ill or physically disabled

Bridge unsafe Weirs v. Jones County 53 N.W. 321 Iowa 1892 Facts: Defendant deemed bridge unsafe and posted Bridge unsafe signs. Plaintiff cannot read English, drove wagon over bridge, and bridge collapsed. Procedural history: Defendant won. Plaintiff appeals. Issue: Is it negligent to put up a sign only in English? / Is being unable to read English an excuse for not following posted, English instructions? Rule: Notices ordered by the proceedings of the boards of supervisors are required to be in English. Holding: Court of Appeals affirmed Reasoning: o Jury was instructed to decide if countys actions gave warning to an ordinary person and if county maintained these signboards. o o If so, it didnt matter if defendant couldnt read it.

Jury found that the county took necessary precautions to notify passersby that the bridge was unsafe. Plaintiff cannot argue for a higher standard of care that is not

applicable to persons in general.

Comparing Weirs v. Jones County and Lynch v. Rosenthal Differences o Ability to learn English, ask for help, and interpret pictures/colors of signs are within someones potential capacity o There were resources that the defendant could have sought out

Mental handicaps are unable to be altered

Superficial similarity o What constitutes a situation in which someone gets special treatment?

Reasonableness and religion Friedman v. State 54 Misc. 448 (N.Y. Cl. 1967) Facts: Plaintiff stuck on ski lift (ski resort operated by state of NY) with male friend. Plaintiff jumped 20-25 feet and broke into base camp to call for help. Plaintiff sustained injuries in the fall. Procedural history: Plaintiff sued state and was awarded $35,000. Defendant appeals saying plaintiff was contributorily negligent. Issue: Were the plaintiffs actions reasonable given the situation? Was there a moral compulsion component? o We, as students, need to care about the religion factor here.

Rule: Actions resulting from expectable hysteria [and moral compulsion] negate contributory negligence. Holding: Court of Appeals affirmed but reduced award to $20,000. Reasoning: o o Affirmed that her actions resulted from expectable hysteria Reserved judgment on the moral compulsion component

Comparing Weirs v. Jones County and Friedman v. State Both cases involve a persons individual traits (language, religion), but neither hold these traits as valid game changers If the plaintiff had jumped twice as far, I think it is still a reasonable choice if she thought she would perhaps freeze overnight and jumping was her only recourse.

Contributory negligence Comparative negligence plaintiffs recoveries are proportionate to their fault Contributory negligence: a plaintiffs own negligence that played a part in causing the plaintiffs injury and that is significant enough (in a few

jurisdictions) to bar the plaintiff from recovering damages

Comparative negligence: a plaintiffs own negligence that proportionally reduces the damages recoverable from a defendant

One degree of care Fredericks v. Castora 360 A.2d 696 (Pa. App. 1976) Facts: Plaintiff riding in car and hit by two trucks. Procedural history: Defendant won. Plaintiff appealed (truckers should have higher standards of negligence in accidents b/c they are professional, experienced drivers) Issue: Can experts in a field be held to higher standards due to their expertise? Rule: The average motorist is held to the ordinary standard of due care under the many circumstances drivers encounter. Holding: Court of Appeals affirmed. Reasoning: o o The concept of reasonable care is already varied and difficult to assess without giving experts higher standards by which they must abide. There is only one degree of care to which everyone is held.

Supernormal strength, x-ray vision, etc. Actors must utilize reasonable care, but also those superior qualities and facilities which he himself has o A person who is highly trained is held to higher standard in appropriate circumstances

Application to Fredericks v. Castora (truckers) o The competence available to a truck driver re driving is higher than the average person, but how could you ever prove that the trucker was not still doing everything within his power to prevent an accident? It is easier to see how a doctor should be able to recognize his childs illness and take precautions, but the truckers were operating under an emergency situation, which could have inhibited their normal judgment.

The example of strength doesnt really hold water for me.

Physical Infirmities The reasonable prudent deaf man Kerr v. Connecticut Co. 140 A. 751 (Conn. 1928)

Facts: Kerr = deaf man, walking along trolley tracks. Trolley comes, and driver sees Kerr. Trolley driver sounded the horn and applied his brakes. Trolley hit Kerr, and Kerr died. Procedural history: Defendant is not negligent. Plaintiff is negligent. Plaintiff appeals. Holding: Affirmed. Reasoning: o Kerr was required to exercise care for his safety as a reasonably prudent man. He knew he was walking near trolley tracks, that a trolley could hit him due to his proximity and that he couldnt hear. Kerr did not take reasonable precautions walked too close to tracks and didnt look back at tracks.

Blindness Davis v. Feinstein 88 A.2d 695 (Pa. 1952) Facts: Plaintiff is blind man walking down a street using cane to identify surroundings. Plaintiff falls into cellar door. Procedural history: Plaintiff won. Defendant appeals. Issue: What constitutes due care for a blind person? Rule: A blind person is not bound to discover everything which a person of normal vision would. He is bound to use due care under the circumstances. Holding: Affirmed Reasoning: o Plaintiff made a reasonable effort to discern his surroundings with a cane.

Comparing the cases

Davis v. Feinstein and Kerr v. Connecticut Co. o Davis did exercise reasonable care. Kerr did not exercise reasonable care.

Davis v. Feinstein and Wiers v. Jones County o Davis used reasonable resources available to him to exercise care. Wiers did not use all available resources to exercise care.

Common issue among all cases: o The expectations regarding an ordinary persons duty to exercise reasonable caution and to give reasonable warning and the exceptions to those expectations

August 30, 2011 (p. 134-145) Age

Purtle v. Shelton 474 S.W.2d 123 (Ark. 1971) Facts: Defendant (17 years old) shot plaintiff (16 years old) on accident while hunting. Procedural history: Defendant won. Plaintiff appeals. Issue: Can minors be held to the same safety standards as adults when using highpowered rifles? Rule: If a minor is to be held to an adult standard of care he must be engaging in an activity that is (a) dangerous to others and (b) normally engaged in only by adults. Holding: Affirmed (with dissents) Reasoning: o Hunting is dangerous but based on common knowledge or the facts of the case, it is not an activity normally engaged in by adults only (in Arkansas/culture) o Therefore, minors cannot be held to the same standards as adults in this case.

Dissenting opinions: Using high-powered rifles warrants the same requirements of minors as driving an automobile, if not more, since firearms are by nature very dangerous.

7 vs. 77 Roberts v. Ring 173 N.W. 437 (Minn. 1919) Facts: Plaintiffs son was 7 years old and ran into the street. Defendant was 77 years old with impaired sight and hearing. Defendant was driving slowly but unable to stop. Procedural history: defendant won. Plaintiff appeals. Issue: Can the elderly have their age and/or physical infirmities taken into account and thus be given lower standards of accountability? Rule: An elderly persons infirmities must make the person more aware of his or her responsibilities to act reasonably given his or her circumstances. Holding: Held, for the plaintiff, that the jury was not properly instructed (jury told to take age and infirmities of the elderly man into account) Reasoning: o o A child of seven years cannot be held to the same standard of self-protection as an adult. An elderly man with impaired sight and hearing should take extra precautions, just as not driving a vehicle, due to his or her impairments. WD: What elderly person doesnt have these impairments? WD: The man was driving 4-5 mph, which demonstrates a lot of precaution.

Why hold children to a reduced standard of care but not the elderly? o Children have no choice about their level of immaturity, while the elderly are more aware of their impairments that have developed over the years and what

steps they should take to ensure their safety. Motorboats v. velocipedes Dellwo v. Pearson 107 N.W.2d 859 (Minn. 1961) Facts: Defendant (12 years old) drove powerboat through plaintiffs fishing line. Caused damage to fishing rod and injury to plaintiffs eye. Procedural history: Defendant won. Plaintiff appeals. Issue: Can a minor be held to the same standards as an adult when operating a powerboat? Rule: In the operation of an automobile, airplane, or powerboat, a minor is to be held to the same standard of care as an adult. Holding: Reversed Reasoning: o It is impractical and unfair to give teenagers fewer responsibilities than adults when operating an automobile.

Distinction between Dellwo v. Pearson and Purtle v. Shelton o o Activities the minors were engaging in Ages of the minors

Juvenile and adult activities Adults operate under the assumption that others are also taking reasonable precautions. Idea of Holmes distinct defect o Children fit into the category of a distinct defect because some precautions are impossible to them (beyond their human capacities at their particular age) The wonder years Dunn v. Tetii 421 A.2d 782 (Pa. App. 1979) Rule of Sevens Facts: Defendant swung a stick and caused injury to plaintiff, both of whom are 6 years old. Procedural history: Summary judgment in favor of defendant. Plaintiff appeals. Issue: Is a 6-year-old capable of negligence? Rule: Although minors are held to a different standard when judging if a minors actions are negligent, they are still held to some obligation of reasonable care. Holding: Affirmed Reasoning: o Minors under the age of seven years are conclusively presumed incapable of But when they engage in adult activities, standards raise

negligence. o Dissent The standard to be applied is that of a reasonable people of like age, intelligence and experience.

Why is the presumption conclusive that a child under the age of seven cannot be capable of negligence? What is gained by such a rule? o The presumption is conclusive because generally speaking, there are no super 7-year-olds that have higher maturity levels. The rule allows courts a simple cut-off for negligence cases.

Rule of Sevens: o 0-7: no negligence / 7-14: may be negligent, held to lower standards / 14-17: may be held to adult standards

B. RISKS AND PRECAUTIONS (p. 140) United States v. Carroll Towing Co. 159 F.2d 169 (2d Cir. 1947) Admiralty: a court that exercises jurisdiction over all maritime contracts, torts, injuries or offenses

Facts: Conners owned barge, Anna C. Barge was parked at pier. Another barges employees untied and incorrectly retied Anna Cs lines. Anna C floated away and hit a tanker, sustaining a hole. Conners bargee, although contracted to be abroad the barge, was not present. Anna C sank with cargo aboard. Procedural history: Grace Lines employees were negligent (retying lines). Issue: Is a barge owner negligent for not having a bargee present to deal with problems that arise? Reasoning: o B < PL If the cost of the burden of taking adequate precautions (to prevent a particular accident) is less than the probability of the accident occurring multiplied by potential injury and loss, then boat owner is liable.

A bargee cannot always be on a ship, but a company can reasonably require its bargee to be present during the working hours of daylight. This particular bargee had been absent for 21 hours straight with no excuse.

Introducing the Hand formula (adopted risk/utility test) When using B < PL you want to assign $ values to B and L (cost/benefit analysis) o We do put $ values on life

If B > PL than a company is not negligent b/c it is within their best financial interests to let the accident occur Courts of Appeals vary in their usage of the formula

Hand formula = ethical (put others worth on par with your own) and economic (efficient investments in safety and risk reduction) Does the Hand formula produce the same outcomes as would be generated by worrying about fairness and corrective justice? Negligence (the law) vs. Strict liability (liable for all harm caused) o o Negligence prompts victims tot take precautions as well as offenders Some risks are self-beneficial (driving)

Issue w/ Hand formula = juries arent instructed to follow it but it is common logic to think this way (whether the jury realizes it or not)