Basic Overview

Basic Overview Tort: any wrong for which the law provides redress; wrongs recognized by the law as grounds for a lawsuit Cause of action: claim against a tortfeasor Measure of damages: in a tort, the injured  is entitled to recover: 1) Loss of earning capacity / wage loss 2) Reasonable medical expenses 3) Payment for pain and suffering, including mental pain and suffering - there may be only one legal action concerning a tort - damages must include all future expected damages 3 bases for tort liability: 1) Intent: an intentional injury, such as the intentional striking of another person 2) Negligence: Failing to take the caution of a reasonable person in that situation – often requires an economic analysis of risk - comparative negligence: subtract the damage done to the  by the  from the ’s recovery 3) Strict Liability: liability by the  without fault. Usually determined by a statute - most courts require some showing of fault (either by intent or negligence) to hold a  responsible Dignitary harm: emotional harm, or harm that is demeaning to the  as a human being Direct Intentional Wrongs Establishing a claim for intentional tort to person or property Definitions: Battery: The unlawful, undesired and unprovoked use of force on another person with the intention to harm or create fear of harm in that person; harmful touching. All parts of a person’s body and anything closely attached to it (i.e. clothes, car, etc) are protected; even slight touching = battery Battery Elements 1. Bodily contact (direct or indirect). 2. Intent to do: 3. Injury or offense. Objectively measured notion—would a reasonable person find the action offensive? a. The intent must somehow be connected to the outcome of the bodily contact. Van Camp v. McAfoos [20]: Fault is an essential element to liability. Where an essential element of the cause of action is missing, there is no tort. In McAfoos,  was hit in the leg by ’s tricycle. The court dismissed the ’s claim because the  could not form the requisite intent needed for battery. - the law does  generally recognize strict liability without a statute; left with intent and negligence for causes of action. - Negligence takes age into account; i.e. the care a reasonable 3-year-old would take in a given situation - Causing an injury, by itself, will  make a  liable - Liability requires fault – established by proving intent or negligence - causes of action arise when fault is alleged - Historic strict liability: any  who acted affirmatively and directly may have been liable for the harm done, even without fault. - HSL is no longer followed; finding fault is a new concept Snyder v. Turk [24]: A person is liable for battery when he acts intentionally to cause a harmful or offensive contact and when a harmful contact results. In Snyder,  grabbed , his nurse, during an operation and berated her for her poor performance. - Offensive Contact: contact that is offensive to a reasonable sense of personal dignity. - Must be contact that would offend a reasonable person - Offense is  subjective to the ; it is always objectively understood - Battery does  require physical harm - Requires 1) intent to harm or offend 2) touching/bodily contact with another 3) no consent by the  - intention must be to harm or offend, not simply just to touch 1 - if  touches  with knowledge that the touching will offend ;  is liable for a tort - depends on state statute Cohen v. Smith [24]: an actor is liable not only for acts that cause physical harm, but also for relatively trivial acts which are merely offensive or insulting. In Cohen,  instructed doctors that her religion required than no men see her naked body. A male nurse assisted in the procedure and  won a battery action based on her lack of consent. - an actor commits battery if: a) he acts intending to cause a harmful or offensive contact with the person of another or a 3rd person, or an imminent apprehension of such contact, & b) a harmful or offensive contact with the person directly or indirectly results. -  does not actually have to touch the  directly, touching can be done through things connected to the  - no requirement for  to initiate any physical force so long a some bodily contact occurs -  must be causally linked to the contact to  - personal autonomy: every person of adult years and of sound mind and body has a right to determine what shall be done with their body – i.e. refusal of medical treatment - a surgeon acting without consent commits an assault - subjective offensive contact is an acceptable basis for tort where the  knows of the ’s subjective beliefs Caudle v. Betts (1987)—(See Note 3b on page 41). If we show that there is an intent either to injure or offend, the extent of the injury does not have to be foreseeable. Once the elements for the tort are present, then the Defendant is liable for all the injuries caused by that, regardless of foreseeability. Leichtman v. WLW Jacor Communications Inc. [27]: Offensive contact that is disagreeable, nauseating, or painful because of outrage to one’s tastes or sensibilities is considered battery so long as it is intentional and results from bodily contact. In Leichtman, two disc jockeys intentionally blew smoke in ’s, an anti-smoking advocate, face.  won for battery. - one who is present and encourages or incites the commission of a battery is equally liable as the principle tortfeasor - an employer is  legally responsible for the intentional torts of its employees that do  facilitate or promote its business. - Usually, contact from light, smoke, sound, etc.  battery – incorporated under nuisance laws - Sound waves, even with the intent to offend, lack sufficient bodily contact to constitute battery - This case was so intentional and directed at a particular person that battery was found - Not simply smoke, but the intentional direction of air Garratt v. Dailey [29]: It is not sufficient that an act is intentionally done even though the actor realizes or should realize that it contains a very grave risk of the contact or apprehension – such conduct is held under negligence or recklessness. Unless the actor realizes to a substantial certainty that the contact or apprehension will result, he lacks the intent necessary for liability. In Garratt, , a 5-year-old, pulled a lawn chair out from under . Testimony was conflicted as to whether  had the requisite intent to harm . - civil cases must prove the necessary elements of a cause of action by a preponderance of the evidence - a minor is equally liable for a tortious act as an adult - the ’s age may affect the knowledge and awareness requirements for intent or negligence - recklessness; willful/wanton conduct: a cause of action that shows actual or deliberate intent to harm or which, if the cause of action is not intentional, shows an utter indifference or conscious disregard for a person’s safety or the safety of others - punitive damages may be assessed for intentional and reckless torts;  for negligent torts - Intent -  can be liable even if he does  desire to harm  (throwing rock across the lake hypo) - Requires a purpose or volitional act; or - A volitional act with the substantial certainty of a particular outcome - substantial certainty: certainty that a result is definitely going to occur -  is liable for both intentional and negligent torts – difference in remedy - Intentional: cannot be discharged in bankruptcy court (See Davis) - More likely to receive punitive damages - Damages are generally more liberal - Statute of limitations is longer - No proximate cause requirement 2 Insanity Walker v. Kelly [34]: Where a tort requires a particular state of mind, and an infant (due to age or capacity) cannot form the requisite intent, he is not liable for the tort. In Walker, under a Conn. statute, the parents of  sued the parents of  for a willful and malicious act done by a minor. The court found that  (5-years-old) was unable to form the requisite intent or to appreciate the risk. - an infant cannot be held liable where malice is the gist of the tort and he is too young to formulate the necessary malicious intention - Intent: a state of mind in which a person seeks to accomplish a given result through a cause of action; a desire to bring about a result that will invade the interests of another – either expressly entertained or implied from ’s conduct and the circumstances - Respondeat Superior: employers are liable for torts committed by their employees committed in the scope of their employment - In the absence of a statute, parents must be at fault to be held liable for their child’s acts - Ex: if the parents know that their child may commit a tort and fail to refrain them, the parents are at fault - The  did commit a battery; the case hinged on the parents’ vicarious liability; because the  failed to show malice (statutory requirement) Polmatier v. Russ [37]: Insanity is not a defense to tort liability if the  otherwise falls into the definition of the tort. In Polmatier, , a schizophrenic, killed his father-in-law and was acquitted of murder by reason of insanity. The court found him guilty of battery in the case of a tort. - Insane persons are liable for intentional torts: (policy reasons) - Requires families of the insane to restrain insane persons - Tortfeasors won’t simulate insanity to escape punishment - There is a redress for the injuries suffered - for an ―act‖ to be done, the act must be an external manifestation of the actor’s will - cannot be merely a convulsive or reflexive action - insane persons can irrationally choose to act - the intent requirement in civil law is less strenuous than in criminal law (requires no malice) - there is no liability if the ’s insanity prevents him from forming the requisite intent - ex: an epileptic has no control over his seizures -  may be liable for negligence – i.e. if the  knows of his affliction and takes no care Assault Definitions Assault: an act by a  that puts a  in apprehension of imminent bodily touching that would be harmful or offensive & the  must either intend to: a) put the  in apprehension of a touching that would count an harmful or offensive under battery rules, or b) the  must intend some other trespassory tort, such as battery itself. - no touching is required Dickens v. Puryear [42]: For assault, the apprehension created must be one of an imminent harmful or offensive contact, as opposed to contact in the future. In Dickens,  beat  severely and threatened to kill him if he did not leave town.  was not found guilty of assault because the thread was not of imminent harm. - imminent  immediate, in the sense of instantaneous contact; rather, it means that there will be no significant delay in action - mere words  assault; there must be some overt act - mere words may result in the intentional infliction of emotional distress - future acts are considered actionable, if at all, as IIED rather than assault. - the statute of limitations for intentional torts is generally longer than for non-intentional torts - the statute is often relaxed if  filed late because of fears / a threat from the  - imminent bodily contact must be to the human person; cannot be to pets - for an assault to be actionable, the  must reasonably apprehend imminent touching - words may be able to negate an imminent touching: i.e. ―I’d like to hit you‖ - tortious assault requires apprehension of imminent touching; of there is no apprehension, there’s no tort 3 Transferred Intent Doctrine Davis v. White [33]: Under the transferred intent doctrine, one who intends a battery is liable for that battery when he unexpectedly hits a stranger instead of his intended victim. In Davis,  intentionally shot at a 3rd person and accidentally hit . - if one intentionally commits an assault or battery at another and by mistake hits a 3rd person, he is guilty of assault or battery of the 3rd person. - Transferred intent does not always require substantial certainty to batter a third party Alteiri v. Colasso [46]: an act designed to cause bodily injury to a particular person is actionable as battery not only by the person intended to be injured by the actor, but also by a third party who is in fact injured. In Alteiri,  threw a rock intending to scare a third party but accidentally hit the . He was found guilty of battery due to the transferred intent of his action. - where one merely intends to commit an assault, if bodily injury results to one other than the person  intended to put in the apprehension of bodily harm, the injured party has an action for battery. Intent: a purpose or substantial certainty; both assault and battery require intent - transferred intent may also be used to change the type of tort brought: assault to battery; or battery to assault – depends on whether bodily contact occurs 5 common law trespassory torts 1) battery 2) assault 3) false imprisonment 4) conversion / trespass to chattels 5) trespass to land - all trespassory torts require intent; transferred intent applies to all as well Rule of extended liability: a  guilty of an intentional tort is liable for all damages caused by the tort,  simply those foreseen or intended. There is no proximate cause prong to an intentional tort analysis. False Imprisonment Definition: False Imprisonment: FI occurs when a person intentionally confines another without lawful purpose, against his consent, within a limited area, for any appreciable time, however short. The  must intend to confine the  and the  must have knowledge of the confinement. Elements of False Imprisonment 1. Intent to confine 2. Confinement/restraint a. physical barriers b. assertion of legal authority c. force, implicit or express, or threat of force d. duress of goods—very limited 3. Against P’s will 4. Unlawfulness of confinement/restraint 5. P must be aware of the confinement or be harmed otherwise Nominal Damages: Money awarded for the violation of a trespassory tort if no actual or punitive damages are available; usually $1 Hardy v. Labelle’s Distributing Co. [49]: False imprisonment is only actionable if the  is restrained unlawfully against her will. In Hardy,  was suspected of shoplifting and was questioned in the back room of a store. There was no action for FI because the  could have left at any time. - False Imprisonment requires: 1) intent to confine 2) restraint / confinement of  3) against the ’s will 4) the unlawfulness of the restraint 5)  must be aware of the confinement or be harmed otherwise - the harm arises from the awareness of being confined; awareness itself is a damage 4 - - the restraint may be by acts or mere words which the person fears to disregard FI is a trespassory tort – a  can recover even if no harm was actually done so long as the  knows of the imprisonment - If the  does not know of the imprisonment, but is harmed, there is a cause of action; ex: baby locked in a bank vault hypo false imprisonment = false arrest FI must be a confinement by (1) physical barriers or (2) threats,  an exclusion from an area Confinement to a small town may count as FI; not to a larger area such as a state FI may also occur through duress of goods - holding a ’s goods so that they cannot leave - ex: holding a person’s car in a bad neighborhood; an innkeeper withholding a ’s luggage so they cannot leave (must be held unlawfully) Intentional Infliction of Emotional Distress - normal awards of pain and suffering / emotional distress are parasitic damages in addition to trespassory torts IIED is a stand-alone tort, yielding damages on its own Elements of IIED (or “Outrage”) 1. Intent to cause distress or reckless behavior that the reasonable person would identify as having risk of distress (intent is directed not just at the conduct but at the consequence of that conduct) 2. objectively extreme/outrageous conduct (cannot be ―merely insulting‖) 3. actually causes emotional distress 4. distress must be severe (some states require some evidence of physical symptoms or having sought healthcare for the particular problem) a. The severity must be proved, but does not need to be foreseeable. GTE Southwest, Inc. v. Bruce (1999) [498]—Employer charged at employees, yelled, screamed, pounded fists on desk, made employees vacuum offices, stared at them without speaking. This is more than insensitive or rude behavior. It was severe and occurred regularly. Court ruled this was IIED, based largely on its severity and regularity. This tort was created so that it did not require contact, to fill in the gaps of assault law, where D kept enough distance between himself and P to avoid assault, but there was still outrageous conduct that warranted compensation for P. BUT— didn’t want to make IIED so broad that anyone who was ever insulted could sue. Thus, rude or insolent or inept or inartful actions won’t cut it—not extreme or outrageous enough to qualify for IIED. Thus also why the requirement of SEVERE harm; not just any harm is enough. The trespassory torts have no similar threshold for damages. “Merely Insulting” Made Extreme/Outrageous Via Circumstances HYPO: One law student said to another that he is the worse *** in the school. Extreme or outrageous? Probably not. But are there ways we could take that language and make it extreme or outrageous? Repetitive conduct Relational circumstances: the actor is a superior or authority figure to the victim. Racial/ethnic/gender-based insults. Homer v. Long [491]:  recovered for IIED from a therapist who seduced ’s wife because of the certainty that the therapist's actions would result in emotional harm. - Regarding 3rd party IIED, the  is subject to liability if he intentionally and recklessly causes emotional distress a) to a member of a person’s immediate family who is present at the time whether or not such distress results in bodily injury, or b) to any other person who is present at the time if such distress results in bodily harm - the restatement of torts requires the 3rd party to be present at the commission of the tort to recover for IIED - the requirements for claims by 3rd party s are relaxed when  is certain that his conduct will affect someone - ex: parents may recover for IIED from a  who molested their child – it was certain that ’s action would emotionally harm the parents - Innkeepers and Common Carriers owe a higher duty of care to their clients and are more susceptible to IIED - IIED is difficult to prove: always prefer to use a common law trespassory tort if you can 5 Torts to Property Trespass to Land: clausum frigit: break the close… the only intention that was required is the intent to walk upon that particular land. You can get innocent trespessors to land: if they think the land is theirs and walk on it, then they have still committed a tort. - Technical Damages. Every state has a figure that is the ―nominal damages‖ figure—often around $1.00. That is available when the tort has only technical damages—no real damages occurred. - Strict Liability. If while on the land D causes damages, even unforeseeable damages, D is strictly liable. - Parasitic damages rule applies: D is liable even if he did not intend the damage and could not foresee it. - Objects. Can use an object to trespass (e.g., throwing a rock onto your neighbor’s lawn) - Extent of Property. o Old view: persons owned land ―to the sky‖ and ―to the middle of the earth.‖ o Modern day view: you own as much of the property as you can make functional use of. The trespass must be such that it is a real disturbance to the use of the property. (Walking on the land is trespass per se.) - Unintentional entry. If a person enters unintentionally (e.g., thrown onto land by someone else) it is trespass if he refuses to leave. - Damages. Can recover for (1) cost of repairs —OR— (2) the diminished value of the property REMEMBER: The intent for any one of the trespassory torts, when it results in the commission of another, will transfer to whichever tort winds up occurring. If you intend only trespass and wind up committing battery, the intent will transfer. Conversion of chattels: the total taking of another’s property and converting it to one’s own use through the exercise of dominion over it. - conversion is an intentional tort - not required that the  intends to do wrong - Damages -  is liable for the value of the item at the time and place of the taking - Factors on damage calculation: 1) extent and duration of control 2) ’s intent to assert a right to the property 3) ’s good faith 4) the harm done, & 5) the expense or inconvenience caused - if the marked value of a chattel fluctuates (i.e. stock);  is liable for the highest market value at a reasonable time for replacement -  may also recover via replevin or ―claim and delivery‖ - trespass to chattels: a temporary taking of an item - damages are measured by the value of the time in which the item was lost - just as in property, possession of chattels is greatest against all but the true owner - In circumstances concerning a Bona Fide purchaser, generally, the true owner always receives the goods - Exceptions to conversions with BF purchasers: 1) currency 2) entrustment provision of UCC Art 2 3) buyer in the ordinary course of business (statutory estoppel) 4) recording statutes – real estate 5) BF purchaser of a voidable title 6) Holder of negotiable instruments - Trespass to land & chattels is a strict liability offense - only possible exception is that an innocent / unknowing trespasser may  be liable for emotional distress stemming from the tort – courts vary on the assignment of damages Forcible Harms as Civil Rights Violations Yang v. Hardin [57]: An officer who is present and fails to prevent other officers from infringing upon a 3 rd party’s constitutional rights is liable under 42 USCA § 1983 if the officer had reason to know that (1) excessive force was being used (2) that a citizen had been unlawfully arrested or (3) any constitutional violation had been committed by a law enforcement officer & the officer had a realistic opportunity to intervene and prevent the harm from occurring. In Yang, a second officer was found liable under federal legislation for not preventing his partner from dragging  with his car, beating , and stealing from ’s store. - seizure (i.e. Amend 4) occurs when a government actor restrains a citizen’s liberty by physical force or a showing of authority 2 elements for liability under 42 USCA § 1983: the conduct complained of 6 1) was conducted by a person acting under the color of state authority & 2) deprived the victim of rights, privileges, or immunities secured by the Constitution or under US law a) 4th amendment rights – unreasonable searches and seizures b) due process violations c) 8th amendment violations – cruel and unusual punishment § 1983 applies to public school teachers as well - includes payment of ’s attorney's fees (unusual in torts) as an encouragement to use the Federal forum § 1983 rights may violate: Defenses to Intentional Torts / Privileges NOTE: The elements of torts tend to be rigid, yes/no questions. The defenses tend to be more nuanced and tentative. These are defenses, but function in effect as affirmative defenses: the defendant has the burden of production and of persuasion. Therefore, if the jury finds that they are ―on the fence‖ between defendant and plaintiff, then they should find for the plaintiff on the defense issue because the defendant had an affirmative duty to prove and persuade. The one element that has ambiguity, is consent. It is not terribly clear who the burden is on and states go in a variety of directions. Some states view consent as a sort of ―implied‖ element and place the burden on plaintiff, and others view it as defendant’s duty to show consent was there if it was. ―Confession and avoidance.‖ Defendant says, ―I admit that I hit him, but I did it in self-defense.‖ Thus, the defendant by way of confession concedes the elements of the crime, but ―avoids‖ its penalty by showing a defense for it. The affirmative defense, in theory, concedes the elements but gives a reason why Defendant should not be found guilty, elements aside. Definitions: Self-Defense: One is privileged to use reasonable force [objective] to defend against a reasonable apprehension of harmful or offensive bodily contact, or against confinement. The privilege depends on the apparent necessity of self-defense (as perceived by a reasonable person), not the reality of the situation. - Must be defensive, cannot be retaliatory - Reasonable force - force used must be reasonable and proportionate to the harm inflicted - the perceived harm must be assaultive - ...to defend against reasonable apprehension of: - immediate bodily contact - offensive bodily contact - confinement - the threat thereof - Privilege depends on the apparent necessity of self-defense - as perceived by a reasonable person - People are entitled to act on reasonable appearances: reasonable mistakes work for the benefit of the actor - Retreat is similar to that in criminal law – the doctrine of retreat only applies to cases of deadly force - Use of self-defense force may no longer be reasonable if retreat was available. - Where the choice is either to use too much force or no force at all, the law says that in certain situations you have to take the force upon you rather than use deadly force if the attack is not deadly. - BUT—law says it is reasonable to threaten an amount of harm that is not actually reasonable to use. - Attacks that are purely verbal do not give any right of self-defense or retaliation. This is the ―words alone‖ doctrine. - Informational words: ―I am walking in your house and killing your children.‖ The words are the vehicle by which victim learns of attacker’s intentions. They aren’t words alone. - As opposed to insulting words. Repetition, imbalanced power relationship, etc. may change that. Defense of others: One may defend others on the same basis which he may defend himself. - there must be a reasonable assumption that the 3rd party requires defense - the same elements apply as to self-defense: proportionality, reasonable assumption, etc. - Review of derivative theory, where C’s right to defend B is based upon B’s right to defend himself. - Review of primary theory: each human has a primary right to defend others when it reasonably appears that another person is being made the subject of unwarranted force. Discipline: Under general parental rights, parents may use whatever force they reasonably believe is necessary for discipline - the force must be reasonable; parents cannot beat their children 7 - - reasonable standards apply to teachers as well; many towns protect teachers with statutes - In loco parentis: teacher / guardian of children has an individual right to discipline the child; the right to discipline is not derived only from the parents Lawful Arrest / Detention: Citizens may commit an arrest only if a felony has been committed or if a misdemeanor creating a public nuisance occurs in their immediate vision. Merchants may lawfully detain persons whom they reasonably believe have committed a theft. Merchant privileges are outlined by state statutes. - Resistance to unlawful arrest [79 n.6]. Citizens Arrests are disfavored in many ways and they have a narrow scope. When a citizen undertakes an arrest and it is unlawful, then it is clear that there is the privilege of a reasonable amount of force to resist. Arrests by law enforcement personnel are trickier. Should there be a right recognizable in tort suits to resist an unlawful arrest? - Our personal autonomy and rights are the same regardless of whether it is a police officer or private citizen unlawfully arresting the party, so why should the defenses to it be different when it’s an officer? - Policy argument to the contrary is that you submit to the arrest (discourage violence during arrests) and then take your day in court to bring suit against police if arrest was actually unlawful. - Common law position was that you could use reasonable amount of force to resist an unlawful arrest. But the arrestee is not usually in a good position to judge whether or not it is unlawful. - States have attempted to distinguish police officer arrests that are merely unlawful and those that are the product of bad faith. Necessity: a condition arising out of circumstances that compels a certain course of action, the opposite of which is unavoidable. Lawful Arrest Great A&P Tea Co. v. Paul (1970) [80]: One who reasonably believes that another has tortiously taken chattel upon his premises and has failed to make due cash payment for a chattel purchased or for services rendered, is privileged without arresting the other to detain him on the premises for a necessary time to make a reasonable investigation into the facts. In A&P,  was found guilty of false imprisonment because he has no probable cause to believe  had stolen merchandise from the store before detaining him. - a private shopkeeper/person may arrest a person: a) when there is a felony being committed or in fact has been committed, --AND-b) he has probable cause to believe that the person being arrested has committed it; --OR-c) there is a misdemeanor being committed in the view of the person that threatens an immediate breach of the peace - breach of the peace: disorderly, dangerous conduct disproportionate to the public peace (not shoplifting) - a property owner has a common law privilege to detain a person against his will whom he believes has tortiously taken his property only to prevent theft or to recapture the property, not for the purpose of punishment. - The individual may only use reasonable force - If the detainer is mistaken as to the guilt of a thief, he is liable for false imprisonment (exception for shopkeepers) - Merchants usually have statutorily granted rights (§120A) to detain shoplifters if they have a reasonable suspicion [objective notion] that there has been some violation to the detriment of the shopkeeper, then the shopkeeper has a privilege to make a temporary detention. Type of detention Police Private Citizens  police right to arrest - require probable cause & are limited to felonies - require a reasonable use of force Only applies to merchants - may detain for questioning with a reasonable suspicion Arrest Require probable cause to arrest Detention short of arrest Reasonable suspicion short of probable cause 8 Defense of Property / Recapture of Chattels Katko v. Briney (1971) [82]: An owner of a premises is prohibited from willfully or intentionally injuring a trespasser by means of force that either takes a life or inflicts great bodily injury. In Kato,  was found guilty of battery for setting up a spring gun in his garage that injured two trespassers. - the use of a spring gun is prohibited except to prevent the commission of violent felonies and where human life is in danger. - Burglary is not necessarily a violent felony - Only reasonable force may be used to protect property - Deadly force (or force with a high likelihood of bodily harm and death) is only permissible when the actor or a 3d party is physically threatened—it is never permissible when defending only property - a property owner may threaten to use deadly force which he is not permitted to use - a thief has no right to resist the defender’s force because it is privileged - escalating force may turn into privileged self-defense by either party Conditional Intent: intent to commit an act conditioned on a future event – in the case of a spring gun the future event is the entry into a house triggering the battery. Brown v. Martinez (1961) [84]: There is no privilege to use any force calculated to cause death or serious bodily injury where only property is threatened. Court does not determine whether ’s intention was actually assault, or if he was privileged to use the gun in that manner to defend property. In Brown,  fired a gun into the air to scare off kids stealing his watermelons. The shot came down and injured the ; the ’s act was not privileged. It applied as battery through the doctrine of transferred intent (his intent was assault, end result was battery). - a citizen may use force reasonably necessary to overcome resistance and expel an intruder. If the defense escalates, the citizen may escalate his force proportionally and even kill the intruder if necessary to defend himself. - Only reasonable force may be used to protect property Hot Pursuit Doctrine: an owner may chase a thief if he sees him taking his chattels and use reasonable force to regain the property - once the fresh pursuit is over, the owner cannot use any force to take the property lawfully – he must take legal action. Consent The special case of consent [86-87] Whether or not there was consent is a product of all circumstances, and from whose standpoint to we determine how those circumstances should be interpreted? Subjective honest actual assessment isn’t what counts. What would a reasonable person in each party’s position have thought? As between those two objective versions, which standpoint to we adopt? - Most states take the defendant’s reasonable view. - But if you’ve got people on the jury who are sympathetic to the plaintiff, that may turn out differently. If the consent was from the touching, which was consented to, then any injury flowing from that is not actionable because that initial touching was consented to. - HYPO: 2 guys in a bar arguing over who was tougher. One guy puts his hand out and invites other to chop his hand off with a knife, and the other guy does. Person with hand cut off sues for battery. How would that come out? - If we can show that a reasonable person would have viewed it as a joke, then the cutter would be guilty of a tort - If we can determine for positive that this was not a joke, then what? - There is a limit to what the law will allow people to consent Volenti non fit injuriu: To the willing, there is no injury. - To the extent that people consent, they cannot later complain about it. - There is an estoppel notion here: the plaintiff is estopped from complaining about something he consented to. - Different from criminal law, where the lawsuit comes from an entity besides the person who consented. - Does the law want to place some limit on peoples’ ability to consent? - Yes. Consent is a complete defense, although most states draw the line at consent to death and serious bodily injury. 9 Reavis v. Slominski (1996) [87]: The defense of consent is not effective if a person lacks the capacity to give consent. The capacity of the person depends on the ’s knowledge of the ’s lack of capacity. In Reavis,  and  had an office sexual relationship which the  terminated. Later the two had sex to which the  consented and  charged  with harassment because  lacked the ability to say no to sex. - incapacity of an adult renders her consent ineffective only if her incapacity substantially impairs her ability to understand and weigh the harm against the benefits flowing from the proposed conduct - the ’s incapacity does not render her consent ineffective unless the  has knowledge of that incapacity - consent is an objective standard - do not examine the secret intention of the parties, instead look at what was manifested to a reasonable person -  has the BOP to prove a lack of consent - the exploitation of a person’s duress, usually, does not eliminate a consent defense - exception: Breach of fiduciary duty: when  has a professional / fiduciary role with standards and he abuses those standards (i.e. a psychiatrist sleeping with a patient) Ashcraft v. King (1991) [89]—P consented to operation on the condition that only blood from family members is used. Hospital used other blood, and then P got HIV from it. This was considered a battery because the transfusions exceeded the consent given. - This would have been the outcome even without the HIV; it wasn’t the HIV that constituted battery, it was the hospital’s exceeding the consent given. - The HIV just increases the damages. - Once we establish the battery, the hospital is liable for all damages stemming from it, even though the damages may not have been foreseeable. Kennedy v. Parrott (1956) (Minority Position for Medical Consent) [89]: In surgical procedures, the condition of a patient is not fully known until surgery. Hence, consent to surgery is considered as general consent allowing the doctor to remedy problems beyond the original scope of the operation. In Kennedy,  removed cysts on ’s ovary during an unrelated operation. The cysts ruptured and  sued for battery due to lack of consent. The court ruled for  stating that consent to surgical procedures was implied. - Majority rule is against Kennedy – unless the doctor is involved in an emergency situation, any surgery beyond what was consented to constitutes a battery. - The burden is on doctors to get patients' consent to all procedures - consent must be informed - in cases where patients are unconscious, implied consent allows doctors to administer life saving procedures - if a patient refuses to consent, even to life saving measures, the doctor is liable for battery Two ways to deal with this case 1) Negligence. Less technical, but has to go through medical review boards, and damages will have to be foreseeable to be awarded. 2) Battery. Has many procedural advantages. It is a technical charge, because most people would want the cyst removed, but once battery is established, then all damages flowing from it are included. Doe v. Johnson (sexual consent) [91]: One who knows he has a venereal disease and knows that his sexual partner does not know of his infection commits a battery by having consensual intercourse. In Doe, Magic Johnson had sex with  who did not know he had aids and was found guilty of battery. The court rules that sexual intercourse with someone who has HIV is an essentially different act than having sexual intercourse with someone who does not have HIV. - Apparent consent. Consent will be vitiated by fraud. What appears to be consent does not count as a defense if brought about by fraud. - Whether fraud counts depends on the nature of the transaction. Not all fraud destroys consent. - Essential Fraud (―fraud in the factum‖). Fraud in the essence:  does not know what he is consenting to; the fraud creates a confusion as to what exactly happens - Collateral Fraud. Fraud in the inducement:  knows what he is consenting to, but believes it’s for a different purpose; the fraud creates a confusion about why something happens - Doe could have more likely been brought as a negligence claim; battery requires intent to harm 10 Privileges Not Based On Plaintiff’s Conduct Necessity Surocco v. Geary (1853) [94]: A person who tears down and destroys the house of another, in good faith and under apparent necessity, during a time of conflagration for the purpose of saving the adjacent buildings is not liable for damages to the owner's property. In Surocco,  blew up ’s house to stop a raging fire and  sued for the value of the items lost. The court denied recovery because of necessity. - All elements of conversion are present, but necessity is a full justification;  is not liable for any damages - Public Necessity. In a great disaster, the private rights of an individual yield to the considerations of general convenience and the interests of society. - Note that in this case, the one house destroyed would have been one of the group of houses burned by the fire; it was a goner either way. But by destroying it in this fashion rather than letting the fire take it, the other houses are saved. - Building owners of the world can take precaution against this situation by insuring the building; however, sometimes insurance excludes intentional destruction or acts of state (and D was acting in his position as a state officer) - It wasn’t unconstitutional taking. Why? - Unconstitutional taking statute hadn’t been passed yet! Today, this would be a pretty clear takings case: property was taken by the government, for a public purpose, so just compensation would have to be paid. - the tortfeasor is the judge of when an action is necessary: it must reasonably appear that the choice made is the ―lesser of two evils‖ Wegner v. Milwaukee Mutual Ins. Co. (1991) (taking by necessity) [96]: In situations where an innocent 3d party’s property is taken, damaged, or destroyed by the police in the course of apprehending a suspect, the municipality is to compensate the injured party for the resulting damages. In Wegner, local police damaged ’s house while trying to apprehend a suspect. The court ruled that the necessary damages constituted a taking and were compensatible. - normally, a successful necessity defense denies all recovery. - Wegner involved a government action and granted compensation, not damages - Where the public benefits from the taking, the public should have to pay (tax money going toward compensation) - If the police had been at fault, they would have been liable for negligence and the corresponding damages - This isn’t a ―fault‖ case though; it is a compensation for takings Ploof v. Putnam (1908) [99]: Necessity will justify entries upon land and interferences with personal property that would otherwise constitute trespasses. In Ploof,  was able to moor his boat to ’s dock during an incredible storm because of necessity. - necessity must be due to outside events Public Necessity: if a tort is committed to avoid a greater harm, public necessity acts as a defense to everything: (1) the technical tort of conversion or trespass and (2) public necessity acts as a defense to all tort damages (may be considered a taking) Private Necessity (here): private necessity is a defense to the technical tort, but the actor must pay for damages caused - If the technical trespass or battery is a lesser evil than what the person is trying to avoid, then private necessity is a defense to the technical charge, but will still be liable for the damages caused Vincent v. Lake Erie Trans. Co. (1910) [100]: Where a  prudently and advisedly avails himself of a ’s property for the purpose of preserving his own more valuable property, the  is entitled to the value of the injury done. In Vincent,  tied his boat to ’s dock during a storm causing damage to the dock. The court denied trespass charges, because of necessity, but awarded  damages. - Private necessity allowed  to avoid liability for trespass, but he was responsible for the damage caused Hard to say when there are enough people or houses being protected to be considered a public (as opposed to private) interest being served. What about killing someone out of necessity (to save the lives of more people)? (Example of a school bus on a mountain road, either going to collide with a car, hit and kill two kids at a busstop, or drive off the cliff.) - If it’s a public necessity, that may be a defense. - If it’s a private necessity, then probably not a defense. 11 Negligence 5 elements to establish a prima facie case of negligence:  must prove 5 elements by a preponderance of the evidence 1) Duty.  owed  a legal duty - the question of what duty is owed is a question of law and never goes to the jury - if  owed  no duty, he is not liable even if he acted negligently in light of the foreseeable risks - most often,  owes  a duty of reasonable care - duty of reasonable/ordinary care: the duty to exercise the care of a reasonable or prudent person under the same or similar circumstances 2) Breach. , by behaving negligently, breached his duty to  - breach of duty of ordinary care is simply behaving recklessly. - This is sometimes called ―negligence‖: describing just that portion of the tort that is the breach 3) Damages.  suffered actual damages - Proof that π was harmed by the Δ’s breach of duty is part of establishing the tort; it isn’t just used to figure out what damages you can recover as in the trespassory tort - damages must be actionable, not technical as in the case of intentional torts 4) Causation in Fact. ’s negligence was an actual cause (cause-in-fact) of ’s damages, and - the damages must be traced to ’s breach/negligence - ―but for‖ ’s breach/negligence, the damages wouldn’t have occurred 5) Proximate Cause. ’s negligence was a proximate cause of ’s damages - there must be a direct, foreseeable relationship between the breach of duty and the harm caused - What happened to π must be one of the risks that led us to call the action negligent in the first place - Two Theories of Proximate Cause: (a) Direct v. Indirect Harm: See Polemis. Direct harm is proximate. (b) Risk Rule/Foreseeability. See Wagon Mound and Palsgraf. The risk to be perceived defines the duty to be obeyed. (Very similar to the idea of per se negligence: was the harm that occurred included in the class of risks that the statute intended to prevent?) i. If you breach a duty, then you’ve essentially acted in the face of foreseeable risks to other people, so foreseeability and breach often go hand-in-hand ii. Thin Skull/Hemophilia Rule: one place where foreseeability does not work to limit Δ’s liability. Duty of Ordinary Care ―Reasonable person under same or similar circumstances‖ What circumstances are considered? (a) Physical infirmity – Yes (b) Gender – Yes (c) Mental limitations – No (d) Special training – Yes (e) Age – Yes (unless it is a child engaged in an inherently dangerous activity usually reserved to adults) a. Age 0 -14 = juvenile system only b. Age 14-18 = waiver age (start in juvenile system but may move to adult system if there are circumstances suggesting that is appropriate) c. Age 18 & over = adult system only (f) Race – Yes (in situation where that would matter) (g) Personal history – Yes (generally) These rules were formed early 19th century. It is a fault-based system. It was not seen as someone’s fault what gender they were, or if they had a physical infirmity, or what age they were. It was, however, seen as ―your own fault‖ if you had a mental infirmity. General Duty of Care Prudent Person Standard Stewart v. Motts (1995) [109]: Trial court was proper in instructing jury that the proper standard of care was ―reasonable‖ or ―ordinary‖ care under the circumstances, and that the level of care is proportional to the level of danger present. Jury did not need to be instructed that Δ owed π a ―higher degree of care‖. In Stewart, an explosion occurred in a car repair shop, and π claimed that the Δ owed him a higher degree of care because of the environment (lots of gasoline present). - duty of care is that of a reasonable person in the same or similar circumstances 12 - - decisions are not reflexive; they have to be made in the time in which the  had to choose the standard of care never varies – always reasonable - the amount of care needed to meet that standard varied with the given circumstances disabled persons are not held to a higher standard of care than normal persons - they must take their disability into account as a circumstance and use the reasonable care accordingly an intoxicated person owes the same standard of care as a sober person - if an intoxicated person’s conduct would be considered negligent when sober, it’s negligent while intoxicated - Lyons v. Midnight Sun Transp. Servs. Inc. (1996) [112]—Emergency Doctrine. In an emergency situation, a person is not expected or required to use the same judgment or care that is required in a calmer and more deliberate moment. - A person in an emergency is not relieved of the reasonable standard of care. It’s not that the standard is lowered, it’s just that the actor has that much less time and ability to meet that standard, and that is taken into account. - The Court worries that the jury might read the Emergency Doctrine as having the general result of excusing actions taken during an emergency. - Even in an emergency, you must use reasonable care. But in an emergency you have (a) fewer options and (b) less time to make the judgment. There is also an incredible amount of stress and startlement with the emergency that affects how the reasonable person would act in that situation. - Commensurate Care: a  placed in a situation requiring heightened care must take such heightened care if he knows of the increased risk - memory and knowledge are incorporated into the circumstances of a situation - if  knows of a dangerous situation and a prudent person would remember the risk and act accordingly, the  must do so also It is a question of psychology: are instructions on Emergency Doctrine helpful to the jury in educating them about the circumstances under which defendant acted, or do they influence the jury into thinking that the standard of care is lowered? The fear is that the jury will think that as long as it wasn’t Δ’s fault, then he is relieved of care in an emergency, rather than just taking into consideration the limits in that situation on time and ability to meet that standard of care. The emergency is often one of the biggest factors determining whether Δ acted reasonably. Same concern with the commensurate care instruction. Do you give that instruction to the jury, or do you just present the situation to the jury as part of the circumstances of the incident? Creasy v. Rusk (2000) [116]— A person institutionalized with a mental disability who does not have the capacity to control or appreciate his own conduct cannot be held liable for injuries caused to caretakers who are employed to care for the individual. In Creasy, nurse was denied compensation when she was injured by a mental patient because the patient lacked the capacity to appreciate the situation and the nurse willingly undertook the risk of caring for the patient. Creasy was NA at health center. Rusk began hitting and kicking wildly as he was prone to do (he had Alzheimer’s). Rusk injured Creasy. Court held that a person with mental disabilities is held to same standard of care as reasonable person under the circumstances, but that a party who takes a job caring for a person who is known to be combative and prone to such behavior has assumed some of the risk. - generally, mentally disabled adults, are responsible for the torts they commit - neither insanity nor, mental deficiency relieves the actor from liability, and his conduct must conform to the general standards of care of a reasonable person under similar external circumstances - Creasy was different because the patient was hospitalized and the nurse knew of the risk - Physical infirmities are included in the circumstances surrounding the standard of reasonable care - ex: a person with impaired vision is not held to the standard of a seeing person - age is generally a circumstance: reasonable child, reasonable 80 year old, etc. - gender is included - Mental infirmities are not included in circumstances - the mentally infirm are asked to overcompensate for their disability – harks of strict liability - the theory is justified on placing the burden of recovery on the causer of the tort 3 policy reasons for mentally disabled liability: 1) encourages families to care for the mentally ill 2) a loss must be suffered by the one who occasioned it 3) discourages tortfeasors from feigning insanity 13 Robinson v. Lindsay (1979) [120]: When a child engages in an inherently dangerous activity normally reserved to adults only, the child should be held to an adult standard of care. In Robinson, , 11 year old child, was held to an adult standard of care while operating a snowmobile because of the danger of the activity. - Normally, a child sued for negligence is held to the standard of care of a reasonable child of the same age, intelligence and experience. - the heightened standard of care discourages immature individuals from engaging in dangerous activities while allowing children to behave as children in normal activities - many states exempt certain, extremely young ages from tort liability by statute A Brief Introduction to Contributory Negligence: Common law called π’s negligence contributory and it barred π from recovering anything at all. It is the failure to exercise due care (ordinary care) for one’s own safety and thus differs slightly from negligence which relates to due care for others. Note that both Δ and π will be held to the same standard of care (ordinary care), but Δ will be care for someone else, and π will be care for himself. What do you do with people who have greater capability than the average person—more training, more knowledge, etc.? They are expected to use it. If we are judging the actions of a doctor in doing a medical operation, we don’t ask whether doctor did as good a job as the ordinary person. We hold him to the standard of a reasonable doctor. We tend to charge people with more training/knowledge with the higher standard of care. Marshall v. Southern Railway (1950) [n. 123] – It is the duty of a driver to keep a reasonably careful lookout and to keep the same under such control as to be able to stop within the range of his lights. If he cannot stop in time when his lights illuminate an object, then he’s going too fast. Vicarious Liability 3 bases for tort liability: 1) intentional torts 2) negligence - both 1 & 2 require fault 3) strict liability – liability without fault types liability for defective products - strict liability for businesses dealing in ―ultra-hazardous activities‖ such as explosives (state specific) - vicarious liability – most commonly attributed to employers (respondeat superior) - there must be some fault which is attributed to the employee Policy Reasons for Respondeat Superior: 1) Fairness. Employers get the benefits of their employees’ actions, so they should bear some of the costs too. 2) Cost of doing business. ―enterprise liability‖ When you engage in an enterprise, you should get the benefits of that enterprise, but you should also have to pay the costs for it. 3) Cost spreading. Employers can diffuse costs through the market economy and insurance 4) Prevention. Employers are generally in a better position to prevent employee negligence (through training, choice of transportation, decisions on how to most safely conduct business, etc.) General Principles: 1) Respondeat Superior. An employer is vicariously liable for the negligent acts of its employees if they are acting within the scope of their employment. Deviations from employment: - Detours. Minor deviations, detours, from work such as lunch or a smoking break do not remove the employer from liability. A rather reasonably foreseeable part of the trip (stopping at a convenience store for a coke, for instance). - Frolic. When an employee is on a vast divergence from the scope of his employment, a frolic, the employer is not liable until the employee resumes his employment activities. - When are the employment activities resumed? (1) Employee has intent to be back on the job and (2) must be within reasonable time and space of his employment activities. Volunteerism. Just because a task is done gratuitously does not remove the controlling party from vicarious liability. 2) Intentional Tort of Employee. Employer is not vicariously liable for the intentional torts of employees. 3) Independent Contractor. Employers are vicariously liable for the torts of its servants (usually regular employees), but not for those of its independent contractors. The more white-collar the job gets, the more we see markers of independent contractors. 14 Riviello v. Waldron (1979) [557]: The test for an employee’s actions ―within the scope of employment‖ is whether the act was done while doing the master’s work, no matter how irregularly or without regard for instructions. In Riviello, a cook employed by  was twirling a knife while cooking and injured . The court found  liable for his employee’s negligence. Hinman v. Westinghouse (1970) [560]: The Coming and Going Rule: Generally speaking, people are not found to be ―within the scope of their employment‖ when they are commuting to or from work. Exceptions exist where the employees travel is an incidental benefit to his employer. In Hinman, an employee of Δ hit , a police officer, while commuting to work and his employer (Δ) was not found liable. - exceptions exist when an employee is compensated for his travels whether for an unusual distance (―special hazards‖) or because he is conducting business while traveling (i.e. transporting work materials – ―dual purpose doctrine‖) - if the travel is related to the employer’s business (i.e. sales travel) the employer is liable Edgewater Motels v. Gatzke (1979) [563]: An employee does not abandon his employment as a matter of law while temporarily acting for his personal comfort with activities that involve slight deviations from work that are reasonable under the circumstances such as eating, drinking, or smoking. In Edgewater, an employee on a business trip burnt his hotel down while smoking negligently. The court found the employer liable because the entire trip was within the scope of the employee’s employment. - employees on business trips are found within the scope of employment for the entire trip Liability for Intentional Torts Lisa M. v. Mayo Memorial Hosp. (19XX) [XXX]: An employer will not be held vicariously liable for an intentional tort (e.g., assault), even when committed within the scope of employment, that does not have a causal nexus to the employee’s work. In Lisa M., an ultrasound employee molested a woman during an examination. The employer was found not liable because the employee was not acting within the scope of his employment. - respondeat superior liability applies only to types of injuries that are, as a practical matter, sure to occur in the conduct of an employer’s enterprise - the tort must be a generally foreseeable consequence of the activity - exceptions to employer liability to intentional torts exist when assaultive torts grow out of an employee’s employment - ex: a fight breaks out over a dispute at work or a bouncer batters a bar patron – employers are liable if the motivating circumstances of the intentional tort are attributable to work-related events or circumstances. Lyon v. Carey [558]: If an assault, sexual or otherwise, is triggered or motivated by a dispute over the conduct of an employer’s business, the employer is liable. In Lyon, a mattress delivery boy raped a customer after a dispute involving the delivery of a mattress. The court found that the dispute arose out of the employee’s work and found the employer liable. - Lyon is the extreme limit to respondeat superior liability for intentional torts. Normally an intentional rape would sever employer liability. Employers Who Are Not Masters Kastner v. Toombs (1980) [573] Borrowed Servant Rule: A servant who is loaned by one master to another is regarded as acting for the borrowed master and the loaning master is not held liable for the servant’s negligent acts. In Kastner, a subcontractor was negligently operating a steam shovel for a contractor resulting in ’s injury. The court rejected the BSR in favor of dual liability between both the contractor and the subcontractor. - the BSR is a common law exception to respondeat superior. The rule looks at which employer is benefiting from the employee at the time. However, nowadays usually it’s both employers who are benefiting. - the majority of states reject BSR in favor of dual liability - both employers remain liable because both their business is being done by the worker - To see who is liable: - Who is benefiting from the employee? - Who is controlling the day-to-day actions of the employee? - Whose equipment is being used? - Who pays the employee directly? - Modern Rule (―Dual Employer Rule‖): both employers are liable under respondeat superior and can sue the other for ½ of the damages in contribution - The dual employer rule can be usurped by contractual stipulations governing the contribution suit 15 District of Columbia v. Hampton (1995) [575]: A foster parent is not an ―servant‖ of the District because the District does not exercise day-to-day control over the foster parent. Foster parent is more like an ―independent contractor.‖ π (parent of the foster child) sues DHS. DHS chooses the foster parent. Count I of the Suit is under a theory of primary negligence, that is, DHS was negligent in selecting Stevenson as a foster parent and negligent for not removing the child from the house when they had reason to know the child was being harmed. Count II of the Suit is under a theory of vicarious liability, charging that Stevenson was negligent and was an agent of the District. - What are the markers distinguishing servants from independent contractors? - Mode of Payment. IC’s usually paid in one lump check, as opposed to paying each employee. Employees get W2s for taxes; ICs get 1099s. - Selection & Engagement of Servant. - Power to Discharge. With ICs = function of what the K says, regular employee = employment at will. - Control of Servant’s Conduct. Control must be ―daily‖ rather than ―loose‖. This is probably the predominant factor. - Public Agency. In close cases, there is tendency to find against making public entities liable. O’Banner v. McDonalds Corp. (1996) [578] Apparent Agency: If a principal creates the appearance that someone is his agent, he should not then be permitted to deny the agency if an innocent 3d party reasonably relies on the apparent agency and is harmed as a result. In O’Banner,  was injured while using a McDonald’s franchise’s bathroom and sued the parent corporation. The court denied the charge because  did not rely on the company name in his choice of bathrooms. - if a store is not an individually owned franchise (i.e. a chain) a  can sue the parent company through respondeat superior - the management of a single store is merely an employee of the parent corporation - principles are always liable is cases of ―actual agency‖ - they are only liable in cases of apparent agency if the relationship is relied upon in the ’s choice - franchise ownership does not exclude a corporation of all liability; a franchiser is liable if: 1) the negligence of the individual store resulted from an aspect of actual agency –i.e. conforming to policy 2) there is apparent agency – the condition is held out as an element of agency - Do you have to prove reliance on the advertised item? Or can we infer reliance based on what the company advertises? Boroughs v. Joiner (1976) [580]: Inherently Dangerous Activities. One who employees an independent contractor to do work involving a special danger to others which the employer knows or has reason to know to be inherent or normal to the work or which he contemplates or has reason to contemplate when making the contract is subject to liability for physical harm caused to others by the contractor’s failure to make reasonable precautions against such danger. In Boroughs,  hired a crop duster to spray his field and was found liable when the duster’s activity injured the ’s pond because of the inherently dangerous quality of the activity. Non-delegable duties. An employer cannot relieve himself of liability by hiring an independent contractor to do that activity. The intended effect is to make people be hyper careful about who they hire when they engage in these activities. - Ultrahazardous activities. Inherently dangerous (or peculiarly dangerous) activities - Landowner: duty to maintain safe premises. Otero v. Jordon Restaurant Ent. (1995) (premises owners)[583]: An owner who entrusts an independent contractor to construct, repair, or work on land or a building is subject to the same liability, as if he had dome the work himself, to others for physical harm cause by the structure’s unsafe condition after he has regained possession of the land upon completion. People rely on landowner’s name and/or reputation when they enter that premises, so it is in the landowner whom their trust lies. In Otero,  hired a builder who negligently constructed seating bleachers. After the builder left and the bar was again open for business,  became liable when  was injured due to the bleachers’ negligent construction. Collateral Negligence: an employer of an independent contractor, unless himself negligent, is not liable for any harm caused by the contractor’s negligence if: a) the contractor’s negligence consists only in the manner in which he performs the work b) it creates a risk of harm not normal or incident to the work (―episodic negligence‖) c) the employer had no reason to contemplate the contractor’s negligence when the contract was made - aspects of collateral negligence denying an employer’s liability are limited to unsafe conditions while the work is in progress - once a premises owner accepts negligent work and then opens his business to the public, his negligence cannot be delegated to the contractor 16 Negligence as a Matter of Law Negligence Per Se Definitions: Negligence per se: A violation of a criminal statute where safety is the underlying purpose is negligence per se. - The statute itself imposes a duty. Violating the statute is, therefore, breaching the duty. - That substitutes for proof that Δ violated the standard of ordinary care. - Tort law in effect imports the criminal law and uses them as standards of care under the circumstances described in the statute. Chaffin v. Brame (1951) [124]: Case law can provide guiding rules to establish standards of reasonable care in similar situations, but the standard of care is always case specific. In Chaffin,  hit ’s parked car while driving responsibly at night.  attempted to establish negligence as a matter of law because  could not stop within the distance of his headlight beams – a judge made rule. The court held that  was not bound by the rule because of the circumstances. - Judicial rules put limits on the standard of care in certain circumstances - They are not hard and fast and can be overridden on case-by-case bases - Judicial rules are simply guides for finding standards of reasonable care, examples of what to do in certain circumstances - Judges can either create exceptions to rules or invalidate them with new cases Martin v. Herzog (1920) [125]: s are assumed negligent per se when they violate a statute unless they can produce circumstances excusing themselves. In Martin,  was driving at night, crossed a median and killed , who was driving a buggy without lights on. The court found π contibutarily liable by negligence per se through violating a statute requiring drivers to have their lights on at night. - there is no need to establish a breach of the reasonable standard when a statute is violated; the statute is the reasonable standard which has been breached 3 types of statutory interpretation 1) (majority) violation of a statute, unless excused, is negligence per se 2) violation of a statute is only evidence of negligence – evidence that  breached a reasonable duty of care 3) (minority) violation of a statute is presumption of negligence - more than (2), but less that (1) – it allows  to disprove his negligence Exceptions to the Per Se Rule Don’t just start asking whether the party acted reasonably; find out if the activity was regulated by any statute or municipal code. If the activity was regulated Violation of a statute is negligence per se EXCEPT: (a) ―Excused‖—complying with statute was more dangerous than not complying (Tedla v. Ellman). a. The per se rule does apply to handicapped adults, but through that handicap they may able to bring themselves within one of the excuse categories. (b) Children—judged under child standard of care; instead, we replace per se with allowing jury to consider evidence of the child’s breach of the statute as part of their consideration whether or not the child was negligent, without making it negligence per se (Rudes v. Gottschalk) (c) Class of Persons/Class of Risk. a. The statute was designed to protect that person (or a class of persons of which π is a member), and b. The statue was designed to prevent the injury π suffered (See Wright v. Brown). Tedla v. Ellman (1939) [126]: When complying with a statute would cause greater risk that not complying, then you are excused from following the statute. In Tedla,  and her brother were his by a car while walking along the rode against the flow of traffic – in violation of a local statute. The court ruled that  could recover because of the harsh driving conditions associated with following the statute on that day. - where a statutory general rule fixes no definite standard of care, but merely codifies a common law rule, always subject to exceptions, the statute should not be assumed to wipe out common law exceptions to the rule - What may work on the civil side as an excuse to a certain standard or care, may not work on the criminal side - Is there an excuse to not follow the statute? Is that excuse such that it is more dangerous to follow the statute than to disregard it? 17 Impson v. Structural Metals, Inc. (1972) [128]: An excused violation of a statute will exempt the actor of liability for negligence per se, but only if the excuse falls into one of the five sections below. In Impson,  attempted to pass  within 100 feet of an intersection, in violation of statute, and caused an accident. The  said he forgot about the intersection, but the court denied his excuse as acceptable. Excused violations of legislative enactments: 1) the violation is reasonable because of the actor’s incapacity 2) the actor neither knows, nor could know of the occasion for compliance - It isn’t ignorance of the statute, but ignorance of whatever fact would trigger compliance, that matters 3) the actor is unable, after reasonable care or diligence to comply with the statute 4) the actor is confronted by an emergency not due to his own misconduct 5) compliance with the statute would involve a greater risk of harm to the actor or to others Rudes v. Gottschalk (1959) [130]: The conduct of a child is not to be judged by the standards of an adult simply because statutory negligence is involved. A child should be judged by the standard of a reasonable child. In Rudes, an 8 year old child was hit while crossing a highway in a location other than a cross walk in violation of a statute. The court denied the claim that the child’s action caused him to be contributorily negligent because of his young age. - contributory negligence for a child, like an adult, may appear as a matter of law so long as reasonable minds could not differ as to the child’s intelligence and discretion - Jury can be presented the evidence of statutory violation, which an be used as evidence of negligence. But the jury will not be told they must find Δ negligent. - most negligence in motor vehicle incidents is a violation of statute and negligent per se - still need to satisfy the remaining elements – harm, causation, etc. - minority can be used as an excuse from statutory negligence – the older a child gets, however, the more liable he becomes - ex: 16 year old children who can drive can be found negligent per se for traffic statutes – they are treated as adults NOTE: [n. 4, 132] Even if statute is found to not have effect, π can still claim that Δ violated the usual (ordinary) standard of care. That ordinary standard of care is the default to which the law returns in the absence of statutorily imposed standards. Wright v. Brown (19XX) [XXX]: A statute must be related to the victim and the injury to be actionable. In Wright,  (dog warden) let a dog out of quarantine before the statutory 14-day period had ended because the dog was found to be free of rabies. The dog bit a 3d party who sued the  of negligence because of violation of the statute. The court denied recovery because the statute was not designed to protect individuals from dog bites in general, only from rabies. 2 requirements for statutory negligence to be actionable: 1) Class of Persons.  must be in the class of persons protected by the statute, and 2) Class of Risk. The injury must be of the type that the statute was intended to prevent. Haver v. Hinson (19XX) [XXX]: There is no negligence per se if the injured party is not in the class of persons desired to be protected by a statute. In Haver,  parked the wrong direction on a street in violation of a statute when visiting her friend and ran over her friend’s daughter when pulling away. The court found that the parking statute was designed to protect pedestrians and motorists, not small children and denied liability. - if negligence per se cannot be established, always look for ordinary negligence / breach of a duty of reasonable care - Was Δ negligent in pulling away from the curb and not looking carefully? - Was π negligent in not paying close attention to where her daughter was when friend was driving away? - Here, there was no breach, it was simply an accident. Note problem: (1) Was his car being stuck on the roadway a sudden emergency not of his own making? a. There is some evidence that he was negligent by not reacting skillfully and allowing the car to wind up where it did. b. ―At this point‖: Does that mean ―at that exact time‖ or does it mean that it was hit at that place where it crosses into other traffic but at a different moment in time? If it happened at that location but a while after it stopped there, then Δ may have failed to take remedial steps after causing a dangerous situation on the roadway (regardless of whether it was his fault). Also gets into risk questions about if there was anything he could have done, since this was a mountain road in thick fog, it may have been dangerous to try to push the car out of the way. 18 Episodic vs. Structural: Episodic would be where the machine that was defective was different than all the others; something was wrong with that one. Structural would be where all the machines are made that way, and we have to determine whether the party was negligent in deciding to make the machines that way. Breach of the Duty of Reasonable Care IN Insurance Co. v. Mathew (1980) [138]: Negligence is established when a  breaks a duty of care owed to a . In Mathew,  accidentally set his brother’s garage on fire while fueling a lawn mower and called the fire department immediately. The court found for the  because his acts did not breach the duty of care owed to his brother. - one who is confronted with an emergency, not of his own making, is not charged with negligence if he acts according to his best judgment - Insurance Policy: includes subrogation… the insurance company will pay off the insured party, but then it gets the rights the insured would have had to sue the party who caused the damages. - The Insurance Company alleged the brother was negligent: - (1) in filling the tank carelessly and spilling gasoline - Δ’s response: Used funnel; even if he spilled he says he left for a few minutes & gas could’ve evaporated - Jury found there was no negligence here. - (2) starting the mower in an enclosed area, and - Δ’s response: He pulled the mower away from the wall, which was good; a garage is constructed for such purposes—it is reasonable to start the mower in the garage. - Jury found it was not negligent to start the mower in the garage. - (3) failed to push the flaming mower out of the garage. - Δ’s response: Lives are valued more than property; mower was a better loss than than Δ’s life - Jury found it was not negligent to avoid pushing the flaming mower if it would endanger Δ - The burden of the plaintiff in every negligence case is to show what Δ did that he shouldn’t have done or show what Δ didn’t do that he should have done. - π’s job is to posit alternative conduct. π must specify with great particularity what the actions or decisions or behavior of Δ were that π claims is unreasonable. Stinnett v. Buchele (1980) [141]: The liability of an employer rests on the assumption that the employer has a more comprehensive knowledge than his employees and ceases to be applicable where the employees knowledge of the possible danger is equal or greater to that of the employer. In Stinnett,  employed  to do odd jobs around his farm.  fell of ’s roof while painting it and sued  for the failure to create a safe workplace—said Δ didn’t provide a safe environment or proper safety devices. The court ruled for  because ’s knowledge of roofing was superior to the . - an employer is not obligated to supply his employees with an absolutely safe workplace; employers are required to recognize a standard of care exercised by prudent employers in similar circumstances - in non-agricultural situations, workers compensation usually required the employer to pay for the injury occurred - workers comp. is an exclusive remedy; no tort action is available - where an employee is an independent contractor or a more knowledgeable worker than his employer, the employee is responsible for observing a reasonable standard of safety - Does Stinnett fall into Example I or Example II below? - It rests in the middle. He had performed roof work before EXAMPLE I: Let’s assume a giant steel company hires laborers of many types. Some are in a general pool of labor contractors where they may be asked to do a variety of things including painting. One of the roofs on a mill building needs to be painted. Joe and Bob are assigned to that task. They are not given safety equipment, and have not painted for three or four years. No workers comp is available. Can they sue their employer if they get hurt? - Yes. Why? - Company didn’t give them a safe environment or safety equipment, and the standard in that industry is to do both. EXAMPLE II: Let’s pretend a private individual hires a painter to paint his house. The laborers commence work on the roof, but they are not cautious and do not bring safety devices. Can they sue the private individual? - No. Why? - The duty of making a safe environment and bringing safety equipment is already allocated to the painters. They are hired specifically because they’ve got experience and they know the safety procedures. - The duty a homeowner has is the duty to warn of non-obvious dangers about which the homeowner is aware or should be aware. 19 Bernier v. Boston Edison Co. (1980) [144]: A  is guilty of negligence when he is responsible for a product that is dangerous to public safety and chooses to ignore the problem. In Bernier, a driver hit the ’s light pole which crashed into s.  was found negligent because they knew that break-away poles caused a threat to pedestrians in downtown areas, but chose not to replace the poles. - Boston Edison negligently designed the light pole, and it presented an unreasonable danger to folks in the area because it was not designed to withstand a collision. Π’s Claim Cost Benefit Build sturdier poles $17.50/per pole more x n poles = Fewer injuries to pedestrians: how - Pole could only withstand 6 mph hit cost to make all poles 12 mph sturdy many poles would be hit between 6 - proposed pole = 12 mph hit + cost to remove each current pole & 12 mph, and how many of those hits would endanger how many pedestrians? HOWEVER…π has to come up with a solution that would solve the current problem... if Ramsdell hit the pole at 38 mph then the 12 mph pole wouldn’t have been any better than the 6 mph pole. The defective pole, then, wasn’t the proximate cause of the damage.  had to link ’s choice of poles with the injury caused in order to hold  liable – proximate cause the  was found liable using the risk-utility formula; See Carroll Towing, infra. Why doesn’t Bernier sue Ramsdell and Boireau? There is probably something about the nature of their insurance coverage that suggests to Bernier that he could get more money elsewhere. (Ramsdell’s only real defenses are that she is old and Boireau was going faster than she thought…not good defenses in a negligence case.) - - The problem of polycentric problem: Many ―right‖ ways to fix a problem, each with their own costs and benefits. - Each solution is reasonable in and of itself; depending on which person’s viewpoint we look, we will get several different ―right‖ answers to the problem. Notes [147-148]: JOINT AND SEVERAL LIABILITY π sues 2 Δs, independent actors (e.g., Ramsdell and Boston Edison). Assume π has no contributory negligence. We will ask the jury if Δ1 was negligent, and if Δ2 was negligent. They may individually be negligent, or may both be negligent. States vary as to how they work when multiple Δs are found to be negligent. The classic way to do this is by joint and several liability. Joint and Several Liability. Each Δ is responsible for paying the full amount of damages awarded to π. π can get the verdict amount all from one Δ, or from a combination of Δs. Once one of the Δs pays the full amount to π, the paying Δ has a suit against the non-paying Δ to receive its percentage share back. This is a suit for contribution. Thus, if Δ1 is insolvent, then Δ2 bears the burden of having to pay the full amount himself. It is fairly common for courts to ask the jury to apportion each Δ’s level of responsibility/negligence. The percentage of negligence of each Δ determines for what percentage of the verdict each Δ is responsible. What most states are beginning to go to (including Indiana) is called several liability. Once the jury exacts the percentages in the trial, then the π can only chase each Δ for his apportioned percentage of the verdict. The π then bears the risk of the insolvency of either Δ. If the parties were acting jointly, then joint and several liability still remains. U.S. v. Carroll Towing (1947) [149]: Introduces the PL >< B formulation. A  is liable for negligence if the burden of keeping an activity safe is less than the probability of the harm caused. In Carroll, ’s barge broke loose in the middle of the day while no bargee was on board and dumped its cargo. The court found that the cost of keeping a bargee on board during working hours was less than the probability and cost of damage which a bargee’s presence would prevent and found the  negligent. - ―P‖ is likelihood of barge breaking loose - ―L‖ is the average loss of the damages that occur when a barge breaks loose - ―B‖ is the additional cost of staffing with a bargee during the working day - Judge Hand dictates what things ―matter‖ when we discuss negligence: - How likely is a particular risk to happen? (P) - How much does it cost when it does happen? (L) - What is the cost to prevent it from happening? (B) 20 Notes 150. (1) (2) Note that the social usefulness of the activity is not explicitly taken into consideration. However, that consideration is implicit framing the formula. a. If the social utility is great, we will tolerate a much greater P and L. b. Consider the ―Jarts‖ example… the manufacturer said that to make the product safe, it would be so expensive it would put them out of business. That was ―ok‖ with the court: the social utility of Jarts wasn’t great enough to warrant keeping them on the market. c. Pharmaceuticals help so many people that the social usefulness outweighs the argument that the drugs with negative side effects should be taken off the market entirely. The function of the fault system is to make efficient and cost-justified rules of safety. Negligence does not exist where the burden of prevention is not efficient or cost-justified. Factors determining ’s negligence: a) the cost of making the ’s activity safe (Burden) b) the social usefulness of the activity - if the Burden can never be less than PL, it implies negligence - some activities, however, are overly burdensome, but socially useful and allowable (i.e. drug manufacturing) c) the probability of any harm stemming from the activity (Probability), and d) the likely amount of harm if any harm results (Loss) - if the cost of preventing the risk is less than the probability of damages, BPL, then  is not negligent - fault in negligence cases are based on the reasonableness of ’s actions - if the actions were economically reasonable, there is no negligence Proving Conduct Gift v. Palmer (1958) [156]: The mere happening of most accidents is not evidence of negligence.  must prove beyond a fair preponderance of the evidence that  was negligent and that ’s negligence was the proximate cause of the accident to recover. In Gift,  hit a 3 year old boy with his car but there were no witnesses as to the ’s conduct or the conduct of the boy. The court ruled for  because  failed to prove ’s negligence – other factors could have caused the accident. - to prove negligence,  must know enough about ’s conduct to compare it to a reasonable standard of care - ex: in the B50%. - states are split on awarding damages for a lost chance at life - in all states awarding damages for a lost chance at life, the  must die to recover - damages for over a 50% loss are further split - some states award the percentage of the lost chance, while others follow the traditional approach and award full damages for greater than 50% losses PROXIMATE CAUSE Metcalf: Foreseeability/Risk Rule: Defendants guilty of negligence are responsible for the reasonably foreseeable consequences resulting from their acts. In Metcalf, an apartment building had a broken intercom system, and the court held that the landlord was not liable for an attack that occurred while someone was waiting for the door to be opened. There was no sufficient foreseeability of attack against people waiting to get in and unable to do so. If there were background facts suggesting that the apartment was located in a high crime area, then the foreseeability may be more easily proven. - An actor is not liable for risks which a reasonable person would not take into account - Examines the foreseeability of harm rather than the proximity of the cause - The Risk Rule does not sever previous liability with multiple actors - If multiple ’s are negligent with a foreseeable risk, both are liable 26 - Proximate Cause = ―legal cause‖ You have to show as the π that what happened to you was one of the forseeable risks that enabled us to call the action negligent in the first place. In Re Polemis and Withy (1921) (Direct Cause) [XXX]: So long as damage/harm to a person is directly, in fact, caused by a negligent act, the foreseeability of the act’s occurrence is immaterial. In Polemis, ’s employee negligently dropped a plank on ’s ship causing a spark which combined with unforeseeable gases to burn the ship down and was found liable for his negligence. - proximate causes are always causes in fact - We examine whether the harm is caused as a direct result of actions, or if it was caused indirectly (by the intervening acts of third parties). Direct results are always proximate. The rule in Polemis assigns proximate cause to the most direct, closest event to the harm - Polemis lays responsibility on the actor closest to the harm and severs previous actors - Alternative to Polemis is to charge the most direct wrongdoer; therefore, if the most direct actor is not negligent, a previous actor may be charged - PC is insignificant if the other elements of negligence are not met: i.e. breach of duty, etc. - Modern courts tend to follow the Foreseeability/Risk Rule Palsgraf v. Long Island Rail Road [210]: A  is not liable unless he could foresee an injury of the general kind inflicted and could also foresee that the injury would be inflicted upon the  or someone in the ’s general class of persons. In Palsgraf,  was found not liable for dropping a package because the resulting explosion from the hidden dynamite was unforeseen. Δ (an employee of the LIRR) pushed a guy from behind who was holding a packkage. The package contained fireworks; when it was dropped, it caused an explosion, which in turn caused a scale to fall on π’s head. -  is only liable for damages resulting from his conduct which were foreseeable;  is not liable if the harm is wholly unexpected -  can be found not liable if the  lies outside the ―zone of danger‖ surrounding his negligence - PC analysis is the final analysis in negligence adjudication - First examine 1) Duty 2) Breach 3) Damage 4) CIF, and then PC - PC connects the damage to the negligence – it must be foreseeable - the opinion in Palsgraf looks at the case with regards to the duty owed to the  -  was outside of the zone of danger - the question of duty is left to the judge; all other issues go to the jury - Once you know who your actions threaten, then you know to whom you owe some duty of care…the mere fact someone is negligent is not enough. Must be negligent to the people who are hurt. - Most courts say: when the guards did this negligent act of pushing the guy, what were the foreseeable risks that made the action negligent? Guy could be hurt, could bump other passengers, contents of the package he was holding could be damaged… there are few folks that would say that the possibility of exploding fireworks and falling scales would be too far out of the realm of possibility. The legal consequence of Cardozo’s fixing the theory not as proximate cause but as the unforeseeable plaintiff to be a question of duty: Calling it a question of duty rips it from the jury and makes it a question for the court only. Rescue Doctrine: The rescue doctrine is a rule of law holding that one who sees a person in imminent danger caused by the negligence of another cannot be charged with comparative negligence unless the rescuer acts recklessly - although the rescuer is originally outside the zone of danger, his insertion into the situation is foreseeable - ―danger invites rescue‖ – danger makes the insertion of a rescuer foreseeable Hughes v. Lord Advocate [xxx]: What about a situation where the risk itself is foreseeable, but it is the particular manner in which the risk came about is rather unforeseeable? Δ’s position is that the harm was foreseeable, but that the extent of the harm here was not. A  is liable for an accident if the harm caused is the result of a known danger caused by the . The extent of the known harm is irrelevant. In Hughes, several children playing around a manhole knocked in a kerosene lantern and were severely burned. The court held that  was liable even though the extent of the damages were somewhat unforeseeable. - Hughes is similar to an ―attractive nuisance‖ case where it is expected that a child will enter the situation - The foreseeability of a risk depends on its classification -  wants to classify a risk broadly – i.e. risk of burns from a lantern -  wants to classify a risk narrowly – i.e. the risk of a lantern igniting with gas and exploding - so long as a risk is foreseeable, its extent is insignificant 27 Doughty v. Turner Manufacturing [220]: Damages resulting from a ’s act which are of a kind entirely different from that which is foreseeable are not recoverable. In Doughty,  was injured by an unforeseen combination of chemicals resulting from a vat lid sliding into molten metal. The court ruled that the foreseeable risk was from a splash, not an explosion. - Doughty differs from Hughes - here the entire risk was unforeseeable; it was not merely an extent of damages issue Modern View of Causation 2 Types of Causation (Determined by using Polemis, then the Risk Rule) I. Direct Causes (assuming all other elements of negligence are met) - if  is a DC, he’s almost always a PC - ex: Thin Skull Rule -  is liable for all damages caused from his action; ―You take your  as you find him‖ - even though the extent of the damage was unforeseeable, PC stems directly from ’s action Exceptions (a) Year and a Day Rule (minority): causation cannot be traced longer than a year and a day from the time of the tort - the rule is mostly gone because of advances in medical technology (b) Point of Temporary Safety/Equilibrium: If there is no intervening act, but simply a pause in the danger caused; although  is the direct cause, the intervening time destroys the proximity of the ’s negligence - the rule depends on the length of the pause (c) Rules of Priority: Jurisdictions apply statutory lines to cut off direct causes for policy reasons - ex: rules often limit fire liability to adjacent buildings,  to the entire city II. Intervening Acts - 1 sets the stage with his negligence and 2 acts on the circumstance becoming the direct cause of ’s injury - the Risk Rule examines if the intervening act is foreseeable - if 2’s action is foreseeable, 1 is still liable - does not matter if 2 is negligent or innocent, 1 is still liable - if 2’s action is not foreseeable, it breaks the chain of causation - the court must differentiate between acts which are dependent (responsive) or independent (coincidental) of 1’s act - Responsive acts are only severed if the action is outrageous or abnormal - responsive acts have a presumption of foreseeability - ex: negligent treatment of an injured victim does not sever the tortfeasor’s liability – it would only be severed in cases of gross or reckless negligence - Coincidental acts are judged simply on their foreseeability Causation HYPO: Δ is driving along, negligently maintaining his car so that doors open randomly...Δ’s friend falls out onto the road, Δ doesn’t realize he’s gone and leaves him laying along the side of the road. Without regard to the liability of the intervening actor, will we make Δ liable for the resultant injury? - X’s car comes along and runs over π - X is the one who directly causes π’s injuries, but Δ made that possible by leaving π in the road. - Δ is a proximate, indirect cause (the force Δ put in motion, leaving him on the road, isn’t what hurt him, but what does hurt him happened through a foreseeable coincidence). - Δ leaving π laying in the road didn’t cause X to come along, but that sort of injury was foreseeable. It was a foreseeable coincidence. - Y’s plane lands on π and injures him - Δ is not the proximate cause because the plane is an unforeseeable coincidence without other facts (like the road is actually an air strip or it is usually used for plane landings) - Δ is an indirect cause, but not foreseeable. - Superceding Cause. We label as a superceding cause something we’ve already found was an unforeseeable result or response. We have judged that the intervening act was unforeseeable and therefore we assign it superceding status. - Z in a plane transporting bowling balls drops a ball on π - Even less foreseeable than the one above. Superceding cause. - Dr. comes along, sees π laying in the road, stops, treats him negligently, and π dies from negligent treatment - Δ is an indirect cause. The direct causer is the doctor giving negligent treatment. To say the action is responsive is to say that it is somehow connected to Δ’s actions. Everything doctor did was caused by what Δ did. That is not to say that responsive acts will never be superceding, but they must be outrageously unforeseeable to be superceding. - Negligent treatment by a doctor is not outrageously unforeseeable. It is absolutely a foreseeable risk and Δ is therefore liable. - Ambulance is called and π is transported to hospital. Ambulance is in wreck in which π is killed. 28 - - - - - - π is taken to hospital where he contracts a staph infection and dies from that infection. - Taking him to the hospital is responsive. The staph infection maybe is coincidental, but the fact someone is wounded does make them more prone to a staph infection. If we call it responsive, then we must recognize it is the germs doing the responding. - However you categorize this, it is seen as foreseeable. - Δ is liable. π is taken to hospital where he is mistaken for another patient, transfused with wrong blood and dies as a result. - Some courts would say that is superceding, to think a hospital is that negligent. - A number of states would still hold Δ liable. π, because of deep-seated religious belief, declines all medical attention and dies. - Contributory Causation. Victim had the chance to treat the injuries and make himself better. Victim’s own action (or inaction) is now a cause of his own injuries. This is sort of like mitigation of damages in contracts. - Here’s the key. Nobody dies of not seeking aid. That just means that he died from the injuries of being left on the road. The force Δ put in motion is the force that kills π. The only thing that «intervenes‖ is negative action: no new forces are added. He dies because of the original injuries coupled with the fact that π didn’t stop it from happening. π’s wife, seeing π in hospital, is distraught and euthanizes π. - This is a responsive intervening act; she did it in response to the injuries. - Is this outrageously unforeseeable? Does it so shock us that we say it supercedes the prior injuries? - It is at least something we’d consider ―possible‖. Most courts today would still consider it superceding, but in 20 years from now it’s very possible that we’d say it is not superceding. π is taken to hospital, operated upon, bandaged up, and is fine. π rips off bandages and dies. - The removal of the bandage is a little like the boulder breaking free on its path to Happy Valley. The question is whether the bandaging makes us start a new chapter and reset the clock: did the bandaging create the Point of Apparent Safety such that when he opens his bandage we are starting back at zero? Back at the scene, π is struck by lightning and dies. What drives the decision whether or not to hold Δ liable? - Foreseeable versus shocking or surprising - What if the general public believes something is more or less probable than a scientist would know to be true? - The standard is ―reasonable person‖ so it may be that certain myths are sold well enough that they become a part of the way we shape our behavior. - The answer to the fear that juries have a belief of something we scientifically know is wrong, is to bring in an expert to testify as to the actual probability. Dependent vs. Independent Intervening Acts Of the ―intervening events‖ given above, one of the ways they differed was in foreseeable vs. non-forseeable. They also differ in an important way: - X’s car runs over π - Dr. negligently treats π The way those two acts relate to the first act (of leaving π laying in the road) is very different. Their relations to the first act are opposite one another. - If Δ hadn’t acted, X would still have driven by. That intervening act is totally independent of the first act: it is a coincidence. It happened, but not because of the first act—it would have happened anyway. - The Dr. doesn’t treat π unless Δ acted negligently. The Dr’s act is dependent on the first act; it is responsive to it. An intervening act which is dependent on or responsive to the first act is already bound up in the first act, so we do not rule out the first actor unless that response is really ludicrous. We will be much more likely to hold Δ as liable for these than the independent acts. An independent act will be analyzed more as to whether it is in the cluster of foreseeable risks. - Derdiarian v. Felix Contracting (1980) [235]: An intervening act may not serve as a superceding cause and relieve a  of responsibility where the risk of the intervening act occurring is the same risk that renders the  negligent. One of the risks that makes the workplace unsafe is danger of intrusion by motor vehicles into the workplace. In Derdiarian, a contractor negligently placed a worker boiling enamel in front of oncoming traffic who was then hit and burned by an epileptic driver who had forgotten to take his anti-seizure medicine. The court determined that the driver’s act was not a superceding cause to sever the ’s negligence. The particular kind of negligence (of the driver) is not really important; the fact is that an out-of-control vehicle injuring a worker was still within the cluster of foreseeable risks. 29 - If an intervening act is extraordinary under the circumstances (i.e. not foreseeable in the normal course of events, independent of, or far removed from the ’s conduct) it may break the ’s causal nexus. If the result of a ’s act is within the risk of danger stemming from ’s negligence,  does not escape liability even if the result came about in an unforeseen manner -  is not liable if damage resulted from an unforeseen risk; i.e. a plane crashing on the worker boiling enamel Sheehan v. City of New York (1976) [239]: When an intervening cause prevents the natural and probable result of an original act or omission and produces a different result that could not have been reasonably anticipated, it will prevent recovery on account of the act/omission of the original wrongdoer. In Sheehan, a garbage truck’s brakes failed and it hit a bus while letting off passengers in the wrong lane. The court denied recovery because a truck’s brake failure was unforeseeable. - Sheehan illustrates the importance of classifying the risk; the court determined that truck brake failure was unforeseeable - May have been different if the risk was classified as being hit by a vehicle for stopping in the wrong lane Ventricelli v. Kinney Rent A Car (1978) [241]: A ’s negligence is the proximate cause of an injury if the injury was a foreseeable result if the ’s negligence. In Ventricelli,  leased  a car with a faulty trunk.  exited the car in traffic to secure the trunk and was hit. The court found the  liable for negligence. - like Sheehan, Ventricelli depends on the classification of the risk - breach of duty may also be based on a defective products theory Marshall v. Nugent (1955) [242]: Proximate cause analysis does not require the ’s negligent act to immediately precede the ’s injury. In Marshall,  forced a car in which  was a passenger off the road, after which  walked to the top of a hill to flag down a passing car and was hit. The court found  liable because a car hitting  was foreseeable. - Point of Apparent Safety or Doctrine of Termination of Risk. Point in which we stop tracing things back to the original actor, even though through ―but for‖ analysis, we might be able to do so. When the risks the first accident creates are in some real sense terminated, then we stop the ―but for‖ analysis and start over. Once the risks that surround the cleanup/frenzy of the accident are ―over‖ and everyone is on their way, then we sort of turn back to the start and do not hold Δ liable for other accidents. (For example, it wouldn’t be proper to say that were it not for the first accident, π would be in a different city and not around for the second accident.) - if ’s negligent act preceded a risk that, in turn, produced the harm,  is liable - If a second tortfeasor’s act was unforeseeable, the intervening act would sever 1’s liability Termination of Risk: 1 is no longer liable once the risk created by the first accident has abated - 1’s act may serve as a CIF, but is terminated under a PC analysis HYPO: Happy Valley sits at the bottom of a hill. On top of the hill is a large boulder. Δ knocks down the boulder during some construction, and the boulder starts to roll. It hits two trees and comes to rest for two minutes, after which the weight of the boulder forces it to crash through the trees and roll into Happy Valley injuring many people. - Do they have a proximate cause problem? - 2 minutes isn’t very long. But what about 2 days or 2 months or 2 years? The more time intervening, the more opportunity people have to do something about it. - Plus, perhaps someone negligently moved the rock to the top of the hill years ago. We don’t know; we just started with its presence as a fact. - At some point, shat was once a real risk appears to have subsided and that’s where we’d say the proximate cause terminated. Danger Invites Rescue. That someone tries to rescue someone else should be foreseen by the actor. Rescue follows peril. It is not an unforeseeable intervening act when it occurs (unless it is really foolhardy or outrageous). Problem, Wolfe v. Gramlich [247]: Δ Negligent by leaving the tar out  Boy in tar  Parents remove tar with solvent  Child2 with capgun  ignites & burns (1) The boy in tar may have been responsive or coincidental, but either way is foreseeable (2) Parents removing tar with solvent is foreseeable (3) Child2 with the capgun is a weak link. Could argue that once you are forced to use that sort of flammable solvent to get rid of the tar, that person is at risk for all sorts of sparking/flame sources. (Rather than trying to argue that the child showing up with a capgun itself is foreseeable) Depends on whether you discuss that particular risk as ―child with capgun‖ or as ―something flammable in area of solvent‖ 30 Damages: Compensatory Damages Generally [773] General Notes - tort law awards both monetary damages and injunctive relief - monetary damages are the most common - the majority of courts require 1 lump sum paid for present and future damages - exceptions are workers comp. not allowing for periodic payments, and (minority of courts) awards of medical monitoring costs for damages due to ’s negligence such as exposure to carcinogens Proving and Computing Basic Damages Main Elements of Damages in Personal Injury Cases: (1) Damages for reasonably incurred medical expenses (2) Damages for lost earning capacity or wage loss (3) Damages for pain and suffering, including mental pain and suffering a. Part of the reason pain and suffering is awarded is because we know that π is going to have to pay his lawyer out of his recovery. (4) In a limited number of cases, an award to pay for the cost of medical monitoring of π’s condition to intercept a prospective disease, such as cancer, that may develop in the future (5) Any other specifically identifiable harm that has resulted from the tort, such as special expense necessary to travel for medical attention. Some states are attempting to establish statutes through which they would settle the case now for the injuries to present and slightly into the future, and then have a set date in the farther future when they would revisit the case to see if new injuries have developed. But right now, the American status is to just award for reasonably certain future losses and current losses all at one time. Martin v. U.S. (1979) [775]: Pain and suffering, along with medical costs and lost wages must be calculated to include future damages as well. In Martin,  was severely burned by negligently maintained power lines. The court took many factors into calculating future earnings including inflation and the possibility of what type of job the injured boy would have had. - Inflation and reduction to present value: projected earnings awarded to a  must be evaluated according to their increase with the projected inflation of the economy as well as adjusted downward for their present payment and investment - Pain and suffering damages are projected into the future as well - P&S damages often have no mathematical bases, but may be capped by statute - Federal Tort Claims Act: allows  to sue the state for negligence in a federal court under the act - sovereign immunity establishes that the government cannot be sued without its permission; the Act gives permission to sue the state for torts so long as the claim is brought under the act Computation of Damages: - Medicals—(must be ―reasonable‖ medical expenses) (a) current bills (b) future bills (will require expert testimony) (c) psychological treatment - Future Earnings (a) Compile data (talents, educational level, likely job placement, current pay rates) (b) Calculate the wage rate over an entire career: 42 years (c) Less the estimated wages they will make at the ―crummy‖ jobs they can get (d) Figure inflation over the 42 year period a. Time/price differential (money makes interest)—one lump sum, which if invested at a reasonably low risk investment, will make X% interest - Pain and Suffering (a) $1,000,000 with no explanation (b) Some states have caps: either a set higher number or a multiple (3 or 4 times) of the economic damages McDougald v. Garber (1989) [780]: An award for P&S / loss of life’s pleasures (hedonic damages) to a  whose injuries preclude any awareness of the loss have no compensatory purpose. It doesn’t make sense to compensate someone who is not aware that anything has been taken away from him. We’re not paying just for the loss of the pleasures but 31 - - for the awareness of the loss of the pleasures. There is no punitive damages for unintentional torts. In McDougald, the court held that P&S was indistinguishable from hedonic damages and neither could be awarded to a  who could suffer no pain because she was unconscious. Dissent: there is a difference between P&S and hedonic damages. While an unconscious  cannot suffer pain, they are still deprived of life’s pleasures and should be compensated – the compensation is not punitive because it does not exceed the damage to  hedonic damages are subjectively awarded according to that person’s value of life – difficult to calculate 3d persons can sue for the loss of a companion, but, mot often, damages are limited to the loss of the companion’s earning capacity - little money is awarded for the loss of a non-income earning spouse - few states award emotional damages to 3d persons Mercado v. Ahmed (1992) [785]: It is nearly impossible to place an economic value on the loss of life’s pleasures. In Mercado, , a six year old, was injured by s negligence and institutionalized for life. The court ignored an economist’s evaluation of the pleasure the boy would have received from life and denied hedonic damages. - there is no consensus on how to value hedonic damages unlike the loss of wages and medical bills - Experts can testify only if they really add something that is not within the bounds of the laypeople on the jury (Rule of Evidence #703). - Are hedonistic pleasures within the concept of laypeople? Or do we need to rely on the testimony of experts, like an economist? - the modern trend is to place a statutory cap/limit on hedonic awards INSURANCE AND SETTLEMENT An Introduction to the Institution of Insurance The Basic Insurance Coverages (1) First party insurance—fire and collision. The insured party is the first and only party besides the insurer. If there is a loss, the insured party reports it and makes a claim. The insured’s rights do not depend on any other person. It is not necessary for insured party to show fault to recover under these policies—the recovery is based on contract, not on tort. Subrogation. Permits the insurer to ―stand in the shoes‖ of its insured and take over any claim the insured had against the tortfeasor. Insured can collect from the insurer, who can then recover from the tortfeasor. Does not apply to all first party insurance, e.g., life insurance: wrongful death permits suit against the tortfeasor and the life insurance company. Liability Insurance. a. Indemnity is a recompense or paying back for a loss suffered. Indemnity clause said that if insured party caused harm and actually paid for it, then the insurer would give insured party that money back to indemnify him against the loss. For a variety of reasons, almost all states have moved away from indemnity coverage and instead require liability coverage. This puts a risk on the harmed party: if the insured is insolvent and cannot pay, then the indemnity doesn’t kick in and the insurance company gives no money, so the harmed party doesn’t end up recovering, even with a judgment in hand. b. Liability coverage pays off the policyholder once there is a determination of liability of the policyholder (unlike indemnity which required policyholder to actually pay, not just be found liable). The person harmed by the policyholder, then, is basically a third-party credit beneficiary to the insurance policy. Notice now that the policyholder’s insolvency doesn’t matter to the harmed party because the insurance company can still give the policyholder the money to pay for the judgment. This is more utilitarian: the insurance isn’t just there for the benefit of the policyholder; it exists to make sure that harmed parties are not negatively affected by policyholders’ insolvency. i. Liability insurer promises to pay any judgment up to the limit of the policy. ii. Liability insurer promises to defend the lawsuit. Δ doesn’t have much incentive to put up a great defense when he is covered by liability insurance, so the insurer wants to control the defense. (2) (3) 32 Improvident Settlement Gleason v. Guzman (1981) [722]: McDonald’s Case: What was wrong with the coffee? What was wrong with the delivery of the coffee? What were the damages (injuries, pain & suffering, bills, future expenses)? Was there contributory negligence? What is the law in the area? - Negligence - Products Liability…design defect case. The defect alleged affects the entire product line. What facts? - Restaurant/fast-food coffee - temperature - serving practices - Expert testimony - Prior instances of such injuries - Local owner - Manual: required brew temps of 195-205 degrees, and served at 180-190 degrees - That’s key because it indicates that Δ can be the national franchisor because that’s who dictated the temperature - If the negligence is the temperature at which the coffee is brewed/served then it implicates the national franchisor - What is the industry standard? What do home coffee machines produce? What do other restaurants or food chains do? - Corporate regulations (see above) DEFENSES BOP on all of those is placed on the Plaintiff by a preponderance of the evidence. Directed Verdict: A reasonable juror could find that the evidence proves each element beyond a preponderance of the evidence. If π fails to put on evidence on any element, then the case is directed out. Δ doesn’t have to put on his case until π’s case survives a Motion for Directed Verdict. One π proves that, Δ has two sort of general ways to proceed. (1) Introduce evidence trying to negate one or more of the elements. (2) Introduce evidence of an affirmative defense (π’s legal consent/contributory negligence, assumption of risk, and statute of limitations) Affirmative Defenses:  has the BOP to 1) plead an affirmative defense, 2) produce evidence, and 3) persuade the jury by a preponderance of the evidence Contributory Negligence: The Common Law Rule Butterfield v. Forrester (1809) [250]: Contrib. as a bar to recovery. A party is not to cast himself upon an obstruction which has been made by the fault of another and avail himself of it if he does not himself use common and ordinary caution to be in the right. In Butterfield,  negligently left a pole across the street.  was negligently riding his horse and struck the pole. The court denied recovery due to ’s negligence. - What the court is really saying is that Forrester didn’t make an unreasonable risk because the pole was so obvious that no one should’ve hurt themselves on it at all. But if Δ really wasn’t negligent, then he wouldn’t need a defense. - Good Rule of Thumb: The more negligence / recklessness that it would take on π’s part to get hurt, the less likely it is that Δ was negligent in the first place. - They’re both negligent: One didn’t take enough care for others and one didn’t take enough care for himself. - Historically, contrib. was a complete bar to recovery; modern courts allow contribution to partially decrease recovery - Last Clear Chance (exception at common law):  was allowed to recover if  negligently placed himself in a situation but  had a last clear chance to avoid injuring the  and avoided doing so - LCC rule is not necessary in a comparative fault system but is useful in assessing the greater % of ’s negligence 33 Contributory Negligence: Adopting Comparative Fault Rules to Permit Recovery Recognize there is no contrib. in the case until it is established that Δ is negligent. If Δ is not established as negligent, then contrib. won’t play into the case at all. At the common law, contrib. was a complete defense. If π was negligent at all, then he was completely barred from recovery. States moved to a comparative negligence regime by which π’s recovery was decreased by the amount of his negligence rather than barring recovery completely. Pure comparative: In cases where both Δ and π are negligent, π shall get damages reduced by π’s percentage of negligence, and it doesn’t matter what the percentage π is negligent. The comparison is always just between people in that case, it is never between theoretical people in other cases, and the percentages must always add up to 100%. Modified Comparative. We want to retain some of the philosophy of not paying people when it’s their fault. So π gets his recovery reduced until he reaches a certain percentage, at which point he loses it all. (If it sounds like the insurance lobby was part of the deal in this package, you’re right!) Right around 50%, the π loses his recovery all together. There are two versions of modified comparative negligence: (1) π gets nothing when his negligence reaches 50%. If π and Δ end up in a «tie‖ for fault, then π gets nothing. (2) π gets nothing only when his negligence exceeds 50%. If π and Δ end up in a «tie‖ for fault, then π still recovers. Only when the tie is broken and π winds up with more than 50% does he lose all recovery. HYPOS: Assume π has proven damages of $100,000. (1) π = 30% / Δ = 70% a. Contrib. π gets nothing. b. Pure Comparative. π gets $70,000 c. Modified Comparative Type (1). π gets $70,000 d. Modified Comparative Type (2). π gets $70,000 π = 50% / Δ = 50% a. Contrib. π gets nothing. b. Pure Comparative. π gets $50,000 c. Modified Comparative Type (1). π gets nothing d. Modified Comparative Type (2). π gets $50,000 π = 70% / Δ = 30% a. Contrib. π gets nothing. b. Pure Comparative. π gets $30,000 c. Modified Comparative Type (1). π gets nothing d. Modified Comparative Type (2). π gets nothing Damages A B 20,000 400,000 % 20% 80% (2) (3) There are two claims: A v. B and a counterclaim of B v. A. a. Contrib. both parties get nothing in all cases. b. Pure Comparative. A gets $16,000. B gets $80,000. But the law of set-off kicks in, so B gets $64,000 and A gets nothing. The assumption in a set-off is that it is A versus B and B versus A. Notice that it is fortunate for the insurance companies involved, because they will save $32,000 as an industry because of the set-off, because the insurance coverage pays only for the legal liability established. Without set-off, the insurance company for A has to pay to B $80,000, and the insurance company for B has to pay to A $16,000. Because of the set-off, though, the insurance company for A has to pay to B only $64,000 and the insurance company for B has to pay to A nothing. 34 c. Modified Comparative Type (1) and Type (2). A gets $16,000. B gets nothing because he’s more than 50% negligent. Wassell v. Adams (1989) [253]: There is no standard formula for comparing the causal contributions of the ’s and ’s negligence to the ’s injury. In Wassell,  negligently failed to tell his hotel guest of the dangerous neighborhood surrounding the hotel and she was raped. The court found negligence, but diminished ’s recovery by 97% because of her own negligence. What did the hotel do wrong to make it negligent? They didn’t warn her of the high crime area, they didn’t employ a guard, and there was no telephone in the hotel room. - Wassell suggests a cost avoidance formula for comparative negligence: B