TORTS Travis F05 by MVvQ9JgD


									                                         TORTS - TRAVIS

    I. INTRODUCTION: Theories of Tort Liability
       A. Definition of tort
          1. Latin tortus – twisted; French – injuries  TWISTED INJURIES
          2. Formal definition – “a civil wrong, other than a breach of contract, for which the law
              provides a remedy”
       B. Is there liability?
                                  Yes Liability                           No Liability

“No fault”                               “fault”

   Strict Liability             Negligence             Intentional Tort         No Tort
                            (should know risk)         (meant to do it)

                                             -Π behavior?
                                              - Δ status?
                                             - another Δ?
        C. Purpose of Tort Law
           1. To impose a duty upon members of society to act with reasonable care
           2. To give injured party a monetary equivalent to “make them whole”
        D. Why make someone pay?
           1. Mean (intentional)
           2. Stupid (negligent)
           3. Deterrence
           4. Resolve disputes to keep individuals from taking law into own hands
        A. Intentional Tort Framework
           1. Intent
               a. Δ acts with purpose of causing tort,
               b. Δ acts with the knowledge that tort is substantially certain to be produced
           2. Causation – “but for” the act, tort would not have occurred
               a. Proximate cause – on rare occasions judge will throw out if there is an issue
                   i. Culpable behavior typically keeps indirect and unforeseeable harm in case
           3. Result – Π suffers tort
        B. Battery – intentional infliction of a harmful or offensive bodily contact
           1. Δ acts with intent:
               a. With the purpose of causing a harmful or offensive bodily contact
               b. With the knowledge that a harmful or offensive bodily contact is substantially
                   certain to be produced.
           2. Causation
               a. “But for” the act, harmful or offensive bodily contact would not have occurred
           3. Result to Π
               a. Π suffers harmful or offensive bodily contact.
                   i. Intent includes purpose OR knowledge; Δ doesn’t have to touch Π directly,
                       contact can be with something other than a person

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                        Garratt v. Dailey – child moved chair; older woman (Π) trying to sit in
                         chair; Π fell to ground
                ii. Bodily contact should be tangible; juries generally don’t allow smoke in the
                     face to be a battery because of public policy
                iii. Bodily contact can include objects that have an “intimate connection with
                     the body” (e.g., clothing)
                      Picard – Π filming car repair shop; ∆ approached Π who was holding a
                         camera; ∆ pointed at Π and placed index finger on camera
                iv. If Δ knows Π will find the contact offensive, even if contact is beneficial,
                     there may be liability if Δ knew Π would find the contact offensive
                      Roller rink
      C. Assault – intentional infliction of the reasonable apprehension of an imminent
         harmful or offensive bodily contact
         1. Δ acts with intent:
            a. With the purpose of causing the reasonable apprehension of an imminent
                harmful or offensive bodily contact
            b. With the knowledge that the reasonable apprehension of an imminent harmful or
                offensive bodily contact is substantially certain to be produced.
         2. Causation
            a. “But for” the act, reasonable apprehension of an imminent harmful or offensive
                bodily contact would not have occurred
         3. Result to Π
            a. Π suffers reasonable apprehension of an imminent harmful or offensive bodily
                i. Must be conscious to experience apprehension
                      Picard – ∆ angry and pointed at Π
                ii. A battery is not required
                      Western Union – went to get clock fixed; Δ’s employee made suggestive
                         comments and reached out for customer who jumped back
      D. Trespass to Land – intentional interference with the exclusive possession of land
         1. Δ acts with intent:
            a. With the purpose of intentional interference with the exclusive possession of
            b. With the knowledge that an interference with the exclusive possession of land is
                substantially certain to be produced
         2. Causation
            a. “But for” the act, interference with the exclusive possession of land would not
                have occurred
         3. Result to Π
            a. Π suffers intentional interference with the exclusive possession of land
                i. Interference = filling space; does not require actual damage
                      Dougherty – Δ entered Π’s land with surveyor, believing it was his land; Δ
                         did not mark any trees or cut any bushes; Π awarded nominal damages
                ii. Even if the interference is helpful, Δ may still claim trespass
                      E.g., chasing bear off someone else’s land

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                 iii. Interference must involve tangible object
                        Sound and light cannot trespass
                 iv. The air above someone’s land is considered part of their land
                        Herrin – hunting birds and shooting over someone else’s land
                 v. Trespass begins when consent ends and Δ is aware of the lack of consent;
                       invitee may overstay welcome proving knowledge and maybe purpose
                        Rogers v. Board of Road Com’rs – Δ failed to remove snow fence and anchor
                           posts at the end of the winter season; Π’s husband on lawn mower,
                           thrown to ground when mower struck post and received injuries causing
                           death; consent expired allowing intentional tort over negligence claim
                        Homer v. Gates Hypo – Δ invited for one purpose, but the purpose
                           changed when Δ starting destroying property
                 vi. Policy: preventive purpose; deter behavior and avoid prescriptive rights
                       where someone may claim rights if behavior were allowed to continue (e.g.,
                       squatters’ rights)
                        Prescriptive rights: if you let someone do something enough times,
                           they gain rights; if you don't assert your rights, you can lose them
                 vii. Uncertain T2L: interference with use and enjoyment; very high in air and far
                       below in the ground
                        Air travel – if in immediate reaches of airspace next to land
                        Mining – trespass allowed below earth in certain states
                 viii. Policy: encourage business
      E. Trespass to Chattels – intentional interference with the exclusive possession of a
         1. Δ acts with intent:
            a. With the purpose of causing an interference with the exclusive possession of a
            b. With the knowledge that an interference with the exclusive possession of a
                 chattel is substantially certain to be produced
         2. Causation
            a. “But for” the act, interference with the exclusive possession of the chattel would
                 not have occurred
         3. Result to Π
            a. Π suffers intentional interference with the exclusive possession of the chattel
            b. Actual damage
                 i. The chattel is dispossessed, or
                 ii. The chattel is impaired as to its condition, quality or value, or
                 iii. The possessor is deprived of the use of the chattel for a substantial time, or
                 iv. (1) Bodily harm is thereby caused to the possessor OR (2) harm is caused to
                       some person or thing which the possessor has a legally protected interest
                        Glidden – 4 year old climbed on dog’s back and pulled its ears; no trespass
                           to dog (chattel) because the interference caused no harm
                            Policy: protect from opening legal floodgates
                        CompuServe – Δ sent massive amounts of spam slowing server; customers
                           threatened to cancel subscriptions because of spam

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                               Email transmission deemed tangible and interfering to servers
                        Intel – former employee, Hamadi, sent 6 mass emails over 21-month
                           period; caused work for IT and HR and decreased general productivity
                            CA Supreme Court (with dissent) ultimately found interference did
                                not cause actual damage to chattel
        F. Extensions of Intent
           1. Mistaken Identity
              a. Even if result is unintended and Δ used good faith and reasonable care, Δ is
                  liable for a mistake
                  i. Liable for mistake because there is no accident
                        Ranson – T2C: Π’s dog looked like a wolf; Δs hunting wolves and shot
                           Π’s dog
                        Dougherty – T2L: thought it was his land
                  ii. Policy: create incentive for responsible behavior; avoid use of mistake as
           2. Transferred Intent
              a. Claim Π brings must be based on what Π actually experiences
              b. Always begin with direct claim, but transferred intent can fill in holes
                  i. When can’t make direct link, look for another target to show intent
              c. Even if a different target or tort is intended than in the actual result, Δ can be
                  liable to the actual victim
                  i. Intent can transfer between victims
                        Talmage – Δ threw stick intending to hit one boy; stick hits another boy
                           who loses his sight in one eye
                  ii. Intent can transfer between types of tort claims
                        E.g., Intended battery that missedassault
                  iii. Jury decides intent
        A. Negligence Framework
           1. Duty – defines level of conduct expected; judge decides
           2. Breach – failure to live up to what is expected; usually judge screens, jury decides
           3. Causation – link between breach and damage
              a. But for – actual cause; judge screens, jury decides facts
              b. Proximate – policy judgment; jury decides facts
           4. Damage – actual harm
        B. Duty
           1. Did Δ Owe A Duty?
              a. General Rule for active participant in the world: If actively engaged in
                  behavior that creates a risk, a duty is owed
              b. General Rule for bystanders or witnesses: No Duty to Act
              c. Unless exception applies:
                  i. Voluntary undertaking by Δ and detrimental reliance by Π
                        E.g., off-duty lifeguard (Δ) tell Π he would keep an eye on swimmer
                  ii. Special Relationship between Δ and Π: invitee, spouse, parent, common
                       carrier, employer, teacher; occasionally 3rd party inflicts harm

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                        Hegel – Π’s 17 year old daughter in college hanging out with a bad crowd;
                         not at dorm and university did return her to parent’s custody; university
                         did not have a duty to regulate a student’s private life
                       Duarte – university held liable for rape and murder in student dorm
                       Crowley – grandparents failed to protect son’s children from mother who
                         killed the children
                 iii. Δ Controls the Instrumentality of Harm
                       Ayres v. Hicks – Π fell and fingers stuck in escalator; Δ unreasonably
                         delayed stopping escalator and injury aggravated
                 iv. Δ Creates the Danger (even if inadvertent)
                       Customer spilling drink on store’s escalator – store and customer liable
                 v. Special relationship between Δ and 3rd-party harm inflictor (not all states)
                       Tarasoff v. UC Regents – psychiatrists responsible for patient threatened to
                         harm Π; patient killed Π
                          Weigh interests
                                   Will the patient really be violent?
                                            Yes        No

                                  Yes      True         False
                                          positive     positive
             Does doctor warn?             False         True
                                   No     negative     negative

                          Court found doctor has duty to Π if:
                           o Serious threat of physical harm
                           o Identifiable victim (know first and last name)
                        Where Δ is taking care/responsible for 3rd party
                                 3rd Party           Responsible Δ
                                 Child               Parent
                                 Employee            Employer
                                 Prisoner            Prison
                                 Auto Driver         Auto Owner
                                 Client              Attorney
             d. What if someone chooses to help?
                 i. Not automatically liable: RPUC
                       See Rescue Doctrine (III.D.2.c.viii)
                 ii. Good Samaritan laws in some state protect from liability if choose to help
             e. General Rule: No duty to prevent distress only
                 i. See Damages (III.E.3)
          2. Standard of Care – What Is the Duty Owed?
             a. Reasonable Person Under the Circumstances (RPUC)
                 i. Objective standard: Hypothetical Person with Ordinary Prudence
                       Menlove – Δ built hay rick that caught fire and spread to Π’s land; Δ
                          repeatedly warned of danger; irrelevant that Δ was not very bright
                 ii. The Circumstances: External Situation, such as an emergency not caused
                      by Δ taken into account to relieve Δ from liability
                       Cordas – cab driver threatened and abandoned car which hit pedestrians
                          on sidewalk
                 iii. For Δ with a disability: objective standard adds Δ’s Physical Attributes

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                            Roberts – Δ blind and uses a cane; Δ bumped into Π while not using cane
                            in his workplace
                             Mental disabilities are not included in RPUC although “physical”
                                disabilities are
                  iv. Children engaged in Child-like Activities or non-dangerous activities:
                       standard adds age, intelligence, maturity, training, and experience
                        Still objective?
                        Why not use this standard for adults with mental disabilities?
                  v. Children engaged in Adult-like Activities: reasonable adult standard of care
                        Robinson – 13 year old driving snowmobile with Π, whose thumb was
                            severed by rope
              b. The Professional: standard adds Δ’s profession when acting in that capacity
                  i. Reasonable Person of the Profession Δ Holds Self Out As
                  ii. Particularly for dangerous, adult activities and doesn’t matter if Δ offers
                       services for free
                  iii. RPUC plus skills of ordinary member of profession in good standing (not the
                       skills of someone with the same training or experience)
                        Heath – father crashed plane with wife and son on board; everyone killed;
                            daughter’s estate sues for negligence to get insurance money
                        Hypos
                             Dale Earnhardt, Jr. in accident driving to grocery store, not acting in
                                professional capacityRPUC
                             Dale Earnhardt, Jr. in accident flying to remote island, holding self
                                out as pilotreasonable pilot standard
                  iv. Professional negligence = malpractice
                        Specialists have a heightened standard
                  v. Jury needs to hear expert testimony to learn standard of care
        C. Breach
           1. Who Decides Breach?
          Approach                                Judge Decides                                Jury Decides
Cardozo standards (Pokora)       Screen only: ask if reasonable jury could find   Disputed facts (if any)
(current standard)               breach on given facts                            Breach
                                 if yes, go to jury                              Custom
                                 if no, throw out at motion stage if facts       If statute violated
                                 undisputed and couldn’t expect different
                                 If statute applies
Holmes rules (Goodman)           Breach                                           Disputed facts (if any)
                                 Set specific rules of law for jury
                 a. Rules of Law
                    i. Absolute rule with clear guidelines presented to jury; no exceptions
                         Goodman – rule to stop, look, and listen, or get out of vehicle
                    ii. Need jury to decide whether Π acted reasonably (RPUC standard)
                         Pokora – Π’s view blocked at RR crossing; Π stopped, looked, and
                            listened as well as he could and drove slowly; did not get out of the
                            vehicle; vehicle struck by passenger train
                 b. Role of Custom

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                i.   Industry customs or standards are used as evidence to help jury decide
                      Trimarco – Π injured by shower door not made of shatter-proof glass;
                         custom was to replace doors with shatter-proof glass
                ii. Providing custom information helpful for jury, but not definitive
                iii. Jury should consider whether custom is generally bad or good as well
                      Policy: Profit or liability determining customs?
             c. Role of Statute
                i. Applicability of Statute: Judge decide whether statute applies
                      Stachniewicz – Π sued bar owner for serving visibly drunk group before a
                         brawl in which Π was injured; question as to whether regulation and
                         statute applied
                      Statute will apply when:
                          Right Π?
                             o Π is in the class of people the statute/regulation intended to
                          Right harm?
                             o Type of injury/harm is that which the statute/regulation was
                                 intended to protect
                          Appropriate Standard?
                             o From language of statute, is it workable?
                                  Will jury be able to decide if statute was violated?
                                  Will jury be able to determine if violation actually caused
                                     the harm?
                      If statute doesn’t apply, jury will use RPUC
                ii. Violation of Statute: When is it a breach?
                      Osborne – Δ did not label poison sold to Π that caused her death; statute
                         required poison labeling
                          Negligence (“breach”) per se: Automatic breach
                             o Jury reviews disputed facts to determine statute violation
                                  No breach under statute RPUC
                                  Violated statuteBreach element satisfied
                      Martin – Δ driving buggy without lights at night and gets hit by car;
                         highway law required lights for protection
                          Negligence (“breach”) per se for unexcused violations
                             o Jury reviews disputed facts to determine statute violation
                                  No breach under statute RPUC
                                  Violated statutecheck excuses in RS § 288A
                                (a) the violation is reasonable because of actor’s incapacity;
                                (b) he neither knows nor should know of the occasion for compliance;
                                (c) he is unable after reasonable diligence or care to comply;
                                (d) he is confronted by an emergency not due to his own misconduct;
                                (e) compliance would involve a greater risk of harm to the actor or to others.
                                 No RS § 288A excuse appliesBreach element satisfied
                                 Excuse applies RPUC

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                        Zeni – Π walking in street because sidewalk snow-covered; Δ’s windows
                         fogged up; Δ hit Π and used defense that Π violated statute requiring use
                         of sidewalks
                          Rebuttable presumption or Prima Facie negligence
                             o Jury reviews disputed facts to determine statute violation
                                  No breach under statute RPUC
                                  Violated statutecheck excuses in RS § 288A (see Martin)
                                  RS § 288A excuse applies RPUC
                                  No RS § 288A excuse appliesjury looks at reason for
                                     breach, goes beyond list (use common sense)
                                  No justified reason for violatingBreach element satisfied
                                  Good reasonRPUC
                             o Policy: can attack whether statute itself makes sense
                      Minority approach
                          Evidence of negligence (“breach”) – treated like custom/industry
                iii. Policy: not always clear-cut, but use of statute helps with judicial efficiency
          2. Learned Hand Formula – useful tool to determine what an RPUC would do
             a. B<PL = Breach where:
                i. B = Burden of taking adequate precautions
                ii. P = Probability of risk if precaution was not taken
                iii. L = Magnitude of injury
             b. Δ should be responsible for loss if a burden of precaution was low compared to
                the risk of the loss
                i. B<P*L = Breach
                      Carrol Towing – RR chartered boat loaded with U.S. flour; charter required
                         bargee between 8am and 4pm; while bargee was ashore, barge drifted and
                         tanker propeller bore hole causing flour to be dumped; reasonable to
                         expect bargee to be aboard barge when it broke away
                      Unlocked gun in closet available to children
                ii. A reasonable person would not take the precaution if risk is low
                      Lubitz – son swung golf club left by father in yard; Π hit on jaw and chin;
                         father not negligent because risk relatively low
                      Blyth v. Birmingham Waterworks Co. – severe frost caused large quantity of
                         water to damage Π’s house; in an average year, such extreme frost would
                         not occur and the same water mains lasted 25 years without incident
                          Balance burden and risk; consider what risk might be expected
                iii. Even if burden is low, precaution may not be required if risk is extremely
                     low; see Foreseeability (III.D.2.c.ii)
                      Krayenbuhl – RR turntable accessible to public; children found turntable
                         locked and unguarded; Π’s foot severed while playing on turntable; Δs
                         had knowledge children played their and the burden of the lock was small
                iv. Policy: weigh the importance of a given activity or industry to determine
                     whether precautions should be taken
          3. Proof of Breach – convince jury by preponderance of the evidence

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       Case                     Outcome                Direct Evidence        Circumstantial        Res Ipsa Loquitur
  Banana Peel Cases                                  Accident + something         Evidence            Accident only
                                                              else          Accident + something
                                                                                 else to infer
Goddard                   Case dismissed: didn’t
Slipped on RR             get by judge’s screen
platform; Relatively
                                                     No                     No                     No
fresh banana; Many
passengers on train
Anjou                     Case to jury: did get by
Slipped on RR stairs;     screen
Black, flattened                                     No                     Yes                    Not Needed
banana; RR must
maintain station
Joye                      Case dismissed: didn’t
Slipped on store floor;   get by judge’s screen
                                                     No                     Not Enough             No
Dark brown, sticky
banana; store not told
                   a. Direct Evidence
                      i. Eyewitness, security camera, someone reported, admission
                   b. Circumstantial Evidence
                      i. Facts from which to infer breach
                           If there is not enough direct and/or circumstantial evidence that a
                              reasonable jury could find breachcase dismissed, unless:
                   c. Res Ipsa Loquitur (RIL) – “the thing speaks for itself;” judge decides if a
                      reasonable jury could find:
                      i. Event doesn’t ordinarily occur without negligence (gut feeling) AND
                      ii. Negligence is likely attributable to Δ (e.g., Δ has exclusive control over the
                          instrumentality) – probability assessment
                           Byrne – flour barrel fell from window hitting Π
                               Event does not normally happen
                               Shop owner had control over barrels – most likely to cause
                                  o Case goes to jury and if jury finds both elements met the jury:
                                       May find breach – using RIL as evidence (majority approach)
                                       Must find breach – where Δ must rebut (minority approach)
                                  o Policy: Π’s injury normally wouldn’t be addressed
                           Larson – falling furniture on V-J day hits Π
                               Event does not normally happen
                               Hotel not in exclusive control of furniture
                                  o Case dismissed
                           McDougland – spare tire came off truck and went through Π’s windshield;
                              chain checked pre-trip, but not every link and chain was old, not latched
                               Chain insufficient circumstantial evidence
                               Not typical for tires to bounce through windshields
                               Most likely truck driver’s fault, responsible for upkeep
                                  o Case goes to jury
                           Collision between vehicles – no RIL

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                        Injury on plane from unexpected turbulence – no RIL
                        Plane crash with no explanation – RIL
                        Medical malpractice – RIL common, but expert needed to show whether
                         unusual occurrence (seems less straight-forward)
                      Ybarra – Π had appendectomy; Π treated by several doctors and nurses;
                         Π put under anesthesia; Π woke up with neck and upper body pain that
                         later developed into atrophied arm muscles; Π could not prove which Δs
                         were responsible; sued all to “smoke out” culprit
                          Direct and circumstantial evidence unavailable if unconscious
                          Appendectomy has nothing to with arm
                          Can’t pinpoint Δ – all Δs involved in various activities, controlling
                             different instruments
                             o Case goes to jury
                                  Whole group liable – hoped to lead to finger-pointing
                iii. Policy: burden of proof (BOP) shifted to Δ; jury decides more
      D. Causation
         1. Actual Case (a.k.a. “Cause-in-Fact” or “But for Cause”)
            a. Factual, pseudo-scientific assessment
            b. Intervening causes
                i. Any event that takes place between Δ’s breach and Π’s harm
                      Descriptive term; doesn’t cut off liability
            c. General rule
                i. What is Δ’s specific breach?
                      Would a reasonable person take different precautions?
                ii. Actual outcome with Δ’s breach?
                iii. Hypothetical outcome without Δ’s breach?
                      Most likely scenario/best speculation
                iv. “But for” causation if ii and iii are not equal
                      Perkins – RR imposed speed limit which train violated; train hit car in RR
                         crossing, resulting in occupants’ deaths
                          Would accidental death of passenger occur but for train violating
                             speed limit?
                v. Multiple necessary causes: go through each Δ and find cause for each one;
                     each Δs’ breaching behavior is necessary for Π’s injury
                      Hill – Δ1 left tractor in road with no lights; Δ2 swerved to avoid tractor,
                         but collided with it and passenger in Δ1’s car (Π) injured
                    What is the Δ’s        Actual outcome          Hypothetical      “But for”
                    specific breach?       with Δ’s breach?      outcome without    causation?
                                                                   Δ’s breach?
                     Δ1 = left tractor    Collision (passenger       No crash           Yes
                     Δ2 = driver of car   Collision (passenger      No crash            Yes
                    going too fast/not           injured)
                    looking/ didn’t see

                              See Joint and several liability (VI.B.1.c) – All or nothing damages
                               o Π won’t get double recovery; court will determine apportionment

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                                   Π won’t get windfall, but could get punitive damages (see
                                      VI.C) from both
                   vi. Lost Chance of Survival
                        Herskovits – GHC doc failed to diagnose Π’s lung cancer on first visit;
                          Π’s chances of survival reduced from 39% to 25% (14% total)
                           Standard (General rule)
                              o Dissent: but for cause only if Π’s chance of survival >50%
                                   All or nothing damages
                d. Exceptions
                   i. Substantial factor test: did breach play a big enough role?
                        Herskovits majority: but for cause if Δ’s acts or omissions increased risk
                          of harm to Π
                           Evidence furnishes a basis for jury to determine whether increased
                              risk was a substantial factor in bringing about harm
                              o Policy: in med mal, Π would have no recourse if only looked at
                                  cases with >50% chance of survival; give terminally ill patients
                                  hope; incentive for experimental treatments
                                   All or nothing damages
                   ii. Loss of chance
                        Herskovits concurrence: but for cause if Δ’s acts or omissions decreased
                          percentage chance of survival; each % given dollar about
                           Harm defined as percentage chance lost
                              o Policy: in med mal, provides recourse for Π and seems more fair
                                  for Δ; court is already measure life’s worth in calculated total
                                  damages; potential for expanding claims
                                   Remedy will match harm (e.g., 14% of damages for death)
Test                   What is the Δ’s           Actual outcome with      Hypothetical             “But for” causation?
                       specific breach?          Δ’s breach?              outcome without Δ’s

Standard               Fail to timely diagnose   Π died                   Π died                   No
                       (39% to 25%)
Standard (with         Fail to timely diagnose   Π died                   Π lives (>50%)           Yes
different outcome)     (59% to 45%)
Substantial Factor     Fail to timely diagnose   Π died                   Π died                   No “substantial
                       (39% to 25%)                                                                factor” Yes
Loss of Chance of      Fail to timely diagnose   25% chance of survival   39% chance of survival   Yes (14% lower)
Survival               (39% to 25%)
                     iii. Multiple sufficient causes: go through each Δ and find cause for each one
                           Anderson v. Minneapolis – RR (Δ1) has fire that merges with fire caused by
                            unknown Δ (Δ2); combined fires destroy Π’s property; either fire
                            independently would have caused the loss
                             Either Δs’ breaching behavior would have caused Π’s injury
                                 independently, but no but for cause under standard test
                             Distinguished from Hill where both Δs’ breaches needed
                                 o See Joint and Several Liability (VI.B.1.c)

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Test                    What is the Δ’s          Actual outcome with      Hypothetical outcome         “But for”
                        specific breach?         Δ’s breach?              without Δ’s breach?          causation?

Standard                ∆1 RR created fire       Property burned down     Property burned down         No
Standard                [∆2 – created fire]      Property burned down     Property burned down         No
Multiple Sufficient     ∆1 RR created fire       Property burned down     Property burned down         Yes (Joint and
Causes                                                                                                 severally liable)
Multiple Sufficient     [∆2 – created fire]      Property burned down     Property burned down         Yes (Joint and
Causes                                                                                                 severally liable)
                       iv. Burden of proof shifting
                            Summers v. Tice – both Tice and Simonson fired at quail in concert; one hit
                              Π in the eye; don’t know which one hit Π
                               BOP shifted to Δs to get themselves out of liability
                                  o Policy: Π gets something for injury; motivation for Δs to point
                                     fingers and find true cause; incentive to be more careful
                                  o See Joint and Several Liability (VI.B.1.c)
                                      All Δs fully liable, unless rebuttable, and each has to pay up to
                                         100% combined;
                                      If one doesn’t pay, the others will be on the hook for all of it
What is the Δ’s          Actual outcome with     Hypothetical           But for cause?           BOP Shifting J&S
specific breach?         Δ’s breach?             outcome without Δ’s                             Liability
∆1 – Tice carelessly     Π shot in the eye       ? (50/50)              No                       Yes
∆2 – Tice carelessly     Π shot in the eye       ? (50/50)              No                       Yes
                               Ybarra – no idea if anyone breached duty, looks like medical team acted
                                in concert
                                 Multiple Δs swept in who may not have done anything, so it is up to
                                    them to get themselves out of liability – not 50/50 like Summers
                                    o Ybarra : Breach :: Summers : Actual Cause
                               Sindell – Π’s mother took DES during pregnancy and Π developed
                                cancer; Π unable to identify which of >200 manufacturers, so sued Δs
                                with 90% DES market share when Π’s mother took drug
                                 No certainty of right Δ, but Δs have opportunity to rebut
                                    o Policy: not all Δs may be there and not acting in concert, but
                                         industry has responsibility; Δs have more information; costs
                                         spread among companies that can afford it
                                    o Market Share Liability: modification of Summers applied to
                                         industry/enterprise breach
                                          Each Δ must have “substantial share” of market: more
                                             likely the right Δ is involved, but could miss one
                                          Each Δ not exculpated pays its market share at time of breach
                                          Policy: JNs determine market share & apply damages
What is the Δ’s         Actual outcome         Hypothetical outcome     But for cause?           BOP Shifting Liability
specific breach?        with Δ’s breach?       without Δ’s breach?                               Based on Market Share

∆1 – Manufactures       Π gets cancer          Π gets cancer            No                       Yes
dangerous drug

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       ∆2 – Manufactures    Π gets cancer        Π gets cancer          No                      Yes
       dangerous drug
       ∆3 – Manufactures    Π gets cancer        Π gets cancer          No                      (exculpated)
       dangerous drug

                   2. Proximate Cause (a.k.a. “Legal Cause”)
                      a. Policy assessment
Actual Cause
                      b. Π must prove both actual and proximate cause to prove negligence
                         i. Ryan – Δ started fire in woodshed and Π’s house, 130 feet away, destroyed by
Proximate cause               fire despite efforts to save it; fire spread to other houses
                               Δ actual cause of damage, but must be able to anticipate the damage
   Π wins
                                    Policy: reliance on RR probably encouraged court to limit liability;
                                       line must be drawn somewhere
                      c. Balance factors of directness and foreseeability
                         i. Directness – hindsight; immediate (not remote); close in time and space
                               In re Polemis – vessel carrying petrol; plank fell into hold and caused spark;
                                   explosion and subsequent fire destroyed ship
                                    Plank directly connected to result
                                    Explosion not foreseeable under circumstances, but there were no
                                       intervening events or passage in time or space
                         ii. Foreseeability – foresight; place in Δ’s position at time Δ engaged in
                              breaching conduct to determine what result could be anticipated
                               Wagon Mound No. 1 – freighter moored ~600 from Π’s dock; freighter
                                   carelessly discharged oil causing minor damage on wharf slipways; ~2.5
                                   days later dock employees dropped molten metal and oil caught fire,
                                   burning dock and 2 ships
                                    Directness: ~2.5 days; molten metal superseding cause
                                    Foreseeability: no evidence; who knew oil would catch fire on water?
                               Wagon Mound No. 2– 5 years later, but same facts as in No. 1; Πs 2 ships;
                                   additional evidence of flammable acid on dock
                                    Directness: see above
                                    Foreseeability: some evidence with focus on ship’s engineer
                         iii. Unforeseeable type of harm – most likely to cut off liability
                         iv. Unforeseeable Π – more likely to cut off liability
                               Palsgraf – RR guards helped man trying to catch train; unmarked package
                                   containing firework dislodged and exploded; scales fell and hit Π on
                                   platform 25 feet away
                                    Cardozo view: duty to passenger; judge decides duty to Π as
                                       matter of law
                                       o Orbit of duty based on orbit of danger seen by “eye of reasonable
                                           vigilance” – next to Δ, what did “eye” see
                                       o Circle of risk – how far does risk flow?
                                            If package had been unwrapped, “eye” would see the risk
                                    Andrews (most common): duty to society, including unforeseeable Π;
                                       duty element already satisfied
                                       o Causation up to jury as matter of fact
                                            Consider natural and continuous sequence (i.e., directness)

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                v. Unforeseeable degree/amount of harm – less likely to cut off liability
                      Bartolone – Π had pre-existing psychosis and very proud of strength; car
                         crash led to minor physical injuries; Π ultimately had breakdown
                          Actual cause: expert testimony used to prove
                          Directness: no intervening events
                          Foreseeability: some harm foreseeable although amount may not be
                             o Eggshell Π – take Π as find him (may apply to property)
                             o Policy: impractical to look at reasonability of Π
                                   Could re-characterize amount of harm as type of harm to cut
                                       off liability
                      Daley – power line explosion set off Πs’ emotional disturbance
                vi. Unforeseeable manner of harm – least likely to cut off liability
                      United Novelty – Π cleaning vending machine with gasoline in room with
                         open flame; rat went to heater and caught fire; rat ran back to vending
                         machine causing explosion; Δ’s duty to provide safe work environment
                          Actual cause: gas, flame, rat (multiple necessary causes)
                          Directness: occurred immediately, although rat could be intervening
                          Foreseeability: explosion from cleaning with gas near flame
                             foreseeable although manner of harm unforeseeable
                             o If type of harm is foreseeable, manner is irrelevant
                vii. Superseding Causes – subset of intervening causes; legal conclusion that
                     can cut off liability
                      Deriderian – contractor (Δ1) did not put barrier, 2 flag people, or multiple
                         warning signs on worksite next to road; Π working with boiling enamel;
                         driver (Δ2) didn’t take Rx, had seizure, and vehicle struck Π; Π’s body
                         ignited into fireball when splattered with enamel
                          When an intervening cause breaks the causal connection
                             between Δ’s breach and Π’s harm
                             o Cuts across both directness and foreseeability factors
                             o Harm that occurred with no barrier is what is expected, but Δ1
                                  may not foresee epileptic driver
                                   Δ2 does not supersede Δ1
                                   Both Δ1 and Δ2 can be joint and severally liable (see
                      Independent risk vs. risk flowing from wrong
                          Acts of God
                             o Pilot forced to make emergency landing; volcano erupts –
                                  volcano is superseding cause
                                   Breach is not linked to type of risk normally planned for
                             o Plants killed by frost before replacing canvas coverings – frost is
                                  not superseding cause
                                   Breach linked to type of risk normally planned for
                      Contributory negligence
                          Π’s conduct may supersede if more than garden variety negligence
                             o May reduce Δ’s damages (see Defenses V.A.1.c)
                      Medical malpractice

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                         Not superseding (not considered unusual) unless intentional
                       Watson – Δ RR car derailed, valve broken, and gas ran into street; 3rd
                        party struck match (unclear why); gas ignited and Π injured
                         Match is superseding if match dropped intentionally and maliciously
                             o Intentional criminality strongest case for superseding cause
                                 because normally unexpected
                                  Special relationship between Δ and 3rd party (see III.B.1.c.v)
                                     criminality likely not superseding
                      Security company breached duty; Π burglarized – duty specific to
                        intervening cause, so burglar is not superseding cause
               viii. Rescue Doctrine – danger invites rescue
                      McCoy – Π helped victims in Suzuki Samurai; ~2 hours later, Π struck by
                        vehicle; Δ Suzuki tried to claim rescuer superseding cause
                             o Policy: rescuers are foreseeable, but must meet test to qualify
                             o Purpose:
                                  Informs tort-feasor it is foreseeable a rescuer will come
                                     to aid the person imperiled by tort-feasor’s actions;
                                     therefore, tort-feasor owes rescuer a duty similar to the duty
                                     owed the person he imperils
                                  Negates presumption that rescuer assumed the risk of injury
                                     when he knowingly undertook the dangerous rescue, so long
                                     as he doesn’t not act rashly or recklessly
                             o Test:
                                  Δ was negligent to the person rescued and such negligence
                                     caused the peril or appearance of peril to the person;
                                  Peril or appearance of peril was imminent;
                                  A reasonably prudent person would have concluded such
                                     peril or appearance of peril existed; and
                                  Rescuer acted with reasonable care in effectuating the
                      Firefighter rule – generally barred from making claims unless Π
                        particularly negligent and causes injury unrelated to fire
                      Yun – tire falls off van; daughter pulled over; 65 year old dad (Π) ran
                        across road to get tire; Π struck and killed on return to van; Π’s estate
                        sued for negligence and claimed rescue doctrine
                         Jury must decide whether Π was a superseding cause or if rescue
                             doctrine applies
                             o Characterization of facts will affect decisions
                                  Very descriptive vs. very general – story will support the
                                     conclusion parties want
      E. Damage
         1. Tangible harm to real person/personal property
         2. Physical injury (e.g., broken bone) + “parasitic” emotional distress
            a. Parasitic damages only come from immediate physical harm
               i. E.g., hand chopped off, phantom hand syndrome  distress damages
         3. Emotional Distress Only – Π is not physically harmed
            a. Direct Distress Situation

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                  i.    Impact theory (still used in some states) – any physical touching
                         Daley – Δ’s truck hit power lines that caused explosion on lines leading to
                            Πs’ house; Πs suffered emotional disturbance; impact not required
                   ii. Definite and objective injury test – reverse timing from parasitic; physical
                        manifestations of distress
                   iii. Hypersensitivity excluded
              b. Indirect Distress Situation – Π’s distress linked to someone else’s damage
                   i. Zone of Danger (+ extra requirements depending on state)
                         If Π close enough that could have been harmed as well
                             Policy: potentially too broad; state may ask extra questions to resolve;
                                more arguable in age of technology (e.g., Jet Blue on TV)
                   ii. Dillon Factors
                         Dillon – court limited distress damages to daughter endangered by
                            conduct of negligent driver
                         In assessing duty, courts must consider whether:
                             Π located near scene of accident as contrasted with one who was a
                                distance away from it;
                             Shock resulted from direct emotional impact upon Π from sensory
                                and contemporaneous observance of the accident, as contrasted with
                                learning of the accident from others after its occurrence; and
                             Π and victim were closely related, as contrasted with an absence of
                                any relationship or the presence of only a distant relationship.
                   iii. Thing Rule (in CA)
                         Thing – Π’s son hit by car; mother did not witness accident
                         In assessing duty, courts must establish if, but only if, Π:
                             Is closely related to the injury victim;
                                o Relatives residing in the same household, or parents, siblings,
                                    children, and grandparents of the victim
                             Is present at the scene of the injury-producing event at the time it
                                occurs and is then aware that it is causing injury to the victim; and
                             As a result suffers serious emotional distress—a reaction beyond that
                                which would be anticipated in a disinterested witness and which is
                                not an abnormal response to the circumstances.
                         Policy on close relationships: courts want predictable behavior
       A. Strict Liability Framework
          1. Δ engaged in right kind of activity – judge decides (matter of law)
          2. Causation – either actual only or actual and proximate cause
          3. Damage
       B. Policy
          1. Strict liability only applies to certain activities
              a. Middle ground between making activity illegal and making Π prove danger
              b. Ability to risk pool – spread costs of liability for certain activities
                   i. Potential for too little or too much insurance
          2. Useful when difficult for Π to prove negligence
              a. Fall back to negligence if strict liability not proven

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      C. Activities
         1. Maintenance of Animals
            a. Wild animals
                 i. Strict liability for owner because impose greater risk than domestic animals
                 ii. No reciprocal risk
                       Ferret – considered wild animal; strict liability
            b. Domesticated animals
                 i. More common to own cats and dogs
                 ii. More general knowledge of what is reasonable (e.g., shots, etc.)
                       Dog – if owner knew or should have known dog dangerous, could be
                         held strictly liable (e.g., 1 bite rule); if owner had no idea could be
                         dangerous, statute (e.g., leash law) or negligence may apply (e.g., CA
                         requires owner liability for bite in public)
                       Biting sheep on owner’s property – more likely negligence
                          Unusual behavior
                          Π must show specific breach – hard to prove
                       Roaming sheep – owner strictly liable
                          Don’t have to prove intent
                 iii. Laws vary, need to show social value of animal to avoid strict liability
         2. Abnormally Dangerous Activities
            a. JNs apply either 1st or 2nd Restatement of Torts
                 i. RS 1st applies strict liability for “ultrahazardous activity” (minority of courts)
                       Spano – Δ using TNT to construct tunnel near Π’s garage; Π’s garage
                         wrecked and a car damaged; Blasting operators held strictly liable
                          Activity that:
                              o Necessarily involves a risk of serious harm to the persons, land,
                                  or chattels of others which cannot be eliminated by the exercise
                                  of the utmost care AND
                              o Is not a matter of common usage
                                   Location irrelevant
                 ii. RS 2nd § 520 applies strict liability to an “abnormally dangerous activity”
                      (majority of courts)
                       Indiana Harbor Belt v. Am. Cyanamid – Δ manufactured chemical and
                         loaded on tank car; car carried to Π’s RR yard where employees noticed
                         fluid gushing after arrival; chemical is flammable at 30º F and highly
                         toxic; Π required to decontaminate area for ~$1 million; Π sued Δ for
                         clean up costs on negligence and strict liability theories; activity is
                         transportation rather than manufacturing the chemical; strict liability
                         would not apply to Δ
                       Guille v. Swan – balloonist landed in garden that crowd subsequently
                         trampled; paradigmatic strict liability case
                          Factors to be considered for abnormally dangerous activity:
                              o (a) Existence of a high degree of risk of some harm to the person,
                                  land, or chattels of others;
                              o (b) Likelihood that the harm that results from it will be great
                              o (c) Inability to eliminate the risk by the exercise of
                                  reasonable care;

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                                  o (d) Extent to which the activity is not a matter of common usage;
                                  o (e) Inappropriateness of the activity to the place where it is
                                       carried on; and
                                  o (f) Extent to which its value to the community is outweighed by
                                       its dangerous attributes
                                        Location is relevant
                                        Looks at foreseeability
                                        Sounds like Learned Hand Formula (see III.C.2)
                          As dangerous activities become more common (e.g., driving, flying),
                             more likely to move away from strict liability
                b. Limitations
                     i. Unforeseeable type of harm – may not be reasonable for Δ to discontinue
        Actual Cause     activity
                          Foster – blasting frightened mother mink who killed their kittens
        Proximate             Approach #1
         cause                    o Δ engaged in right kind of activity
                                  o Causation = actual and proximate
                                  o Damage
                                        Result for Foster: Δ wins (no proximate cause)
       Actual Cause           Approach #2
                                  o Δ engaged in right kind of activity
                                  o Causation = actual only
                                  o Damage = of the type that makes the activity subject to strict
                                       liability in the first place
                                        Result for Foster: Δ wins (no damage element)
      D. Products
           1. In general
                a. Courts moved defective products to strict liability; memorialized in Restatements
                     i. Compare products to services which does not have strict liability: larger
                         stream of commerce; distance between consumers and manufacturers much
                         greater; harder to prove negligence; corporation as a machine vs. humans;
                         chance of same injury recurring; expectations of uniformity
                          Greenman – Π owned Shopsmith and studied brochure; Π working with
                             Shopsmith when wood suddenly flew out and struck him on the
                             forehead causing serious injury
           2. Manufacturing Defects
                a. JNs either apply RS 2nd or RS 3rd – highest standard of all defects; hardest for Π
                     to prove
                     i. RS 2nd § 402A (widely adopted) does not separate types of defects
                          Rix v. GMC – Π driving and hit from behind by truck whose brakes
                             failed; Π alleged tube in brakes came out because it was defective and
                             that Δ should have mandated a dual braking system
                              One who sells any product in a defective condition unreasonably
                                  dangerous to the user or consumer or to his property is subject to
                                  liability for physical harm thereby caused to the ultimate user or
                                  consumer, or to his property, if
                                  o the seller is engaged in the business of selling such a product, and

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                                  o it is expected to and does reach the user or consumer without
                                       substantial change in the condition in which it is sold.
                                        Court interprets – focus on Π’s expectation whether the
                                           product is more dangerous than reasonable consumer (i.e., Π)
                                           would expect (Consumer Expectations Test)
                                        Compare product to other examples to see if it diverged
                                           from product line
                      ii. RS 3rd Product Defectiveness §§ 1-2
                           One engaged in the business of selling or otherwise distributing products
                             who sells or distributes a defective product is subject to liability for harm
                             to persons or property caused by the defect
                           A product is defective when, at the time of sale or distribution it contains
                             its intended design even though all possible care was exercised in the
                             preparation and marketing of the product
                              (a) contains a manufacturing defect when the product departs from
                                  its intended design even though all possible care was exercised in the
                                  preparation and marketing of the product
                                  o Π only has to prove defect
                                        Includes distributors
                                          Manufacturing Defect
Strict Liability                                                                          Negligence

             R. 3rd    R. 2nd

             3. Design Defects
                a. Need legal standard to define – difficult for Π to prove
                   i. RS 2nd § 402A (see IV.D.2.a.i)
                   ii. Risk-utility analysis most common
                         O’Brien – Π dove into above-ground pool; when Π hit vinyl-lined
                           bottom, his hands spread apart and he hit his head; most likely no
                           alternative to vinyl, but the risk of pool may have outweighed utility
                            Factors to weigh for defects:
                               o Usefulness and desirability
                               o Likelihood of risks and seriousness of injury – PL or B<PL
                               o Availability of substitute – B of B<PL
                               o Ability to eliminate unsafe character – B of B<PL
                               o Ability of user to avoid danger
                               o User’s awareness of dangers
                               o State-of-the-Art – existing level of expertise and knowledge in
                            Goes to jury to determine if design defect and right activity
                               o Looks like breach
                   iii. RS 3rd Product Defectiveness §§ 1-2 (see IV.D.2.a.ii)
                         (b) is defective in design when the foreseeable risks of harm posed by
                           the product could have been reduced or avoided by the adoption of a
                           reasonable alternative design by the seller or other distributor, or a

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                            predecessor in the commercial chain of distribution, and the omission of
                            the alternative design renders the product not reasonably safe;
                             Looks like Learned Hand Formula (see III.C.2) where B =
                                alternative design
                             Includes reasonableness language
                                       Design Defect
Strict Liability                                                                        Negligence

                                                                    R. 3rd
                                                                    & R. 2nd
             4. Warning Defects
                a. More about people’s behavior than inherent quality of product
                   i. RS 2nd § 402A (see IV.D.2.a.i)
                        Anderson v. Owens-Corning – Δs manufacturers of asbestos-containing
                          products; Π allegedly exposed to products and contracted asbestosis and
                          other lung ailments; state of the art is relevant to whether Δ knew or
                          should have known risks to warn about
                           Known and knowable risks of use and foreseeable misuse
                               o Experience inside and outside company
                               o Once person misuses, now a known risk
                               o Legal requirements vs. business implications
                   ii. RS 3rd Product Defectiveness §§ 1-2 (see IV.D.2.a.ii)
                        (c) is defective because of inadequate instructions or warnings when the
                          foreseeable risks of harm posed by the product could have been reduced
                          or avoided by the provision of reasonable instructions or warnings by the
                          seller or other distributor, or a predecessor in the commercial chain of
                          distribution, and the omission of the instructions or warnings renders the
                          product not reasonably safe
                           Foreseeable risks
                               o Addresses known and knowable
                           Reasonable warning – close to negligence spectrum
                               o Courts look at both reasonable manufacturer and reasonable
                                   content (what it should look like)
                b. No hard and fast rule for adequacy of warning
                   i. Too many warnings
                        May dilute
                        Discourage purchase
                        Encourage misuse
                   ii. Broad warnings
                        May seem safe
                        Might need more specifics to avoid liability
                                       Warning Defect
Strict Liability                                                                        Negligence

                                              R. 2nd                           R. 3rd

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      A. Defenses to Negligence Claims
         1. Π’s Contributory Negligence
            a. After all elements satisfied against Δ, Δ can raise affirmative defense that Π was
                i. If Π’s behavior more than garden variety negligence, would address
                    proximate cause (see III.D.2.c.vii) and Δ wouldn’t need a defense
                ii. Δ must prove all elements against Π
                     Butterfield – Π ride horse violently (not with ordinary care); Π rode into
                        pole Δ left in the road
                         If Π contributes to negligence, Π’s recovery barred
                            o All or nothing approach – pro-Δ
                            o Policy: judicial efficiency; needs exceptions to be fair to Π
            b. Last clear chance
                i. Davies – Π left donkey tied up; Δ driving at “smartish” pace; wagon knocked
                    donkey down and killed it
                         If Δ had the opportunity to avoid the accident after the opportunity
                            no longer available to Π, Δ bears the loss
                            o All or nothing approach – pro-Π
                            o Policy: judicial efficiency, but difficult to prove and inequitable
            c. Comparative Negligence – judicial creation; some statutes
                i. Pure
                     Split the difference – Π’s damages reduced by Π’s negligence
                ii. Modified
                     50% JN – Δ pays his share if Π’s negligence ≤ Δ’s negligence
                         See Remedies (VI.B.1.c)
                     49% JN – Δ pays his share if Π’s negligence < Δ’s negligence
                         If negligence is 50/50, recovery barred
                            o Slightly pro-Δ
                     McIntyre – Π driving with 0.17 BAC; Δ traveling over speed limit; Π’s
                        pickup hit by Δ’s tractor
                         Contributory negligence would bar Π’s recovery; no last clear chance;
                            comparative negligence allows some recovery
                            o Policy: jury usually just told to determine percentage without
                                getting instruction on type of jurisdiction; may affect jury
      Pro – Δ                                                                                        Pro – Π

                                                                                                          (Δ pays
      Contributory                        Modified comparative                    Pure comparative
      Negligence                              (Δ pays %)                          (Δ pays %)
      (Δ pays 0)
                                 49% jurisdiction    50% jurisdiction
                                 Π wins if:          Π wins if:
                                 Π’s neg <Δ’s neg    Π’s neg ? Δ’s neg

                          Hypothetical: Homer v. Vending Machine Co.
            Π’s      Δ’s            49% JN                               50% JN                          Pure
            Neg      Neg

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          25%     75%    Homer gets 75% of damages   Homer gets 75% of damages    Homer gets 75% of
          60%     40%        Homer gets nothing          Homer gets nothing       Homer gets 40% of
          50%     50%        Homer gets nothing      Homer gets 50% of damages    Homer gets 50% of
          2. Π’s Assumption of the Risk (AOR)
             a. Express – intersection of contract and tort law
                 i. Π explicitly agrees (usually, but not always, in writing) that, if Δ negligent,
                      won’t bring claim
                 ii. Π sues anyway and Δ brings assumption of risk as defense
                       Winterstein – Π signs release form to race on speedway; Π gets hurt from
                         cylinder left in roadway; Δ’s employees failed to watch hazards; release
                         not void against public policy
                          Analysis whether AOR defense applies:
                             o Whether risk that injured Π fell within unambiguous terms of
                                  agreement – Δ’s BOP
                                   If no, defense fails
                                   If yes, move to next step
                             o Tunkl factors – if risk fell within agreement, whether the
                                  release/contract itself violates public policy – Π’s BOP; some
                                  factors have more weight than others
                                   Concerns a business of a type thought suitable for regulation
                                   Party seeking exculpation is engaged in performing service of
                                       great importance to the public
                                   Party holds himself out as willing to perform service to
                                       anyone seeking it
                                   Essential nature of service – party possesses decisive
                                       bargaining power against anyone seeking the service
                                   Party with bargaining power uses standardized adhesion
                                       contract of exculpation with no insurance provision
                                   Person agreeing is placed under seller’s control
                 iii. Defense, if satisfied, completely bars recovery
             b. Implied – inferred from actions
                 i. Π had actual knowledge of particular risk;
                 ii. Π appreciated magnitude of risk; AND
                 iii. Π voluntarily encountered risk
                       Rush – Π fell through floor of privy owned by Δ; Π aware of danger and
                         Δ breached with poor maintenance
                          When you’ve got to go, you’ve got to go – not AOR
                       Amusement park ride – implied AOR based on names of rides
                       Teaching beginner to drive – not unreasonable risk; implied AOR
                       Didn’t know dark room dangerous – contributory negligence only
                       Riding with drunk driver – both implied AOR & contributory negligence
                       Π dashes onto train track to save child from RR’s negligent operation; Π
                         injured – see Rescue Doctrine (III.D.2.c.viii)
                          Internal conflict on whether rescuer’s simple negligence is OK

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          3. Comparative Negligence vs. Implied AOR
             a. AOR preferred by Δ – completely bars recovery
                 i. Δ will often alternatively plead contributory negligence AND implied AOR
                       JN w/ contributory negligence – contributory and implied AOR available
                       JN w/ comparative negligence have 3 options where comparative
                          negligence and implied AOR overlap:
                           Keep defenses separate
                           Keep both defenses, but when there is overlap, can only allege Π’s
                           Merge Π’s negligence with AOR
                              o Eliminated “reasonable assumption of the risk”
       B. Defenses to Strict Liability Claims
          1. Show Π can’t prove elements
             a. Negate Δ engaging in right kind of activity
                 i. Show there is no defect
             b. Negate causation
                 i. Π’s actions superseding cause – must be particularly bad behavior
                 ii. Bring in another Δ (e.g., Dr. learned intermediary)
                       Nicotine patch case – Π used 2 patches and smoked; gave dr. more
                          serious warning than Π received
                 iii. Suggest Π wouldn’t have read warning
                       Read and Heed – rebuttable presumption that Π did read and heed
                          helps Π get over actual cause, but Δ could bring in Π’s background
          2. Affirmative defenses
             a. Π’s negligence
                 i. JNs differ on whether defense is allowed
                       Daly v. GMC – Π thrown from car with allegedly defective door latch;
                          evidence of Π’s intoxication and not using seatbelt properly
                           Court extended comparative negligence to strict products liability
             b. Π’s Assumption of the Risk
                 i. Usually allowed, although Daly did not use where it overlapped
       A. Nominal Damages
          1. Purpose: symbolic/make statement as alternative if there is nothing to compensate
             a. Statement of $1 that case was proven
             b. Usually in intentional torts
                 i. Actual harm is an element in strict liability and negligence, but not in all
                      intentional torts
       B. Compensatory Damages
          1. Purpose: make Π whole
             a. Measured exactly the same way regardless of theory
             b. Trying to put Π in a position if tort had never occurred – Backward looking
                 i. Money equivalent to put you back in that position
                 ii. Contrast with contract law which is forward looking
             c. Joint and Several Liability
                 i. All Δs on the hook – if Δ2 missing, Δ1 pays whole thing unless Δ2 chips in
                 ii. Comparative negligence JNs

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                        Courts have to decide whether to compare Π to all Δs combined or
                          Multiple Δs combined negligence > Π’s negligence
                             o Joint & Several (J&S) JN – Δs pay = 100% - Π’s negligence
                             o Not J&S JN – Δs pay only for their negligence (severally liable)
                          Multiple Δs individual negligence > Π’s negligence
                             o Joint & Several (J&S) JN – irrelevant
                             o Not J&S JN – individual Δ pays = 100% - Π’s negligence
      C. Punitive Damages
         1. Purpose: Punish and deter
         2. Eligibility – hurdle
            a. Need to put additional evidence beyond elements of claim
            b. Need something about Δ’s mindset – recklessness and malice can prove eligibility
                 (gross negligence less common for eligibility)
                 i. Recklessness elements: knowledge of risk AND conscious disregard of risk
                      Wauchop v. Domino’s – Δ had 30-minute pizza delivery guarantee; Π killed
                         by pizza delivery driver; Π proved Domino’s likely had knowledge and
                         consciously disregarded risk
                          If punitive damages get past summary judgment, there is an incentive
                             to settle (damages can be high and unpredictable)
                          Why Domino’s?
                             o Deeper pockets; their policy; stop it from happening to others
                 ii. Easier to get in intentional torts, but not automatic
         3. Amount
            a. How much can punish or deter?
                 i. Jury gets a wide range of discretion – sets the damages and is typically told to
                      Character of Δ’s act
                          How bad/egregious was Δ’s behavior
                          Did Δ do it repeatedly?
                          Did Δ try to cover it up?
                      Nature and extent of harm to Π
                      Wealth of Δ (very controversial)
                          Might skew jury’s findings
                          Many states bifurcate trial at this point to address this concern
                          Attorney could find other ways to characterize wealth
                          Encourages responsibility of wealthy Δs
                          Could Δ be profiting from harm?
                 ii. Judge will review – judge very deferential
         4. Limits
            a. 14th Amendment Due Process Limitation
                 i. Courts now must use 3 guideposts plus ratio to assess damages
                      BMW – Π bought BMW in Alabama; Π discovered distributor selling
                         cars that had been repainted; jury awarded $4 million in punitive
                         damages; State Supreme Court only cut award in half; deference to jury;

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                               US Supreme Court deemed $2 million punitive damage award
                               constitutionally excessive
                                Adequate notice of magnitude of sanction guideposts:
                                   o Degree of reprehensibility
                                   o Ratio – punitive:compensatory
                                        No real guidance
                                   o Sanctions for comparable misconduct
                                        What were similar civil and criminal fines in other states?
                            State Farm – Few awards exceeding a single-digit ratio between punitive
                               and compensatory damages, to a significant degree, will satisfy due
                                Punitive/compensatory ≤ 9/1
                                   o More of an observation, not as strict as it looks
                    b. State Statutes
                       i. Can set own limits by statute – only effective if below Federal limit
                            Caps
                                Ratio to compensatory damages (mathematical formula)
                                Set dollar amount
                                Of Δ’s wealth (uncommon)
                                Some combination of the 3
                            Extraction Statutes
                                Give some of punitive damages award to state
                                   o Not a limit from Δ’s perspective; Π sees as limit
                                Pros – keeps Δ focus of punitive
                                Cons – incentive for lawyer not to take case; does Π deserve?
                    c. Tort Reform (limiting punitive damages)
                       i. Support (Insurance Cos., drs, class action targets)
                            Torts 2.2% of GDP
                            Public surveys show damages feel excessive
                            Could reduce med-mal insurance
                       ii. Against (Π attys, consumer advocacy)
                            Punitive damages not that common – may not get to trial, though
                            Not particularly large, we see skewed sample
                            1989-97 tort filings down 9% (K suits up)

 Strict Liability           Negligence         Intentional Tort         No Tort

                                               (1) Eligibility hurdle
      Phase I
                                                                                              Phase II
 Compensatory damages                                                   Punitive Damages
 (“make whole”)                                                         (2) Amount

          OR                                                            (3) Limits
                                                                        - 14th Amendment Due Process
 Nominal damages                                                        - State Statutes

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