Steven G. Yang
Torts – Professor Tamanaha
Civil Law vs. Criminal Law
Civil law. – Private law, not relating to government. Relating to individuals. To compensate, deter bad
behavior, put someone back in position before tort was committed. In a secondary sense, it can punish, but it is
oriented towards restitution, not punishment. Brought by individuals.
The burden of proof differs. In criminal case, its “beyond a reasonable doubt.” In civil law, it’s upon
preponderance of the evidence (51/49). You can bring a case in both systems.
The overlap – the area which they both cover, is harms among individuals. That primarily shows up in
The state can bring suit in a tort case – but its acting as an individual property. Likewise, you can bring a tort
case against the state.
Definition of Torts:
Involves civil wrongs not involving contracts,that the law provides a remedy for. Tort law is a close connector
to social changes and morality.
Compensation – place back into pre-harm situation.
Deterrence – encourage others not to commit the same tort.
Corrective Justice – immorality, punish for it.
Economic Efficiency – society reallocating its resources in the most efficient way.
Punishment - Punitive Damages (not one of the 4 major purposes).
You should try to persuade a judge that all of the four major purposes are applicable.
BASIC INTENTIONAL TORTS
A. The Concept of Intent:
Two varieties of intent: (you must show one or the other)
1. Purpose – depends upon the defendants subjective wishes. Defendant acts with a purpose or desires the
2. Knowledge – If the defendant knows with substantial certainty that the act in question will cause the
Motive is pretty much irrelevant. Intention is what counts. (although motive can be relevant as a consideration
for intention – it lends us insight into your intention.) Motive is not dispositive.
Evaluate actions within a context.
Intent and Mistake:
Unfairness to defendant v. unfairness to victims. Its more fair to make the person who made the mistake pay, in
the context of harm caused due to a mistake.
Insanity / Children
1. An insane person must be capable of entertaining intent
2. They must in fact entertain the intent.
They are the same in regard to how you argue them. They are both still responsible for intentional torts.
1. You can argue that the D is not capable of having intention (i.e. totally nuts). Or in case of children, that
they are too young to know anything.
2. They might have been acting under delusions, so therefore never entertained a harmful intent.
Ex.- If an insane person throws a “dissolving” knife, they do not intend contact.
Two types of transfer:
Intent of person: i.e. mean to punch a, but end up punching b. (“intent follows the bullet”)
Intent of intentional tort: i.e. assault turns to battery. (when you mean to do one intentional tort, and end up
doing another. Still liable for the new, unexpected tort.)
Only involves the traditional 5 torts related to trespass:
3. False Imprisonment
4. Trespass to land
5. Trespass to chattels.
Thinskull Rule – you’re responsible for all the harm that follows from an act, even that which is unforeseeable.
I. INTENTIONAL TORTS AGAINST THE PERSON
1. Intention to bring about a harmful or offensive contact w the person of the other or a third person, or an
imminent apprehension of such a contact,
2. a harmful or offensive contact with the person of the other directly or indirectly results.
Not necessary to have intent to harm.
Unlawfulness is determined by the circumstances in which the act takes place.
Exceptions – if contact is consented to, or otherwise privelaged.
The person = body +, reasonable test. (universally regarded as part of the person…clothing, a cane).
How do we determine what is offensive? The Reasonable test. Objective.
The intent is transferable.
1. intent to commit battery, or to cause imminent apprehension of harmful or offensive contact, with the
person of the other or a third person (i.e. transferred intent of person)
2. such imminent apprehension occurs.
Element 1 refers to intention of defendant (subjective), Element 2 refers to state of mind of plaintiff resulting
from the act (objective).
Rule of thumb – words coupled with action = assault. Action alone equals assault. Words alone = not assault,
unless cases involving gun or imminent harm infliction.
Apprehension – you don’t have to be scared.
Conditional threats are not an assault. (ex. “I would hit you if weren’t an old man”)…or (“if you don’t
get out of here I’ll throw you out”).
However, the imposition of a condition that the assailant has no right to impose will not defeat an
assault, even though the plaintiff can avoid being struck by complying with the unlawful demand.
Traditionally words alone are NOT sufficient for assault, you need a gesture or motion.
INTENTIONAL INFLICTION OF SEVERE EMOTIONAL DISTRESS
(tort of outrage)
4 elements required:
a) conduct must be intentional or reckless. (subjective) (there is a presence requirement)
b) conduct must be extreme and outrageous. (exceeds all bounds of decency). (objective).
c) Conduct must be such that a reasonable person would suffer severe mental distress, unusually sensitive
persons may not recover, unless defendant has been put on notice regarding plaintiff’s unusual sensitivity.
d) must be a causal connection between the wrongful conduct and the emotional distress.
e) resulting, emotional distress must be severe.
Reckless – not required to prove as far as substantial certainty. Here only knowledge that a high probability that
emotional distress would occur is necessary.
Special sensitivity – if the defendant is aware of the plaintiff’s special sensitivity to his action before acting,
then the act becomes far more outrageous then otherwise would have. If the defendant is not aware then it’s not
taken into account.
Four Avenues of Recovery:
1. as part of a tort involving a physical injury. (you beat me up and now I have nightmares)
2. As one element of a traditional non-physical injury tort. ( Libel or slander)
3. An independent action for intentional infliction of emotional distress.
4. In independent action for negligent infliction of emotional distress (see limited duty).
A dignitary tort.
1) Unconsented, and
2) Intentional, and
3) confinement within fixed boundaries, and
4) as a result of defendants unlawful use of force, threat of force, or assertion of legal authority, and
5) plaintiff must be aware of the confinement, or must suffer harm as a result of it.
Ex. – dropping somebody off in the desert is a false imprisonment.
Reasonable means of escape precludes liability for false imprisonment.
Reasonable means of escape – an avenue of escape that poses a risk of substantial harm to the person of the
plaintiff or others, or which would otherwise offend a reasonable sense of dignity or personal dignity is not
(ex. If you steal somebody’s clothes.)
Modes of confinement:
1. imposition of physical barriers. (ex.- locking a door, taking the plaintiff’s crutches, or removing a
2. use of force (ex. Grabbing the plaintiff’s person or garments)
3. Threatening the immediate application of force to the plaintiff’s person, members of the plaintiff’s
family, or to the plaintiff’s property.
4. Assertion of legal authority.
5. Omission where defendant had a legal duty to act (defendant refuses to put plaintiff ashore).
II. INTENTIONAL TORTS AGAINST PROPERTY
TRESSPASS TO LAND
Intentional and unlawful entry onto, under or above the land of another without their consent.
Tresspass to land:
1. Intentional and volitional entrance upon another’s land
2. Causing another person or object to enter upon the land
3. Remaining after license has been revoked
4. Failure to remove, by refusal or neglect, an object which defendant was under a duty to remove.
Other considerations relating to trespass to land:
1. Does not require an intent to cause harm
2. Damages are implied.
3. Trespass by means of particulate matter requires actual and substantial damages.
4. Immediate airspace is almost as inviolable as the land itself. However navigable airspace, including that
used for take off and landing, is excluded by federal statute.
5. Nuisance:interference with possessory interest.
Intent necessary is just to be there, not necessarily to be trespassing.
One who enters with permission of the possessor but then fails to leave once the consent has expired is
Indirect invasion is trespass (ex. A pushes B onto C’s property, A commits trespass, ex. Throwing anything
onto somebody’s property, etc.)
Suits for trespass are for nominal damages (as well as actual damages); usually to protect oneself from adverse
TRESPASS TO CHATTEL
Intentional use or intermeddling with the property of another.
One who commits a trespass to chattel is subject to liability to the possessor of the chattel if, but only if
a) he dispossesses the other of the chattel, or
b) the chattel is impaired as to its condition, quality, or value, or
c) the possessor is deprived of the use of the chattel for a substantial time, or
d) bodily harm is caused to the possessor or harm is caused to some person or thing in which the possessor
has a legally protected interest.
Where the intermeddling doesn’t result in substantial deprivation of possessory rights in the property, the tort is
not conversion but trespass to chattel.
Measure of damages is the actual decrease of value cause by the interference. (???)
A plaintiff may recover at least nominal damages for the loss of possession even though it is for a brief duration
and he is not deprived of the use of the chattel for a substantial length of time.
A trivial removal of chattel from one position to another with no intention to exercise further control over it or
deprive the possessor of its use is not a dispossession.
An intentional exercise of dominion or control over a chattel which so seriously interferes with the right of
another to control it that the actor may justly be required to pay the other the full value of the chattel.
2. exercise of dominion or control
3. seriously interferes with the right of another
4. Requiring the defendant to pay full market value would be just.
(doesn’t require the defendant to pay full value, rather it would be just to require them to pay full value).
In determining the seriousness of the interference and the justice of requiring the actor to pay the full value, the
following factors are important:
a) the extent and duration of the actor’s exercise of dominion or control;
b) the actor’s intent to assert a right in fact inconsistent with the other’s right of control;
c) the actor’s good faith
d) the extent and duration of the resulting interference with the other’s right of control;
e) the harm done to the chattel
f) the inconvenience and expense caused to the other.
elements are complex and must be weighed, not as clear cut as the other torts.
When you are creating an argument based upon conversion, you must focus on the JUSTNESS.
JUSTNESS is not empirical – it’s not based on facts. You must persuade.
Bona Fide purchaser – a person who obtains property through theft or fraud is liable for conversion. If the
original owner is defrauded, he will lose a conversion suit against the end owner (the bona fide purchaser).
DEFENSES - PRIVILEGES (where you were allowed to do it)
Consent is the burden of defendant. Its up to the defendant to plead consent.
Affirmative defense – even though the prima facie elements of the tort are shown, defendant claims she is
not liable anyway because of the affirmative defense -additional facts that allow her to avoid liability. (ex.
Some affirmative defenses have nothing to do with the underlying incident itself (ex. Statute of limitations
has expired, etc.)
Prima Facie Case – a showing sufficient to allow a jury to conclude that a tort has been committed, by
providing evidence on the elements of the tort.
1. ACTUAL CONSENT (consent in fact, express)
You have to consent to the Particular, actual, and specific activity.
-mistaken consent, can be valid if a defendant did not know of mistake.
-Incapacity of consenter (drunk, insane, child)
-Induced by fraud
-Mistaken consent, if a defendant knew of the mistake (I thought you borrow car to go to store but you went
-Consent to an Act which is criminal
-The majority rule(view) is that consent of illegal act is not valid.
-Minority rule(view) is that consent of illegal act is valid.
-induced by extreme duress
Consent in duress : not effective, such as use or threat of force against one’s person or property, or against
the person or property of family members.
Consent Given Because of Mistake – consent intentionally procured from fraud. Defendant must know that
the plaintiff has labored under a misconception.
When an assumption is made by plaintiff, which is not based on full information, consent is invalid.
2. APPARENT CONSENT (implied based on circumstances, actions etc.)
-To determine use reasonable test.
-inaction can sometimes be consent.
found whenever the plaintiff’s conduct reasonably leads another to believe that the plaintiff has consented,
even though the plaintiff did not consent in fact. Must be considered in connection to the surrounding
circumstances. If plaintiff’s behavior is such to indicate consent, he was justified in his act, whatever the
plaintiff’s unexpressed feeling may have been.
3. IMPLIED CONSENT (implied by law, legal fiction)
a legal fiction that the courts indulge in, in the absence of consent to justify desirable conduct which would
otherwise be tortuous.
Ex. – medical emergency.
Affirmative defense, defendant has burden of proof of the exercise of reasonable force. There must be a
reasonable imminent apprehension of bodily harm or threat of confinement in order to use self defense. The
danger can be caused either intentionally or negligently.
- The belief upon which one bases the need for self-defense must satisfy the reasonable person standard.
o Reasonable force: The minimum amount of force necessary to protect against a harm with which
a person is faced.
o Deadly force: Can only be used when one is threatened with imminent death or serious bodily
- Retreat: The majority rule is that there is no obligation to retreat from danger before using non-deadly
force, however duty to retreat may arise if situation calls for deadly force.
- Third Party Injuries: When one accidentally injures a third party while justifiably using force in self-
defense, there is no liablility if one did not act recklessly, negligently, or intentionally.
- Reasonable mistakes of self defense are protected, because you should have ultimate ability to protect
- The law does not allow a victim to get even, but merely sanctions reasonable efforts to avoid infliction
- (See notes on deadly force/ appropriate force in the Defense of property section below).
C.Defense of Others:
The majority view is that one acting upon a REASONABLE belief in the protection of another may use
the same amount of force that person being defended would be entitled to use.
D.Defense of Property:
-Generally, one may use reasonable force to protect one’s property after making a verbal demand that the
invasion of the property be stopped.
(Gandar: you wanted me to note the above statement*********)
The minimum amount of force that would be necessary to protect the property. Only reasonable force
can be used in the defense of property.
-Force may not be used to recapture property that has been permanently dispossessed.
-Deadly force (death or serious bodily harm) may only be used to defend property under the
*When its use is necessary to prevent the burglary of a dwelling (only when your present, see
booby trap); or
*When there is a threat to the safety of the defender (i.e. when your faced with deadly force you
can use deadly force).
A verbal demand is not required if harm or violence will occur immediately, or if
Verbal requests will be useless.
3) Mistake: A mistake may affect the validity of a use of force in defense of property. If an owner
mistakenly but reasonably believes the use of force is necessary, the use is privledged. If an owner
mistakenly believes that an intruder is a trespasser, but the intruder really has a privilege to trespass, the
use of force is not privledged.
The use of booby traps is privledged only up to the amount of force an owner would be allowed to use
had the owner been present.
Exception: Owners are never allowed to use a booby trap that causes death, even if they would
have been allowed to use deadly force had they been present. The law prizes life over property.
E.RECOVERY OF PROPERTY.
-Property must be taken unlawfully
-Must use reasonable non-deadly force in regaining property.
-Must be “fresh/hot pursuit”
-Your liable for any mistake in recapturing chattel, unless that mistake is knowingly induced by the Plaintiff.
-If the dispossessor resists the recapture efforts by using force against the person trying to get stuff back, the
privledge of the person trying to get his stuff back become self defense.
-Force, any force used must be reasonable.
-Reasonable mistake, Force many only be used against the person who actually has the chattel. No privledge
allowed for making a “reasonable mistake”
-Unlawful Possession: The Chattel must have been unlawfully taken.
-In Hot Pursuit, ****(When does hot pursuit end????) An owner must be hot pursuit of the taker. An owner
cannot recover chattel by force after substantial time has elapsed.
-Timely Oral Demand, must be a timely oral demand to return the chattel before one may resort to force, unless
such a demand would be futile or dangerous.
F.AUTHORITY OF LAW
G.DETENTION FOR INVESTIGATION:
a. There must be reason to believe they took something
b. You can detain them for the time necessary for a reasonable investigation
- Traditional merchant’s privilege- is within the premises but immediate vicinity is good enough.
- Outside of immediate vicinity it becomes recapture of chattel.
- Merchant can make a mistake unlike recapture of chattel where there person attempting to recover
property is liable for their mistake unless the mistake was induced.
A. PUBLIC NECESSITY:
a. There has to be an apparent necessity;
b. Extreme, imperative, overwhelming;
c. Must be a “must be done” type act, not just beneficial to the public.
- If its for the public benefit the public pays.
B. PRIVATE NECESSITY:
If a danger affects only a person’s personal interests, the harm to another’s property interest is weighed
against the severity and likelihood of the danger to determine whether the person has a privilege. Even with
a privilege, the person still has to pay the other for the damages caused.
I. UNLAWFUL CONDUCT:
- You cannot engage in unlawful conduct and recover.
- For means of deterrence, you should not profit from your own wrongs as a matter of public policy
- When plaintiff’s injury is a direct result of his knowing and intentional participation in a criminal act he
cannot seek compensation for the loss, if the criminal act is judged to be so serious an offense as to
warrant denial of recovery.
- NY did abolish total bans in favor of reductions based on culpable conduct.
- Example: the pipe bomb case.
Umbrella defense when other privileges may not apply.
- A general defense when your clients conduct is unreasonable but still seems reasonable based on the
circumstances. You use this defense when no others seem to fit.
- A privilege that is recognized as the need arises.
- Example: the school bus driver.
- Discipline of children.
- Based upon the reasonableness of the actions determined from a consideration of all the circumstances.
Defenses part 2: (Asserted by Defendant, Based on Plaintiff’s conduct)
Contributory Negligence – Old common law doctrine that held a plaintiff who is negligent and proximately
contributed to his injuries is TOTALLY barred from recover.
This defenses cannot be used against the plaintiff, when the Defendant acted Intentionally, Willful,
Wanton or recklessly.
Generally, A plaintiff will not be barred from recovery by the negligent act or omission of a 3rd person
(example – guest in vehicle of a contributorily negligent carrier or host).
Comparative Negligence – Rejected contributory negligence’s all or nothing approach. Attempts to apportion
the damages between the Plaintiff and Defendant according to their relative degree of fault. Three different
interpretations of this concept.
“Plaintiff Breached duty to himself”
Pure – (NY way) Plaintiff’s damages reduced by the amount of cont. negligence. Straight calculation.
Modified –Not as great as – Same as Pure except if the Plaintiff’s negligence is found the SAME or
More then Defendant’s then no recovery at all. So 50-50 means no recovery.
Modified – Not greater then – IF the Plaintiff’s negligence is found MORE then Defendant’s then no
recovery at all.
== Note if the case involves 1-P and 2-D, You need to ask if the jurisdiction combines – (i.e. is it P vs. D-1
OR P vs. D-1 plus D-2, If P=50 d1=25 d2=25 under combination and modified no 50-50 – no recovery.
Assumption of Risk – (complete bar to recovery if found) – Matter of knowledge of the danger and intelligent
acquiescence in it. Pinning Assumpt of risk on P is better for D since its total barr unlike C. Negl.
1) Express Assumption of Risk (If found no recovery)
Expressly made in writing. If this is found you argue on the:
i. Bargaining power between the parties
ii. Whether its against public Policy (example no waiver for employees)
iii. Must not cover extreme forms of negligence, that are willful wanton or reckless
iv. How well the terms are disclosed
2) Implied Assumption of Risk (If found no recovery)
i. Plaintiff knows of the risk AND
ii. Plaintiff’s conduct is such that it shows a Voluntary willingness to assume the risk.
3) Secondary Implied Assumption of Risk (recovery possible – same as comp. negl, only not negl issue)
Elements the same as implied assumption of risk, some jurisdictions may even call it the same
thing, but the recovery is treated as comparative negl recovery. Just think of this as anything not
covered under the first Two above. ????
== So for 2 & 3 argue if it was:
Knowledge – Did the Plaintiff really know of the risk.
Risk – What did the party assume, what was the risk – example: guy argued only ass. Risk of
games rules, not the violation of those rules.
Voluntary – (if you assert a right it doesn’t mean you voluntarily assume risk)
NY treats implied ass. Of risk the same as comparative negligence??
Immunities - Special relationships that prevented a plaintiff from bring suit against a defendant due to special
Inter-Spousal - abolished
Parental – abolished, except for rare instances- example child can’t sue parents for ordinary upbringing
Sovern – Government.
Two types of Damages Compensatory and Punitive
Key parts of damages consist of the following three types with forth being special case.
Pain and Suffering
Hedonic Damages (loss of enjoyment) – (won’t be able to get married, enjoy hobby etc.) (P must be
conscious to collect for this damage) (a component of pain & suffering)
A) Damages use the following to calculate damages, remember to differentiate between economin and non-
Future Physical and Mental Pain (ne)
Future Medical Expenses (econ)
Loss of Earning Capacity (econ)
Permanent Disability and Disfigurement (scars, appearance, impairment of speech etc.) (ne)
Past Physical and Mental Pain (ne)
Living with the Injury (????? Is this same as perm disable & Disfigure?) (ne)
Past Medical Expenses (econ)
Limitations Caused by the Injuries (((same as perm. Disability??)
B) Judicial Control of Recovery use the following:
Remittitur: Judge gives P choice between taking an amount smaller than jury award OR new trial on the
issue of damages. More frequently used then additor since there is a better reason, namely that the
excessive jury award was due to predjudice/ passion.
Additor: Judge gives D choice between paying an amount larger than jury award or new trial on the
issue of damages, use of this is rare compared to Remittur.
C) Concepts to Understand when dealing with Damages:
Collateral Source Rule: (In our system you should only get 100% recovery unless this rule is applied) If
an injured party receives some compensation for his injuries from a source wholly independent of the
tortfeasor (Pension, insurance, diability payments) such payment should not be deducted from the
damages which the P would otherwise collect from the tortsfeasor and Jury should not be told of the
Per Diem Argument: To calculate damages for physical and mental pain and suffering, a majority of
jurisdictions permit lawyers to make per diem arguments. Allows P to reduce the damage calculation to
small units (minutes, days, etc.) set a value for the unit and then multiply the unit by life of person or
frequency of occurrence. This is good for P cause often end up as large award amount.
Mitigation of Damages: If damages are worsened because P failed to act or get treatment. Use the
reasonable person under the circumstances standard to determine if the damages would be lessened
had the P taken action. If the damages would have been reduced by taking action, then damages
are reduced by a corresponding amount. Factors to consider if action to mitigate was required.
o Relative success of the treatment.
= The SEATBELT defense used by Defendants (that victim plaintiff never used seat belt) should
be treated like the mitigation of damages doctrine. Ask whether reasonable under circumstances to
wear a seatbelt if so reduce award amount by % that seatbelt use would have prevented damage.
Pre-Judgement Interest: Interest that would accrue on a jury award from the time of incident till the time
judgment is decided. Traditionally it was not factored into award, however due to era of high interest
rates some jurisdictions use it.
D) Damages for Loss of Earning Capacity (not just past wage earnings of victim, also factor future wage
growth due to factors like education)
Calculating an award of this kind presents several problems:
Discounting future earnings to Present Value: Present value of a jury award is the dollar amount
today, that will grow into the awarded amount (via interest rate) by the date it’s intended for.
Other difficulties include:
-growth rate of future income, whether inflation should be included in growth in addition to real
growth (due to increase in productivity) in income.
Taxation of Awards: an award of compensatory damages in a case involving physical personal
injuries is not taxable to the recipient. (However Punitive awards are considered income and some
compensatory damages when they are non-physical (examples are harm to reputation and emotional
distress) are also considered income and subject to tax. The future wages calculation also needs to
consider taxes. ???????)
Punitive damages are designed to Punish & Deter.
In order to establish Punitive Damages, establish MALICE which is:
-conscious (knowledge) and
-callous disregard for public safety.
Malice is also defined as Willful, Wanton, and Reckless behavior.
A) Factors to consider in determining if Punitive Damages should be assessed:
-existence and magnitude of the product danger to the public.
-cost/feasibility of reducing the danger.
-manufacturer’s failure to act appropriately
-The fact that Punitive damages have already been brought or will be brought in similar cases arising
from the act of Defendant. (Punish multiple times for same offense?)
-extent to which the manufacturer purposefully created the danger.
-amount of time which has passed since the actions sought to be deterred.
B) Insurance companies must pay punitive damages if they have contracted to pay those damages (Price V.
Hartford Accident) (Insurance co. asked who is punitive punishing?).
C) Determining a Fair Amount of Punitive Damages, Factors to Consider:
Wealth of Defendant: Larger amounts needed to adequately deter rich defendant
Degree of Reprehensability (remember BMW the award was too big cause wrong was just economic
didn’t threaten safety etc.).
Amount of Compensatory Damages, already awarded in the case.
Amount which would serve as a deterent.
Ratio of Compensatory Damages compared to Punitive Damages
E) Wildcard Factor of Punitive Damages:
In order to deter companies from performing cost benefit analysis it is preferable to have Punitive damages
intangible so their calculations fail. Example, say company estimates five cases with 100 dollars in damages
each, you need to make punitive so that total damages are greater then 500. It must always beat out companies
estimates in order to be effective. That’s why professor feels punitive award caps are bullshit. Cause it creates a
tangible figure which companies can use to calculate cost-benefit.
Claim brought by the survivors of the deceased victim. The damages are for the loss of the victims support.
This is a claim for recovery of damages. You must first establish another cause of action either one of the
Intentional torts or Negligence. Then recover based on this Wrongful Death claim.
-only distributes can collect damages under a wrongful death claim. Distributees are not necessarily
the same people as those listed on the deceased’s will. Distributees should be considered people who
would receive inheritance had the victim left no will (i.e. kin folk or others authorized by law).
-Pecuniary injuries: Injuries measurable by money, does not include grief, loss of consortium,
affection etc. Check to see if jurisdiction in question recognizes more the j then just pecuniary
damages in calculating wrongful death damages, NY does not. If only recognize pecuniary, it
creates the problem of killing the victim cheaper then merely injuring the victim – children
have negative pecuniary value. And killing some cheaper then others (janitors v. doctors). You
can get around the kid problem by arguing that kids are an investment and project their future
earnings and thus support.
-In cases where the victim was a homemaker, calculate pecuniary damages based on what it costs to
buy the services.
What a Plaintiff can (depending on Jurisidiction) recover for in Wrongful Death:
Loss of Support (Pecuniary)
Value of Services (Pecuniary some may be found non-pecuniary)
Damages for funeral expenses (Pecuniary)
Statute which prevents a lawsuit from coming to an end when one of the parties dies.
-The death to the original P does NOT have to be due to the tortfeasors actions.
-Just like wrongful death in that this claim is only a shell, you still need to have an underlying tort. This
claim just allows the decededant’s estate to continue his old lawsuit.
-Here the estate can bring this claim, the estate consists of parties on the will. damages will be
distributed in accordance to the provisions on the will. ((what if no will does it just restricted to
What a Plaintiff can recover for under Survival Statue, recovery is limited to Pre-death harm:
Pain and Suffering caused by tortsfeasor before death.
Medical bills before death due to tortsfeasors action.
Loss of Income before death due to injury.
The omission of something which a reasonable man, guided upon those considerations which ordinarily
regulate the conduct of human affairs, would do or doing something which a prudent and reasonable man would
= Motive does not matter. Negligence is always based on the objective standard of the ordinary reasonable
man’s level of prudence.
Negligence is not directly concerned with the D’s state of mind. It is concerned with the character of the D’s
conduct. The D’s state of mind matters only because conduct is judged in the light of what the D knew, or
reasonably should have known.
=== Conduct which poses an unreasonable risk of harm to others is Negligent (not the tort of
Tort of Negligence
Cause-in-fact Proximate Cause
DUTY & BREACH
Duty & Breach are separate considerations which together refer to a negligent act (not the same as negligence
cause of action don’t get confused). Defendant wins in a toss up on this issue, the burden of proof is on the
Duty: To establish duty, need to show a relationship of due care of the Defendant to the Plaintiff.
o Cardozo View: Defendant has a duty to recover only if the Plaintiff can establish that a
reasonable person would have foreseen a risk of injury to him under the circumstances (zone of
danger). Most courts follow Cardozo’s view.
= A duty of care is owed only to foreseeable plaintiffs.
o Andrews View: Defendant has a duty of care to anyone who suffers injuries as a proximate
result of his breach of duty to someone (not necessarily the injured person). Both views are
correct. Andrews feels however that we must draw a line, this becomes the proximate cause
A) Reasonable Person Standard:
Must be applied to the actions of the Defendant. Would a reasonable person of ordinary prudence in the
position of the defendant have conducted himself as the defendant did under the same CIRCUMSTANCES.
Hand rule is a useful guide to determining reasonableness.
(It is unreasonable if a defendant behaves in the manner outlined by this formula).
[If Burden < (Probablitiy * Loss)] = Negligence (negligent act)
Burden: can mean cost of safety measure
Probability: The chance of negative act occurring
Loss: The value or danger of the negative act.
For Jury instruction ordinarily cts. Don’t instruct exact formula, simply tell jury to ask if the defendant used degree of care an
ordinary person under the cirmumstances would have used.
Custom: Ordinary and customary actions are not necessarily reasonable and prudent actions:
Custom is often used as evidence in establishing reasonableness standard.
Offensive use of Custom: P argues D did not follow custom and therefore acted Unreasonably.
Defensive use of Custom: D argues he did follow custom and therefore acted reasonably.
Circumstances: The following outlines the circumstance and their effect on duty/ reasonable standard.
o Emergency: Defendant is still held to a reasonable standard of care, however in this context -
accuracy is more liberal since you have less time (or other stress) to contemplate action.
Emergency does not justify stupid acts but it does allow you to attempt acts normally considered
too risky. Like performing CPR when you’ve never done it.
o Handicaps: What a reasonable person with the given physical disability would do under similar
circumstances. Expert testimony can be brought in to establish what a reasonable disabled
person would do.
o Religion: While you might be tempted to apply the “eggshell skull rule” it is generally not
recognized by courts, courts say society should not pay (and thereby not endorse) religion. So a
person’s religious beliefs don’t impact reasonable standard.
o Children: Standard used to measure actions of kid is tailored to the particular defendant kid in
question. Use following to determine what defendant kid should have reasonably known and
-age -intelligence -experience -maturity -training
-exception is where a child engaged in an adult activity (driving), activities so inherently
dangerous that minors should be held to adult standard of care. So when dealing with child ask
o Insanity: Generally no allowances for mental deficiency even in extreme cases, held to the same
standards as a regular person. Defense may argue insanity is similar to physical attack if their
was no prior history of insanity but most likely will lose. (it may however factor into
contributory negligence i.e. where plaintiff was insane and was harmed by plaintiff)
o Professionals: The standard is that of a reasonable professional within the same field. The
standard is NOT the average professional (otherwise half of people would be irresponsible.)
Malpractice = negligence.
The following analysis used in Malpractice:
-Standard of knowledge and care is never presumed it should be asserted by expert
testimony and evidence, unless it’s obvious (like sponge left in patient).
- Must have degree of skill possessed by members of the medical profession in the
performing the act in question, and apply that knowledge with reasonable skill (i.e.
foot doctor shouldn’t be performing brain surgery).
-Before a professional can be held liable for malpractice, he must have done
something in his treatment of his client which the recognized standard forbids.
-Suit cannot be based simply on negative result for plaintiff.
-Suit cannot be based simply because another professional would do something
different, standard is based on industry practice and whether act was reasonable.
-Also remember the x-ray case, where doctor negligent in not taking x-ray but no
damages could be shown because P went to get 2nd doctor who did take x-ray.
Locality Rule: A doctrine that says the standard of care is determined by the immediate
locality in which the professional practices. Today in most jurisdictions this standard
Informed Consent: The doctrine that a physician has the duty to inform a patient of all
aspects of the proposed treatment/condition so that they can give informed consent.
Underlying principle is to protect an individuals right to self determination. Two types of
-Physician Standard – imposes a duty to disclose information based on what a
reasonable doctor would feel was an adequate amount of information to give.
-Patient Standard – Imposes a duty to disclose all information that a reasonable
patient would want to know. (i.e. information that affects the decision made)
In order to make a malpractice claim based on informed consent (i.e. plaintiff says
he failed to give consent) establish the following:
1) The doctor failed to disclose sufficient information (based on physician or patient
standard, whatever the jurisdiction requires)
2 & 3) A causal link between this failure to disclose and the patients decision and the
patients harm (risk materialized is step 3). You do this by either applying objective or
subjective tests. Both have their problems, objective test takes away the Patient’s right to
self determination cause your comparing him to everyone else. The Subjective test is
unfair to the doctor cause how is he supposed to know what will affect the patients
decision, either way you apply one to establish causation, as a plaintiff if you can prove
objective test its probably more persuasive:
- objective test; A reasonable patient would have done something else if informed
- subjective test; This patient would have done something else if informed properly.
Rules of Law; and their effect on duty of care: Rules of law can determine a standard of conduct. These
standards arise from:
-Legislative enactment (statutes)
-A courts interpretation of a legislative enactment.
-A judicial decision (glaucoma case where industry practice was not to test but judge made new rule).
Violation of Statutes:
Statutes governing certain acts become measure of standard of care in tort trials. STATUTORY
violations goes only to establishing duty and breach.
Requirements for using statutory violations to establish there has been duty and breach:
1) The plaintiff is within the class of person’s that are protected under the statute.
2) Harm done is the type of harm intended to be prevented under the statute. (example: the minor girl
ice skating past the curfew statute defendant said made the plaintiff negligent when she got hurt, but
the court held that the statute was designed to keep children home on school nights not to prevent
their injury so her violation of statute was irrelevant, and ice rink still responsible for her safety.)
-note chiropractic case where violation of licensing statute was not found to be negligence per se.
-violation of parking in front of no-standing spot doesn’t mean I’m necessarily negligent per se if a
sleepy driver swerves into my parked car and I’m hurt.
Other defenses to violation of statute besides attacking one and two above include:
-Excused violation of statute, which would not be negligence. (example: kid runs across street violating
pedestrian statute and gets hit by car, court finds he is excused of statute violation).
-I acted reasonable even though I violated statute (example woman walking on side of highway it was
the only way to work and everyone did it and it wasn’t really dangerous)
Statutorily strict liability: is a type of statute designed to assign liability directly on the violator of the
statute. It essentially finds the statute violator guilty of the entire tort cause of action if they violated the
Procedural Effect of Unexcused Violation of Statute:
- Negligence Per Se: The defendant is negligent (duty & breach established) move on to
other elements of negligence cause of action. Strictest application, plaintiff loves this.
- Rebuttable Presumption: (Prima Facia Negligence) The defendant is presumed negligent,
defendant must prove otherwise or lose on duty & breach. Burden of proof shifted to
- Evidence of negligence: The violation of the statute is treated merely as evidence for the
jury to consider. The Defendant has the option to rebut but if he does not he can still win
on duty & breach. Defendant likes this one. Burden of proof therefore still on the
B) Proof Of Negligence (evidence):
It is not enough to merely allege that there was a duty that was breached, it needs to be proven to the
court and jury. Evidence must be presented for this purpose.
-customs count as evidence of what should be done, however the true test is a standard of reasonable
prudence, whether it is usually complied with or not.
1) Direct Evidence: The event is actually witnessed.
2) Circumstantial Evidence: Evidence that infers a fact – Example DNA evidence or Skid marks.
-Constructive notice is a type of circumstantial evidence, it says that whether or not a person is
aware of a hazard they should have reasonably known. Argue this if no evidence of actual notice
3) Res Ipsa Loquitor: Don’t let this fool you it is a fancy form of circumstantial evidence. It Means
that, “How else could this have happened (if not for negligence)”
-res ispa case goes is not restricted to duty and breach but may also go to other elements of
negligence cause of action. It is just a type of evidence to be weighed.
- The underlying theory of Res Ispa is that sometimes its not fair to let Plaintiff prove negligent act
cause the defendant has more information on who is responsible and how accident happened.
Res Ispa Requires Two Steps:
1. Must show that accident is of the type that does not normally occur without negligence.
2. That instrument or damaged good was under the control of defendant.
-Note that in the Ybarra case the court held that joint control was still good enough to
establish Res Ispa’s control element since all defendants had integrated relationship and
thus had a duty of overall care to patient.
Res Ispa can have two procedural effects:
1. “Smoke out the evidence” shifts the burden of proof to the defendant, the defendant can
then try to rebut the inference of negligence. Though in most cases it is not a shift of
burden most times it is….
2. The inference of negligence is evidence that the jury can either accept or reject.
Factual Causation: The first step in two part of causation component of tort claim of negligence
1) Asks whether in fact there was a connection between the allegedly tortious conduct and the plaintiff’s
injury. This is referred to as factual causation or cause-in-fact.
2) This step deal with fairness of imposing liability and simply restricts the expansion that is inherent in
Legal Test: Negligence is a cause in fact of the harm to another if it was a substantial factor in bringing about
“But For Test”
A substantial factor is one which – The incident would not have occurred “but for” the negligence of
-but-for-causation is never, in itself, the sole reason for holding a defendant liable – it is normally required
if the defendant is to be liable but never enough by itself to establish liability.
-This test is no good in cases of concurrent cause where you must use substantial factor test. See below.
Loss of Chance – Medical:
The difficult in situations where the patient is treated negligently and the disease not found promptly, however
the disease is terminal and survival chance was less then 50% – but for analysis therefore breaks down. To
argue these cases shift the harm to the loss of chances for survival (this is damages). Now under this new
damage do the 5 elements of negligence. Under our current system those that survive do not get to recover.
Those that do die recover by multiplying full compensation times the chance of survival. This sucks cause
either way it isn’t a fair outcome – but we must look at the whole.
Joint and Several Liability (see detailed discussion last page)
o Substantial Factor Test. If A&B stab C at the same time then under the but for analysis both will
but for each other out of liability. In cases where the negligent actions of each tortsfeasor alone
would have caused the entire injury by itself AKA Independent concurrent causation. Here the
test should be substantial factor – If the defendant’s negligence played a SUBSTANTIAL part
in causing the harm each is liable for the entire harm caused.
o A&B both shot gun negligently in C’s direction, one shot hit C, not sure which fired the shot
that caused the harm. Both are held liable. The burden is upon each actor to prove that he has
not caused the harm. The premise is that defendant’s have better idea of who caused the actual
The requirement here is that both defendant’s acted tortiously. Don’t get confused with a
case where a car is dented and your not sure which of three parking attendants did it,
because even if one did it, all three did not act tortiously.
This rule only applies to small group.:
o “If but for the act of both defendants accident would not have occurred” Those where the
multiple defendants acted together to cause the one harm (joint liability). Also there are cases
where individual acts of defendants result in single harm (several liability).
o In Joint liability each defendant is responsible for all harm, you can pick which defendant you
want to pay it to you or you can split it up. Several Liability responsible only for your share of
o Remember they tried to apply this to the first DEA drug case but it was not good since there was
no clear agreement to operate together. So remember to make clear an agreement to operate
Multiple Manufacturers (variety of alternative causes):
o Cases where multiple manufacturers are responsible for manufacturing commercially
interchangeable product and it becomes impossible to determine which manufacturer is
specifically responsible for the harm. Hard to assign cause. So you make cause the risk public
California cts – made the damage the risk that the companies subjected to the public and
by this thye joined subst. share of market (largest producers). made them pay their
combined market share times full recovery. A defendant could get out (exculpate) if it
could prove that they didn’t harm particular plaintiff.
NY cts – used a national market and didn’t allow defendants escape liability even if they
could prove they didn’t harm the plaintiff bringing suit. Calculates payment award by
making each defendant pay full recovery times market share. If some defendants not
subject to jurisdiction or out of business. then it doesn’t up the payment of other
defendant’s to make full recovery.
The issue here is really to shift the damage to risk the manufacturer subjected public to
and then to determine how market share (national v. regional; national better).
A policy consideration to limit liability. Foreseeability is just argument to be used depending on what side your
on. It is illusive.
Proximate cause limits the cause in fact, it cuts off liability at an arbitrary point.
Two tests have been competing in the courts – always look for both:
Forseeability Test (when analyzing this what is foreseeable is the risk not the result) (if the risk is
ignition how ignition results doesn’t matter).
Immediate, direct, natural, and ordinary result (Polemis)
Cardozo’s opinion in Palsgraf case, which outline the zone of danger doctrine which states, Defendant will be
liable for the results of negligent conduct only if the results were reasonably foreseeable – the specific plaintiff
is within the zone of reasonable forseeability. The following is a rough guide and some expansions/exceptions
to the doctrine.
Andrew’s opinin in the Palsgraf case, Draw a line let the jury decide, the duty that is owed is owed to society at
large. The following should be used by the jury in setting the line for proximate cause – Aka immediate, direct
Natural and Continuous
Result not too attenuated
Likely to produce the result
Result is not too remote in time and space
Use duty and proximate cause to limit or expand the liability depending on the side you are arguing. The
defendant wants a narrow definintion while the plaintiff wants a broad one. Learn the arguments
Another argument: Economic V. Physical – No recovery for purely economic harm (can IBM sue for WTC loss
of income? No) Kinsman case the downriver plaintiffs suffered only economic harm – No recovery. Upriver
plaintiffs were flooded – Physical harm recovery given.
Manner – One is liable for foreseeable harm that occurs in an unforeseeable manner.
Extent of Damage– One is liable for the unforeseeable extent of damages if they result from a
foreseeable risk. (Kinsman case, where the poorly moored dock went on to clog the entire river and
flooded area) (Not same as Polemis, cause here the similar harm was foreseeable just not extent).
Improbability – Injury which is only remotely likely is considered foreseeable for purposes of liability.
(eggshell skull rule – You take the plaintiff as you find him, even if a pre-existing condition brings about
an extraordinary result. Can’t argue it was unforeseen.)
Class – Even if injury to a particular plaintiff is not foreseeable, liability may be imposed if the plaintiff
is a member of a class which could foreseeably be injured (Kinsman case, the landowner of the flooded
area were deemed foreseeable class – its all how you argue it I guess).
-Prof says, “ In wrongful death action when defendant had terminal cancer. You can only get years taken away
from him. As opposed to healthy life estimate of losses.”
Force that comes into play after the negligence of the defendant and which participates along with defendant’s
negligence in causing injury to the plaintiff.
-A superceding cause is a special type of intervening cause which can relieve the defendant of liablility.
Superceding causes break the chain of proximate causation between defendant’s negligence and plaintiff’s
Where the acts of the intervening party is foreseeable or kind of Harm suffered by plaintiff is
foreseeable, then not superceding cause – Defendant still liable.
Superceding criminal act: these acts cleanse the negligent wrongdoer of liability. As a plaintiff you can
argue against this by saying the defendant should have reasonably forseen due to history of crime.
Rescue Doctrine: If a person dies in course of rescue the defendant is still liable for the death of rescuer
and any harm rescuer may cause as long as rescuer was not wanton. Fireman rule – Defendant not liable
to professional rescuers.
Suicide: where defendant causes harm and the defendant then commits suicide. The cts barr victim from
recovering unless the harm caused made the victim have an irresistible urge to suicide.
Acts of nature: Are in general superceding except where the harm is within the risk, (like if lighting
caused ignites oil causing fire this is not superceding cause if ignition of fire was the risk) Also not
superceding if act of nature was foreseeable.
Subsequent Accident: If your neg. caused P to go to hospital and he later gets hurt by neg. doctors your
liable for that too cause you subjected P to that harm.
Like intervening cause except that here we analyze acts of omission rather than actions. These omissions occur
after the initial tortsfeasors negligence, we analyze whether the omissions broke the chain of proximate
-This is exception to general rule, usually person have no duty to prevent harm (I see your about to get hit – I
don’t have to warn you): In these cases the failure to prevent the harm is a superceding cause which relieves the
original tortsfeasor of liability. Look to the following factors in making analysis:
Foreseeability of the omission
The relationship betweent the two negligent tortsfeasors – their assumed obligations.
The lapse of time
The magnitude of threatened harm – did one neg. party make things much worse?
(quick recap of duty: You try to affix duty by 1)Public Policy (exp. Undue burden) 2)Cardozo’s zone of danger
3) Special Relationship – either directly or affix D had special relationship with 3rd party injurer.
This section deals with tricky instances regarding assigning duty. Instances of limited duty of care, usually these
involve third parties that are negligent but assert that they have a no/limited duty and so question is if these
individuals should be found liable.
In general there is no duty to render assistance to another who is in peril if you have not created the risk.
Generally still the rule today.
Misfeasance – once you undertake to act, you must follow through and do so reasonably (see assumpt of duty).
Nonfeasance – There is no duty and you do not act.
Good Samaritan Statutes – Some state have these, designed to encourage emergency assistance by doctors,
generally limits their liability if they act in reasonably in good faith.
There are certain exceptions to the nonfeasance rule:
o Between D and P (Here the argument is that the D had a duty to protect the P)
Common Carrier and Passenger
Innkeeper and guest
Landlord and tenant
Hospital/Doctor and patient
o Between D and 3rd party(Here the 3rd party is wrongdoer, argument is D had a duty to control
the 3rd party.)
>>>Special Relationship: The defendant is required to use reasonable care to PROTECT or
CONTROL the person with which he has a special relationship.
Assumption of Duty
Volunteer Doctrine - If you start to help (act,volunteer, etc.) you must follow through without
negligence. You inflict a detrimental reliance upon the victim you don’t follow through. If doing
so left the victim in worse condition than when assistance began.
o I like to use this against government negligence. They provide cops, they better not be negl.
Nature of the Plaintiff (here even though your not acting towards the plaintiff your still liable).
o Unborn children:
Fetus can sue for damages for injuries sustained while in utero (cts. Split on whether to
recognize an action only when the fetus was viable, when is viable?)
Some courts require that the child must be born alive, only then can injury be claimed.
o Wrongful Life: Brought on behalf of child by parents, claiming that the actions of the P led to
the Plaintiff’s birth. Courts have generally rejected such suits on the theory that one cannot
argue that they would be better off not born. These suits usually arise in cases of birth defects
where which if properly diagnosed would have caused parents to abort. If P does recover its
usually only for economic damages (medical expenses).
o Wrongful Birth: Brought by parents, claim for physicians failure to warn of damaged baby.
They could not have made informed decision – if doc had would have aborted.
Peril Caused by Defendant
If the D puts the P in danger, the D has a duty to help.
Negligent Infliction of Emotional Distress:
(here the D will try to claim limited duty because of the nature of the harm.)
It is generally difficult to recover damages for mental suffering which is unaccompanied by physical injury.
The reluctance is that cts. Don’t want fraud.
1. Traditional Rule (Impact Rule): In order to recover for negligent infliction of emotional distress,
physical impact had to be shown.
2. New Majority Rule: Would a reasonable person suffer same emotional distress from this act? Eggshell
skull does not apply in this cause of action because we want to prevent fraud. In the absence of physical
impact, the majority of juris. Will only allow recovery for mental suffering if it has physical
manifestations (vomiting, miscarriage). Shock > Emotional distress > Physical harm. If you have to
prove a breach of duty for something else (duty to keep my arm from getting cut off, etc.) then attach
emotional distress claim. However you can recover for being a bystandard witness.
Bystandard Plaintiff claiming neg. infliction of emotional distress the elements are 1&2 arbitrary cutoffs of
liability, 3 is a genuineness test.:
1. Witness is nearby.
2. Shock comes from sensory & contemporaneous (happens at same time) observation of incident.
3. The victim must be part of the immediate family.
===Two exceptions where the above three do not have to be satisfied:
Misdirection of a death telegram/notice
Mishandling of a corpse // in these two the genuineness that a harm has been done is auto.
This has been used in cases where a person is vulnerable and Defendant allegedly exploited this, key here is
finding special trust relationship based on D role and D’s knowledge of P’s vulnerability.
Duty of Owners/Possessors of Land:
Outside The Premises:
The same issues of control and protection are dealt with in these situations.
o A landlord has a general duty to prevent an unreasonable risk of harm to persons off the land from
artificial conditions on their land (baseball flying out of park).
o A possessor of land generally has no duty to remove or guard against a natural condition upon the
land to people off the land.
o Fallen Trees (traditional)– It matter if you are in a rural or urban setting, obviously should inspect if
your in urban.
o Fallen Trees (modern view) – A reasonable test is used, do reasonable people inspect every tree? I
mean if it’s a storm an a healthy tree falls you shouldn’t be liable.
o HOWEVER, for artificial dangers possessor has a duty to protect EGRESS & INGRESS onto their
property, only responsible for artificial dangers you create.
On the Premises:
distinctions were made as to the victim/plaintiff’s status on the property and that defined the possesors duty
1. Trespassers: No right to be on land. Unless the trespasser was discovered or tressp. Presence should
have been known to possessor - NO DUTY
2. Licensees: Social Guests. Someone who enter the premises with the owners permission but for the
licensees own purposes. – Duty to warn Plaintiff of dangers that Defendant is aware of.
3. Invitees: Business purpose, open to public – Duty of reasonable care.
A person’s status is determined by the scope of their actions, So you argue that following to limit or get
your client into the strategically good status:
a. Area (was it in the back of the store)
b. Time (closing time?)
c. Purpose (did P have any reason to be there?)
Privledged Entrance: Firemen are considered licensees – so you should warn them of hidden dangers.
Public employees (mailmen): Are considered invitees.
The status of the Plaintiff is still relevant however you owe a duty of reasonable care to everyone. The
status is used to determine what was reasonable (i.e. if D acted reasonably): example: Someone breaks into
store at night and slips on mop that was left out negligently, Defendant should argue no breach of duty since
it was not reasonable that someone would come by at night after closing.
Lessor and Lessee:
General Rule – a landlord/lessor has no general duty to licensees and invitees, the landlord has given up his
rights to the land by virtue of the lease. (however in the pitbull case the P tried to say that the no pets clause in
lease still gave the lessor control over the lessees apt. and so should pay.) (Tamanaha says “I think the exception
about parts of the land that the lessor retains control of is most important).
Over time exceptions to the general rule:
Undisclosed dangerous condition known to the lessor and unknown to the lessee.
Conditions dangerous to people outside the premises (baseball case)
Premises leased for admission to the public.
Parts of the land is retained in the lessors control, which the lessee is entitled to use (common areas of
Negligence by lessor in making repairs, misfeasance. Like the undertaking/volunteer doctrine, “do it
>In general there is no duty on the part of landlord to protect tenants from criminal acts by 3rd parties, though
arguments can be made and have been won on crimes occurring in common areas of building where landlord
>Overall the test Modern View is that a lessor has a duty of reasonable care. What would reasonable lessor do?
Joint & Several Liability:
-does not apply to intentional torts.
Joint and Several Liability
Each of the joint tortfeasors is liable for the judgment against them as well as the judgment against all
tortfeasors. Occurs in four situations
1. Tortfeasors act in concert
2. Tortfeasors fail to perform a common duty owed to plaintiff
3. Tortfeasors act independently to cause an indivisible harm
4. Vicarious liability
Courts are divided over whether the adoption of comparative negligence eliminates joint and several
Where the tortfeasors act independently to cause a harm that is theoretically divisible, but it is nearly
impossible to apportion the harm/fault inflicted, hold the tortfeasors jointly and severally liable but put
burden on defendants for them to opt out (i.e. figure out extent of liability).
Even if Plaintiff didn’t bring claim against 3rd party, Defendant who paid more then equitable share can
claim for contribution from that 3rd party.
Contribution can only be paid up to your culpability, if other party is left holding the bag, too bad.
Contribution claims may be asserted in a separate action or by cross-claim, counter-claim or third-party
claim in pending action.
Solves the joint and several liability problem for defendants
-Economic damages- any defendant pays the full share (traditional way stands)
-Non-economic damages - if defendant is less than 50% culpable then it ONLY pays its share, if more than 50%
culpable can be held responsible for all.
-If there is a missing defendant then the damages get bumped up proportionately – meaning that the missing
defendants culpability is split among remaining defendants.
-So in seeking contribution remember to treat economic and non-economic separately.
-If plaintiff is contributory negligent then take his share out and bump total for defendants up to 100%???
-No defendant can be forced to pay more than its fair share of culpability in contribution to another defendant
-This is for Joint & Several situations but also for and more likely for severally liable situations.
-If you make a deal and get a release, the other defendants can’t come after you later for contribution.
-A release Does not discharge other defendants but claim will be reduced to the extent of the greater amount of
1. Amount stipulated by release of covenant i.e. Amount of consideration paid for it, deal struck.
2. Amount of released tortfeasor’s equitable share of the damages (damages x %of culpability found by jury).
Right of 3rd party who has paid damages to plaintiff to sue defendants to recover. Insurance company?