Where is the line between negligence and battery?
What are the implications of the decisions? What is the cost to the judicial system of having result oriented decisions? No special tort rule for insane people 5 Trespass Torts – Transferred Intent only applies to these 5 torts Battery Assault False Imprisonment Trespass to Land Trespass to Chattel 8/25/03 Battery 1) An act; 2) With an intent to cause a contact with a person (which ends up causing) which is harmful or offensive, or with the intent to cause the imminent apprehension of such contact; 3) Causing; 4) A harmful or offensive contact with the person INTENT – Desire or substantial certainty ACT – An assertion of will manifest in the external world. We will only consider an act offensive if a reasonable person would be offended. But if someone has an unusual sensitivity and the D knows of this sensitivity then we will consider the act offensive. For Causing contact – it can not be so indirectly a cause, for example if a lot of things happened in between. Factual Causation – one of the (many) causes Proximate Cause or Legal Cause – at some point we cut off the legal cause 8/27/03 Battery For Contact we also have rule which does not actually require actual physical contact. Assault 1) An [overt] act;
2) With the intent to cause a contact with the person which is harmful or offensive, or with the intent to cause the imminent apprehension of such contact; 3) Causing; 4) A reasonable, imminent apprehension of such contact Same prospect of reasonableness in terms of offensive behavior. The majority of courts say the imminent apprehension has to be reasonable. Restatement says reasonableness of apprehension is not important. 8/28/03 False Imprisonment 1) An act 2) With the intent to confine within boundaries 3) Causing 4) The confinement of P within boundaries 5) P’s awareness of the confinement [or P’s harm from such confinement – Restatement] The act element is defined loosely. Courts will most of the time allow the plaintiff a low threshold for proving intent. If it is a reasonable barrier to exit then they will go with it. Causing can be satisfied if there is not an apparent or known escape If plaintiff acts unreasonably in trying to escape and gets hurt, then can not recover damages. Confinement within boundaries 1) Physical barrier 2) Force or threat of force against a person 3) Force or threat of force against a property Confinement can also consist of a breech of duty to let the P leave. READ 51-63 9/3/03 Damages with battery, assault, and false imprisonment: Compensatory Damages (compensate the Plaintiff, make an injured plaintiff whole, put the plaintiff back in the place they were before the tort occurred) o General Damages Pain and Suffering Physical Pain or even Mental Pain o Special Damages Out of pocket loss Lost income Property Damage
Punitive Damages (punishing and deterring Defendant and society)
Intentional Infliction of Emotional Distress 1) An extreme and outrageous act; 2) Intentionally [or recklessly – restatement]; 3) Causing; 4) Severe emotional distress Newer tort, caught on in the 50’s. Lots of different types of conduct can lead you to think it fits in the category of Intentional Infliction of Emotional Distress. But. . .situations where the tort actually works is small or rare. It is pleaded a lot but proven rarely. READ 63-72 No Class This Monday Sept 8. Midterm Thurs Oct 9 9/4/03 If you can establish physical consequences of your emotional distress it will limit the law suits. But now the physical consequence part is not necessary in most states. It did not limit the law suits because people always have some physical consequence linked to everything. Intentional Infliction of Emotional Distress 1) An extreme and outrageous act; 2) Intentionally [or recklessly – restatement]; 3) Causing; 4) Severe emotional distress Why extreme or outrageous? Because we are a nation of free speech. The standard of extreme and outrageous must be so to a reasonable person. It there are special sensitivities that both parties are aware of then they will be taken into account. Be careful of causation factors Typically physical presence is required. Situations where IIED okay for acts directed at 3 rd person. Exceptions are: 1) Family member is present weather or not family member suffers physical harm. 2) Non family member is present and they suffer bodily harm. Transferred intent does not apply. Recklessness is sufficient under the restatement, California follows the restatement. Recklessness – a deliberate disregard of a high degree of probability that something will happen.
Causation – even if a normal person would be severely distressed it doesn’t matter unless the act caused the D to be severely distressed, this element is subjective. Severe emotional distress – This element is subjective and objective, did the D suffer severe emotional distress and is it reasonable. If defendant knows about hypersensitivity it will be taken into account. 9/10/03 Trespass to Land 1) An act; 2) With the intent to enter or remain upon land; 3) Causation; (cause in fact and proximate cause); 4) The entry or remaining on land in which P has a possessory interest by the D, a third person, or a thing. Act – is a loosey goosey concept, any volitional movement or failure to move after privilege to remain on property has expired. With Trespass to land courts tent to relax the proximate cause component. Actual significant damages are unimportant to trespass. A lot of trespass to land lawsuits are really boundary disputes. Compensatory damages – focus on the plaintiffs harm Special (out of pocket costs) General (pain and suffering) Punitive damages – to punish and deter Private nuisance – interference with an individual or group use or enjoyment of land Public nuisance – interference with the public’s use or enjoyment of land Majority says trespass to land has to be a tangible thing Molecular particles are considered a tangible thing in relation to trespass only when they accumulate Only trespass to land if the particles accumulate No need to show substantial damages in trespass action where particles accumulate. You own the property above your land that is within the immediate reaches Some take substantial interference approach in that only a trespass if it interferes with the use and enjoyment of the land. NY says you don’t own property all the way to the center of the earth Other places may still allow you to own till the center of the earth. Possession is not the same as ownership READ 72-83 (don’t read “effects of good faith)
Trespass to chattel is the little brother of conversion. Conversion is the forgotten tort. A dog is chattel. Trespass to chattel is a lot like conversion, always think of one when thinking of the other. Conversion is on a case by case basis when dealing with damage or interference, Fact sensitive. Damages are not required for a conversion Given that level of interference, you should have to have you buy it. Conversion 1. An act – very loose element, may be failure to return item 2. With intent (desire or certainty) to exercise dominion or control (includes damage) over a chattel 3. Causation 4. Interference 5. And the interference is so serious that the defendant may be justly required to pay the plaintiff the full value of the chattel Damages (Majority) – highest value between the time of conversion and a reasonable time for making a replacement Damages (Minority) – highest value between the time of conversion and the time of trial Loss of use damages allowed 9/15/03 Defenses 1) Substantive -- saying no to the plaintiffs allegation’s on the prima facie elements, Defendant is responding to an assertion made by the plaintiff, plaintiff has the burden of proof 2) Affirmative – you lose anyways because________, Defendant is making the assertion, Defendant has the burden of proof Consent If a reasonable person would infer consent then we have consent. 1) Express 2) Implied – would a reasonable person believe there is consent, or did the plaintiff subjectively consent, if yes to either of these question then there is implied consent, can also be determined through a course of conduct. Scope of consent MEDICAL EMERGENCY PRIVELEDGE – Medical care providers may act in the absence of express consent if p.94 note 3. Coerced consent is invalid consent.
Consent is a defense to all the intentional torts. There is a presumption of consent to religious activity if one joins the particular church. If consent is obtained under false pretenses or fraudulently then it is not valid. Person consenting must have capacity to consent (ie. Retarded, Children) 1) Age 2) Intelligence 3) Experiences The majority approach is that people who consent when engaged in illegal activity can still recover for battery (discourages fighting because consent doesn’t matter). The minority says the normal application of the consent rule applies. Self-Defense Any person may use reasonable force to defend herself against an immediate threatened battery on the part of another. Retaliation is not valid self-defense. Majority (western and southern states) says you don’t have to retreat if it is possible. Minority (eastern states) says you must use reasonable avenue of escape if available. If there is a mistaken threat that is reasonable then self-defense is still allowed. Insults do not create a situation where self-defense is justified. Intent will transfer so if Dennis is intending to defend himself against Paul but by mistake injures Larry then Dennis can use the self-defense angle against Paul or Larry and get off. You can not take Larry and use him as a human shield. Defense of Others One may use force to defend others to the same extent that one may use force to defend oneself. What about a mistake – Slight Majority takes the “stand in the shoes” approach. A third party in defense of another can only use self-defense if the person he/she is defending can use the defense. Slight Minority and modern trend says a person can use reasonable force and make a reasonable mistake. Defense of Property Force is ok to defend property as long as is reasonable, one may never use deadly force or force intended to create serious bodily injury. If you are home when someone is breaking in then you can use deadly force because you may be reasonably afraid that your life may be in jeopardy. If a peaceful entry is made then a request to depart must first be used, but not necessary when a reasonable person thinks it useless. Recovery of Property You can use reasonable force to recover property if the pursuit is fresh.
A store owner who reasonably believes that an individual has stolen merchandise, may detain the individual for a reasonable investigation of the facts. Re-entry of Real Property If you have rightful possession to property you may not use force, you must use “Unlawful Detainer” proceedings. Public Necessity A person has a complete privilege to interfere with property rights if she reasonably believes it is necessary to avert a public disaster. Private Necessity A person has a privilege to interfere with property rights if he reasonably believes it is necessary to prevent serious injury to a small number of persons or property, but must compensate for any damage caused.
NEGLIGENCE 800 pound gorilla, this is litigated all the time. 1) Duty of due care a. Fx Plaintiff b. NIED 2) Breach of duty 3) Cause in fact 4) Proximate Cause 5) Damages “N” – Is the elements of the cause of action. “n” – Is description of action or failure to act that is unreasonable (first 2 elements). Neg = Gravity of harm X probability of harm is greater than burden of prevention. What is reasonable? – Factors? Gravity of Danger (more dangerous is more chance of negligence) Foreseeability of harm o Knowledge of facts, leads to different level of foreseeability The Burden of Prevention (Utility) Reasonable is shorthand of the Learned Hand Test (formula) TARP – The Average Reasonable Prudent Person Assume Average Intelligence (objective) Basic knowledge, Vague minimum knowledge. If nearly everyone in the community knows of a danger then you should know. People with superior knowledge are held to that knowledge.
Custom reflects the experience of many. If there is a custom in the community and it is violated then it is evidence of negligence. But it is not despositive because the custom could be unreasonable. Different for doctors, they must follow a “respected school of thought.” When there is an Emergency we take the circumstances into account. Be careful if it is the person created his own Emergency, then he could be negligent in the first place for creating the Emergency. Physical Characteristics are taken into consideration. A person should be held to the standards of people with similar characteristics. This might be a disability or an exceptional ability. Children (17 and under) will be judged as reasonable based on their own 1) Age; 2) Intelligence; 3) Experience. o Exception – Child is judged as an adult when doing “adult activities” (inherently dangerous activities). Insanity is generally not taken into account, but a minority of courts allow a sudden insanity exception. o Exception -- Contributory negligence does not prevent recovery unless the insane defendant did understand the danger and still acted negligently. The Reasonable Prudent Professional (Malpractice) o Learning, skill and ability of an ordinary (not average) member of profession in good standing (competent) o Exercise of own best judgment o Use of due care o This standard is put to those who are not necessarily professionals but those who hold themselves as having exceptional skills. o For a medical malpractice suit, the doctor must be doing something that is in a “respected school of thought.” Meaning just some group of people would do it, does not need to be a majority or any percent for that matter.
With medical malpractice the P usually must bring in expert testimony. If a doctor does not get any consent for performing an operation then it is battery (rare). INFORMED CONSENT 1. Failure to inform of the material risk prior to obtaining consent; 2. Causation; 1. Damages What is material risk. Majority -- A risk is material if a reasonable person would attach significance to the information. Minority – Just subjective, is this risk material to this person. Causation – P must prove, subjectively, that he would not have gone forward with the operation if he knew the info. THEREPUTIC PRIVELEDGE – A doctor can choose not to inform of risk if it an emergency, or if they (reasonably) feel it is in the best interest of the patient.
The conduct of health professionals who are certified through a system of national board certification must be measured against nationally (not local) accepted standards of care. 1) locality standard 2) national standard 3) same or similar standard, close to the locality standard, locality or something that is like this locality. – adds remedy to the conspiracy of silence rule, doctors in a small community are reluctant to testify against other, but a doctor from another small community may come in and do the job. Moore v. Regents Breach of informed consent, did not tell about material term. The material term does not always have to be a risk, but can be a benefit. 10/06/03 When a matter is such that no jury acting reasonably would differ, then it becomes a question of law, the judge can make a determination. Stare decisis: Allows some predictability Makes it harder for improper judges to rule on improper motives Not binding (unless it is stare decisis from a higher court) Who can determine if there was negligence, was there a duty and a breach? Juries Judges Legislature To use statute as a means for negligence 1) It must be the type of injury involved that the statute was intending to prevent 2) The plaintiff must be in the class of persons the statute was trying to protect 3) The violation of the statute was a proximate cause of the injury 10/08/03 Violation of statute Proximate causation of violation of statute must be shown. Cardozo approach, “Negligence per se”, Negligence in itself. This means that the jury only has to decide if the statue is violated, then there is negligence by law. No need to show causation. SEE HANDOUT Statutes show a standard of behavior that come from the legislature. Not every violation of statute is negligence. 3 approaches
First approach is the “negligence per se” approach. If you have those 3 prerequisites then it is negligence. There are some excuses such as emergency. The judge is to decide if the excuse is valid, the jury decides if the statute is violated. Second approach (California) (rebutable presumption), we shift the burden of proof, if the 3 elements are met, to the D. We now presume there is negligence and the D must prove that there was not negligence. In this approach the jury makes all determination. 3rd approach (some evidence approach), no shift of burden, violation of statute is just one piece of evidence that the P can use. It will prevent a directed verdict against P but that is about it. CIRCUMSTANTIAL EVIDENCE A business has a duty to keep floors free of hazards provide it has notice something slippery in on the floor. Res Ipsa Loquitur – The thing speaks for itself. 1) An even which does not normally occur in the absence of negligence; 2) The instrumentality causing the injury must be within the D’s exclusive control or custody; (second element is not so strict, just kind of asking is it most likely that the D caused the negligence) 3) The injury must not be due to P’s conduct.
Respondiat Superior, an employer is responsible for the negligent acts of an employee if they are within the scope and course of employment. If it is an independent contractor then the employer is not responsible. Usually, if you have multiple D, you can not use Res Ipsa because you fall short on element 2. But if the defendants are working in some complex or highly integrated fashion towards a common goal, like medical malpractice, then you can use Res Ipsa. The courts are very limiting on this principle, they usually only limit it to medical malpractice cases. Contributory negligence – Originally if the plaintiff was negligent at all, the whole case was wiped out. Now we changed it to comparatively negligence where the damages are just pro-rated. Now in most jurisdictions the 3 rd element has been changed as well to a similar reflection. The judge decides if the 3 elements are met. The jury decides how much weight to give the inference that there was negligence. The res ipsa loquitur at a minimum gets the case to a jury, the judge can not issue a directed verdict or summary judgment against the P if he can prove res ipsa loquitur. 3 different approaches. 1. Majority approach – Inference of negligence, just as discussed above. 2. Weak Presumption approach or the California approach – The res ipsa takes us over the line in favor of the P, but all the D has to do is produce some credible evidence that
refutes the negligence and we are back to the approach above. We initially presume the D is guilty but that presumption is weak and if the D comes forward with any credible evidence, then we go back to the first approach and no longer just presume the D is guilty. 3. Rebutable presumption approach – This shifts the burden of proof. This method says that the res ipsa will make us presume the D is guilty and now the D has to prove that it was not negligence. 10/20/03 CAUSE IN FACT Cause in fact is always a right or wrong answer situation. In nature the answer is a fact, but sometimes we have trouble finding the answer. Proximate cause is just a matter of judgment or policy. Is society better off if we hold a person liable. Sine Qua Non – “But for” analysis. Sometimes there are multiple “but for” causes. A possibility of no causation does not negate causation. Can not impose liability if there is no evidence of causation. The possibility of causation is not enough to establish causation as a matter of law. In medical malpractice cases we have an exception where creative damages are used. The injury can be simply “reduced chance of survival.” 10/22/03 Sine Qua Non – Without which a thing can not be (But For) Daubert 2 prongs Testimony must be derived by the scientific method and reflect scientific knowledge; and It must logically advance a material aspect of the proposing party’s case 4 factors for Daubert Whether the theory or technique employed is generally accepted in the scientific community Whether it has been subjected to peer review and testimony Whether it can be and has been tested Whether the know or potential rate of error is acceptable This is a pro defense rule because the plaintiff has the burden of proof. And litigation becomes more expensive. Joint and several liability – if there are more than one defendant who are all liable, then each party individually can be responsible for 100% of the dameage.
Joint and several liability is on the decline. There is a case where we can use the but for analysis. If there are two defendants who are independently negligent. Either action would have cause the damage to P. We can’t say but for to either plaintiff. Like in Crim when two people shoot someone at the exact same time. For this situation we use the substantial factor test. If a cause is a substantial factor to the damage then it can be a cause in fact even if it does not meet the but for test. Traditional Substantial Factor Test (very rare) 1) 2 or more forces combine to bring about harm; and 2) D is responsible for only one of them, which is a substantial factor in bringing about harm; and 3) Each force alone would have been sufficient to bring about the harm done Why Traditional? Distinguished with CA causation test; substantial factor test a. court does not use but for language b. causation exist if D’s conduct was a substantial factor in bringing about the harm 10/23/03 Alternative Causation Test – See Sheet With Res Ipsa Loquiter we shift the burden of proof on the little n (negligence), with the Alternative Causation Test we shift the burden of proof of causation. Enterprise Liability Test – See Sheet How do you define the product market? What about the geographic market? If someone has all of SF on lockdown and because of that they have 80% of the California market share, but the person who got sick was in Malibu? Proximate Cause – As a matter of policy, is it a good idea to impose liability in this situation. Unspoken policy concerns are often what is driving the courts decision. A defendant is only liable for the ordinary and natural results of his negligent conduct. A defendant is liable to the plaintiff in damages for the aggravation of plaintiff’s preexisting illness due to the defendant’s negligent conduct. Thin-skull plaintiff rule or the Egg-Shell plaintiff rule: Take the plaintiff as you find him. D is liable for all physical results, whether foreseeable or not, resulting from a foreseeable personal injury. This rule is in relation to plaintiff’s body and mind, not for property.
The Direct Cause Approach: For Property As long as damage is the direct cause of the negligence, liability will be imposed even if the damage is not a foreseeable type. Proximate Cause exists if the injury is a direct and natural consequence of the defendant’s conduct under the existing set of circumstances, rather than the result of an independent intervening cause. 10/29/03 The bottom line with proximate cause is that it is a judgment call. Usually when the approaches differ, the direct cause approach is a more expansive approach. It is a bit more plaintiff friendly. Reasonable foreseeability Approach (Majority) Proximate Cause exists only if P’s injury was a reasonable foreseeable result of D’s negligence Px Cause exists only if P would receive some reasonable foreseeable injury as a result of D’s negligence The Hindsight Approach (Restatement Approach) Proximate cause exists if, in hindsight, it is not highly extraordinary that defendants negligence brought about the harm. Courts almost never expressly embrace it. But sometimes they will use it. Some people say there is not proximate cause issue, just use the learned hand technique and if there is a duty breach, then there is the proximate cause as a given. Palsgraf v. Long Island In this case the court finds that she is not a reasonably foreseeable plaintiff at all. There is no reasonable foreseeability that plaintiff would be harmed in this case. Cardozo view – He does not discuss proximate cause. He says that there is no reasonable foreseeable plaintiff so there is no duty to the P. Proof of negligence in the air will not do. Duty and Breach does to say that there is some harm that is reasonable foreseeable. 11/3/03 Under unforeseeable plaintiff approach. First, is it foreseeable that some harm can occur. If yes then we meet the duty requirement. Now, is it foreseeable that the specific harm would occur, if yes, then meet the proximate cause test. Judge Andrews says that Cardozo approach would only allow damages for those in a zone of danger. This may not be a proper interpretation. Cardozo’s view that the plaintiff must be reasonably foreseeable is the majority view. Andrews talks about Duty and Proximate cause.
Andrew’s view on duty is fairly ridiculous. He says that everyone has a duty to the world to not undertake dangerous activity. Courts may sometimes award an unreasonably foreseeable plaintiff damages but they will usually say it is because of some other approach, they typically will not admit to using this approach. Some people say that Andrews is a champion of the direct cause approach. Regarding proximate cause, Andrews says that proximate cause is about getting the right result. Use practical politics to get to a fair point. 11/5/03 INTERVENING CAUSES Rule for superceding intervening cause: An intervening cause is superceding, thus relieving D from liability, if it was not reasonably foreseeable. If the cause is already in existence when the act occurs then the cause is not intervening. It must be a cause that arises after the D acts. For eg. If the Santa Ana winds are blowing and I light a camp fire, the wind is not an intervening cause because it was in existence. Sometimes natures intervening causes are called Acts of God. Sometimes we see courts analyzing the reasonable foreseeable intervening cause in hindsight. Point is that there is still wiggle room. Even if the manner of harm is unforeseeable, if the type of harm was foreseeable then that is usually enough. Intentional or Criminal Intervening Causes The traditional rule is that an intentional or criminal intervening act does supercede negligent conduct, even if it is reasonably foreseeable. In this context we need to look at intentional as carrying with it morally negative conduct, as opposed to just volitional. The modern trend is to subject the criminal or intentional intervening cause to the reasonable foreseeability test. In other words, just treat it like any other intervening cause. ALCOHOL TO GUESTS If you serve someone a lot of alcohol, is it reasonably foreseeable that if this person drives home, they can hurt someone? It seems like it is obviously yes. The debate comes in with pubic policy. Most courts do not impose a social host duty. It is more likely that courts will impose liability on commercial establishments. The exception is when the guest is a minor. If you serve drinks to a minor then all bets are off, and you will probably be held responsible. CONTRIBUTORY NEGLIGENCE
Contributory negligence can be an intervening cause. If we have a plaintiff’s intervening act, we will treat it like any other intervening act. Usually plaintiff’s contributory negligence is not a superceding intervening cause. RESCUERS A defendant who has underlying negligence that causes someone to be need to be rescued, then the defendant will also be responsible for the people who attempt rescue. If there is an imminent peril or reasonable appearance imminent peril, a rescuer’s conduct is not a superceding intervening cause of harm to the rescuer unless the rescuers conduct is reckless. The rescuer must still prove that his harm was reasonably foreseeable. A second injury caused by a weakened condition. Suppose that the rescuer who was struck by a car develops pneumonia in his weakened condition. Suzuki would be liable for the pneumonia as well. These are not superceding intervening causes: 1. 2nd injury caused by weakened condition 2. Doctor’s malpractice (unless it is intentional) 3. Involuntary Suicide (the person is insane because of the accident) These are superceding intervening causes: 1. Voluntary Suicide (this may encourage suicide, and it is an independent conscious decision to kill yourself. The minority says that voluntary suicide if a result of an “irresistible impulse,” is not a superceding intervening cause. Most of the minority jurisdictions also require the suicide to be done in a sudden frenzy.
On an exam 1. Is any harm reasonably foreseeable, are there any intervening causes and are they reasonably foreseeable. 2. Then talk about direct cause approach. 3. Then talk about hindsight approach. 4. Then talk about Andrews sense of justice approach. But remember that Andrews is not really an approach, he is just trying to observe what is going on and say that we are using the other approaches as tools to bring us to a rough sense of justice. DAMAGES Usually pretty easy element to grasp. Was the plaintiff damaged? Motion for Remittitur – The judge will apply the maximum recovery rule. The basic types of damaes: 1. Compensatory (Trying to make the plaintiff whole)
a. General – Pain and Suffering (emotional and physical) b. Special – Out of Pocket 2. Nominal 3. Punitive (Punish Defendant) Critics say pain and suffering damages are just too vague. It is an affront to human dignity, saying that your life or pain can be reduced to $. Universally courts do award these damages. The reasoning is, it’s all we can do. We don’t have the ability to take away the pain and suffering so the best we can do is award you money. Also, typically offsets need of plaintiff to pay attorney’s fees. If you just get back your special damages, you have to pay a part of that to the attorney, you end up less than whole. General damages are usually about 3X the special damages. Under the common law the prevailing party does not recover any attorney fees, each party pays his/own fees. This is called the American rule, the English rule is that the prevailing party gets fees recovered. English rule reduces litigation. English rule seems fair, if someone is unfairly sued they should not have to pay for an attorney. American rule is favored by lawyers. The American rule avoids favoring wealthy parties. Wealthy parties usually spend lots on their lawyers. Most personal injury cases are handled on a contingency basis. 25%-50% Several states regulate the maximum contingency fee. Con’s to contingency fee – Lawyers doing very little work and getting a lot of money. Encourages litigation. Negative public image. Pro’s to contingency fee – helps poor people. Collateral Source Rule -- For purpose of mitigating damages, D may not introduce evidence that a third party provided P money related to P’s injuries. Subrogation clause – Negates the collateral source rule. Most insurance companies have this clause. It is possible that money to the P is admissible for the following reasons: To impeach the P; Duty to mitigate rule Mitigation of damages rule: P can not recover damages if it could have been avoided by reasonable conduct by P after D’s misconduct. Courts are hesitant to say that failure to undergo surgery is unreasonable. Punitive Damages – Punish the defendant and deter conduct Sometimes seen as a Quasi Criminal Penalty.
Three Guideposts for Punitive Damages violating due process: 1) Degree of reprehensibility of the wrong; 2) The ratio between compensatory damages and punitive; 3) Difference between the award and civil and criminal penalties for comparable misconduct. The Supreme Court says that the ratio of punitive and compensatory should usually not go above 9. But there is room for adjustment, if the compensatory is low the ratio may be higher for punitive, and vice versa. To get a punitive damages case courts usually look for maliciousness on the part of the defendant; or they will look for a wanton or reckless disregard for the well-being or safety of another. Typical negligence actions don’t result in punitive damages, there usually must be negligence plus one of the factors above (maliciousness, reckless disregard). Is it fair that a company can be punished multiple times because many people can sue? It seems that defendants just get the shaft on this issue. Should the amount of punitive damages be dependant on the wealth of the defendant? Wealth is admissible and is relevant. The reasoning is that the wealthy can give up money and have it be no big deal. Some common approaches: 1. Monetary cap on punitive damages. 2. Multiple or ratio cap on punitive damages. 3. New Hampshire has abolished punitive damages altogether. 4. Make Punitive damages harder to get. In California the evidence to support punitive damages must be clear and convincing. Also give jury instruction that punitive damages can only be imposed if the defendant’s behavior is despicable. 5. Taking part of the money away from the plaintiff and given to the state. LIMITED DUTY Usually duty and breach are intertwined in a Learned Hand analysis. Sometimes we will step outside the Learned Hand analysis and say there are sometimes when the harm is high and it is highly foreseeable and easily prevented, but as a matter of policy we don’t want to have a tort claim. If people break in my house everyday and everyone knows this, and I freshly mop the floor, but I don’t put up a sign. Someone breaks in and slips and falls. A surface application of the Learned Hand analysis says that probably negligence on homeowner’s part. We may not want to have this be the case in society. NIED – This is a situation where courts will sometimes knock out claims because courts don’t think there should be a claim.
When we are talking about NIED, we are specifically talking about situations where there is only NIED. If there is a claim where you run over my foot and I get hurt and suffer emotional distress, that is called a parasitic claim and courts will never limit duty in those cases. NIED 1) Physical impact rule (fading): Form of limitation of NIED. Not recoverable unless there is a form of impact on the person’s body. While courts have gotten rid of the physical impact rule, they do require that the distress be normal or reasonable. 2) NIED parasite if PI: Don’t need to think about NIED as a separate cause of action when linked with physical impact and injury. 3) Physical manifestation rule (majority): Insomnia, hair-loss, headaches; Some courts differ with the level of physical manifestation. There is a trend towards minimizing the requirement. 4) 2 types of NIED: a. Direct i. Zone of danger ii. Special Cases iii. Special Relationships b. Bystander i. “Thing” approach ii. Bystander approach “Thing” requirements 1) P closely related to the injury victim; 2) P present at the scene of the injury producing event and is then aware it is causing injury to the victim; 3) As a result, P suffers serious ED that is not abnormal and that is worse than what would be expected in a disinterested witness. Policy concerns: 1) Open the flood gates to litigation. 2) Concern for fraud. Always tough when dealing with mental or emotional claims. Direct NIED Actions: Most jurisdictions allow recovery for NIED direct at the plaintiff if the P was in the zone of danger (if it is reasonable that you could have been hit). If you are not in the zone of danger you can not collect for NIED. This is to limit claims and it is also to regulate some authenticity. We can understand if you were distressed if you were almost hit. Special Cases: If someone is not in the zone of danger but a relative’s or a pet’s corpse has been mishandled. Another case is an erroneous notification of death or great harm to a relative. Special Relationships: Where there are relationships that give the court a strong sense of emotional distress, even outside the zone of danger. A doctor negligently diagnosed a
wife with syphilis. Another case, there is a special relationship between a mother and a baby that the mother can bring a direct NIED claim if she is negligently told the baby is stillborn, the husband could only have a bystander claim. Another claim, mother has an NIED claim against a therapist who molested her children. Most court really try to limit these types of cases because they seem very unpredictable and tough to explain. Bystander NIED Actions: Thing Requirements: See above. Some jurisdictions use them as guideposts, and other jurisdictions use them as prerequisites. Most jurisdictions use the bystander approach, which is pretty much that you can not recover unless you are directly affected. Bystander Approach: If you are a bystander, you can only recover if you yourself are in the zone of danger and you are fearful for your own safety. FAILURE TO ACT Misfeasance – Affirmatively doing something that is negligent. Omission – D fails to do something that a Rx person would do while engaging in another activity (affirmative act). Nonfeasance – Failure to act. Courts are more likely to find a duty with misfeasance rather than nonfeasance. “No Duty to Rescue” -- In most circumstances we don’t have a duty to take care of other people’s problems, even if it would be very easy to do so. Courts try to stay away from legislating morality. You may have a moral duty to help people but not a legal duty. Some “special relationships” creating duty to rescue (partial list): Business/Customer Common Carrier/Passenger Jailor/Prisoner Parent/Child Employer/Employee If you cause the peril, then you have a duty to rescue. The courts also say even if you are not negligent you can be responsible for rescuing if it is your instrument that caused the harm. You may also assume a duty of due care, then you will have a duty to rescue. Courts say that you only assume a duty of care if you put someone is a worse situation by you getting involved rather than never getting involved in the first place. Limited Duty Categories 1. NIED 2. Failure to act 3. Unborn children 4. Owners and occupiers of land
FAILURE TO ACT As a public policy issue we have made a spouse responsible: A spouse should take reasonable steps if he/she knows or is suspicious that spouse will molest. Because there is a special relationship between the psychologist and Poddar, this created a duty to warn others of information received by Poddar that he would harm others. When is a relationship special? Control and responsibility. Priest and Parishioner, the court decided that this is not a special relationship. UNRORN CHILDREN Injury to fetus. Before courts were reluctant to award damages for injury to a fetus. Now all jurisdictions award damages for injury to a fetus if the baby is born alive. Majority says the child does not need to be born alive, the minority says the child need to be born alive. Most jurisdictions do not require a fetus to be viable. Small number of jurisdictions require the fetus to be viable. Wrongful Life A child is claiming, it would have been better off if I would not have been born. If you have not been negligent I would have been aborted or whatever. Courts will allow recovery for special damages but not for general damages. Wrongful Birth Similar to a wrongful life action but the parents bring the action. Courts generally allow the same recovery, medical expenses but not emotional distress. Some jurisdictions do allow pain and suffering and emotional distress but very few. More jurisdictions allow wrongful birth claims rather than wrongful life claims. Jurisdictions won’t allow double recovery. Courts typically do not allow wrongful birth awards when a children is born healthy. Wrongful Death This is a parasitic cause of action. Can never bring action alone. Battery actions with wrongful death attached on. Defendant either negligently or intentionally takes the life of a close relative. Close relative may recover pecuniary damages for the loss of a relative. All jurisdictions will allow out of pocket losses, split on whether to award pain and suffering. OWNERS AND OCCUPIERS OF LAND Trespassers – There is normally no duty of due care to trespassers. Exceptions – a place that is anticipated where the public may be; where the landowners conduct is willful and wanton (reckless). There is also a duty with active operations after discovery.
Licensees – one who is on property with permission but not an invitee. Social guest is considered a licensee even if they are invited. To a licensee the duty is similar to the duty to a trespasser. Generally the licensee must take the owners premises as it is. But the owner must warn the licensee of hidden dangers the owner knows about and the guest does not. This is the benefit of the licensee over a trespasser. One other plus, if there is an active operation the owner must exercise due care towards the licensee if owner actively discovers or reasonable should be anticipated that the guest is near the operation. Invitees – one who enters the premises of another and the owner hopes to have some financial benefit or interest from it (business purpose or private property open to the public). With invitees we use a normal duty breach analysis. Invitees status has been extended to almost any public place. The trend is to say that we just reject the categories and treat everyone the same. This approach says that we find a duty of due care to everyone. Doesn’t mean you are always liable, we must use the Learned Hand approach. We can take the fact that the guy is a trespasser under consideration in determining if the D acted reasonably. Some other jurisdictions have wiped out the distinction between invitee and licensee but kept the distinction with regard to trespasser. AFFIRMATIVE DEFENSES Contributory Negligence – The traditional approach towards dealing with situations where the P was himself partially to blame. Historically the courts say that if the D can prove that the P was negligent and that the P’s negligence was causally connected to the accident, then the P can not recover anything. This is a harsh rule. The courts started coming up with a bunch of exceptions like the gross neg v. minor neg exception. Here the courts say that if the neg is very out of proportion we will allow recovery. There is also “The last clear chance exception.” This says – even if the P was contributorily negligent, if the D had the last clear chance to avoid the accident then we will not bar recovery. Most jurisdictions don’t use contributory negligence. Comparative Negligence – This approach looks at percentages of fault. Pure approach (California approach) – Always put a percentage on the D’s fault and P’s fault and just divide it up accordingly. Some jurisdictions offset the penalties when there are two claims of damages (P and D get hurt). The insurance companies win here, so most jurisdictions don’t offset. If P is to get $250,000 and D should get $95,000 they just have them pay eachother rather than just have the D pay $155,000 to the P. California does not offset. “Less than approach” – P can only recover if his negligence is less than D’s negligence. In this approach if the P is 50% or more responsible, he can not recover. Not greater than approach – P can only recover if his neg is not greater than D’s neg. P can not recover if he is 51% or more neg.
What if D1 is 60%, D2 is 10%, and P is 30%? Many jurisdictions say the plaintiff must be less than or not greater than all of the defendants individually. Some jurisdictions add up the percentage of all the defendants and all the plaintiffs and just use the total number. Assumption of risk – usually it is a conscious acceptance of risk as opposed to doing something stupid. To assume the risk the P must know the risk and voluntarily assume. The reasonability does not matter. It is not a defense to intentional torts, just negligence. There are two types. Express assumption of risk – This is closely aligned with contract. The P exercises his autonomy to free the D of the liability. You have to be very detailed to make this effective. Courts have bent over backwards to make assumption of risk hard to pull off when there is personally injury involved. Implied assumption of risk – Subjective knowledge of the risk and a voluntary assumption of the risk. Your conduct will show that you voluntarily assumed the risk. Like if you jumped into a ring when a bullfight is going on. Implied assumption of risk is not relevant unless negligence is already present when the risk is assumed. There is a trend towards comparative assumption of risk.